Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 June 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Mick McGuire (England), member
Zola Malvern Percival Majavu (South Africa), member
Caio Cesar Vieira Rocha (Brazil), member
on the claim presented by the player,
X,
represented by Mr. Z
as “Claimant”
against the club,
Y,
as “Respondent”
regarding an employment-related contractual dispute between the player and the
club.
I.
Facts of the case
1.
On 6 July 2005, the player, X, and the club, Y, signed an employment contract
valid as from 6 July 2005 until 30 June 2008 with an option for the club to
prolong the contract until 30 June 2010.
2.
This employment contract entitles the player inter alia to receive a monthly
basic wage of ... 12,000 plus an additional payment in such a way “that the
player receives 17,200 ... on hands a month”. According to the contract, the
salary is payable once a month until the tenth day of the month following the
month in which he rendered his services.
3.
On 21 February 2008, the player lodged a claim against the club in front of
FIFA.
4.
According to the player, there have been delays in the remittance of his salary
throughout the season and the club failed to pay his salaries for September,
October, November, December 2007 even after having put the club in default
of payment of the total amount of ... 66,737 on 17 December 2007. In support
of his claim, the player submitted an extract of his bank account as from 1
January 2007 until 12 January 2008 pointing out that he is entitled to receive ...
206,400 on a yearly basis (12 x ... 17,200) whereas the club had only remitted ...
139,663 until the end of the year 2007 for salaries up to September 2007 (...
1,000 of which month was paid on 10 December 2007), which makes the
outstanding difference of ... 66,737 (including September, October, November,
December 2007).
5.
Therefore, the player asks a) that the relevant employment contract be
cancelled and that he be allowed to sign on with another club and b) that the
club be obliged to pay the outstanding monies.
6.
The player has indicated that he returned to his country in November 2007 for
vacation, after which he put the club in default of payment of his salaries.
7.
In reply to the player’s claim and to FIFA’s question to also present its position
on the player’s wish that the employment relationship with the club be
terminated in order for him to continue his career in another club, Y asserts
that it paid part of the player’s salary and that in accordance with the ...
Football Association’s regulations for the transfer of players it has not violated
paragraph 13 of such regulations. Therefore, the player has no right to
terminate the contract unilaterally.
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8.
The club further maintains that the player has not participated in the club’s
trainings as from 16 December 2007 and that X did not inform the club about
his reasons. Given that his contract is still valid, he is obliged to participate in
the trainings.
9.
On 7 April 2008, the player informed FIFA that the club still had not paid him
any salary for the period as from 1 September 2007 until 1 April 2008 in the
total amount of ... 9,700. As a consequence, he wishes that the relevant
contract be terminated and the club be obliged to pay the outstanding
monies.
10.
In reply, the club has reiterated that the player has not shown up at the club’s
trainings since 16 December 2007 and that it does not agree with a unilateral
termination of the contract by the player.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was
competent to deal with the case at hand. In this respect, it took note that the
present matter was submitted to FIFA on 21 February 2008. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to
the matter at hand (cf. art. 18 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
an international dimension between a … player and an … club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 2 of the Regulations on the Status and Transfer of Players
(edition 2008), and considering that the present claim was lodged on 21
February 2008, the current version of the regulations (edition 2008;
hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
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4.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the case.
The members of the Chamber carefully studied the facts outlined above, which
show that the player, X, and the club, Y, signed an employment contract on 6
July 2005, due to expire on 30 June 2008, in accordance with which the player
is entitled to receive a total monthly remuneration of … 17,200, including at
least … 12,000 as basic wage, payable by the club once a month until the tenth
day of the month following the month in which the player rendered his
services.
5.
The player maintains that the club failed to pay his salaries as from September
2007 even after having put the club in default in writing in December 2007.
The Chamber took note that the player presented a copy of his default notice
dated 16 December 2007 and notified to the club on 17 December 2007.
Therefore, on 21 February 2008, X turned to the Chamber with his request that
inter alia the relevant employment contract be cancelled and that he be
allowed to sign on with another club.
6.
The Chamber acknowledged that the player maintains having returned to his
country for vacation in November 2007 and that such assertion has not been
refuted by Y. Consequently, the Chamber accepted the pertinent statement of
the player as confirmed.
7.
In its defence, Y merely indicates that it had paid part of the player’s salary
without any further specification and that it had not acted in breach of par. 13
of the .. Football Association’s regulations for the transfer of players. In this
respect and taking into account the principle of burden of proof, the Chamber
noted that no documentary evidence corroborating such statements have been
presented by the club.
8.
According to Y, the player was absent from training as from 16 December 2007
without informing the club of his reasons.
9.
For these reasons, the club disagrees with the player’s request for the
termination of the relevant employment contract.
10.
In this respect, the Chamber recalled that by correspondence dated 16
December 2007 the player had put the club formally in default of its
contractual financial obligations. Furthermore, it can be noted from the file
that the club has not remedied the defaults contained in the player’s written
default notice. In this context, the club appears to have contented itself with a
reference to the player’s absence from training and a statement that it had
partially remitted the player’s salary without indicating which part would have
in fact been paid.
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11.
Furthermore, the members of the Chamber acknowledged that, especially
taking into account the player’s letter dated 7 April 2008 and the club’s
response to the allegations contained in the said letter, Y has not remitted any
remuneration to X throughout the proceedings in the matter at hand.
12.
In the light of the aforementioned circumstances, the Chamber agreed that as
early as on the date on which he turned to FIFA, i.e. 21 February 2008, the
player had just cause to terminate the pertinent employment contract since
the club has clearly acted in breach of its contractual obligations relating to
the player’s monthly remuneration as of September 2007.
13.
Consequently, the Chamber decided that Y is to be held responsible for the
early termination of the pertinent employment contract in February 2008 by
acting in breach of its contractual obligations. Consequently, taking into
consideration art. 17 par. 1 of the Regulations and the constant jurisprudence
of the Dispute Resolution Chamber, the Chamber decided that the player is
entitled to receive from the club an amount of money as compensation for
breach of contract in addition to any outstanding payments on the basis of the
relevant employment contract.
14.
The Chamber then turned to the player’s financial claim which includes his
monthly remuneration as from September 2007 (of which month .. 1,000 was
in fact remitted to the player). The members also took into account the
findings under point II.12 above and thus established that the player, X, is
entitled to receive from the club outstanding remuneration pertaining to
September 2007 up to and including February 2008 in the total amount of ..
102,200 (6 months x … 17,200 minus … 1,000 received for September 2007).
15.
In addition, in the light of all of the above-mentioned considerations,
including the fact that the pertinent employment contract was due to expire
on 30 June 2008, the Chamber agreed that a compensation equalling four
months’ remuneration totalling … 68,800 is appropriate in the case at hand.
16.
Taking into consideration all of the above, the Chamber decided that Y is
liable to pay to X the total amount of … 171,000.
*****
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is accepted.
2.
The Respondent, Y, has to pay the amount of … 171,000 to the Claimant within
30 days as from the date of notification of this decision.
3.
In the event that the amount of … 171,000 is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the
aforementioned deadline and the present matter shall be submitted to the FIFA
Disciplinary Committee.
4.
The Claimant is directed to inform the Respondent immediately of the bank
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
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:
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
Secretary General
Enclosed: CAS directives
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