Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 July 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on a matter between the Player
D from C,
represented by Mr B
as Claimant
against the Club
A from E,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 4 September 2007, the Claimant D (hereafter: the Claimant), and the club, E
(hereafter: the Respondent), signed an employment contract valid from 5
September 2007 until 16 October 2009. The signed appendix of said contract
stipulates the manner in which the Claimant will receive payment, as follows:
- 110,000 plus EUR 11,000 for the month of April for each year of the contract,
due on 1st of April.
- 110,000 plus EUR 1,667 for the months May, June, July, August, September
and October of each year of the contract, due on 1st of each month.
2.
Additionally, the contract stipulated some additional extras that would be
covered by the Respondent:
- Accommodation plus heating and electricity.
- Lunch five times a week.
- Three return airline tickets to their home country.
- Access to a car.
3.
On 27 February 2009, the Claimant contacted FIFA explaining that the
Respondent had failed to pay the due amounts stipulated for the year 2008 as
follows:
- Partial salary for June 2008 amounting to EUR 500
- Full salaries for July, September and October 2008 (110,000 plus EUR 1,667
each month)
- EUR 1,750 for airline tickets
4.
Therefore, the Claimant initially requests a total of 330,000 and EUR 7,451 for
2008 (later amended c.f. paragraph 15).
5.
Additionally, the Claimant claims that the Respondent sent him back to C in
December 2008 following the end of the 2008 season, and allegedly told the
Claimant that it was “not certain whether it shall continue to abide by the
stipulated contracts for the year 2009”.
6.
According to the Claimant, the Respondent apparently offered the Claimant (via
email) the amount of EUR 1,453 for the year 2008, plus offered to pay the
Claimant EUR 5,500 to accept a termination of the contract.
7.
The Claimant, therefore, also requests the amount 770,000 plus EUR 21,002 for
the year 2009. Additionally the Claimant requests “a permit to temporarily
register and play for another club”. The Claimant has since been informed on
two occasions of the requirements for an ITC request, and has yet to
acknowledge or comply with them.
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8.
On 26 March 2009, the Respondent responded to the claim, alleging that it had
fulfilled its entire obligation towards the Claimant, however it admitted that
there had been delays in some of the payments due to the economic situation of
E (no payment receipts provided).
9.
In relation to the outstanding payments for the year 2008, the Respondent allege
that the Claimant had requested a change of accommodation, not provided for
in the contract, and that it was agreed that the additional cost would be
deducted from his wages. Additionally, the Claimant allegedly requested pay-tv
and internet services, which would again be deducted from the wages (no
documentary evidence to show an agreement or the additional costs was
provided). The Respondent therefore calculated that it had in fact, overpaid the
Claimant the amount of EUR 648. The Respondent also maintain that if the
Claimant is unhappy with the calculation, then he can submit the matter to the
Committee of Contracts and Transfers of the E Football Association.
10.
The Respondent also claim the Claimant was offered EUR 5,500 to terminate the
contract early, and be allowed to find a new club. When this offer was rejected
by the Claimant, the Respondent maintain that they had no other intention but
to fulfil the terms of the existing contract, and thus contacted the Claimant via
email, to request the necessary documents (originals) in order for him to be
granted new work and residence permits (it is claimed that the Claimant had
undergone this procedure numerous times before). The Claimant allegedly did
not send the required documents.
11.
Finally the Respondent offered to continue their working relationship with the
Claimant, under the condition that he send the required documents immediately.
Alternatively, the Respondent offer to grant the Claimant a transfer to another
club, under the condition that no further payments to the Claimant are made
unless ordered to by the aforementioned Committee of Contracts and Transfers
of the E Football Association.
12.
On 1 April 2009, the Claimant responded, and maintained that he was owed the
full amount claimed for the year 2008 minus EUR 1,453 which had been
apparently paid into the Claimant’s account, thus 330,000 and EUR 5,998 for
2008. Additionally the Claimant rejects the notion of having the matter dealt
with in the Committee of Contracts and Transfers of the E Football Association,
and claims that only FIFA is competent to rule on the matter.
13.
The Claimant additionally claims that he has now sent the requested documents
three times (no documentary evidence provided), and that the Respondent is
merely using this to avoid fulfilling the contractual obligations. Furthermore the
Claimant claims to have contacted the Respondent numerous times to request an
airline ticket to E so that he can take part with the team (no documentary
evidence provided).
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14.
