Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 March 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (England), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player
X,
as Claimant
against the club
G FC,
as Respondent
regarding an employment related contractual dispute
arisen between the parties
I.
Facts of the case
1.
The player X, a double citizen (hereinafter: the Claimant), and the club, G FC
(hereinafter: the Respondent), concluded an employment contract (hereinafter: the
contract), valid from 1 August 2006 until 30 June 2009.
2.
For the 2006/07 season, the parties agreed on a total remuneration of USD 150,000,
payable as follows: USD 50,000 up to 20 August 2006, 10 monthly instalments of
USD 5,000 each and 34 instalments of USD 1,470 each, payable after every fourth
match.
3.
For the 2007/08 season, the parties agreed on a total remuneration of USD 200,000,
payable as follows: USD 80,000 up to 20 August 2007, 10 monthly instalments of
USD 6,000 each and 34 instalments of USD 1,764 each payable after every fourth
match.
4.
For the 2008/09 season, the parties agreed on a total remuneration of USD 250,000,
payable as follows: USD 90,000 up to 20 August 2008, 10 monthly instalments of
USD 9,000 each and 34 instalments of USD 2,058 each payable after every fourth
match.
5.
On 8 September 2006, the Claimant lodged a claim against the Respondent before
FIFA.
6.
In this respect, the Claimant stated that after the signature of the contract, he had
gone to country T, had then regularly taken part in the training sessions, had
appeared on an official team photograph and had been introduced on the
Respondent's website as a new player. However, as a result of inconsistencies within
the Respondent, the application for registration had not been made and the
Claimant had never been registered by the T Football Federation for the G FC club.
According to the Claimant, the first instalment of the 2006/07 season due on 20
August 2006 and amounting to USD 50,000 was not paid by the scheduled deadline.
On 5 September 2006, after having put the Respondent in default on two occasions,
the Claimant was allegedly verbally informed by the Respondent that he could fly
home, since his services were not needed. Significantly, the Claimant was allegedly
also given a flight ticket to return to country S. On the same day, the Claimant then
flew back to country S.
7.
As the outstanding instalment of USD 50,000 was the equivalent of one third of the
contractual remuneration due for the 2006/07 season, the Claimant was of the
opinion that the Respondent had breached the contract. Furthermore, the Claimant
insisted that the first monthly instalment was due by 1 September 2006 at the latest
and that the Respondent had played its fourth match of the season on 26 August
2006. Consequently, the Claimant claimed the payment of the instalment of USD
50,000, of the first monthly instalment of USD 5,000 and of the amount of USD
(1,470 x 4 =) 5,880.
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8.
The exact wording of the Claimant's requests in his claim dated 8 September 2006
were as follows:
1.
It shall be established that a valid employment contract had been
concluded between the parties.
2.
It shall be established that G FC is in breach of the above-mentioned
employment contract.
3.
G FC shall be obliged to pay USD 50,000 plus interest of 5% since
21.08.2006, USD 5,000 plus interest of 5% since 01.09.2006 as well as USD
5,880 plus interest of 5% since 27.08.2006.
4.
It shall be established that G FC is obliged to pay all further damages
resulting from a non-compliance with the employment contract to X.
alternatively:
G FC shall be sentenced to pay an appropriate compensation for breach of
contract to X.
9.
By means of a letter dated 18 July 2007, the Claimant slightly changed the wording
of his request no. 3, which then read as follows:
3.
G FC shall be obliged to pay USD 150,000 plus interest of 5% since
21.08.2006 on the amount of USD 50,000 as well as interest of 5% since
01.07.2007 on the amount of USD 100,000.
In this context, the Claimant expressly added that the request no. 4 of his claim
remained (cf. point no. I./8.). Furthermore, the Claimant stated that he had been
playing for the club, R, since 31 January 2007 for a monthly salary of EUR 250. Thus,
the Claimant held that the interim amount of EUR 1,250 (for the months from
February to June 2007) should be deducted from the amount of USD 150,000 he
was claiming for the 2006/07 season.
10.
Even though it was invited to do so on several occasions, the Respondent never
submitted any position to the claim.
11.
On 2 November 2007, the Dispute Resolution Chamber passed a decision regarding
the claim of the Claimant. The findings of this decision read as follows:
"1.
The claim of the club the player X is partially accepted.
2.
The club G FC must pay the amount of USD 148,150 to the player X within
the next 30 days as from the date of notification of this decision.
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3.
If the aforementioned amount is not paid within the stated deadline, an
interest rate of 5% per year shall apply, as from expiry of the stated
deadline.
4.
The club G FC must pay 5% interest per year on the amount of USD 50,000
starting on 21 August 2006 until the effective date of payment within the
next 30 days as from the date of notification of this decision.
5.
In the event that G FC does not comply with the present decision, the
matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
6.
Any further claim lodged by the player X is rejected."
12.
On 4 June 2008, the Claimant lodged a new claim requesting the payment of the
compensation allegedly due for the 2007/08 and 2008/09 seasons.
13.
The Claimant maintained that he had preserved his rights in his previous claim (cf.
the aforementioned point I./7. above), taking into consideration his new
remuneration with the club, F.C. B (hereinafter: the F.C. B club). According to his
new employment contract, valid from 29 August 2007 until 31 June 2009, the
Claimant was entitled to receive a monthly salary of EUR 5’000 for the 2007/08
season and a monthly salary of EUR 6’000 for the 2008/09 season.
14.
Therefore, the Claimant requested to receive, as compensation for breach of
contract, the amount of USD 200’000 minus EUR 60’000 for the 2007/08 season, as
well as the amount of USD 250’000 minus EUR 72,000 for the 2008/09 season.
