Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 June 2007,
in the following composition:
Slim Aloulou (Tunisia), President
Essa M. Saleh Al-Housani (Uniated Arab Emirates), member
Philippe Diallo (France), member
Joaquim Evangelista (Portugal), member
Philippe Piat (France), member
on the claim presented by the player
X, xxxxx
as Claimant
against the club
Y, xxxx,
as Respondent
on the basis of an employment contract
concluded between the parties.
I.
Facts of the case
1.
The player X, the Claimant, and the club Y, the Respondent, signed an official
employment contract valid as from 7 July 2005 until 31 May 2007 (monthly salary
minimum wage not specified and the amount of xxx 50,000) as well as a private
contract dated 1 September 2005 valid for the 2005/2006 and 2006/2007 seasons.
2.
For the season 2005/2006 the private contract stipulates that the Respondent will
pay the net amount of USD 350,000 to the Claimant as follows: USD 150,000 in
advanced (no date specified), USD 100,000 in ten instalments of USD 10,000 each
and USD 100,000 per match divided into 34 matches, i.e. USD 2,941 per match.
3.
For the season 2006/2007 the private contract stipulates that the Respondent will
pay the net amount of USD 400,000 to the Claimant as follows: USD 175,000 in
advanced (no date specified), USD 125,000 in ten instalments of USD 12,500 each
and USD 100,000 per match divided into 34 matches, i.e. USD 2,941 per match.
4.
On 22 May 2006, the Claimant notified the termination of the employment
agreement the xxxx Football Federation. Shortly after the Claimant lodged a claim
with FIFA.
5.
On 19 June 2006, the Claimant initially contacted FIFA lodging a financial claim
against the Respondent and expressing his intentions to continue his career with
another club of his choice.
6.
On 12 July 2006, the Respondent informed FIFA that according to the private
employment contract the Claimant was entitled to receive the amount of USD
350,000 for the season 2005/2006. In this respect, the Respondent affirmed that it
already paid the amount of USD 324,183 to the Claimant and therefore in the
Respondent’s opinion the Claimant received 90% of the value of the contract. In
this respect, the Respondent provided several payment receipts as well as bank
transaction receipts as well as copies of two fines imposed on the Claimant in the
amount of USD 3,700 and USD 7,400.
7.
Moreover, the Respondent stressed that the Claimant has a valid contract for the
season 2006/2007 and therefore he should resume duties. Consequently, the
Respondent is of the opinion that the Claimant’s claim should be rejected since the
Claimant’s wishes to leave the club are totally unjustified.
8.
On 24 July 2006, the Claimant stressed that the Respondent admitted that it did
not fulfil its contractual obligations. Furthermore, the Claimant underlined that
the Respondent insists to continue with the employment relation for the season
2006/2007, however, without fulfilling its contractual obligation as paying the
advance payment for the season 2006/2007 amounting to USD 175,000.
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9.
In particular, the Claimant underlined that in accordance with the receipts
provided by the Respondent it can be established that the latter never paid the
remuneration in time. Moreover, the Claimant underlined that the amount of xxx
50,000 (transfer payment to be made to the Claimant in accordance with the
official contract) listed up in the breakdown provided by the Respondent was
never paid to him.
10.
In addition, the Claimant claims that his signature on the receipt dated 25.08.05
amounting to USD 40,000 is fake and can therefore not be taken into
consideration. Also, the Claimant explained that the fines were never notified to
him and he never had a chance to defend himself in this respect.
11.
Finally, the Claimant once again stressed that primarily he wants to resolve the
employment contract.
12.
On 18 August 2006, the parties signed a new agreement agreeing that all possible
earlier outstanding amounts have been paid. Furthermore, the parties agreed that
for the season 2006/2007 the Claimant was entitled to receive the amount of USD
75,000 when he is licensed by the xxxx, the amount of USD 75,000 20 days later, 10
instalments of USD 7,500 and the amount of USD 75,000 divided in 34 games.
Clause two of the said agreement stipulates that the agreement is only valid if it is
approved by the xxx otherwise the Claimant would be entitled to refer his initial
claim to FIFA.
13.
Also on 18 August 2006, the Claimant informed FIFA and the xxx that he
withdraws his claim against the Respondent and confirmed that the club does not
owe him any amount at all for the season 2005/2006 and that he signed a new
employment contract with the Respondent for the season 2006/2007.
14.
On 3 October 2006, the Claimant again contacted FIFA asking for intervention in
order to be free to sign a contract with any club of his choice and to collect the
allegedly outstanding amounts since the xxx did not approve the agreement dated
18 August 2006.
15.
