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 (Portugal), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Damir Vrbanovic (Croatia), member
on the claim presented by the player,
V,
as Claimant
against the club,
FC K,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 5 July 2006, the player, V (hereinafter: the Claimant), and the club, FC K (hereinafter:
the Respondent), signed an employment contract valid as from its date of signature
until 30 June 2008.
2.
According to art. 2.2 a) of the employment contract, the Claimant was to receive a net
monthly salary of 14,200, (20,234.83 gross), as well as a global premium of 1,650 net
(2,351.70 gross) per month for being fielded at all games of the First Division
championship.
3.
In addition, the Claimant was to receive a fee in the amount of 160,000 net payable in
two equal instalments, the first one being due on 31 July 2006, and the second one on
31 July 2007.
4.
Art. 5.1 of the employment contract mentions that in case the Claimant is injured during
a league match or any match in which the Respondent is participating, or during a
Respondent’s practice, the Respondent shall pay for all treatment and rehabilitation
costs.
5.
Finally, art. 6 stipulates that if the contract is not fulfilled, the law of country P shall
apply, under the Regulations of the P Football Association (PFA). Equally, any dispute,
and in particular the issue of the termination of the employment contract, will be
resolved by the deciding body of the P Football Association.
6.
On 19 December 2007, the Claimant lodged a claim against the Respondent for breach
of contract in front of FIFA. The Claimant stated that in March 2007, he sustained an
injury during one of the Respondent’s practices. Thereupon, he was treated in country P
by order of the Respondent’s doctor until mid-June 2007.
7.
Moreover, the Claimant underlined that, at this time, i.e. as from 1 March 2007 until
mid-June 2007, he did not receive any salary. Thus, in mid-June 2007, the Claimant
decided to leave country P, in view of his financial difficulties, and also in view of the
fact that the Respondent did not extend his visa which was to expire on 30 June 2007.
After the Claimant had returned to country S, he sent a notice to the Respondent asking
it to comply with its financial obligations under the employment contract. Equally, the
Claimant addressed himself to the P Football Association, seeking its intervention in
order to make the Respondent pay the amounts allegedly due under the employment
contract.
8.
The Claimant claims the following amounts from the Respondent:
- 323,757.28 which corresponds to 16 x gross salary payable under the employment
contract as from 1 March 2007 until 30 June 2008,
- 80,000 which corresponds to the second fixed amount he was supposed to receive on
31 July 2007.
Thus in total: 403,757.28
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9.
In reply to the claim, the Respondent did not at first submit any particular comments
with regard to the substance of the Claimant’s claim but it provided a decision of the
“Department of Games” of the P Football Association dated 10 July 2007, which
referred to a claim having been lodged by the Respondent against the Claimant in front
of this instance on 20 June 2007, by means of which the Respondent requested that the
employment contract signed with the Claimant be terminated due to the fault of the
Claimant, who was allegedly absent from the Respondent since 16 April 2007, without
any valid reason.
10.
The decision from the “Department of Games” further states the following facts:
10.1. The Claimant and the Respondent concluded an employment contract valid as from
5 July 2006 until 30 June 2008, and that in March 2007, the Claimant underwent
medical examination, after which it was decided that the Claimant should undergo
surgery, and that, with the Respondent’s consent, this surgery should be carried out
abroad;
10.2. After the surgery was carried out, the Claimant was obliged to contact the Respondent
in order to establish further course of action, including the process of rehabilitation, but
the Claimant failed to comply with these obligations;
10.3. The club submitted letters summoning the Claimant to present himself twice, on 7 May
2007 and 30 May 2007, by sending him the summons to the address given by the
Claimant, but the Claimant did not receive such letters, as they were returned to the
Respondent with the mention “not delivered”;
10.4. The Claimant did not contact the Respondent at any time;
10.5. On 7 May 2007, the Respondent, in view of the above-mentioned facts, and in
accordance with its statutes, fined the Claimant in the amount of 20,000.
11.
In view of the above, the “Department of Games” of the P Football Association found
that the facts of the case as presented did not raise any justifiable doubt, and thus that
the claim of the Respondent had legal grounds. Furthermore, the said instance found
that, since 16 April 2007, the Claimant had seriously violated his duties under the
employment contract by failing to perform his football activity, i.e. failing to participate
in matches as well as in training. Thus, it was decided that the Respondent’s request for
the termination of the employment contract should be accepted.
