Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 June 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Zola Majavu (South Africa), Member
Caio César Vieira Rocha (Brazil), Member
Mick McGuire (England), Member
Michele Colucci (Italy), Member
on the claim presented by the player
R,
represented by Mr. D
as “Claimant”
against the club
P,
as “Respondent”
regarding a contractual dispute between the parties involved.
./…
I.
Facts of the case
1.
The player R (hereinafter: the player) and the club FC P (hereinafter: the club)
signed an employment contract, without specification of date of signature, for 2
years, valid as from 1 July 2005 until 1 July 2007.
2.
The point J. of the aforementioned employment contract establishes a monthly
minimum salary of USD 2,500. In addition the point L. e) of the cited contract
establishes that as from 1 January 2006 until 31 December 2006 the monthly salary
would be USD 3,000 and as from 1 January 2007 until 1 July 2007 the monthly
salary would be USD 3,500.
3.
Moreover, the club compromised to pay to the player accommodation, food
(maximum USD 300 per month), bonus in accordance with the club internal
regulations (without specification of amounts) and one flight return ticket per
year.
4.
On 11 May 2006, the player requested the assistance of FIFA in order to declare
the relevant employment contract breached by the club alleging negligence and
lack of responsibility by the club’s side for obtaining the mandatory work permit
during the protected period and in the course of the season. The player stated
that the club did not provide him neither with the legal conditions to live in A nor
with salaries as from January 2006, performance bonuses, accommodation
expenses and flight tickets.
5.
Therefore the player claimed the following items:
•
payment of a damage compensation amounting USD 85,500;
•
an annual interest of 5% since the date of rescission of the relevant
employment contract until the date of payment by the club and;
•
imposition of sporting sanctions to the club in accordance with the art. 17 par.
4 of the Regulations for the Status and Transfer of Players (hereinafter: the
Regulations).
6.
The player composed the amount of USD 85,800 in the following way:
•
USD 57,000, 18 monthly salaries, for the entire year 2006 (USD 3,000 per
month) and from January until June 2007 (USD 3,500 per month);
•
USD 23,400, 18 monthly bonuses ( USD 1,300 per month);
•
USD 5,400, 18 monthly accommodation fees (USD 300 per month).
7.
In particular the player alleged:
•
that when he arrived in A and upon club’s request he provide it with all the
documents needed for the relevant work permit. When he entered in A, he
hold a permit “C” valid for only 15 days. However, the permit C was not
changed by the club and upon the player’s request the club answered
“verbally” that they were taking care of it;
•
that at the end of the first round of the tournament, the player went to his
country, i.e. G. On 9 December 2005, the player tried to came back to A but
his access was denied by the A national authorities imposing him a prohibition
for 6 months to enter in A;
Player R, G/ FC P, A
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•
•
•
•
•
•
that because the club was doing the pre-season training in Italy the player
went to Italy (through G) to request the club authorities to solve this problem.
However, the club did not provide him with any solution;
that on 10 February 2006 the player tried again to enter in A but its national
authorities did not allow it;
that the club agreed with the player the monthly performance bonuses
through the captain of the team amounting between USD 1,000 and USD
1,500;
that in accordance with the art. 18 par. 4 of the Regulations the validity of an
employment contract cannot be conditioned to the issuance of a work permit;
that based on the jurisprudence of the Dispute Resolution Chamber (DRC), it is
an exclusive obligation of the club concerned to obtain the relevant work
permit for its players. Therefore if the club does not carry out the necessary
steps to obtain the relevant work permit obliging the players to abandon
their countries and their jobs this fact has to be consider as a unjustified
contractual termination by the employer’s side;
that the player has the right to perceive all the amounts that he would have
been receiving in accordance with the conditions stipulated in the
employment contract and with the CAS jurisprudence.
8.
The club requested FIFA to reject the player’s claim for groundless and illegal
based on the following allegations:
•
that the labour relationship with the player has to be governed by A law since
the relevant employment contract was signed in A;
•
that the player R entered A on 2 June 2005 with a tourist visa for a short
period i.e. 15 days infringing the relevant national law because, he went to A
for signing an employment contract;
•
that the club was doing all the steps for obtaining the relevant visa but the
player failed providing to the club with certificates regarding his education
and formally certified by the foreign affairs authorities of G;
•
that the player unilaterally cancelled the relevant employment contract
because of his fault in completing the requested documents;
•
that the club fulfilled all of its obligations stipulated in the contract from 1
July 2005 until 10 December 2005, date in which the A authorities issued an
interdiction of entering in the territory of A for 6 months. The A authorities
ascertained that the player lived illegally in A since he did not leave the
country on 17 June 2005;
•
that the player violated the A law when he tried to enter the country again
and therefore the employment contract was terminated on 1 July 2005, i.e. 14
days after the right of legal stay on the territory of A expired;
•
that therefore the relevant employment contract turned null and void and the
provisions arts. 17 par. 4 and 18 par. 4 of the Regulations do not apply.
