Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 14 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chai...an
Theo van Seggelen (Netherlands), member
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
Joaquim Evangelista (Portugal), member
Philippe Diallo (France), member
Ivan Gazidis (USA), member
Percival Majavu (South Africa), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
on the claim presented by the player
X, XX,
as Claimant
against the club
Y, YY,
as Respondent
regarding a contractual dispute arisen between the parties.
./…
I.
Facts of the case
1.
On 1 November 2005, the player, X, XX (hereinafter: the player), and the club, Y, YY
(hereinafter: the club), signed an employment contract valid until 31 October 2006.
According to section 2a of this contract, which refers to appendix A with respect to
the player’s salary, in combination with appendix A, the player was entitled to a
monthly salary of USD 5,000, payable at the end of each month. In addition,
appendix B, inter alia, stated that the player was entitled to a maximum monthly
allowance of … 1,900 for suitable furnished accommodation as well as an allowance
of … 600 for utilities and “USD 1,000 = … 3,800” for subsistence. Appendix A
stipulated the following in terms of the player’s salary:
“ a) First Year
On Season:
2005-2006
...
_______________________________________
USD 5,000
per month
____________________________
** Off Season:
...
_______________________________________
per month
____________________________
b) Second Year
On Season:
...
________________________________________
* Off Season:
...
________________________________________
per month
____________________________
per month
____________________________
[…..]
*
The player take home income for a month (including bonus and etc.) shall not
be more than … 20,000.00 during the season and not more than …10,000.00
during off season.
** Off season shall mean ‘from 30 days after the last match playable by team in the
season till 30 days before the first match in the next season, if applicable.
The salary for off season shall be 50% of the on season salary or … 10,000.00
whichever is higher but this is at the discretion of the employer.”
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Player X, XX / Club Y, YY
2.
The player contacted FIFA on 16 September 2006 to claim that he had agreed with
the club that he would receive salaries totalling … 25,300 per month, which
according to the player corresponds to USD 6,658 (including allowances for
accommodation and utilities), for the period from 1 November 2005 to 31 October
2006. He stated that this had been agreed in written form on 7 October 2005, which
the club, however, has since denied. The player, in addition to the employment
contract signed on 1 November 2005, presented a written offer for extension of the
employment contract dated 5 October 2005 signed by both parties stipulating a
monthly salary of USD 6,000 x … 3.8, furnished accommodation and an allowance
for utilities amounting to … 600 per month. No reference to 50% payment during
off season is made, however, in this offer for extension.
3.
The player explained that the club’s season had ended on 29 July 2006 when the
club had been eliminated from the 2006 Cup of YY, i.e. when he had still been
entitled to three monthly salaries. In addition, he noted that in August 2006 the
club had paid him his salary and allowances for accommodation and provisions
amounting to … 25,300. He also stated that he had only received half of his salary
for September and October 2006, amounting to twice … 12,650 and that therefore,
he was still entitled to receive … 25,300 (2 x … 12,650) from the club. Consequently,
the player claims payment of the amount of … 12,650 corresponding to the alleged
missing 50% of his salary for September and October 2006.
4.
On behalf of its affiliated club, the Football Association of YY noted in reply to the
player’s complaint that appendix A of the employment contract clearly stipulated
that the player was entitled to a monthly salary of USD 5,000 and that during the
“off season period” (i.e. from 30 days after the club’s last match up until 30 days
before the club’s first match of the new season), the player’s salary would be
reduced by 50% of the salary he was entitled to receive during the season, or to …
10,000, depending on which amount was the greater, as decided by the club. As the
player himself had stated, the club had been eliminated from the league in July
2006. Consequently, the club had paid the player his full salary for August 2006 and,
as agreed in the employment contract, only half of his salary for the months of
September and October 2006. The club therefore stated that it did not owe the
player any more money.
5.
The Football Association of YY furthermore confirmed that the months of
September, October and November 2006 are within the off season period.
II.
Considerations of the Dispute Resolution Chamber
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Player X, XX / Club Y, YY
1.
First of all, the Chamber analysed whether it was competent to deal with the matter
at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(DRC). The present matter was submitted to FIFA on 16 September 2006. As a
consequence, the Chamber concluded that the revised Rules Governing Procedures
(edition 2005) on matters pending before the decision-making bodies of FIFA are
applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the current version of the Regulations
for the Status and Transfer of Players (edition 2005). In accordance with art. 24 par.
1 in connection with art. 22 (b) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a
club and a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation involving a player from XX and a club from YY regarding a
contractual dispute in connection with an employment contract.
4.
Subsequently, the members of the Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand, to
art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players (edition
2005) and, on the other hand, to the fact that the relevant contract at the basis of
the present dispute was signed on 1 November 2005 and that the claim was lodged
at FIFA on 16 September 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005) are applicable to the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging that, on the one hand, the player maintains that
he had only received half of his salaries for the months of September and October
2006 and that, therefore, the club still owes him salary payments amounting to a
total of … 25,300 (2 x … 12,650), whereas the club asks for the player’s complaint be
dismissed, alleging that it had paid the salaries agreed upon in the employment
contract signed in November 2005 with the player, in particular, in accordance with
the provision referring to the 50% payable during the “off season”.
