Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 11 March 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), Member
Philippe Piat (France), Member
Jean-Marie Philips (Belgium), Member
Paulo Rogerio Amoretty Souza (Brazil), Member
on the claim presented by
Player R, Moldova
as Claimant
against
F.C. X , Ukraine
as Respondent
regarding a contractual dispute between the parties involved
./…
Facts of the case:
- The parties signed an employment contract on 1 March 2002 for the period from 1
March 2002 until 31 December 2006, under the following basic financial terms:
- art. 4.1:”…an individual monthly payment which consists of an official salary in
accordance with the staff list, paid in UAH (Ukraine Hryvnia), in the amount
equivalent to 150 CMU (conventional monetary units).”
- art. 4.2: additional payments, raises and salary supplements.
- clause 1.1 of the Appendix, under the title Basic Payments: “The parties come to
the agreement that the player receives monthly additional payments in the form
of premium ….at the rate of 850 - 1850 CMU.”
- clause 1.2 of the Appendix, under the title Basic Payments: “The parties come to
agreement that the player has the right to receive a personal annual premium in
the sum of 10’000 USD, in addition to the payment stipulated in point 1.1. After the
contract is signed, the player obtains an advance sum of 15’000 USD…”
- clause 1.5 of the Appendix, under the title Basic Payments: “If the player receives
a professional injury, he gets additional payment in full range, in terms confirmed
by team doctor.”
- The Ukrainian Trade Union, on behalf of the player, filed a claim with FIFA in March
2004, exposing that the players of the club were not insured, despite the fact that
art. 3.3.10 of the contract obliges the club to assure social and life insurance of the
football players: “For the validity period of the contract the player shall be
granted all types of social insurance envisaged by the Ukrainian Legislature, as
well as the obligatory health and life insurance, at the expense of the club. The
latter shall render the obligatory social and health insurance to the player in
compliance with the legislation in force.”
- Moreover, according to art. 3.3.8 the club “Undertakes to organize medical care
for the player, including diagnostics, treatment, medicine and vitamins supply,
and finance treatment and operation, if necessary, as well as recovery under
supervision of professional doctors.”
- The player alleges never having received a copy of his individual insurance policy.
- Furthermore, he complains that in his contract the wages are indicated in the sum
of “150 conventional monetary units”, without specifying a concrete currency, by
means of which the player claims that the club has intentionally profited from his
ignorance of the Ukrainian language, so that the order and conditions of
payment would not be known to him. He believes that the confusion created
regarding the amounts that are properly due to him has led to the non-payment
of all that is rightfully due to him.
- Mr. R has been on loan to Football Club “Nikolaev” Ukraine, from 01.03.2004 until
30.06.2004, and afterwards to “Zakarpatje” Ushgorod, Ukraine.
Player Marcel Reshitka, Moldova / F.C. Metallurg Zaporizhzhya, Ukraine
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- However, he has been unemployed since the end of November 2004 and is still
without employment.
- Mr. R asks the Dispute Resolution Chamber for the confirmation of the termination
of the contract by fault of the club for non-payment of his wages and due to
negligence to insure the player in accordance with legal and contractual
obligations.
- He also claims the following amounts from the club:
USD 10’000 annual bonus for 2003 as per the annexe of the contract.
USD 12’600 for 7 months of salary at USD 1’800 p/month from June-December
2003.
Total amount claimed: USD 22’600
- F.C. X categorically denies all allegations put forward by the player, stressing that
they have already been analysed and decided upon at the club Council
meeting on 22.02.2003, at the Professional Football League of Ukraine Bureau
Session on 11.11.2003, and at the meeting of the Control and Disciplinary
Committee of the Ukrainian Football Federation, all of which apparently
confirmed in their decisions, the groundlessness of the player’s claims. Copies of
the minutes of these meetings and their decisions have been provided.
