Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Brendan Schwab (Australia), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
M,
as Claimant
against the club,
Club H,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 1 July 2006, the player, M (hereinafter: the Claimant), and the club, H
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract) valid for the season 2006-2007.
2.
The second clause of the contract provided for a salary for the Claimant
amounting to EUR 800 “for every month in which games of the Women’s Football
Superleague shall take place”.
3.
On 27 June 2008, the Claimant lodged a claim against the Respondent for breach
of contract. In this respect, the Claimant asserted that, at the beginning of January
2007, when she was supposed to return to the Respondent after having spent her
Christmas holidays in country B with the consent of the Respondent, the latter
informed her that their labour relationship should be considered as immediately
terminated.
4.
In view of the above, the Claimant claimed her salaries from December 2006 to
June 2007, in the total amount of EUR 5,600, in addition to EUR 1,000
corresponding to the material value of her personal belongings, which were not
returned by the Respondent. The Claimant also requested interests of 5% per
annum on the said amount, in addition to legal expenses in the amount of EUR
2,000.
5.
In its response to the claim, the Respondent stated that on 1 July 2006 the
Respondent sent to the Claimant a draft of a contract containing the conditions
which were offered by the Respondent. According to the latter, the said draft
does not bear the Respondent’s stamp and was not meant to be a definitive
contract, since the Claimant had to submit the relevant documentation in order to
prove that she had a residence permit which would allow her to stay in country S,
otherwise she would have been living in country S illegally as from December
2006.
6.
Therefore, the Respondent asserted that since the Claimant did not submit the
relevant residence permit, the Respondent requested the Claimant to leave, taking
into consideration that living in country S for longer than 3 months without any
valid visa would be considered to be illegal. Despite not having signed any
employment contract with the Claimant, the Respondent stated having paid 4
salaries to the Claimant in the amount of EUR 800 each, in order to cover her
living expenses.
7.
To conclude, the Respondent rejected the claim emphasizing that it was the
Claimant’s responsibility to obtain the required permit.
8.
Finally, the Claimant informed FIFA’s administration that she did not enter into
any new labour relationship between December 2006 and June 2007.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber was eager to emphasize that the member of the Dispute
Resolution Chamber (DRC) as a player representative, Mr M, from country B,
refrained from participating in the deliberations of the case at hand, on the basis
that he holds the same nationality as the Claimant. Therefore, and in view of
maintaining the parity between player and club representatives, the Dispute
Resolution Chamber adjudicated the case in the presence of three members in
accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of
Player (edition 2008).
2.
In this respect, the Chamber analysed whether it was competent to deal with the
case at hand. In this regard, it took note that the present matter was submitted to
FIFA on 27 June 2008. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (DRC; July 2005
edition; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf.
art. 18 par. 2 and 3 of the Procedural Rules).
3.
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 b) of the Regulations on the Status and Transfer of
Players (October 2009 edition), the Dispute Resolution Chamber is competent to
deal with the matter at stake, which concerns an employment-related dispute of
an international dimension between a player and a club.
4.
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
(October 2009 edition), and considering that the present claim was lodged on 27
June 2008, the January 2008 edition of the Regulations on the Status and Transfer
of Players (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber acknowledged that the Claimant and the Respondent concluded an
employment contract on 1 July 2006 valid for the season 2006-2007.
6.
Consequently, the members of the Chamber took note that the Claimant, on the
one hand, asserted that the Respondent had breached the contract without just
cause at the beginning of January 2007 when she was supposed to return to the
Respondent from her Christmas holidays in country B and therefore, the Claimant
demands the payment of EUR 5,600 corresponding to her salaries from December
2006 to June 2007, as well as EUR 1,000 corresponding to the material value of her
personal belongings, which were not returned by the Respondent, in addition to
interests of 5% per annum on said amount and legal expenses in the amount of
EUR 2,000.
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7.
The Chamber equally acknowledged that the Respondent, on the other hand,
rejected the claim alleging that the contract base of the present dispute was a
draft of a contract since the Claimant did not submit the relevant documentation
in order to prove that she had a residence permit which would allow her to stay in
country S. Additionally, the Chamber noted that the Respondent underlined that
the alleged draft of the contract submitted on file by the Claimant did not bear
the Respondent’s stamp and was therefore not meant to be definitive.
8.
In this respect, the Chamber, first of all, and after a careful examination of the
documents on file, unanimously concluded that the copy of the contract
submitted by the Claimant contained all the legal elements in order to be
considered as a valid employment contract. In particular, the aforesaid document
bears the signatures of both the Claimant and the Respondent, more specifically,
the signature of the Respondent’s President. Therefore, the Chamber concluded
that the said contract should be considered legally binding between the parties,
and thus, enforceable.
