Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 May 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Caio Cesar Vieira Rocha (Brazil), member
Mario Gallavotti (Italy), member
on a matter between the player
E,
as Claimant
and the club
G,
as Respondent
regarding a contractual dispute arisen between the parties.
I.
Facts
1.
On 20 August 2007 the player I (hereafter: the Claimant) and the club G
(hereinafter: the Respondent) signed an employment contract for the period 20
August 2007 to 31 May 2010 or until the end of the 2009-2010 season.
2.
This employment contract provided the Claimant with a monthly salary of 30,000
from August 2007 to April 2008 (nine instalments), June 2008 to April 2009 (11
instalments) and June 2009 to May 2010 (12 instalments).
3.
The contract also contains a clause stating that the Respondent had the option to
unilaterally terminate the contract before its expiry date by notifying the player
30 days in advance.
4.
In letters dated 10 November 2007 and 15 January 2008 the Claimant lodged a
claim against the Respondent with FIFA, alleging that the Respondent had
terminated the employment contract without just cause and without the
Claimant’s consent. In this regard he is claiming compensation of 960,000
corresponding to the remaining value of the contract, i.e. three years’ salary,
based on a monthly salary of 30,000 for the periods August 2007 to April 2008
(nine instalments), June 2008 to April 2009 (11 instalments) and June 2009 to May
2010 (12 instalments).
5.
The Respondent rejects the Claimant’s claims and has made a counter-claim
against the Claimant seeking reimbursement of 157,129.
5.1
The Respondent alleges that although the Claimant signed a contract on 20
August 2007, he only had a 15-day business visa which expired on the date of
signature of the contract, the signature of which should have enabled the visa to
be renewed. For this reason, the Respondent claims that it sent the Claimant to N
to renew his visa. The Respondent further claims that the Claimant received his
visa on 23 August 2007 and did not return to I until 17 September 2007. In the
end, it was not possible to register the Claimant with the Respondent until 25
September 2007.
5.2
Furthermore, the Respondent submits that the coach had noticed a certain
nonchalance on the part of the Claimant during training and on the pitch. The
Respondent states that the Claimant played seven matches, but only two for the
whole 90 minutes. According to the Respondent, the Claimant’s attitude did not
change and the Respondent was forced to send him a written warning on 27
October 2007. Furthermore, the Respondent asserts that the Claimant’s behaviour
worsened and that the Respondent notified him on 6 November 2007 that his
contract would be terminated in 30 days in accordance with the contractual clause
providing the Respondent with this option.
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5.3
The Respondent claims that it paid him the following amounts (without providing
any evidence):
- a 20,000 advance on 20 August 2007, as well as return tickets from I to L to
renew his visa
- a 40,000 advance on 4 October 2007 to cover the cost of burying the Claimant’s
father (the Respondent claims that it later discovered that the Claimant’s
father was not dead)
- a 160,000 advance on 12 October 2007
5.4
According to the Respondent, the Claimant joined it on 20 August 2007 and left G
on 15 November 2007, i.e. before the end of the 30-day term announced on 6
November 2007, using tickets provided by the Respondent and without informing
the Respondent.
5.5
The Respondent estimates that the Claimant was entitled to receive 62,870,
consisting of:
- 3,871 (four days from 20-23 August 2007), considering that the absence from
23 August to 17 September 2007 was unauthorised
- 14,000 (14 days from 17 to 30 September 2007)
- 30,000 (October 2007)
- 15,000 (15 days of November 2007)
The Respondent considers that in allegedly receiving 220,000, the Claimant was
overpaid by 157,129, and seeks reimbursement of this amount.
6.
The Claimant responded that the fact that he arrived in I on his own initiative with
a business visa and that he therefore had to return to N to receive a new visa is of
no relevance to his claim against the Respondent.
6.1
The Claimant claims that he returned to N on 21 August 2007 and received his
new visa on 23 August 2007. However, the Claimant asserts that he was expressly
requested to wait and train in N until his International Transfer Certificate was
issued by the Football Federation N. Furthermore, he claims that the Respondent
had informed him that the Respondent would be travelling for three weeks to
take part in a tournament and that no one in I would be able to take care of him.
Therefore, the Claimant allegedly decided to remain in N and train there.
Furthermore, he claims that he had no interest in remaining in N from 23 August
to 17 September 2007 as he risked not being paid for this period.
6.2
In addition, the Claimant claims that he scored four goals in seven league matches
and that he therefore had not played as badly as the Respondent had claimed. He
submitted news articles confirming that he had scored four goals.
