Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 April 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (The Netherlands), member
Carlos Soto (Chile), member
Ivan Gazidis (USA), member
Mario Gallavotti (Italy), member
on the claim presented by the club
X, ,
as Claimant/Counter-Respondent
against the player
Y,
as Respondent/Counter-Claimant
and the club
Z,
as intervening party
regarding a contractual dispute between
the club and the player and his new club.
I.
Facts of the case
1.
The player Y, the Respondent/Counter-Claimant (hereafter: the player) and the
club, X, the Claimant/Counter-Respondent (hereafter: the Claimant) concluded an
employment contract valid from 2 August 2006 until 30 June 2007.
2.
On 12 January 2007, the player notified the Claimant in writing of the termination
of the above-mentioned contractual relationship, in his opinion for just cause,
since the Claimant apparently did not fulfil its contractual obligations.
3.
In principle, the player emphasised that he signed two employment contracts with
the Claimant. However, the player maintained that only the employment contract
providing for a lower salary was registered with the Association of Football
xxxxxxx. Furthermore, the player explained that the Claimant failed to fulfil its
contractual obligations as provided for in the alleged non-registered employment
contract, which foresaw better contractual terms as the employment contract
registered with the Association of Football xxxxxxx.
4.
In particular, the player claimed that the Claimant failed to fulfil its contractual
obligations with regard to his salaries and bonuses for the months of November
(partly) and December 2006, his accommodation as well as the transportation costs
for his family members. A copy of the non-registered employment contract duly
signed by both parties was submitted by the player during the investigationproceedings of the present matter.
5.
On 17 January 2007, the player and the club, Z, signed an employment contract for
three years.
6.
On 13 February 2007, the Single Judge of the Players’ Status Committee
authorized the Football Federation of xxxxxx to provisionally register the player,
with its club Z with immediate effect.
7.
On 12 March 2007, the Claimant lodged a complaint against the player for breach
of contract. The Claimant explained that it had signed an employment contract
with the player valid from 2 August 2006 until 30 June 2007, which it had always
fulfilled. However, the player did not resume his duties after the holidays and thus
prematurely terminated the employment contract without valid reason.
8.
According to the copy of the employment contract, remitted by the player and the
Claimant, the player was entitled to receive the amount of USD 60,000 as signingon fee, the amount of USD 60,000 for his transfer and a monthly salary of USD
6,000 payable during 10 months. Equally, the employment contract foresaw,
subject to the internal regulations, that in December 2006 the Claimant would
pay, based on the player’s performance (8 and more goals), an additional payment
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of USD 30,000 in December (no specific date) and USD 30,000 will be payable
periodically during 5 months. Moreover, the Claimant should provide the player
with two roundtrip tickets for the player and two family members as well as food,
accommodation, visa and medical insurance.
9.
The Claimant provided along with its submission a payment receipt duly signed by
the player in the amount of USD 120,000 dated 16 August 2006, as well as three
payment receipts duly signed by the player in the amount of USD 6,000 each dated
18 September 2006, 13 October 2006 and 14 November 2006, a bank transaction
document dated 29 December 2006 in the amount of USD 5,940 (beneficiary: Y) as
well as one payment receipt dated 10 December 2006 in the amount of USD 4,000.
The aforementioned payment receipt dated 10 December 2006 also contains a
handwritten confirmation of the player’s acknowledging receipt of flight tickets
(no further specification).
10.
The Claimant explained that the player left to xxxx for Christmas holidays and
never resumed duties, although he should have returned by the 4 of January 2007
at the latest, but on 12 January 2007, the player notified the Claimant about the
termination of the employment contract.
11.
The Claimant underlined that it paid all due amounts, salaries, signing-on fee and
“transfer compensation” until the player left to xxxxx for the Christmas break.
Moreover, the Claimant emphasized that the bonus amounting to USD 30,000 was
not unconditionally due, since as clearly stipulated in the contract it was subject to
the internal regulations and the payment date was not even contractually agreed.
12.
As a result, the Claimant is of the opinion that the player breached the
employment contract without just cause and should therefore be liable to pay
the amount of USD 80,000 as compensation for the unjustified breach of contract.
