Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 April 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (The Netherlands), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by the Claimant
P,
as Claimant
against the Respondent
S,
as Respondent
regarding a contractual dispute
between the parties
I.
Facts of the case
1.
On 20 July 2008, the player, P (hereinafter: the Claimant), and the club, Club S
(hereinafter: the Respondent), signed an employment contract (hereinafter: the
contract) valid from the date of signature until 30 June 2011 (lit. B of the
contract). The contract provides for the following salaries (lit. E of the contract):
for the season 2008-2009: EUR 135,000 composed of one instalment of
EUR 90,000 to be paid on 10 August 2008 and 10 monthly instalments of
EUR 4,500,
for the season 2009-2010: EUR 70,000, composed of one instalment of
EUR 10,000 to be paid on 10 August 2008 and 10 monthly instalments of
EUR 6,000,
for the season 2010-2011: EUR 80,000.
2.
The contract stipulates that disputes in connection with its execution shall be
settled firstly by amicable settlement and secondly by submitting the dispute “to
the justice bodies of the AAA and BBB” (lit. L of the contract).
3.
On 10 November 2008, the Claimant, via his legal representative, lodged a
complaint before FIFA against the Respondent, claiming the payment of an
outstanding amount of EUR 80,000. Indeed, the Claimant asserted that the
Respondent paid, on 14 August 2008, an amount of EUR 19,000 as a part of the
first instalment of EUR 90,000 due on 10 August 2008. With regard to the monthly
instalments, the Claimant held that he had received an amount of EUR 4,500, on
21 October 2008, corresponding to the instalment due for the month of
September 2008. Therefore, the Claimant claims that he had not received the
instalments due for the months of October and November 2008 (i.e. EUR 4,500
each) as well as EUR 71,000 corresponding to the remaining part of the first
instalment. Finally, the Claimant asked FIFA to declare that no contractual
relationship exists any longer between the parties.
4.
On 3 December 2008, the Respondent provided FIFA with its position. It affirmed
having paid the following amounts: EUR 19,000 on 14 August 2008 and EUR 4,500
on 21 October and 6 November 2008 respectively. Furthermore, it concluded that
the claim lodged by the Claimant was inadmissible, since the latter did not try to
find an amicable settlement and did not lodge his claim before the alleged
competent deciding bodies of the C Football Federation in conformity with lit. L of
the contract. Alternatively, the Respondent concluded that the claim of the
Claimant shall be partially accepted, as it allegedly paid the monthly instalment
due for the month of November 2008.
5.
Also on 3 December 2008, the Claimant amended his claim and asked for the
payment of an outstanding amount of EUR 75,500, as he declared having received
the monthly instalment of EUR 4,500 due for the month of October 2008.
Moreover, according to the Claimant, the Respondent did not allow the Claimant
to properly fulfil his contractual obligations, since he was allegedly not fielded by
the Respondent.
2
6.
On 31 December 2008, the Claimant requested FIFA, besides his financial claim, to
declare that he had lawfully terminated his contract, as he was facing a very
difficult economic and sporting situation.
7.
FIFA requested the Respondent several times to provide FIFA with its statement in
connection with the Claimant’s claim, in particular, with regard to his wish to
terminate the contract. However, on 16, 22 and 29 January 2009 the Respondent
adhered to its previous position dated 3 December 2008.
8.
On 26 January 2009, the Claimant forwarded to FIFA a correspondence from the
Respondent, dated 22 January 2009, by means of which the latter recognised the
financial debt towards the Claimant, without, however, mentioning any amount,
and proposed to pay the instalments due for the months of January to June,
without any indication of the relevant year, in accordance with the terms
stipulated in the contract. The Respondent added that, in case the Claimant would
refuse the offer, he was free to terminate the contract.
9.
On 5 February 2009, upon request of FIFA, and in view of the aforementioned
correspondence from the Respondent dated 22 January 2009, the Claimant
informed FIFA that no amicable settlement could have been reached between the
parties. Furthermore, he claimed the payment of an outstanding amount of EUR
84,500, composed of EUR 71,000 related to the remaining part of the first
instalment of EUR 90,000 due on 10 August 2008, and of EUR 13,500
corresponding to the monthly instalments due for the months of December 2008,
January and February 2009 (EUR 4,500 each). Finally, the Claimant reiterated his
extreme disappointment towards the Respondent’s behaviour and the very
difficult situation he was apparently facing.
10.
On 16 February 2009, FIFA invited the Respondent to submit its final position as
well as documentary evidence in support of the alleged fact that a decisionmaking body was established within the C Football Federation in conformity with
art. 22 b) of the Regulations on the Status and Transfer of Players. However, the
Respondent did not react.
11.
On 24 February 2009, the Claimant informed FIFA that he had not concluded any
new employment contract with any other club. He also confirmed that the
Respondent owed him outstanding salaries for the period until 24 February 2009
in the amount of EUR 84,500.
12.
