Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 11 March 2005,
in the following composition:
Mr Slim Aloulou (Tunisia), Chairman
Mr Jean-Marie Philips (Belgium), Member
Mr Paulo Rogerio Amoretty Souza (Brazil), Member
Mr Gerardo Movilla (Spain), Member
Mr Philippe Piat (France), Member
on the claim presented by
X,
as
Claimant
against
Y,
as
Respondent
regarding a contractual dispute between the player X and the Club Y,
Facts of the case:
On 10 January 2003 the player X and the club Y conclude an employment contract
valid until 30 June 2005, whereby the club undertakes the obligation to pay to the
player the following amounts:
·
·
·
·
·
·
·
·
·
·
·
·
USD 100,000 as a signing-on fee
USD 40,000 by 1 April 2003
USD 60,000 by 1 August 2003
USD 30,000 by 1 November 2003
USD 30,000 by 1 April 2004
USD 60,000 by 1 August 2004
USD 30,000 by 1 November 2004
USD 30,000 by 1 April 2005
USD 5,000 for each game the player plays in the starting eleven
USD 2,500 for each game the player is summoned without being fielded
USD 5,000 for the first three games the player cannot play due to injury
USD 2,500 for the following three games the player cannot play due to injury
Clause no. 6 of the employment contract reads that any delay in the payment of
the salaries longer than 45 days would entitle the player to terminate the
employment contract.
As he did not receive the amount of USD 60,000 due by 1 August 2003 and the
amount of USD 30,000 due by 1 November 2003 plus various appearance bonuses,
on
28 January 2004 Mr. X informs the club Y of his decision to terminate the
employment contract, in compliance with the above-mentioned clause no. 6.
On 11 February 2004 FIFA is informed of the termination of the contract, as well as of
the player’s financial claim amounting to USD 170,000, which the player substantiates
as follows:
·
·
·
·
·
USD 60,000 due by 1 August 2003
USD 30,000 due by 1 November 2003
USD 50,000 corresponding to ten games played in the starting eleven
USD 7,500, corresponding to three games in which the player was summoned
without being fielded
USD 22,500 corresponding to six games the player could not play due to injury
The copy of the employment contract provided by the player and the one provided
by Y do not coincide. The latter is the local language, with a short summary in
English, whereas only the earlier bears the signature of Mr. X as well as that of the
president of the club.
2
In particular, the version provided by the club (referred to as the official standard
contract) bears the date of 15 January 2003 and envisages different financial
conditions and payment schedule, the various instalments being due every 15th day
of the month. Moreover neither a signing-on fee nor appearance bonuses are
foreseen.
Most crucially, the document remitted by Y does not report the above-said
termination clause no. 6 but contains a provision whereby, in a rather
incomprehensible English, the existence of any previous or future contract between
the parties is firmly denied.
In addition to that, the club, maintains that it complied with all the payments due to
the player. In order to corroborate the allegation Y remitted 18 payment receipts
signed by the Mr. X for a total amount of USD 243,000 circa.
Yet, this documentation is of rather difficult interpretation, since the amounts are
expressed in local currency, with no mention of any date or justification for the
payments.
The club asks the Dispute Resolution Chamber to reject the player’s claim, on the
basis of the only valid document, i.e. the official standard contract drawn in local
language and signed by the parties on 15 January 2003. However, Y maintains that,
should the existence of any other document be proved, the relevant dispute should
be considered and decided by the local civil court.
The player, Mr. X, states that the only valid contract is the one drawn in English and
signed by both parties on 10 January 2003. Mr. X is also eager to recall that in the
past he had already played several seasons for Y and that the relevant employment
contracts had never been drawn in the local language and no question had ever
risen as to whether English had to be considered the only official language to rule
the contractual relationship.
In view of the above, the player, Mr. X, asks the Dispute Resolution Chamber to
condemn Y to pay to him the amount of USD 170,000 (plus 6% default interest) in
compliance with the employment agreement signed by both parties on 10 January
2003.
3
Considerations of the Dispute Resolution Chamber:
After a careful study of the facts and allegations outlined above, the Dispute
Resolution Chamber commenced its deliberations by referring to the art. 42 par. 1 lit.