Finally, the Claimant emphasises that he will return to take part with the team
once the contractual obligations have been fulfilled, and an airline ticket sent.
The Claimant, “as a sign of good will” waives any unpaid S and requests EUR
5,998.
15.
After being granted a deadline in which to achieve an amicable solution, the
Claimant on 18 April 2009, informed our services that unfortunately no
agreement had been reached between the parties. The Claimant claims to have
been “irritated and humiliated by the Respondent’s conduct” to the extent that
no agreement will ever be reached, and thus the Claimant claims to have “the
legitimate right to and requests” EUR 5,998 for the year 2008, plus EUR 21,002
and 770,000 for the year 2009. In an enclosed copy of a correspondence, dated 14
April 2009, sent to the Respondent, the Claimant states that he considers “all
correspondence terminated” with the Respondent.
16.
On 15 May 2009, the Respondent provided its final position on the matter, and
questioned the competence of FIFA to rule on the matter when a competent
body exists at national level. Accordingly the Respondent outline that the E
Football Association operate a system in line with those of FIFA. The FA’s
Negotiations and Transfer Committee allegedly guarantees fair proceedings and
respects the principle of equal representation of players and clubs. The
Respondent provide a translated copy of the E Football Association’s Regulations
on Transfer, Contracts and Status of Players and Clubs, which govern the
Negotiations and Transfer Committee.
17.
According to chapter VII of the E Football Association’s Regulation on Transfer,
Contracts and Status of Players and Clubs, the Negotiations and Transfer
Committee shall be made up of “three individuals, with three alternate
committee members…the Board of Directors of the Football Association of E
appoints the members of the committee.”
18.
The Committee’s role is to assume “a position in matters of dispute after a ruling
and after all parties have been given the opportunity to make claims, present
evidence, acquaint themselves with pertinent documentation and comment on
the charges. The utmost equality shall be maintained.”
19.
Notwithstanding this, the Respondent maintains its previous position, and claims
that the deductions for the additional accommodation costs and pay-tv and
internet services have not been contested by the Claimant.
20.
Furthermore the Respondent clarifies that the Claimant was asked to provide the
Respondent with a criminal record certificate as required by the rules of the
Directorate of Immigration. The Respondent states that “like the years before it
was specifically stated that the original document would be required as the
authorities do not approve of a copy…” (the enclosed Immigration rules state
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that the document must be “originals or notarized copies”). The certificate
apparently did not arrive until 14 April 2009 (copy of stamped envelope
provided).
21.
The Respondent also provides an extensive collection of email correspondences
between the parties in which the debts as well as the requirement for original
documents are discussed over the period December 2008 and January 2009.
22.
Following the close of the investigation stage, the Claimant, on 10 June 2009,
provided an additional, late position to the Respondent’s final comments. The
Claimant claims that he received, via email, an Authorisation Form of the
Directorate of Immigration which was filled out by the Respondent and sent to
him requesting his signature. In this respect the Claimant questions why it is now
acceptable to submit this authorisation by email and not in the original form “as
has many times been pointed out” (a copy of the document is provided).
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent
to deal with the matter at hand. In this respect, it took note that the present
matter was submitted to FIFA by the Claimant on 27 February 2009.
Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par.
2 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
connection with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008), the Dispute Resolution Chamber (DRC) shall adjudicate on
employment-related disputes between a club and a player of an international
dimension. As a consequence, and since the Claimant holds the C nationality and
the Respondent is a E club, it was confirmed that the Dispute Resolution
Chamber is, in principle, the competent body to decide on the present litigation.
3.
However, the Chamber acknowledged that the Respondent had, during the
course of the proceedings, sought to argue that FIFA should not deal with the
present matter since the E Football Association had established an apparently
independent committee in front of which disputes such as the present one could
be dealt with and, in particular, since art. 3 of the contract stipulated that any
dispute arising from the employment contract should be submitted to said
committee. This being said, the members of the Chamber also noted that the
Respondent had nevertheless provided its position and comments in response to
the Claimant’s specific claim as to the substance.
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4.
In this respect, the Chamber recalled that in accordance with art. 22 b) of the
Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with a matter such as the one at hand 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. With regard to the standards to be imposed on an
independent arbitration tribunal guaranteeing fair proceedings, the Chamber
referred to FIFA Circular no. 1010 dated 20 December 2005.
5.
