Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 May 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Gerardo Movilla (Spain), member
Philippe Diallo (France), member
Ivan Gazidis (USA), member
on the claim presented by the club,
X, XX,
as “Claimant”
against the player,
Y, YY,
as “Respondent”
regarding a dispute about an alleged
breach of an employment contract arisen between the parties involved
I.
Facts of the case
1.
On 17 September 2005, the YYian player Y (hereinafter: the Respondent), born on
25 November 1986, and the XXn club, X (hereinafter: the Claimant), signed an
employment contract valid for two years. No precise ending date was indicated.
2.
A copy of the said employment contract was remitted to the Dispute Resolution
Chamber.
3.
According to the said contract, the Respondent was entitled to receive USD
100,000 per year, i.e. USD 40, 000 as a signing-on fee and USD 60,000 as salaries
(USD 5,000 per month) as well as bonuses. Furthermore, the Claimant undertook
the obligation to pay for the Respondent’s rent, insurance, nutrition,
transportation and medical expenses.
4.
On 9 June 2007, the Claimant lodged a claim with FIFA (Players’ Status Committee)
against the Respondent and the Football Federation of YY respectively, since the
Respondent, after having been released to take part in a match with the
Association team of the Football Federation of YY on 3 June 2007, did not resume
duty with the Claimant in time. The Claimant requested FIFA’s intervention in
order that the Respondent resumes duty with the Claimant. Despite FIFA’s
correspondence addressed to the Football Federation of YY and the Respondent
by means of which they were informed about the relevant applicable provisions of
the FIFA Regulations for the Status and Transfer of Players (edition 2005), the
Respondent failed to return to the Claimant.
5.
On 25 June 2007, the Football Federation of YY explained that the Respondent is
blocked in YY due to passport problems, i.e. that the passport expired and the
issuance of a new one takes longer than expected. Further, it stated that the
Respondent, in spite of having signed a two-years contract with the Claimant, had
never permanent residence papers, why he needed to have a new visa each time
he travelled out of XX. Moreover, the Football Federation of YY promised that
once the Respondent obtains his new passport and visa, he would immediately
join the Claimant.
Club X, XX / Player Y, YY
2
6.
In its subsequent correspondence dated 10 July 2007, the Football Federation of
YY informed that, as a result of its intervention, the Respondent received a new
passport ahead of schedule. Yet, the Football Federation of YY explained that, “as
a consequence”, the Respondent travelled with the YY Olympic Team to llll on 7
July 2007 in order to participate with that team at the All …..Games and that he
would return on 25 July 2007 at the latest, after the aforementioned Games.
7.
On 11 December 2007, the Single Judge of the Players’ Status Committee decided
on the matter and concluded that the Respondent had not resumed duty with his
club, the Claimant, in a timely manner respectively failed completely to return to
the Claimant. Likewise, the Single Judge held that the Football Federation of YY
repeatedly breached the pertinent applicable provisions of the Regulations for the
Status and Transfer of Players (edition 2005). Therefore, both the Respondent and
the Football Federation of YY were sanctioned.
8.
Due to the fact that, meanwhile, the Respondent failed to return to the Claimant,
on 2 August 2007, the Claimant lodged another claim with FIFA (Dispute
Resolution Chamber) against both the Respondent and the Football Federation of
YY and maintained that the Respondent had breached the employment contract
signed between the parties. The Claimant claimed from the Respondent the
payment of compensation in the amount of USD 200,000 for breach of contract,
USD 125,000 for replacing the Respondent by another player, i.e. ……..USD 5,500
for losing a license in the ….Champions League since the relevant regulations do
not permit replacements. Furthermore, the Claimant requests from the Football
Federation of YY the amount of USD 100,000, since it had obviously omitted to
arrange for the Respondent’s return to the Claimant in time after having been
released for international duties. According to the Claimant, as an aggravating
circumstance, the Football Federation of YY and the Respondent did not obey
FIFA’s instructions that the Respondent should immediately return.
9.
According to the Claimant, the Respondent was supposed to return on 4 June
2007. In this context, it submitted a document entitled as “application breaks”
signed by the Respondent and the manager of the Claimant according to which
the Respondent was given a leave of 5 days, i.e. until 4 June 2007. Due to his nonreturn to the Claimant, the Respondent missed several important matches in the
XXn Cup and in the …..Champions-League. Furthermore, according to the
Claimant, the Respondent, during his stay in YY, had started negotiations in view
of a new employment contract with the ZZ Club Z.
