Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 April 2006,
in the following composition:
Mr. Slim Aloulou (Tunisia), Chairman
Mr. Carlos Soto (Chile), Member
Mr. Philippe Piat (France), Member
Mr. Jean-Marie Philips (Belgium), Member
Mr. Wilfried Straub (Germany), Member
on the claim presented by
Player T,
as Claimant
against
Club A,
as Respondent
regarding a contractual dispute between the parties involved
./…
I.
Facts of the case
1.
On 19 June 2002, the player T and the club A signed an employment contract
valid for the season 2002/2003 expiring on 30 June 2003.
2.
The employment contract established in its clause III all the payments that the
player T had to receive from the club A as well as the relevant conditions as
follows:
a)
Guaranteed Payments: Total USD 85,000 payable in three instalments
1)USD 25,000 (day of signing in cash); 2) USD 30,000 (until 23 August
2002) and 3) USD 30,000 (until 31 December 2002).
b)
Appearance Fee: USD 3,000 for the games he plays in the Turkish League,
Turkish Cup and European Cup under following conditions: -if the player
is on the first 11, he receives 100% of USD 3,000; -if the player is on the
bench, he receives 50 % i.e. USD 1,500 and -if the player is on the bench
as substitute and takes part in the game he receives 75%, i.e. USD 2,250.
c)
Injuries: after playing three games as starter player (first 11), in case of
injury during the game, the player will receive 100% of the agreed
appearance fee for the next three games and furthermore 50 % of the
Appearance Fee for the next three games.
d)
All above mentioned payments are net (state taxes and fees regarding
above mentioned payments will be paid by the club).
e)
The club will pay USD 5,000 until 1 August 2002 and USD 2,500 until 1st
October 2002 for accommodation, car, etc. to the player.
3.
On 16 January 2004 the player T communicated directly in writing to the club
that it breached the employment contract due to non-payment of USD 32,750
as appearance fees and he enclosed a copy of an account statement specifying
games and monies.
4.
On 4 January 2005 the player lodged a formal complaint against the club A at
FIFA.
5.
The player claims the payment of the following amounts:
a.
8 matches USD 24,000 (100%, USD 3,000 per match)
b.
1 match USD 2,250 (75 %)
c.
5 matches USD 7,500 ( 50%, USD 1,500 per match)
d.
3 matches injured USD 9,000 (USD 3,000 per match)
e.
check for TRL 15,000 millions. The club gave to the player this check
payable on 26 September 2003 however it allegedly remains unpaid.
Player T, / Club A,
Page 2 of 7
6.
The Club A states that they paid all the monies that they were obliged to based
on the contract and submitted a list of payments due and a list of payments
allegedly done for an amount of USD 163,933 and another list of payments such
as for the house and the car for an amount of TRL 17,675,000,000. The club
concluded that they paid to the player T the total amount of USD 175,198 some
in cash and some through bank account and the club has presented receipts to
FIFA.
7.
In his reply the player states that:
a)
the position of the club is not clear and accurate;
b)
in the list of payments allegedly done the club mentioned 4 disciplinary
sanctions (fines), that the player was never informed of and therefore
does not accept, amounting USD 3,645;
c)
the club maintains that they paid everything to the player but they could
not prove accurately this circumstance;
d)
the club did not mention 3 matches in which the player was injured and
based on point III c) of the contract was entitled to USD 9,000 (USD 3,000
per match);
e)
he totally refuses the club’s argument stating that the player had the
habit to be injured. The player states that if this had been the case the
club could have applied a disciplinary sanction on him but this was not the
case. Furthermore, the medical report, provided by the club, states that
the player had pain in his feet and if he had to play he would have to take
analgesics;
f)
the club mixed up different payments such as house, car, flight tickets,
etc.;
g)
the club gave to the player a check for TRL 15,000 millions on 26
September 2003, i.e. after the expiry of the contract in payment of monies
owed but the check could not be cashed. The player provided a copy of
the check;
8.
In its final position the club A added that
a)
regarding the 4 fines imposed on the player T, the club used to impose
fines on all the players of the squad when they did not play successfully
and they applied premiums when they were successful. For this reason the
player T received the relevant fines; and
b)
regarding the check of TRL 15,000 millions, they paid the relevant amount
to a team-mate of the Claimant named M L in cash. However, the player T
did not return the original check to the club.
9.
The player T asks the DRC to order the club A to pay the amount of USD 42,750.
Player T, / Club A,
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA before 1 July 2005,
more specifically on 4 January 2005, as a consequence the Chamber concluded that
the previous Procedural Rules (edition 2001) on matters pending before the
decision making bodies of FIFA are applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 42 par. 1 lit. (b) (i) of the
FIFA Regulations for the Status and Transfer of Players (edition 2001) establishes
that the triggering elements of the employment-related dispute will be decided by
the Dispute Resolution Chamber.