9.
The club stated that it does not owe any money to the player and particularly
refused the damage compensation claimed by him based on the following
reasons:
•
USD 57,000, the player cannot claim this amount since the relevant
employment contract did not come into effect based on the interdiction to
enter the country established by the An authorities;
Player R, G/ FC P, A
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•
•
USD 23,400, the club does not owe any bonus to the player since he did not
play any match organized by the A Football League). The player only played 2
matches of the A Cup and for these matches there are not bonuses;
USD 5,400, the player is not entitled because the relevant employment
contract was not in force.
10.
Finally the club stated that on 3 October 2006, the A Football Federation
rendered a decision admitting the request of the club considering the relevant
employment contract terminated.
11.
The player added:
•
that the club did not provide with any evidence about the proceedings that
supposedly started for the relevant work permit or documents requested to
him;
•
that the club owes him the bonuses despite of which tournament he played;
•
that the A Football Federation is not competent to deal with this labour
dispute with a clear international dimension. Besides the A Football
Federation ´s decision was rendered six months after the disputed was lodged
in front of FIFA’s deciding bodies;
•
that the player was not informed at all about the procedures at the A Football
Federation . Therefore basic legal principles such as the right to be heard
were not respected.
12.
On 29 June 2006, the player signed an employment contract with the club C valid
until 30 June 2007.
13.
Both parties had equal exchange of positions and/or comments.
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 11 May 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 an Argentinean player and a An 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
Player R, G/ FC P, A
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(edition 2008), and considering that the present claim was lodged on 11 May 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 members of the Chamber entered into the substance of the
matter by acknowledging that the player R (hereinafter: the player) and the club
FC P (hereinafter: the club) signed an employment contract valid as from 1 July
2005 until 1 July 2007.
5.
In continuation, the members of the Chamber pointed out that both parties
agreed that the player was rendering his services to the club until he went to his
country on holidays after the end of the first round of the national tournament
2005.
6.
However, the members of the Chamber underlined that both parties have
antagonistic positions regarding the termination of their contractual relationship.
7.
On the one hand, the player alleged that the club breached the relevant
employment contract by no doing the necessary steps assisting him to obtain the
mandatory work permit in A.
8.
On the other hand, the club deemed that the player breached the relevant
employment contract by no providing the club with the necessary documents with
regard to the administrative procedure for the work permit in A.
9.
First and foremost, the members of the Chamber deemed appropriate to
underline the content of the art. 18 par. 4 of the Regulations that states that the
validity of an employment contract cannot be subject to the grant of a work
permit.
10.
In this context, the members of the Chamber added that as a general rule
employers are the main responsible for doing all the necessary proceedings in
order to obtain the work permit for their employees because the employer is the
most interested party in that the relevant employee render his/her services as soon
as possible.
11.
Moreover, the members of the Chamber outlined that since the moment that a
club and a player signed an employment contract rights and responsibilities
started for both of them without being subject to any condition.
12.
In continuation, the members of the Chamber reiterated that during the process
of the matter at stake both parties agreed that the player rendered his services for
the club until he left A for holidays, i.e. almost 6 months.
13.
Moreover the Chamber remarked that during all this period of time the club paid
regularly the player’s salaries based on its own allegations and that the player did
not lodge a formal complaint in this respect and therefore did not contest it.
Player R, G/ FC P, A
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14.
In addition, the members of the Chamber remarked that also based on the club’s
allegations, at the time that the club and the player signed the relevant
employment contract the club was completely aware that the player hold a tourist
visa valid only for 15 days. Therefore, the members of the Chamber deemed that if
the player infringed the national law the club has to share part of this
responsibility.
15.
The members of the Chamber concluded that the player and the club signed a
valid employment contract valid as from 1 July 2005 and that their relationship
went through without any problem until 9 December 2005 date in which the
player intended to join the team after his holidays.
16.
Consequently, the members of the Chamber concluded that at the time the player
left A for holidays, the club knew clearly the status of his work permit and also the
club was able to foreseen that when the player will intend to enter A again he will
surely face problems.