6.3
The Claimant also confirms having received a warning letter dated 27 October
2007 and received on 4 November 2007. Two days later, on 6 November 2007, he
claims to have received a second letter stating that the contractual relationship
would end in one month.
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6.4
The Claimant underlines that he was injured during a league match on 14 October
2007. He states that from that moment on, the Respondent did not appreciate his
presence because he was not able to train properly for 14 days after his injury and
he constantly claimed payment of the first instalment of his salary. He considers
the termination of the contract by the Respondent to be without just cause.
6.5
The Claimant insists that he did not receive 20,000 on 20 August 2007 or 40,000 on
12 October 2007. He states that the allegation that he was paid 220,000 is false
and that all he received was a plane ticket from L to I because he still had his own
return ticket to L. Furthermore, he explains that it would have been very generous
of the Respondent to overpay him by 157,129 when he was allegedly only entitled
to 62,871.
6.6
The Claimant claims that he had refused to sign a termination letter on 6
November 2007 and that he had been physically mistreated by a Respondent
official and evicted from the accommodation that the Respondent had provided
him with. He claims that he feared further mistreatment and was obliged to leave
I immediately.
7.
The Respondent added that the Claimant had not provided a convincing excuse
for his absence from I and has submitted confirmation from the Football
Federation I that it took part in a tournament in the P from 3-9 September 2007
only. Furthermore, the Respondent asserts that it never takes the whole team to
tournaments and that training sessions continue with the players who remain at
home. The Respondent has also submitted three receipts for payment of 20,000,
40,000 and 160,000 allegedly signed by the Claimant, accompanied by a document
explaining that the Claimant had probably deliberately signed his contracts and
correspondence with a different signature.
8.
The Claimant replied that the receipts were forged and that he had neither
received these amounts nor signed the receipts.
9.
At FIFA’s request, the Respondent submitted the originals of the payment receipts.
NB: the Claimant’s signature on the employment contract between the
Respondent and the Claimant and the signatures on the payment receipts do not
resemble one another, as noted by the Respondent. However, the Claimant’s
signature on the contract and the signature on the correspondence sent to FIFA
appear to be identical.
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 10 November 2007. Consequently, the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
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Chamber (edition 2005, hereafter: 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 player and a 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 10
November 2007, the previous version of the 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 carefully studied the facts outlined above as well as the entire
documentation on file.
5.
First, the Chamber turned its attention to the Claimant’s complaint lodged with
FIFA, by means of which the Claimant implicitly claims that the Respondent had
breached the employment contract concluded with the Respondent by
prematurely terminating said contract without having a just cause.
6.
In this respect, the Chamber took note that the Respondent notified the Claimant
on 6 November 2007 that his contract would be terminated in 30 days in
accordance with the contractual clause providing the Respondent with this option.
7.
With regard to that termination on the basis of said clause, the Chamber
emphasized that according to its longstanding jurisprudence concerning unilateral
termination and extension options, the unilateral option in the unique favour of
the Respondent to unilaterally terminate the contract before its expiry date by
notifying the Claimant 30 days in advance was abusive and could not be taken
into consideration as a valid contractual reason to prematurely terminate the
Claimant’s contract.
8.
Continuing, the Chamber took note of the fact that the Respondent alleges that
the Claimant had returned late from N when he was sent back to renew his visa,
that the Claimant had received his visa on 23 August 2007 but that he did not
return to I until 17 September 2007 and only registered with the Respondent until
25 September 2007.
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9.
However, the Chamber also took note of the Respondent’s admittance that the
Claimant indeed had participated in seven matches after having been registered
for the Respondent.
10.
On account of the aforesaid, the Chamber concluded that the allegation that the
Claimant returned late from N could also not taken into consideration with regard
to the termination of the employment contract due to the fact that the
Respondent obviously had accepted the Claimant as a member of its team without
attaching direct consequences to the Claimant’s behaviour.
11.
Furthermore, the Chamber wished to stress that the Respondent was also not able
to prove that it was the Claimant’s misbehaviour that led to the late registration
of the Claimant with the Respondent in September 2007.
12.
In continuation, the Chamber turned its attention to the Respondent’s allegation
that the Claimant was entitled to receive 62,870, consisting of:
- 3,871 (four days from 20-23 August 2007), considering that the absence from
23 August to 17 September 2007 was unauthorised
- 14,000 (14 days from 17 to 30 September 2007)
- 30,000 (October 2007)
- 15,000 (15 days of November 2007);
and that it had paid 220,000 to the Claimant and that he therefore was overpaid
by 157,129.