12.
Finally, the said document mentions that this decision was delivered to the Claimant at
an address in country P.
13.
In view of the above, FIFA contacted the P Football Association and, with reference to
art. 22 b) of the Regulations on the Status and Transfer of Players, asked the said
Association to provide FIFA with a copy of the applicable regulations which govern the
functioning of the “Department of Games” of the P Football Association. In reply
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thereto, the P Football Association did not provide the said regulations and, instead,
issued a statement dated 16 December 2009, in which it stated that a recent
amendment to the statutes of the P Football Association had introduced some new
regulations, coming into force in November 2009, establishing the National Dispute
Resolution Chamber of the P Football Association (hereinafter: NDRC). Furthermore, the
P Football Association stated that according to art. 43 par. 2 of the Statutes of the P
Football Association, the NDRC will be the competent body to handle disputes between
clubs and players regarding employment and contractual stability and solidarity
contribution matters, and that this Chamber will fulfil the requirements of
independence, fair proceeding and equal representation, in accordance with the FIFA
National Dispute Resolution Chamber Standard Regulations.
14.
In his replica, the Claimant affirmed that he had no knowledge of an alleged on-going
procedure for the termination of his employment contract, which was apparently
lodged by the Respondent. In this respect, the Claimant underlined that he was
allegedly never summoned to participate in such procedure, and that since he did not
participate to the debates, the procedure should be considered as “illegal and biased”.
Furthermore, according to the Claimant, the Respondent was familiar with his address,
both in country P (his accommodation being provided by the Respondent) and in
country S. Therefore, he could easily have received any documentation pertaining to the
procedure, but he allegedly did not receive any such documentation.
15.
In continuation, the Claimant reiterated that following his injury, he was treated by the
team doctor, who instructed him to consult an authorised medical institution.
Furthermore, he underlined that he insisted that the Respondent should renew his
working visa, so that he could continue his treatment in country P, and that he allegedly
addressed this particular issue to the Respondent, but the Respondent did not provide
him with an answer.
16.
Moreover, the Claimant stated that the Respondent was always informed about the
process of his treatment, and that the Respondent’s allegation that he had undergone
surgery abroad was false. According to the Claimant, he never underwent surgery for
his injury.
17.
Finally, the Claimant stressed that, during the period from March to June 2007, the
Respondent paid him only one salary, and that he interpreted this payment as an
attempt to “artificially maintain the stability of the contract and to prevent him from
initiating the dispute”.
18.
The Claimant thus upheld his claim and concluded that FIFA should be declared
competent to deal with the present dispute, in accordance with art. 22 b) of the
Regulations on the Status and Transfer of Players.
19.
In its final position, the Respondent stated that it had always paid the Claimant the
amount of 20.234.83 of monthly salary until the Claimant left country P and,
subsequently, allegedly broke all relations with the Respondent. The latter also
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allegedly paid the Claimant the amount of 96,000 as 1st instalment due under the
employment contract on 31 July 2006, but the second instalment due on 31 July 2007
was not paid to the Claimant since the “Department of Games” of the P Football
Association had, by a decision dated 10 July 2007, declared the employment contract
signed between the parties as being dissolved due to the fault of the Claimant. In this
respect, the Respondent underlined that none of the parties had appealed against the
said decision and thus that it should be considered as final and binding.
20.
In an additional statement dated 31 January 2010, the Claimant informed FIFA that,
since he returned to country S, he had remained unemployed.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the 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 19 December 2007. Consequently,
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2005; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules,
edition 2008, in combination with art. 18 par. 2 and 3 of the Procedural Rules).
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the Procedural Rules
states that the Dispute Resolution Chamber shall examine its jurisdiction in the light
of articles 22 to 24 of the 2005 edition of the Regulations for the Status and
Transfer of Players. In accordance with art. 24 par. 1 in combination with art. 22 lit.
b) of the aforementioned Regulations the Dispute Resolution Chamber shall
adjudicate on employment-related disputes between a club and a player that have
an international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be the
competent body to decide on the present litigation involving a player and a club
regarding the alleged breach of an employment contract.
