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 (Netherlands), member
David Mayebi (Cameroon), member
Philippe Dialo (France), member
Zola Majavu (South Africa), member
on a matter between the player
S,
as Claimant
and the club
D,
as Respondent
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 30 June 2006, the player S (hereinafter: the player) and the club D (hereinafter:
D) signed an employment contract valid from 1st July 2006 to 30 June 2011,
whereby it was agreed that the player would receive a monthly salary of USD
7,500. During the validity of this employment contract, the player was loaned
three times to other clubs.
2.
Between 29 January and 30 June 2007, the player was loaned to the club R
(hereinafter: R). At the same time, D and the player concluded an agreement
whereby D undertook to pay the player a total amount of USD 15,000 covering
the entire period of the loan.
3.
On 29 August 2007, D and R signed a second agreement whereby the player
remained on loan with R from the date of signature until 30 June 2008.
Furthermore, in a document dated 5 September 2007, which is signed by D and R
representative, as well as by the player, it was agreed that D would have no
financial obligations towards the player. This document also mentions that the
second loan is concluded for a period of one year, until 30 June 2008, although it
does not mention a starting date.
4.
On 29 August 2008, D and the club Z concluded an agreement for the loan of the
player valid until 30 June 2009. According to article 3 of this agreement, Z
undertook to pay the player’s salary for the entire period of the loan. Moreover,
according to article 2, in case of a definitive transfer, the amount of EUR 55,000 +
value added tax (V.A.T.) would be paid by Z to D until the date of 30 June 2009.
According to the loan agreement, the player was not a party to the said
agreement.
5.
On 31 December 2008, the player submitted a claim to FIFA and stated that his
employer, D, owed him the following amounts:
- USD 2,500 as payment of the salary of June 2007,
- USD 7,500 as payment of the salary of July 2007,
- USD 45,000 as payment of the salaries of the months from July to December
2008.
Therefore, the player asked for FIFA’s intervention in order to require D to make
the payment of a total amount of USD 55,000, plus the applicable interest for late
payment, as well as the reimbursement of all legal costs incurred, by no later than
the next 7 days. Alternatively, in case the payment would not be made within the
aforementioned period, the player asked to be released from his contractual
obligations with D.
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6.
In reply, D entirely rejected the player’s claim. In support of this position, D
emphasized that, for the period between 1st July and 31 December 2006, the
player had received all his salaries, i.e. USD 45,000. He was then loaned to R for 6
months, during which D and the player had agreed that the latter would receive
from the club D USD 15,000 for the entire period of the loan. In this regard, D
admitted to having paid a total amount of USD 57,500 to the player during the
season 2006-2007, but nevertheless held that there were no outstanding amounts
due to the player for this time period.
7.
D further indicated that, during the period from 30 June 2007 to 30 June 2008, the
player had remained on loan with R and that, for this period, it had no financial
duties towards the player.
8.
Finally, between 29 August 2008 and 30 June 2009, the player was temporarily
transferred to the club Z, and for this period, D allegedly also had no financial
duties towards the player. In addition, the loan agreement signed with Z referred
to an option for the definitive transfer of the player for an amount of USD 55,000
+ V.A.T.
9.
Therefore, D affirmed that it had fulfilled all of its financial obligations towards
the player. Furthermore, the player could not be considered as free to sign with a
new club as, on the one hand, he was currently on loan with the club Z, and on
the other hand, after 30 June 2009, he was to come back to D, unless the player’s
new club agreed to the payment of USD 55,000 + V.A.T.
10.
On 4 February 2009, the player submitted his reaction to the statements of D. In
this respect, he stressed that D had not replied to his wish to be immediately
released from his contractual obligations.
11.
Furthermore, the player asserted that D had failed to provide any factual
justification regarding the amounts due to the player. Furthermore, the player
amended his claim with regard to the amount allegedly due to him by D, and now
claimed an additional USD 22,500 for the salaries of August 2007, January and
February 2009. The total amount of outstanding salary claimed by the player
therefore amounted to USD 77,500.
