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
Zola Percival Majavu (South Africa), member
Theo Van Seggelen (The Netherlands), member
John Didulica (Australia), member
on the claim presented by the
Player, X
as “Claimant/Counter-Respondent”
against the
Club, Y
as “Respondent/Counter-Claimant”
and the
Club, Z
as “intervening party”
regarding a contractual dispute between
the club Y and the player X and his new club.
I.
Facts of the case
1.
The player X (hereinafter; the Claimant/Counter-Respondent) and the club Y
(hereinafter; the Respondent/Counter-Claimant) signed an employment contract
valid from the season 2005/06 until the season 2007/08, stipulating, inter alia, the
following financial rights of the player:
Season
Signing-on fee
Salary per year
2005/06
USD 50,000,
due upon
signature
USD 70,000,
monthly salaries
as of September
2005
2006/07
USD 50,000,
due in
June 2006
USD 90,000,
10 monthly
instalments as
of August 2006
2007/08
USD 75,000,
due in
June 2007
USD 110,000,
10 monthly
instalments as
of August 2007
2.
This employment contract further stipulates club Y’s unilateral option to extend
the contract for another two years with an increase of the player’s contract value
of 20% for each season.
3.
Finally, the contract stipulates the player’s right to a furnished house as well as to
two return flight tickets per season for the player and his family (his wife and one
child) and bonuses, without mentioning any amount for each of these points.
4.
This contract equally stipulates that these amounts are net and that the
corresponding taxes would be paid by the club Y.
5.
According to the Claimant, on 13 May 2006, the club Y played the last match of
the football season 2005/2006. After that, the player returned to his country for
vacation while suffering an injury. According to the Claimant/Counter-Respondent
he called several times the Respondent/Counter-Claimant asking for assistance and
outstanding payments and for flight tickets.
6.
According to a statement signed by both parties involved, the player was obliged
to return from his holiday and to resume duty with the club Y on 24 June 2006.
However, the player never returned to club Y.
7.
On 22 November 2006, the player filed a claim against the club Y at FIFA and
thereby claimed to be released from the club with immediate effect. Furthermore,
the Claimant/Counter-Respondent maintained that the club Y unilaterally and
without just cause breached the contract signed on 13 August 2005.
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8.
As a consequence of the above, the player claims for the following allegedly
outstanding amounts:
a.
b.
c.
d.
9.
Bonuses until May 2006
Salaries May to July 2006
Salaries August to November 2006
Signing-on fee June 2006
USD 8,637
USD 19,089
USD 36,000
USD 50,000
Moreover, the player claims textually for the remaining value of the contract as
compensation, amounting to:
a.
b.
c.
d.
e.
f.
g.
Salaries for remainder of the Season 2006/07
Bonuses for the Season 2006/2007
Singing-on fee June 2007
Salaries for the Season 2007/2008
Bonuses for the Season 2007/2008
Option for the Season 2008/2009
Option for the Season 2009/2010
USD
USD
USD
USD
USD
USD
USD
63,000
60,000
75,000
110,000
65,000
300,000
360,000
10.
Finally, the player claims for an additional compensation for breach of contract in
the amount of USD 100,000, and for sporting sanctions against the
Respondent/Counter-Claimant.
11.
According to the player, when he returned to his country in May 2006, he was
suffering from an injury. Despite numerous alleged phone calls, the
Respondent/Counter-Claimant did not provide the player with any assistance or
treatment regarding his injury.
12.
Moreover and according to the Claimant/Counter-Respondent, despite the
approaching date of his obligation to return from holiday, the club Y did not react
on his alleged phone calls by means of which he requested to be provided with a
flight ticket to travel to club Y. Consequently, the player allegedly stayed in his
country to treat his injury on his own resources.
13.
The player further explained that, on 9 November 2006, he asked the club Y in
writing for the payment of the alleged outstanding amounts and for a decision of
the Respondent/Counter-Claimant regarding the continuation of the contract. No
answer was received to that letter according to the player.
14.
The player affirmed having sent, on 20 November 2006, an e-mail to the club Y
according to which in case no answer would be received, he would consider that
the Respondent/Counter-Claimant has no interest in his services. No answer was
received according to him.
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15.