In this respect, the Chamber noted that on the basis of the documentary
evidence provided by the Respondent, it could not be established beyond doubt
that any such arbitration tribunal respected the strict wording of art. 22 b) of the
Regulations on the Status and Transfer of Players. In particular, the Chamber
considered very carefully chapter VII of the of the E Football Association’s
Regulations on Transfer, Contracts and Status of Players and Clubs, which stated
that “the Board of Directors of the E Football Association appoints the members
of the committee.” In this respect, the Chamber considered that the manner in
which the members of the committee were selected, according to the
aforementioned E Football Association’s Regulations, raised serious doubts over
the independence of the committee, as required by art. 22 b) of the Regulations.
6.
Consequently, and taking into consideration the documentary evidence
provided, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that
the Dispute Resolution Chamber is competent, on the basis of art. 22 b) of the
Regulations on the Status and Transfer of Players, to consider the present matter
as to the substance.
7.
Subsequently, the members of the Chamber analysed which edition of the
regulations should be applicable as to the substance of the matter. In this
respect, the Chamber took note, on the one hand, that the relevant contract at
the basis of the present dispute was signed on 4 September 2007 and, on the
other hand, that the claim was lodged with FIFA on 27 February 2009. In view of
the foregoing, the Chamber concluded that the 2008 version of the Regulations
on the Status and Transfer of Players (hereinafter: the Regulations), is applicable
to the case at hand as to the substance (cf. art 26 par. 1 and 2 of the Regulations,
edition 2008).
8.
Once its competence and the applicable Regulations had thus been established,
the Dispute Resolution Chamber went on to deal with the substance of the
matter and started by acknowledging the above-mentioned facts as well as the
documentation of the submissions the Claimant and the Respondent had filed. In
particular, the Chamber noted that the Claimant and the Respondent had signed
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an employment contract on 4 September 2007, valid from 5 September 2007
until 16 October 2009.
9.
The Chamber next considered the date on which the contract between the
relevant parties had been terminated. In this respect, the Chamber noted that
the correspondence, dated 18 April 2009, sent by the Claimant to FIFA stated
that the Claimant was of the belief that no agreement would be reached
between the parties regarding any possible continuation of their employment
relationship. Additionally, the Chamber noted that enclosed along with the
correspondence of 18 April 2009, was a copy of a correspondence sent by the
Claimant to the Respondent, dated 14 April 2009, in which the Claimant stated
that he considered “all correspondence terminated”. Upon consideration of the
contents of the two documents, the Chamber concluded that the contract was
terminated, by the Claimant, on 14 April 2009, when the Claimant terminated all
correspondence with the Respondent, and in doing so, terminated any possibility
of the relevant parties continuing their employment relationship.
10.
Having concluded that the Claimant had terminated the contract on 14 April
2009, the chamber next had to consider, in accordance with art. 14 of the
Regulations, whether the Claimant had a just cause to terminate the contract
unilaterally. In this respect, the Chamber deemed the dispute to have two
separate issues on which the parties disagreed.
11.
The first issue related to allegations of unpaid salaries, where on the one hand,
the Claimant claims that over 3 months salaries for the year 2008 remain unpaid,
and on the other hand, the Respondent alleges that all financial obligations to
the Claimant have been fulfilled.
12.
The second issue for consideration relates to, on the one hand, allegations by the
Claimant that the Respondent had sent him back to C, and had no intention of
bringing him back or fulfilling the contractual obligations for the year 2009, and
on the other hand, claims by the Respondent that the Claimant was responsible
for providing the correct documents for obtaining a work and residence permit,
without which, the Claimant could not be brought back to E.
13.
The Chamber first considered the issue of unpaid salaries, and took note of the
allegations by the Claimant, that the Respondent had failed to pay the entire
salaries for the months July, September and October 2008, and part of the salary
for June 2008. Subsequently, the Chamber then considered the argument of the
Respondent, in which it was confirmed that there had been certain delays in the
payment of salaries, however, the Respondent maintained that all financial
obligations for the year 2008, were fully paid to the Claimant. In this respect, it
was duly noted that the Respondent alleged that the Claimant had made
requests for additional services that were not part of the contractual obligations
of the Respondent. The Respondent claimed that these included a change of
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accommodation, pay-tv and internet services, and that the Claimant had agreed
to have the additional costs deducted from his salary. Furthermore, the
Respondent provided a detailed breakdown of the additional costs, which
apparently showed that the Claimant had in fact, been overpaid by the
Respondent, for the 2008 period.