10.
On 12 September 2007, the Respondent presented his position and stated that due
to the frequent use of his passport (for participation in international matches with
the Association Team of the Football Federation of YY) this document ran out of
paper, the reason why he needed to get a new passport. The Respondent also
Club X, XX / Player Y, YY
3
explained that he had never received the relevant permanent residence papers for
his stay in XX. What is more, the Respondent explained that he took advantage of
the latest call-up to play for the Association Team of the Football Federation of YY
and stayed in YY in order to get a new passport. During this stay, he was
contacted by the Club Z and this club started to get in contact with the Claimant in
view of his envisaged transfer. However, the negotiations got stuck since the
Claimant asked more that Club Z was willing to pay for his transfer. In this context,
the Respondent added that he informed the Claimant of his intentions to change
the club. Allegedly, the Claimant gave its consent thereto but requested him to
provide concrete proposals from other clubs.
11.
In reply to the Respondent’s statements, the Claimant denied having given its
consent to the Respondent that he may look for another club. The Claimant also
rejected the Respondent’s allegations as regards the problem he allegedly faced
with his visa.
12.
Moreover, the Claimant emphasized that the Respondent’s pretended problems
with his passport do not justify his absence from the Claimant. This all the more
since the Respondent was instructed by FIFA to return to it. Furthermore, the
Claimant underlined that the Respondent, even after having participated in the
All ….Games in ….., instead of returning to the Claimant, joined the ZZ Club Z and
started to train with the ZZ club at a time when the Claimant needed his services.
13.
In his final submission, the Respondent explained that in June 2007 he participated
with the YY Olympic Team in the preparation “stage” in ……… and subsequently
in the All-…….Games in ……... According to the Respondent, the Claimant was
officially informed by the Football Federation of YY of his call-ups. Furthermore,
the Respondent reiterated that, despite his several requests, the Claimant did not
provide him with a valid visa during his 2-years stay in XX. Consequently, he was
arrested several times by the authorities in XX.
14.
On 18 December 2007, the Respondent signed a new employment contract with
the ZZ Club Z valid for three years.
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 2 August 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18 par.
2 and 3 of the Procedural Rules).
Club X, XX / Player Y, YY
4
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 XXn club and a YYian player.
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 2 August
2007, the previous version of the regulations (edition 2005; hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
In continuation, prior to starting with the considerations of the matter at stake,
the president of the Chamber stated that, in view of the fact that a ZZ party is
involved in the present procedure, he abstains from participating to the
deliberations.
5.
Furthermore, the competence of the Chamber and the applicable regulations
having been established, the members of the Chamber entered into the substance
of the matter. The members of the Chamber started by acknowledging the abovementioned facts and the documentation contained in the file and, in view of the
circumstances of the matter at stake, focused its considerations on the question
whether an unjustified breach of the employment contract signed by and between
the Claimant and the Respondent occurred and, in the affirmative, which party is
responsible for such breach of contract, and to verify and decide if financial and/or
sporting sanctions for breach of contract have to be applied.
6.
As far as the question is concerned whether a breach of contract occurred, the
Chamber started by acknowledging that the Claimant and the Respondent signed
on 17 September 2005 an employment contract which was to be valid for two
years.
7.
In continuation, the members of the Chamber acknowledged the Claimant’s
allegations according to which the Respondent, by failing to return to it after
having been released to take part in a match with the Association team of the
Football Federation of YY on 3 June 2007, breached the employment contract
entered into between the parties. Furthermore, the deciding body noted that the
Claimant requests the Respondent inter alia to pay compensation for breach of
contract. In addition to that, the Chamber took note that the Claimant’s claim is
directed likewise against the Football Federation of YY for its alleged failure to
Club X, XX / Player Y, YY
5
ensure that the Respondent returns to the Claimant in due course after the
Respondent having been released to play in the aforesaid match with the
Association team of the Football Federation of YY and thus requests from the
Football Federation of YY payment amounting to USD 100,000.
8.
