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, from X
as Claimant
against the club
B, from Y
as Respondent
regarding a contractual dispute arisen between the player and the club.
I.
Facts of the case
1.
On 17 October 2003, the player A (hereinafter: the Claimant) and club B, Besiktas
JK (hereinafter: the Respondent) concluded an employment contract for the period
from 1 July 2004 until 30 June 2006.
2.
According to the employment contract, the yearly salary amounted to USD
1,200,000, out of which USD 200,000 were payable as advance payment by 25 July
2004 and the rest in ten equal monthly instalments of USD 100,000 each, starting
on 25 August 2004. Additionally, the Respondent agreed to pay allowances such as,
inter alia, a car, the rent of a house up to USD 4,500 and flight tickets.
3.
On 26 June 2006, the Claimant lodged a formal complaint at FIFA requesting
payment of USD 1,100,000 from the Respondent based on a termination
agreement concluded between him and the Respondent. He put forward that in
June 2005, the Respondent had asked him to leave the club. The Claimant
explained that in order to end the humiliating situation, on 4 July 2005, he agreed
to sign a termination agreement with the Respondent according to which the
Respondent committed to pay him USD 800,000 for the early termination of the
contract. The Claimant explained that at that time, the Respondent would have
owed him USD 600,000 as unpaid salaries for the season 2004/2005 plus the
amount he would have earned in the second year, i.e. USD 1,200,000. Therefore,
the Claimant asserts that actually, he would have been entitled to receive USD
1,800,000. Therefore, by concluding the termination agreement, he had renounced
to USD 1,000,000 in exchange for the promise of the Respondent to pay the agreed
amounts on time.
4.
Clause 3 of the agreement reads: “the club will pay the player net USD 500,000 as
contract termination fee within 3 days after signing the agreement. If the club fails
to do so, this agreement will be null and void. In addition, the club will make the
player 3 payments of net 100,000 USD on 15 August 2005, on 15 November 2005
and on 15 January 2006, respectively, as contract termination fee. If the club fails to
make any of these three payments on time, the rest of the contract, signed on 17
October 2003, will immediately be effective.”
5.
The Claimant described Clause 3 of the agreement as follows: “the contract will
return to his original status of USD 1,200,000 season 2005/2006 plus the USD
600,000 owed from season 2004/2005” in case of failure of the Respondent to pay
him the due amounts on time. He stated that the Respondent had failed to pay the
last instalment of the due amount on time after having postponed the other
instalments. Due to the Respondent’s failure to pay all the instalments on time and
based on Clause 3 of the termination agreement, the Claimant demanded payment
of USD 1,100,000 from the Respondent. He added that after the termination of the
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Player A, from X / Club B, from Y
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employment contract which occurred on the Respondent’s initiative, he was
unemployed for six months only because the Respondent had decided to terminate
the employment contract with him prematurely.
6.
The Claimant submitted copies of letters by means of which he had informed the
Respondent that he accepted, upon request of the Respondent, to receive the
second instalment, due on 15 November 2006, in January 2006 and to receive the
third instalment, due on 15 January 2006, by 15 February 2006 at the latest.
7.
In its response to the claim, the Respondent rejected the complaint of the Claimant
and replied that it had paid the player the agreed USD 500,000 as well as two out
of three instalments of USD 100,000 each. The Respondent explained that it had
only failed to pay one single instalment of USD 100,000 due to an accounting
mistake. It further asserted that by paying the amount of USD 700,000 to the
Claimant, it had shown its good intentions and considered the player’s claim for
USD 1,100,000 to be unfair and unacceptable.
8.
The Claimant commented on the position of the Respondent that the latter had
acknowledged to have breached the termination agreement by not paying him
one of the instalments. He adhered to his claim and stated that he wanted to have
justice applied and to demonstrate the clubs that agreements have to be respected.
9.
In its closing arguments, the Respondent reiterated that it considered it to be
unfair and unacceptable for the Claimant to request an additional USD 1,100,000
only because the club had failed to pay one single instalment in November. The
Respondent put forward that it had missed the aforementioned payment as the
general congress and the elections of the board were held during that period of
time. It also remarked that it would be ready to pay the outstanding amount of
USD 100,000 to the Claimant by the end of the financial year which would be a fair
way of settling the matter.
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 (DRC). The present matter was submitted to FIFA on 26 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 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 employment-related disputes between a
club and a player that have an international dimension.