12.
In support of his position, the player specified the breakdown of the outstanding
salary allegedly due to him, which is detailed below:
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USD 2,500
USD 15,000
USD 60,000
Salary of June 2007 (difference between the amount that D
admitted to having paid for the season 2006-2007, i.e. USD
57,500, and the amount allegedly due to the player for that
same period, i.e. USD 45,000 as salary from July to December
2006 + USD 15,000 as per the agreement signed on 26 January
2007, thus a total of USD 60,000)
Salaries for July and August 2007 (period between the two
loans of the player to R)
Salaries from July 2008 to February 2009
13.
With regard to the USD 60,000 as salary from July 2008 to February 2009, the
player pointed out that he was not a party to the loan agreement signed between
D and Z, therefore he could not be aware of its terms. Consequently, it could also
not be considered that he had intended to renounce to his remuneration as
provided by the contract signed with D on 30 June 2006.
14.
Finally, the player stated that D could not be allowed to claim transfer
compensation in case he found a new club, since D had, in his opinion, showed no
consideration for a mutual professional relationship.
15.
In a further submission, D reiterated that it did not have any financial debts
towards the player. In particular, it asserted that the amounts of USD 2,500 and
USD 15,000 claimed by the player corresponded to a period during which he
remained on loan with R and was not training with D. Furthermore, D submitted a
letter signed by the player, dated 11 September 2007, whereby the latter declared
that D had no financial obligations towards him for the period of his temporary
transfer to R.
16.
For the remaining USD 60,000, D reaffirmed that, according to the loan
agreement signed with Z, it had no financial obligations towards the player.
17.
Finally, D reiterated that the player could not be declared free of contract unless
his new club would pay the aforementioned transfer compensation.
18.
On 17 February 2009, the player adhered to his previous position. With regard to
the letter dated 11 September 2007, he asserted that D clearly misinterpreted his
statement, since the letter was written after the first loan had expired. Therefore,
he meant that D did not have any financial obligations towards him, but only
during the second loan to R.
19.
On 25 February 2009, D also adhered to its previous positions, but raised the issue
of possible incompetence of FIFA in the present matter. In this respect, D observed
that article 9.3 of the employment contract signed between D and the player
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provided that any dispute arising between the parties would be subject to the
exclusive jurisdiction of the R Football Federation commissions. Furthermore, D
emphasized that the R Football Federation has established an independent body
which has exclusive jurisdiction over any conflicts between clubs and players under
contract with these clubs.
20.
On 11 March 2009, the player responded to D statement regarding the alleged
incompetence of FIFA. In this respect, he underlined the fact that D had not
previously raised this issue. Moreover, he stated that he was a player of S
nationality and had signed a contract with a R club, therefore the dispute should
be considered as having an international dimension and as such as falling under
the sole jurisdiction of FIFA.
21.
Finally, D provided FIFA with its final comments with regard to the previous
statements of the player. The R club adhered to its previous position and
requested FIFA to reject the player’s claim entirely.
22.
Upon FIFA’s request, the player, in its final position, indicated that he had not
signed any employment contract with the club Z. He insisted on the fact that, in
his opinion, his employment contract with his initial club, i.e. D, was not
suspended during the period when he was on loan. He concluded that it fell upon
D to pay all of the amounts claimed by him.
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, it took note that the present matter
was submitted to FIFA on 31 December 2008. Consequently, the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter
at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
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 would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player and a club.
3.
However, the Chamber acknowledged that D contested the competence of FIFA to
deal with the present matter due to the fact that the employment contract signed
between the player and D provided, in its article 9.3, that any dispute arising
between the parties would be subject to the exclusive jurisdiction of the R Football
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Federation commissions. In this regard, the members of the Chamber first
observed that, as mentioned in point II.2. above, the Dispute Resolution Chamber
had, in principle, jurisdiction to rule on employment-related disputes with an
international dimension. Furthermore, the panel stressed that D did not appear to
have lodged a claim against the player in front of the R Football Federation
commissions. On account of this, D, who had provided FIFA with a detailed
position on the present dispute during the course of the investigation, was
therefore deemed as having accepted the competence of the Dispute Resolution
Chamber of FIFA.