Equally, the player’s new club, Z, should be held jointly liable for the payment of
the aforementioned compensation for the player’s breach of contract.
13.
On 21 March 2007, the players’ new club as intervening party explained that it
always acted according to the FIFA rules since the player informed it that he was
no longer bound to any club. As a result, the player’s new club, Z, rejects the claim
of the Claimant.
14.
On 23 March 2007, the player insisted that the Claimant breached the employment
contract. In particular, the player explained that he signed two employment
contracts, whereby one contract stipulated a higher remuneration (no
specification). The player maintained that the Claimant registered only the
contract which foresaw a lower salary, i.e. apparently a monthly salary of USD 290.
The player is of the opinion that the Claimant has breached the FIFA regulations
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by signing two employment contracts and only registering one contract with the
Association of Football xxxxxxxx.
15.
The player further explained that the Claimant breached the employment contract
since it never provided him with the pertinent airplane tickets for his family
members. The player also affirmed that the Claimant did not provide him with the
contractually agreed apartment and therefore he had to stay in a hotel. Equally,
the player claimed that the Claimant did not provide him with the contractually
agreed medical insurance and that the Claimant did not provide any evidence that
it paid the salary for the month of December 2006 as well as the bonus amounting
to USD 30,000 due in December 2006.
16.
In view of the above, the player is of the opinion that he terminated the contract
with just cause on 12 January 2007 due to the Claimant’s failure to fulfil its
contractual obligations. The player reiterated that the Claimant only registered
the “lower” contract, in the sense of the financial terms, and in this way the
Claimant breached the FIFA regulations.
17.
With regard to the bank transaction document dated 29 December 2006 in the
amount of USD 5,940 (beneficiary: Y) presented by the Claimant, the player
explained that the said amount was paid to him as bonus since the Claimant won
the national championship and not as salary for the month of December 2006. The
player emphasised that if the said amount would have concerned his salary for the
month of December 2006 the Claimant would have also submitted a duly signed
payment receipt in this respect.
18.
As a result, the player claims the amount of USD 90,000 (bonus of USD 30,000
payable in December 2006, bonus of USD 30,000 payable periodically during five
months, USD 2,000 salary for November 2006, USD 6,000 salary for December 2006,
USD 6,000 two airplane tickets and the amount of USD 16,000 for his alleged costs
in connection with the not provided apartment during 6 months).
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 on 12 March 2007,
as a consequence the Chamber concluded that the revised Rules Governing
procedures (edition 2005) on matters pending before decision making bodies of
FIFA are applicable to the matter at hand.
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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 employmentrelated 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 an xxxx club and a xxxx player regarding
a 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 fact that the relevant contract at the
basis of the present dispute was signed in August 2006 and the claim was lodged
at FIFA on 12 March 2007. In view of the aforementioned, the Chamber concluded
that the current FIFA Regulations for the Status and Transfer of Players (edition
2005, hereafter: the Regulations) are applicable to the case at hand as to the
substance.
5.
In continuation, the members of the Chamber acknowledged the abovementioned facts as well as all the further documentation contained in the file.
6.
To that regard, the members acknowledged that the player and the Claimant
signed an employment contract in August 2006 that was due to run until 30 June
2007. Furthermore, the Chamber noticed that, the player asserts having signed
two employment contracts, whereas the contracts apparently differ from the
financial conditions and only one contract was registered with the Association of
Football xxxxxx.
7.
In this context, the members took due note of the fact that the player did not
provide any documentary evidence in order to corroborate his allegations with
regard to the signing of two employment contracts.
8.
Notwithstanding of the above, the Chamber took note of the fact that
independent from the fact which employment contract was actually registered
with the relevant association, presuming that actually more than one contract had
been signed, the Claimant seems to have complied with the terms of the
employment contract providing for a higher remuneration for the player,
respectively the only copy of an employment contract remitted during the present
proceedings by the player and the Claimant. This appreciation seems to be
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corroborated by the fact that the player is not disputing that the Claimant fulfilled
its financial obligations towards him until November 2006.
