Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 July 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Sofoklis Pilavios (Greece), member
on the claim presented by the player,
X,
as “Claimant”
against the club,
K,
as “Respondent”
regarding an employment related contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 9 May 2006, the player, Z, and the A club, K Club, signed a “Premier
league and/or state league one standard player contract – business Visa (457)”
(hereinafter: Standard contract), which refers to items 1.1 and 1.2 of its
“Schedule One” (hereinafter: Schedule 1) with respect to the player’s salary
and match payments and to item 1.3 of Schedule 1 with respect to the
duration of the contract.
2.
According to item 1.3 of Schedule 1, the contract was due to expire on 31
October 2008.
3.
The annual salary indicated under item 1.1 of Schedule 1 amounts to gross
Dollar 43,600 and weekly net 660.53.
4.
Item 1.2 of Schedule 1 on match payments refers to “Annexure 1”. This
Annexure consists of a declaration addressed to the club secretary (sender
unidentified) setting out a proposal on match payments to be inserted in
Schedule 1 (signing-on fee of 5,100, 50% of which payable to his agent, and
payments of 100 per goal scored specified).
5.
In accordance with art. 4 lit. c) of the Standard contract the club was obliged
to provide the player with all accommodation, meals, air and bus travel to and
from matches in which he is required to participate.
6.
Art. 7 of the Standard contract deals with rights and obligations in case of
injury. According to art. 7.1 lit. d) the club is obliged to pay any medical
expenses not recoverable by the player under “Medicare” or his private
hospital and medical benefits scheme.
7.
In accordance with art. 9 of the Standard contract the player agrees to submit
exclusively to the jurisdiction of the Grievance Procedure as promulgated by
the Football Federation of V (hereinafter:) and unless and until that Grievance
Procedure has been exhausted he will not attempt to turn to a court of law.
8.
Art. 13 of the Standard contract specifies the requirements to be met in the
event of a party giving notice.
9.
On 13 February 2007, the player lodged a claim against the club in front of
FIFA for breach of the employment contract by failing to pay his wages and
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10.
entitlements and for breach of the Visa conditions by failing to provide him
with his entitlements under the Visa.
The player maintains that, on 4 June 2006, he sustained an injury whilst
performing his playing duties, as a result of which he was unable to play for
the rest of the season (until October 2006).
11.
The player furthermore asserts that he received the last payment from the club
on 14 September 2006.
12.
On 1 October 2006, he was authorised by the club to return to C on holidays.
In this respect, the player submitted a letter dated 25 September 2006, without
signature and made out on the club’s letterhead, addressed to the , in which
the club undertakes to pay for a return ticket and the player is expected to
return to A by no later than 7 November 2006 in order to resume his
coaching/playing duties with the club.
13.
During his holidays the club notified the A Department of Immigration that he
was no longer employed by the club and the club unsuccessfully attempted to
cancel the player’s visa.
14.
On 2 November 2006, the club informed the inter alia that it fully terminated
the player’s employment contract. The player adds that the club never notified
him about any alleged breach of the contract.
15
On 5 November 2006, the player returned to A and the club refused to provide
him with his contractual entitlements, which made it impossible for him to
sustain himself and remain in A much longer.
16
Mr. Z maintains that he complied with his contractual obligations at all times
until the breach of contract committed by the club.
17.
On 23 November 2006, the player returned to C.
18.
In light of the above, Mr. Z asks that the club be ordered to pay to him the
following amounts on the basis of the Standard contract and its Schedule 1:
Item
Balance of gross salary payments cf. item 1.1 of Schedule 1
(from 15 September 2006 until 31 October 2008)
92,949
Signing-on fee cf. item 1.2 of above-mentioned “Annexure 1”
to Schedule 1
5,100
Goal scored by player on 23 August 2006
100
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98,149
19.
In addition, Mr. Z asks that the club be ordered to pay to him the following
amounts on the basis of an agreement with the club and the club’s mandatory
obligations under visa arrangements:
Item
Rental payments (from 15 September 2006 until 31 October
2008) at 450 per week for 110 weeks
Balance of the car rental payments at 300 per week for 110
weeks
Reimbursement of rental costs paid by the player from 6
November 2006 to 23 November 2006
Reimbursement of public transport expenses during 6 November
2006 to 23 November 2006
Reimbursement of costs of medical treatment on 8 and 10 July
2006
Reimbursement of flight from B to M on 7 May 2006
Reimbursement of ticket re-issuing fee for flight from B to M 2
November 2006
Reimbursement of flight from M to B on 23 November 2006
49,500
33,000
299
55.60
286.90
400
100
980
84,621.50
20.
