Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club
A, from X
as Claimant/Counter-Respondent
against the player
B, from Y
as Respondent/Counter-Claimant
regarding a contractual dispute arisen between the club and the player.
I.
Facts of the case
1.
On 11 January 2005, club A (hereinafter: the Claimant) and player B (hereinafter:
the Respondent) signed an employment contract for the period from 11 January
2005 until 11 January 2006, i.e. for one year.
2.
According to the employment contract, the total value of the contract amounts to
13,000, payable as follows:
- 20 % of the contract as advance payment and
- the rest payable in equal monthly instalments of 823.334.
3.
On 12 September 2005, the Claimant lodged a formal complaint at FIFA against the
Respondent and explained that the latter had been absent from 19 June until 2
July 2005 for medical reasons and had then left the country, without the
permission of the club and had not returned to the club. The Claimant claims
payment of compensation from the Respondent in the amount of 19,600 for
breach of contract.
4.
In his response to the claim, the Respondent put forward that the contract had
been breached by the Claimant and not by him. He asserted that the Claimant had
only paid him the first part of his signing-on fee, i.e. 20% of the total contract
value, and the salaries related to the months of November, December and January.
He explained that the Claimant had confiscated his passport in order to prevent
him from leaving and that the months of February until July 2005 had been very
difficult for him since he was without salary and did not have anything to eat. He
asserted that as soon as he received his passport back, he left the Claimant in the
beginning of July.
5.
By means of a counter-claim, the Respondent (and counter-claimant) requests
compensation in the amount of 19,600 from the Claimant for breach of contract.
With regard to the breakdown of this amount, he explained that he is claiming the
same amount of compensation as the Claimant since he did not know how to
calculate the amount.
6.
In its comments thereto, the Claimant affirmed to have paid the total amount of
14,495 to the Respondent, paid as follows:
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Club A, from X / Player B, from Y
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Amount
2,600
10,400
100
300
20
20
330
350
25
350
14,495
Remarks
A percentage of 20% of
the contract
“a loan to be deducted
from the monthly salary”
upon the wish of the player
allowance for a match
salary of January 2005
“a loan from the salary”
“a loan from the salary”
salary of March 2005
salary of April 2005
“a loan from the salary”
salary of May 2005
TOTAL
Date of payment
11.1.2005
11.5.2005
8.2.2005
12.2.2005
16.5.2005
2.4.2005
13.4.2005
April 2005
29.5.2005
12.6.2005
7.
The Claimant enclosed copies of payment receipts for the aforementioned amounts
which contained the amount concerned, the date of payment, the name of the
receiver, i.e. the Respondent, and one or two signatures. The Claimant affirmed
that the Respondent had been provided with a comfortable residence and three
meals a day which cost about 5,105 for the period until the Respondent had left
the club. It claims damages from the Respondent for breach of contract in the
amount of 19,600 which consists of the aforementioned amount of 14,495 paid to
the Respondent plus 5,105 for the incurred costs of the residence provided to the
Respondent.
8.
Despite several invitations from FIFA to submit his closing arguments, and his
comments on the submitted payment evidence, the Respondent failed to present
any comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) 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. The present matter was
submitted to FIFA on 12 September 2005, 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.
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Club A, from X / Player B, from Y
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2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the DRC 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 combination
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 an X club and a Y player regarding the
dispute arisen in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed 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 11 January 2005 and the claim was
lodged at FIFA on 12 September 2005. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfer of Players
(edition 2005, hereinafter: the Regulations) 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 the above-mentioned facts and all further
correspondence contained in the file. In particular, they took note that the two
parties had signed an employment contract for the period from 11 January 2005
until 11 January 2006. Equally, they took note that it was uncontested that the
Respondent had been absent from the club from 19 June until 2 July 2005 for
medical reasons and that he had subsequently, i.e. prior to the end of the validity
of the employment contract, left the country, without permission and without
giving notice to the Claimant.
6.
Furthermore, the Chamber took note that on the one hand the Claimant considers
that the Respondent had, by leaving the club prematurely, breached the
employment contract. The members noted that the Claimant had affirmed to have
paid to the Respondent salaries in the total amount of 14,495 and had provided
him with a comfortable residence and three meals a day. The Chamber further
noted that the Claimant claims damages in the total amount of 19,600.
7.
On the other hand, the Chamber acknowledged that the Respondent is of the
opinion to have left the Respondent with a valid reason as he allegedly was
without salaries from February until July 2005. The members of the DRC noted that
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Club A, from X / Player B, from Y
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the Respondent requests damages in the total amount of 19,600 for breach of
contract.