On 17 January 2007, the Claimant particularly requested the following amounts:
•
USD 87,780 as match bonuses for the season 2005/2006,
•
12 instalments of USD 238.09 for the season 2006/2007,
•
USD 400,000 as compensation corresponding to the remaining value for
the season 2006/2007 and
•
legal costs.
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16.
On 16 December 2006, the Respondent explained that the Claimant unilaterally
and by its own will terminated the contract relationship already in May 2006.
Moreover, the Respondent emphasised that it wished to continue the relationship
with the Claimant, but he cancelled the contract and the xxx did not accept the
new contract dated 18 August 2006. With regard to the financial claim the
Respondent referred to its previous statement. Finally, the Respondent affirmed
that it always acted in accordance with the FIFA Regulations.
17.
On 18 December 2006, the xxx informed FIFA that it issued the relevant
International Transfer Certificate to the xxx Football Association on 6 October
2006. Moreover, the xxx provided a copy of its decision not approving the
agreement dated 18 August 2006 based on the fact that “ Even the agreement of
the parties in a later stage does not abrogate the new situation occurred by the
repeal and can not provide the validity of the repealed contract”.
18.
Upon FIFA’s request the Claimant confirmed that he rendered his services to the
Respondent until 14 May 2006.
19.
The Claimant signed an employment contract with the xxx club xxx on 25 October
2006.
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 19 June 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 on 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 Claimants (edition 2005). In accordance
with art. 24 par. 1 in connection 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 an xxx player and a xxx club regarding a
claim in connection with an employment contract.
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4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Claimants 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 Claimants
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed in July 2005 and the claim was lodged at
FIFA on 19 June 2006. In view of the aforementioned, the Chamber concluded that
the current FIFA Regulations for the Status and the Transfer of Players (edition
2005, hereafter: the Regulations) are applicable to 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 that the Claimant and the Respondent
signed an official employment contract valid as from 7 July 2005 until 31 May 2007
(monthly salary minimum wage not specified and the amount of xxx 50,00) as well
as a private contract dated 1 September 2005 valid for the 2005/2006 and
2006/2007 seasons. For the season 2005/2006 the private contract stipulates that
the Respondent will pay the net amount of USD 350,000 to the Claimant as
follows: USD 150,000 in advanced (no date specified), USD 100,000 in ten
instalments of USD 10,000 each and USD 100,000 per match divided into 34
matches, i.e. USD 2941 per match. For the season 2006/2007 the private contract
stipulates that the Respondent will pay the net amount of USD 400,000 to the
Claimant as follows: USD 175,000 in advanced (no date specified), USD 125,000 in
ten instalments of USD 12,500 each and USD 100,000 per match divided into 34
matches, i.e. USD 2941 per match.
6.
Equally, the Chamber noted that the Claimant terminated the employment
contract on 22 May 2006, but that the parties signed again a new employment
contract on 18 August 2006.
7.
In this respect, the Chamber duly noted that, the Claimant explained that since the
xxx did not approve the agreement dated 18 August 2006 he insists in his
originally lodged claim.
8.
In this context, the Chamber considered that the Claimant is claiming in
connection with the private contract signed on 1 September 2005 allegedly
outstanding match bonuses in the amount of USD 87,780 for the season 2005/2006
as well as 12 instalments of USD 238.09 for the season 2006/2007 and the amount
of USD 400,000 as compensation corresponding to the remaining contractual value
for the season 2006/2007 and legal costs.
9.
Turning its attention to the Respondent, the Chamber took due note, that the
Respondent rejects the Claimant’s claim emphasizing that by the time the
Claimant unilaterally and by his own will terminated the employment contract, in
May 2006, it had paid the amount of USD 324,183 to the Claimant and therefore
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in the Respondent’s opinion the Claimant received 90% of the value of the
contract. Moreover, the Respondent emphasised that it wished to continue the
relationship with the Claimant, but he cancelled the contract and the xxx did not
accept the new employment contract dated 18 August 2006.
10.
Consequently, the Respondent is of the opinion that it always acted in accordance
with the FIFA Regulations.
11.
The Chamber started its deliberations by emphasising that it is undisputed that the
Claimant rendered his services to the Respondent until 14 May 2006 and that he
decided to terminate the employment contract on 22 May 2006 so as to be able to
continue with his career with the club of his choice. In this context, the Chamber
underlined that, as a general principle, a club is obliged to remunerate a player, as
agreed between the parties, for the period of time during which he has rendered
his services to the club.
12.
