Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 22 July 2004,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Jean-Marie Philips (Belgium), member
Michele Colucci (Italy), member
Gerardo Movilla (Spain), member
on the claim presented by
B
as Claimant
against
A
as Respondent
regarding a dispute on contractual relationship established between the parties
Facts of the case
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The player B. contacted FIFA on 16 March 2004, regarding his dispute with the club
A.
The parties had signed an employment contract no. 35 on 17 July 2003. Additionally,
the parties signed two addenda to the employment contract no. 35, one on 17 July
2003 and one on 1 August 2003. The player presented these addenda to FIFA.
The addendum of 17 July 2003 refers to the employment contract no. 35 and states:
“In accordance with paragraph 4.2 and 4.5 of the Contract no. 35 of _________, the
football player is paid and additional salary in the amount of 10.500, USD each
month. The Football player is paid 300,00 USD for the apartment lease. The following
amounts represent net amounts, without the included tax.”
The addendum of 1 August 2003 maintains the following:
“The parties agree to alterate paragraph 4.1 of the Contract, setting it forth in the
following editing: …4.1. For the fulfilment of his obligations foreseen by this
Contract, the Football player is paid a salary in the amount of 113.362,25 UAH
(USD 21,305). All other conditions of the Contract remain unaltered. From the
moment of signing of this Agreement, all other arrangements between the parties
regarding the Football player’s salary, including the ones in writing, are to be
considered invalid”.
The player maintains that his monthly remuneration amounted to USD 21,305 per
month (addendum of 1 August 2003) plus USD 10,500 per month (addendum of
17 July 2003), given that the addendum of 1 August 2003 only refers to paragraph
4.1 of the employment contract no. 35. Furthermore, the player maintains being
entitled to the apartment lease of USD 300 per month.
Both the club and the player admit that the latter received UAH 247,297
(USD 46,477) for the period from 17 July 2003 until 31 December 2003.
The player maintains that, instead, he should have received a total of USD 166, 721
for this duration of time.
The player B. has explained that during his employment with the club A., he was
being represented by Mr. Alexei Tilman, a non-licensed agent, who spoke both
languages.
Mr. Tilman advised him to sign the employment contract and the addenda and, kept
a copy of the employment contract established between the parties.
From the beginning the employment relationship, the club A. failed to pay the
salaries as stipulated in the contracts. The payments were irregular and delayed.
During the winter break, the club manager called the player and informed him that
he would be placed on the transfer list. Furthermore, he informed the player that the
club would leave for a training camp to Turkey on 5 January 2004 and that he would
try to find a new club for the player during that time.
The player claims to have joined the club for the training camp and has provided FIFA
with a copy of his passport with the entry stamps into Turkey.
Player B. / club A.
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After returning from Turkey, the player claims that the pressure of the club A.
increased, asking the player to sign a termination agreement. By this time, he was
already being owed a substantial amount of money.
− The player claims that the manager of the club A. continued pressuring him to return
home and to try to find a new club.
− In light of these developments, the club signed a declaration on behalf of the
player’s agent dated 8 January 2004, confirming that the player could participate in
friendly and train with other clubs, so as to find a new employment.
− According to the player, he returned home on 30 January 2004, in the expectation
that his agent would commence legal proceedings against the club on his behalf.
− As this did not happen, he contacted a lawyer, who turned to FIFA on 16 March 2004.
− In the meantime, he fell ill and was diagnosed with mononucleosis. The player has
presented FIFA with a doctor’s notice confirming this fact.
− In consequence, when the club A. sent a correspondence to him on 16 February
2004, asking him to return to the club, he could not comply, given the instructions of
his doctor. Instead, he informed the club of his condition and asked them to send a
proposal of termination of contract to his lawyer.
− The player is claiming the outstanding salaries until 31 December 2003 amounting
to USD 166,721 as well as the salaries for the duration from 1 January 2004 until
16 July 2004 amounting to USD 207,248. The total claim of the player is
USD 373,969.
− The club A. confirms having signed the employment contract no. 35 with the player
B. on 17 July 2003, valid for one year, and states that this contract was deposited at
the Professional Football League of the club A.
− Furthermore, the club maintains that the player acted on his own and that he was not
being represented by an agent or legal representative. The club insists that this is
visible from the fact that no mention is made of the agent in any of the contracts.
Furthermore, the club has presented a letter apparently signed by the agent Tilman,
in which he confirms that he is not the agent appointed by the player B.. Therefore,
the letter dated 8 January 2004 and addressed to the agent Tilman, announcing that
the player may attend training sessions of other clubs was sent erroneously and is
nil and void.
− The club A. states further that the player did not return from the Christmas holiday
and did not join the club at the training camp in Turkey.
− Since his departure from the club A. on 15 November 2003, the player had failed to
attend all matches and training sessions of the club.
− By doing so, the player had committed a gross infringement of the terms contained
in the employment contract.
− Consequently, the club A. warned the player on 16 February 2004 that he must
return to the club by no later than 23 February 2004, in order to settle the dispute.
Instead, the player answered that he could not travel because of his illness. The
player did not provide the club with a medical certificate explaining his condition.
− In this context, the player committed another infringement of his employment
contract, which stipulates that all medical conditions must be reported and
examined by the club doctor.
Player B. / club A.
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The club therefore requests for the employment contract signed by the parties to be
declared terminated as from 7 January 2004, due to the fault of the player, and to
impose disciplinary sanctions on the latter. Furthermore, the player should be
compelled to pay an amount of USD 5,000 to the club in accordance with sec. 6.4 of
the contract.
