Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 June 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Mohamed Mecherara (Algeria), member
on a matter between the player
E,
as Claimant
and the club
Club O,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
On 17 January 2007, the player E (hereafter: the Claimant), and the club, Club O
(hereafter: the Respondent), signed an employment contract valid from 17
January 2007 until 31 May 2008. The said contract stipulates the manner in which
the Claimant will receive payment, as follows:
-
2.
EUR 7,500 paid upon signing the contract.
EUR 14,166 paid in four equal instalments on the 17th day of the months
February to May 2007.
EUR 14,166 paid in five equal instalments on the 17th day of the months
August to December 2007.
EUR 14,166 paid in 5 equal instalments on the 17th day of the months January
to May 2008.
Additionally, the Claimant signed a supplementary agreement on 20 January
2007 with the Respondent, valid until the end of May 2008, in which additional
payments were stipulated as follows:
-
EUR 62,000 split into fifteen equal instalments to be paid on the 17th day of
each month between January 2007 and May 2008, excluding the month of
June 2007 (EUR 4,133.34 per month).
3.
On 19 May 2008, the Claimant contacted FIFA explaining that the Respondent
had failed to pay the due amounts stipulated in the two agreements for the final
5 months of 2008 (January to May 2008).
4.
Therefore, the Claimant requests the outstanding salaries for the months
January, February, March, April and May 2008, which he calculated to be EUR
35,500.
5.
On 5 March 2009 and 30 March 2009 FIFA requested that the Resopndent provide
its position, but received no response. On 8 April 2009 FIFA requested for a final
time that the Respondent provide its position, and received a correspondence
from a legal firm claiming to represent the Respondent requesting an additional
15 days to provide its position.
6.
The deadline, plus additional 15 days, lapsed without the Respondent providing
its position.
7.
After the close of the investigation, the Respondent provided a late position,
dated 15 June 2009, denying all claims of the player and claiming that:
−
according to paragraph 16 of the employment contract, it is stated that the
agreement shall be “automatically terminated” without compensation,
should the Respondent be relegated from the 1st division. The Respondent
alleges that is was relegated, and that the final match of the season was 22
March 2008. Therefore the contract terminated on that month and the
2
Respondent does not owe anything for the subsequent months of April and
May 2008.
−
the Respondent paid the Claimant EUR 15,000 for the months “January,
February and May 2008”. Club provided two receipts dated 4 January 2008
and 18 February 2008, which were not translated. Both are apparently signed
by the Claimant, and appear to be for the amount of EUR 7,500 each.
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, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 19 May 2008, thus before 1 July 2008. Consequently, the Chamber
concluded that the 2005 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand.
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 a club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on 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 on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 19 May 2008
and that the relevant employment contract was signed on 17 January 2007. In
view of the aforementioned, the Dispute Resolution Chamber concluded that the
2005 version of the regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The Dispute
Resolution Chamber examined the documentation presented by the parties
throughout the proceedings and took note that the parties involved in the
present dispute had entered into a contractual employment relationship valid
from 17 January 2007 until 31 May 2008, with an additional supplementary
agreement, signed on 20 January 2007, valid until the end of May 2008.
5.
In this respect the Chamber noted that the Claimant requested the remaining 5
months of his contract (January 2008 until May 2008) as unpaid salaries.
3
Consequently the Chamber considered both the employment contract signed on
17 January 2007, and the supplementary contract, signed on 20 January 2009, and
calculated that the player was due to receive a monthly payment of EUR 7,000 for
each of the months January, February, March, April and May 2008.
6.
Following this calculation, the Chamber next considered which months the
Claimant was still entitled to be paid for. In this respect the Chamber examined
the payment receipts provided by the Respondent, and concluded that the receipt
dated 18 February 2008, a day after the payment was contractually due, was proof
that the Claimant received the relevant amount for the month of February 2008.
The Chamber considered that the payment receipt dated 4 January 2008 was in
fact the payment relating to the month December 2007, and therefore the wage
for January 2008 remained outstanding to player.
7.
The Chamber, after concluding that the Claimant was entitled to receive EUR
7,000 as outstanding pay for each of the months January and March of 2008, next
considered the remaining months April, and May of 2008 and in particular the
argument of the Respondent in which it is stated that according to paragraph 16
of the employment contract, the club can terminate the contract if the team is
relegated from the 1st Division of C. The Chamber also considered the argument
that the contract was thus terminated at the end of March 2008, as the
Respondent’s relegation came into effect as from the final match of the season,
on 22 March 2008.
8.
After close analysis of the aforementioned paragraph within the employment
contract, the Chamber concluded that the “relegation clause” was indeed valid,
however the Chamber was of the opinion that in such circumstances the
Respondent must still pay the Claimant an additional month’s salary, in order to
serve as a “notice period”, and therefore the Claimant would also be due EUR
7,000 for April 2008.
9.
In respect of the above, the Chamber therefore concluded that the Respondent
was to pay the Claimant the relevant EUR 7,000 for the months January, March
and April of 2008, and thus a total of EUR 21,000, and therefore, the Claimant’s
claim is partially accepted.
***
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, E, is partially accepted.
2.
The Respondent, Club O, has to pay to the Claimant, E, the amount of EUR 21,000
within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant, E, are rejected.
4
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 upon the party’s request to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
5.
The Claimant, E, is directed to inform the Respondent, Club O, immediately and
directly of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
***
Note relating to the motivated decision (legal remedy):
According to art. 63 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
Secretary General
Enclosed: CAS directives
5