Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 April 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Wilfried Straub (Germany), member
Gerardo Movilla (Spain), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
X,
represented by Mr. Z, attorney-at-law
as Claimant
against the club,
Y,
as Respondent
regarding an employment-related contractual dispute between the player and the
club
I.
Facts of the case
1.
On 14 June 2006, the player, X and the club, Y, signed an employment contract
valid for the 2006-07 season in accordance with which X, inter alia, is entitled
to receive the global amount of USD 65,000 as follows: USD 25,000 upon the
signature of the contract and USD 40,000 payable in 10 monthly instalments of
USD 4,000.
2.
This employment contract was co-signed by the licensed agent, V.
3.
In addition, the player is entitled to a furnished apartment and two yearly
tickets A – B - A and bonus payments in accordance with the club regulations.
4.
On 19 July 2006, the player turned to FIFA claiming that after having passed
the medical tests and having signed the employment contract the club
informed the player without any explanations that he should return to his
country.
5.
X maintains that the club has breached the employment contract without just
cause and asks that Y be instructed not to hinder the player’s employment
with another club and that Y pays to him the amount of USD 80,000, which he
has specified as follows:
USD 25,000 relating to the amount that fell due on the date of the
signature of the employment contract;
USD 40,000 relating to compensation for breach of contract equalling
the salary due to the player until the expiry of the relevant employment
contract;
USD 15,000 for compensation fixed ex aequo et bono for the loss of
compensation in kind and/or moral prejudice and legal fees.
6.
The player asserts having put the club in default of its contractual obligations
on 13 July 2006.
7.
In reply to the claim, Y confirms that it signed a contract with the player on 14
June 2006, which was also signed by the agent of the player, V.
8.
According to Y, the player’s agent “sent the documents of transfer every 2
months. When the documents of transfer sent in the Association of Y, the
football players signed the contract with Football Club W”.
9.
Y asserts that the player is currently playing at W.
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10.
The Association of Y has confirmed that the player was registered at its
affiliated club W on 18 August 2006.
11.
The Association of Y also presented a copy of the employment contract signed
between the player, X, and W on 31 July 2006 valid until 30 June 2009, in
accordance with which the player is entitled to a monthly salary of … 50.
12.
In addition, the Association of Y presented a copy of its request for an
International Transfer Certificate (ITC) which it addressed to the Football
Association of X on 2 August 2006 and in which it informed the Football
Association of X of the employment contract signed between the player, X,
and W. In addition, the Association of Y presented a copy of the relevant ITC
issued by the Football Association of X on 14 August 2006.
13.
The player, X, has confirmed that he signed on with W on 31 July 2006 after
having received no response from Y to his default notice on 13 July 2006.
14.
Furthermore, the player is of the opinion that the issuance of an ITC cannot be
a suspensive condition with regard to the execution of the employment
contract. According to the player, in fact, the club has omitted to take the
necessary steps in order to receive the relevant ITC.
15.
In spite of having been invited to do so, Y has not presented any further
comments on the player’s position.
II. Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analyzed 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 on 19 July 2006,
as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005, hereinafter: the Rules) 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. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in combination with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employment3
related disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a club from … and a player from …
regarding a contractual dispute in connection with an employment contract.
4.
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 facts that the relevant contract at
the basis of the present dispute was signed on 14 June 2006 and that the claim
was lodged at FIFA on 19 July 2006. In view of the aforementioned, the
Chamber concluded that the current FIFA Regulations for the Status and
Transfers of Players (edition 2005, hereinafter: the Regulations).
5.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the case.
The members of the Chamber carefully studied the facts outlined above, which
show that the player, X, and Y signed an employment contract on 14 June 2006.
6.
The player maintains that after having undergone a medical test and having
signed the employment contract the club informed him, without any
clarification, that he should return to his country.
7.
X further asserts that he has put the club in default of its contractual
obligations on 13 July 2006. The members of the Chamber noted that the player
has failed to present any relevant documentary evidence in this regard.
8.
