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,
as Claimant
against the club
B, Y,
as Respondent
regarding outstanding remuneration on the basis of an employment contract.
I.
Facts of the case
1.
The player A from the country X (hereinafter: the Claimant) and the club B from
the country Y (hereinafter: the Respondent) signed an employment contract on 2
February 2005 valid from 4 February 2005 until the end of the sporting season. A
copy of the relevant employment contract was submitted to FIFA along with the
Claimant’s claim.
2.
According to art. 4 of the above-mentioned employment contract the Claimant
was entitled to receive from the Respondent the following remuneration:
- 83,750,000, payable at signing of the contract,
- 217,750,000, payable in 7 monthly instalments of 31,108,000 each and
- 33,500,000, payable at the end of the contract.
3.
Art. 5 par. 1 of the said employment contract reads as follows: “Absent from a
training or match without prior written notice to Manager or Coach that his
wage will be cut as amount of 250,000/day of training/match – 600,00/match
competition /non competition and 50% of the received monthly payment in the
event of priority match in the official competition.”
4.
On 27 October 2005, the Claimant lodged a claim against the Respondent at FIFA
demanding the amount of 33,500,000 plus default interest.
5.
The Claimant explained that the Respondent did not pay him the amount of
33,500,000 at the end of the employment relationship. The Claimant affirmed
that the local Championship ended on 5 November 2005, but for the Respondent
already on 29 September 2005, since it did not classify to the Round of 16.
6.
An invitation dated 17 January 2006 to the Respondent to present its statement
until 1 February 2006, remained unanswered.
7.
On 20 January 2006, the football association of Y informed FIFA that it is trying
to find a solution to the current dispute together with the Respondent, since its
affiliate appears to have financial difficulties to fulfil its obligations.
8.
An invitation addressed to the parties involved and to the Y football association
to inform us of the up-to-date position in this case by 3 March 2006, remained
unanswered by the Respondent and the said association. The Claimant replied
hereto that he upholds his position, respectively his claim.
9.
On 17 April 2006, the Y football association informed FIFA that the Respondent
will not pay the outstanding remuneration in accordance with art. 5 par. 1 of the
employment contract, since he rejected to play in the match of the Cup against
the club C and whereby he allegedly caused it a damage.
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10.
In reply hereto, the Claimant explained that in the above-mentioned match
nobody of his team played, since the Respondent did not pay the players.
Therefore, the team did not show up at all for the said match.
11.
In the following, the Respondent adhered to its position.
12.
Upon FIFA’s request to present a confirmation of all matches played by the
Respondent during the sporting season 2005 and to inform in particular as to
whether the Respondent has played the match of the Cup against the club C, the
Y football association provided FIFA with three match confirmations of its
affiliate. Non of them corresponded to the requested match against C.
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 27 July
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 player and a club that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving an X player and a Y club regarding a
dispute 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 30 January 2006 and the claim was
lodged at FIFA on 27 July 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
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(edition 2005, hereafter: the Regulations) are applicable to the case at hand as to
the substance.
5.
In continuation, the members of the Chamber acknowledged the abovementioned facts as well as all the further documentation contained in the file.
6.
In this respect, the members of the Chamber took due note that, on the one hand,
the Claimant demands outstanding remuneration in the amount of 33,500,000
from the Respondent, which the latter allegedly omitted to pay him at the end of
the relevant employment contract apparently on 29 September 2005.
7.
On the other hand, the Chamber noticed that the Respondent is, in particular,
confirming that it did not pay the outstanding remuneration requested by the
Claimant in accordance with art. 5 par. 1 of the employment contract due to the
fact that the Claimant allegedly refused to play in the match of the Cup against C
and whereby he allegedly caused it a damage.
8.
In view of the above, the Chamber turned its attention to the question whether
the employment contract at the basis of the present dispute were breached by any
party and, in the affirmative, to consider the relevant consequences of the
unilateral breach of the employment contract without just cause.
9.
In this respect, the members of the Dispute Resolution Chamber acknowledged
that the parties signed an employment contract in February 2005 that was due to
run until the end of the sporting season and established in favour of the Claimant
a signing of fee of 83,750,000, seven monthly salaries of 217,750,000 each and an
amount of 33,500,000, payable at the end of the contract.
10.
Furthermore, the Chamber took note of the fact that the Respondent did not
contested and, thus, accepted that the local Championship and with it the
sporting season for its club ended on 29 September 2005, since, according to the
Claimant, it did not classify to the Round of 16. Therefore, the Chamber
established that the relevant employment contract concluded between the parties
terminated on 29 September 2005.
11.
In continuation, the Chamber turned its attention to the Claimant’s demand for
remuneration in the amount of 33,500,00 allegedly outstanding at the end of the
relevant employment contract. In this respect, the Chamber took note that the
Respondent affirms not having been obliged to paid the claimed amount in
accordance with art. 5 par. 1 of the relevant employment contract, since the
Claimant refused to play in the match of the Cup against C, whereby it allegedly
caused it a damage.
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12.
In this context, the Dispute Resolution Chamber emphasized that in accordance
with the legal principle of the burden of proof, which is a basic principle in every
legal system, a party asserting a fact has the obligation to prove the same (cf. art.
12 par. 3 of the FIFA Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
13.
To that regard, the Chamber determined that neither the Respondent nor the Y
football association did provide any documentary evidence in order to corroborate
the Respondent even played a match against C. Furthermore, the Chamber
considered that the Respondent neither specified any damage at all in connection
with the alleged non participation of the Claimant in the said match.
14.
Consequently of the above, the Chamber
aforementioned Respondent’s allegation.
15.
As a result, and in accordance with the said principle of the burden of proof, the
members of the Chamber unanimously concluded that the Respondent failed to
comply with the contractual terms, as far as the remuneration at the end of the
employment contract is concerned, which constitutes a breach of contract without
just cause.
16.
In continuation, the Chamber turned its attention to the consequences of the
unjustified breach of contract in accordance with art. 17 of the Regulations. In this
context, the Chamber concluded that the Respondent is obliged to pay all
outstanding remuneration due to the Claimant, in accordance with the relevant
employment contract at the basis of the present dispute as well as based on the
Claimant’s claim, until 29 September 2005.
17.
As regards the claimed default interest, the Chamber took note that in accordance
with the relevant employment contract the claimed amount of 33,500,000 was due
at the end of the said contract, i.e. on 29 September 2005 (cf. above-mentioned
point II.10). Therefore, the Chamber decided to award the Claimant’s demand to
that regard.
18.
In view of all of the above, the members of the Dispute Resolution Chamber
considered to fully accept the Claimant’s claim and, therefore, decided that the
Respondent must pay outstanding remuneration to the Claimant due to the
breach of contract without just cause in the amount of 33,500,000 plus 5% default
interest as from 29 September 2005.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant is accepted.
decided to fully reject the
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2.
The Respondent has to pay the amount of 33,500,000 plus 5% default interest as
from 29 September 2005 to the Claimant, within 30 days as from the date of
notification of this decision.
3.
If the aforementioned amount is not paid within the stated deadline, the matter
will be submitted to FIFA’s Disciplinary Committee, so that the necessary
disciplinary sanctions can be imposed.
4.
The Claimant is directed 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 about any receipt of the payment.
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:
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:
__________________________________
Jérôme Valcke
General Secretary
Enclosed: CAS directives
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