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,
as Claimant
against the club,
Y,
as Respondent and Counter-Claimant
regarding an employment-related contractual dispute between the player and the
club
I.
Facts of the case
1.
On 24 December 2005, the player, X, and the club, Y, drew up a document
entitled “borrow contract of professional player” valid for the 2005-06 season
and expiring on 1 June 2006 (hereinafter also referred to as “main
document”).
2.
Article 2 of this document refers to attachment 1 being part of the agreement.
3.
The main document does not bear any signature, whereas the said attachment
seems to bear the signature of both the club and the player involved.
4.
Article 2.1 of the main document stipulates that the club will pay “the financial
obligations” to the bank account provided by the player.
5.
Article 3.3 of the main document sets forth, inter alia, that both parties are
free from any obligation if the player fails to receive a residence and/or work
visa and that in such event the contract shall be invalid.
6.
According to article 3.4 of the main document the club and the player agree
on the immediate termination of the contract, inter alia, in the event of breach
of obligations: “Should one of the parties breach the contract, the second
party shall give notice in writing. The second party then shall have a right, 30
days after the notice, to terminate the contract immediately, if the first party is
still in breach of contract”. “The first party has the right to terminate this
contract at any time by written notice to second party.” This article further sets
forth that the second party has no right to claim any financial compensation
after the termination of the contract.
7.
According to the mentioned attachment, the player is entitled to receive a
signing-on fee of 20,000 (no currency or due date indicated), a monthly salary
of USD 2,000, free accommodation and medical treatment.
8.
The main document, inter alia, stipulates that the player is entitled to receive
one air ticket A-B-A and bonuses.
9.
On 23 May 2006, the player lodged a claim in front of FIFA maintaining that
until then Y had not paid him any salary or the signing-on fee.
10.
X asserts that he left the country of Y on 9 January 2006 in the light of his
tourist visa needing to be exchanged for a visa of a longer duration and that
this was agreed upon with the club.
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11.
According to the player, his employer cut all contacts with him and in spite of
his default notice dated 24 February 2006 he had heard nothing from the club.
12.
In the letter dated 24 February 2006 addressed by the player to Y, X refers to
the phone conversations that the parties had and he reminds the club to
provide him with the necessary administrative papers in order for him to
obtain his visa. In addition, in his letter, the player reminds the club of the fact
that he has not yet received his signing-on fee.
13.
For these reasons, X asserts that the club has acted in breach of the
employment contract and claims payment of the signing on fee of 20,000,
which according to him is payable in USD, as well as USD 12,000 pertaining to
six months’ salary, and USD 1,800 relating to the air ticket for his return to
Cameroon.
14.
The club, for its part, fully rejects the claim put forward by the player and has
presented a counter-claim for breach of contract by the player.
15.
The club acknowledges that the player arrived in the country of Y on 21
December 2005 on a tourist visa.
16.
The club confirms that the parties entered into an employment contract on 24
December 2005 with validity until 1 June 2006.
17.
According to the club, shortly after having signed the contract, the player
asked the club for leave due to personal problems, which request was rejected
by the club. Thereafter, the player allegedly started to adopt an unserious and
unprofessional behaviour during training and matches.
18.
The club states that the player once more approached the club with his request
for leave indicating that he imperatively had to leave the country ensuring
that he would return without delay. The player left the country of Y on 9
January 2006.
19.
The club asserts that in spite of the player’s conduct, it paid to the player his
first monthly salary plus a match bonus totalling … 8,000 in cash and in
advance and it reimbursed to the player the amount of … 2,500 for his flight
tickets.
20.
In addition, the club explains that it had not yet paid the signing on fee of USD
20,000 (currency indicated by club) due to the player’s omission to open a bank
account in the country of Y.
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21.
The club asserts that the player never returned and that he never contacted
the club. Furthermore, it was allegedly unable to contact the player.
22.
In view of the above, Y claims that the player committed a unilateral breach of
contract without just cause causing serious financial and sportive damages to
the club.
23.
In this context, Y refers to article 3.4 of the employment contract which
provides that the contract is immediately terminated if one of the parties
breaches the contract and in accordance with which it was allegedly in the
position to acknowledge the termination by the player without notice and
without infringing the club’s right to compensation.
