Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 May 2005,
in the following composition:
Slim Aloulou (Tunisia), chairman
Maurice Watkins (England), member
Paulo Amoretty Souza (Brazil), member
Gerardo Movilla (Spain), member
Theo van Seggelen (Netherlands), member
on the claim presented by
A
as Claimant
against
B
as Respondent
regarding a labour dispute
Facts of the case
On 9 January 2003, A and B signed an employment contract valid for the 2003
sporting season, starting in March.
According to such contract, A was entitled to receive a monthly salary of
USD 3,000 and a monthly accommodation allowance in the amount of USD 750,
amongst other financial privileges.
A asserts that he suffered a serious knee injury during a match at B’s service on 5
April 2003 and that, as a consequence of such injury, B informed him in front of his
team colleagues, that it did not count with him any longer.
Consequently, A left B and returned to country X on 18 April 2003. Before leaving
country Y, A asserts that B has paid him the amount of USD 1,227.69.
Finally, in order to recover from his aforementioned injury, A undertook a surgery
to his knee on 5 May 2003.
In light of the above, A is presently claiming the payment of USD 26,000,
corresponding to his salaries for the entire season (7 salaries of USD 3,000 each in
the total amount of USD 21,000) and the costs in which he incurred in order to
recover from his knee injury, in particular, the surgery he undertook and respective
rehabilitation process (USD 5,000). In this respect, A has provided the FIFA
Administration with several documents in order to support his position in the
matter.
In response, B provided the FIFA Administration with the following statement, via
the Association C: “We did sign A to a contract in 2003. After a pre-season week in
late March and five days in April, we decided to release him on April 5th 2003 as our
contract permits”.
In fact, with regard to the player’s present claim, in particular, the club’s alleged
contractual termination without just cause and a possible compensation to be
allocated to the player, B defends that art. 12 b) of the player’s Standard Z contract
allows clubs to “release players at any time prior to July 1, unless the contract is
guaranteed” and that A’s contract was not. As a consequence, the club stated “we
terminated this player in accordance with Section 12 Clause B of the standard Z
Players’ contract” and therefore defends that its contractual termination was legally
supported and therefore should be considered as valid.
Requested by the FIFA Administration to clarify the meaning of a guaranteed
contract, B explained that “In addendum B of A’s contract, the word guaranteed
does not appear. Contracts that are guaranteed contain the following language in
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addendum B Section 1-A: club shall pay to player for services rendered the following
salary: 2003 season, USD XXX per month guaranteed”.
Art. 12 b) of the relevant employment contract (“Termination by the Club”)
stipulates that, “Unless this contract is guaranteed in addendum B, the club may
terminate the contract of any player prior to July 1st of the contract year by written
notice to player and the League. Notice shall not be effective unless delivered in
hand to player or sent via certified mail, return receipt request. After termination,
the club shall be under no further obligation to player for payment of future
contract payments. All players contracts are guaranteed by the club for the
remainder of the season should this contract be in effect on July 1st. Any team
releasing a player after the date set forth by the League shall be responsible for the
compensation of that player per Addendum B through the team’s final regular
season or playoff match (whichever is later).”
Finally, B defends that its trainer “has no records of A being injured while he was
there. The club paid for his flight to country X and paid him for his services until he
was released”.
Considerations of the Dispute Resolution Chamber
The members of the Dispute Resolution Chamber were summoned to pass a decision
on this matter by the Chairman pursuant to art. 1 point 6) of the Rules Governing
the Practice and Procedures of the Dispute Resolution Chamber.
The Dispute Resolution Chamber shall review disputes coming under its jurisdiction
pursuant to art. 42 of the FIFA Regulations for the Status and Transfer of Players, at
the request of one of the parties to the dispute.
According to art. 42, par. 1 lit. (b) of the FIFA Regulations for the Status and
Transfer of Players, the triggering elements of the dispute (i.e. whether a contract
was breached, with or without just cause, or sporting just cause), will be decided by
the Dispute Resolution Chamber.
If an employment contract is breached by a party, the Dispute Resolution Chamber
is responsible to verify whether a party is accountable for compensation and
outstanding payments.
Also, the Dispute Resolution Chamber will establish the amount of compensation to
be paid and decide whether sports sanctions must be imposed (cf. art. 42, par. 1, b,
ii and iii in connection with art. 22 and 23 of the aforementioned Regulations).
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Consequently, the Dispute Resolution Chamber is the competent body to decide on
the present litigation concerning the alleged breach of contract between the
Claimant and the Respondent.
