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 P
represented by lawyer
as Claimant
against
Club PFC
as Respondent
regarding a contractual dispute between the parties involved
./…
I.
Facts of the case
1.
The player P and the club PFC signed an employment contract valid as from 15
September 2001 until 15 September 2004. According to the said contract, the
player was entitled to receive a total amount of BGN 200,000 for each of the three
seasons. In addition, the contract foresaw that the player would receive the
amount of BGN 8,000 for each match he would play at the UEFA Cup and
BGN 20,000 for each match he would play at the UEFA Champions-League.
2.
Since according to the player, the club failed to pay him in a timely manner and
had manifested its intentions not to continue the employment relationship
apparently in a meeting of 7 April 2003, the player terminated his employment
contract by letter dated 5 June 2003.
3.
On 24 November 2003, the player approached FIFA and lodged a complaint
against the club by claiming 4 monthly salaries of USD 10,000 each for October
2002, March 2003, April 2003 and May 2003. In addition, the player claimed 16
monthly salaries of USD 10,000 each corresponding to the salaries due as from
June 2003 until the end of the contract, i.e. September 2004. Concluding, the
player claimed 4 bonus payments of USD 4,000 each corresponding to 4 UEFA Cup
matches played. Therefore, the total amount claimed is of USD 216,000.
4.
On 7 July 2004, PFC provided FIFA with its counterstatement and informed that
the club and the player involved had signed on 11 April 2003 a cancellation
agreement in order to terminate the employment contract dated 15 September
2001 (copy in the file). The essential part of the agreement reads as follows: “The
contract between the two parties is cancelled, willingly by the two parties without
any claims by them. The two parties agreed also that no financial claims will be
raised to each other from one or another sides.”
5.
Since the player challenged the authenticity of the document dated 11 April 2003,
he asked FIFA to force the club to provide the original document in order to prove
his authenticity by a professional. Having received the original document and
submitted it for a graphological examination, the player maintained on 9
December 2004 that this signature on the agreement was forged. The player
corroborated this allegation by means of a Technical Report of a Graphotechnical
study of a Forensic Expert who came to the conclusion that the player’s signature
on the document dated 11 April 2003 was falsified (copy of the study in the file).
6.
On 26 August 2005, the club insisted that the signature of the player on the
cancellation agreement dated 11 April 2003 is authentic. In addition, the club
provided several receipts signed by the player, according to which between
Player P / Club PFC
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December 2001 and March 2003, the total amount of USD 387,640 had been paid
to the player.
7.
In his final statement the player maintains that:
his signature was forged in the document dated 11 April 2003 and that the
argument of the club is completely unreasonable when it states that the player
forged his signature himself;
surprisingly the club presented “supposed” payment receipts only at a very late
stage of the proceedings , more than two years since the claim was filed with
FIFA;
the practice of the payment during the course of the contract was in cash and
upon signature of a handwritten payment notebook, never with issuing of any
kind of receipt. The player provided FIFA with two written statements of
foreign players that played in PFC. The witnesses state that they used to get
paid their salaries in cash not by check and by signing an ordinary notebook
not any kind of formal receipt;
he never received any amount from the club through or at any branch of Bank
PLC except for the signing on amount paid by the club by check on 5 November
2001;
the receipts presented by the club do not bear any date or any sort of
electronic payment confirmation and he did not sign them;
the total amount of the supposed receipts EUR 252,085 (EUR 177,585 + BGN
220,000 + DEM 61,460) which is higher than the amount the player was
expected to receive for the entire period of his employment contract.
8.
The player requests from the DRC to declare that the club has breached the
employment contract by unilaterally terminating it on 7 April 2003 and to oblige
the club to pay the four monthly salaries, UEFA cup bonus and remaining value of
the contract in accordance with article 17.1 of the Regulations for the Status and
Transfer of Players.
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,
as a consequence the Chamber concluded that the previous Procedural Rules
(edition 2001) on matter pending before the decision making bodies of FIFA are
applicable on the matter at hand.
Player P / Club PFC
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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 (i.e. whether a
contract was breached, with or without just cause, or sporting just cause), 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 B club and a Br player regarding outstanding salaries,
bonuses and compensation claimed by the player P 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 15 September 2001 and the claim was
lodged at FIFA on 24 November 2003. 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 on 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 15 September 2001 expiring on 15 September 2004. Moreover, the
Chamber noted that the core element of this dispute is the document apparently
concluded between both parties on 11 April 2003 by means of which the claimant
and the respondent agreed in the termination of the contract.
7.
At this stage, the DRC considered appropriate to remark that since each party has
a completely antagonistic position in this respect, this Chamber is not in a position
to consider and decide on the present case without first of all being clarified the
issue of the authenticity or not of the termination agreement dated 11 April 2003.
8.
In this respect, the DRC took into account that the claimant is contesting the
authenticity of the relevant termination agreement dated 11 April 2003.
Moreover, the DRC emphasized that a copy of the original termination agreement
had been remitted to the attention of FIFA.
Player P / Club PFC
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9.
Then the DRC stated that, in principle, an unilateral expertise, in the sense that the
relevant expertise was furnished on the initiative of one sole party of the relevant
dispute, which content and result is being contested by the other party cannot be
considered by the DRC.
10.
In this context, the DRC considered that the respondent was not at all involved
with regard to the graphologist expertise. In particular, the DRC noted that the
club did not take part in the proceeding of choosing and appointing the relevant
graphologist. As a result, the DRC came to the conclusion that the Technical
Report submitted by the player does not fulfil the requirements of objectivity and
impartiality.
11.
Furthermore, the DRC emphasized that as general rule it is not the competent
body to decide upon matters of criminal law, such as the alleged falsified
signature or document, but that such affairs fall into the jurisdiction of the
competent national criminal authority.
12.
In continuation the DRC recalled that all documentation remitted shall be
considered with free discretion and therefore focused its attention to the
termination agreement as well as the other documents containing the player’s
signature. After a thorough analysis of the aforementioned documents, in
particular, comparing the relevant signatures the DRC had no other option but to
conclude that for a layman the signatures seem to be alike.
13.
In this sense the Chamber had to consider the content of the relevant termination
agreement which reads as follows: “The contract between the two parties is
cancelled, willingly by the two parties without any claims by them. The two parties
agreed also that no financial claims will be raised to each other from one or
another sides.”.
14.
In view of the all of the above, and based on the documentation currently at its
disposal, the Chamber unanimously came to the conclusion that, unless proven
otherwise by a neutral expertise or a decision of the competent national criminal
authority, for the moment, the present claim has to be rejected since the relevant
termination agreement dated 11 April 2003 seems to be signed by both parties.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player P is rejected.
2.
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 P / Club PFC
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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 P / Club PFC
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