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 (South Africa), 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 contractual dispute arisen between the parties involved.
I.
Facts of the case
1.
On 25 February 2006, the player X (hereinafter: the Claimant) from XX, born on 9
May 1975, signed an employment contract with the YY club, Y (hereinafter: the
Respondent), valid for a predetermined period of 8 months, i.e. from 25 February
2006 to 25 October 2006.
2.
A copy of the said employment contract was remitted to the Dispute Resolution
Chamber.
3.
According to the said contract, the Claimant was entitled to receive a monthly
salary of USD 10’000, net of taxes, payable on the 20th day of each following
month. Furthermore, the Respondent undertook to pay the Claimant the amount
of USD 1’500 as winning bonus and USD 500 as a draw bonus.
4.
According to art. 10.3.2. of the employment contract, the Claimant was allowed to
terminate the contractual relationship with the Respondent if the latter is behind
in paying his salaries and bonuses for over three months.
5.
By a supplement agreement dated 25 February 2006, the Respondent agreed to
pay the Claimant USD 300 every month for housing, USD 10’000 as signing fee,
USD 10’000 if the Respondent would be promoted to the Super League at the end
of the season 2006, USD 2’000 for every match the Claimant plays not less than 45
minutes and USD 1’000 for every match the Claimant plays less than 45 minutes.
Moreover, the Respondent undertook to pay the Claimant two international
round trip tickets every year.
6.
On 2 October 2006, the Claimant lodged a formal claim before FIFA against the
Respondent. In his claim, the Claimant informed that he had unilaterally
terminated the employment contract with the Respondent for just cause.
According to the Claimant, the Respondent paid him on or about the end of
March 2006 the amount of USD 6’000 as partial payment of the signing fee but
omitted to pay him the further amounts as agreed in the employment contract
and the supplementary agreement. Consequently, the Claimant request payment
of the total amount of USD 141’875 in accordance with the following breakdown:
a) employment contract
-USD 30’000 as unpaid salaries for March, April and May 2006
-USD 3’000 as winning bonus
Player X, XX / Club Y, YY PR
2
b) supplementary agreement
-USD 4’000 for the remaining amount of the signing fee
-USD 4’000 as unpaid participation bonus
-USD 900 as unpaid rents for March, April and May 2006
-USD 2’475 for three flight tickets
7.
Due to the alleged breach of contract committed by the Respondent, the Claimant
requests payment of the following amounts:
-USD 50’000 as salaries for June 2006 until October 2006
-USD 1’500 for rents as from June 2006 to October 2006
-USD 12’000 for loss of winning bonus
-USD 2’000 for loss of draw bonuses
-USD 20’000 as average participation bonuses
-UDS 1’500 damage per winning result until the end of championship
-USD
500 damage per draw result until the end of championship
-USD 10’000 as damage if Respondent promotes to the Super League
8.
The Claimant requests that the termination of the contract was legal because the
Respondent had breached the contract and the supplementary agreement.
Moreover, he requests “costs” without, however, specifying the amount of such
claim.
9.
On 5 March and 19 April 2007, the Respondent via the YY Football Association,
was requested in writing to comment on the Claimant’s claim.
10.
The Respondent has not replied.
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 2 October
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.
Player X, XX / Club Y, YY PR
3
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 from XX and a YY club
regarding allegedly outstanding payments and compensation for breach of
contract 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 signed on 25 February 2006 and the claim was
lodged at FIFA on 2 October 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 the player X, the
Claimant, and the YY club, Y, the Respondent, signed on 25 February 2006 an
employment contract which was to be valid until 25 October 2006. Moreover, the
members of the Chamber took note that the aforementioned parties signed on
the same date, i.e. on 25 February 2006, a supplementary agreement, whereby
further payments were agreed upon.
6.
As regards the employment contract, the members of the Chamber observed that
the Claimant was entitled to receive a monthly salary of USD 10’000 and bonuses
depending on the match results of the Respondent. As far as the supplementary
agreement is concerned, the members noted that the Claimant was supposed to
receive, inter alia, USD 300 for accommodation, USD 10’000 as singing-on fee,
appearance bonuses and two round trip flight tickets.
Player X, XX / Club Y, YY PR
4
7.
Subsequently, the members noted that the Claimant terminated the employment
contract he signed with the Respondent. According to the Claimant, he had just
cause to terminate the contractual relationship with the Respondent since the
latter paid him only the amount of USD 6’000 as partial payment of the signing
fee but failed to pay him the further amounts as agreed in the employment
contract and the supplementary agreement respectively.