17.
In this respect, the members of the Chamber underlined that during the process of
the matter at stake the club did not submit convincing evidences trying to prove
that the club keep informed the player accurately about the status of his work
permit and if additional documents or information was needed. Moreover, the
Chamber pointed out that during the holidays of the player it seems that the club
did not try to solve the issue of the work permit in A or to communicate with the
player avoiding that the player when entering again in A would receive a formal
interdiction to enter this country.
18.
Furthermore, the members of the Chamber took note that the player tried three
times to join the team and to reassume his activities. The Chamber remarked that,
in fact, the player despite of his impossibility to enter A on 9 December 2005 tried
to join the squad in its preseason training in Italy and then on 10 February 2006 he
tried one more time to enter A without success.
19.
Therefore, the members of the Chamber concluded that it seems that on the one
hand the player acted in good faith trying to fulfil his part of the contractual
obligations but on the other hand the club did not react and was not proactive
trying to find solutions.
20.
In this context, the members of the Chamber deemed that the club after the
player left A for holidays was not longer interested in the services of the player.
21.
Bearing in mind the above, the members of the Chamber concluded that, the club
had no just cause to prematurely terminate the labour relationship and thus,
breached the relevant employment contract on 9 December 2005.
22.
At this stage, the members of the Chamber referred to the club’s allegation
regarding a decision rendered by the “Commision for the Player’s Statute” of the
A Football Federation on 3 October 2006 admitting its request of considering the
relevant employment contract with the player R terminated.
Player R, G/ FC P, A
Page 6 of 9
23.
In this respect, the members of the Chamber took note that the player lodged the
present complaint at FIFA on 11 May 2006, and that on 16 May 2006 FIFA sent the
relevant claim and documents enclosed to the A Football Federation for the club’s
perusal and requesting for its position. Moreover, the members of the Chamber
took note that the club presented its request at A Football Federation on 18
August 2006 based on the content of the decision rendered by the Commission of
the A Football Federation.
24.
Therefore, the members of the Chamber concluded that the club lodged its claim
at A Football Federation 3 months after it was informed about the present dispute
lodged by the player at FIFA. Moreover, the Chamber underlined that during the
process of the matter at stake, the player contested the competence of the
deciding body of the A Football Federation to take a decision regarding this
matter.
25.
For the sake of good order, the Chamber added that in accordance with art. 22 b)
of the Regulations the Dispute Resolution Chamber 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.
26.
In this respect, the members of the Chamber pointed out that the club did not
submit evidences to prove that the “Commission for the Player’s Statute” of the A
Football Federation fulfil the aforementioned principles and prerequisites.
27.
In view of all the above, the Chamber established that the club’s allegation
regarding the application of the A Football Federation ´s decision dated 3 October
2006 to the matter at stake has to be rejected and confirm that the Dispute
Resolution Chamber is competent, on the basis of art. 22 b) of the Regulations to
consider and decide on the present matter.
28.
In continuation, the Chamber turned its attention to the consequences of the
premature termination of the employment contract by the club.
29.
As a result, the Chamber concluded that in accordance with art. 17 par. 1 of the
Regulations the club is liable to pay compensation to the player for the breach of
contract.
30.
In this context, the Chamber considered that the player requests the total amount
of USD 85,500 plus an annual interest of 5 % per year as from the date of the
rescission of the relevant employment contract by the club, i.e. 9 December 2005.
31.
In view of all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that the amount of USD 53,676 was to be considered
reasonable and justified as compensation for breach of contract, considering
Player R, G/ FC P, A
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equally the monthly salaries foreseen in the employment contract that the player
signed with the club C.
32.
Therefore, the Dispute Resolution Chamber decided that the club has to pay to the
player the total amount of USD 53,676 plus 5 % interest per year as from 9
December 2005.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player R, is partially accepted.
2.
The Respondent, FC P, has to pay the amount of USD 53,676 plus an interest rate
of 5% per year as from 9 December 2005, within 30 days as from the date of
notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline the
present matter shall be submitted upon the parties request to FIFA’s Disciplinary
Committee for its consideration and decision.
4.
Any further claims lodged by the Claimant, R, are rejected.
5.
The Claimant, R, is directed to inform the Respondent, FC P, 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.
*****
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:
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:
Player R, G/ FC P, A
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Markus Kattner
Deputy Secretary General
Encl.: CAS directives
Player R, G/ FC P, A
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