Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 April 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Jean-Marie Philips (Belgium), member
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
Michele Colucci (Italy), member
on the claim presented by
the player, X,
as Claimant
against
the club, Y
as Respondent
regarding a contractual dispute between the player and the club,
Facts of the case
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On 24 September 2003 the parties signed an employment contract valid from 24
September 2003 until 30 June 2004.
In addition, with respect to 4.2 of this employment contract the parties signed an annexe
that indicates the date of 15 September 2003 and refers to the employment contract.
In accordance with the employment contract the player is entitled to a monthly salary of
BGL 550.
According to the annexe, the player is entitled to receive the following emoluments:
o USD 20,000 signing-on fee payable in two equal instalments of USD 10,000:
one instalment three days after having received the work permit and the
second instalment no later than 15 January 2004;
o USD 1,800 as a monthly salary payable during 10 months and falling due on
the 15th day of the month from 15 October 2003 until 31 May 2004 with
double payments in December 2003 and May 2004 (on 15 + 22 December
and on 15 + 31 May);
o Bonuses, the details of which can be found in the employment contract;
o Accommodation;
o Air tickets Ghana-Varna-Ghana.
Article 10 of the annexe stipulates that any delay of any payment for a period of 14 days
is considered as a breach of contract by the club.
In accordance with article 11 of the annexe, in such case the player will have the right to
cease all of his activities with the club without jeopardising his rights according to the
contract.
Article 13 of the annexe specifies that any dispute shall be solved by FIFA which has sole
jurisdiction on both parties, unless an amicable settlement is found.
In April 2004, the player turned to FIFA claiming that the second instalment of the abovementioned signing-on fee to the amount of USD 10,000 (payable no later than 15
January 2004) remains outstanding and that he had only received one salary payment,
i.e. the amount of USD 1,800 that fell due on 15 October 2003.
He maintains that although he could have invoked article 10 of the annexe, he asserts
having fulfilled his contractual obligations until December 2003.
Furthermore, X maintains that he returned to Ghana during the Bulgarian winter break,
which lasted from 6 December 2003 until 14 February 2004, with the club’s approval to
return on 5 January 2004.
The player asserts that the club has not provided him with the necessary air ticket (cf.
article 8 of the annexe to the employment contract), which he had to pay for himself.
He maintains having returned to Bulgaria on 13 January 2004, due to the fact that his
return flight was on waiting list status, of which fact he allegedly informed the club.
X maintains that after his return to Bulgaria the club expelled him from training activities
and that, on 26 January 2004, the club informed him, via his agent, that it wished to
terminate the contract by mutual consent.
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− A copy of the relevant document has been presented by the player, in which the club
offers the player to pay his salary for December 2003 and the air ticket.
− This offer was not accepted by X and attempts to amicably settle the matter have failed.
− Therefore, he asserts having submitted a claim in front of the arbitration body of the
Bulgarian Football Union.
− X maintains that he has not received any reply to his request for arbitration, nor was he
notified of any proceedings, meeting or decision relating to his claim.
− In the light of the above, the player claims payment of the following monies:
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USD
10,000
10,800
a) 2 instalment of the signing-on fee
b) 6 outstanding salary payments (Nov 03 – Mar 04)
c) Reimbursement of airticket
d) 3 additional salary payments (Apr 04 – May 04)
5,400
e) Expenses allegedly incurred for alternative accommodation at a
rate of EUR 400 per month (Jan 04 – May 04)
TOTAL
26,200
EUR
1,850
2,000
3,850
− With respect to item c) the Chamber noted that an illegible copy of a document was
submitted and regarding item e) that the player maintains having been thrown out of his
apartment after he was informed of the termination of his contract. No receipts relating
to item e) have been presented by the player.
− As regards the player’s salary for November and December 2003, the club, for its part,
maintains that the player failed to appear at the club in order to receive his salaries
payable in November and December 2003.
− In this regard, the club points out that on the explicit request of the player salary
payments were due in cash.
− In addition, the club refers to article 270 of the Bulgarian Labour Code according to
which “remunerations shall be paid in the establishment where the work is done”.
− No documents have been presented in this regard.
