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 the claim presented by the player,
O,
as Claimant
against the club,
L FC,
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 15 September 2007, the player O (hereinafter: the player or the Claimant)
and the club L FC (hereinafter: the club or the Respondent) signed an
employment contract (hereinafter: the contract) valid from 15 September 2007
until 15 September 2010.
2.
The contract stipulated, most notably, that the player would receive a monthly
salary of USD 1,200, as well as a monthly payment of 2,000 (USD 140) as pocket
money.
3.
The contract also stipulated that at the end of the contract, the club would
purchase a plane ticket for the player to return to G.
4.
On 27 May 2008, the player filed a complaint against the club in front of FIFA,
claiming that he had returned to G in October 2007 at the request of the club,
who had told him as well as other foreign players that he could spend holidays
in G after the 2007 league season, and had promised to purchase a flight ticket
for him in January 2008 so that he could return to the S. According to the
player, although he had made numerous efforts to contact the club to ask it to
send the return flight ticket, the club did not respond. The player also stated
that he had discovered that his position as a foreign player had been assigned
to another player. Furthermore, the player also claimed that the club had only
paid him his salary for the months of September and October 2007.
Consequently, the player asked to be released from his contract with the club.
5.
On 19 June 2008, the club confirmed that it had signed a three-year
employment contract with the player. However, in November 2007, the two
parties had mutually agreed to terminate this contract because the player was
homesick. Consequently, the club had purchased a plane ticket for him, as
stipulated in the contract, and had also paid the player his salary up to
December 2007.
6.
On 4 July 2008, the player stated that the club had a register that players were
required to sign before receiving their salary. Therefore, the club should be
able to provide evidence that he had received his salary until December 2007.
7.
In response, the club submitted a statement from one of its employees, stating
that she witnessed the remittance of the salaries of November and December
2007 by the President to the player. The club also stressed that it would be
rather illogical to allow a player to take holidays just two months after joining
the team, especially as the contract explicitly stipulated that the club would
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only purchase a plane ticket to enable the player to return to G at the end of
his contract.
8.
On 3 February 2009, the player notified FIFA that he was now claiming his
salary for the period between November 2007 and February 2009, as well as his
pocket money for the same period. This amounts to a total of USD 18,000 (15 x
1,200) as salary, and 30,000 (15 x 2,000; USD 2,100) as pocket money.
9.
After having been informed of the player’s amended claim, the club stated
that it maintains its position.
10.
On 17 March 2009, FIFA advised both parties to consider their labour
relationship as terminated, without prejudice to the decision to be passed by
the Dispute Resolution Chamber on the question whether the contract at the
basis of the dispute was breached with or without just cause, and which party
shall be deemed responsible for such breach.
11.
On 26 May 2009, the player informed FIFA that he has been unable to find
employment since returning from the S.
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 27 May 2008. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2005, hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural
Rules, edition 2008).
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 and par.
2 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 employmentrelated dispute with an international dimension between a player and a 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. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2008), and considering that the present claim was lodged on
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27 May 2008, the current version of the regulations (edition 2008; hereinafter:
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. In doing
so, the members of the Chamber started by acknowledging that the
Respondent and the Claimant signed on 15 September 2007 an employment
contract valid as from 15 September 2007 until 15 September 2010.
5.
Furthermore, the Chamber noted that this contract stipulated, among other
things, that the Claimant was entitled to receive a monthly salary of USD 1,200
and a monthly payment of 2,000 (USD 140) as pocket money.
6.
Additionally, the Chamber acknowledged that two months after the signature
of the contract, the Respondent purchased a plane ticket for the player to go
back to G. In this regard, the Chamber noted that the parties do not agree on
the purpose of the player’s return to G. The Chamber took note that the player
considers that his return to G was only for holidays after the 2007 league
season and that the club would buy him an airplane ticket in January 2008 in
order to enable him to go back to S and continue his football career with the
club. On the contrary, the club considers that the return of the player to G was
definitive, as the parties had allegedly agreed to terminate the relevant
employment contract.
7.
From the documents at its disposal, the Chamber noticed that the president of
L FC seems to have been disappointed about the qualities of the services of the
player in question and that the player’s salary was considered relatively high
by said president.
8.
Considering the club’s statements, the Dispute Resolution Chamber recalled
that the club insists that the pertinent employment contract was terminated by
mutual consent and that the player had duly been paid his salary for
November and December 2007. Such position, however, is denied by the
player. In this context, the members of the Chamber referred to art. 12 par. 3
of the Procedural Rules, and pointed out that the club did not submit any
documentary evidence in support of its allegation that the parties would have
agreed on the termination of the contract.
9.
With respect to the salaries payable to the player on the basis of the
employment contract, the Dispute Resolution Chamber acknowledged that the
Respondent, in its submission, alleged having paid the player’s salaries up to
December 2007, which allegation, as stated above, is contested by the player.
In this regard, the members of the Chamber noted that the club submitted a
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statement of one its employees stating that she witnessed the remittance of
the salaries of November 2007 and December 2007 by the president to the
player. However, the members of the Chamber considered that taking into
account the fact that the said declaration was signed by a person firmly
connected to the Respondent and thus not independent from it in connection
with the present matter, this document did not constitute sufficient
documentary evidence to corroborate the allegations of the club, i.e. for
having paid the salaries of November 2007 and December 2007.
10.
In view of the above, the Dispute Resolution Chamber concluded that by
sending the player back to G and by ceasing the payment of his salaries as of
November 2007, the club clearly was no longer interested in the player’s
services. This conclusion seems to be confirmed by the considerations in point
II. 7 above.
11.
In light of all the above, the Dispute Resolution Chamber decided that the club
acted in breach of contract without just cause and therefore has to pay
compensation for breach of contract to the player in conformity with art. 17
par. 1 of the Regulations.
12.
In this regard, the members of the Chamber recalled that the employment was
to run until 15 September 2010. The player, for his part, claims his salaries for
the period lasting from November 2007 until February 2009, amounting to
USD 18,000, and his pocket money for the same period, amounting to 30,000
(USD 2,100).
13.
In light of all the above-mentioned considerations, including the fact that the
Claimant had not signed any new employment contract with another club, the
members of the Chamber considered that the total amount claimed by the
player is appropriate as compensation for breach of contract in the case at
hand.
14.
As a consequence, the Dispute Resolution Chamber concluded its deliberations
on the present dispute by deciding that the Respondent has to pay the total
amount of USD 20,100 as compensation for breach of contract to the Claimant.
***
III.
Decision of the Dispute Resolution Chamber
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1.
The claim of the Claimant, the player, O, is accepted.
2.
The Respondent, the club, L FC, has to pay to the Claimant the amount of USD
20,100 within 30 days as from the date of notification of this decision.
3.
In the event that the amount of USD 20,100 is not paid by the Respondent
within the above-mentioned time limit, 5% interest p.a. will fall due as of
expiry of the aforementioned time limit and the present matter shall be
submitted upon request to the FIFA Disciplinary Committee for its
consideration and decision.
4.
The Claimant is directed to inform the Respondent 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:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
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