24.
In the light of the above, the club asks a) that the claim presented by the
player be rejected, b) that the player be found guilty of breach of contract in
accordance with art. 17 of the Regulations for the Status and Transfer of
Players, c) that the player be condemned to pay to the club a compensation
equivalent to the total value of the contract in the amount of USD 32,000
(including the signing-on fee of USD 20,000 and six monthly salaries of USD
2,000), and d) that the player be sanctioned with a restriction of six months on
his eligibility to play in official matches with immediate effect (cf. art. 17.3 of
the said Regulations).
25.
In response to the counter-claim, the player insists that it was the club that
acted in breach of the employment contract.
26.
The player points out that the club has acknowledged that he entered the
country of Y on a tourist visa.
27.
He asserts that he left the country of Y on 9 January 2006 in the light of the
fact that he needed to obtain a non-tourist visa and that the club had provided
him with an air ticket A-C-A.
28.
According to the player, Y has not reacted to his above-mentioned letter dated
24 February 2006.
29.
The player acknowledges having received from the club the amounts of …
8,000 and … 2,500, which amounts should be deducted from his financial
claim.
30.
He rejects the club’s allegations with respect to his behaviour. As far as his
alleged undisciplined conduct is concerned, he points out that the club has
failed to produce any documentary evidence in support of its allegations.
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31.
The player further cannot comprehend the club’s reasoning that the signingon fee was not paid to him as he had failed to open a bank account in the
country of Y. The player asserts that he provided the club with the necessary
details of his bank account in C.
32.
The player asks the Dispute Resolution Chamber to accept his claim and to
decide that the employment contract was breached by the club, to consider
that the receipt of the administrative papers was a “condicio sine quo non” for
his return to the country of Y, to consider that Y cannot substantiate its
allegations pertaining to his conduct, to consider that the calculation
presented in his claim contains an error in that the monies that he received
from the club must be deducted.
33.
On 21 October 2006, after the closing of the investigation into this case, the
player rectified his argumentation relating to the payment vouchers presented
by the club. That is, he denies having received the said monies in payment of
one month’s salary and bonuses. He affirms having received the two amounts
for an air ticket A-C-A.
34.
On 14 December 2006, in respect of these vouchers, the club has stated that
these clearly indicate that … 2,500 was paid to the player for a flight ticket and
… 8,000 as a bonus for the period of time that he played at the club.
35.
Without having been invited to do so and after the closure of the investigation
into this case, the club has presented comments on the player’s response to its
counter-claim pointing out that the player’s arguments relating to his visa are
incorrect in that a tourist visa can be easily changed into a workers’ visa
without the necessity to leave the country referring to the immigration law of
the country of Y.
36.
In addition, the club presented additional documentation pertaining to its
allegation that the player left the club without authorisation and not for the
reasons put forward by the player: a copy of its fax dated 15 January 2006
addressed to the Football Association of Y in which the club informs the
Football Association of Y that the player left the club on 9 January 2006
without authorisation and that the club had terminated the player’s
employment contract invoking the above-mentioned art. 3.4 of the
employment contract.
37.
Finally, with respect to the alleged non-payment of the amount of USD 20,000
the club points out that such payment should have been made via the National
Olympic Committee of the country of Y, as usual in the country of Y for
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payments to foreign players, which acts as a sort of a bank for football clubs
established in the country of Y. The club adds that this was confirmed by the
CAS in its decision 2006/A/1015 of 24 August 2006. The club further points out
that such payment via the Olympic Committee of the country of Y can only be
made to a player who has a working visa and who is thus legally entitled to
open a bank account in a local bank. The club adds that this was the reason
why the aforementioned … 2,500 and … 8,000 were paid to the player in cash.
38.
In response, the player asserts that he never received any monthly salary in
advance and that he thought that the amounts of … 2,500 and .. 8,000 were in
no relation to his employment contract.
39.
He furthermore explains that the amount of … 2,500 relates to the
reimbursement of his air ticket to enter the country of Y and that the text
indicated on the relevant voucher was inserted later on. While signing this
voucher, only his name and the amount were indicated.