Considerations of the Dispute Resolution Chamber
The Dispute Resolution Chamber commenced its deliberations by examining which of the
agreements found by the club A. and the player B. regarding the player’s remuneration is to
be considered applicable. In this regard, the Chamber considered it unusual for a contract to
be amended twice within a few weeks of its signature. Notwithstanding this fact, the
Chamber noted that neither of the parties denies having signed these agreements.
Whereas the player B. maintains that the amount stipulated in the addendum of 1 August
2003 of USD 21,305 should be added to the amount of USD 10,500 per month as foreseen in
the addendum of 17 July 2003, the club A. rejects this calculation, insisting that the
conditions in the addendum of 1 August 2003 clearly state that they replace all other
arrangements regarding the player’s salary.
The Chamber studied the addendum of 1 August 2003 and concluded that point 3 of this
addendum clearly states that all other arrangements between the parties regarding the
player’s salary, including the ones in writing, are to be considered invalid. Consequently, the
Chamber rejected the request of the player regarding the calculation of the salary and
decided that the salary arrangements found by the player B. with the club A. prior to the
signing of the addendum of 1 August 2003 were not to be considered applicable. With
regard to the amount of USD 300 payable to the player for the apartment lease, the Chamber
took note that this amount had not been clearly identified as a salary payment, which would
also be considered as replaced by the addendum of 1 August 2003. Therefore, the Chamber
accepted that the player’s monthly remuneration was of USD 21,305 along with the payment
of the apartment lease of USD 300. These amounts are gross, i.e. they are subject to the
deduction of taxes and other mandatory subtractions set-out by the laws of the of country of
club A., since the addendum of 1 August 2003 did not indicate the contrary.
Player B. / club A.
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In continuation, the Chamber turned to the question regarding the alleged breach of the
employment contract as well as regarding the point in time of the termination of the
contractual relationship between the parties. The Chamber did not wish to enter into the
question regarding the involvement of the alleged agent, Mr. Alexei Tilman, given that the
parties’ accounts on the agent are conflicting and because he is not a licensed agent, thus
preventing FIFA from obtaining his explanations directly. Finally, Mr. Tilman does not figure
as the representative of the player B. on any of the contracts established by the parties.
The Chamber thus turned to the question regarding the player’s participation at the training
camp in Turkey that is being disputed by the club A. The Chamber felt satisfied with the
explanations and the proof provided by the player B. that demonstrating he had indeed
taken part in this camp. In particular, the Chamber relied on the entry and exit stamps of the
Turkish authorities that figure in the player’s passport and that coincide with the dates of the
training camp.
Next, the Chamber assessed the situation regarding the player’s absence from the club given
his ill health. The parties acknowledge that the club A. sent the player B. a written order to
return to the club on 16 February 2004. From the documents contained in the file, it is
apparent that the player was already feeling unwell on 11 February 2004, yet he only
informed the club A. of this fact on 19 February 2004, upon receiving the warning of the club
A. On the basis of these facts, the Chamber firstly established that the warning letter sent by
the club to the player B. on 16 February 2004 demonstrates that the club A. still considered
the player as contractually bound to its club. The Chamber outlined further that it was not
persuaded that the player had been authorized to absent himself from the club for the
amount of time spent at his home. In particular, the Chamber underlined that a player who
has absented himself for such a prolonged period of time requires a written authorization
from the club or other clear evidence to justify his leave of absence. Furthermore, the
Chamber maintained that, in accordance with clause 3.1 of employment contract, the player
had the obligation to contact the medical staff of the club, in order to discuss his health
conditions. The fact that the player was unable to travel does not signify that he was unable
to discuss this issue with the responsible staff of the club via telephone. Finally, the
Chamber noted that the player had sought to terminate his contract with the club A. on 19
February 2004, yet that he received no response to his proposal.
Bearing the aforementioned in mind, the Chamber established that both parties to this
contractual relationship had ceased to act in accordance with the employment contract,
which they had entered. On the one hand, the club A. discontinued its salary payments as
provided for in the employment contract because of the absence of the player.
Notwithstanding this fact, it only ever asked of the player to return to the club on 16 February
2004. On the other hand, the player B. left the club without returning and without
authorisation and did not communicate his health problems to the club A.
Player B. / club A.
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In consequence, the Chamber decided that the employment of the player B. had come to an
end in February 2004, owing to the conduct of both parties. As a result, it established that
the player is entitled to receive his salaries until the end of February and that neither party is
entitled to compensation from the other party for the early termination of this relationship.
The Dispute Resolution Chamber determined that the club A. must pay to the player B. the
salaries for December 2003 as well as January and February 2004 on the basis of
USD 21,305 plus USD 300 for the apartment lease, totaling USD 64,815 gross. The club A. is
directed to provide the player B. with a detailed calculation of the deductions that have been
made and are to be made to the gross salaries, in order to enable the player to assess
whether he is being paid in full. A copy of these explanations shall be sent, at the same time,
to FIFA.
Player B. / club A.
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Decision of the Dispute Resolution Chamber
1.
The claim of the player B. is partially accepted.
2.
The respondent A. must pay the player B. the net salary for December 2003 as well as
January and February 2004, amounting to USD 64,815, along with any other
outstanding salary payments corresponding the previous months of employment.
3.
The club A. is directed to provide the player B. and FIFA with detailed explanations on
the deductions that were made and are to be made on the salaries of the player B. as
per the requirements of its law. This information shall be remitted to the player B.
and to FIFA within 15 days as from the date of the notification of this decision.
4.
The club A. shall pay the amount owed to the player as calculated within 30 days as
from the dated of the notification of this decision.
5.
According to art. 60 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 10 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 l’Elysée 28
1006 Lausanne
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:
Urs Linsi
General Secretary
Enclosed: CAS directives
Player B. / club A.
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