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
Wilfried Straub (Germany), member
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
Gerardo Movilla (Spain), member
on the claim presented by the player
Xxx, Xxx,
represented by Mr Xxx, advocate,
as Claimant
against the club
Xxx, Xxx,
as Respondent
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 3 November 2003, the Xxx club, Xxx (hereinafter: the Respondent), and the
Xxx player, Xxx (hereinafter: the Claimant), signed a cancellation agreement, by
means of which the employment contract between them dated 29 July 2003 was
dissolved with immediate effect by mutual agreement. In the said agreement
the Respondent undertook to pay the Claimant the sum of USD 20,000 on 4
November 2003. Furthermore, the Respondent also undertook to transfer the
Claimant a further USD 20,000 to a bank account in the Netherlands by 30
November 2003. For the event that the said money transfer was not made by the
agreed date, the Claimant reserved the right to institute legal proceedings
before the Xxx Football Association and the Xxx Professional League.
2.
By letter dated 25 October 2005, the Claimant requested the Respondent to pay
the outstanding second settlement instalment of USD 20,000 plus default
interest.
3.
The Respondent subsequently stated that it was only prepared to pay USD 10,000
in cash, however, which was rejected by the Claimant.
4.
On 1 November 2005, the Claimant filed an action against the Respondent with
FIFA. The Claimant argued that the Respondent has not met its financial
obligations from the contract dissolution agreement dated 3 November 2003. In
particular, he calls upon the Respondent to pay the allegedly outstanding sum in
the amount of USD 20,000 plus default interest and legal fees in the amount of
EUR 2,500.
5.
The Respondent omitted to respond to the action brought by the Claimant,
despite having been requested to do so by FIFA in letters dated 7 March and 11
May 2006.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyze 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 1 November 2005, as a consequence the Chamber
concluded that the revised Rules Governing Procedures (edition 2005) to matters
Player Xxx, Xxx / Club Xxx, Xxx
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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 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 a Xxx player and a Xxx club regarding
a dispute in connection with the cancellation agreement to 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 cancellation
agreement at the basis of the present dispute was signed on 3 November 2003
and the claim was lodged at FIFA on 1 November 2005. 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, and entering into the substance of the matter, the Chamber
acknowledged that on 3 November 2003 the Claimant and the Respondent
signed a cancellation agreement. In this respect, the Chamber took duly note
that according to the relevant agreement the Claimant was entitled to receive
from the Respondent the amount of USD 20,000 by 4 November 2003 and the
amount of USD 20,000 by 30 November 2003.
6.
In continuation, the Chamber acknowledged that the Claimant is in receipt of
the amount of USD 20,000 and that, therefore, based on the relevant
cancellation agreement, he claims the payment of the allegedly outstanding
second settlement installment in the amount of USD 20,000 plus default interest
and legal fees in the amount of EUR 2,500.
Player Xxx, Xxx / Club Xxx, Xxx
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7.
In this respect, the Chamber observed that the Respondent never took position
in the dispute, despite having been asked to do so by FIFA on several occasions
and underlined that in this way the Respondent renounced to its right to
defense and, thus, accepted the allegations of the Claimant.
8.
As a consequence, the Chamber concluded that the Claimant has not received
the second installment due on 30 November 2003 and that, therefore, the
amount of USD 20’000 remains outstanding.
9.
In this regard, taking into consideration the fact that the installment due on 30
November 2003 has not been paid in accordance with the relevant cancellation
agreement (cf. point II. 8), the Chamber decided that the Claimant should be
awarded default interest at a rate of 5% per year as from the date on which the
outstanding installment was due, i.e. 1 December 2003.
10.
Finally, with regard to the claimed legal expenses in the amount of EUR 2,500
the Chamber referred to its well-established jurisprudence and art. 15 par. 3 of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute Resolution
Chamber. Consequently, the Chamber decided to not award the claimed
expenses.
11.
Taking into account all of the above, the Dispute Resolution Chamber decided
that the Respondent must pay the amount of USD 20’000 plus default interest at
a rate of 5% per year as from 1 December 2003 to the Claimant.
12.
As a consequence, and having analyzed the various aspects of the present claim,
the Chamber concluded that the Claimant’s claim is partially accepted.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Xxx, is partially accepted.
2.
The Respondent, Xxx, has to pay the amount of USD 20,000 plus default interest
at a rate of 5% per year as from 1 December 2003 to the Claimant, Xxx, within
30 days as from the date of notification of this decision.
Player Xxx, Xxx / Club Xxx, Xxx
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3.
In the event that the above-mentioned amount is not paid within the stated
deadline, the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
4.
Any further claim of the Claimant, Xxx, is rejected.
5.
The Claimant, Xxx, is instructed to inform the Respondent, Xxx, immediately and
directly of the 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:
Court of Arbitration for Sport
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
Encl.
CAS directives
Player Xxx, Xxx / Club Xxx, Xxx
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