- Moreover, the club has provided spread sheets signed by all the players of the
club, including R, confirming that they have each been insured for an amount of
950’000 (currency not specified) by an insurance company called “Lemma”,
which also signed and stamped this document.
- According to the Ukrainian Trade Union, however, this document is a fraud since
art. 23 of the Ukrainian insurance law stipulates that it is only possible to be insured
on an individual basis, not collectively, and each person is therefore required to
obtain an individual insurance policy.
- F.C. X has nevertheless not been able to provide the FIFA Administration with
copies of an individual insurance policy, despite repeated requests.
- F.C. X has presented documents pertaining to the payment of the player’s salaries
throughout the period from January 2003 until September 2003. The club has also
presented documents entitled “Expense Cash Orders” for payments of salaries
from October 2003 until February 2004, as well as a premium in the amount of USD
5’000, but none of these Expense Cash Orders have been signed by the player,
nor have they been certified by any other authority than the accountant of the
club.
Player Marcel Reshitka, Moldova / F.C. Metallurg Zaporizhzhya, Ukraine
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Considerations of the Dispute Resolution Chamber
The Dispute Resolution Chamber of the FIFA Players’ Status Committee shall review
disputes coming under its jurisdiction pursuant to Art. 42 of the FIFA Regulations for
the Status and Transfer of Players (hereafter: FIFA Regulations) at the request of one
of the parties to the dispute.
According to Art. 42 of the FIFA Regulations for the Status and Transfer of Players, the
triggering elements of the dispute (i.e. whether a contract was breached, with or
without just cause, or sporting just cause), will be decided by the Dispute Resolution
Chamber of the FIFA Players’ Status Committee.
Consequently, the Dispute Resolution Chamber is the competent body to decide on
the present litigation concerning the alleged breach of contract between the
claimant and the respondent.
Subsequently, and entering into the substance of the matter, the Chamber noted
that two of the principle complaints of the claimant against F.C. X relate to the issue
of remuneration. In the first place, the ambiguity in the contract regarding the terms
of payment.
To assess this point, the members of the Dispute Resolution Chamber proceeded to
analyse the employment contract at its disposal, including the annexe thereto, in
order to determine the ease of understanding of the provisions regarding the
player’s monthly remuneration. In particular they focused their attention on Chapter
4 of the contract, entitled ‘Remuneration of Labor, Rest Period, Social Welfare’.
It was observed that art. 4.1 stipulates that the official salary of the player will be paid
in UAH (Ukraine Hryvnia) currency, and that the individual monthly payment is equal
to 150 “conventional monetary units”, without providing further indications or
numbers that could conclusively reveal what this monthly salary concretely amounts
to. It was furthermore established that no additional explanations were included in
the contract or its annexe to officially define the term “conventional monetary units”,
nor were there any indications as to how much 150 conventional monetary units are
worth in UAH, or whether this amount is meant to be gross or net.
The club has not essentially defended the aforementioned ambiguity in the
employment contract, nor has it offered any helpful clarifications in this regard.
In view of the foregoing, the Dispute Resolution Chamber was unable to determine
the official monthly remuneration of the player from the contents of the contract or
its annexe. It follows that the arguments presented by the player in this regard were
considered admissible, particularly in view of the missing contestation from the club’s
side.
Player Marcel Reshitka, Moldova / F.C. Metallurg Zaporizhzhya, Ukraine
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As a result, the Chamber established that in accordance with the player’s claim, the
monthly salary due to him corresponds to USD 1’800, an amount which does not
appear to be disproportional.
In continuance, the members focused on the complaint regarding the non-payment
of the player’s salaries and the USD 10’000 annual bonus for 2003.
To investigate this issue, it was necessary to closely analyse the various documents
submitted by F.C. X as evidence of the payments effectuated in favour of the player,
including documents entitled “Expense Cash Orders” for payments of salaries from
October 2003 until February 2004, as well as a single payment of USD 5’000.
