Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2008,
in the following composition:
Slim Aloulou (Tunisia), President
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Rinaldo Martorelli (Brazil), member
Essa M. Saleh Al-Housani (U.A.E.), member
on the claim presented by the player
X, xxxxx
represented by Mr xxxxx, players’ agent
as Claimant
against the club
Y, xxxxx
as Respondent
on the basis of an employment contract
concluded between the parties.
I.
Facts of the case
1.
On 20 December 2005, the player, X (hereafter: the player) and the club, Y,
(hereafter: the club) signed an employment contract valid as from 1 January 2006
until 30 June 2007.
2.
According to the said employment contract the player is entitled to receive for the
2005/2006 season (January – June) the amount of EUR 50,000 and for the
2006/2007 season the amount of EUR 110,000.
3.
The player claims the allegedly outstanding amount of EUR 49,721 plus 5%
interest.
4.
The club rejects the player’s claim since the player never resumed duties after
being absent by the end of May 2006 and because he decided to prematurely
terminate the relationship and continue his career in xxxxxxx.
5.
On 18 September 2006, the player contacted FIFA claiming that by the end of the
season 2005/2006 the club owed him the amount of EUR 32,000. Therefore, and
since the club has apparently descended to the second division, the club offered
him to mutually terminate the contract so as to enable him to continue with his
career. However, on 28 August 2006, the Football Federation of xxxxx agreed to
issue the player’s International Transfer Certificate (ITC), requested by the Football
Association of xxxxx on 2 August 2006 provided that the player would waive the
outstanding amounts (the relevant document to this regard reads: “…provided
said player despatches an assurance that he has no fiscal issues pending…” ). The
ITC was issued on 28 August 2006.
6.
In view of the above, the player requests the allegedly outstanding salaries until
the end season 2005/2006 amounting to EUR 32,000, the amount of EUR 9,166
equivalent to the July 2006 salary as well as the amount of EUR 8,544 equivalent
to the August 2006 salary (28 days) as compensation.
7.
On 30 March 2007, the club informed FIFA that the player left the club on 22 May
2006 in order to represent his national team and should had returned by 28 May
2006. However, the player never returned but apparently contacted the club (by
phone) in order to terminate the employment contract, since he was not
interested in playing in the second division. The club affirmed that the parties
agreed on a premature termination of the employment contract provided that the
player would not receive any remuneration as from 28 May 2006. In view of the
aforementioned, the club requested the player to confirm that he had received all
remuneration, by the time the Football Association of xxxxx received his ITC. In
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this context, the club also mentioned that it did not request any compensation
from the new club, although, been entitled to do so bearing in mind that the
employment contract with the player would be valid for one more year.
8.
Furthermore, the club provided payment receipts in the amount of EUR 41,000 so
as to corroborate that it fully complied with all financial obligations towards the
player until the date when the player decided not to return to the club and thus,
to prematurely terminate the employment contract.
9.
On 14 May 2007, the player affirmed that the signature contained in three receipts
provided by the club is not his signature. Moreover, the player affirmed that he
offered his services to the club, but the latter was no longer interested in his
services.
10.
On 11 June 2007, the club informed FIFA that if the player is of the opinion that
the signature is forged, he should refer the matter to the competent criminal
courts. Finally, the club again emphasised that the player decided not to resume
duties after having represented his national team by the end of May 2006 as well
as that it was his initiative to prematurely terminate the employment contract. The
club again emphasised that in principle it would be entitled to receive
compensation from the player, but it desisted so as to not hinder the player and
thus the ITC was issued.
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 18 September 2006. Consequently, the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (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 xxxx player and a xxxx 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
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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 18
September 2006, 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.
5.
In this respect, the Dispute Resolution Chamber focussed on the questions whether
the player was entitled to receive, as requested, any possibly outstanding
remuneration and compensation for a potential breach of contract from the club
and, if so, at which amount.
6.
In continuation, the members of the Chamber started by acknowledging that on
20 December 2005 the player and the club signed an employment contract valid as
from 1 January 2006 until 30 June 2007 according to which the player is entitled to
receive for the 2005/2006 season (January – June) the amount of EUR 50,000 and
for the 2006/2007 season the amount of EUR 110,000.
7.
Moreover, the Chamber considered that it is not contested that the player
rendered his services to the club until May 2006 and thereafter the player
remained in xxxx and continued his career with another club.
8.
Subsequently, the Chamber duly noted that the player requests the allegedly
outstanding salaries until the end season 2005/2006 amounting to EUR 32,000, the
amount of EUR 9,166 equivalent to the July 2006 salary and the amount of EUR
8,544 equivalent to the August 2006 salary (28 days) as compensation as well as
5% interest.
9.
Turning its attention to the club, the Chamber took due note, that the club rejects
the player’s claim emphasizing that the player left the club on 22 May 2006 in
order to represent his national team and should had returned by 28 May 2006.
However, the player never returned and the parties agreed on a premature
termination of the employment contract provided that the player would not
receive any remuneration as from 28 May 2006. Moreover, the club provided
payment receipts in the amount of EUR 41,000 so as to corroborate that it fully
complied with all financial obligations towards the player until the date when the
player decided to prematurely terminate the contract.
10.
The Chamber started its deliberations by emphasising that it is undisputed that the
player rendered his services to the club until May 2006, when the parties mutually
agreed on the premature termination of the employment contract, so as to enable
the player to continue his career in xxxx.
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11.
In this respect, the Chamber referred to the legal principle of the burden of proof,
which is a basic legal principle in every legal system, a party deriving a right from
an asserted fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of
the Procedural Rules). In particular, the Chamber emphasized that the player
neither provided any documentary evidence to corroborate that the employment
relationship was not terminated by mutual agreement nor that he offered his
services to the club after he had left to xxxxx on 22 May 2006, as affirmed by him.
12.
In continuation, the Chamber underlined that, as a general principle, a club is
obliged to remunerate a player, as agreed between the parties, for the period of
time during which he has rendered his services to the club, unless the club can
justify the non-payment of the agreed remuneration.
13.
In this respect, the Chamber took due note that according to the employment
contract signed between the parties the player was entitled to receive for the
2005/2006 season (January – June) the amount of EUR 50,000 and that the club
provided payment receipts in the amount of EUR 41,000 so as to corroborate that
it fully complied with all financial obligations towards the player.
14.
Yet, the Chamber acknowledged that the player affirmed that the signature
contained in three receipts provided by the club is not his signature.
15.
In this respect, the members of the Chamber emphasized that, as general rule, it is
not the competent body to decide upon matters of criminal law, such as the
allegedly falsified signature or document, but that such affairs fall into the
jurisdiction of the competent national criminal authority.
16.
As a result, and based on the documentation currently at its disposal, the Chamber
unanimously came to the conclusion that, unless proven otherwise, the club has
fulfilled its obligations towards the player with regard to the remuneration due to
him for the time during which the player rendered his services to the club.
17.
Finally, and for the sake of good order the Chamber also emphasized that the club
did not refuse to issue the relevant ITC for the player and thus the Football
Federation xxxx issued the relevant ITC, so as to enable the player to continue his
career in xxxx.
18.
In view of all of the above and based on the documents and statements of both
parties remitted, the members of the Chamber decided that the club has fulfilled
its obligations towards the player and therefore the club has not breached the
contract as affirmed by the player.
19.
As a result, the Chamber decided to reject the claim of the player.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is rejected.
2.
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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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