With regard to the Respondent’s submissions regarding his absence from the
Claimant, the Chamber noted that the Respondent claims that during his stay in
XX he was never provided with a valid visa by the Claimant and was therefore
arrested on several occasions. The Respondent further emphasised that he needed
to renew his passport in YY and that due to frequent use, it had run out of paper.
The opportunity to renew this document had presented itself upon his latest callup to play for the Association team of the Football Federation of YY. For this
reason, he remained in YY until his new passport was issued. During this time he
was contacted by the ZZ Club Z with a view to a future transfer. According to the
Respondent, he informed the Claimant of his intention to change club and the
Claimant gave its consent.
9.
In this connection the decision-making body deemed it appropriate to point out
that the Single Judge of the Players’ Status Committee, in accordance with his
competence, had finally settled the questions regarding the release of the
Respondent for duty with the Association team of the Football Federation of YY.
This decision found that the Respondent had not returned to the Claimant in a
timely manner, i.e. in accordance with the binding provisions regarding the
deadlines by which a player must return to work at his club after he has complied
with a call-up to his association team. Furthermore, the Single Judge of the
Players’ Status Committee found that the Association team of the Football
Federation of YY had repeatedly failed in its duty to ensure that the Respondent
returned to the Claimant in a timely manner after the match/matches.
10.
In accordance with his above-mentioned findings, the Single Judge of the Players’
Status Committee imposed sanctions on the Respondent and the Football
Federation of YY.
11.
In this regard the members of the Chamber pointed out that FIFA is not
competent to hear the claim of a club against an association (cf. art. 22 of the
Regulations). The Chamber thus found that it could not enter into the part of the
claim that is directed against the Football Federation of YY. The Chamber also
referred to the proceedings before the Single Judge of the Players’ Status
Committee, in which a decision was passed on the failings of the Football
Federation of YY regarding the player’s delayed return/failure to return to the
Claimant.
Club X, XX / Player Y, YY
6
12.
The decision-making body then entered into the Respondent’s statement and
noted that, according to the principle of the burden of proof, he had been unable
to support his claims regarding his failure to return to the Claimant with any
relevant evidence. There was no evidence in support of either his claim that the
Claimant never provided him with a valid visa during the duration of the contract
or his claim regarding his alleged problem with his passport. In this regard the
Chamber underlined that it would have been the Respondent’s duty to draw the
Claimant’s attention to these failings so that the Claimant could have taken the
relevant measures to solve the problem. According to the documents on file, the
Respondent appears never to have complained to the Claimant about these
failings.
13.
Furthermore, in his second statement in the present proceedings the Respondent
himself confirmed the Claimant’s suspicion that the Respondent had conducted
negotiations with the ZZ Club Z with a view to sign an employment contract. It
then emerged that the parties signed the corresponding employment contract on
18 December 2007.
14.
In this regard the Chamber noted the Respondent’s explanation that he had
received the Claimant’s consent to look for a new club. This claim was
categorically rejected by the Claimant.
15.
The Chamber once again referred to the principle that any party deriving a right
from an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the
Procedural Rules).
16.
The Respondent once again failed to submit any documents in support of his
statements.
17.
In the light of the above, the Chamber concluded that the Respondent was unable
to demonstrate that he had valid reasons for failing to return to the Claimant
after the match with the Association team of the Football Federation of YY on 3
June 2007 and to honour the contract until its agreed expiry date.
18.
As a result of the above, the Dispute Resolution Chamber came to the conclusion
that the Respondent had breached without just cause the contract binding him to
the Claimant. The members present at the meeting recalled that the Respondent
neither had the approval of the Claimant to enter into negotiations with a
potential new club nor did he invoke a valid just cause before the Chamber for
having not assumed his duties under the employment contract he entered into
with the Claimant.
Club X, XX / Player Y, YY
7
19.
Having established that the Respondent had breached the employment contract
with the Claimant, the Chamber turned to the question whether the Respondent
is accountable for compensation for breach of contract and if sporting sanctions
shall be applied on him for breach of contract without just cause.
20.
As to the amount of compensation for the unjustified breach of contract, and
considering the objective criteria listed in art. 17 par. 1 of the Regulations, the
Chamber decided that a compensation of USD 45,000 is adequate particularly in
view of the fact that the time remaining under the relevant employment contract
was of 3½ months only (compared to the 20 months of the contract which were
duly executed).
21.
