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 Zola Majavu (XX), member
Theo van Seggelen (Netherlands), member
John Didulica (Australia), member
on the claim presented by the player,
X, XX,
as “Claimant”
against the club,
Y, YY
as “Respondent”
regarding a financial dispute arisen between the parties involved.
I.
Facts of the case
1.
The XXn player X (hereinafter: the Claimant) had signed on 29 June 2003 a
document referred to as “contract proposal” with the YYn club, Y (hereinafter:
the Respondent), with the term from 1 July 2003 until 31 December 2005.
2.
A copy of this signed document was remitted to the Dispute Resolution Chamber.
3.
According to this document, the Claimant was entitled to receive an amount of
USD 9,000 as a monthly salary (net) from 1 July 2003 to 31 December 2004,
whereafter he would receive the amount of USD 10,000 as a monthly salary (net)
from 1 January 2005 until 31 December 2005.
4.
In the event of the Claimant not playing (as a starter or substitute) in at least sixty
(60) percent of the Respondent’s official matches in a season, then his salary will
be reduced by twenty (20) percent, whereas injuries and/or suspensions are not
included in the calculations.
5.
On 29 November 2006, the Claimant lodged a complaint against the Respondent
before FIFA.
6.
According to the Claimant, he played for the Respondent during the period from
1 July 2003 to 31 December 2005 and complied with all his obligations in terms of
the contract, whereas the Respondent, in breach of the agreement, had failed to
pay him his reduced monthly salary for the months of November and December
2005 in the amount of USD 8,000 per month.
7.
The Claimant stated that he tried to solve the problem amicably with the
Respondent.
8.
The Claimant provided FIFA also with his letters dated 22 November (concerning
the salary for October 2005), 30 November, 2 December and 13 December 2005 he
addressed to the Respondent asking for the payment of the due payments.
Moreover, the Claimant remitted to the file, inter alia, the Respondent’s
correspondence dated 28 November 2005 in reply to the Claimant’s
communications dated 4 and 22 November 2005 in which it expressed its regret
that for financial difficulties it is impossible to make the payments to the Claimant
in time. The Respondent confirmed, however, in its aforementioned
correspondence that it will pay all the payments to the Claimant.
Player X, XX / Y, YY
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9.
In continuation, the Claimant did allegedly not receive any reaction from the
Respondent.
10.
The Claimant requests therefore that the Respondent shall pay him the
outstanding salaries for November and December 2005 in the amount of USD
8,000 each and that interest should be added at the rate of 15,5% per annum
from the date such payments became due.
11.
On 3 July 2006, the Claimant advised FIFA about a letter he received from the
Respondent dated 11 May 2006, advising that an amount of ZZ 30,000 is available
to be collected at the pay desk at any time convenient for the Claimant.
12.
The Respondent emphasized in its reply to the claim that the contract dated 29
June 2003 is null and void since the parties involved signed on 3 January 2005 a
new employment contract. A copy of the signed employment contract dated 3
January 2005 was remitted to the Dispute Resolution Chamber. According to
section 9.5. of the new employment contract, the parties agreed that hereby “all
preceding labour agreements, arrangements, appendices, etc. earlier concluded
between the parties shall become null and void upon singing of the present
labour agreement (contract)”.
13.
Furthermore, the said new employment contract, valid as from 3 January 2005
until 31 December 2005, foresaw that the Claimant should receive a monthly
salary of ZZ 17,000.
14.
The Respondent argued that the relationship between the parties for the disputed
period (November and December 2005) was thus governed by the new contract
concluded between the parties on 3 January 2005.
15.
However, the Respondent acknowledged its debt towards the Claimant in the
amount of …21,970.64, consisting of his salaries for November and December
2005 with the deduction of the earlier received compensation for the unused
vacation. The Respondent explained that it repeatedly advised the Claimant that
he may receive the aforementioned amount at the location of the Respondent,
and if unable to come to YY, he should let it know the details of his bank account.
16.
In his second statement, the Claimant maintains having sufficient documentation
to provide proof that he received his full salary of USD 10,000 per month, which
was later reduced to USD 8,000, and not the reduced amount as per the contract
purportedly signed by the player on 3 January 2005.
Player X, XX / Y, YY
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17.
The Claimant stressed having been advised by the Respondent that for tax
purposes he was required to sign two contracts, one stating an amount to be paid
in Roubles, i.e. the contract dated 3 January 2005, and the other, the original
contract, which would remain in place between the parties.
18.
In this regard, the Claimant remitted a copy of an agreement dated 1 August 2005
to the file, which in turn refers to the agreement dated 3 January 2005 and which
covered the period of time as from the day of signing, i.e. 1 August 2005, and
would terminate on 31 December 2005. According to this agreement, the
Claimant was entitled to receive a monthly salary of USD 9,400 net of all taxes less
an amount of 20% in case he perform for the second team of the Respondent.
Furthermore, the Respondent was obliged to pay the Claimant a signing-on fee
amounting to USD 50,000 payable during August 2005. According to the Claimant,
this aforementioned agreement dated 1 August 2005 regulated the obligations
between the parties until the termination of the contract on 31 December 2005. A
copy of this agreement was remitted to the Dispute Resolution Chamber, which
contains, however, no signatures of the parties.
19.
