Solidarity Contribution
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,
A,
as Claimant
against the club,
I,
as Respondent
regarding an employment-related contractual dispute
between the player and the club.
I.
Facts of the case
1.
On 26 July 2005, the M player A (hereinafter; the player) and the I club
(hereinafter: the club) concluded an employment contract (hereinafter:
employment contract) valid as from 20 July 2005 until 30 May 2007.
2.
According to article 4 of the employment contract, the player was entitled to
receive 12 monthly salaries of USD 1’250 each payable on the 20 of every month
for the period from August 2005 until July 2006 and bonuses. The amount of the
monthly salaries for the period after 20 July 2006 “will be aggrandized in
accordance with additional contract.
3.
According to the supplement 1 which was signed together with the employment
contract, the player was entitled to receive the amount of USD 30’000 upon the
signing of the employment contract, and the sum of USD 48’000 without any
note about when and under which conditions it falls due.
4.
On 1 March 2007, the player filed a claim against the club in front of FIFA and
claimed for the amount of USD 160’905.05. The player argues that the club
unilaterally terminated the employment contract without just cause during the
protected period and claims for outstanding payments and compensation.
Besides that, sporting sanctions were claimed against the club.
5.
According to the player, besides the employment contract and supplement 1, a
second supplement was signed between the parties. However, the player did not
receive a copy of the supplement 2.
6.
The player claims that the amount of USD 250’000 is the total remuneration for
his services under the employment contract and the two supplements.
7.
As evidence, and due to the absence of the supplement 2, the player submits a
correspondence of the club to the player dated 2 November 2006, that reads as
follows:
“I inform you that the club has paid USD 250’000... by contract No. 13/8
that was signed on 1 August 2005 between D and N, the money was paid
to his agent - M by contract between the player and agent. We as the club
have fulfilled all our pledges. Although his putting on transfer line, the
club has paid the salaries of USD 7’500 until 1 February 2007. The free
transfer certificate of the player was sent on 20 October 2006 to the
Serbian Football Federation.”
8.
In continuation, the player invokes that at the end of July 2006, the club verbally
informed him that it refused his services in the future. He was told that the club
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could not pay him anymore, because the player’s remuneration for the second
season had already been paid to the player’s agent. Therefore, on 24 August
2006, the club terminated the employment contract and issued a certificate that
the player was free agent.
9.
Furthermore, according to the player, besides releasing him from the
employment contract, the club promised to pay him the amount of USD 15’000
as consideration for 12 monthly salaries for the season 2006/2007.
10.
The player acknowledges having received from the club:
USD 12’000 as salaries for the season 2005/2006,
USD 67’961.46 as additional payments according to supplement 1,
USD 7’500 on 1 August 2006 and USD 1’250 on 4 October 2006 for the
release from the employment contract.
11.
Furthermore, the player admits having earned USD 383.49 from his new club F
for October and November 2006.
12.
In total, the player admits that the amount of USD 89’094.95 shall be deducted
from the amount of USD 250’000, that he was entitled to receive from the club,
which results in the amount of USD 160’905.05 of his claim.
13.
In its reply, the club stated that the contract was terminated upon mutual
agreement and that the club did not breach the employment contract.
14.
Moreover, regarding the outstanding payments, the club acknowledges its
liability to pay missing salary payments for 2005/2006 in the amount of USD
3’000 as well as outstanding salaries for the year 2006/2007 in the amount of
USD 6’250 (USD 15’000 as compensation for salary for 2006/2007, minus USD
7’500 and USD 1’250) that have already been paid.
15.
With regard to the payments according to supplement 1, the club states that the
total amount of USD 78’000 had been paid but that USD 9’000 had been paid by
the player to the player’s agent. Besides that the bank in charge deducted some
money transfer fees. The club refers to a handwritten letter by the player, in
which he states having received the total amount of USD 78’000, of which he
himself paid USD 9’000 to the player’s agent.
16.
As far as the supplement 2, that has been invoked by the player, is concerned,
the club denies its existence.
17.
The club furthermore invoked that the amount of USD 250’000 was not due to
the player but to a company called E for the transfer of the player in question.
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Therefore, the club declares that the calculation of the compensation submitted
by the player, i.e. the deduction of the amounts owed to the player from the
sum of USD 250’000, is unsubstantiated and does not have a contractual basis.
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 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 paras. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 para. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 para. 1 in
combination with art. 22 lit. b of the 2005 edition of the Regulations on the
Status and Transfer of Players 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 M player and an I 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 paras. 1 and 2 of the Regulations on the Status and Transfer of Players,
and considering that the present claim was lodged on 1 March 2007, the
previous version of the regulations (edition 2005; hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
In continuation, and entering into the substance of the present matter, the
members of the Chamber started by acknowledging the established facts of the
case and the arguments of the parties as well as the documentation contained in
the file. In this respect, in view of the circumstances of the present case, the
Chamber deemed that the following two issues had to be addressed:
I.
