Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2008,
in the following composition:
ALOULOU Slim (Tunisia), Chairman
MC GUIRE Mick (England), member
MARTORELLI Rinaldo (Brazil), member
GALLAVOTTI Mario (Italy), member
SALEH AL HOUSANI Essa M. (United Arab Emirates), member
on the claim presented by the player
AAA, Xxx,
as Claimant
against the club
BBB, Xxx,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 25 July 2006, the Xxx player, AAA (hereinafter: the Claimant), and the Xxx
club, BBB (hereinafter: the Respondent), signed an employment contract, valid
from the date of the signature until 15 July 2008. In this contract it was
stipulated that the financial terms for the second year of the contract should be
subject to the agreement of the contractual parties.
2.
According to relevant employment contract the monthly salary of the Claimant
amounts to USD 4,700 if he is included in more than 70% of the protocols of the
Respondent ’s official matches. Should he be included in less that 70% of the
protocols of the Respondent’s official matches the monthly salary amounts to
USD 3,700. Furthermore, the Claimant is entitled to receive lump-sum payments
in the amounts of USD 5,000, payable by 25 July 2006, and USD 15,000, payable
by 15 August 2006. Moreover, it was stipulated that the Claimant shall receive
the amount of USD 20,000, payable by 31 December 2006, if, after the first
round of matches, he is included in more than 70% of the protocols of the
Respondent’s official matches. Should the Claimant be included in less that 70%
of the protocols of the Respondent’s official matches he is to be paid the
percentage of the amount of USD 20,000 corresponding to the number of match
protocols he was included in. Finally, the Respondent contractually undertakes to
pay the Claimant USD 200 per month for renting an apartment.
3.
On 9 March 2007, the Claimant lodged a claim at FIFA against the Respondent
requesting allegedly outstanding payments in the total amount of USD 28,100. In
particular, the Claimant claimed:
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4.
the allegedly outstanding lump-sum payment, due by 15 August
2006, in the amount of USD 15,000,
an allegedly outstanding share of the lump-sum payment, due by
31 December 2006, in the amount of USD 3,500,
allegedly outstanding salaries for the months of November and
December 2006 in the amount of USD 8,000,
an allegedly outstanding share of the salary for the month of
August 2006 in the amount of USD 1,200 and
allegedly outstanding costs for rent for the months of November
and December 2006 in the amount of USD 400.
In this regard, the Claimant argued that the relevant contract should be
considered as unilaterally terminated by him with just cause as per 31 December
2006. In this respect, the Claimant emphasised that the Respondent had banned
him from the regular training with the team as from 27 September until 29
November 2006 and had failed to make the claimed payments to him.
Player AAA, Xxx / Club BBB, Xxx
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5.
In particular, the Claimant stated that, on 20 November 2006, he had explicitly
informed the Respondent that should it not fulfil its contractual obligations
towards him until 25 November 2006 he would take legal action in order to
terminate the contract and have his rights preserved.
6.
In view of the above, and after having made a proposal to the club to terminate
the contract per 1 January 2007, which remained unanswered, the player left the
Respondent and, on 1 January 2007, he signed a new contract with the Xxx club,
CCC.
7.
The Respondent omitted to express itself to the claim lodged by the Claimant,
despite having been invited to do so by FIFA on 22 March, 3 April and 21 May
2007.
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 9 March 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. art. 18 par. 2 and 3 of the Procedural Rules).
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 Xxx player and an Xxx 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 9 March
2007, the previous version of the regulations (edition 2005; 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 on 25 July 2006 the
Claimant and the Respondent signed an employment contract, valid from the
date of the signature until 15 July 2008.
Player AAA, Xxx / Club BBB, Xxx
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5.
The Chamber also noted that according to the relevant employment contract at
the basis of the present dispute, the Claimant, during the first year of the
contract term, is, inter alia, entitled to receive a monthly salary between USD
3,700 and USD 4,700, a lump-sum of USD 15,000 payable by 15 August 2006, a
lump-sum up to USD 20,000 payable by 31 December 2006 and USD 200 per
month for renting an apartment.
6.
In continuation, the Chamber acknowledged that the Claimant, on the basis of
the said employment contract, requests the payment of USD 18,500 for allegedly
outstanding lump-sums, USD 9,200 for allegedly outstanding salaries and USD
400 for renting an apartment, overall the amount of USD 28’100.
7.
In this regard, the Chamber stated that, in principle, the contractually stipulated
salary clause is not acceptable, since therein the Claimant’s salary is not clearly
determined but subject to the appearance of his name in the protocols of the
Respondent’s official matches.
8.
However, the Chamber observed that the Respondent never took position in the
dispute, despite having been asked to do so by FIFA on several occasions and
underlined that in this way the Respondent renounced to its right to defence
and, thus, accepted the allegations of the Claimant.
9.
As a consequence, the Chamber concluded that the Claimant has not received
the claimed salaries and lump-sums and, therefore, the amount of USD 27,700
remains outstanding.
10.
Finally, the Claimant pointed out that the Claimant was not able to substantiate
his claim for allegedly outstanding rent payments (USD 400). In particular, the
Chamber asserted that the Claimant failed to provide FIFA with adequate
evidence related to the costs actually incurred for renting an apartment in
November and December 2006. Therefore, the Chamber deemed that the
Claimant’s demand concerning rent costs cannot be taken into consideration.
11.
In view of all the above, the Chamber decided that the Respondent must pay the
amount of USD 27,700 to the Claimant and, consequently, the Claimant’s claim is
partially accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, AAA, is partially accepted.
2.
The Respondent, BBB, has to pay the amount of USD 27,700 to the Claimant,
AAA, within 30 days as from the date of notification of this decision.
Player AAA, Xxx / Club BBB, Xxx
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3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the
aforementioned 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.
4.
Any further claim of the Claimant, AAA, is rejected.
5.
The Claimant, AAA, is instructed to inform the Respondent, BBB, 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. 61 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
Player AAA, Xxx / Club BBB, Xxx
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