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 15 February 2004, A and B signed an employment contract valid for a
period of 4 ½ months, “starting from the date of passing the medical test,
receiving the international certificate and signing all official documents in
the X Association”.
2.
According to the relevant contract, A was entitled to receive the total
amount of USD 120,000, to be paid as follows:
a.
USD 40,000 as signing-on fee, to be paid “after 15 days of passing the
medical test, receiving the international certificate and signing all
official documents in the X Association”;
b.
Four monthly salaries of USD 20,000 each, to be paid during the period
of the contract.
3.
Amongst other financial privileges, A was also entitled to receive two
economy flight tickets (Y/Z and return).
4.
A claims that he underwent the relevant medical tests, that his international
transfer certificate was received and that he signed all the official documents
at the X Association.
5.
Moreover, A asserts that he participated in two official matches for B.
6.
On 27 February 2004, and based on Art. 3 of their employment contract, B
decided to unilaterally terminate its employment relationship with A, due to
his alleged lack of performance.
7.
Art. 3 of the relevant employment contract stipulates that “A has to follow
the instructions of training, camping and to keep his known performance
upon which B signed the contract with him, otherwise this will be consider a
termination of the contract by A and then FIFA regulations should be
applied”.
8.
As a consequence, A left B in the end of February 2004.
9.
In his claim, A denies the claimed lack of performance, but above all,
underlines that such reason cannot be considered as just cause to unilaterally
terminate an employment contract.
2
10.
Moreover, A asserts that, during the period that he remained at B’s disposal,
he was not paid any amount.
11.
In light of all the above, A is presently requesting the Chamber to consider
that B has terminated their employment contract without just cause and to
consequently condemn B to cancel to him all the sums that are stipulated in
their employment contract, in the total amount of USD 120,000, as well as
the amount of EUR 761 (approximately USD 926) which he paid for a return
flight ticket (Y/Z) and which he was contractually entitled to receive.
12.
In conclusion, A is presently claiming the payment of USD 120,926 from B.
13.
On the other hand, B, via the X Association, informed the FIFA
Administration that it has unilaterally terminated its employment contract
with A, due to his poor performance, in accordance with Art. 3 of such
contract. In fact, B asserts that “the contract has been terminated by A
depending on Article 3 of the signed contract as he shown very poor
technical level and unable to perform his duties…”.
14.
Furthermore, B defends that it has offered to pay to A, the amounts
corresponding to the time that he remained with it, i.e. 10 days. However, A
has refused to collect such amount and left the country.
15.
Finally, according to B, A has orally promised not to claim any further
amounts with respect to the present matter.
16.
In response, A asserts that in order to leave the country, he had to sign a
letter in which he stated “I have received my passport for my wish to leave
because my contract is now terminated”. However, he underlines that it is
absolutely false that he has ever orally promised not to claim any further
amounts from B, in the present matter.
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 15 February 2004.
3
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.
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 15 February 2004, A and B
signed an employment contract valid for a period of 4 ½ months, “starting
from the date of passing the medical test, receiving the international
certificate and signing all official documents in the X Association”.
7.
The members of the Chamber also acknowledged that, by letter dated 27
February 2004, B unilaterally terminated its employment contract with A, due
to the latter’s alleged lack of performance and based on Art. 3 of the
aforementioned contract which stipulates that “The player has to follow the
instructions of training, camping and to keep his known performance upon
which B signed the contract with him, otherwise this will be consider a
termination of the contract by A and then FIFA regulations should be
applied”.
8.
On the other hand, the Chamber noted that A considers that the
aforementioned contractual termination was unilaterally operated by B
without just cause and is presently claiming the payment of all the
outstanding amounts under his employment contract with B, until its end, in
the total amount of USD 120,000.
9.
Moreover, the Chamber noted that A is also claiming the reimbursement of
the expenses in which he incurred concerning flight tickets, in particular, the
amount of EUR 761 (approximately USD 926) that he paid for a return flight
ticket (Y/Z).
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 his
4
employment contract with B, which clearly stipulates that he was
contractually entitled to receive the aforementioned claimed amounts. In this
context, the Chamber took into account that A also provided the FIFA
Administration with a copy of the claimed flight tickets, confirming the
amount claimed in this regard.
11.
In view of all the above, the Chamber underlined that, despite the content of
the aforementioned contractual clause, a player’s lack of performance
cannot and does not constitute just cause for a club to unilaterally terminate
an employment contract, like it happened in the case at hand. In fact, the
Chamber deemed that in view of its potestative nature, the aforementioned
contractual clause shall not have any effect.
12.
After having vehemently rejected the validity of the aforementioned
contractual clause, the members of the Chamber reached the conclusion that
B has terminated its employment contract with A without just cause.
13.
As a consequence of B’s unlawful breach of contract, the Chamber considered
the latter responsible for the non-fulfilment of its relevant employment
contract with A and therefore, liable to pay to A all the amounts that are
outstanding under their employment contract until its end, in the total
amount of USD 120,000, as well as the amount of EUR 761 (approximately
926), which A paid for the relevant flight tickets.
14.
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 120,926.
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 120,926 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.
5
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
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Urs Linsi
General Secretary
Enclosed: CAS directives
6