Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Reinhard Rauball (Germany), member
on the claim presented by the player
B,
as Claimant
against the club
K,
as Respondent
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 17 October 2008, the I player, B (hereinafter: the Claimant), submitted a claim
to FIFA and asserted that he had entered into a contractual relationship with the
club, K (hereinafter: the Respondent), on 6 August 2007, to be terminated on 30
June 2009.
2.
In this respect, the Claimant stated that the Respondent allegedly failed to pay
him the sum of USD 30,000 as per an agreement signed for the season 2007-2008,
and that for the season 2008-2009, he had only received USD 30,000 as sign-on
fee, plus USD 6,000 as salary for the month of August.
3.
The Claimant therefore asked, besides being allowed to consider his employment
relationship with the Respondent as terminated in order for him to sign with a
new club, for the remaining value of his contract signed on 25 June 2008 as well as
the aforementioned amounts, amounting to a total of USD 94,000.
4.
In his claim, the Claimant indicated that he had signed two contracts for each year,
but that, despite his efforts to ask the President of the Respondent to remit him a
copy of the two contracts duly signed by a club’s representative, these copies were
never returned to him. The Claimant was therefore only able to submit to FIFA a
copy of the second employment contract, apparently concluded on 25 June 2008,
and valid until 1 June 2008 (sic), which is not signed by the club’s representative,
and according to which the Claimant would have been entitled to receive USD
30,000 as sign-on fee, USD 60,000 as salaries, payable in ten equal instalments, plus
USD 30,000 as bonus if he played more than 70% of the official matches of the
season 2008-2009. The Claimant was not able to submit a copy of the first
employment contract allegedly signed by him for the season 2007-2008.
5.
On 21 November 2008, the Respondent indicated to FIFA, on the one hand, that
the employment contract submitted by the Claimant was not valid, as it is not
signed by the Respondent. On the other hand, the Respondent asserted that the
Claimant is indeed bound by a contract that was registered at the Football
Federations of A, valid from 15 July 2008 to 30 July 2010, and that he had left the
Respondent without notice. According to this contract, the Claimant was to
receive a monthly salary of 3,000 (approx. USD 3,700). The Respondent did not,
however, provide FIFA with a copy of the aforementioned contract.
6.
The Respondent further indicated that they did not receive any offer of transfer
for the Claimant, and that they had conducted a search for the Claimant in order
to “clear up this misunderstanding”, but that their efforts had failed.
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7.
The Respondent concluded by affirming that they have met all their financial
obligations towards the Claimant on the basis of the agreement allegedly
registered with the Association of Football Federations of A. The Respondent,
however, did not submit any evidence for the fulfilment of its obligations.
8.
On 25 November 2008, FIFA contacted the Respondent and asked it to provide a
copy of the relevant employment contract allegedly binding the Claimant and
registered with the Association of Football Federations of A. FIFA also asked the
Respondent to express itself explicitly on the Claimant’s wish to be released from
his contractual obligations with the Respondent.
9.
On 12 December 2008, the Respondent reiterated that the Claimant had left
without permission, and that they were “ready to solve all the problems and
hoped that no [more] problem [would] arise between this Claimant and the club”.
However, the Respondent still did not provide FIFA with a copy of the
employment contract upon which it based itself to claim the return of the
Claimant.
10.
On 19 January 2009, the Claimant wrote to FIFA in order to insist on his wish to be
released from his contractual obligations with the Respondent. He pointed out
that the Respondent did not seem to react to FIFA’s invitation to provide a clear
position in the matter, and interpreted this absence of response as a lack of
interest in his services.
11.
On 27 January 2009, FIFA forwarded the position of the Claimant to the
Respondent and reminded the latter that it should provide its final position in the
matter. FIFA also informed the Respondent that, in the absence of a statement
within the given deadline, the case would be submitted to the Dispute Resolution
Chamber for consideration on the basis of the documentation at its disposal.
However, the Respondent did not react to this letter.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, it took note that the present matter
was submitted to FIFA on 28 October 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008, hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. art. 21 par. 2 and 3 of the Procedural Rules).
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2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player and a club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on 28 October
2008, the current version of the regulations (edition 2008; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging that the following three questions had
to be tackled :
1.
Has a valid and binding employment relationship existed between the
parties of the dispute?
2.
In the affirmative, who is responsible for the termination of the
employment contract and was there a just cause for such termination?
3.
In case of unjustified breach of contract, which are the consequences
thereof?
5.
With regard to the first question, the Dispute Resolution Chamber observed that
in order to properly assess this particular issue, it had to take into consideration
the arguments of both parties of the dispute as to the alleged existence of a
contractual relationship between them.
6.
In this respect, the members of the Chamber first took due note of the fact that
the Claimant asserted that he had signed two consecutive employment contracts
with the Respondent, for two sportive seasons, i.e. the seasons 2007-2008 and
2008-2009. Furthermore, looking more precisely at the documentary evidence
submitted by the Claimant in support of his claim, the panel acknowledged that
the Claimant submitted a copy of a contract for the second season, i.e. the season
2008-2009, but that for the season 2007-2008, the latter did not submit a copy of
the alleged relevant employment contract. In addition, the members of the
Chamber observed that the copy of the contract for the second season was not
signed by the Respondent.
