Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 July 2005,
in the following composition:
Slim Aloulou (Tunisia), chairman
Jean-Marie Philips (Belgium), member
Philippe Diallo (France), member
Gerardo Movilla (Spain), member
Philippe Piat (France), member
on the claim presented by
A
as Claimant
against
B
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
On 1 September 2003, A and B signed an employment contract valid until 31
August 2004, according to which A was entitled to receive a monthly salary
of USD 13,000, among other financial privileges.
2.
On 8 January 2004, both parties signed an agreement to suspend the effects
of their employment contract.
3.
According to such agreement, both parties would do their best to find
another club which would be interested in signing an employment contract
with A for the remaining period of their contract. In such a case, B would be
released from any further contractual obligations towards A.
4.
However, in case the parties did not find a club until the end of May 2004, B
would be liable to compensate A in an amount corresponding to one month
of salary (the agreement failed to stipulate the date of such payment).
Furthermore, their employment contract would be considered as terminated.
5.
In view of the above, A is presently claiming the payment of USD 13,000 from
B.
6.
B recognises the relevant agreement signed between the parties, but defends
that A has failed to update it concerning his efforts to find another club.
Moreover, B asserts that it contacted a licensed players’ agent in order to find
a club for A.
II.
Considerations of the Dispute Resolution Chamber
1.
The FIFA Regulations for the Status and Transfer of Players (edition
September 2001) are the applicable Regulations to the present procedure,
since the case has been brought to FIFA before the coming into force of the
current version of the said Regulations on 1 July 2005. Furthermore, the
contractual dispute at hand has its basis on the employment contract signed
between the parties on 1 September 2003.
2.
In light of the above, the Dispute Resolution Chamber shall review disputes
coming under its jurisdiction pursuant to Art. 42 of the FIFA Regulations for
the Status and Transfer of Players (edition September 2001), at the request of
one of the parties to the dispute.
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3.
According to Art. 42, par. 1 lit. (b) (i) of the FIFA Regulations for the Status
and Transfer of Players (edition September 2001), the triggering elements of
the dispute (i.e. whether a contract was breached, with or without just cause,
or sporting just cause), will be decided by the Dispute Resolution Chamber.
4.
If an employment contract is breached by a party, the Dispute Resolution
Chamber is responsible to verify whether a party is accountable for
compensation and outstanding payments.
5.
Consequently, the Dispute Resolution Chamber is the competent body to
decide on the present litigation concerning the alleged non-respect of the
contract concluded between the Claimant and the Respondent.
6.
Subsequently, and entering into the substance of the present labour dispute,
the Chamber started by acknowledging that, on 1 September 2003, A and B
signed an employment contract valid until 31 August 2004.
7.
The members of the Chamber also acknowledged that, on 8 January 2004, A
and B signed an agreement to suspend the effects of their employment
contract, according to which, “both parties agreed on doing the best to find
a third party to take over the rest of the contract”, releasing B from any
further contractual obligations towards A.
8.
Moreover, the Chamber took note that, according to the relevant agreement,
“…in case there is no third party found till the end of May 2004, first party is
to pay a one month salary to the second party and the contract between
both parties is considered cancelled.”
9.
In this respect, the Chamber noted that, the parties were not able to find
another club willing to sign an employment contract with A before the end
of May 2004 and that, as a consequence, the latter is presently claiming the
payment of one month of salary in the amount of USD 13,000 from B.
10.
Furthermore, the Chamber took into consideration the fact that A, in support
of his allegations, has provided the FIFA Administration with a copy of the
relevant agreement reached with B and of their employment contract, which
clearly stipulates that he was contractually entitled to receive a monthly
salary of USD 13,000.
11.
In view of all the above, the Chamber underlined that, according to the
wording of the relevant agreement, the parties agreed to make an effort to
find a third club that would sign an employment contract with A, but none
of them was obliged to find such a club. In this regard, the Chamber
enhanced the fact that, according to the aforementioned agreement, the
parties only agreed to do their best in order to find such a club, which is to
be considered as an exchange of intent.
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12.
As a consequence, the members were of the opinion that B is responsible for
the non-fulfilment of the relevant agreement reached with A and therefore,
liable to pay to the latter one month of salary in the amount of USD 13,000.
13.
In conclusion, the members of the Chamber decided to accept A’s claim and
to condemn B to pay to him the total amount of USD 13,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of A is accepted in its entirety.
2.
The Respondent B has to pay the amount of USD 13,000 to the Claimant A.
3.
The amount due to A has to be paid by B within 30 days as from the date of
notification of the present decision.
4.
If the Respondent fails to comply with the above-mentioned deadline, an
interest rate of 5% per year will apply and the case will immediately be
presented to the FIFA Disciplinary Committee.
5.
The Claimant is directed to inform the Respondent immediately of the
account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
6.
According to art. 60 par. 1 of the FIFA Statutes, this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal
must be sent to the CAS directly within 10 days of receiving notification of
this decision and has to contain all elements in accordance with point 2 of the
directives issued by the CAS, copy of which we enclose hereto. Within
another 10 days following the expiry of the time limit for the filing of the
statement of appeal, the appellant shall file with the CAS a brief stating the
facts and legal arguments giving rise to the appeal (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
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e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Urs Linsi
General Secretary
Enclosed: CAS directives
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