4.
However, the Chamber acknowledged that the Respondent submitted a decision
taken by the “Department of Games” of the P Football Association on 10 July 2007,
which rendered a decision on the claim lodged by the Respondent in order to
terminate the contract due to fault of the Claimant being allegedly absent since 16
April 2007 without any valid reason.
5.
Equally, the Chamber observed that the Claimant argued that he had not been
summoned to such proceedings allegedly initiated by the Respondent in front of the
“Department of Games” of the P Football Association and therefore that they should
be declared “illegal and biased”. The Claimant believes that FIFA should be considered
as the competent deciding body in accordance with art. 22 b) of the 2005 edition of the
Regulations for the Status and Transfer of Players.
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6.
Taking into account the above, the Chamber emphasised that in accordance with
art. 22 b) of the 2005 edition of the Regulations for the Status and Transfer of
Player it is competent to deal with a matter such as the one at hand unless an
independent arbitration tribunal, guaranteeing fair proceedings and respecting the
principle of equal representation of players and clubs, has been established at
national level within the framework of the Association and/or a collective
bargaining agreement. With regard to the standards to be imposed on an
independent arbitration tribunal guaranteeing fair proceedings, the Chamber
referred to FIFA Circular no. 1010 dated 20 December 2005.
7.
In this respect, the Chamber acknowledged that the Respondent was unable to
prove that, the “Department of Games” of the P Football Association, dealing with
the present matter had met the minimum procedural standards for independent
arbitration tribunals as laid down in art. 22 b) of the 2005 edition of the Regulations
for the Status and Transfer of Players and in FIFA Circular no. 1010.
8.
In this regard, in fact, the P Football Association did not provide the applicable
regulations of its “Department of Games”, as requested, but on the contrary,
informed FIFA that a National Dispute Resolution Chamber (hereinafter: NRDC) was
established as from November 2009 and that the said NDRC would have
competence over employment-related disputes. Equally, the P Football Association
held that the NDRC will fulfil the requirements of independence, fair proceeding
and equal representation, in accordance with the FIFA National Dispute Resolution
Chamber Standard Regulations.
9.
However, the Dispute Resolution Chamber was eager to emphasise that the dispute
between the parties, which was apparently dealt with by the “Department of
Games” on 10 December 2007, occurred prior to the setting up of the NDRC in
November 2009. Therefore, the Chamber could not take into account the foregoing
declarations of the P Football Association which were, in any case, not supported by
any documentary evidence.
10.
In addition, the Chamber underlined that the employment contract at the basis of the
present dispute does not contain any arbitration agreement in favour of national
arbitration. Neither does it make explicit reference to any collective agreement or
regulations that would provide for such an arbitration clause. Equally, the Chamber
invoked the fact that the Respondent could not prove that the Claimant had duly been
summoned to the proceedings in front of the “Department of Games” of the P Football
Association. The Claimant explicitly contested the competence of the national body. As
a result, and following a general legal principle of arbitration procedures, the Chamber
concluded that without valid arbitration agreement, the competence of a specific
arbitration body can per se not be established.
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11.
In view of the above, the Chamber considered that the Dispute Resolution Chamber is
competent, on the basis of art. 22 b) of the 2005 edition of the Regulations for the
Status and Transfer of Players, to consider the present matter as to the substance.
12.
Subsequently, 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
2009), and considering that the present claim was lodged on 19 December 2007, the
2005 edition of the said regulations (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
13.
The competence of the Dispute Resolution Chamber and the applicable regulations
having been established, and entering into the substance of the matter, the
Chamber started by acknowledging the above-mentioned facts as well as the
documentation contained in the file.
14.
In this regard, the Chamber duly noted that the parties signed an employment
contract on 5 July 2006 valid until 30 June 2008. Furthermore, the Chamber noted,
on the one hand, that the Claimant sustained an injury in March 2007 and that the
Claimant alleged having been treated in country P until mid-June 2007 without
receiving any salary from 1 March 2007 until mid-June 2007. Equally, the Chamber
acknowledged that the Claimant further alleged that he left in country P in midJune 2007 due to financial difficulties and in view of the fact that the Respondent
did, allegedly, not extend his visa which was to expire on 30 June 2007.