According to X, the club has acted in breach of the employment contract by
failing to remit the monies that were contractually due to him. Consequently,
the player asks to be awarded the total monetary value of the employment
contract, i.e. USD 65,000, plus the amount of USD 15,000 for compensation fixed
ex aequo et bono for the loss of compensation in kind and/or moral prejudice
and legal fees.
9.
The Chamber noted that Y has acknowledged that it entered into an
employment contract with the player, X.
10. In its defence, Y merely refers to the alleged late delivery of the ITC for the
player in question and the fact that the player had signed on with W when the
ITC was sent to the Association of Y. In this respect, the members of the
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Chamber agreed that any late delivery of an ITC can be no valid reason to
terminate or not to execute an employment contract.
11. Y has failed to comment on the player’s assertion that the club had sent him
home without any clarification. Y not having refuted the player’s statement in
this regard, the Chamber accepted the pertinent statement of the player as
confirmed.
12. Furthermore, the club has remained silent on any payment that it may have
made to the player, X, on the basis of the relevant employment contract,
especially taking into consideration that a first payment of the amount of USD
25,000 fell due upon the date of the signing of the employment contract.
Furthermore, the player was entitled to monthly payments of USD 4,000.
Therefore, and taking into consideration the player’s financial claim, the
Chamber concluded that no payments have been made by the club to the
player.
13. On the other hand, the Chamber was eager to point out that as early as on 31
July 2006, i.e. 18 days after the player allegedly put the club in default of its
obligations and 11 days after he lodged his claim in front of FIFA, the player
signed on with another club, W.
14. Nonetheless, in the light of the findings under points II.10, II.11, and II.12
above, the Chamber decided that Y is to be held responsible for the early
termination of the employment contract and that the club has acted in breach
of its contractual obligations. Consequently, taking into consideration Art. 17.1
of the Regulations and the constant jurisprudence of the Dispute Resolution
Chamber, the Chamber decided that the player is entitled to receive an amount
of money as compensation in addition to any outstanding payments on the
basis of the relevant employment contract.
15. The Chamber then turned to the player’s financial claim which includes the
monetary value of the employment contract as from its starting date until the
date of its expiry, i.e. USD 65,000, which includes USD 25,000 that fell due on 14
June 2006 and USD 40,000 falling due in 10 monthly equal instalments of USD
4,000, as well as the amount of USD 15,000 as compensation for the loss of
compensation in kind and/or moral prejudice and legal fees.
16. Equally, the Chamber took into account that the player entered into an
employment contract with another club on 31 July 2006.
17. On account of the above, the Chamber concurred that the player, X, is entitled
to receive any outstanding monies on a pro rata temporis basis, i.e. the monies
relating to the month of July 2006. Consequently, the Chamber decided that X
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is entitled to receive the amount of USD 2,500 relating to the signing-on fee (on
the basis of a 10 months’ period of time) and USD 4,000 relating to the salary
for July 2006.
18. As far as the player’s alleged loss of compensation in kind is concerned, the
Chamber decided that, in the case at stake, it could not take such claim into
consideration in the light of the facts that no documentary evidence
corroborating any amount that the player might have been entitled to in this
regard has been presented and that the relevant employment contract does not
indicate any value or quality pertaining to such benefits.
19. In the light of all of the above-mentioned considerations, including the findings
under points II.7 and II.13, the Chamber agreed that a compensation to the
amount of USD 10,000 is appropriate in the specific case at hand.
20. The members of the Chamber equally decided that in accordance with article 15
par. 3 of the Rules no compensation for legal costs allegedly incurred shall be
granted to the player.
21. Taking into consideration all of the above, the Chamber decided that Y is liable
to pay to X the amount of USD 16,500.
*****
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III. 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 16,500 to the Claimant
within 30 days as from the date of notification of this decision.
3.
In the event that the amount of USD 16,500 is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the
aforementioned deadline and the present matter shall be submitted to the FIFA
Disciplinary Committee.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to inform the Respondent immediately of the bank
account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
6.
According to art. 61 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:
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 Valcke
General Secretary
Enclosed: CAS directives
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