On 13 March 2009, the Respondent adhered to its previous position. It added that
the Dispute Resolution Chamber implemented within the C Football Federation
was allegedly based on “the Regulations on the Organisation and Operation of
the National Settling Disputes Chamber, approved by the Executive Committee of
the C Football Federation on 9 May 2008,” in force since 1 July 2008, and “the
Procedures of Settling the causes pending before the National Resolution Disputes
3
Chamber approved according to the Decision of the Executive Committee of the C
Football Federation dated 19 August 2008.”
13.
In this respect, and despite the clear reference to art. 22 of the Regulations made
by FIFA, the Respondent did not submit any documentary evidence, such as the
invoked Regulations. Furthermore, it did not give any description of the election
of the members and the general way of functioning of the aforementioned
deciding body.
14.
On 5 April 2009, the C Football Federation informed FIFA that, on 2 March 2009,
the Claimant had lodged a claim against the Respondent before the Dispute
Resolution Chamber implemented within the C Football Federation.
15.
By means of the second claim, the Claimant asserted that he had received from
the Respondent the amount of EUR 20,000, corresponding to a portion of the first
instalment of EUR 90,000 due on 10 August 2008, as well as three monthly salaries
due for the months of August, September and October 2008 in the amount of EUR
4,500 each. As a consequence, the Claimant requested the payment of a total
amount of EUR 93,500 divided as follows:
-
EUR 70,000 as part of the first instalment of EUR 90,000 due on 10 August
2008;
EUR 10,000, due on 10 August 2008, as part of the amount of EUR 70,000
due for the season 2009-2010 and
EUR 13,500 corresponding to three outstanding monthly salaries due for
the months of November, December 2008 and January 2009.
16.
Furthermore, on 9 April 2009, the C Football Federation enlightened the fact that
its Dispute Resolution Chamber had already “dealt with the case at two meetings,
the latest being held on 7 April 2009. A new court day was scheduled for 23 April
2009 when the player has to inform the Chamber whether he wishes the case to
be judged by FIFA or the C Football Federation.”
17.
Upon request of FIFA, on 15 April 2009, the Claimant, via his legal representative,
declared that he had lodged a second complaint before the C Dispute Resolution
Chamber, so that the matter could be solved in a faster way.
18.
Finally, on 24 April 2009, the Claimant, without the assistance of any legal
representative, requested the suspension of the proceeding pending before the
FIFA instances until the C Dispute Resolution Chamber would render a decision in
the matter.
4
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, the Chamber referred to art. 21 par. 2
and 3 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules). The
present matter was submitted to FIFA on 10 November 2008, thus after 1 July
2008. Consequently, the Chamber concluded that the 2008 edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a E player and a C club.
3.
The Dispute Resolution Chamber continued to analyse its competence with regard
to the existence of the two claims lodged by the Claimant before the FIFA Dispute
Resolution Chamber on 10 November 2008 and before the C Dispute Resolution
Chamber on 3 March 2009.
4.
In this respect, the Chamber firstly enlightened the fact that both claims were
lodged by the Claimant against the Respondent. Furthermore, the Chamber
observed that both claims were based on the same contractual relationship, i.e. on
the employment contract signed between the parties on 20 July 2008, and the
same complex of facts, and finally that the conclusions of the claims were almost
identical. Indeed, the only difference, in this regard, consisted of the fact that the
Claimant requested, in its subsequent claim dated 3 March 2009, an additional
amount of EUR 10,000.
5.
Thus, the members of the Dispute Resolution Chamber had no other alternative
but to consider that the Claimant had lodged, on 10 November 2008 and on 3
March 2009, two identical claims based on the same facts and having the same
conclusions, before two different deciding bodies.
6.
The Dispute Resolution Chamber deemed it appropriate to emphasize that its
competence to hear the case had been contested by the Respondent during the
investigation. In fact, the Respondent considered the C Dispute Resolution
Chamber to be the competent deciding body in this respect. Furthermore, the
Chamber noted that the contract explicitly provided for, in its Lit. L, the
competence of the C deciding bodies, pertaining to contractual disputes arising
between the parties of the contract.
5
7.
Thus, the Chamber considered that the Claimant, by lodging a second claim before
the C deciding body, recognised, by action implying his intention, the competence
of the C Dispute Resolution Chamber. As a consequence, the Chamber considered
that the Claimant had decided to withdraw the claim lodged on 10 November
2008 before the FIFA Dispute Resolution Chamber.
8.
The Chamber further acknowledged that the Claimant requested, on 24 April
2009, the suspension of the ongoing proceeding before the Dispute Resolution
Chamber in favour of the C Dispute Resolution Chamber. Thus, the Claimant
expressly confirmed that he had decided to recognise the competence of the C
deciding bodies and to withdraw the claim lodged before the FIFA Dispute
Resolution Chamber.
9.
For all these reasons, the Dispute Resolution Chamber decided that the claim was
not admissible.
10.
Finally, and for the sake of good order, the Chamber emphasised that it did not
enter into the substance of the matter. In particular, it did not analyse the
questions whether a breach of contract was committed by one of the parties,
whether with or without just cause, who is deemed responsible for the potential
breach as well as the possible consequences thereof.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, P, is not admissible.
***
6
Note relating to the motivated decision (legal remedy):
According to art. 63 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
Secretary General
Enclosed: CAS directives
7