Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 March 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
Essa M. Saleh al Housani (UAE), member
Ivan Gazidis (USA), member
on the claim presented by the player
B,
as Claimant
against the club
A F.C.,
as Respondent
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 30 June 2006, the H player, B (hereinafter: the Claimant), signed an
employment contract with the C club A FC (hereinafter: the Respondent), valid as
of 24 July 2006 until 31 May 2007, whereby it was agreed that the Claimant would
receive the following amounts:
-
2.
The Claimant signed an additional agreement (“Contract supplement”) dated 23
August 2006 regarding the Claimant’s “image rights”, according to which the
Claimant should also receive the following amounts:
-
3.
EUR 5,000 upon signature,
EUR 5,000 payable on 31 December 2006,
EUR 15,000 payable in ten monthly installments during the entire season
2006-2007, starting on 30 August 2006,
in case the club would, by the end of the 2006-2007 season, be in first place
in the championship, the Claimant would get an additional EUR 2,500
payable on 30 May 2007.
3,000 (approx. EUR 5,260) upon signature,
3,000 on 31 December 2006,
3,000 payable in ten monthly installments during the entire season 20062007, starting on 30 August 2006
in case the Respondent would, by the end of the 2006-2007 season, be
promoted to the Premier League, the Claimant would get an additional EUR
2,500.
On 4 July 2007, the Claimant lodged a claim with FIFA against the Respondent for
the following outstanding amounts:
-
on the basis of the employment contract signed on 30 June 2006:
i. outstanding amount as part of the sign-on fee: EUR 1,196
ii. outstanding salaries for the months of March, April and May 2007:
EUR 4,500
iii. outstanding amounts corresponding to match bonuses for 17 matches
won in the championship: EUR 2,904.
TOTAL: EUR 8,600
-
on the basis of the additional agreement:
i. bonus for the promotion in the First Division: EUR 2,500
ii. for the image rights: EUR 15,782 (i.e. the entire value of the contract).
TOTAL: EUR 18,282
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Furthermore, the Claimant asked for the Respondent to pay default interest of 5%
p.a. on both of the aforementioned amounts until the day of payment. Finally, the
Claimant asked for EUR 5,000 as “compensation for direct financial damages
caused and the moral damages suffered by abusive breach of the employment
contract and the additional agreement”.
4.
In support of his claim, the Claimant alleged that he had duly rendered his services
to the Respondent until 31 May 2007, and that, at the end of the season 20062007, the Respondent had been promoted to the first Division. On 31 May 2007,
the Respondent wrote out a cheque to the Claimant in the amount of 6,000
(approximately EUR 10,251). The Claimant tried to cash this cheque, however,
without success.
5.
On June 2008, the claim of the Claimant was forwarded to the Respondent. The
latter rejected the Claimant’s claim entirely, and stated that it had fulfilled its
obligations towards him by writing a cheque in the amount of 6,000, and that the
Claimant had signed a receipt regarding the payment of this amount, which is to
be considered as full and final settlement of the amounts due to him under the
employment contract, with the following text: (translation by the Respondent
from G to English) “receipt paid to B [for] the sum of Six Thousand 6,000 for full
and final payment for the season 2006-2007”.
6.
Furthermore, the Respondent further stressed that the Claimant, had he not been
able to cash the cheque the first time, could have presented it again at any time.
The Respondent also alleged that, according to C law, if a cheque is presented and
it appears that the relevant account does not have sufficient funds, the bank must
stamp the cheque and indicate the specific reason of the refusal of the cheque.
The Respondent thus pointed out that the copy of the cheque presented by the
Claimant was not stamped by the bank where it was presented, and that this
meant that the Claimant had indeed received the amount of 6,000.
7.
On 30 July 2008, the Claimant replied to the Respondent’s allegations. In this
regard, the Claimant declared that he was still in possession of the cheque, and
that, after the Respondent’s allegation that he could present the cheque to a bank
again at any time, he had tried to cash it with the bank of his legal representative,
and that it could not be cashed. Therefore, the Claimant reiterated that he had
not received the amount of 6,000.
8.
Furthermore, the Claimant asserted that, apart from the 6,000 still outstanding,
the Respondent still owed him the amounts according to the additional
agreement signed on 23 August 2006, i.e. EUR 15,782 net of tax for the season
2006-2007, as well as the agreed bonus of EUR 2,500 for the promotion of the
Respondent in the First Division.