14.
Upon consideration of the Respondent’s argument, the Chamber was eager to
point out that, in accordance with art. 12 par. 3 of the Procedural Rules, any
party claiming a right on the basis of an alleged fact shall carry the burden of
proof. In this context, the Chamber acknowledged that, in accordance with the
documentation on file, the Respondent had not provided any documentation
proving that the relevant parties had made an agreement to have the additional
costs deducted from the salary of the Claimant. Additionally the Chamber noted
that no documentation was provided to support the calculations contained in
the Respondent’s breakdown of payments and additional costs. As a
consequence, the Chamber concluded that the allegations of the Respondent,
had to be rejected, since there was not sufficient evidence provided by the
Respondent in order to prove the allegations.
15.
In view of this the Chamber deemed that the Respondent had failed to provide
sufficient evidence to prove that it had met all financial obligations stipulated in
the employment contract, and that it had therefore failed to prove that it had
indeed paid the Claimant the amounts claimed for the months July, September
and October of 2008, plus a partial salary for June 2008. In view of this, and on
the basis of the documentation at hand, the Chamber concluded that the
Respondent had not fulfilled its financial obligation to pay the Claimant for the
claimed period, which amounted to over 3 months.
16.
As a consequence, the Chamber decided that the Respondent, in failing to pay
the Claimant over 3 months of salaries, was found to be in breach of contract
and, in particular, that this breach of contract in accordance with its
jurisprudence had reached such a level that the Claimant suffering the breach is
entitled to terminate the contract unilaterally.
17.
In the light of the above, the Chamber reached the conclusion that the Claimant
terminated the relevant employment contract, on 14 April 2009, with just cause.
In view of this, the question relating to whether the Claimant was responsible
for providing the relevant documentation for the granting of a work permit, was
considered to be of little consequential importance to the matter at hand.
18.
Consequently, the Chamber decided that the Respondent is liable to pay all
outstanding monies due under the relevant employment contract until the date
on which the labour relationship is considered to have terminated, i.e. until 14
April 2009.
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19.
The Chamber, took into consideration the financial terms of the employment
contract, which stipulated that for each of the months July, September and
October of 2008, the Claimant was owed EUR 1,667 plus 110,000, in addition to
EUR 500 that remained unpaid for June 2008. Furthermore, the Chamber also
took note that the Claimant had waived the right to all unpaid S for the year
2008 (c.f. point I. 14.), and that the Claimant had received a payment of EUR
1,453 in February 2009 from the Respondent. In this regard, and taking into
account that no salary was due for the month of February 2009, the Chamber
considered that this amount related to the outstanding salaries due for the year
2008. Finally the Chamber noted that the contractual relationship had been
terminated by the Claimant on 14 April 2009, thus half of the stipulated EUR
11,000 plus 110,000 for April 2009, was owed to the Claimant as outstanding
salaries. Therefore the Chamber concluded that the amount due in outstanding
salaries was EUR 9,548 ((3 x EUR 1,667 + EUR 500) – (EUR 1,453) for 2008 / EUR
5,500 for 2009) plus 55,000 for April 2009. In addition, the Chamber decided to
award the Claimant, in accordance with the terms of the employment contract,
the value of a return flight ticket between R and Z. In this respect the Chamber
considered that the average cost of such a ticket is EUR 1,000.
20.
Furthermore, the Chamber established that the Respondent in accordance with
art. 17 par. 1 of the Regulations is also liable to pay compensation for the
committed breach of contract.
21.
In this regard, and taking into consideration the rest value of the relevant
employment contract, i.e. the salaries for the period between 15 April 2009 and
15 October 2009, the circumstances surrounding the present case as well as the
criteria established in art. 17 par. 1 of the Regulations, the Chamber established
that it was adequate to award the Claimant compensation for breach of contract
in the amount of EUR 15,502 plus 715,000.
22.
Therefore, taking into consideration the exchange rate between EUR and at the
time of the decision, the Chamber calculated that the Claimant was to be
awarded the total amount of EUR 30,048.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, D, is partially accepted.
2.
The Respondent, A, has to pay to the Claimant, D, the amount of EUR 30,048
within 30 days as from the date of notification of this decision.
3.
Any further claims lodged by the Claimant, D, are rejected.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
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the present matter shall be submitted upon the party’s request to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
5.
The Claimant, D, is directed to inform the Respondent, A, 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 article 63 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
Encl. CAS directives
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