Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 June 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), member
Percival Majavu (South Africa), member
Theo van Seggelen (Netherlands), member
John Didulica (Australia), member
on the claim presented by
the player, X, A
as Claimant
against
the club, Y, B,
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
The player X and the club Y signed a “Protocol” valid as of 1 July 2006 until 31
May 2009, without any indication of the date of signature. The “Protocol”
includes, inter alia, the following provisions:
“3.
The payment modalities for the season 2006/2007 are the following:
a) 25,000 EUR (cash) upon signature of the uniform contract. This must be
signed in June 2006.
b) 50,000 EUR, by monthly instalments of 5,000 EUR during 10 months
(August – May)
(…)
6.
The club agrees to pay the amount of EUR 15,000 to [the player’s] current
club (transfer). The amount shall be paid by the player to the club and the
club will pay it to the player.
7.
In case of non-respect of the present agreement by one of the parties, the
amount of EUR 100,000 must be paid to the other party.”
2.
On 24 July 2006, the player X lodged a complaint in front of FIFA against the club
Y. The player explained that he had been transferred to the said club in June 2006,
although the club had not requested the relevant international transfer certificate
(hereinafter: ITC). The player contended that Y had failed to comply with its
obligation stipulated in art. 3 a) of the “Protocol” signed by both parties. Upon
signature of the contract, the club had apparently issued a cheque in the amount
of EUR 25,000 to the player. However, the player claimed that the cheque was
uncovered. A copy of the said cheque, dated 7 July 2006, was presented by the
player.
3.
Furthermore, the player X claimed that the club had not invited him to the team’s
training camp and that he had been told that his services were no longer required
and that he could return to A.
4.
Consequently, the player X requested the Dispute Resolution Chamber to order Y
to pay EUR 25,000 plus interest as of the date of the complaint as well as the
amount of EUR 100,000 as stipulated in art. 7 of the “Protocol”, also with interest
as of the date of the complaint. Furthermore, the player X requested the Dispute
Resolution Chamber to declare that he was free to render his services with
another club and to impose disciplinary sanctions on Y.
Player X / Club Y
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5.
On 17 August 2006, Y confirmed that it had concluded the “Protocol” with the
player. According to the club, the player had first come to the preparations of the
team as agreed, but had then suddenly maintained that he did not like the city
and that he did not wish to play football there. Furthermore, the player had
allegedly not attended the preparatory camp prior to the season, although he had
been duly informed of the camp, and had thereafter not appeared at the trainings
with the club. In this respect, Y enclosed five witness reports signed by the club’s
coach, enterprise manager, vice club director and a player, stating that the player
X had failed to attend to several trainings during the period from 14 July 2006
until 19 July 2006. The club had apparently tried to arrange a meeting with the
player and his manager in order to settle the matter, but without success. The club
moreover maintained having paid the amount of EUR 15,000 which was due to
the player’s former club, in conformity with the “Protocol”. In this context, Y also
alleged having issued a cheque in favour of the player in the amount of EUR
25,000. In support of its statements, the club enclosed copies of the respective
payment receipts for the aforementioned amounts, both dated 7 July 2006 and
allegedly signed by the player.
6.
The club concluded that, provided that the amount of EUR 15,000 and the cheque
in the amount of EUR 25,000 were returned by the player, it would agree for him
to be transferred to another club. The club did however not present an explicit
statement regarding its attitude towards a possible future contractual relationship
with the player, in spite of having been invited twice to proceed accordingly.
7.
By letter dated 28 August 2006, the player held that he had never received any
amount of money from Y and that any document apparently attesting that he had
received the amount of EUR 25,000 was a falsification. In support of his comments,
the player enclosed an identification document bearing his signature. With regard
to the witness reports presented by the club, the player held that they were
documents which had been produced in view of giving an objective appearance to
the conduct of the club.
8.
On 21 September 2006, the Football Federation of B stated that its affiliated club
did not have any additional comments to be added to the file.
9.
On 5 October 2006, upon request of FIFA, the player X informed FIFA that he had
returned to A on 10 July 2006 and had started to play for the club Q as of 31
August 2006. In addition, the player maintained that he had put Y club in default
by lodging his claim on 24 July 2006. The player deemed that it would have been
futile to try to obtain the specific performance of the club’s obligations, since the
Player X / Club Y
3
contractual breach on the side of the club had been too severe. The player
furthermore reiterated his statements relating to the uncovered cheque and the
due date of the relevant payment.
10.