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9.
The Respondent was then invited by FIFA to submit its final position regarding the
present matter. However, the Respondent, despite a reminder from FIFA, did not
react.
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 4 July 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 H player and a C 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 4 July 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 both parties of the dispute do not
contest having been linked by a contractual relationship by virtue of a contract
signed on 30 June 2006, valid for one sportive season, and that the Claimant duly
executed the relevant contract until its expiry on 31 May 2007.
5.
The Chamber therefore acknowledged that the present dispute is purely financial,
and that the Claimant claims some outstanding salaries and bonuses in the
amount of EUR 8,600, as well as EUR 18,282 by virtue of the additional agreement
signed between the parties on 23 August 2006, plus EUR 5,000 for moral damages.
The panel also noted that the Claimant declared that the Respondent had, at the
end of the season, given him a cheque of 6,000, but that he was not able to cash
this cheque.
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6.
Equally, the members of the Chamber took due note of the fact that the
Respondent rejected the Claimant’s claim entirely, i.e. that it asserted that it did
not owe the Claimant any outstanding salaries or bonuses. In support of this
affirmation, the Respondent underlined that it had paid the Claimant an amount
of 6,000 by cheque as final settlement of any financial claims that the Claimant
might have against the Respondent, and that the Claimant had signed a receipt
regarding the payment of this amount.
7.
Having duly considered the respective positions of the parties with regard to the
existence of a financial dispute between them, and after a careful study of the
documentary evidence on file, the Dispute Resolution Chamber held that the
Claimant had undoubtedly signed a receipt for the full settlement of all financial
claims in relation to his employment contract with the Respondent for the season
2006-2007. Therefore, the panel stated that the only possible dispute regarding
outstanding amounts between the parties was on the amount of 6,000 as agreed
upon when the Claimant signed the aforementioned receipt.
8.
With regard to the alleged outstanding amount of 6,000, the Chamber
acknowledged that the Respondent denied that this amount was still outstanding,
in view of the fact that it had drafted a cheque of this amount and that the
Claimant did not provide evidence that he had not received the 6,000. Equally, the
panel noted that the Claimant, contrary to the Respondent’s allegations, insisted
that he had not received the amount of 6,000 as agreed between the parties. In
this respect, the Chamber noted that the best possible proof of this fact was that
the player was still in possession of the cheque, after having tried to cash it several
times, notably at the bank of his legal representative.
9.
Having stated the above, the Dispute Resolution Chamber considered that,
according to the principle of burden of proof and to art. 12 par. 3 of the
Procedural Rules, it fell upon the Respondent, who alleged that the Claimant had
received the amount of 6,000, to provide evidence of this allegation. In this
regard, the panel remarked that the Respondent had not submitted any evidence
of this amount having been paid to the Claimant.
10.
Therefore, the Chamber held that the amount of 6,000 agreed upon between the
parties of the dispute was clearly still outstanding, in spite of the Claimant’s best
efforts to cash the cheque which was drafted by the Respondent.
11.
In view of all of the above, the Chamber decided that the Respondent has to pay
the Claimant the amount of 6,000.
12.
Furthermore, the Dispute Resolution Chamber reiterated that no other amounts
could be claimed by the Claimant as he had undoubtedly signed a receipt for the
full and final settlement of all financial claims in relation to his one-year contract
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for the season 2006-2007, and therefore decided to reject all further claims lodged
by the Claimant.
13.
Finally, the Chamber took due note of the fact that the Claimant had claimed
further amounts based on an additional agreement dated 23 August 2006
regarding the Claimant’s “image rights”. In this regard, the panel was eager to
emphasize that, had the Claimant been entitled to claim other amounts from the
Respondent, i.e. had he not signed a receipt for full and final settlement of all
financial claims with the Respondent, the Chamber would have had to declare
itself incompetent to deal with this particular claim, since, in accordance with the
provisions of art. 22 regarding the competence of FIFA, as well as art. 24 regarding
the competence of the Dispute Resolution Chamber, of the Regulations, it does
not have competence to rule on claims deriving from a contract regarding image
rights.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, B, is partially accepted.
2.
The Respondent, A F.C., has to pay to the Claimant, B, the amount of 6,000 within
30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed 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.
5.
The Claimant, B, is directed to inform the Respondent, A F.C., 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.
*****
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Note relating to the motivated decision (legal remedy):
According to art. 63 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
Enclosed: CAS directives
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