15.
By means of a correspondence dated 26 March 2009, FIFA informed the Claimant
that the Dispute Resolution Chamber had already decided upon this dispute with its
decision dated 2 November 2007, and that it would therefore not appear to be in a
position to intervene once again with regard to the new claim.
16.
However, the Claimant contested this interpretation of the facts by FIFA and
insisted on a decision to be rendered by the Dispute Resolution Chamber with
regard to his new claim.
17.
Despite having been invited to do so, the Respondent never replied to the second
claim of the Claimant.
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, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
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the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 4 June 2008, thus before the aforementioned Rules entered into force on
1 July 2008. Therefore, the Chamber referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC; edition 2005; hereinafter: the Procedural Rules) and
concluded that the 2005 edition of the Procedural Rules is applicable to the matter
at hand.
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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2009), the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a national player and a club.
3.
First and foremost, the Chamber acknowledged that the Claimant had already
lodged a claim for breach of contract on the basis of the present dispute on 8
September 2006 against the Respondent based on the employment contract valid
from 1 August 2006 to 30 June 2009, and that the Dispute Resolution Chamber had
already passed a decision on 2 November 2007 as to the substance of the matter.
4.
Thus, in view of the above remark, before being able to enter into the substance of
the present matter, the DRC concluded that it had to establish whether, based on
the general legal principle of res iudicata, it could enter into the substance of the
matter and pass a decision. The DRC added that it had to examine ex officio the
foregoing, in line with the general rules of procedural law.
5.
The DRC deemed it appropriate to briefly recall that in virtue of the principle of res
iudicata, a deciding body is not in a position to deal with the substance of a
dispute, in the event a deciding body has already dealt with the matter by passing a
final and binding decision. Indeed, the parties to the dispute as well as the deciding
body are bound by the final and binding decision previously passed. In other words,
the DRC recalled that, in line with the foregoing consideration, the parties cannot
lodge a claim, the substance of which has already been decided. Finally, the
Chamber was eager to recall that the principle of res iudicata concerns the holding
of the decision only, i.e. the part of the decision which accepts or rejects the
requests of the parties.
6.
In continuation, the Chamber underlined that the principle of res iudicata can be
opposed to a second decision if cumulatively and necessarily the parties to the
disputes and the object of the matter in dispute are identical.
7.
The members of the DRC recalled on the one hand that the identity of the parties is
given if the parties to the dispute are the same and plead in the same quality, i.e. as
Claimant and Respondent. With regard to the first claim, which led to the passing
of a decision by the DRC on 2 November 2007, the Chamber noted that the
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Claimant lodged a claim against the Respondent. In the present dispute, the same
Claimant lodged a claim against the same Respondent. As a consequence, as the
parties to the disputes are similar and plead in the same quality, the first condition
of the identity of parties is given.
8.
On the other hand, the members of the Chamber also recalled that the identity of
the subject matter is given if the requests of the two claims are similar and based on
the same legal grounds.
9.
In view of the foregoing, the Chamber went on analysing and comparing the
requests made by the Claimant in his two claims as well as the decision passed by
the DRC on 2 November 2007.
10.
First of all, the members of the DRC underlined that on 8 September 2006 and 17
July 2007, the Claimant requested, inter alia in no. 4 of his request, the payment of
an appropriate compensation for breach of contract. The Chamber noted that, on
17 July 2007, the Claimant expressly adhered to his previous request.
11.
Equally, the Chamber acknowledged that on 2 November 2007, a decision was
passed by the DRC regarding the same parties, and by means of which the Claimant
was granted an amount of USD 148,150. The Chamber referred to the holding of
this decision, and in particular to its considerations no. 2 and 6, stipulating that:
"The club G FC must pay the amount of USD 148,150 to the player X within the next
30 days as from the date of notification of this decision" and that "Any further
claim lodged by the player X is rejected."
12.
In continuation, the Chamber took note of the previous claim, by means of which
the Claimant had requested to receive, as compensation for breach of contract, the
amount of USD 200’000 minus EUR 60’000 for the 2007/08 season and the amount
of USD 250’000 minus EUR 72,000 for the 2008/09 season.
13.
In light of the foregoing, the Chamber considered that, by means of the request no.
4 of his previous claim, the Claimant had requested an amount of compensation,
which included the 2007/08 and 2008/09 seasons. By rejecting any further claim of
the Claimant (cf. point no. 6 of the holding of the decision dated 2 November
2007), the Chamber also decided on the request no. 4 of the Claimant, which - as
previously underlined - included the 2007/08 and 2008/09 seasons.
14.
Thus, taking into account that the previous and the present claim are based on the
same matter in dispute - in other words both claims were, inter alia, aimed at
compensation for the 2007/08 and 2008/09 seasons - the Chamber concluded that
the matter in dispute is identical and that therefore the second condition of the
identity of the subject matter is given.
15.
Consequently, the Chamber decided that, compared to the previous claim decided
by the DRC on 2 November 2007, the case at hand not only concerns identical
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parties to the dispute but also identical objects of the matter in dispute, and has
therefore to be considered as a res iudicata.
16.
Consequently, the Chamber unanimously decided that in accordance with the
general legal principle of res iudicata, it is not in a position to deal again with the
substance of the present matter.
17.
Finally, on a side note, the Chamber recalled that in virtue of art. 63 of the FIFA
Statutes, the Claimant would have had the opportunity to appeal against the
decision dated 2 November 2007 before the Court of Arbitration for Sport (CAS), in
order to obtain a higher amount of compensation.
******
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, X, is not admissible.
******
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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
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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