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
Mario Gallavotti (Italy), Member
Ivan Gazidis (USA), Member
Theo van Seggelen (Netherlands), Member
Carlos Soto (Chile), Member
on the claim presented by
the player, X, B,
represented by Mr Z, Attorney at Law
as Claimant
against
the club, Y, G,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 15 July 2005, the player X and the football club Y concluded an employment
contract valid from the date of signature until 30 June 2007. According to the
said contract, the player was entitled to receive, inter alia, a monthly salary of
EUR 745 and the additional amount of EUR 120,000 which was to be paid
according to the following schedule:
30 September 2005:
30 December 2005:
30 March 2006:
30 September 2006:
30 December 2006:
30 March 2007:
2.
EUR 20,000
EUR 20,000
EUR 20,000
EUR 20,000
EUR 20,000
EUR 20,000
On 3 January 2007, the player X contacted FIFA via his legal representative and
explained that he had not received the above-mentioned instalments due on 30
September 2006 and 30 December 2006, respectively. Furthermore, Y had
allegedly not paid him premiums amounting to EUR 2,400, which he had been
entitled to receive in accordance with the internal regulations of the club.
Consequently, by means of his complaint, the player X claimed from Y the
allegedly outstanding amount of EUR 42,400. The player furthermore declared
that, in case the relevant sum was not paid until 5 January 2007, he requested to
receive, as compensation for the non-respect of contractual obligations, the
remaining value of the contract composed by the following amounts:
Monthly salaries January 2007 – June 2007:
Easter Bonus:
Holiday Allowance:
Instalment due on 30 March 2007:
Total:
EUR 4,470
EUR
372.50
EUR
372.50
EUR 20,000_____
EUR 25,215
3.
Furthermore, the player demanded the termination of the labour agreement
concluded with Y due to the alleged breach of contract on the part of the club.
4.
On 5 January 2007, the player declared that, with immediate effect, he would not
participate in any official activities of Y until FIFA issued a decision regarding the
present case.
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Player X, B / Club Y, G
5.
By letter dated 10 January 2007, Y explained that since September 2006, the
player X had been negotiating with the president and CEO of Y, since the player
had expressed his wish to transfer to another football club in January 2007. On 28
December 2006, the parties had allegedly come to an oral understanding,
according to which the player had agreed to waive his right to the relevant
instalments for September and December 2006, amounting to EUR 20,000 each, in
case Y would allow the player to freely negotiate his transfer without the club
claiming any compensation for the respective transfer.
6.
Y furthermore declared that as soon as it had received the claim of the player on
5 January 2007, it had immediately proceeded to contact the player in order to
settle the outstanding instalments. However, the player as well as his legal
representative had apparently been unavailable during the entire day. In this
respect, the club alleged that the player had set the short time limit of just two
days on purpose in order to have a reason to claim the remaining value of the
contract.
7.
In order to safeguard its rights, Y claimed having prepared an “Out-of-Court
Complaint and Invitation” dated 7 January 2007 which was to be presented to
the player along with a cheque in the amount of EUR 42,400. In the said
document, it was held that, should the player refuse to accept the cheque or be
absent from home, the cheque would be deposited with the “Deposit and Loans
Fund” on the same day, allegedly in compliance with a regular legal procedure in
G which a debtor must follow in case the payee refuses to receive his/her dues or
cannot be located. The player X was also asked to return to the club and to
participate in its activities in accordance with the relevant employment contract.
The said “Out-of-Court Complaint and Invitation” was served by a court bailiff to
the player’s wife on 9 January 2007, since the player X was not at home.
However, the player’s wife had refused to accept the cheque in the amount of
EUR 42,400.
8.
The club finally maintained that it had never been in default of its financial
obligations towards its players and that the respective initial failure to pay the
outstanding instalments was due to the oral agreement which had apparently
been reached with the player. Consequently, Y requested the Dispute Resolution
Chamber not to accept the unilateral termination of the employment contract
and not to condemn the club to pay the amount of EUR 25,215 claimed by the
player X.
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Player X, B / Club Y, G
9.
On 10 January 2007, FIFA received a statement of the player, according to which
he had never orally agreed to waive his right to the instalments for September
and December 2006. Furthermore, the player had always been available in case
the club had wished to contact him upon the filing of his claim. The player also
deemed that, if the club had really intended to immediately pay the outstanding
instalments, it would have been able to pay them directly to his bank account
instead of presenting the cheque by a court bailiff; even more so in view of the
fact that, since July 2005, the club had been paying all remuneration due to the
player to his bank account.
10.
On 17 January 2007, the player declared having received the amount of EUR
42,400 from the “Deposit and Loans Fund” on 15 January 2007. However, the
player insisted on the breach of contract on the part of the club and the
termination of the contract, inter alia, since the professional relationship
between the parties had allegedly been irretrievably severed.
11.