40.
The player affirms that the … 8,000 were paid for his air ticket C-A-C and he
asks himself how … 8,000 could allegedly have been paid for a bonus that is
not contractually agreed upon.
41.
In this regard, the player wonders why the club has not paid the amount of
USD 20,000 as it apparently was able to pay to him the amounts of … 2,500
and 8,000 without the player having opened a bank account.
42.
With regard to his visa and the arguments put forward by the club, he
wonders why the club had his tourist visa prolonged from 5 to 18 January 2006
instead of having arranged for a visa of a longer duration.
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 23 May 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.
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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 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 24 December 2005 and that the
claim was lodged at FIFA on 23 May 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) are applicable
to the case at hand as to the substance.
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 drew up a document on 24 December 2005
entitled “borrow contract of professional player” valid for the 2005-06 season
and expiring on 1 June 2006. The members of the Chamber noted that this
document does not bear any signature.
6.
It was further noted that article 2 of this document refers to attachment 1 being
part of the agreement. This attachment, as opposed to the aforementioned
document, seems to bear the signature of both the club and the player, X.
7.
In addition, from the above-mentioned facts it can be noted that the club has
not contested the validity of the “borrow contract of professional player”. In
actual fact, Y has confirmed that it entered into an employment contract with
the player on 24 December 2005 with validity until 1 June 2006. Moreover, in its
defence, Y has invoked specific clauses contained in the “borrow contract of
professional player”.
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8.
Consequently, the Chamber concluded that the “borrow contract of
professional player” and its attachment constitute a valid employment contract
binding the parties involved in the present matter during a period of 5 months.
9.
The members of the Chamber then turned their attention to the claim lodged
by the player, who maintains that the club has acted in breach of the
employment contract and therefore claims payment of the signing-on fee of
20,000, which according to him is payable in USD, as well as USD 12,000
pertaining to six months’ salary, and USD 1,800 relating to the air ticket for his
return to B. The Chamber noted that the club has confirmed that the signing-on
fee was payable in US Dollars.
10. The player claims that until the day on which he lodged his claim in front of
FIFA, i.e. 23 May 2006, Y had not paid him any salary or the signing-on fee, in
spite of having put the club in default of its obligations. The Chamber noted
that the player presented a copy of his default notice dated 24 February 2006.
11. X asserts having left the country of Y on 9 January 2006 given that his tourist
visa needed to be exchanged for a visa of a longer duration and that this was
agreed upon with the club.
12. The club, for its part, has confirmed that the player entered the country of Y on
a tourist visa, but it asserts that the player left the country of Y on 9 January
2006 for personal reasons without its approval. In this regard, after the closure
of the investigation in this case, the club presented a copy of the fax dated 15
January 2006 that it sent to the Football Association of Y, in which the club
informs its Association, inter alia, that the player had left without the club’s
approval. The members of the Chamber agreed that such letter does not
necessarily demonstrate that X indeed had left the club without its approval.
13. Furthermore, the club holds that a tourist visa can be easily changed into a
workers’ visa without the necessity to leave the country in accordance with the
immigration law of the country of Y. The Chamber noted that the club failed to
produce evidence to substantiate such allegation. In addition, the members of
the Chamber noted that no workers’ visa had apparently been requested or
issued on behalf of the player.
14. In this regard, the Chamber followed the player’s question as to why the club
had his tourist visa prolonged with a few days until 18 January 2006, proof of
which has been presented by the player, instead of having arranged for a visa
of a longer duration.
15. In respect of the visa issue in the case at stake, the Chamber emphasised that, as
a general rule, it falls within the responsibility of a club to ensure that the
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necessary visa/permit is obtained in favour of a player. Furthermore, for the
sake of good order, the Chamber deemed it important to underline that article
3.3 of the relevant employment contract not only goes against this general rule,
but also against article 18 par. 4 of the Regulations.
16. As regards the player’s financial entitlements, the Chamber took into account
that the player acknowledges having received the amounts of … 8,000 and …
2,500, duly signed vouchers of which have been presented by the club. The
Chamber noted that the … 2,500 voucher refers to the price of a flight ticket
and that the … 8,000 voucher refers to a bonus payment.