On 9 October 2006, the Football Federation of B submitted, upon request of FIFA,
the originals of the two payment receipts dated 7 June 2006 for the amounts of
EUR 15,000 and EUR 25,000 which were allegedly signed by the player X.
Furthermore, FIFA was provided with a letter of Y claiming that, in accordance
with art. 3 a) of the “Protocol”, the player should have signed the “Uniform
Contract”. However, since he did not sign the “Uniform Contract”, and therefore
“violated the agreement”, the bank of Y was instructed not to disburse the
cheque in the amount of EUR 25,000.
11.
By correspondence dated 30 January 2007, the player X pointed out that there
was an incoherence between the contents of the club’s correspondence dated 18
August 2006 and its latest position. Namely because in its first statement, the club
had maintained having paid the amount of EUR 25,000 to the player, thereby
presenting as a means of proof the receipt allegedly signed by the latter. Whereas
in its latest position, the club acknowledged having instructed its bank to not
disburse the cheque, since the player had allegedly breached his contract.
12.
Y did not present any final statements in this respect, in spite of having been
invited to proceed accordingly.
13.
During the proceedings in the present case, the Football Federation of B provided
FIFA with a copy of a fax addressed to the Football Federation of A, apparently
referring to an ITC-request for the player in question by the Federation of A. In its
answer to its counterpart, the Football Federation of B stated that the ITC for the
player X issued by the Football Federation of A on the occasion of his transfer to
B, dated 30 June 2006, had been returned to the Football Federation of A on 3
July 2006, and that the player had not been registered by the Football Federation
of B.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the matter at hand. In this respect, the Chamber referred to art. 18
paras. 2 and 3 of the Rules Governing the Procedures of the Players’ Status
Player X / Club Y
4
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 24 July 2006, thus after 1 July 2005. Therefore, the Dispute
Resolution Chamber concluded that the revised Rules Governing the Procedures
(edition 2005) on matters pending before the decision making bodies of FIFA are
applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 para. 1
of the above-mentioned Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of arts. 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 para. 1 in connection with art. 22 lit. b of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employment
related disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a player from A and a club from B
regarding an employment-related dispute between the parties.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 paras. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant player’s claim
had been lodged with FIFA on 24 July 2006 and that the “Protocol” was
apparently signed after 1 July 2005. In view of the aforementioned, the Dispute
Resolution Chamber concluded that the current FIFA Regulations for the Status
and Transfer of Players are applicable to the substance of the present case.
5.
Having established its competence to deal with the matter at hand and the
applicable Regulations, the Dispute Resolution Chamber entered into the
substance of the case. First of all, the members of the Chamber proceeded to
gather an overview of the events leading to the present dispute. In this respect,
the panel acknowledged that the player had, after having signed the “Protocol”
with the Respondent valid as of 1 July 2006, left the club and B after merely nine
days under contract, namely on 10 July 2006. According to the player, he had not
received his sign on fee in the amount of EUR 25,000 and had been informed by
the Respondent that his services were no longer required and that he could return
to A. In this context, the members of the Dispute Resolution Chamber pointed out
that the player had not put the club in default in writing before his departure,
Player X / Club Y
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since he had apparently deemed that it would be futile to do so, nor had he
presented any documentary evidence corroborating his allegations that he was
told by the club to leave.
6.
On the other hand, the members of the Chamber took note of the allegations of
the club Y, according to which the Claimant had initially attended to the trainings
with the club. However, according to the Respondent, the player had soon
declared that he did not want to play in B and had eventually failed to appear at
work. Furthermore, the panel acknowledged that the Football Federation of B
confirmed that it had returned the ITC of the player to the Football Federation of
A on 3 July 2006 and that the player had not been registered with the Football
Federation of B.
7.
In continuation, the members of the Dispute Resolution Chamber paid due
consideration to the cheque in the amount of EUR 25,000 which had been handed
to the player by the Respondent, but which was, as admitted by the club,
uncovered. In this respect, the Respondent had explained that it had instructed its
bank not to disburse the value of the cheque as the player had failed to sign the
“Uniform Contract” in accordance with clause 3 a) of the “Protocol”.
8.
In this respect, and for the sake of good order, the panel emphasised that, for the
purpose of the present decision, it did not have to establish whether or not the
player had indeed signed the receipt regarding the payment of EUR 25,000, since
in any case the club had admitted having instructed its bank not to disburse the
said amount to the player.
9.
In view of all of the above, the Dispute Resolution Chamber observed that the
respective account of the two parties as to the alleged reasons which had led to
the rupture of the labour relationship in question were diametrically opposed.