In this sense, it was noted that the expense cash orders submitted were signed and
certified only by members of the club, namely the club’s chief and chief
accountant, but not by the recipient himself, nor by any other third objective party
such as a bank or similar institution. The documents in question could therefore not
be accepted by the Dispute Resolution Chamber as valid and irrefutable proof of
having paid the player the amounts claimed.
As to the club’s defence relevant to the various administrative and arbitration
decisions apparently already taken in connection to the player’s financial claims by
bodies such as the Club Council, the Bureau of the Professional Football League, and
the Control and Disciplinary Committee of the Ukrainian Football Federation, the
Dispute Resolution Chamber underlined the following.
It has not been ascertained that each of these deciding instances is an official
arbitration tribunal composed of representatives chosen in equal numbers by players
and by clubs with an independent chairman, both crucial prerequisites outlined in
art. 42.1 (b)(i) of the FIFA Regulations for the Status and Transfer of Players. The
contents of these decisions could therefore not be considered as decisive factors in
the Dispute Resolution Chamber’s deliberations on the case.
Finally, the members turned their attention to the important issue of the player’s
insurance. As evidenced by the various articles regarding this subject matter in the
employment contract, the club was undoubtedly held to insure the player and to
provide him with all necessary medical treatment and expenses incurred in
connection to the eventuality of a professional injury.
Although the club has provided FIFA with a spreadsheet on which all its players have
signed in apparent recognition of their insurance through a company called
‘Lemma’, it remains doubtful why the individual insurance policy of the player in
question could not be produced, all the more when such individual insurance
papers were directly being requested in the claim of the player.
Player Marcel Reshitka, Moldova / F.C. Metallurg Zaporizhzhya, Ukraine
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It was therefore in the interest of the respondent to make all the necessary
arrangements to ensure that the claimant’s individual insurance policy documents
were made available to the FIFA Administration during the course of the
investigation proceedings.
Hence, since the principle document being requested by both the player and the
FIFA Administration in particular, has not been produced by the respondent, the
Dispute Resolution Chamber deemed that the allegations put forward by the
claimant with respect to the insurance are credible and acceptable.
Consequently, having thus analysed each of the various aspects of the player’s
claim, as well as all of the club’s defence statements in response, the Dispute
Resolution Chamber concluded its deliberations by announcing that the player’s
claims were admissible on all counts.
In conclusion, the respondent shall be held responsible for the breach of the
employment contract between the parties and shall indemnify the player in
accordance with his present claim.
Finally, and on account of the above, the Dispute Resolution Chamber decided that
the contractual relation between the parties is terminated with immediate effect
and, as a consequence, the player is authorized to sign with the club of his choice.
In this respect the Dispute Resolution Chamber underlined that upon receipt of a
possible request for the player’s international registration transfer certificate from the
association of a prospective new club, the Football Federation of Ukraine is asked to
comply with this request, so as not to hinder the player’s career.
Decision of the Dispute Resolution Chamber
1. The claim lodged by the Claimant is accepted.
2. The Respondent shall pay the total amount of USD 22’600 to the Claimant, within
30 days following the date of the communication of the present decision.
3. In the event that the debts of the Respondent are not paid within the stated
deadline, an interest rate of 5% per year will apply.
4. The employment contract between the parties is terminated and the player
authorized to sign with the club of his choice, with immediate effect.
Player Marcel Reshitka, Moldova / F.C. Metallurg Zaporizhzhya, Ukraine
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5. If the relevant sum is not paid within the aforementioned deadline the present
matter shall be submitted to the FIFA Disciplinary Committee so that the necessary
disciplinary sanctions may be imposed.
6. The Claimant is directed to inform the Respondent immediately of the bank
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
7. According to art. 60 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 10 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:
Avenue de Beaumont 2
CH-1012 Lausanne
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:
Urs Linsi
General Secretary
Encl.: CAS procedural directives
Player Marcel Reshitka, Moldova / F.C. Metallurg Zaporizhzhya, Ukraine
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