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7.
Notwithstanding the above, the Dispute Resolution Chamber was eager to
emphasize that the Claimant had submitted a letter, signed by the Vice-President
of the club, whereby the latter confirmed that the Claimant was employed by the
Respondent from 6 August 2007 until 30 June 2009. Furthermore, and more
importantly, the panel observed that the Respondent, had, during the course of
the procedure, recognized the existence of a contractual relationship with the
Claimant by admitting having signed a third contract with the Claimant, i.e. a
contract which was not submitted by the Claimant but which the Respondent
asserted had been registered at the Association of Football Federations of A.
8.
In view of the above considerations, the Dispute Resolution Chamber held that,
despite the lack of a written contract between the parties, the Claimant and the
Respondent had indeed been linked by a valid employment relationship, and that
the Respondent did not contest this fact.
9.
In addition, the Chamber noted that the Respondent admitted having concluded
an employment contract with the Claimant from 15 July 2008 to 30 July 2010, and
that the monthly salary of the Claimant was of 3,000, or approximately USD 3,700.
10.
The existence of a valid employment relationship between the parties having been
established, the Dispute Resolution Chamber then moved on to the second
question. In this regard, the Members of the Chamber underlined that the
Claimant had asked to be immediately released from his contractual obligations
with the Respondent due to the fact that the latter had allegedly failed to pay him
a sign-on fee for the season 2007-2008 in the amount of USD 30,000, and that, for
the season 2008-2009, he had only received his salary for August in the amount of
USD 6,000.
11.
Equally, the members of the Chamber took due note that the Respondent asserted
that it had met all its financial obligations towards the Claimant. In this respect,
the members of the Chamber stated that the Respondent, who claimed having
met all its financial obligations towards the Claimant, bore the burden of proof in
this regard. With regard to the foregoing, the Dispute Resolution Chamber
affirmed that the Respondent, who claimed having fulfilled its financial
obligations towards the Claimant as stipulated in the third contract, did not
provide evidence that these obligations had indeed been fulfilled. In particular,
the panel observed that the Respondent had not submitted any salary slips
referring to the amounts allegedly paid to the player. In fact, as admitted by the
Respondent, it had to pay to the Claimant a salary of 3,000, or approximately USD
3,700 per month as of 15 July 2008. Out of the 12,000, or USD 14,800, that had
become due from the uncontested start of the employment relationship between
the Claimant and the Respondent, i.e. 15 July 2008, until the date of the
Claimant’s claim before FIFA, i.e. 17 October 2008, the Claimant admits to have
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received only USD 6,000. More than two monthly salaries are thus to be
considered as unpaid at the moment of the submission of the Claimant’s claim
before FIFA.
12.
Therefore, the Dispute Resolution Chamber held that the Claimant had just cause
to terminate the employment relationship with the Respondent. Consequently,
the panel ruled that the Respondent was liable for breach of the relevant
employment relationship, and that any contractual relationship between the
parties must be considered as terminated. The Claimant is thus to be considered as
free to sign a new contract with the club of his choice.
13.
Finally, with regard to the third question, the members of the Dispute Resolution
Chamber deemed that the Claimant should receive compensation for breach of
contract by the Respondent. In order to calculate the amount of compensation
due to the Claimant, the panel first acknowledged that the obligation to pay the
amounts such as claimed by the Claimant, i.e. a sign-on fee for the season 20072008 in the amount of USD 30,0000, as well as the remaining value of the alleged
contract for the season 2008-2009 in the amount of USD 54,000, could not be
proven by the latter, due to the fact that he did not provide a signed copy of the
relevant contracts.
14.
In view of the aforementioned, the members of the Chamber deemed that the
calculation of the amount of compensation could only be based on the salary as
alleged by the Respondent, i.e. 3,000, or approximately USD 3,700 per month.
Moreover, the panel took due note of the fact that the Respondent stated having
signed a contract with the player as of 15 July 2008.
15.
Additionally, the panel observed that the Claimant declared that he had received,
to date, a total amount of USD 36,000 from the Respondent. In view of this, the
Dispute Resolution Chamber held that the outstanding salaries from the
termination of the contract in October 2008 until the end of the employment
relationship, which, according to the Respondent, was to be on 30 July 2010, was
of USD 42,000.
16.
Consequently, on account of the above, the Dispute Resolution Chamber decided
to award the amount of USD 42,000 as compensation for breach of contract to the
Claimant., and rejected all further claims lodged by the Claimant. Finally, on a side
note, the panel was eager to emphasize that the Respondent had shown a
particular lack of cooperation in the matter, in particular with regard to its failure
to provide the employment contract upon which it based itself to allege that it
had paid all salaries due to the Claimant.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, K, has to pay to the Claimant, B, the amount of USD 42,000
within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
5.
The Claimant, B, is directed to inform the Respondent, K, immediately and directly
of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
Note relating to the motivated decision (legal remedy):
According to art. 63 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives). The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne, Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
E-Mail: [email protected] /www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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