In addition, Mr. Z asks that the club be ordered to pay to him 20,000 for
damages and compensation.
21.
Consequently, the total amount claimed by the player is 202,770.50.
22.
The club, for its part, has raised doubts as to whether FIFA has jurisdiction in
this matter pointing out that the player has not indicated any basis on which
the tribunal would fail to deal with the matter rigorously and impartially.
23.
K alleges that the player was also engaged as a coach and it submitted a copy
of the relevant coach contract dated 9 May 2006 in addition to the player
employment contract, Schedule 1 and Annexure 1 that were also presented by
the player.
24.
According to the club, Mr. Z was entitled to receive 30,000 for his coaching
activities out of the 43,600 annual salary.
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25.
The club maintains that Mr. Z failed to fulfil his coaching obligations (failure to
attend training sessions, coaching courses, medical appointments) and that it
put him in default several times before his contract was finally terminated by
the club on 4 August 2006.
26.
The club acknowledges that it continued to pay Mr. Z his dues until 14
September 2006.
27.
When Mr. Z asked to return to C for holiday purposes, the club understood
that it was obliged under the terms of his visa to meet the cost of the return
travel and it provided him with a ticket. Furthermore, the club give him a copy
of a signed letter dated 25 September 2006 to the FFV stating “as per our
verbal agreement with X, we are only providing this return airfare to satisfy
457 Visa Regulations and that X is fully aware of his contractual breaches”.
28.
With respect to this letter, the club points out that the document presented by
the player was only a draft document.
29.
K claims that it terminated the employment contract with just cause referring
to art. 14 of the Regulations for the Status and Transfer of Players (edition
2005) as well as pages 39 and 40 of the Commentary on these Regulations.
Referring to Mr. Z coaching contract, the club points out that the termination
followed several months of non-compliance by Mr. Z.
30.
For these reasons, the club rejects the claim put forward by Mr. Z, but admits
that it owes to Mr. Z the amount of 5,886.90 relating to the player’s claim for
payment of the signing-on fee of 5,100, goal bonus of 100 (both contained in
Annexure 1 of Schedule 1), medical treatment costs of 286.90, and his flight
from B to M of 7 May 2006 of 400. This amount has been remitted by the club
to the player during the proceedings.
31.
All other (financial) claims of the player are rejected by the club.
32.
Mr. Z acknowledges receipt of 5,886.90 without prejudice to his claims.
33.
He points out that his claim is in relation to his player activities and that the
coach employment agreement and player employment agreement are two
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separate documents, each of which is not conditional upon the performance of
the other agreement. Coaching disputes, according to the player, fall under
the jurisdiction of the Players’ Status Committee.
34.
He rejects the allegations made against him relating to the fulfilment of his
(coaching) obligations and provides a detailed reasoning in this regard. He
furthermore points out that he did not receive any notice of default from the
club, which notices were not sent to the correct address.
35.
He submits that the club had no just cause for the termination of his contract.
36.
He further points out that he has remained unemployed in spite of his efforts
to find alternative employment.
37.
No final comments were received from the club.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all and taking into consideration the position of K with respect to the
Chamber’s competence, the Chamber analysed whether it is competent to deal
with the matter at stake. In this respect, it took note that the present matter was
submitted to FIFA on 13 February 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 18 par.
2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and to art. 24 par. 1 in combination with art. 22 lit. b of the
Regulations on the Status and Transfer of Players (edition 2008), in accordance
with which the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a club and a player that have an international
dimension, unless an independent arbitration tribunal guaranteeing fair
proceedings and respecting the principle of equal representation of players
and clubs has been established at national level within the framework of the
Association and/or a collective bargaining agreement.
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3.
The Chamber recalled that the present matter is between an A and a C player
and took into account the argument of the Respondent according to which the
Dispute Resolution Chamber might have no competence in the present matter.
4.
In this respect, the members of the Chamber referred to the well-established
jurisprudence of the Dispute Resolution Chamber according to which, in
general, in employment-related disputes between a club and a player that
have an international dimension, i.e. between parties that do not belong to
the same country, both parties are entitled to refer the dispute to FIFA’s
deciding bodies, unless an independent arbitration tribunal respecting the
principle of equal representation of players and clubs with an independent
chairman has been established at national level.
5.
The Chamber acknowledged that the Respondent was unable to prove that an
independent arbitration tribunal in compliance with the requirements of the
FIFA Regulations has been established in this case.
6.
On account of the above considerations, the Chamber established that the
Respondent’s doubts as to the competence of FIFA to deal with the matter at
hand have to be rejected and that the present case can be considered as to the
substance.