4.
Consequently, and taking into consideration the above-mentioned circumstances,
the Chamber established that D objection to the competence of FIFA to deal with
the present matter has to be rejected, and that the Dispute Resolution Chamber is
competent, on the basis of art. 22 b) of the Regulations on the Status and Transfer
of Players, to consider the present matter as to the substance.
5.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on 31 December
2008, the current version of the regulations (edition 2008; hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
6.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members
of the Chamber started by acknowledging that the player and D signed a five-year
employment contract valid from 1st July 2006 to 30 June 2011 according to which
he was to receive a monthly salary of USD 7,500. Moreover, the Chamber noted
that, until the time when the player lodged his claim before FIFA, on 31 December
2008, the latter had been loaned three times to two other clubs.
7.
Subsequently, the panel noted that the player, who claimed a total amount of
USD 77,500 of outstanding salary against D, requested to be released from his
contractual obligations towards the said club.
8.
Turning its attention to D, the members of the Chamber took note of the fact that
the latter club rejected the player’s claim entirely, and refused to release him from
his contractual obligations due to the fact that, on one hand, he was, at the
moment of his request, on loan with the club Z, and, on the other hand, the
potential new club of the player should pay D USD 55,000 + V.A.T. as transfer
compensation for the player. Moreover, D denied owing any outstanding salary to
the player.
9.
In view of the above, the Dispute Resolution Chamber acknowledged that it first
of all had to decide on a potential breach of contract by D. In this regard, the
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Chamber observed that, in order to assess this particular issue, it had to determine
whether D, as claimed by the player, had failed to comply with its financial
obligations.
10.
Having stated the above, the members of the Chamber proceeded to analyze the
documents on file as well as the allegations presented by each party of the
dispute. First of all, the panel emphasized that it had to make a distinction
between the various amounts claimed by the player over different time periods.
Indeed, the Chamber observed that the player is claiming some amounts which
cover three different time periods, and that, in this regard, it had to establish, for
each amount, whether D had to pay him such amount.
11.
Subsequently, the Chamber first examined whether D owed the player the amount
of USD 2,500, which, according to the player, corresponds to part of the salary of
June 2007. In this respect, the Chamber noted that D had, on the basis of the fiveyear employment contract signed with the player, undertaken to pay the player a
monthly remuneration of USD 7,500 from the start of the employment
relationship, i.e. 1st July 2006, until December 2006, and that, from January to the
end of June 2007, when the player was loaned to the club R, D had, on the basis of
an agreement signed on 26 January 2007, agreed to pay the player a total amount
of USD 15,000 during that specific time period. Moreover, the members of the
Chamber observed that D stated having paid, for the time period, from 1 July 2006
to 30 June 2007, the total amount of USD 57,500. In this respect, the panel was
eager to emphasize that, according to the player’s employment contract as well as
to the agreement signed on 26 January 2007, D should have paid the player a total
amount of USD 60,000, i.e. USD 45,000 as salary from July to December 2006, plus
USD 15,000 on the basis of the agreement signed on 26 January 2007, covering the
period of the loan.
12.
In view of the aforementioned, the Dispute Resolution Chamber held that D did
owe the player the amount of USD 2,500 as part of the payment stipulated in the
agreement of 26 January 2007.
13.
Continuing, the Chamber then analyzed whether D owed the player the amount
of USD 15,000 as claimed by the player, which, according to the latter, corresponds
to two months salary for July and August 2007. In this respect, the panel took due
note of the arguments of D, which asserted that it did not owe this amount to the
player, in view of the fact that, during this period, he remained on loan with the
club R.
14.