15.
Overall, the Chamber noted that the Claimant claimed the amount of 323,757.28
being the outstanding salary corresponding to the period from March 2007 until
June 2008 as well as 80,000 being the second fixed amount that he was supposed to
receive on 31 July 2007 in accordance with the employment contract concluded
between the parties.
16.
Additionally, the Chamber took note that it was not disputed by the parties that the
player suffered an injury, but, it was contested whether the Claimant underwent a
surgery for his injury or not.
17.
Furthermore, the Chamber took note that the Claimant acknowledged the receipt
of one salary paid in the period between March and June 2007, and that, at the
same time, he did not contest the allegations of the Respondent who held that the
Claimant had left country P in April 2007.
18.
In continuation, the Chamber took into account that, on the one hand, the
Respondent argued that the contract was terminated due to fault of the Claimant,
being allegedly absent as from 16 April 2007 and, on the other hand, the Claimant
was of the opinion that he had to leave country P in mid-June 2007 due to the fact
that the Respondent did not allegedly reply to his request of renewal of his visa.
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19.
Subsequently, the Chamber deemed it fundamental to underline that in view of the
Claimant’s and the Respondent’s diverging positions, it should establish when the
contract is to be considered as terminated.
20.
In this respect, considering the principle of burden of proof (cf. art. 12 par. 3 of the
Procedural Rules), according to which a party claiming a right on the basis of an
alleged fact had to prove the existence of such fact, the Chamber came to the
conclusion that it could not be satisfied with the assertion of the Claimant as
regards the departure from country P and in June 2007, since it was not provided
with the respective documentation. Equally, the Chamber reiterated that the
Claimant did not contest the allegations of the Respondent with regard to his
departure in April 2007.
21.
Having thoroughly analysed the documents on file as well as the circumstances
surrounding the present matter, the members of the Chamber came to the
conclusion that the contract was terminated within the month of April 2007.
22.
At this stage, the Chamber recalled the contents of the Claimant’s claim for
compensation for breach of contract. The Claimant claims the total of 403,757.28 as
compensation, corresponding to the residual value of the employment contract. In this
regard, the Chamber established that in order to consider such claim, it must establish
who is to be held responsible of the early termination of the employment contract.
23.
In this regard, the members of the Chamber took note of the Claimant’s allegation that
he had not received any salary for April, May and June 2007. However, as emphasised
previously (cf. points II. 17 and 20), the Claimant had not contested the fact that he had
left country P in April 2007. Furthermore, the Chamber pointed out that the Claimant
had also recognised having received one month of salary between the months of March
and June 2007, i.e., supposedly, the salary of March 2007.
24.
With the foregoing considerations in mind, the Chamber concluded that since the
Respondent appeared to have fulfilled all his financial obligations towards the
Claimant until March 2007 and that the Claimant left in country P in April 2007, it
could not impute any breach of the employment contract to the Respondent.
25.
Consequently, the Chamber affirmed that the Claimant’s claim for compensation for
breach of contract could not be accepted.
26.
Notwithstanding the above, the Chamber stated that since the termination of the
employment contract occurred within the month of April 2007, the salary of that
month is due. In this regard, the Chamber noted that the Respondent had not
provided any evidence that this particular salary was paid to the Claimant.
27.
Therefore, the Chamber stated that the Respondent had been in default toward the
Claimant of one monthly salary, i.e. the salary of April 2007, and that the
Respondent must pay to the Claimant the amount of 14,200.
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28.
In view of all of the above, the Chamber decided that the claim of the Claimant is
partially accepted and, in this regard, reiterated that the Respondent must pay the
outstanding amount of 14,200 to the Claimant. Furthermore, the Chamber
concluded its deliberations by deciding that any further claims of the Claimant are
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, V, is partially accepted.
2.
The Respondent, FC K, has to pay to the Claimant the net amount of 14,200 within
30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, interest
at the rate of 5% per year will apply as of expiry of the stipulated time limit and the
present matter shall be submitted, upon request, to the FIFA’s Disciplinary
Committee for consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant, V, is directed to inform the Respondent, FC K, immediately and
directly of the bank account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
*****
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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:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
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