9.
In view of the above considerations, the Chamber concluded that it could not
follow the appreciation of the player with regard that the Claimant had breached
the FIFA Regulations for the Status and Transfer of Players with respect to the
alleged signing of two different employment contracts, respectively the
registration of only one of them.
10.
For the sake of good order, the Chamber emphasised that it is well-known that
clubs and players sign a standard/official employment contract which is usually
registered within the relevant association and a private employment contract
which frequently provides for better financial conditions towards the players. The
members of the Chamber maintained that such conduct is, in principle, reproached
if it is used to mislead the players and affect their contractual rights, which seems
rather not have been the case in the matter at stake.
11.
Subsequently, the members of the Chamber turned their attention to the
contractual terms of the only copy of the employment contract at their disposal
valid as from 2 August 2006 until 30 June 2007. In this connection, the Chamber
took due note that, the player was entitled to receive the amount of USD 60,000
as signing-on fee, the amount USD 60,000 for his transfer and a monthly salary of
USD 6,000 payable during 10 months. Equally, the employment contract foresaw,
subject to the internal regulations, that in December 2006 the Claimant would
pay, based on the player’s performance (8 and more goals), an additional payment
of USD 30,000 in December (no specific date) and USD 30,000 will be payable
periodically during 5 months. Moreover, the Claimant should provide the player
with two roundtrip tickets for the player and two family members as well as food,
accommodation, visa and medical insurance.
12.
In continuation, the Chamber took due note that the parties are not contesting
that the relevant employment relationship was prematurely terminated, when the
player went to xxxxx in December 2006 for the Christmas holidays and never
resumed duties with the Claimant.
13.
Consequently, the Chamber established that the relevant employment contract at
the basis of the present dispute was prematurely terminated within the first
contractual year.
14.
Subsequently, the Chamber acknowledged that the parties have contradictory
positions with regard to the reasons for the premature termination of the
employment relationship. On the one hand, the Claimant is of the opinion that
the player breached the employment contract without just cause by not resuming
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his duties after the Christmas holidays although the employment contract was still
to run until 30 June 2007.
15.
On the other hand, and turning its attention to the player’s position, the Chamber
took due note that the player maintained that he had terminated the
employment contract in January 2007 with just cause since the Claimant had failed
to fulfil its contractual obligations towards him. In particular, the player
maintained that the Claimant did not pay him the salaries for November (partly)
and December 2006 as well as the bonus amounting to USD 30,000 due in
December 2006 and the bonus of USD 30,000 payable periodically during five
months, failed to provide him with the contractually agreed medical insurance and
an apartment and therefore he had to stay in a hotel as well as that the Claimant
did not provide him with the pertinent airplane tickets for his family members.
16.
As a result, the Chamber took due note of the fact that the Claimant is claiming
the amount of USD 80,000 as compensation for the player’s breach of contract.
And that the player is claiming the amount of USD 90,000 for the Claimant’s
breach of contract, corresponding to the bonus of USD 30,000 payable in
December, bonus of USD 30,000 payable periodically during five months, USD
2,000 salary for November 2006, USD 6,000 salary for December 2006, two airplane
tickets and the amount of USD 16,000 for his alleged costs in connection with his
apartment during 6 months.
17.
In view of the above, the Chamber proceeded to deliberate whether an unjustified
breach of the employment contract between the Claimant and the player had
been committed and which party was responsible for such breach of contract and
to verify and decide if sanctions for breach of contract have to be applied.
18.
The Chamber started its deliberations by maintaining that based on the
information provided it can be established that the player rendered his services to
the Claimant as from August 2006 until December 2006.
19.
In view of the above, the Chamber pointed out that according to the employment
contract the player was entitled to receive for the period of time as from August
2006 until 30 June 2007 ten salaries amounting each to USD 6,000. Equally, the
Chamber emphasised that it is uncontested by the parties that the player received
the amount of USD 120,000 in August 2006. As a result, the Chamber concluded
that for the time the player effectively rendered his services to the Claimant he
should have received four-times the amount of USD 6,000 as salaries, i.e. the
amount of USD 24,000.
