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 Malvern Percival Majavu (South Africa), member
Theo van Seggelen (the Netherlands), member
John Didulica (Australia), member
on the claim presented by the player
A, X/Y,
as Claimant
against the club
B, Y,
as Respondent
and the club
C, X,
as intervening party
regarding a contractual dispute between
the respondent club and the claimant player and his new club.
I.
Facts of the case
1.
The player A with double nationality X and Y (born 21 July 1982), the Claimant,
and the club B, the Respondent, from Y signed an employment contract valid from
1 July 2006 until 30 June 2009. The Claimant presented a copy of the said
employment contract.
2.
Art. 3.1 of the above-mentioned employment contract establishes the following
net remuneration in favour of the Claimant for the sporting season 2006/07:
1.1. 100,000 at the signature of the contract;
1.2. 50,000, payable in 10 monthly instalments of 5,000 each (first instalment 31
August 2006);
1.3. 100,000 as “match payment for the season, corresponding to 2,950 per match
played by the Club in the championship. The match payment shall be made at
the end of each month for the matches played by the club in that month. The
player is entitled to this payment irrespective of being fielded for whatever
reason.”;
2.
The player is entitled to an extra bonus of 25,000 in the event that he is
fielded in at least 20 championship matches from the beginning.
3.
Art. 3.2 and art. 3.3 of the said contract establish for the sporting season 2007/08,
respectively 2008/09 the contractual amount of 300,000, respectively 350,000.
4.
Furthermore, art. 3.4 of the above-mentioned contract establishes that the player
is entitled to a match bonus for the participation in the cup matches.
5.
Finally, art. 5.3 of the said contract establishes that “all disputes will be handled by
the competent FIFA committee.”
6.
On 9 March 2007, the football association of X contacted FIFA to ask for assistance
in obtaining the international transfer certificate (ITC) for the player in question
from the football association of Y, as the Claimant had allegedly assured that he
was not paid since more than quite half a year and that he therefore had a just
cause to terminate the contract with the Respondent.
7.
On 13 March 2007, FIFA informed the football association of X that, taking into
account that it apparently requested the ITC for the player in question outside the
registration period fixed by the football association of X, it cannot comply with
the aforementioned request for assistance of FIFA in order to obtain the relevant
ITC from the football association of Y.
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8.
On 19 March 2007, the Claimant filed a claim at FIFA demanding from the
Respondent 786,450 plus 5% default interest.
9.
In particular, the Claimant requested:
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20,000 for alleged outstanding salaries for the months of November 2006 to
February 2007;
23,600 for 8 match remuneration;
28,000 as bonus;
64,850 as compensation (15,000, respectively 49,850 corresponding to the
salary, respectively the match remuneration of the sporting season 2006/07);
300,000 as compensation (corresponding to the contractual value of the
sporting season 2007/08) and
350,000 as compensation (corresponding to the contractual value of the
sporting season 2008/09).
10.
The Claimant maintained that the Respondent did not fulfil its financial
obligations as from November 2006 in accordance with the above-mentioned
employment contract. Therefore, the Claimant is of the opinion that he had a just
cause for terminating the employment contract. Consequently, he left Y in
December 2006 and signed a new employment contract with the club C from X,
the intervening party, valid from 15 January 2007 until 30 June 2009. To that
regard, the Claimant presented a copy of the aforementioned employment
contract.
11.
The Respondent rejected the Claimant’s demand. It explained that due to the
unprofessional behaviour of the Claimant it decided to send him training at its
“team facilities in DAY-TIME” during the week of 4 December 2006. The
Respondent further argued that the Claimant did not accept to be out of the
permanent team and left the club and the country without its permission and
without informing it. In this respect, the Respondent presented several minutes
signed by the manager and two vice-trainers of the club confirming that the
Claimant did not show up at the training sessions as of 4 December 2006 as well as
a copy of the club’s decision dated 31 January 2007, by means of which the
Respondent decided to deduct 50,000 from the Claimant’s receivables due to his
aforementioned behaviour.
12.
Furthermore, the Respondent is of the opinion that it fulfilled all its financial
obligations towards the Claimant. In this respect, the Respondent presented the
following payment receipts, which show the club’s stamp, the player’s name, the
dates, the amounts and some signatures:
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4 July 2006: USD 40,000
3 August 2006: USD 20,000
22 September 2006: 13,823
20 October 2006: 5,000
2 November 2006: 2,941
8 December 2006: 5,000
5 January 2007: EUR 3,348
13.
Finally, the Respondent wished that the matter be adjudicated by the football
association of Y, since the Claimant has been registered as a Y footballer and since
“he is on the Y Football Status”.
14.
The intervening party explained that it contracted the Claimant after the latter
having assured that he was not paid since more than quite half a year and that he
therefore had a just cause to terminate the contract with the Respondent.
15.
The Claimant in his reply stated that he always complied with his contractual
duties. In addition, he outlined that it was rather the Respondent that from the
very beginning of the contractual relationship disrespected the financial terms and
deadlines of payment. With regard to the payment receipts put forward by the
Respondent, the Claimant affirmed that it is impossible for him to establish from
the unclear evidence the amounts and the dates mentioned therein. Therefore, he
requested that these documents be disregarded.
16.
The Respondent on its part, adhered to its position.
17.
On 8 May 2007, the football association of Y informed FIFA that the Claimant was
registered as Y player for its affiliated club, the Respondent.
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 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 19
March 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.