The Claimant maintained having received a monthly salary of USD 8,000 up to
October 2005. The Claimant provided copies of bank statements, reflecting
deposits paid into his account in XX as well as documentation from the YYn bank
confirming the electronic transfers of USD 9,000 each on 5, 21 and 26 September,
5 and 17 October 2005.
20.
In this respect, the Claimant emphasized that had he been receiving, as alleged by
the Respondent, the paltry amount of approx. USD 600 per month corresponding
to the ZZ 17,000 according to the agreement dated 3 January 2005, he would not
have been in a financial position to repatriate the large amounts of money
reflected in the bank transfers documents.
21.
The Claimant reiterated his demand and requested the payment of the two
outstanding salaries of November and December 2005 totalling to an amount of
USD 16,000.
22.
The Respondent omitted to provide its position towards the new documents and
information submitted by the Claimant, despite FIFA’s invitation to do so.
Player X, XX / Y, YY
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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 29 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.
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 XXn player and a YYn club regarding
allegedly outstanding payments of salaries on the basis of 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 signed on 29 June 2003 and the claim was lodged
at FIFA on 29 November 2006. 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 on 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 the above-mentioned facts and
documentation contained in the file and took note that on 29 June 2003 the
player Tony Coyle, the Claimant, and the YYn club, Y, the Respondent, signed a
“contract proposal” in order to enter into an employment relationship and to
thereby determine their respective rights and duties for the
Player X, XX / Y, YY
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relevant period of time of their contractual relationship. The members noted in
particular that according to the aforementioned agreement, the Claimant was,
inter alia, entitled to receive for the period as from 1 January 2005 until 31
December 2005 a monthly salary of USD 10,000.
6.
Subsequently, the members noted that, on the basis of the aforementioned
agreement, the Claimant requests payment of allegedly outstanding salary
payments for the month of November and December 2005, each in the amount of
USD 8,000.
7.
Turning its attention to the Respondent, the members of the Chamber took note
of the latter’s objections against the claim of the Claimant. In particular, the
members took note that the Respondent declares the contract the parties signed
on 29 June 2003 as null and void since the parties signed on 3 January 2005 a new
employment contract. The Respondent referred to the contents of the relevant
new employment contract according to which, “..all preceding labour agreements,
arrangements, appendices, etc. earlier concluded between the parties shall
become null and void…”.
8.
In continuation, the members of the Chamber observed that the Respondent
confirms owing the two monthly salaries of November and December 2005. Yet,
according to the Respondent, in accordance with the terms of the new
employment contract dated 3 January 2005, the salaries for the months of
November and December 2005 were governed by the new employment contract
dated 3 January 2005 and therefore amounted only to ZZ 17,000 each. The
Respondent thus informed being disposed to pay the Claimant an amount of ZZ
21,970.64, which corresponds to two monthly salaries with the deduction of the
allegedly earlier received compensation for the unused vacation.
9.
The members of the Chamber then referred to the documents submitted by the
Claimant by means of his second petition. In particular, the members took note
that the Claimant remitted copies of bank statements, from the contents of which
the Chamber was able to reveal that the Claimant transferred on 5, 21 and 26
September as well as on 5 and 17 October 2005 an amount of USD 9,000 each to
his bank account in XX.
Player X, XX / Y, YY
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10.
On account of the above, in particular the documents remitted to the file by the
Claimant, the Chamber was of the opinion that if the Claimant, as alleged by the
Respondent, had obtained the amount of ZZ 17,000 as a monthly salary according
to the agreement the parties appear to have signed on 3 January 2005, he would
most probably not have been in a position to transfer the large amounts reflected
in the relevant bank transaction documents.
11.
Moreover, the Chamber was eager to emphasize that after the Claimant remitted
the relevant bank transaction documents, the Respondent, despite FIFA’s request,
failed to provide any reaction.
12.
Such stance of the Respondent strengthens the Chamber’s conviction that the
Respondent was in fact paying the salaries to the Claimant not on the basis of the
agreement apparently signed on 3 January 2005 but rather basing itself on the
contract the parties signed on 29 June 2003.
13.
The Chamber therefore unanimously reached the conclusion that the Respondent
paid to the Claimant regularly the salaries as per the contract the parties signed on
29 June 2003.
14.
As a consequence to the above, and since the Respondent confirmed owing the
Claimant the two monthly salaries of November and December 2005, the members
of the Chamber decided that the Respondent must pay the Claimant the amount
of USD 16,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player X, is accepted.
2.
The Respondent, Y, has to pay the total amount of USD 16,000 to the Claimant,
player X.
3.
The Respondent, Y, has to pay default interest of 5% p.a. until the effective date
of payment to the Claimant, player X as follows:
3.1.
3.2.
on USD 8,000 as of 1 December 2005
on USD 8,000 as of 1 January 2006
Player X, XX / Y, YY
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4.
The amount due to the Claimant, player X, has to be paid by the Respondent, Y,
within 30 days as from the date of notification of this decision.
5.
If the aforementioned sums according to the above-stated points 2 and 3 are not
paid within the aforementioned deadline the present matter shall be submitted to
FIFA’s Disciplinary Committee, so that the necessary disciplinary sanctions may be
imposed.
6.
The Claimant, player X, is directed to inform the Respondent, Y, immediately of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
7.
According to art. 61 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
sent to the CAS directly within 21 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).
8.
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 Valcke
General Secretary
Encl: CAS directives
Player X, XX / Y, YY
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