Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 June 2007,
in the following composition:
Mr. Slim Aloulou (Tunisia), Chairman
Mr. Philippe Diallo (France), Member
Mr. Essa M. Saleh Al-Housani (U.A.E.), Member
Mr. Michele Colucci (Italy), Member
Mr. Mick Mc Guire (England), Member
on the claim presented by the
Player N
as Claimant
against the club
D
as Respondent
regarding a conflict on the basis of an
employment contract concluded between the parties
I.
Facts of the case
1.
On 22 March 2006, the player N, the Claimant, and the club D, Respondent, signed
an employment contract valid until 22 March 2009. On the same date both parties
signed an Annex 1 which established a monthly salary of USD 2,700 as well as the
Respondent’s obligation to pay accommodation and other allowances.
2.
On 9 February 2007, the player lodged his claim in front of FIFA. The player stated
that the club relegated him to play in the C-team and offered to pay him 70 % of
the agreed salary (USD 2,700) only, due to “no good condition”.
3.
Furthermore, the player stated that the club did not pay him the full salaries for
the months October and November 2006 because he returned two weeks later
than expected from his holidays in S due to a severe car accident that he suffered
on 19 October 2006. The player submitted some documents in this respect from
the police, the hospital and insurance company reports.
4.
In particular, the player requests the following:
•
•
•
•
•
5.
outstanding salaries, partial amounts as from October 2006 until January
2007 amounting to USD 3,900;
outstanding salaries, total amounts as from February 2007 until May 2007
amounting to USD 10,800 (4 months x USD 2,700);
compensation, equivalent to the remaining value of the contract (from June
2007 until March 2009) amounting to USD 56,700 ( 21 months x USD 2,700)
Total amount: USD 71,400 and
to be entitled to sign a contract with another club of his choice.
The club requests that the financial claim should be rejected and particularly
explained the following:
a.
b.
c.
d.
that after the end of the football season 2006, the player went on holidays
and should have returned on 22 October 2006. However, he returned on
17 November 2006 only, without authorization. Therefore, he was
sanctioned with a fine of USD 500 and he was not paid any remuneration
during the days of absence;
that the player notified them the car accident, only when he returned, but
he did not provide any evidence in this respect;
in view of the player’s low performance the coach of the club informed
him that he cannot play in the season 2007 for the team;
therefore, the club started to look for a new potential team to transfer the
player on loan, but the player refused the offer although he would be
receiving a better salary (USD 3,000 offered by the club B);
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Player N / Club D
e.
f.
g.
in view of the above and due to the player’s low performance and bad
manners the club decided to send him to train with the second team of the
same club named “N D” and reduced his salary in a 30 %;
moreover, the club emphasised that on 19 January 2007 the player went to
train without authorization, on 3 February 2007 he was absent for training
and on 10 February he was 15 minutes late for training, therefore the
player breached the contract;
finally, the club explained that the player is not attending the training
sessions but is still living in the club.
6.
On 5 March 2007, the club was specifically requested to clarify its position with
regard to the services of the player, i.e. the future of the employment
relationship with the player.
7.
On 13 March 2007, the club answered FIFA that it: “is interested in the service of
the player N. Now he is training and staying in our club. Our club will try our best
to contact with local clubs to help him back play in the official league on the
second round of the season football 2007 here, in order to help him playing
football officially and get higher income”.
8.
The player rejected categorically the club’s position and added:
a.
b.
c.
d.
e.
that he phoned the day after the car accident (20 October 2006) the club’s
manager Mr. M. Therefore, the club was well informed about his
accident. As far as his alleged late return is concerned, the player affirmed
that 17 November 2006 was the only available day to travel;
as soon as he arrived in V he presented the police, hospital and insurance
report to prove his accident and he went to the S consulate to prove the
validity of the documents because they are written in S. However the
club’s authorities refused to accept the documents as proof and refused
to pay him for the days that he was absent charging as well a disciplinary
fine of USD 500;
in view of the above he informed the club that he could not play anymore
unless he received the relevant outstanding amounts. However, the club
suggested that they would loan him to another team, which he accepted
subject to an increase of salaries;
the club’s managers threatened him and proposed to send him to a Cteam i.e. N D. The player informed FIFA that the V Football Federation’s
regulations do not allow foreign players to play in third division clubs;
that the club had no valid reason to send him to play with another team
and the club should have paid him the relevant full salaries. Therefore, he
refused to train in the C-team and started to train by his own;
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Player N / Club D
f.
g.
since he has no contractual obligation with N D he is no obliged to train
with the aforementioned team;
at this point he is not being paid his salaries and he has no team to play.
9.
The V Football Federation (VF) clarified that N D and D are both owned by D
Sport Company, but that N D is in the 2nd division, were only national players can
play. Besides, the VF informed FIFA that in March 2006 the Claimant was
registered for its affiliated club D.
10.
Upon FIFA’s request he club submitted a list of salaries allegedly paid to the
player, however, signed only by the club’s authorities.
11.
On 21 May 2007, the player left V.
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 9 February
2007, 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.
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 player and a club regarding a claim 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
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Player N / Club D
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 signed on 22 March 2006 and the claim was
lodged at FIFA on 9 February 2007. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereinafter: the Regulations) are applicable to the case at hand as
to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging that both parties signed an employment
contract on 22 March 2006 valid until 22 March 2009. According to the said
employment contract the Claimant was entitled to receive a monthly salary
amounting to USD 2,700 from the Respondent.
