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 Rogerio Amoretty Souza (Brazil), Member
Gerardo Movilla (Spain), Member
Theo van Seggelen (Netherlands), Member
on the claim presented by
the player, X, Bosnia & Herzegovina
as Claimant
against
the club, Y, Russia
as Respondent
regarding a contractual dispute between the parties involved
./…
Facts of the case:
− The employment contract signed between the player X and his former Russian club Y
is valid from 30 July 2003 until 30 July 2005. According to the contract, for the
2003/04 season the player is entitled to a monthly salary of USD 10,400 and for the
2004/05 season to a salary of USD 12,500 per month.
− On 28 May 2004, Y approached FIFA to complain that the player X had abandoned
the club and apparently refused to receive his salary.
− In his response to these allegations, X defended that in March 2004 he had been
compelled to leave Russia because he was no longer being paid his salaries by the
club and he was being refused participation in training sessions.
− The player explained that on 15 December 2003 he had been informed verbally by
the coach and manager that his services were no longer required but that he could
continue to train with the second team if he wished.
− The club accordingly stopped paying his salary as from November 2003 onwards.
− No particular reasons or further explanations have been given to the player by the
club for this sudden course of events.
− On 2 August 2004, the Football Federation of Bosnia & Herzegovina lodged a formal
complaint at FIFA on behalf of the player, demanding payment of his salaries as well
as the termination of the contract.
− Following FIFA’s intervention, on 25 August 2004 Y paid X all his outstanding salaries
up until 30 June 2004, in the total of USD 80’360.
− Despite this gesture, the player insisted on being declared free of his contract, as he
was in need of setting forth his football career.
− When Y was accordingly asked by the FIFA Administration whether or not it insisted
on the player’s services, the club did not respond. As a result, on 25 October 2004
FIFA authorised X to sign with the club of his choice.
− By faxed letter dated 8 December 2004, the Russian Football Union wrote to FIFA on
behalf of its member club Y, asking FIFA to examine the possibility of terminating
this club’s employment contract with X and disqualifying him.
− Despite the contents of this communication, the Russian Football Union refused the
Slovenian Football Association’s request for the player’s international registration
transfer certificate, insisting that he was still under contract with Y and that his
prospective new club should therefore contact this club first for negotiations.
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− In view of the Russian Football Union’s refusal to issue the required document, the
Single Judge of the Players’ Status Committee was requested to decide on the
player’s provisional registration in Slovenia.
− In his deliberations, the Single Judge acknowledged that on the basis of the contents
of the letter dated 8 December 2004 from the Russian Football Union, it was evident
that it was also the intention of Y to have the contractual relationship with X
declared terminated.
− Consequently, the Single Judge considered that the parties should focus on the
financial aspects of the dispute and accepted the request of the Slovenian Football
Association for the provisional registration of the player.
− On 11 March 2005 X was registered with the Slovenian club Z.
− The player is presently claiming a damage compensation equal to the payment of his
salaries until the end of the official contractual term, that is, full payment up until 30
July 2005, i.e. USD 150,000 (12 x USD 12,500).
Considerations of the Dispute Resolution Chamber
The Dispute Resolution Chamber of the FIFA Players’ Status Committee shall review
disputes coming under its jurisdiction pursuant to Art. 42 of the FIFA Regulations for
the Status and Transfer of Players (hereafter: FIFA Regulations) at the request of one of
the parties to the dispute.
According to Art. 42 of the FIFA Regulations, 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 of the FIFA Players’ Status
Committee.
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.
Entering into the substance of the matter, the Chamber noted that the main point of
contention that caused the disruption of the employment relationship between the
claimant and the respondent, was the unprecedented request by the club for X to stop
training with the first team, followed by the non-payment of his salaries from
November 2003 onwards.
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Apparently no valid reasons had been given for the club’s decision to oust the player
from the team, nor was such a decision ever communicated to him in any official,
written form.
Based on these circumstances, and especially on the ensuing non-payment of the
player’s dues (in March 2004, when the player left, the club was in delay with the
payment of at least 4 monthly salaries, i.e. from November 2003 to February 2004), the
Dispute Resolution Chamber agreed that there had been a breach of contract without
just cause on the part of the club, for which X had a right to be compensated.
In this respect, it was underlined that it was indisputably justified that a payment of
USD 80’360 had been effectuated by the club on 25 August 2004, covering the rest of
the player’s salaries up until the end of June 2004, despite the fact that he had been
absent since March 2004. The members of the Chamber explained that the amount
exceeding the salary due to the player until the date of his departure from the club
should be considered as a compensation for the unjustified breach of contract by the
club.
Next, the Dispute Resolution Chamber focused its attention on the role played by the
claimant in the course of the events leading to the present claim.
It was primarily noted that, according to his own account of the facts, the player had
apparently been offered the possibility to train with the second team of the club, but
had rejected this alternative. It remains unclear why this request to change teams was
refused, or whether he would have had an opportunity to continue receiving a salary if
he had accepted this proposition.
As the statements provided by the player were not sufficiently detailed or clear on this
particular point, the Dispute Resolution Chamber consulted the player’s employment
contract to verify whether it had explicitly been agreed between the parties that the
player had been employed specifically as a member of the club’s first team.
Upon verification, it was found that this was not the case, as art. 1 of the General
Provisions describes the duties and the position of the player in the following general
way:
art. 1.1 “X is contracted as an employee/football player of the [club].”
art. 1.3 “Working for the Club is the player’s main labor position.”
The Dispute Resolution Chamber continued its deliberations with respect to the
claimant, by noting in particular that when the salary payments to the player had
stopped in November 2003, he had not initiated any action such as serving notice upon
the club for its payment default, or contacting FIFA with a complaint, until well after
the initial claim had been instigated by the club.
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In conclusion, the members of the Dispute Resolution Chamber were of the opinion
that both the claimant as well as the respondent could be held partly accountable for
the course of events leading to the termination of their employment relationship. For
this reason it was acknowledged that since a compensation was already paid out to the
claimant in August 2004, no further damage compensation would be due.
The Chamber ended its deliberations by confirming the decision taken by the Single
Judge on 9 March 2005, according to which X was authorized to be registered for the
club, Z, in Slovenia. In this respect, the Chamber underlined that upon receipt of the
relevant request for the player’s international registration transfer certificate, the
Russian Football Union is asked to comply with this request, so as not to hinder the
player’s career.
Decision of the Dispute Resolution Chamber
1. The financial claim lodged by the Claimant is rejected.
2. The employment contract between the Respondent and the Claimant is terminated
as from March 2004.
3. The decision taken by the Single Judge of the Players’ Status Committee on 9 March
2005, is confirmed.
4. According to art. 60 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 10 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).
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The full address and contact numbers of the CAS are the following:
Avenue de Beaumont 2
CH-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:
Jérôme Champagne
Deputy General Secretary
Encl. (CAS directives)
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