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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 (a) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a
club and a player in relation to the maintenance of contractual stability if there has
been issued a request for an international transfer certificate (ITC).
3.
In this context, the Chamber took due note that the football association of X asked
for assistance in obtaining the international transfer certificate (ITC) for the player
in question from the Y football association, on 9 March 2007 (cf. point I.6 of the
above-mentioned facts). Therefore, the Dispute Resolution Chamber is the
competent body to decide on the present litigation involving a Y club and a X/Y
player and his new X club regarding a dispute in connection with the maintenance
of contractual stability.
4.
In addition to the aforementioned, the Chamber emphasised that the facts that in
the relevant employment contract the Claimant’s nationality was determined as X
and that the stipulating parties of the said contract agreed in art. 5.3 that “all
disputes will be handled by the competent FIFA committee” confirm the aboveestablished competence of the Dispute Resolution Chamber to rule on the present
case.
5.
As a result of the above, the members of the Chamber decided that the
Respondent’s petition that the matter be adjudicated by the Y football association
has to be rejected.
6.
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 signed on 1 July 2006 and the claim was lodged at FIFA on
19 March 2007. 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.
7.
In continuation, the members of the Chamber acknowledged the above-mentioned
facts as well as all the further documentation contained in the file.
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8.
To that regard, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract in July 2006 that was due to run until 30 June 2009.
9.
Furthermore, the members of the Chamber turned their attention to the
contractual terms of the said employment contract and took note that the Claimant
was entitled to receive for the sporting season 2006/07 the amount of 100,000 as
signing-on fee and, a monthly salary of 5,000, payable during 10 months as of 31
August 2006, as well as a match remuneration of 2,950 per match played by the
Respondent in the championship, payable at the end of each month.
10.
In continuation, the Chamber took due note that it is uncontested by the parties
that the Claimant left the Respondent in December 2006. In addition, the Chamber
stated that the Respondent did not ask for the Claimant’s services, i.e. the
fulfilment of the relevant employment contract until its original expiry date (30
June 2009), or lodged any counter-claim.
11.
Consequently, the Chamber established that the relevant employment contract at
the basis of the present dispute was prematurely terminated in December 2006.
12.
Subsequently, the Chamber acknowledged that the parties have contradictory
positions with regard to the reasons for the premature termination of the
employment relationship.
13.
On the one hand, the Claimant is of the opinion that he had terminated the
employment contract in December 2006 with just cause since the Respondent
allegedly did not fulfil its financial obligations as from November 2006 and
allegedly disrespected the financial terms and deadlines of payment from the very
beginning of the contractual relationship.
14.
On the other hand, and turning its attention to the Respondent’s position, the
Chamber took due note that the Respondent is convinced that the Claimant left the
Respondent and the country without its permission and without informing it after
having sent him training at its “team facilities in DAY-TIME” during the week of 4
December 2006 and thus out of the permanent team.
15.
As a result, the Chamber took due note of the fact that the Claimant is claiming the
amount of 786,450 plus default interest for the Respondent’s alleged breach of
contract, corresponding to outstanding salaries for the months of November 2006
to February 2007 (20,000), 8 match remuneration (23,600), bonus (28,000) and
compensation (714,850).
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16.
In view of the above, the Chamber proceeded to deliberate whether an unjustified
breach of the employment contract between the Claimant and the Respondent had
been committed and which party was responsible for such breach of contract and
to verify and decide if sanctions for breach of contract have to be applied.
17.
The Chamber started its deliberations by maintaining that based on the
information provided it can be established that the player rendered his services to
the Respondent as from July 2006 until December 2006. Furthermore, the members
of the Chamber stated that the Claimant maintained that he had not received his
salary since November 2006. Consequently, the Chamber concluded that at the time
of the premature termination of the employment relationship, at the most, one
monthly salary was outstanding.
18.
In this respect, the Dispute Resolution Chamber considered in accordance with its
well established jurisprudence that one outstanding salary does not constitute a
just cause for the claimant to prematurely terminate the employment contract
signed with the Respondent.
19.
As far as the match remuneration and bonus in the claimed amounts of 23,600 and
28,000, respectively, are concerned, the Chamber referred to the legal principle of
the burden of proof, which is a basic principle in every legal system, according to
which a party deriving a right from an asserted fact has the obligation to prove the
relevant fact (cf. art. 12 par. 3 of the FIFA Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber).
20.
In this context, the Chamber emphasised that the Claimant neither substantiated
the above-mentioned alleged entitlements nor provided any documentary evidence
at all to corroborate the said claims. As a result, the members of the Chamber
rejected the Claimant’s claims regarding the above-mentioned match remuneration
and bonus.
21.
Finally, the members of the Chamber turned their attention to the fact that the
Claimant was sent to training out of the permanent team of the Respondent. In this
respect, the Chamber took note that the employment contract does not contain any
clause that the Claimant may only play and train with the first team. Consequently,
the Chamber deemed that this fact neither constituted a just cause for the player to
prematurely terminate the employment contract signed with the Respondent.
22.
In view of all of the above, the members of the Chamber unanimously concluded
that the Claimant did not had justifiable reasons for leaving the Respondent and
unilaterally terminating the employment relationship in December 2006, and thus
breached the relevant employment contract.
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23.
As a result, the Dispute Resolution Chamber decided to fully reject the Claimant’s
claim.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant is rejected.
2.
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:
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Markus Kattner
Acting General Secretary
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Enclosed: CAS directives
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