On 13 December 2006, the club Y provided FIFA with its answer to the player’s
claim, and thereby requested that the claim be rejected and by means of a
counter-claim that the player has to pay to the club Y the amount of USD 300,000
as compensation for damages.
16.
The Respondent/Counter-Claimant asserted that the player left after the last
match of the season 2005/2006 with a letter permission of it stating that the
departure was on 14 May 2006 and that he had to come back on 24 June 2006.
17.
The club Y emphasised that it has paid all amounts that had become due to the
Claimant/Counter-Respondent. Moreover, the club Y contested that the player was
injured when he went on holiday in May 2006.
18.
Finally, the Respondent/Counter-Claimant maintained that on 2 August 2006, it
had terminated the employment contract in writing due to the player’s failure to
return to it by 24 June 2006.
19.
On 4 January 2007, the player signed a new contract with a club Z (hereinafter;
intervening party).
20.
On 5 January 2007, the Claimant/Counter-Respondent submitted his response with
regard to club Y’s position to his claim and with regard to club Y’s counterclaim.
21.
In order to prove the alleged phone calls, the player submitted phone bills on
which several phone calls from his country to club Y’s country in the period
between 19 June and 20 September 2006 were apparently charged.
22.
Furthermore, the Claimant/Counter-Respondent asserted that he was never
notified with club Y’s termination letter dated 2 August 2006 and that as a
consequence the notice of termination does not produce any effect.
23.
In order to prove the alleged injury, the player submitted a medical report issued
by the Orthopaedic and Traumatologic Clinic Centre, dated 4 January 2007,
according to which he was under treatment since May 2006 and has now
recovered.
24.
Finally, the player referred to the fact that the club Y has not provided any
evidence for the payment of the outstanding amounts.
25.
The player textually asserted that the real notice of termination of the relevant
employment contract was made by him through letter and e-mail sent on 20
November 2006.
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26.
In view of the above, the player reiterated the claims contained in his former
correspondence and that he proved that he returned to his country, for the
holidays period, with an injury.
27.
Finally, the player enclosed in his position a letter dated 5 January 2007, from his
new club in which is stated that the player has took clinical and magnetic
resonance exams, where it was verified an injury in the player’s pubic region,
existent for about 5 months, where it is now in the cicatrisation process, being
necessary specific treatment for his complete recover for the sport’s practice.
28.
On 5 February 2007, the intervening party provided its answer with regard to club
Y’s claim against the player for compensation in the amount of USD 300,000. The
intervening party maintained that it was not aware of the player’s dispute with
club Y when it signed the employment contract with the player.
29.
Furthermore, the intervening party explained that it neither wants to intervene in
the dispute between the player and the club Y, nor make any compensation
payment to the player or the club Y.
30.
On 8 February and 20 March 2007, FIFA asked the Respondent/Counter-Claimant
to provide it with its final position in relation with the above-mentioned case.
Despite these requests, the club Y did not send any final position.
31.
On 6 March 2007, the Single Judge of the Players’ Status Committee authorised
the Federation to which the new club of the player is affiliated to provisionally
register the player X with its affiliated club Z, with immediate effect.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 22 November
2006, as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable to the matter at hand.
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2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in combination with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated 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 club and a player regarding a dispute
in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 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 contract at the
basis of the present dispute was apparently signed in August 2005 and the claim
was lodged at FIFA on 22 November 2006. In view of the aforementioned, the
Chamber concluded that the current FIFA Regulations for the Status and Transfer
of Players (edition 2005, hereafter: the Regulations) are applicable to the case at
hand as to the substance.
5.
In continuation, the members of the Chamber acknowledged the abovementioned facts as well as all the further documentation contained in the file.
6.
To that regard, the members acknowledged that the club Y and the player X in
question signed an employment contract valid from the season 2005/2006 until the
season 2007/2008.
7.
In this respect, the members of the Chamber noted that it is undisputed that until
May 2006, i.e. when the player returned to his country for vacation, all the salaries
and contractual obligations due to the player were paid and fulfilled by the
Respondent/Counter-Claimant.
8.
Furthermore, the Dispute Resolution Chamber took note that the
Claimant/Counter-Respondent and the Respondent/Counter-Claimant agreed on
the fact that the player X was obliged to return from his holidays and to resume
duty with the Respondent/Counter-Claimant on 24 June 2006.