3.
If an employment contract is breached by a party, the Dispute Resolution Chamber
(DRC) is also responsible to verify whether a party is accountable for outstanding
payments and/or compensation.
4.
As a consequence, the DRC is the competent body to decide on the present
litigation involving a player and a club regarding outstanding monies claimed by
the player T in connection with an employment contract.
5.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed on 19 June 2002 and the claim was lodged
at FIFA on 4 January 2005. In view of the aforementioned, the Chamber concluded
that the former FIFA Regulations for the Status and Transfer of Players (edition
2001, hereinafter: the Regulations) are applicable to the case at hand as to the
substance.
6.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging that both parties signed an employment
contract on 19 June 2002 expiring on 30 June 2003. Moreover, the Chamber noted
that in the relevant contract the Respondent assumed the obligation to pay to the
Claimant certain amounts, such as, guaranteed payments, match bonuses and
expenses.
Player T, / Club A,
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7.
At this stage, the DRC pointed out that the parties in the present matter have a
contradictory position with respect to the determination of the relevant amounts
supposedly owed to the player. On one hand, the player T claims that the amount
of USD 42,750 remains unpaid by the Respondent, and on the other hand the club
A considered that they already paid all the amounts to the player based on the
obligations assumed in the relevant contract.
8.
The DRC noted that the player’s claim solely pertain to outstanding monies.
Therefore, the Chamber considered it appropriate to focus on the amounts
claimed by the player T, the Respondent’s allegation regarding the amounts
already paid and the documentary evidence submitted by both parties.
9.
The members of the Chamber particularly focused on the analysis of the lists of
payments submitted by the Respondent to FIFA.
10.
First of all, the Chamber focused on the player’s remark with respect to the four
(4) disciplinary sanctions imposed by the Respondent. In fact, the club established
in its relevant list the total amount of USD 3,639 as fines imposed on the Claimant
based on low performance of the entire squad. In this respect, the DRC outlined
that, as a general rule, low performance cannot be considered a reason for the
club to reduce payments to the player, because it is unilaterally determined by the
club and based on pure subjective criteria. Therefore, the members of the DRC
concluded that this imposition of fines by the Respondent cannot be accepted and
thus cannot be deducted from monies payable to the player.
11.
Secondly, the DRC identified one receipt dated 23 August 2002 for an amount of
USD 30,000 in which the beneficiary of the bank deposit is not the Claimant. The
Chamber analyzed all the payments made by bank deposit provided by the
Respondent and concluded that there are six payments made in this way. In all of
them it clearly appears that the player T was the beneficiary except the one made
on 23 August 2002, in which a beneficiary called H is referred to. As a
consequence, the DRC deemed that this receipt relating to the alleged payment of
USD 30,000 cannot be accepted as documentary evidence.
12.
In continuation, the Chamber focused its attention to the Claimant’s allegation
with respect the check issued by the Respondent in the amount of USD 10,987
(payable on 26/09/2003), which according to the player appeared not covered with
necessary funds. In this respect the members of the DRC remarked that this
allegation was not contested by the Respondent. In this regard, the Respondent
informed FIFA that the Claimant authorized a team mate to receive on his behalf
the relevant amount of USD 10,987 (TRL 15,000,000,000) in cash. The DRC deemed
that the Respondent failed to substantiate this allegation with documentary
evidence and that it had to reject this argument.
Player T, / Club A,
Page 5 of 7
13.
The members of the DRC concluded that the remainder of the payments indicated
by the Respondent are valid and therefore shall be admitted. Consequently the
DRC concluded that the Respondent failed to prove payment to the Claimant of
the total amount of USD 44,626 (i.e. disciplinary sanctions, receipt dated
23/08/2002 and amount indicated on check).
14.
In continuation, the Chamber pointed out that the player T claims the amount of
USD 42,750.
15.
Departing from the principle that the amount to be awarded shall not exceed the
amount claimed, the Chamber decided that the Respondent has to pay the
amount of USD 42,750 to the Claimant.
16.
Finally, the Chamber decided that the Claimant has to return the original check to
the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player T, is accepted.
2.
The Respondent, Club A, has to pay the amount of USD 42,750 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.
4.
The player T is instructed to return the check to Club A.
5.
In the event that the debt of the Respondent is not paid within the stated
deadline an interest rate of 5% per year will apply as of expiry of the said time
limit and the file will be submitted to the Disciplinary Committee.
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
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
Player T, / Club A,
Page 6 of 7
sent to the CAS directly within 21 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives issued
by the CAS, copy of which we enclose hereto. Within another 10 days following
the expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (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:
Urs Linsi
General Secretary
Encl.
Player T, / Club A,
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