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 Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by the player,
R,
as Claimant
against the club,
B Football Club,
as Respondent
regarding an employment-related contractual dispute
between the parties.
I.
Facts of the case
1.
2.
On 1 April 2007, the C Football Club (hereinafter: the club) and the player R
(hereinafter: the player) signed an employment contract valid from 1 March
2007 until 31 October 2007, with inter alia the following content:
a. The club shall pay the player a monthly salary in the amount of USD
15,000;
b. “the individual income tax of the part reaches the criteria to pay
income taxes specified by the state, shall be deducted from aforesaid
salary and transmitted to the fiscal” by the club;
c. The club shall pay match bonuses “according to different match
nature, match result and staging time and performance”;
d. In C Football Association League matches, C Football Association
League Cup matches and in the Cup matches of C Football
Association, “the minimum winning bonus (individual full court) is
USD 1,000, the minimum draw bonus (individual full court) is USD 500,
and no bonus for lost matches. The club will distribute bonus
according to such facts as whether the individual signs up for matches
and one’s playing time, etc. and the details for distribution will be
specified in the Supplementary Agreement”.
e. The match bonuses are subject to individual income taxes. According
to the state regulations, the club shall deduct taxes from the bonus
and transmit the taxes to the authorities.
3.
The employment contract also stipulates that the player has the right to
unilaterally terminate the contract by notifying the club if it is in delay of
payment of salaries and bonuses for over three months (cf. art. 10 of the
employment contract).
4.
Furthermore, art. 12 of the employment contract states that “either party shall
undertake the compensation or remedy to the other party according to losses
and responsibilities caused by the party’s breach of the contract and therefore
causing economic losses to the other party”.
5.
On 15 September 2007 and 5 October 2007, the player, via his apparent agent,
put the club in default of payment of his salaries and bonuses.
6.
On 19 October 2007, the player submitted a claim against the club in front of
FIFA and asserted that the club failed to pay his salary as from June 2007 until
October 2007. Therefore, the player claimed:
i.
5 outstanding salaries in the amount of USD 75,000 (USD 15,000
X 5);
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ii.
iii.
iv.
bonus in the amount of USD 3,500;
3 months’ salary as compensation: USD 45,000
Total: USD 123,500
7.
The player asserted that he left C on 28 October 2007, at the end of the season
of the second C League. He signed an employment contract on 31 January
2008 with a R club for a monthly salary of 15,000.
8.
Despite having been invited several times to do so, the Respondent did not
submit any position to FIFA.
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 19 October 2007. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2005, hereinafter: the Procedural Rules)
are applicable to the matter at hand (cf. art. 18 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 is competent to deal
with the matter at stake, which concerns an employment-related dispute with
an international dimension between a R player and a C club.
3.
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
19 October 2007, the previous version of the said regulations (edition 2005;
hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
4.
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 Respondent and
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the Claimant signed an employment contract on 1 April 2007, valid from 1
March 2007 until 31 October 2007.
5.
Furthermore, the Chamber noted that this contract stipulated, among other
things, that the Claimant was entitled to receive a monthly salary of USD
15,000 from the Respondent. In this respect, the Chamber acknowledged that
the Claimant claims outstanding salaries from June 2007 until October 2007, i.e
5 months totalling USD 75,000.
6.
In addition, the members of the Chamber pointed out that the contract also
stipulated that the player is entitled to receive match bonuses, in particular,
the contract specifies inter alia that in C Football Association League matches,
C Football Association League Cup matches and in the Cup matches of C
Football Association, the player is entitled to receive match bonuses depending
on the outcome of the pertinent matches. In this regard, the Chamber
acknowledged that the player claims as match bonuses the amount of USD
3,500.
7.
The Chamber took into account that the Respondent never took position on
the claim lodged against it by the player, despite having been asked to do so
by FIFA on several occasions and underlined that, in this way, the Respondent
renounced its right to defense and, thus, accepted the allegations of the
Claimant. Furthermore, as a result, in accordance with art. 9 par. 3 of the
Procedural Rules, a decision shall be taken upon the basis of the documents on
file.
8.
Subsequently, the Dispute Resolution Chamber held that, in accordance with
the basic legal principle of pacta sunt servanda, the Respondent must fulfill its
obligations as per the employment contract entered into with the Claimant
and, consequently, pay the outstanding remuneration which is due to the
latter. Therefore, the Chamber concluded that the Respondent must pay to the
Claimant the amount of USD 75,000 representing the outstanding salaries and
the amount of USD 3,500 representing match bonuses in accordance with the
pertinent employment contract.
9.
The Dispute Resolution Chamber considered that, by failing to pay the
Claimant’s salaries due for the months of June until October 2007, the
Respondent had acted in breach of the relevant employment contract. For the
sake of completeness in this respect, the members of the Chamber were eager
to emphasize that art. 10 of the employment contract entitled the Claimant to
lawfully terminate the said agreement with just cause, by notification to the
club, if it is in delay of payment of salaries and bonuses for over three months.
In this regard, the Chamber noted that on 15 September 2007 and 5 October
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2007, the player put the club in default of payment of his salaries for June
2007 until October 2007, and bonuses. The Chamber emphasized that despite
sending these notifications, the player rendered his services to the club until
the end of his employment contract, i.e. until 28 October 2007. It can thus be
concluded that the player must have considered the relevant employment
contract as not having been prematurely terminated at the club’s fault. In this
respect, the Chamber wished to highlight that the player turned to FIFA with
his claim towards the club at the expiry of his employment contract only.
10.
The Chamber then turned its attention to the player’s claim for compensation
corresponding to three months of salary. Taking into account the above and
considering that the player had apparently freely decided to continue
rendering his services to the club until the expiry date of the pertinent
employment contract and that he will be paid the outstanding remuneration
for such services (cf. point II. 8 above), the Chamber decided to reject the
player’s claim for compensation.
11.
On account of all the above, the Dispute Resolution Chamber concluded its
deliberations on the present dispute by deciding that the Respondent has to
pay the total amount of USD 78,500 to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is partially accepted.
2.
The Respondent, C Football Club, has to pay to the Claimant, R, the amount of
USD 78,500 within 30 days as from the date of notification of this decision.
3.
Any further claim of the claimant, R, is rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline,
interest at the rate of 5% per year will apply as of expiry of the fixed time limit
and the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and decision.
5.
The Claimant, R, is directed to inform the Respondent, C Football Club,
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.
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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:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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