9.
Subsequently, the members of the Chamber turned their attention to the
argument of the Respondent pertaining to the Claimant’s lack of a residence
permit.
10.
In this context, the members of the Chamber referred to art. 18 par. 4 of the
Regulations which stipulates, inter alia, that the validity of a contract may not be
made subject to the grant of a work permit.
11.
In this respect, the members stated that the contents of art. 18 par. 4 of the
Regulations were of mandatory nature and could not be contractually amended
or circumvented. As a consequence, the Chamber stated that the argument of the
Respondent had no legal grounds.
12.
Thereto, the Chamber reiterated that the responsibility to obtain the necessary
residence permit prior to the signing of the employment contract or during its
period of validity is incumbent on the Respondent and that therefore, the
argument of the Respondent could not be allowed.
13.
In view of all the aforementioned considerations, the Chamber concluded that the
Respondent has breached the contract without just cause and should therefore be
held liable to pay to the Claimant compensation for the termination of contract
without just cause.
14.
In continuation, the Chamber took note that, on the one hand, the Claimant
requested allegedly outstanding salaries based on the financial terms stipulated in
the contract, in particular, her salaries from December 2006 to June 2007. Equally,
the Chamber noted that, on the other hand, the Claimant left country S to spend
her Christmas holidays in country B and was subsequently informed by the
Respondent that their labour relationship should be considered as immediately
terminated.
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15.
In view of the above, the members of the Chamber took into account that the
Claimant had been entitled to receive a monthly remuneration amounting to EUR
800 and that the Claimant played for the Respondent until the month of
December 2006. Consequently, the Chamber examined the relevant payment
receipts on file pertaining to the salaries of the Claimant and acknowledged that
the Respondent submitted payments receipts for the months of September,
October, November and December 2006 amounting to EUR 800 each. Additionally,
the Chamber took note that the mentioned payment receipts bore the signature
of the Claimant and that the Claimant did not contest their authenticity; in
particular, she did not contest the authenticity for the receipt pertaining to the
month of December 2006. Therefore, the Chamber concluded that the Respondent
duly paid the Claimant’s salaries during the period in which the Claimant rendered
her services with the Respondent.
16.
Subsequently, having established that the Respondent should be liable to pay
compensation to the Claimant for breach of contract, the Chamber referred to art.
17 par. 1 of the Regulations, in particular to the non-exhaustive enumeration of
the objective criteria which need to be taken into account.
17.
In this context, the Chamber took into account that the Claimant would have been
entitled to receive a monthly remuneration amounting to EUR 800 until the
month of June 2007 and that the Claimant had apparently remained unemployed
for the whole contractual period after the breach of the contract by the
Respondent occurred.
18.
In view of all the aforementioned considerations, the Chamber decided that the
Respondent has to pay to the Claimant EUR 4,800 as compensation for breach of
contract corresponding to the rest value of the contract, i.e. from January 2007 to
June 2007.
19.
Furthermore, the members of the Chamber then turned their attention to the
claimed amount concerning the material value of personal belongings of the
Claimant. In this respect, the Chamber took note that the Claimant requested the
amount of EUR 1,000. In this respect, the Chamber referred to art. 12 par. 3 of the
Procedural Rules which stipulates that any party deriving a right from an alleged
fact shall carry the burden of proof and took into account that the Claimant did
not provide any documentary evidence for her allegations. Therefore, the
Chamber had to reject this part of the claim.
20.
Finally, with regard to the Claimant’s request for the reimbursement of her legal
expenses amounting to EUR 2,000, the Chamber recalled the contents of art. 15
par. 3 of the Procedural Rules, which clearly stipulates that no procedural
compensation is awarded in proceedings in front of the DRC. Therefore, the
members of the Chamber had no other alternative than to reject also this part of
the claim.
21.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
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pay to the Claimant the amount of EUR 4,800 as compensation for breach of
contract, in accordance with the pertinent provisions of art. 17 of the Regulations.
22.
Finally, the Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, M, is partially accepted.
2.
The Respondent, H, must pay to the Claimant, M, the amount of EUR 4,800,
within 30 days as from the date of notification of this decision.
3.
If the aforementioned amount is not paid within the aforementioned time limit,
an interest rate of 5% per year as of the expiry of the fixed time limit will apply
and the matter will be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
The Claimant, M, is directed to inform the Respondent, H, directly and
immediately of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
5.
Any further request filed by the Claimant, M, is rejected.
*****
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Note relating to the motivated decision (legal remedy):
According to article 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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