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 a dispute on the basis
of an employment agreement
I.
Facts of the case
1.
The player X and the club Y entered into an employment contract valid as of 6
August 2006 for the duration of the “Torneo Apertura 2006” and “Torneo
Clausura 2007”. The said contract does not indicate any date of signature and
provided for a monthly salary of BBB 6,450,000.
2.
On 11 January 2007, the player X submitted a claim against the club to FIFA. The
player explained that Y had not paid his salary since December 2006.
Furthermore, at the end of December 2006, Y had allowed the player to go on
vacation to A. Thereby, it was apparently agreed that Y would provide for the
return ticket in order for the player to come back to B by 2 January 2007.
However, the Claimant maintained not having received his return ticket, in spite
of having contacted the club on several occasions. According to the player A, the
directors of the club eventually refused to answer the player’s calls.
3.
Consequently, in view of the alleged violation of the club’s contractual
obligations, the player A requested compensation in the amount of USD 18,000,
corresponding to his salaries for the period from December 2006 until the expiry
of his employment contract in May 2007. X also requested to be released from
his contractual obligations with Y in order to be able to seek employment with
another club.
4.
FIFA contacted Y via the Football Federation of B on 5 February 2007 and 16
February 2007, respectively, asking the club for its position with regard to the
relevant player’s claim. Both letters remained unanswered. Due to the
circumstance that neither the player nor the club appeared to be interested in
maintaining the labour relationship in question, on 8 March 2007, FIFA
submitted a letter to both parties, advising them to consider their labour
relationship as terminated and to focus on the financial aspects of the dispute. In
the same letter, FIFA asked Y to present its comments with regard to the player’s
financial claim. However, this correspondence as well as a reminder letter dated
13 April 2007 also remained without answer from the club, although it had been
pointed out by FIFA that, in absence of an answer of the Respondent, the
deciding body of FIFA would consider and decide upon the case based on the
documents at its disposal.
5.
In view of the above, the player X requested the Dispute Resolution Chamber to
establish that he was free to seek employment with another club and to
condemn the club Y to pay to the player compensation for breach of contract in
the amount of USD 18,000.
Player X / Club Y
2
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
Committee and the Dispute Resolution Chamber. The present matter was
submitted to FIFA on 11 January 2007, thus after 1 July 2005. Therefore, the
Dispute Resolution Chamber concluded that the revised Rules Governing the
Procedures (edition 2005; hereinafter: Procedural Rules) 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 combination 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 a dispute between the parties in connection with an employment
contract.
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 player’s claim had
been lodged with FIFA on 11 January 2007. 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 as well as the
applicable Regulations, the Dispute Resolution Chamber proceeded to enter into
the substance of the case. In this respect, the members of the Chamber focussed
on the questions as to whether the club Y had indeed breached the employment
contract concluded with the player X and, if so, whether the player was entitled
to compensation for breach of contract in accordance with his claim.
6.
Introductorily, the Dispute Resolution Chamber took note of the fact that Yhad,
in spite of repeated requests of FIFA, omitted to provide FIFA with any
Player X / Club Y
3
statements whatsoever in response to the complaint of the player. Due to this
conduct of the club during the present proceedings, which was strongly
disapproved of by the Chamber, its members established that the present case
had to be decided on the basis of the documents on file (cf. art. 9 para. 3 of the
Procedural Rules).
7.
Upon analysis of the facts given in the present matter, the Chamber
acknowledged that the player X considered the alleged failure of the club Y to
pay his salary for December 2006 and to provide him with a return ticket from A
during the player’s vacation to constitute a breach of contract justifying his
release from his contractual obligations with the club and the payment of
compensation for breach of contract.
8.
On account of the above, the Dispute Resolution Chamber proceeded to
deliberate on the Respondent’s alleged failure to pay the player’s salary for
December 2006. In this respect, the members of the Chamber noted that,
whereas the contract concluded between the player and the club provided for a
monthly salary of BBB 6,450,000, no mention was made with regard to the due
date of such payments. In view of the apparent absence of an agreement
between the parties with regard to the due date for the payment of salaries, the
Dispute Resolution Chamber decided to take the established labour practice as
point of reference and emphasized that, in general, an employee’s salary was
paid at the end of each month, when the payable services had already been
rendered. Consequently, the members of Chamber had to assume that the
player’s salary for December 2006 had only become due in the end of that
month.