6.
First of all, the members of the Chamber took duly note that the Respondent
recognized expressly that due to the low performance of the Claimant they
decided to send him to the second division club N D.
7.
In this respect, the Chamber deemed it important to reiterate that the Claimant
signed the relevant employment contract with the Respondent and not with the
second division club N D. Consequently, the Chamber pointed out that even
though both clubs seemed to be owned by the same party, this fact does not
authorizes the Respondent to unilaterally decide to change the Claimant’s
employer.
8.
In addition, the members of the Chamber remarked that, based on the
information submitted by the VF, foreign players cannot participate in second
division competitions. Therefore, the Chamber deemed that the Respondent in
addition of terminating the employment contract by unilaterally changing the
Claimant’s employer, also acted against the provisions of the VF´s regulations.
9.
Secondly, the deciding authority considered that the Respondent based its
decision to terminate the employment contract, i.e. oblige the Claimant to play for
another club, due to his allege low performance.
10.
In this respect, the Chamber referred to its established jurisprudence according to
which a player’s low performance does not constitute a valid reason to terminate
unilaterally an employment contract. Moreover, the Chamber underlined the lack
of objective criteria when establishing a player’s possible low performance and,
hence, for the sake of the legal security the Chamber reiterated that this particular
reason invoked by the Respondent to terminate the contract cannot be endorsed
and does not constitute a just cause to terminate an employment contract.
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Player N / Club D
11.
At this stage, the members of the Chamber focused their attention to the
allegation made by the Claimant and not contested by the Respondent about the
reduction of 30 % of the salaries of the Claimant. In this respect, the members of
the Chamber analyzed carefully the statements and evidences submitted by the
Respondent and concluded that the latter indeed unilaterally reduced the salaries
of the Claimant.
12.
To this regard, the Chamber remarked that based on the documentation at
disposal the Respondent did not provide any reasons at all to corroborate the
legality of the relevant salary reduction. Therefore, the Chamber concluded that
the reduction of salaries made by the Respondent is not valid and thus abusive
and consequently the amount of USD 3,900 claimed by the Claimant in this respect
has to be paid.
13.
In view of the aforementioned, the members of the Chamber concluded that it is
undisputed that the Claimant rendered his services to the Respondent and the
latter prematurely terminated the relevant employment contract without just
cause by changing the Claimant’s employer for a second division club and by
reducing 30% of his salary.
14.
As a result, the Chamber unanimously concluded that the Respondent is liable to
cancel all allegedly outstanding amounts contractually agreed upon by the parties
until 21 May 2007 date in which the claimant left V.
15.
Consequently and bearing in mind that the Respondent did not provide any
documentary evidence to corroborate that it fulfilled the financial obligations
towards the Claimant, the Chamber concluded that the Respondent must pay in
addition to the amount of USD 3,900 the outstanding amount of USD 10,800 to
the Claimant.
16.
In continuation, the Chamber turned its attention to the consequences of the
premature termination of the employment contract by the Respondent.
17.
In this respect, the members of the Chamber reiterated that the parties signed an
employment contract on 22 March 2006 valid until 22 March 2009, which it was
duly registered by the relevant Association and according to which the Claimant
was entitled to receive the amount of USD 2,700 as monthly salary.
18.
Furthermore and bearing in mind the considerations of the above points II. 7-13
the Chamber reiterated that the Respondent had no just cause to prematurely
terminate the labour relationship and thus, breached the employment contract.
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Player N / Club D
19.
As a result, the Chamber concluded that in accordance with art. 17 par. 1 of the
Regulations the Respondent is liable to pay compensation to the player for the
breach of contract.
20.
To this regard, the Chamber referred to art. 17 par. 1 of the Regulations, in
particular to the non-exhaustive enumeration of objective criteria, and took into
account the remuneration due to the Claimant under the employment contract
singed between the parties to the present dispute, i.e. the amount of USD 2,700,
the time remaining on the said employment contract, as well as the fact that
Claimant’s demand has remained uncontested by the Respondent and that the
reasons explained by the latter have been considered unreasonable and invalid.
21.
In view of all the above, the Dispute Resolution Chamber deemed that the amount
of USD 40,000 is a reasonable and justified amount to be paid by the Respondent
to the Claimant as compensation for the breach of contract.
22.
Consequently, the Chamber decided that the Respondent has to pay to the
Claimant the total amount of USD 54,700.
23.
Finally and for the sake of good order the Chamber emphasised that the
contractual relationship between the parties to the present dispute has come to
an end and therefore the Claimant is free to continue his professional career.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player N, is partially accepted.
2.
The Respondent, D, has to pay the amount of USD 54,700 to the Claimant.
3.
Any further claim lodged by the Claimant is rejected.
4.
The amount of USD 54,700 due to the Claimant has to be paid by the Respondent
within 30 days as from the date of notification of this decision.
5.
In the event that the above-mentioned amount is not paid by the Respondent
within the stated deadline an interest rate of 5% per year will apply as of expiry of
the said time limit and the file will be submitted to the Disciplinary Committee.
6.
The Claimant is directed to inform the Respondent 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.
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Player N / Club D
7.
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:
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:
Jerome Valcke
General Secretary
Encl.: CAS directives
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Player N / Club D