8.
In continuation, the Chamber first drew its attention to the alleged outstanding
salaries. According to the statements of the Respondent, until the date of the
premature termination of the relevant contract, he had only received the advance
payment, i.e. 20% of the total contract value, and the salaries of November,
December and January and was thus without salaries from February until July 2005.
The Chamber acknowledged the fact that this allegation was contested by the
Claimant.
9.
In this respect, the members stated that the Respondent had mentioned to have
received his salaries for November and December, without indicating the year.
They remarked that taking into account that the relevant employment contract
started on 11 January 2005 and that the Respondent had left the club in the
beginning of July 2005, November and December did not seem to concern a period
of time in which the Respondent had worked at the Claimant and therefore, it did
not make sense that the Respondent was paid for this period of time.
10.
Regarding the alleged outstanding salaries of February until July 2005, the
Chamber noted that the Claimant had produced copies of receipts regarding
payments allegedly made to the Respondent in the total amount of LYD 14,495.
11.
In this respect, the Chamber noted that the payment receipts contain the name of
the Claimant, the name of the beneficiary, i.e. the Respondent, the relevant
amounts, the payment dates as well as, according to the translated documents, the
Respondent’s signature and, on some receipts, the accountant’s signature.
12.
The Chamber noted, to that respect, that the Respondent had never contested to
have signed the aforementioned payment receipts. The Chamber added that the
Respondent had specifically been invited by FIFA to comment on the payment
receipts but had failed to provide any comments. Therefore, the Chamber stated
that due to the – uncontested - evidence submitted by the Claimant, it was
established that the Claimant had made the aforementioned payments in the total
amount of 14,495 to the Respondent.
13.
In continuation, the members of the DRC went on to determine the amount of
salary due at the time of the Respondent’s departure from the club on 2 July 2005.
The members calculated that for the relevant period from 11 January 2005 until 2
July 2005, the advance payment, i.e. 20% of the contract value equal to the
amount of 2,600 had been due in addition to six monthly salaries in the total
amount of 4,940 which resulted in a total due amount of 7,540.
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Club A, from X / Player B, from Y
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14.
On account of the above, the Chamber summarized that whereas the Respondent
had actually received the amount of 14,495 from the Claimant, only 7,540 had
actually been due at the time of the Respondent’s leaving from the club.
Therefore, the Chamber concluded that the Claimant had overpaid the Respondent
in the amount of 6,955.
15.
As a result of the above-mentioned deliberations, the Chamber concluded that
there was no just cause for the Respondent to leave the Claimant prior to the
expiry of the employment contract. As a consequence, the Chamber decided that
the Claimant had breached the relevant employment contract by leaving the
Respondent without just cause on 2 July 2005.
16.
The Chamber further decided that the Respondent has to pay the total amount of
11,895 to the Claimant which comprises of 6,955 for the overpaid salaries plus
compensation in the amount of 4,940.
17.
The DRC then turned its attention to the question of possible sanctions to be
imposed on the Respondent in accordance with art. 17 par. 3 of the Regulations.
18.
In this respect, the Chamber referred to the basic sanction of four months on the
player’s eligibility to participate in any official football match in case of an
unjustified breach of contract by a player. Moreover, the Chamber referred to the
fact that the breach occurred during the so-called protected period, since it
occurred during the first year following the entry into force of the relevant
employment contract.
19.
In view of the above, the members of the Chamber decided that the player had to
be sanctioned with a restriction of four months on his eligibility to participate in
any official football match. This sanction shall take effect as of the date of the
notification of the present decision.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant, Club A, is partially accepted.
2.
The Respondent, player B, has to pay the total amount of 11,895 to the Claimant,
Club A.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the relevant
time-frame.
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Club A, from X / Player B, from Y
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4.
A restriction of four months on his eligibility to play in official matches is imposed
on the player B. This sanction shall take effect as of the date of notification of the
present decision.
5.
In the event that the Respondent, player B, does not comply with the present
decision, the matter shall be submitted to FIFA’s Disciplinary Committee, so that
the necessary sanctions may be imposed.
6.
Any further claims submitted by the Claimant, Club A, are rejected.
7.
The counter-claim submitted by the Respondent, player B, is rejected.
8.
The Claimant, Club A, is directed to inform the Respondent directly and
immediately of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
9.
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
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
Enclosed: CAS directives
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Club A, from X / Player B, from Y
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