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), Chairman
Philippe Diallo (France), Member
Essa M. Sahleh Al-Housani (United Arab Emirates), Member
Philippe Piat (France), Member
Joaquim Evangelista (Portugal), Member
on the claim presented by the player
Xxx, Xxx,
represented by Mr Xxx, lawyer,
as Claimant
against the club
Xxx, Xxx,
as Respondent
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 11 August 2003, the Xxx player, Xxx (hereinafter: the Claimant), and the Xxx
club, Xxx (hereinafter: the Respondent), signed an employment contract, valid
from the date of the signature until 10 August 2008. According to the contract
the Claimant was entitled to receive a monthly salary amounting to RUB 23,601
(approximately USD 880).
2.
On 25 July 2005, the Claimant was transferred from the Respondent to the Xxx
club, Xxx. According to the relevant transfer agreement the clubs involved in the
transfer of the Claimant agreed that, on the one hand, that the Respondent
should terminate the employment contract which it maintained with the player
at that moment and, on the other hand, that Xxx should conclude a new
employment contract with the Claimant.
3.
On 26 July 2005, Xxx and the Claimant signed an employment contract with a
duration from the date of the signature until 15 December 2005.
4.
On 8 August 2006, the Claimant lodged a claim with FIFA against the
Respondent requesting allegedly outstanding salaries since the end of the year
2005 on the basis of the relevant employment contract as well as his immediate
release from the employment contract allegedly binding him to the Respondent.
5.
In its response of 18 August 2006, the Respondent stated that it did not maintain
a contractual relationship with the Claimant anymore and, therefore, it had no
reason to pay the Claimant’s salary. Furthermore, the Respondent stated that it
would not resist against a transfer of the Claimant to a club of his choice in order
to continue his career.
6.
In his replica, the Claimant stated that, in view of the above-mentioned
statement, by means of which the Respondent confirmed that it did not
maintain a contractual relationship with him, his petition only aimed at the
International Transfer Certificate (ITC) to be issued for him by the Football Union
of Xxx in favour of the Xxx Football Confederation.
7.
On 8 September 2006, FIFA informed the Claimant that only the Association of
the club which he wished to join was entitled to ask for FIFA’s assistance in order
to obtain the relevant ITC and, thus, FIFA was only in a position to intervene in
such a matter after having received a formal request for intervention from the
Association concerned.
Player Xxx, Xxx / Club Xxx, Xxx
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8.
In its duplica, the Respondent emphasized that should the relevant ITC be
requested by the Association concerned they would support its issuance.
9.
In continuation, FIFA was never contacted by the Xxx or another Football
Federation in connection with the issuance of the ITC for the Claimant.
10.
On 12 January 2007, the ITC for the Claimant was issued by the Football Union of
Xxx in favour of the Xxx Football Confederation. According to the employment
contract signed between the Claimant and the Xxx club, Xxx, valid from 2
January 2007 until 16 May 2007, the Claimant was entitled to receive a monthly
salary in the amount of BRL 350 (approximately USD 183).
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyze 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 8 August 2006, as a consequence the Chamber concluded
that the revised Rules Governing Procedures (edition 2005, hereinafter: the
Procedural Rules) to 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 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 Xxx player and a Xxx club regarding
a dispute related to 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 employment
Player Xxx, Xxx / Club Xxx, Xxx
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contract at the basis of the present dispute was signed on 11 August 2003 and
the claim was lodged at FIFA on 8 August 2006. In view of the aforementioned,
the Chamber concluded that the current FIFA Regulations for the Status and
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 Chamber
acknowledged that, on 11 August 2003, the Claimant and the Respondent had
signed an employment contract, valid from the date of the signature until 10
August 2008.
6.
Furthermore, the Chamber took note that, on the one hand, the Claimant
requested from the Respondent the payment of allegedly outstanding salaries
since the end of the year 2005 on the basis of the above-mentioned employment
contract as well as his immediate release from the said employment contract
allegedly binding him to the Respondent in order to continue his career with
another club of his choice.
7.
On the other hand, the Chamber duly noted that the Respondent, due to the
Claimant’s transfer of 25 July 2005 to the Xxx club, Xxx, denied the existence of a
contractual relationship with the Claimant and, therefore, refused to pay the
claimed salaries but affirmed that the Claimant was free to find a new club.
8.
In this regard, the Chamber acknowledged that in the transfer agreement dated
25 July 2005 the Respondent and Xxx agreed to transfer the Claimant to Xxx and
to terminate, at the same time, the relevant employment contract signed
between the Claimant and the Respondent.
9.
Moreover, the Chamber took note that the Claimant, in his replica, did not
contest the Respondent’s allegation regarding the absence of a contractual
relationship between the parties at all. In particular, the Chamber acknowledged
that the Claimant explicitly requested the issuance of the ITC for him due to the
fact that the Respondent had confirmed that it did not maintain a contractual
relationship with him anymore (cf. point I. 6).
10.
In this respect, the Chamber recalled that FIFA had informed the Claimant that
only the Association of the club which he wished to join was entitled to ask for
FIFA’s assistance in order to obtain the relevant ITC and, thus, FIFA was only in a
position to intervene in such a matter after having received a formal request for
intervention from the Association concerned (cf. art. 9 par. 1 as well as annex 3
of the Regulations).
Player Xxx, Xxx / Club Xxx, Xxx
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11.
Furthermore, the Chamber pointed out in this context that, as a general rule, the
ITC could only be issued if the contract between the Former Club and the
Professional had expired or if there had been a mutual agreement regarding the
early termination of the contract between the Former club and the Professional,
respectively, that the ITC should not be issued if a contractual dispute has arisen
between the Former club and the Professional (cf. art. 2 par. 4 and 6 of the
Regulations).
12.
Taking into account the above, the Chamber came to the conclusion that the
Claimant, by neither having disputed the alleged absence of a contractual
relationship between the parties concerned nor having insisted on its financial
claim for the payment of allegedly outstanding salaries but by only having
requested the issuance of the ITC on the basis of the Respondent’s confirmation
that they did not maintain a contractual relationship anymore, had accepted the
Respondent’s allegation that no contractual relationship existed anymore.
13.
As a consequence, taking into consideration that the Claimant had agreed with
the absence of a contractual relationship between him and the Respondent, the
Dispute Resolution Chamber concluded that there was no basis for the
Claimant’s claim regarding allegedly outstanding salaries and, therefore, the
present claim is not substantiated.
14.
In view of all the above, the Dispute Resolution Chamber decided that the
Claimant is not entitled to receive any payment from the Respondent and,
consequently, to fully reject the Claimant’s claim.
15.
Finally, and for the sake of completeness, the Chamber pointed out that the
Claimant’s claim does not comply with the formalities stipulated in art. 9 par. 1
of the Procedural Rules. In fact, the Claimant omitted to specify the amount of
salaries in dispute. As a consequence, the Chamber came to the conclusion that
the present claim would also have to be rejected due to its incomplete content
(cf. art. 9 par. 2 of the Procedural Rules).
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Xxx, is rejected.
2.
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
Player Xxx, Xxx / Club Xxx, Xxx
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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
Encl.
CAS directives
Player Xxx, Xxx / Club Xxx, Xxx
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