20.
In this respect, the Chamber took due note that the Claimant provided three
payment receipts duly signed by the player in the amount of USD 6,000 each dated
18 September 2006, 13 October 2006 and 14 November 2006, a bank transaction
document dated 29 December 2006 in the amount of USD 5,940 (beneficiary: Y) as
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well as one payment receipt dated 10 December 2006 in the amount of USD 4,000.
The Chamber also acknowledged that the player has not contested that he had
received the aforementioned total amount of USD 27,940.
21.
Yet, the Chamber noted that the player maintained that he had not received part
of his November 2006 salary in the amount of USD 2,000 as well as his December
2006 salary because the amount of USD 5,940 (bank transaction dated 29
December 2006) was paid to him as bonus since the Claimant won the national
championship and not as salary for the month of December 2006.
22.
In this context, the Dispute Resolution Chamber referred to the legal principle of
the burden of proof, which is a basic principle in every legal system, according to
which a party deriving a right from an asserted fact has the obligation to prove
the relevant fact (cf. art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber).
23.
In view of the above-mentioned principle, the Chamber emphasized that due to
the lack of proof with regard to the player’s allegations related to the alleged
non-fulfilment of the Claimant’s financial obligations towards him with regard to
the November and December 2006 salaries and bearing in mind the considerations
under the above points II. 19-20, the Dispute Resolution Chamber decided that the
Claimant paid all salaries due to the player for the time he actually rendered his
services to the Claimant and thus rejected the player’s claim in this respect. For the
sake of good order, the Chamber emphasised that the player’s position with
regard that if the amount USD 5,940 (bank transaction dated 29 December 2006)
would have concerned his salary for the month of December 2006 the Claimant
would have also submitted a duly signed payment receipt in this respect, could not
be upheld, due to the clear fact that having the player left the Claimant by the
beginning of December 2006 it was impossible for him to sign a payment receipt
on 29 December 2006.
24.
As a result, the Chamber concluded that as far as the alleged unpaid salaries are
concerned the player’s claim is rejected.
25.
In continuation, the members of the Chamber turned their attention to the
player’s claim with regard that the Claimant has failed to provide him with the
contractually agreed medical insurance as well as the apartment and therefore he
had to stay in a hotel bearing costs amounting to USD 16,000.
26.
As far as the medical insurance is concerned, the Chamber emphasised that the
player is not claiming any damage at all, meaning costs for a possible uncovered
treatment due to the alleged failure of the Claimant to provide him with a
medical insurance. As a result, the members of the Chamber unanimously
concluded to reject the player’s claim in this respect.
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27.
Turning its attention to the player’s allegation with regard to the alleged failure
of the Claimant to provide him with an apartment and therefore he had to stay in
a hotel bearing costs amounting to USD 16,000, the Chamber referred to the
above-mentioned principle of the burden of proof and emphasised that the player
did not provide any evidence at all to corroborate that he had to stay in a hotel
and bear the alleged costs of USD 16,000. As a result, the members of the
Chamber rejected the player’s claim in this respect.
28.
Then, the members of the Chamber turned their attention to the player’s claim
with regard that the Claimant had failed to pay him the bonus amounting to USD
30,000. In this respect, the Chamber referred to the employment contract which
stipulates that subject to the internal regulations based on the player’s
performance the player would receive an additional amount of USD 30,000
payable in December. In this context, the Chamber concluded that the said bonus
was neither unconditionally due nor was an exact date foreseen for its payment.
In other words, the Chamber emphasised that in case the preconditions would
have been met, the said amount would not have been due prior to the end of
December 2006. Yet, the Chamber also took into consideration that although the
player should have resumed duties with the Claimant by the beginning of January
2007 at the latest, he already terminated the employment contract on 12 January
2007 and signed a new employment contract with another club five days later
only, i.e. on 17 January 2007.
29.
In view of the above, the members of the Chamber deemed that a possible delay
of 5 days, bearing in mind that the bonus was not unconditionally due and that
the player was expected to resume duties with the Claimant on 4 January 2007 at
the latest, cannot be considered as a breach of contract by the Claimant e
contrario a just cause for the player to prematurely terminate the employment
contract.