Furthermore, the panel noted that it had not been provided with sufficient
documentary evidence in order to establish the exact course of the events after
the signing of the “Protocol”, in particular as to the questions whether the club
had rejected the services of the player or whether the player on his part had
refused to appear at work. The only evidence in this respect were five witness
reports signed by the club’s coach, enterprise manager, vice club director and a
player, stating that Claimant had failed to attend to several trainings during the
period from 14 July 2006 until 19 July 2006. With regard to the said witness
reports, the members of the Chamber pointed out that, in any case, the player had
explained that he had left B already on 10 July 2006 due to the fact that the club
had allegedly not complied with its contractual obligations.
Player X / Club Y
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10.
However, having thoroughly analysed the documents on file as well as the
circumstances surrounding the present matter, the members of the Chamber came
to the firm conclusion that they had no alternative but to assume that neither of
the parties to the “Protocol” had in fact been interested in the execution of the
employment relationship. In this respect, the panel was eager to emphasize that
there were several elements to the case at hand in order to back this assumption.
11.
On the one hand, the Dispute Resolution Chamber deemed that the departure of
the player, only after nine days after the starting date of the “Protocol”, clearly
demonstrated that he was not interested in rendering his services to the club.
Even if the cheque amounting to EUR 25,000 which had been handed to the
player by Y was uncovered, this could not be considered a valid reason to leave
the club after only nine days without putting the club in default beforehand; all
the more so in view of the circumstance that the cheque had been handed to the
player on 7 July 2006 and the player had left B already three days after. In this
regard, the Dispute Resolution Chamber held that the argument of the player,
according to whom it would have been in vain to remind the club of its
contractual obligations before his departure, had to be rejected, since the player
had failed to provide evidence corroborating that the club had behaved in such a
manner that would have justified such a sudden and premature departure from
the country, or that he had vainly tried to offer his services to the club.
12.
On the other hand, the Dispute Resolution Chamber noted that the club had
apparently not arranged for the player in question to be registered with the
Football Federation of B, and that the ITC for the player had, according to the said
Federation, already been returned to its counterpart in A on 3 July 2006.
Furthermore, the panel acknowledged that it was uncontested that the club had
failed to pay the amount of EUR 25,000 to the player, even though the latter had
received a cheque in this amount.
13.
With regard to the abovementioned payment provided for in clause 3 a) of the
“Protocol”, the members of the Chamber proceeded to closely examine the said
clause, stipulating that the amount of EUR 25,000 was due “upon signature of the
uniform contract” which had to be signed in June 2006. This led the Dispute
Resolution Chamber to conclude that the “Protocol” made reference to a further
“Uniform Contract” which apparently had had to be signed by the parties to the
“Protocol” in June 2006. In this respect, the members of the Chamber noted that
no such document had been submitted by either of the parties.
14.
On account of the above, and in view of the circumstances of the present case, the
panel had no alternative but to assume that such “Uniform Contract” had not
been signed since neither of the parties had been interested in a future
Player X / Club Y
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collaboration. Consequently, the members of the Chamber considered that any
contractual relationship between the parties must be considered as terminated.
Furthermore, the panel deemed that none of the parties could be established as
solely or predominantly responsible for breach of contract, due to which no
compensation for such breach was to be awarded in the present case.
15.
However, the Dispute Resolution Chamber stated that, as it is not contested that
the player rendered his services to the club from 1 July 2006 until 10 July 2006, the
player is entitled to receive a corresponding compensation. In this respect, the
Chamber deemed that, since the player had started to render his services to the
club in July 2006, the player was entitled to receive compensation for these
services equalling one month salary, amounting to EUR 5,000, as well as a pro rata
proportion of the sign on fee, amounting to EUR 1,000.
16.
Finally, the Dispute Resolution Chamber decided to reject all further claims of the
player.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the player X, is partially accepted.
2.
The Respondent, Y, must pay the amount of EUR 6,000 to the Claimant within 30
days of the date of notification of the present decision.
3.
In the event that the above-mentioned amount is not paid within the indicated
deadline, interest at a rate of 5% p.a. will apply and the present matter shall be
submitted to FIFA’s Disciplinary Committee for its consideration and decision.
4.
Any further claim of the Claimant is rejected.
5.
The Claimant, the player X, is instructed to inform the Respondent, the club Y,
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.
According to art. 61 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
Player X / Club Y
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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:
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
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl.
CAS directives
Player X / Club Y
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