In light of the above, the Dispute Resolution Chamber decided that the
employment relation between the Claimant and the Respondent has been
terminated and that the Respondent has to pay to the Claimant the amount of
USD 45,000 as compensation for breach of contract without just cause.
22.
In continuation, the Chamber added that, in application of art. 17 par. 2 of the
Regulations, the new club of the player Y, i.e. the ZZ Club Z is jointly and severally
liable for the payment of the relevant compensation towards the Claimant in the
amount of USD 45,000. In this respect, the Chamber was eager to point out that
the joint liability of the player’s new club is independent from the question of a
possible inducement to contractual breach.
23.
Then, the members of the Chamber turned to the question of the sporting
sanctions possibly to be imposed on the Respondent in accordance with art. 17
par. 3 of the Regulations.
24.
In this respect, the Chamber held that such sanctions can only be imposed on a
player found to be in breach of contract during the protected period (cf. art. 17
par. 3 of the Regulations).
25.
In this context, the Chamber referred to pt. 7 of the definitions in the introduction
part to the Regulations which provides that the protected period is “a period of
three entire seasons or three years, whichever comes first, following the entry into
force of a contract, if such contract was concluded prior to the 28 birthday of the
Professional…”.
26.
The Chamber held that on 17 September 2005, when the Respondent signed the
employment contract with the Claimant, he was, according to the said contract, 18
years of age. Moreover, the breach of that contract occurred in June 2007 when it
became evident that the Respondent no longer intends to fulfil the employment
Club X, XX / Player Y, YY
8
contract he signed with the Claimant, thus before the lapse of three years from
concluding the contract with the Claimant.
27.
In view of the above, the Chamber concluded that the Respondent breached the
employment contract he entered into with the Claimant without just cause during
the protected period. As a consequence, sporting sanctions shall be imposed on
the Respondent.
28.
To this end, the Chamber referred to the contents of art. 17 par. 3 of the
Regulations stipulating the sporting sanctions for breach of contract during the
protected period as “a restriction of four months on his [i.e. the player’s] eligibility
to play in official matches. In the case of aggravating circumstances, the restriction
shall last six months”.
29.
With regard to the quoted provision, the Chamber emphasized that a suspension
of four months on a player’s eligibility to participate in official matches is the
minimal sporting sanction that can be imposed for breach of contract during the
protected period. This sanction, according to the explicit wording of the relevant
provision, can be extended in case of aggravating circumstances. In other words,
the Regulations intend to guarantee a restriction on the player’s eligibility of four
months as the minimal sanction.
30.
The Chamber held that it could not find particular aggravating circumstances that
would allow to draw the conclusion to impose a restriction higher than four
months of the Respondent’s eligibility to play in official matches.
31.
The deciding authority therefore decided that the player had to be sanctioned
with a restricition of four months on his eligibility to participate in any official
football matches as from the notification of the present decision.
32.
As a consequence to all of the above, the Dispute Resolution Chamber decided
that the Respondent has to pay to the Claimant the sum of USD 45,000. Equally,
the Chamber decided that a restriction of four months on the Respondent’s
eligibility to play in official matches shall be imposed.
33.
Finally, the Chamber reiterated that according to art. 17 par. 2 of the Regulations,
the player’s new Club Z shall be jointly and severally liable for the compensation
payable by the player for the breach of contract to the Claimant.
III.
Decision of the Dispute Resolution Chamber
Club X, XX / Player Y, YY
9
1.
The claim of the Claimant, club X, is partially accepted.
2.
The Respondent, player Y, has to pay compensation in the amount of USD 45,000
to the Claimant, club X, within 30 days of notification of the present decision.
3.
The ZZ Club Z is jointly and severally liable for the payment of the abovementioned amount.
4.
If the aforementioned amount is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted to the FIFA’s Disciplinary Committee, for
consideration and a formal decision.
5.
The Claimant, club X, is directed to inform the Respondent, player Y, and the ZZ
Club Z 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.
6.
A restriction of four months on his eligibility to play in official matches is imposed
on the Respondent, player Y. This sanction shall take effect as from the
notification of the present decision.
7.
Any further requests of the Claimant, club X, are rejected.
8.
According to art. 61 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 21 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
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
Club X, XX / Player Y, YY
10
For the Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl: CAS directives
Club X, XX / Player Y, YY
11