17. From the documentation at the Chamber’s disposal, it appears that no salary or
signing-on fee payments have been made to the player. With respect to the
club’s argument that the USD 20,000 signing-on fee was payable via the
National Olympic Committee of the country of Y, the Chamber noted that the
relevant employment contract does not include any such obligation. In fact, the
employment contract clearly sets forth that the club will pay “the financial
obligations” to the bank account provided by the player. In addition, and
referring to the aforementioned payments made by the club to the player in
cash (cf. the aforementioned vouchers), the Chamber took into account that the
club was in the position to make cash payments to the player.
18. The members of the Chamber noted that the club maintains having terminated
the relevant employment contract on the basis of its article 3.4, which allegedly
provides that the employment contract is immediately terminated if one of the
parties breaches the contract. The club asserts that by having left the club on 9
January 2006 without the club’s approval, the player has acted in breach of the
employment contract. In this regard, the club refers to the letter dated 15
January 2006 that it addressed to the Football Association of Y.
19. Without pronouncing itself on whether the club had a valid reason to invoke
article 3.4 of the employment contract, the Chamber turned its attention to the
said article which stipulates that “Should one of the parties breach the contract,
the second party [not specified, but most probably the player given the order of
the parties on the first page of the contract] shall give notice in writing. The
second party then shall have a right, 30 days after the notice, to terminate the
contract immediately, if the first party is still in breach of contract”. “The first
party has the right to terminate this contract at any time by written notice to
second party.” This article further sets forth that the second party has no right
to claim any financial compensation after the termination of the contract.
20. The club asserts that on the basis of this article, it was in the position to
acknowledge the termination of the employment contract by the player
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without notice
authorisation.
upon
the
player’s
departure
from
the
club
without
21. The Chamber, however, disagreed with this viewpoint in the light of the fact
that article 3.4 does not assign equal rights to the player and the club with
respect to the termination of the employment contract. What is more, the said
article 3.4 does oblige the club to send a written notice to the player as opposed
to the club’s standpoint.
22. In the light of the aforementioned considerations, the Chamber felt that the
club had failed to sufficiently substantiate its allegations against the player or
prove beyond doubt that the player had left the club without just cause and
thus allegedly acted in breach of contract.
23. The arguments and documentation presented by the player, on the other hand,
were considered by the Chamber to confirm X’s position that the club had acted
in breach of its contractual obligations.
24. Furthermore, taking into consideration that the player had put the club in
default of its contractual obligations on 24 February 2006, which default notice
has remained without action by the club, the Chamber concurred that the
employment contract had been terminated at the club’s fault by the end of
February 2006.
25. On account of the above, and taking into consideration article 17.1 of the
Regulations, the Chamber decided that in addition to the outstanding monies
relating to the months of January 2006 and February 2006, i.e. USD 12,000
relating to the player’s monthly salary of USD 2,000 (totalling USD 4,000) and
the signing-on fee on a pro rata temporis basis (USD 8,000), Y is liable to pay
compensation to the player, X.
26. In the light of all of the above-mentioned considerations, the Chamber agreed
that a compensation to the amount of USD 6,000 is appropriate in the specific
case at hand.
27. The Chamber decided to reject the player’s claim pertaining to the
reimbursement of the air ticket to the amount of USD 1,800, given that Mr. X
had not presented any documentary evidence in this respect. What is more, the
player was contractually entitled to receive one air ticket only and according to
the vouchers presented by the club, the latter had already paid for an air ticket.
28. Consequently, the Chamber decided that Y is liable to pay the amount of USD
18,000 to X.
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29. Finally, taking into consideration the above, the Chamber decided to reject the
counter-claim lodged by Y against the player, X.
*****
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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 18,000 to the Claimant
within 30 days as from the date of notification of this decision.
3.
In the event that the amount of USD 18,000 is not paid within the stated
deadline, interest at the 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 counter-claim lodged by the Respondent, Y, is rejected.
6.
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.
7.
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:
_________________
Markus Kattner
Deputy General Secretary
Enclosed: CAS directives
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