(b) (i) of the FIFA Regulations for the Status and Transfer of Players (hereinafter, the
Regulations), according to which, it falls within the purview of the Dispute Resolution
Chamber to determine whether one of the parties has committed a unilateral
breach of contract without just cause.
In this sense, if the employment contract was breached by a party, the Dispute
Resolution Chamber is responsible to verify whether this party is accountable for
outstanding payments and compensation.
Furthermore, the Dispute Resolution Chamber will establish the amount of
compensation to be paid and decide whether sports sanctions must be imposed (cf.
art. 42 par. 1 (b) (ii) and (iii) in connection with art. 22 and 23 of the Regulations).
In view of the above, the Chamber concluded that it has jurisdiction to pass a
decision on this matter.
Firstly, the Chamber focused its analysis on the documentation supplied by the
parties involved and took note of the discrepancy between the copy of the
employment contract provided by the player and the one provided by Y.
In particular, the Chamber acknowledged the fact that the copy of the
employment agreement provided by the club is in the local language, with a short
summary in English and does not bear the player’s signature. Only the copy provided
by the player is in the English language and bears the signature of Mr. X as well as
that of the president of the club.
The Chamber emphasised that the above situation itself would be sufficient to
conclude in favour of the player’s position.
Subsequently, the Chamber noticed that Mr. X had actually received the amount of
USD 100,000 due as a signing-on fee, as well as the amount of USD 40,000 due by
1 April 2003, both financial conditions contained in the contract drawn in the English
language and undersigned by both the player and the club.
Therefore, the Chamber established that the club had actually begun to give
execution to the financial conditions provided for in the employment contract the
player provided FIFA with.
4
In light of this circumstance, and even regardless of any preliminary evaluation as to
which of the two versions of the contracts remitted should be regarded as valid, it
appears clear that the parties involved in this dispute agreed to adopt, per facta
concludentia, the contractual conditions envisaged in the version of the
employment contract provided by the player.
On account of the above, it is undisputed that the club is held to respect all the
obligations undertaken by means of the employment contract concluded on 10
January 2003 with the player.
Clearly the club, with its sole behaviour, incited the decision the player took on 2
8 January 2004 to terminate the employment contract for just cause, in full
compliance with article no. 6 of the employment contract, which reads that any
delay in the payment of the salaries longer than 45 days would entitle the player to
terminate the employment contract.
On account of the above, the Dispute Resolution Chamber deemed that the player
is entitled receive the amount due by Y until the termination of the contract, i.e.
USD 170,000, which corresponds to the following:
·
·
·
·
·
USD 60,000 due by 1 August 2003
USD 30,000 due by 1 November 2003
USD 50,000 corresponding to ten games played in the starting eleven
USD 7,500, corresponding to three games in which the player was summoned
without being fielded
USD 22,500 corresponding to six games the player could not play due to injury
Furthermore, in light of the fact that this payment has been due since a long time,
the Dispute Resolution Chamber established that a default interest payment of 5%
p.a. as from the day on which the payments were due must be applied as follows:
·
·
·
As from 1 August 2003, 5% on USD 60,000
As from 1 November 2003, 5% on USD 90,000
As from 28 January 2004, 5% on the total amount due, i.e. USD 170,000
5
Decision of the Dispute Resolution Chamber
1. The claim of Mr. X is accepted.
2. The club has to pay the amount of USD 170,000 to Mr. X
3. On the aforementioned amount, a default interest payment of 5% p.a. is applied
as follows:
·
·
·
As from 1 August 2003, 5% on USD 60,000
As from 1 November 2003, 5% on USD 90,000
As from 28 January 2004, 5% on USD 170,000
4. The amount due to X has to be paid by the club within 30 days as from the date
of notification of this decision.
5. If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
6. The claimant is directed to inform the respondent immediately of the 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
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 10 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives
issued by the CAS, copy of which we enclose hereto. Within another 10 days
following the expiry of the time limit for the filing of the statement of appeal, the
appellant shall file with the CAS a brief stating the facts and legal arguments
giving rise to the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Avenue de Beaumont 2
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
6
Enclosed: CAS directives
7