Subsequently, and entering into the substance of the matter, the Chamber
acknowledged that A is claiming the payment of his salaries for the entire
contractual period, i.e. for the 2003 sporting season, which corresponds to 7 (seven)
months, in the total amount of USD 21,000. The Chamber took into consideration
the fact that the player, in support of his allegations, has provided the FIFA
Administration with a copy of his employment contract with B as well as of the
contract’s addendum B.
In this respect, the members of the Chamber took note that the player was
contractually entitled to receive a monthly salary of USD 3,000 together with other
financial privileges and that B has never disputed such amounts.
The Dispute Resolution Chamber also noted that, on 5 April 2003, B unilaterally
terminated its relevant employment contract with A, based on art. 12 b) of the
player’s Standard Z contract, according to which, a club can release a player at any
time prior to 1 July, without being responsible for any further payments, if his
contract is not guaranteed in addendum B, i.e. if such addendum does not state
that the player’s salary is guaranteed.
In view of the above, the Chamber underlined that, the fact that the addendum of
a player’s employment contract does not expressly mention that his salary is
guaranteed, cannot and does not constitute just cause for a club to unilaterally
terminate its employment contract with a player, like it happened in the present
case, and even less to be “under no further obligation to player for payment of
future contract payments”. In fact, the Chamber deemed that in view of its
potestative nature, the aforementioned contractual clause shall not have any effect.
After having vehemently rejected the validity of the aforementioned contractual
clause, the members of the Chamber reached the conclusion that B has terminated
its employment contract with A without just cause.
As a consequence, the Chamber considered B liable to pay all the salaries due for
the 2003 sporting season, in accordance with its employment contract with A, in the
total amount of USD 21,000.
Moreover, the Chamber also concluded that the amount of USD 1,227.69, received
from B and acknowledged by A, had the nature of accommodation allowances
and/or other financial privileges stipulated in their employment contract.
Furthermore, the Dispute Resolution Chamber took note that A is also claiming the
reimbursement of all the expenses in which he incurred in order to recover from a
knee injury allegedly suffered on 5 April 2003 at the club’s service, in the total
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amount of USD 5,000. In this respect, the Chamber took into consideration the fact
that A, in support of his allegations, has provided the FIFA Administration with
copies of the respective payment receipts, confirming the costs of the relevant
surgery and the following rehabilitation process.
In this regard, the members of the Chamber took into consideration the evidence
carried to the file by A, in particular, a medical exam signed by F, dated 21 April
2003, attesting that A was suffering from the claimed knee injury and a hospital
document stamped by G, confirming that A has effectively undertaken the claimed
surgery on 5 May 2003.
In light of the aforementioned evidence, the player’s claim and the fact that
A has left B on 5 April 2003, i.e. only one month before the relevant surgery took
place, the Dispute Resolution Chamber concluded that the player’s knee injury was
in fact suffered at the club’s service and therefore, that the latter is responsible to
cover its costs, as well as the ones incurred with the rehabilitation process.
In light of all the above, the Chamber decided that B is responsible for the
non-fulfilment of its relevant employment contract with A and is consequently
liable to pay to the player the total amount of USD 26,000, corresponding to
USD 21,000 for the player’s aforementioned outstanding salaries and USD 5,000 for
the expenses incurred with his relevant knee surgery and the consequent
rehabilitation process.
In conclusion, the members of the Chamber decided to accept A’s claim and to
condemn B to pay to him the total amount of USD 26,000.
Decision of the Dispute Resolution Chamber
1. The claim of A is accepted.
2. The Respondent B shall pay the total amount of USD 26,000 to A, within 30 days
of notification of the present decision.
3. If the Respondent fails to comply with the above-mentioned deadline, an interest
rate of 5% per year will apply and the case will immediately be presented to the
FIFA Disciplinary Committee.
4. The Claimant is directed to inform the Respondent immediately 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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5. According to art. 60 par. 1 of the FIFA Statutes, this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 10 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives issued
by the CAS, copy of which we enclose hereto. Within another 10 days following
the expiry of the time limit for the filing of the statement of appeal, the
appellant shall file with the CAS a brief stating the facts and legal arguments
giving rise to the appeal (cf. point 4 of the directives). The full address and
contact numbers of the CAS are the following:
Avenue de Beaumont 2
1012 Lausanne
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:
Urs Linsi
General Secretary
Enclosed: CAS directives
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