Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 June 2005,
in the following composition:
Slim Aloulou (Tunisia), chairman
Maurice Watkins (England), member
Theo van Seggelen (the Netherlands), member
on the claim presented by the player
R, Brazil,
as Claimant
against the club
S, Russia,
as Respondent,
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 6 July 2003, the player R and the club S concluded an employment contract
with validity from 6 July 2003 until 6 July 2006. The contract stipulated a monthly
salary of USD 20,000, benefits, flight tickets Moscow – Porto Alegre – Moscow,
rental of an apartment and a car and premiums in cash from USD 5,000 to USD
11,000 per match.
2.
On 28 December 2004, the player turned to FIFA and alleged that the salaries of
April and August 2004 had not been paid. Furthermore, the player had a 50%
deduction from his salary in March 2004, as a fine for an alleged “uninterested
conduct” during training sessions. Finally, the player emphasised that another
harmful fact was that he had been placed from the “A” into the “B” team without
reason. Therefore, the player was of the opinion that the aforementioned is
enough grounds for termination of the contract with just cause and referred to
the art. 12 of the Regulations governing the Application of the Regulations for the
Status and Transfer of Players and art. 24 of the Regulations for the Status and
Transfer of Players. The player claimed an amount of USD 50,000 for the 2½
months of salary, the equivalent to all premiums of the “A” team paid to other
players during the year 2004 and that the Dispute Resolution Chamber pronounces
the contract terminated.
3.
Despite the invitation from FIFA, the club never answered to the claim of the
player. Therefore, on 31 January 2005 the parties were advised to consider their
labour relationship as terminated and to focus on the financial aspects of the
dispute.
4.
On 15 March 2005, the player confirmed his claim and added that the Dispute
Resolution Chamber decides on the amount to be paid as indemnity to the player
concerning the withdrawal of the car, which had a remuneration in natura
character.
5.
The Russian club answered on 30 March 2005 and alleged that the reclamations of
the player have no basis as the player claimed premiums for games he did not
play. The club stressed that the premiums were not between USD 5,000 and
USD 11,000 but only USD 2,500 per match. The club emphasised that the player
had not been fined because of “the lack of interest during trainings” but because
of his unsatisfactory work. As for the salaries, the club did not contest to owe the
player the salaries, however, alleged that the player perfectly knows that he must
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sign a particular document when receiving the salary. Finally, the club claimed that
the player had to return after the termination of his loan to the Brazilian club C,
however, he did not do that.
6.
On 8 June 2005, the player informed FIFA that he and the club where he had been
loaned, C, had agreed to terminate the employment contract on 12 May 2005,
thus on a date later than that on which S alleged the he had not returned to the
club at the end of the loan period with C. In addition, the player recalled that even
after the end of his loan contract he is legitimised to not return to the Russian
club, as FIFA declared on 31 January 2005 the employment relationship between
the parties as terminated. Finally, the player informed FIFA that the period during
which he rendered his services for the “B” team of the Russian club was between
March and September 2004, when he was then transferred on loan to C.
II.
Considerations of the Dispute Resolution Chamber
1.
The members of the Dispute Resolution Chamber were summoned to pass a
decision on this matter by the Chairman pursuant to Article 1 par. 6 of the Rules
Governing the Practice and Procedures of the Dispute Resolution Chamber.
2.
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 (edition September 2001) at the
request of one of the parties to the dispute.
3.
According to art. 42 par. 1 lit. (b) (i) of the Regulations for the Status and Transfer
of Players (edition September 2001), 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.
4.
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.
5.
Therefore, the members of the Dispute Resolution Chamber at first confirmed to
be competent to pass a decision in this matter. In addition, the Chamber
acknowledged the above-mentioned facts, as well as the further documentation
contained in the file.
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6.
Subsequently, and entering into the substance of the matter, the Chamber
considered that the player R and the club S signed a valid employment contract
according to which the parties agreed on basic monthly salary in the amount of
USD 20,000, benefits, flight tickets Moscow – Porto Alegre – Moscow, rental of an
apartment and a car and premiums in cash from USD 5,000 to USD 11,000 per
match.
7.
Furthermore, the Chamber acknowledged that according to the player R the
amount of USD 50,000 corresponding to 2½ monthly salaries has not been paid.
8.
The Chamber observed that with regard to the salaries claimed by the player, S
had explained that the player perfectly knows that he has to sign a particular
document when he receives his salaries. In this respect, the Chamber pointed out
that the club, however, never contested to still owe the amount of USD 40,000 to
the player. As a consequence, the Chamber concluded that the club has in any case
to pay the relevant sum to the player R.
9.
In continuation, the Chamber stated that the allegations of the club that the
player had been fined because of his unsatisfactory work are not substantiated. In
particular, the club did not provide FIFA with any kind of evidence in that respect.
Neither did the Russian club further specify, what exactly is meant by
“unsatisfactory work” nor did it provide indication that the player had been
previously warned of possible sanctions or that he received proper notification of
the measures taken. On account of the foregoing, the Chamber deemed that the
Russian club could not justify the reduction of the March 2004 salary by 50% and
therefore the club has still to pay the relevant amount of USD 10,000
corresponding to half of the salary of March 2004 to the player.
10.
In the light of all the above, the Chamber was of the opinion that the club did not
respect its financial contractual duties, and therefore, the deciding body
considered that the contract has been breached by the Russian club S.
11.
Subsequently, the Chamber turned to the question of the claimed bonuses for the
year 2004. In this respect, the Chamber stated that uncontestedly the player did
not play in the “A” team of the Russian club during the period between March
and December 2004. Therefore, the bonuses for matches of the “A” team are not
due. To that regard, the Chamber underlined in particular that, unless specifically
provided for in the relevant contract, the signature of an employment contract
with a football team does not content automatically the entitlement of the player
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to play for the first team of the club. Therefore, the Chamber rejected the claim of
the player to be paid the equivalent of all bonuses of the “A” team paid to other
players during the year 2004.
12.
Consequently, having thus analysed each of the various aspects of the player’s
claim, as well as the club’s defence statement in response, the Dispute Resolution
Chamber concluded its deliberations by announcing that the player’s claims were
partially admissible.
13.
Taking into account all of the above, the Chamber decided that the club S must
pay the amount of USD 50,000 to the player R.
14.
Finally, the Dispute Resolution Chamber decided that the contractual relation
between the parties is terminated with immediate effect.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player R is partially accepted.
2.
The club S has to pay the amount of USD 50,000 to the player R within the next 30
days as from the date of notification of this decision.
3.
Any further financial claims lodged by the player R are rejected.
4.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply and the present matter shall be
submitted to FIFA’s Disciplinary Committee, so that the necessary disciplinary
sanctions may be imposed.
5.
The player R is directed to inform S 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.
6.
The employment contract between the parties is terminated with immediate
effect.
7.
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
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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
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 Champagne
Deputy General Secretary
Encl.
CAS directives
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