6.
In view of the positions exposed by the parties in dispute, the Chamber deemed
that, first of all, it has to analyse the employment contract signed by the parties
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Player X, XX / Club Y, YY
involved, in particular, whether, as maintained by the club, the player’s financial
entitlements during the “off season” are reduced to 50% of his entitlements during
the season.
7.
In this respect, the Chamber acknowledged that the parties in dispute, after having
agreed upon an extension of their contractual relationship in October 2005, signed
an employment contract (with validity until 31 October 2006) on 1 November 2005
which, in principle, foresees in its point 2 lit. a) in combination with its pertinent
annex A a monthly salary of USD 5,000 (incl. bonuses and accommodation and
substistence allowances), payable at the end each month during the season.
Consequently, the Chamber concurred that, in general, the player is entitled to a
monthly salary amounting to USD 5,000 (incl. bonuses and accommodation and
subsistence allowances).
8.
Furthermore, the Chamber noted that the player has not contested in any way
annex A of the employment contract.
9.
However, and after having carefully studied the employment contract mentioned in
the preceding paragraph, the members acknowledged that the relevant annex A
clearly stipulates that the player’s salary during “off season” shall amount to 50% of
the “on season salary” only, or to … 10,000, whichever is the greater, circumstance
to be decided by the club.
10.
In this context, the members of the Chamber deemed it important to underline that
the relevant provision regarding the player’s financial entitlements during the “off
season” appears to have a potestative nature, insofar as it shall be to the discretion
of the club only to evaluate whether 50% of the player’s salary during the season or
the minimum wage of … 10,000 shall consitute the player’s “off season salary”.
11.
In this context, the Chamber highlighted that, in general, potestative clauses, i.e.
clauses that grant a right in favour of one contractual party only, cannot be
considered since they generally limit the rights of the other contractual party in an
excessive manner and lead to an unjustified disadvantage of the latter towards the
other.
12.
Notwithstanding the above, the members of the Chamber unanimously agreed that
the fact that the parties involved mutually agreed to reduce the player’s financial
entitlements for the period of time in which no matches are played by the club
cannot be totally ignored. Furthermore, the Chamber took into account that the
club had paid the higher amount, i.e. 50% of the “on season” salary, to the player
and not used the said clause to the full disadvantage of the player. Therefore, the
members decided that the relevant salary payments shall indeed be reducible during
5
Player X, XX / Club Y, YY
the “off season”, highlighting, however, that only the smallest possible diminuation
can apply since, as mentioned above, the discretion granted to the club only with
regard to the amount of decrease would lead to an unjustified disadvantage of the
player towards the club.
13.
As a consequence, the members of the Chamber came to the conclusion that the
parties in dispute agreed on the occasion of the signing of the employment contract
dated 1 November 2005 upon a wage decrease for the “off season”.
14.
Furthermore, on account of the above, the members of the Chamber concurred that
the player is entitled to a monthly salary of USD 5,000 (incl. bonus and
accommodation and subsistence allowances) during the season and of USD 2,500
(incl. bonus and accommodation and subsistence allowances) during the “off
season”.
15.
In continuation, the Chamber went on to analyse as to whether the club has paid
the player his salaries in accordance with the aformentioned elements.
16.
Thereto, the Chamber noted that the player maintained in his complaint that the
relevant season ended for the club at the end of July 2006. Moreover, it noted that
the said information was confirmed by the Football Assciation of YY which informed
FIFA that the club was eliminated from the league in July 2006.
17.
Under these circumstances, and by taking into account that the Annex A of the
relevant employment contract clearly mentions that the “off season starts 30 days
after the last match played by the club”, the members of the Chamber concluded
that the player’s salary entitlements amount to 50% of his “on season salary” as
from September 2006 up until 30 days prior to the first match of the following
season played by the club, which period of time also includes the month of October
2006. In this respect, the Chamber also recalled that the Football Association of YY
has confirmed that the “off season” fell within the monhts of September, October
and November 2006.
18.
On account of all of the above, the Chamber decided that the player was entitled to
half of his salaries during the season for the last two months (i.e. September and
October 2006) of the contractual relationship entered into with the club.
19.
As a next step, the Chamber acknowledged that the player himself asserted having
received for the months of September and October 2006 half of his salary
entitlements during the season.
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Player X, XX / Club Y, YY
20.
Consequently, the Chamber concluded that the player was paid his financial
entitlements for September and October 2006 in accordance with the provisions
foreseen in the emplyoment contract that he signed with the club in November
2005.
21.
Therefore, the Dispute Resolution Chamber decided that the player’s claim is
rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, X, is rejected.
2.
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:
Avenue de Beaumont 2
CH-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
General Secretary
Encl. CAS directives
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Player X, XX / Club Y, YY