7.
Subsequently, 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
13 February 2007, the previous version of the regulations (edition 2005;
hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
8.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. After
careful study of the documentation made available to the Chamber and the
position of the parties in the present matter, the members of the Chamber
duly noted that the player, Z, appears to have equally been employed by the
Respondent as a coach by means of a separate and specific coaching
employment contract in addition to the player employment contract. In this
regard, the Chamber deemed it fit to stress that Mr. Z lodged his claim in front
of FIFA in his capacity as a player on the basis of the player employment
contract signed between the parties on 9 May 2006.
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9.
At this stage, the members of the Chamber emphasised that any obligations of
Mr. Z arising from his coaching contract and alleged breach of such coaching
obligations cannot be taken into consideration in the present matter, which
finds its basis in the relevant player employment contract. In fact, a dispute
between a club and a coach with an international dimension would fall within
the competence of the FIFA Players’ Status Committee in accordance with art.
22 lit. c of the Regulations on the Status and Transfer of Players.
10.
According to the player, the club had acted in breach of the employment
contract by failing to pay his wages and entitlements and it had acted in
breach of the Visa conditions by failing to provide him with his entitlements
under the Visa.
11.
In reply to such claim, the Respondent merely maintains that Mr. Z had acted
in breach of his contractual coaching obligations and it presented a copy of
relevant default notices and a termination notice, all of which, as noted by the
members of the Chamber, refer to Mr. Z coaching obligations.
12.
The Chamber recalled that according to the player, on 4 June 2006, he
sustained an injury, documentation of which was presented by Mr. Z, whilst
performing his playing duties, which statement was not contested by the club.
In this context and for the sake of good order, the Chamber wished to
highlight that a player’s injury cannot be accepted as a valid reason to
unilaterally and prematurely terminate an employment contract.
13.
Furthermore, the members of the Chamber duly noted the contents of the
correspondence of the club with the F and the DI in respect of the contractual
situation of the player with the Respondent. It was in particular noted that
according to the player, on 2 November 2006, the club informed the inter alia
that it fully terminated the player’s employment contract. The Chamber took
into account that these statements of the player and the pertinent
documentation presented by the player in this regard have not been contested
by the club.
14.
In the light of the above-mentioned facts, the Chamber concurred that the
club had no just cause to unilaterally and prematurely terminate the
contractual relationship with the player on 2 November 2006. Consequently,
the members of the Chamber established that the club had acted in breach of
the player employment contract. Therefore, and taking into consideration art.
17 par.1 of the Regulations, the Chamber decided that the player is entitled to
receive from the club an amount of money as compensation for breach of
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15.
contract in addition to any outstanding payments on the basis of the relevant
employment contract.
The Chamber then turned to the player’s financial claim and noted that during
the proceedings he received from the club the amount of 5,886.90, which were
remitted by the Respondent in payment of the signing-on fee of 5,100, the
goal bonus of 100, medical treatment costs of 286.90, and his flight from B to
M of 7 May 2006 of 400.
16.
With respect to any outstanding payments, the Chamber took into account
that the relevant period of time runs from 15 September 2006 until 2
November 2006, the date on which the club unilaterally terminated the
employment contract.
17.
Consequently, taking into account the player’s claim and the documentation
remitted by the player to substantiate such claim as well as the payments
already remitted by the club to the player, the Chamber decided that the club
is liable to pay to the player the amount of 9,970 in payment of outstanding
salaries, accommodation, car, and ticket re-issuing fee. In this regard, the
Chamber deemed it important to highlight that it could not take into
consideration any alleged obligation of the club merely on the basis of the
player’s visa arrangement without any further documentary evidence.
18.
As regards the amount of compensation, the Chamber agreed that on the basis
of the player’s salary compensation in the amount of 40,030 is appropriate in
the specific matter at hand. Such amount includes compensation for the costs
incurred by the player until his date of effective return to B on 23 November
2006.
19.
In the light of all of the above, the Chamber decided that K is liable to pay to
Mr. Z the total amount of 50,000 in connection with the termination without
just cause of the employment contract by the club.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player, X, is partially accepted.
2.
The Respondent, K, has to pay the total amount of 50,000 to the Claimant
within 30 days as from the date of notification of the present decision.
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3.
If the aforementioned sum is not paid within the aforementioned time limit an
interest rate of 5% per year will apply as of expiry of the fixed time limit and
the present matter shall be submitted upon the parties’ request to FIFA’s
Disciplinary Committee for its consideration and decision.
4.
Any further request filed by the Claimant is rejected.
5.
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. 61 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
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Encl. CAS directives
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