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9.
Consequently, the Dispute Resolution Chamber noted that in virtue of the legal
principle of the burden of proof, the Claimant/Counter-Respondent had not
provided enough evidence to establish beyond any doubt that he had indeed
attempted to get in contact with the Respondent/Counter-Claimant after leaving
the latter. In fact, the fax report of the letter dated 9 November 2006 allegedly
addressed by the Claimant/Counter-Respondent to the Respondent/CounterClaimant, in which the player asked the club Y for the payment of the alleged
outstanding amounts and for a decision regarding the continuation of the
relevant employment contract does neither indicate the fax number of the
Respondent/Counter-Claimant nor the real contents of such fax. Equally, the
Chamber took note of the fact that the document containing the phone bills
submitted by the player and supposed to prove the phone calls made by him to
the club Y had only the letterhead “Claro” and does not mention the address of
the receiving phone calls in the country to which the club Y is affiliated.
10.
Therefore, and in view of the foregoing, the Chamber concluded that the
Claimant/Counter-Respondent had never attempted to get in contact with the
Respondent/Counter-Claimant and thus had never offered his services in order to
meet his contractual obligations towards the club Y.
11.
The Chamber also noted that before leaving for his holiday in his country, the
player had been bound to take all of the steps that it could reasonably have been
expected of him with regard to returning to the Respondent/Counter-Claimant on
24 June 2006, which the player had not done in the matter at hand.
12.
Consequently, and in view of the above, the members of the Chamber concluded
that in this case, the player X had breached his contract with the club Y without
just cause on 24 June 2006 by failing to meet his obligation to return to the club Y,
as stipulated in the document signed by the two parties and submitted during the
investigation of this case.
13.
Therefore, having established that the Claimant/Counter-Respondent had
breached the contract on 24 June 2006, the Dispute Resolution Chamber examined
the relevant financial aspects and particularly the consequences of the
Claimant/Counter-Respondent having breached the contract without just cause.
14.
The members of the Chamber noted that the Respondent/Counter-Claimant had
met all of the financial obligations in the contract up until May 2006, a fact not
contested by either party, and that the Respondent/Counter-Claimant, carrying the
burden of proof, had not been able to demonstrate that it had paid the player his
salary for the months of May and June 2006. Therefore, the Chamber decided that
the Claimant/Counter-Respondent was entitled to receive his salary up until the
termination of his contract, that is to say USD 14,000 for the months of May and
June 2006.
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15.
With regard to the Respondent’s counterclaim, and in application of art. 17 of the
Regulations concerning the consequences of the breach of a contract without just
cause, the Dispute Resolution Chamber ruled that in the light of all of the facts
surrounding the case, compensation for the Respondent/Counter-Claimant in the
amount of USD 30,000 appeared to be appropriate due to the Claimant/CounterRespondent having terminated the contract without just cause.
16.
As a consequence of all the above, the members of the Chamber decided that the
Claimant/Counter-Respondent has to pay the Respondent/Counter-Claimant the
sum of USD 16,000 and that the Claimant/Counter-Respondent’s new club, club Z,
is jointly responsible for paying the relevant compensation in accordance with art.
17 par. 2 of the Regulations.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant/Counter-Respondent is partially accepted.
2.
The counter-claim submitted by the Respondent/Counter-Claimant is partially
accepted.
3.
The Claimant/Counter-Respondent is ordered to pay the amount of USD 16 000 to
the club Y within 30 days as of notification of the present decision.
4.
The club Z is jointly and severally liable for the payment of the above-mentioned
amount if the same is not paid within one month of notification of the present
decision.
5.
If the aforementioned amount is not paid within the stated deadline, an interest
rate of 5% per year shall apply, as from expiry of the stated deadline.
6.
In case of non-compliance of the present decision within the relevant time frames,
the matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
7.
All other claims of the player X and the club Y are rejected.
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8.
The Respondent/Counter-Claimant, the club Y, is directed to inform the
Claimant/Counter-Respondent, the player X, directly and immediately of the
account number to which the remittance is to be made, and to notify the Dispute
Resolution Chamber about the receipt of any payment.
9.
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 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
General Secretary
Enclosed: CAS directives
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