8.
The Chamber noted that the Claimant request allegedly outstanding payments of
USD 141’875 based on the employment contract and the supplementary
agreement signed by the parties involved.
9.
Turning its attention to the Respondent, the members of the Chamber took note
of the fact that it never provided FIFA with its position in the present proceeding,
despite having been asked by FIFA to do so on several occasions.
10.
In continuation, the Chamber then stated that as a general principle of procedure
before the Dispute Resolution Chamber, if a Respondent does not reply to the
claim of the Claimant, the case shall be decided by the Dispute Resolution
Chamber in particular on the basis of the facts and proof provided by the
Claimant, since with its conduct, the Respondent renounced to its right of defence.
11.
Consequently, the Chamber concluded that the Respondent, by failing to submit
its position in the present procedure, admitted the accusation of the Claimant for
having failed to pay to the latter the relevant claimed salaries, part of the signingon fee, bonuses and flight tickets.
12.
As a result of the above, the Dispute Resolution Chamber stated that the Claimant
had just cause to terminate the employment contract with the Respondent. Or, in
other words, the behaviour of the Respondent has to be considered as a breach of
contract without just cause.
13.
In consequence, in application of art. 17 of the Regulations, the members had to
deliberate whether the Respondent is accountable for outstanding payments and
compensation towards the Claimant.
14.
As far as the responsibility of the Respondent for outstanding payments is
concerned, the Dispute Resolution Chamber stated that the Respondent has to pay
to the Claimant the remaining value of the employment contract and the
supplementary agreement respectively until the termination with just cause by the
Claimant. Consequently, the Respondent must pay to the Claimant on the basis of
the employment contract, three monthly salaries for March, April and May 2006
totally amounting to USD 30’000 and the bonuses for the relevant results achieved
Player X, XX / Club Y, YY PR
5
of USD 3’000. Moreover, under the supplementary agreement signed between the
Claimant and the Respondent, the latter must also pay to the former the
remaining part of the signing-on fee of USD 4’000, flight tickets in the amount of
USD 2’475, bonus of USD 4’000 and the costs for accommodation in the total of
USD 900.
15.
In total, the Respondent must pay to the Claimant for outstanding payments an
amount of USD 44’375.
16.
Moreover, the Chamber had to verify and decide whether the Respondent is
accountable for compensation for breach of contract without just cause.
17.
The Chamber referred to art. 17 par. 1 of the Regulations, in particular to the nonexhaustive enumeration of objective criteria, and took into account the
remuneration due to the Claimant under the employment contract and the
supplementary agreement signed between the parties to the present dispute as
well as the time remaining on the said employment contract as from the
Claimant’s termination.
18.
Furthermore, the Chamber reiterated that in the employment contract in question
the Respondent had committed itself to pay USD 300 for housing throughout the
agreed duration of the contractual relationship. Therefore, the members of the
Chamber unanimously came to the conclusion that the Respondent is liable to
cancel the relevant amounts relating to accommodation to the Claimant until the
agreed expiry date of the contractual relationship, thus a total amount of USD
1’500.
19.
Taking into account all of the above, considering particularly the objective criteria
listed in art. 17 par. 1 of the Regulations, the Chamber decided that a
compensation of USD 41’500 is adequate, taking particularly into consideration
the behaviour of the Respondent in the present procedure as well as the
remuneration due to the Claimant under the employment contract and the
supplementary agreement respectively until their agreed expiry date.
20.
In conclusion, the Dispute Resolution Chamber decided that the Respondent has to
pay to the Claimant the amount of USD 44’375 for outstanding payments, USD
40’000 as compensation for breach of contract without just cause and USD 1’500,
representing unpaid accommodation allowance. In total, the Respondent has to
pay to the Claimant the amount of USD 85’875.
Player X, XX / Club Y, YY PR
6
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player X, is partially accepted.
2.
The Respondent, Club Y, has to pay the amount of USD 85’875 to the Claimant,
player X, within the next 30 days as from the date of notification of this
decision.
3.
In the event that the due amount is not paid within the stated deadline, an
interest rate of 5% p.a. will apply as of expiring of the fixed time limit and the
present shall be submitted to FIFA’s Disciplinary Committee, so that the necessary
disciplinary sanctions may be imposed.
4.
The Claimant, player X, is directed to inform the Respondent, Club 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.
5.
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).
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 / Club Y, YY PR
7