However, in this respect, the members of the Chamber, after having carefully
studied the documents on file and in particular the two loan agreements
concluded with R, observed that the first loan agreement ended on 30 June 2007
and that the second agreement started on 29 August 2007. Therefore, the panel
affirmed that the player was not employed by R during the months of July and
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August 2007, and that for these two months, D had to fulfill its financial
obligations towards the player on the basis of the employment contract signed on
30 June 2006, which remained applicable between the two loans of the player to
R.
15.
In view of the above, the Dispute Resolution Chamber ruled that, contrary to D
allegations, the player had not remained on loan during the months of July and
August 2007, and therefore that the latter club had to pay the player the amount
of USD 15,000 corresponding to two months of salary on the basis of the
employment contract signed with the player on 30 June 2006.
16.
Finally, the members of the Chamber examined the player’s claim regarding the
alleged outstanding payment of USD 60,000, which would correspond to
outstanding salary for the months of July 2008 to February 2009. In this regard,
the panel took due note of the fact that D indicated that, from 29 August 2008 to
30 June 2009, the player was on loan with the club Z and that D provided a copy
of the relevant loan agreement. Moreover, D asserted that, for the months of July
and August 2008, the player was not training at the club and therefore that it did
not have any financial obligations towards him for this period of time.
17.
On account of the above, and in order to properly assess whether D had any
financial obligations towards the player for the above-mentioned time period, the
Chamber first proceeded to a careful study of the relevant loan agreement. In this
respect, it observed that the said contract, which was valid from 29 August 2008,
did not contain the signature of the player. The panel also took due note of the
fact that the player alleged that he had not signed any employment contract with
the club Z, without, however, contesting the fact that he did actually play for this
club.
18.
In view of the aforementioned, the Chamber, after having examined the evidence
provided by the player as well as by D, held that, although the player was not a
party to the loan agreement signed for his temporary transfer to the club Z, he did
not contest that he had played for this club, nor did he indicate that he was,
during that time, playing for D. In this respect, the panel underlined that, as a
general rule, unless otherwise stipulated in a special agreement, the club who is
using the services of a player must pay the said player.
19.
Therefore, the Chamber held that D did not owe the player the amount claimed
by him for the period of time from September 2008 to February 2009, i.e. for the
time during which he was on loan with the club Z.
20.
However, the panel emphasized that, for the months of July and August 2008, the
player’s loan to R had ended, and therefore, D was to honor the employment
contract signed on 30 June 2006, until the player was loaned again to Z on 29
August 2008. In this regard, the Chamber was eager to emphasize that the fact
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that the player was not training at D during these two months did not affect the
latter club’s obligation to pay the player’s salary. In particular, the fact that D then
signed a loan agreement with the club Z was proof that it still considered the
player as part of its team.
21.
Therefore, the Dispute Resolution Chamber ruled that D owed the player the
amount of USD 15,000 corresponding to the salary of the months of July and
August 2008.
22.
In view of all of the above, the Chamber recalled that D owed the player a total
amount of USD 32,500, which corresponds to more than four months of unpaid
salary. Thus, the panel established that these outstanding amounts were sufficient
to declare D in breach of the existing contractual relationship.
23.
Consequently, the Dispute Resolution Chamber declared that the contractual
relationship between the player and D must be dissolved, and that the player is
therefore free to seek employment with another club. In this regard, the panel
underlined that D did not show a particular interest for the services of the player,
in particular in view of the fact that, from the start of the employment
relationship, the player had remained on loan with other clubs.
24.
Finally, the Chamber ruled that all other claims of the player had to be rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, S, is partially accepted.
2.
The Respondent, D, has to pay to the Claimant the amount of USD 32,500 within
30 days as from the date of notification of this decision.
3.
The contractual relationship between the Claimant, S, and the Respondent, D, is
declared dissolved.
4.
Any further claims lodged by the Claimant are rejected.
5.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the party’s request to FIFA’s
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Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
6.
The Claimant is directed to inform the Respondent 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.
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
Encl.
CAS directives
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