9.
In this respect, the Dispute Resolution Chamber acknowledged that the club had
never contested that it had failed to pay the player’s salary for December 2006.
However, the members of the Chamber drew their attention to the fact that the
player’s claim had been lodged already on 11 January 2007, thus a very short
period of time after his salary for December 2006 had presumably become due.
In this respect, the Dispute Resolution Chamber pointed out that, according to its
long-standing jurisprudence, a delay of salary payments of a couple of days could
not be considered a just cause for the termination of an employment contract.
10.
Consequently, the members of the Chamber were of the unanimous opinion
that, whereas the Respondent was indeed liable to pay the Claimant his salary
for December 2006 in accordance with the relevant employment contract, the
payment delay in question did not constitute a violation of the employment
agreement to such an extent so as to justify the termination of the said contract.
Player X / Club Y
4
11.
However, the Dispute Resolution Chamber acknowledged that the delayed
payment of his salary for December 2006 had not constituted the only reason for
the player to claim his release from the club. Consequently, the members of the
Chamber turned their attention to the allegations of the player, according to
whom he had unsuccessfully attempted to receive a return ticket from his club
during his vacation in B and had therefore not been able to resume duty with
the Respondent.
12.
In this respect, the members of the Chamber once more pointed out that the
club had failed to provide FIFA with any comments whatsoever in this respect.
However, in the event that air tickets were an entitlement of the player in
accordance with the employment contract, the Chamber deemed that the
normal procedure would be to purchase a return ticket prior to the player’s
departure. In any case, the Claimant could have, had he intended to return to his
club after his vacation, insisted on the purchase of a return ticket. Instead, the
player had, for no obvious reason, apparently only been in possession of a oneway ticket when he left B.
13.
In this respect, the members of the Chamber drew their attention to the copy of
the communication which the player had allegedly sent via email to Y in order to
ask for his flight return ticket. However, upon examination of the alleged email,
the Dispute Resolution Chamber noted that no indications whatsoever could be
detected suitable to prove that the message had indeed been sent to the club.
The Chamber moreover acknowledged that no further documentary evidence
had been presented by the player in order to prove that he had allegedly tried
to contact Y without success.
14.
Furthermore, upon a thorough examination of the relevant employment
contract concluded between the player and Y, the Dispute Resolution Chamber
ascertained that no obligation of the club to pay the flight tickets of the player
had been stipulated in the agreement. In this respect, the members of the
Chamber assured themselves that the player had not provided FIFA with any
other documentary evidence proving that the club had indeed assumed such an
obligation and that, therefore, it had been up to the club to purchase the return
ticket for the player. This led the members of the Dispute Resolution Chamber to
conclude that, had the player in question indeed intended to resume duty with
his club, it would have been possible for him to travel to B at his own expense
and, if applicable, ask for the reimbursement of the ticket from the club.
15.
On account of the above, the members of the Dispute Resolution Chamber
found that the player X had not been able to prove that he had undertaken all
possible measures in order to assure that he could resume duty with Y after his
vacation in A.
Player X / Club Y
5
16.
Consequently, the Dispute Resolution Chamber determined that the club could
not be considered to have committed a breach of contract justifying the
unilateral termination of the agreement on the part of the player. The members
of the Chamber therefore unanimously concluded that no compensation for
breach of contract was due to the player.
17.
In view of the foregoing, the Dispute Resolution Chamber decided to order the
club Y to pay to the Claimant his outstanding salary for December 2006,
amounting to BBB 6,450,000, and to dismiss all other claims of the player.
***
Player X / Club Y
6
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the player X, is partly accepted.
2.
The Respondent, Y, shall pay the amount of BBB 6,450,000 to the Claimant, X,
within 30 days as 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, the present matter shall be submitted to FIFA’s Disciplinary Committee
for its consideration and decision.
4.
The Claimant is instructed to inform the Respondent 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.
5.
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
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl.
CAS directives
Player X / Club Y
7