− Furthermore, as regards the player’s claim b (partly, as from January 2004), c, d and e
the club points out that the player returned nine days late at work after the Christmas
leave. Y maintains that according to the Bulgarian labour code a disciplinary dismissal
may be imposed upon an employee in the event of a failure to appear at work in the
course of two consecutive business days.
− Therefore, the club decided to refer the matter to the arbitration committee of the
Bulgarian Football Union.
− On 30 January 2004, the said committee made a decision according to which the labour
contract between the parties concerned was terminated at the player’s fault as from the
same date.
− A copy of this decision has been presented by the club.
− The club points out that in spite of the player’s misconduct it proposed to resolve the
dispute amicably.
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The club rejects the player’s financial claims b (partly, as from January 2004), c, d and e
given that there was no legal ground due to the lack of labour relations between the
parties.
In addition, Y dismisses the player’s claim for reimbursement of the expenses allegedly
incurred for his air ticket for two reasons: a) the club has no contractual obligation to
reimburse the player’s travelling expenses for his return to Ghana and b) according to
the Bulgarian “Decree for Business Trips” travelling expenses are to be reimbursed in
exchange of presenting a ticket or other documentary evidence.
In response, the player maintains that no such agreement on cash payments of his
salary existed and he points out that should such agreement have existed it would
certainly have been made in writing.
He maintains never having been informed that monies were available at the club.
The player asks the DRC to confirm that the club has acted in unilateral breach of the
employment contract already prior to having left for his vacation on 25 December 2003.
X points out that his absence until 13 January 2004 could not have possibly damaged the
club since the winter break lasted until 14 February 2004.
In addition, he maintains that he was informed of a meeting in the offices of the
Bulgarian Football Union on 29 January 2004 only.
Furthermore, X maintains that the proceedings in front of the arbitration committee of
the Bulgarian Football Union have not been fair or according to principles of law.
Finally, the player points out that according to the relevant employment contract, which
assigns sole jurisdiction to the FIFA deciding bodies, the Bulgarian arbitration committee
has no jurisdiction to deal with this matter.
In addition, X maintains that the said arbitration committee is not composed in
accordance with article 42 of the FIFA Regulations for the status and transfer of players.
Therefore, the player asks the Dispute Resolution Chamber:
1. to find the club guilty of a unilateral breach of contract prior to 25 December
2003;
2. to confirm that the arbitration committee of the Bulgarian Football Union has
no jurisdiction in the present matter;
3. to declare the decision passed by the said arbitration committee invalid;
4. to condemn the club to pay to him the monies as per the aforementioned
breakdown.
Considerations of the Dispute Resolution Chamber
The members of the Chamber firstly proceeded to confirm that in accordance with Article
42 of the FIFA Regulations for the Status and Transfer of Players the Chamber is
competent to deal with the present matter.
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In this context, the Chamber also referred to article 13 of the annexe to the pertinent
employment contract which specifies that any dispute shall be solved by FIFA which has sole
jurisdiction on both parties, unless an amicable settlement is found.
According to the player, prior to his departure for Ghana in December 2003, during the
winter break, Y had only remitted one salary to him, i.e. the salary that fell due on 15
October 2003. Furthermore, shortly after his late return from the winter break on 13
January 2004, the club wished to terminate the employment contract by mutual consent. In
this context, X points out that he was unable to return to the club in a timely manner given
that the club had not provided him with an air ticket and that his flight was on waiting list
status. No amicable settlement was reached and the player maintains that, therefore, he
turned to the arbitration committee of the Bulgarian Football Union which allegedly did not
deal with his claim. The club, for its part, turned to arbitration in front of the Bulgarian
Football Union. The relevant arbitration committee decided that the employment contract
was terminated at the player’s fault as of 30 January 2004. The members of the Chamber
then proceeded to study in more detail the decision passed by the arbitration committee on
30 January 2004, which was submitted by Y via the Bulgarian Football Union. In accordance
with this decision, the employment contract was terminated since the player failed to appear
at work in a timely manner. Furthermore, the Chamber noticed that the player personally
attended the hearing on 30 January 2004.