Which contractual agreements were concluded between the parties
involved?
II. Was the contractual relationship between player and club breached
by any of the parties? If so, which party is responsible for such breach
of contract?
III. What are the consequences in the event of a breach of contract?
5.
With regard to the first issue, the members of the Chamber duly acknowledged
that the player and the club had signed two agreements, an employment
contract and the supplement 1, which were both signed on 26 July 2005. The
employment contract was valid from 20 July 2005 until 30 May 2007. In
accordance with the employment contract, the player was inter alia entitled to
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payments of USD 1’250 per month. The supplementary 1 records additional
payments in the total amount of USD 78’000 upon signature of the employment
contract and another payment which is due without mention of conditions.
6.
Furthermore, the Chamber took note that the player claimed having signed a
third agreement, i.e. the supplement 2, according to which he would allegedly
have been entitled to a total remuneration of USD 250’000 for the whole period
of the employment contract. In order to highlight his position, the player
referred to a document respectively a correspondence from the club dated 2
November 2006, in which the club informs about the payment of USD 250’000 to
the players’ agent. However, the Chamber also took note that the player was not
in the possession of the supplement 2. Moreover, they took note of the club’s
arguments stating that no such agreement was signed and that the payment in
the amount of USD 250’000 was not made to remunerate the player, but rather
to pay for the transfer services of the company E for the player in question,
referring themselves to a contract dated 1 August 2005 which was provided.
7.
After a careful study of all the documents provided in regard of the alleged
supplement 2, the members of the Chamber declared unanimously that no
supplement 2 was provided in order to support the player’s position. The
documents provided in this regard rather support the club’s position that the
payment in the amount of USD 250’000 was due to the E for their transfer
services and, therefore, it was decided that the player shall not be entitled to the
amount of USD 250’000 as a total for his services under the employment
contract.
8.
With regard to the second question if the contractual relationship between the
parties was breached or not, the Chamber took note that it is undisputed by the
parties involved that the contractual relationship had been terminated on 26
August 2006 by mutual agreement but unilaterally been announced by the end
of July 2006. It considered that according to the player as well as the club, the
contractual relationship was terminated on the sole initiative of the club.
However, both parties agreed on a financial compensation for the season
2006/2007 in the amount of USD 15’000, which corresponds to the salary of the
first year of the employment contract, i.e. the season 2005/2006.
9.
Consequently, and with regard to the third question, the Chamber decided that
the club is liable to pay to the player any outstanding contractual payments
according to the employment contract, the supplement 1 and the termination
agreement.
10.
The player acknowledges having received USD 12’000 out of the USD 15’000 due
as a salary based on the employment contract, USD 67’961.46 as payments
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according to the supplement 1, as well as a total amount of USD 8’750 for the
release from the employment contract based on the termination agreement.
11.
With regard to the salary for the season 2005/2006, it is uncontested that the
club only paid USD 12’000 instead of USD 15’000 and therefore owes the player
salary payments in the amount of USD 3000.
12.
With regard to the supplement 1, the Chamber noted that the player stated that
he had not received the full amount as agreed in supplement 1. The club argued
that all payments according to the supplement 1 were made. The club
furthermore referred to a hand-written note of the player, dated 16 February
2006, in which the player states having received all the amounts under the
supplement 1, but had himself directly paid USD 9’000 thereof to his agent.
Therefore, the Chamber concluded that the total amount of USD 78’000 must
already have been paid by the club to the player based on supplement 1.
13.
Finally, the Dispute Resolution Chamber took note of the fact that the parties
agreed on a financial compensation for the termination of the employment
contract. Said financial compensation was paid in parts only, which is
uncontested by the parties. In this regard, the Chamber concluded that USD
8’750 out of USD 15’000 were paid. Therefore, the player is entitled to receive
the outstanding amount of USD 6’250 from the club.
14.
Bearing in mind all of the above, the Chamber decided that the club has to pay
an outstanding total amount of USD 9’250 to the player.
15.
Finally, the Chamber analysed if the club in accordance with art. 17 par. 1 of the
Regulations is also liable to pay compensation for a breach of contract. As the
parties had already agreed upon a financial compensation when terminating the
contract, the Dispute Resolution Chamber concluded that no additional
compensation for the termination of the employment contract is due.
16.
In conclusion, the Dispute Resolution Chamber decided that the club must pay to
the player an amount of USD 9’250. In this respect, the Chamber determined
that any further claim of the player is rejected. Therefore, the Chamber declared
that the player’s claim is partially accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player A, is partially accepted.
2.
The Respondent, I, has to pay the Claimant the amount of USD 9’250 within 30
days as of notification of the present decision.
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3.
Any further request of the Claimant is rejected.
4.
In the event that the above-mentioned amount is not paid by the Respondent
within the stated time limit, 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 the FIFA Disciplinary Committee for its consideration and decision.
5.
The Claimant is directed to inform the Respondent 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. 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:
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Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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