13.
The Chamber acknowledged that the Respondent has also submitted three
receipts for payment of 20,000, 40,000 and 160,000 dated 20 August, 4 October
and 12 October 2007 and allegedly signed by the Claimant, accompanied by a
document explaining that the Claimant had probably deliberately signed his
contracts and correspondence with a different signature.
14.
With regard to these payment receipts, the Chamber considered the fact that the
Claimant alleges that the receipts were forged and that he had neither received
these amounts nor signed the receipts.
15.
At FIFA’s request, the Respondent submitted the originals of the payment receipts.
16.
At this stage, the Chamber considered appropriate to remark that since each party
has a completely antagonistic position in this respect, this Chamber is not in a
position to consider and decide on the present case without first of all being
clarified the issue of the authenticity of the payment receipts dated 20 August, 4
October and 12 October 2007.
17.
Furthermore, the Chamber emphasized that as general rule it is not the competent
body to decide upon matters of criminal law, such as the alleged falsified
signatures or documents, but that such affairs fall into the jurisdiction of the
competent national criminal authority.
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18.
In continuation the Chamber recalled that all documentation remitted shall be
considered with free discretion and therefore focused its attention to the payment
receipts as well as the other documents containing the Claimant’s signature. After
a thorough analysis of the aforementioned documents, in particular, comparing
the relevant signature on the employment contract between the Respondent and
the Claimant and the signatures on the payment receipts, the Chamber had no
other option but to conclude that they are not identical, as noted by the
Respondent itself. However, the Chamber pointed out that the Claimant’s
signature on the contract and the signature on the various correspondence sent to
FIFA appear to be identical.
19.
On account of this analysis, the Chamber stressed that it appeared most likely that
another person than the Claimant had signed the payment receipts submitted by
the Respondent and that consequently the relevant payment receipts could not be
taken into account as evidence confirming the alleged payments made by the
Respondent.
20.
In view of the all of the above, and based on the documentation currently at its
disposal, the Chamber unanimously came to the conclusion that, unless proven
otherwise by a neutral expertise or a decision of the competent national criminal
authority, for the moment, the Respondent does not seem to have paid 220,000 to
the Claimant.
21.
Following the above conclusion, the Chamber recalled that the Claimant alleges
that the Respondent had terminated the employment contract without just cause
and without the Claimant’s consent. In this regard he is claiming compensation of
960,000 corresponding to the remaining value of the contract, i.e. three years’
salary, based on a monthly salary of 30,000 for the periods August 2007 to April
2008 (nine instalments), June 2008 to April 2009 (11 instalments) and June 2009 to
May 2010 (12 instalments).
22.
On account of all of the above and taking into consideration that the Respondent
did not provide any elements that would lead to another conclusion, the Chamber
decided that the Respondent had breached the employment contract concluded
with the Claimant and that they were not able to detect a just cause for
prematurely terminating said contract by correspondence dated 6 November 2007.
23.
Consequently, taking into consideration art. 17 par. 1 of the Regulations and the
constant jurisprudence of the Dispute Resolution Chamber, the Chamber decided
that the Claimant is entitled to receive an amount of money as compensation on
the basis of the employment contract.
24.
In this respect, the Chamber noted that the Claimant asks for a compensation of
960,000 corresponding to the remaining value of the contract, i.e. three years’
salary, based on a monthly salary of 30,000 for the periods August 2007 to April
2008 (nine instalments), June 2008 to April 2009 (11 instalments) and June 2009 to
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May 2010 (12 instalments). In this respect, the Chamber decided that on account
of the circumstances surrounding the present case as well as the criteria
established in art. 17 par. 1 of the Regulations, it was appropriate to award the
Claimant a compensation in the amount of 960,000 corresponding to the rest
value of the employment contract concluded with the Respondent.
25.
In conclusion, the Chamber decided that the Respondent has to pay to the
Claimant the amount of 960,000 as a compensation for breaching the employment
contract concluded between the two parties.
26.
With regard to the Respondent’s counter-claim against the Claimant whereby the
Respondent requests reimbursement of 157,129, the Chamber referred to its
above-mentioned conclusion that the Respondent is found to be in breach of
contract, i.e. that the Respondent terminated the contract without just cause (cf.
point II. 22.).
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, E, is accepted.
2.
The Respondent, the club G, has to pay to the Claimant the amount of 960,000
within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted upon the party’s request to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
4.
The Claimant, E, is directed to inform the Respondent, the club G, 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.
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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
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