The members of the Chamber were surprised to find that, apparently not satisfied with the
outcome of the arbitration proceedings in January 2004, the player decided to turn to the
Dispute Resolution Chamber in April 2004 only. Furthermore, from the position of Y it is
apparent that X has not received his salary for November and December 2003 and therefore,
the player could have been in the position to exercise his right contained in article 11 in
conjunction with article 10 of the annexe to the employment contract. Alternatively, the
player could have turned to FIFA as early as towards the end of 2003 already. In the light of
the fact that, as demonstrated above, the player personally attended the session of the
arbitration committee of the Bulgarian Football Union on 30 January 2004, he evidently
accepted the arbitration proceedings relating to his labour dispute with Y. Moreover, X
himself turned to arbitration in front of the Bulgarian Football Union in order to seek a formal
decision in the dispute at hand. Consequently, given that both parties accepted arbitration
proceedings in front of the Bulgarian Football Union, the arbitral award rendered by the said
arbitration committee must be considered valid and binding on the parties involved. As
stated above, X asks the Dispute Resolution Chamber 1) to find the club guilty of a unilateral
breach of contract prior to 25 December 2003; 2) to confirm that the arbitration committee
of the Bulgarian Football Union has no jurisdiction in the present matter; and 3) to declare
the decision passed by the said arbitration committee invalid. On account of the above, the
Chamber decided to reject the player’s claims 1, 2 and 3.
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However, the Chamber took into consideration that the arbitration committee failed to
pronounce itself on the financial entitlements of the player for the period of time during
which he rendered his services to Y. Therefore, the members of the Chamber decided that
the Chamber was competent to enter into the financial part of the player’s claim.
In this regard, from the above it is evident that the player has not received his salary as
from November 2003 until the date of the termination of the employment contract, i.e. 30
January 2004 (cf. decision of the above-mentioned arbitration committee). The club’s
arguments relating to the non-payment of the player’s salary for November and December
2003 were considered invalid, not only because no supporting documentation has been
made available, but also given that the employment contract does not indicate in what way
the player’s salary is payable. The Chamber was of the opinion that a player cannot be
expected to be obliged to refer to national law, should national law pertaining to this issue
exist, in order to find information on how a crucial element of his employment contract is
executable, i.e. if his salary is payable in cash or by bank transfer or other, in the event that
such important element has been omitted from the contract or has not been agreed upon
otherwise with the player. Therefore, the Chamber decided that X is entitled to receive his
salary relating to this 3 months’ period of time. In this respect, it was noted that X refers to
his monthly salary on the basis of the annexe to the employment contract, i.e. USD 1,800
per month or USD 5,400 for 3 months. In addition, according to the annexe of the
employment contract, the player is entitled to receive reimbursement of air tickets Ghana –
Varna – Ghana. Consequently, the Chamber decided that the player is to be paid an amount
of money covering the cost of such air ticket. In this context, the members of the Chamber
pointed out that the document submitted by the player is illegible and therefore, the
members decided to base the price of the air ticket on the information obtained from the
FIFA travel agency. According to the FIFA travel agency, the price of an economy class air
ticket Ghana - Varna – Ghana in the period of time from 23 December 2003 until 5 January
2004 was between USD 1,900 and USD 2,500. The members decided to award to the player
the average amount of USD 2,200. Finally, in the light of the fact that the contract was
terminated at the player’s fault, the Chamber decided that X is not entitled to compensation
for breach of contract.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The Respondent, Y, has to pay the amount of USD 7,600 (USD 5,400 + USD
2,200) to the Claimant.
3.
The amount due to the Claimant has to be paid by the Respondent within 30 days
as from the date of notification of this decision.
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4.
In the event that the debt of Y is not paid within the stated deadline, an interest
rate of 5% per year will apply as of expiry of the aforementioned deadline.
5.
If the sum of USD 7,600 is not paid within the aforementioned deadline, the
present matter shall be submitted to the FIFA Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
6.
The Claimant is directed to inform the Respondent immediately of the account
number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
7.
According to art. 60 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 10 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:
Jérôme Champagne
Deputy General Secretary
Enclosed: CAS directives
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