On 18 January 2007, the club Y contacted FIFA and declared that by collecting the
amount of EUR 42,400, the player had in essence accepted the settlement of his
dues by the club, which is why the case at hand was to be closed. Y also expressed
its clear wish to keep the player in question. In this respect, the club explained
that the instalments for September and December 2006 did not represent wages
for rendered services, but scheduled instalments on the basis of a contract which
expires in June 2007, i.e. prepaid money in consideration of the player’s good
performance during the entire contract period. Consequently, if the player should
be released from his contractual obligations, he would have received money for
services not rendered and, thereby, enriched himself unjustly. Finally, the Y
presented two witness statements from the vice president of the club and a sports
journalist, according to which the invoked oral agreement between Y and the
player X regarding the player’s alleged waiver had indeed been concluded.
12.
By letter dated 26 January 2007, the club raised the question why X had only filed
his claim in January 2007, although the instalment of September 2006 had
already been due for four months. Y maintained that the player’s claim had been
lodged just before the registration period in order for the player to be released
from his contractual obligations to negotiate his transfer to another club without
the consent of Y. Furthermore, the club indicated that it continued to pay the
rent of the player as well as to provide him with one of the club’s vehicles,
allegedly demonstrating that the player was still in the services of the club and
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Player X, B / Club Y, G
that the Dispute Resolution Chamber had no reason to ratify the termination of
the relevant contract.
13.
By correspondence dated 26 January 2007, the player X decidedly refuted the
statement of the club, according to which the instalments of September and
December 2006 were some sort of prepayment, invoking that there was no term
or condition regarding the payment of those amounts. Consequently, according
to the player, the statement of the club that he had become richer without just
cause was inadmissible. The player also contested the witness statements
provided by Y, since there had never been such an oral agreement as invoked by
the club. The player concluded that, in any case, oral conversations could not
constitute an amendment to a valid contract.
14.
On 12 February 2007, FIFA was informed by the player X that, on 27 January 2007,
he had moved from the apartment provided by Y and returned the club’s car.
15.
On 13 February 2007, Y informed FIFA, in response to the player’s statement that
the club could have paid the outstanding instalment directly to his bank account,
that the payment policy of Y had never been to settle payments by making
deposits to its players’ bank accounts. Instead, all players received their due
amounts by cheques and signed corresponding receipts. Respective receipts
bearing the stamp of the club as well as the signature of the player X were
presented to FIFA on 20 February 2007. Furthermore, Y raised the question as to
why the player insisted in his action against the club, since the fact that the club
had handed out the money to the player and that the player accepted it
constituted a good and material cause for dismissing the player’s application as
inadmissible, as allegedly established in international and EU sports
jurisprudence. By means of the same correspondence, the Y also informed FIFA
that the player had abandoned his team and returned to B, without waiting for
the relevant decision of the Dispute Resolution Chamber.
16.
On 13 March 2007, the player X reiterated his previous position and added that
the club had sometimes paid him by cheque and sometimes transferred his
remuneration to his bank account. The player furthermore pointed out that the
fact that Y had finally paid the outstanding amount of EUR 42,400 did not annul
the breach of contract on the part of the club and the just cause for the
termination of the contract. Finally, the player X declared having left G on 27
January 2007, inter alia since the club had asked him to vacate the apartment and
give back the car which was at his disposition. Therefore, and since there was no
5
Player X, B / Club Y, G
meaning in staying in G because he had terminated the contract for just cause, he
had decided to return to his country with his family.
17.
On account of all of the above, the player X requests the Dispute Resolution
Chamber to validate the termination of the relevant contract for just cause and to
condemn Y to pay to the player compensation for breach of contract amounting
to EUR 25,215. The club Y requests the Dispute Resolution Chamber to drop the
claim of the player X as inadmissible.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyse whether it was
competent to deal with the matter at hand. In this respect, it referred to art. 18
paras. 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 3 January 2007, as a consequence the Dispute Resolution
Chamber concluded that the revised Rules Governing Procedures (edition 2005)
on matters pending before the decision making bodies of FIFA are applicable on
the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1
of the above-mentioned 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 connection with art. 22 b) of the
aforementioned Regulations, the Dispute Resolution Chamber shall adjudicate
on employment-related disputes between a club and a player that have an
international dimension.
3.
Therefore, the Dispute Resolution Chamber concluded that is the competent
body to decide on the present litigation involving a player from B and a club
from G regarding a dispute in connection with the employment contract
concluded between the said parties on 15 July 2005.
4.
Subsequently, the Dispute Resolution 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 paras. 1 and 2 of the Regulations for the Status and Transfer of Players
6
Player X, B / Club Y, G
(edition 2005) and, on the other hand, to the circumstances that the relevant
contract had been concluded on 15 July 2005 and that the player’s claim was
lodged with FIFA on 3 January 2007. In view of the aforementioned, the Dispute
Resolution Chamber concluded that the current FIFA Regulations for the Status
and Transfers of Players (edition 2005, hereinafter; the Regulations) are
applicable in the case at hand as to the substance.
5.
Entering into the substance of the matter, the Dispute Resolution Chamber
deemed that first and foremost it had to focus on the question whether the
employment contract concluded between the Claimant and the Respondent on
15 July 2005, valid from the date of signature until 30 June 2007, had been
terminated by the Claimant for just cause or not.
6.