30.
Bearing in mind all of the above considerations, the members of the Chamber also
concluded that the alleged failure of the Claimant to provide the player with the
pertinent airplane tickets for his family members does not constitute a just cause
for the player to prematurely terminate the employment contract signed with the
Claimant, i.e. not resume duties with the Claimant after his holidays.
31.
Finally, the members of the Chamber turned their attention to the player’s claim
with regard to the periodical bonus of USD 30,000, which according to the
employment contract should be paid to the player subject to the internal
regulations, periodically during 5 months. To this regard the Chamber concluded
that following the terms of the contract the said bonus was to be paid periodically
during the second half part of the contractual terms, i.e. not prior to the end of
January 2007. As a result, the Chamber deemed that the non-payment of the said
periodical bonus cannot be considered as a breach of contract by the Claimant,
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particularly, taking into account that the player already terminated the
employment contract in the beginning of January 2007.
32.
On account of all of the foregoing, the members of the Chamber decided
unanimously that the player did not have justifiable reasons for not resuming
duties with the Claimant after the holidays in January 2007. As a result, the
Chamber concluded that the player had breached the employment contract signed
with the Claimant and should therefore be liable to pay compensation to the
Claimant.
33.
As to the amount of compensation for the unjustified breach of contract, and
considering the objective criteria listed in art. 17 par. 1 of the Regulations the
Chamber decided that a compensation of USD 80,000 as requested by the
Claimant is adequate in view of the fact the relevant employment contract would
still run until 30 June 2007 and that the Claimant paid to the player a signing-on
fee amounting to USD 120,000 (USD 60,000 as signing-on fee and USD 60,000 for
his transfer).
34.
In light of the above, the Dispute Resolution Chamber decided that the
employment relation between the Claimant and the player has been terminated
and that the player has to pay to the Claimant the amount of USD 80,000 as
compensation for breach of contract within the first contractual year.
35.
Then, the members of the Chamber turned to the question of the sporting
sanctions to be imposed on the player in accordance with art. 17 par. 3 of the
Regulations.
36.
In this respect, the Chamber referred to the basic sanction of four months on the
player’s eligibility to participate in any official football matches in case of an
unjustified breach of contract by a player. Moreover, the Chamber referred to the
fact that the breach occurred during the so-called protected period, since it
occurred during the first year following the entry into force of the relevant
employment contract.
37.
In view of the above, the members of the Chamber decided that the player had to
be sanctioned with a restriction of four months on his eligibility to participate in
any official football matches. This sanction shall take effect from the start of the
first season of the player’s current club following the notification of the present
decision.
38.
Finally, the Chamber referred to art. 17 par. 2 of the Regulations and concluded
that the player’s new club, Z, shall be jointly and severally liable for the
compensation payable by the player for the breach of contract to the Claimant.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant/Counter-Respondent, X, is accepted.
2.
The counter-claim submitted by the Respondent/Counter-Claimant, Mr Y, is
rejected.
3.
The Respondent/Counter-Claimant, Mr Y, is ordered to pay the amount of USD
80,000 to the club X within 30 days as of notification of the present decision.
4.
The club Z is jointly and severally liable for the payment of the above-mentioned
amount if the same is not paid within one month of notification of the present
decision.
5.
If the aforementioned amount is not paid within the stated deadline, an interest
rate of 5% per year shall apply, as from expiry of the stated deadline.
6.
A restriction of four months on his eligibility to play in official matches is imposed
on the player Y. This sanction shall take effect from the start of the first season of
the player’s current club following the notification of the present decision.
7.
In case of non-compliance of the present decision within the relevant time frames,
the matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
8.
The
Claimant/Counter-Respondent,
X,
is
directed
to
inform
the
Respondent/Counter-Claimant, Mr Y, directly and immediately of the account
number to which the remittance is to be made, and to notify the Dispute
Resolution Chamber about the receipt of any payment.
9.
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:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
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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
Enclosed: CAS directives
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