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Player A, from X / Club B, from Y
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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 arisen 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 contracts at the
basis of the present dispute were signed on 17 October 2003 and on 4 July 2005,
respectively, and the claim was lodged at FIFA on 26 June 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 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 the above-mentioned facts and all further
documentation contained in the file. In particular, they took note that an
employment contract had been concluded between the two parties for the period
from 1 July 2004 until 30 June 2006. Furthermore, they acknowledged that the
employment contract had been terminated by mutual agreement on 4 July 2005
and that the Respondent had, in the termination agreement, undertaken to pay
the amount of USD 800,000 to the Claimant, payable in several instalments.
6.
Equally, the Chamber took note of the undisputed fact that the Respondent had
paid USD 700,000 to the Claimant but had failed to pay the last instalment of USD
100,000 which had been due on 15 January 2006.
7.
The members of the Chamber then took note that the parties had agreed in Clause
3 of the agreement that “if the club fails to make any of the payments on time, the
rest of the contract, signed on 17 October 2003 would immediately be effective”.
8.
The Chamber further took note that the Claimant requests, in strict application of
clause 3, payment of USD 1,100,000 from the Respondent for unpaid salaries and
the remainder of the contract, with the deduction of USD 700,000, which he had
already received from the Respondent.
9.
The Chamber drew its attention to the statement of the Respondent, namely that
it had shown its good will as it had paid USD 700,000 to the Claimant and that due
to the fact that only one instalment was outstanding, the strict application of
Clause 3 of the agreement was not justified.
10.
The members of the Chamber reasoned that in order to asses the complaint of the
Claimant, they not only had to examine Clause 3 of the agreement but at the same
time to take into account the special circumstances of the case.
11.
In this respect, the Chamber drew its attention to the fact that the Claimant had
accepted late payments from the Respondent with respect to two instalments,
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Player A, from X / Club B, from Y
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namely for the one which was due on 15 November 2006 and which he received,
with his consent, in January 2006 and another instalment which was due on 15
January 2006 and which he accepted to receive by 15 February 2006.
12.
The Chamber concluded that the Claimant had, by accepting the postponements of
some instalments, consented to delayed payments. The Chamber concluded that
due to his earlier acceptance of a different payment plan, the Claimant’s request
for the application of Clause 3 was not justified and therefore had to be rejected.
13.
Additionally, the members of the Chamber deemed that as the Respondent had
paid USD 700,000 out of USD 800,000 to the Claimant which means that it had only
failed to pay a small part of the total amount, i.e. 1/8, it thus had shown its good
intentions to comply with the agreement of 4 July 2005. As a result, the Chamber
concluded that the strict application of Clause 3 of the agreement, i.e. the payment
of the whole remainder of the employment contract, would constitute an
unsustainable, unfair and inadequate result which it cannot uphold.
14.
In light of the foregoing, the Chamber decided that the Claimant is entitled to
receive the outstanding amount of USD 100,000 from the Respondent as the last
instalment of the payment for the premature termination of the employment
contract. As a result, the Chamber partly accepted the complaint of the Claimant.
15.
Finally, the Chamber remarked that according to the termination agreement
concluded between the two parties, the aforementioned last instalment of USD
100,000 had been due on 15 January 2006. However, the Chamber acknowledged
that the Claimant had, by means of a signed letter which he had remitted to the
services of FIFA (date illegible), granted the Respondent a deferment of the
payment until 15 February 2006.
16.
Consequently, the Chamber decided to apply its well-established jurisprudence
concerning payment of interest, i.e. to apply an interest rate of 5% per annum on
the outstanding amount of USD 100,000, starting as of the due date of 15 February
2006 and applicable until the effective date of payment to the Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of player, A, is partially accepted.
2.
The Respondent, Club B, has to pay the amount of USD 100,000 to the Claimant,
player A, within 30 days following the date of the communication of the present
decision.
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Player A, from X / Club B, from Y
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3.
The Respondent, Club B, has to pay default interest of 5% per annum on the
amount of USD 100,000 starting as of 15 February 2006 until the effective date of
payment to the Claimant.
4.
If the sums according to the above-stated points 2 and 3 are not paid within the
stated deadline, the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
5.
Any further claims submitted by the Claimant, player A, are rejected.
6.
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.
7.
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
CH-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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Player A, from X / Club B, from Y
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