Firstly, the Chamber acknowledged that the player X considered the failure of
the club Y to pay the instalments which had become due on 30 September 2006
and 30 December 2006, respectively, as well as premiums amounting to EUR
2,400 to constitute a just cause for the termination of the relevant employment
contract.
7.
Furthermore, the members of the Dispute Resolution Chamber noted that by
means of his complaint dated 3 January 2007, the player X had announced his
intention to terminate the contract and had set a deadline of two days in order
for the club to pay the outstanding amount, in default of which the player
would claim the remaining contract value as compensation for breach of
contract.
8.
In this respect, the Dispute Resolution Chamber noted that the club had, upon
having been confronted with the player’s claim, promptly drafted an “Out-ofCourt Complaint and Invitation” which was served to the player’s wife by a court
bailiff on 9 January 2007. Furthermore, the court bailiff had at the same time
apparently been entrusted with the delivery of a cheque in the amount of the
then outstanding installments and premiums which, in case it could not be
handed out to the player, was to be deposited with the “Deposit and Loans
Fund”. In this regard, the Dispute Resolution Chamber paid due consideration to
the fact that the statement of Y, according to which this proceeding constituted
a regular legal procedure in G which a debtor must follow in case the payee
refuses to receive his/her dues or cannot be located, had not been contested by
the player X. The player had instead replied that the club could have transferred
the outstanding amount to his bank account, since this had allegedly always
7
Player X, B / Club Y, G
been the regular payment procedure since July 2005. In this respect, the
members of the Dispute Resolution Chamber took due note of the fact that this
assertion of the player had proved to be inaccurate, as evidenced by the club and
also acknowledged by the player in his correspondence dated 13 March 2007.
9.
With regard to the foregoing, the Chamber acknowledged that, whereas the
wife of the player X had accepted the “Out-of-Court Complaint and Invitation”
on 9 January 2007, she had apparently refused to receive the cheque in the
amount of EUR 42,400 which had been presented to her by the court bailiff. In
this respect, the Chamber ascertained that the player had neither contested the
respective allegation nor presented any justification for this refusal on the part
of his wife. As to the subsequent argument of the player, according to which the
cheque presented by the court bailiff could not be verified immediately as to
whether it was covered or not, the Chamber did not find this reasoning to be
entirely convincing, since the player had apparently regularly received his
remuneration from the club by means of cheques without alleging any problems
in this respect.
10.
The Dispute Resolution Chamber furthermore observed that the player X had
omitted to present any evidence to the Chamber demonstrating that he had
unsuccessfully attempted to receive the outstanding installments and premiums
from Y or put the club in default before lodging his claim with FIFA. The Dispute
Resolution Chamber also took note of the fact that the player had stopped
rendering his services for the club as of 5 January 2007 and had left G before the
Dispute Resolution Chamber had been able to come to a decision in the present
case. In view of the foregoing, the Chamber found that the player X had failed
to demonstrate that he had undertaken any efforts whatsoever with the aim of
reaching an amicable settlement to the present matter before proceeding to the
termination of the contract and the filing of his claim with FIFA at the beginning
of the commencing transfer period.
11.
On account of the above, and particularly in view of the strikingly short time
limit set by the player for the club to settle the outstanding amount, the
members of the Dispute Resolution Chamber found that they had no alternative
but to doubt that the player X had acted in good faith in the present case.
Notwithstanding the question whether or not there had been an oral agreement
between the player and the club with regard to the outstanding instalments for
September and December 2006, the Chamber considered that the club had, as
soon as it for the first verifiable time had been confronted with the player’s
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Player X, B / Club Y, G
claim, promptly proceeded to the payment of the outstanding amount, this
apparently and uncontestedly in accordance with a procedure stipulated by the
national law of G, and that therefore the circumstances at hand did not justify a
termination of contract for just cause on the part of the player B.
12.
The members of the Dispute Resolution Chamber were also eager to stress that
the club had apparently never been in default of the player’s monthly salaries,
which had uncontestedly been duly paid by the Respondent. In this respect, the
Chamber pointed out that the outstanding amount of EUR 42,400 had not been
composed by the player’s monthly salaries, but by scheduled payments stipulated
in the relevant employment contract and premiums for matches. The Dispute
Resolution Chamber also took into account that the club had reiterated its
interest in keeping the player X and had apparently continued to pay the
player’s rent and place a car at the player’s disposal even after he had lodged his
claim. Consequently, the Chamber found that it could not agree with the
allegations of the player X, according to which the club had acted in bad faith
towards him.
13.
In view of all of the above-mentioned circumstances surrounding the present
case, the Dispute Resolution Chamber determined that the club Y could not be
considered to have committed a breach of contract justifying a termination of
the relevant agreement for just cause and the payment of a corresponding
compensation. Therefore, the Chamber established that the contract at the basis
of the present dispute was still valid.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is rejected.
2.
It is established that a valid contractual relationship still exists between the
Claimant, X, and the Respondent, Y.
3.
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,
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Player X, B / Club Y, G
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:
Château de Béthusy
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
[email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Urs Linsi
General Secretary
Encl.
CAS directives
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Player X, B / Club Y, G