Moreover, the Chamber acknowledged that the Claimant is claiming allegedly
outstanding match bonuses for the season 2005/2006 in the amount of USD 87,780
and that based on the private agreement for the season 2005/2006 dated 1
September 2005 the Claimant was entitled to receive the amount of USD 150,000
in advanced (no date specified), USD 100,000 in ten instalments of USD 10,000
each and USD 100,000 per match divided into 34 matches, i.e. USD 2,941 per
match.
13.
As a result, and bearing in mind the above considerations under points II. 11. and
12., the Chamber concluded that the Respondent should have paid to the
Claimant the amount of USD 335,000 in connection with the private contract
dated 1 September 2005 for the season 2005/2006 in accordance with the time
during which the Claimant rendered his services to the Respondent.
14.
In continuation, the Chamber scrutinized the remitted payment receipts as well as
the bank transaction receipts, so as to establish whether the Respondent complied
with its financial obligations towards the Claimant as provided for in the private
contract dated 1 September 2005 for the season 2005/2006 until the day the
Claimant rendered his services to the Respondent.
15.
In this context, the Chamber rejected the Claimant’s position with regard that the
signature on the receipt dated 25.08.05 amounting to USD 40,000 is fake and
therefore the said payment receipt cannot be taken into consideration. In this
respect, the Chamber emphasized that in accordance with the legal principle of
the burden of proof, which is a basic legal principle in every legal system, a party
deriving a right from an asserted fact has the obligation to prove the relevant fact
(cf. art. 12 par. 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber, hereafter: the Rules Governing
the Procedures).
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16.
As a result, the Chamber emphasised that based on the documents provided and
for lack of evidence of the contrary it has to be concluded that the Claimant also
received the amount of USD 40,000 from the Respondent.
17.
Moreover, and with regard to the fines imposed on the Claimant in the amount of
USD 3,700, on 25 October 2005, in connection with a red card and in the amount
of USD 7,400, also on 25 October 2005, due to the unsuccessful results of a match,
the Chamber acknowledged that the Claimant explained that the fines were never
notified to him and that he never have had a chance to defend himself in this
respect.
18.
In this context, the Chamber took into account that the Respondent failed to
provide any documentary evidence so as to establish the legitimacy of the fine
with regard to the red card. Equally, the Chamber deemed that the imposition of
a fine corresponding to almost 80% of the monthly salary of a player due to
unsuccessful results of a match, cannot be endorsed.
19.
In view of the above, the Chamber concluded that based on the remitted
documentation and contrary to the Respondent’s affirmations it can be
established that the Respondent paid to the Claimant for the season 2005/2006
the amount of xxx 78,355 (USD 61,015) as well as USD 218,000, i.e. the amount of
USD 279,015 in connection with the private agreement dated 1 September 2005.
20.
In view of all of the above, the Chamber unanimously concluded that the
Respondent has to pay to the Claimant the difference between the amount of
USD 335,000 as contractually agreed for the season 2005/2006 and the amount of
USD 279,015 already paid to the Claimant for the season 2005/2006 and
corroborated with documentary evidence, i.e. the Respondent still owes to the
Claimant the amount of USD 55,985 in connection with the private agreement
dated 1 September 2005 for the season 2005/2006.
21.
Subsequently, the Chamber considered that the Claimant terminated the
employment contract in May 2006, that he repeatedly insisted in continuing his
career with another club of his choice and that he already signed a new
employment contract with another club in October 2006.
22.
After long deliberations and taking into account the above as well as all
submissions made by both parties in this respect, the Chamber came to the
conclusion that the conduct of both parties lead to the premature termination of
the relevant employment relation and that neither party can be held exclusively
responsible for the said premature termination.
23.
As a result, the Chamber unanimously decided that the employment contract at
the basis of the dispute has come to an end in May 2006 and that neither party
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can be held liable to pay any compensation in accordance with art. 17 of the
Regulations.
24.
In light of the above, the Chamber rejected the Claimant’s claim with regard to
any remuneration which would be due after the date on which the relevant
employment relationship has come to an end. Thus, the Chamber rejected the
Claimant’s claim in connection with the 12 instalments of USD 238.09 for the
season 2006/2007 as well as the amount of USD 400,000 corresponding to the
remaining value for the season 2006/2007.
25.
Finally, the Chamber referred to its well-established jurisprudence as well as to art.
15 par. 3 of the Rules Governing the Procedures according to which no procedural
compensation shall be awarded and rejected the Claimant’s request in this respect.
26.
In view of all of the above, the members of the Chamber decided that the
Respondent has to pay to the Claimant the amount of USD 55,985.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is partially accepted.
2.
The Respondent must pay to the Claimant the total amount of USD 55,985 within
30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
5.
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 of every payment received.
6.
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).
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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
Encl.
CAS directives
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