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 player,
A, from X,
as “Claimant”
against the club,
B, from Y,
as “Respondent”
regarding a contractual dispute arisen between the parties involved.
I.
Facts of the case
1.
On 27 May 2005, the player A (hereinafter: the Claimant), born on 23 April 1977,
and the club B (hereinafter: the Respondent) signed an employment contract valid
as from 1 June 2005 until 30 May 2007.
2.
According to the Annex 2 to the employment contract (Note: copy remitted), the
Claimant was entitled to receive, apart from the monthly salary of USD 1’250 (June
2005 until May 2006), the following payments: USD 220’000 upon signature of the
contract, USD 220’000 on 1 December 2005, USD 244’000 on 1 April 2006 and USD
244’000 on 1 December 2006.
3.
According to art. 4.1 of the contract, the parties agreed that the monthly salary of
the Claimant would increase as from June 2006 in accordance with an additional
agreement.
4.
On 9 August 2006 directly and on 26 September 2006 via his legal representative,
the Claimant lodged a formal claim in front of FIFA and alleged that the
Respondent had breached contractual obligations by failing to pay him USD
488’000 (2x USD 244’000, i.e. the last two instalments due on 1 April 2006 and 1
December 2006 respectively) in compliance with the Annex 2 to the contract.
5.
The Claimant requests payment of USD 488’000 according to the Annex 2 of the
contract and USD 14’000 for salaries for the rest of the contractual duration (June
2006 until May 2007).
6.
The Claimant maintained that after he addressed the Respondent to fulfil the
obligations stipulated by the contract, the Respondent unilaterally terminated the
contract without any preliminary notice and giving no reasons.
7.
On 15 November 2006, the Respondent provided FIFA with its position by means
of which it provided, inter alia, copies of payment orders from which it could be
revealed that it paid the Claimant on 2 June 2005 and on 7 February 2006 the
amount of USD 220’000 respectively. In this respect, the Respondent confirmed
that it agreed with the Claimant to pay him USD 244’000 on 1 April and 1
December 2006 respectively. Since the Claimant was in need of money, it paid him
the agreed payments, after tax deduction, in advance on the above-mentioned
dates.
Player A, from X / Club B, From Y
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8.
The Respondent is thus of the opinion having fulfilled all its obligations as per the
contract concluded with the Claimant. On the other hand, it accused the Claimant
of having unwarranted left the Respondent and subsequently refused to return.
Moreover, the Respondent stressed that the Claimant’s representative, the
Nationwide C Trade Union “Footballers of C” is not legitimate to represent the
Claimant, a X citizen, in the present procedure. In this respect, the Respondent
provided a copy of a letter issued by the Union of Football Clubs “Professional
Football League of C”. In the said letter, the aforementioned Professional Football
League of C informed the Respondent that the activity of the non-government
organization All C national Trade Union Football Players of C from E city was
declared invalid by the court of appeals of F and thus is deprived from its right to
represent professional football players of C. Such decision was allegedly upheld by
the decision of the last instance, the Supreme Court of C, on 17 June 2004, a
decision which is final and not subject of appeal.
9.
The Claimant replied that, although four payments were agreed in the Annex to
the contract, the Respondent paid him only twice the amount of USD 220’000 on
30 May 2005 and on 7 February 2006 respectively. The Claimant stressed that he
had not received any further payments as agreed for by the Annex to the contract.
10.
Furthermore, the Claimant maintains that it was not contractually agreed that the
Respondent can make tax deduction on the agreed amounts to be paid and that
thus the Respondent had to pay all the taxes by itself and pay him the entire
amount as indicated in the Annex to the contract. The Claimant drew the
attention to the fact that the amounts in the payment order from the Respondent
exactly correspond to the sums as stipulated in the Annex to the contract relating
to the first and second instalment.
11.
With regard to his unwarranted departure, as alleged by the Respondent, the
Claimant reiterated that it was in fact the Respondent who unilaterally terminated
the contract. To that regard, he provided a copy of his “Employment Register”.
According to a translation of the relevant document, on 1 June 2006, an entry was
made which reads as follows:
“Dismissed voluntarily in accordance with Article 68 (2a)”.
12.
Furthermore, the translation of the said document mentions that the
Respondent’s seal was put under this entry on the register.
13.
As regards the right to represent the Claimant, the Nationwide C Trade Union
“Footballers of C” informed that it acts on the basis of the Constitution of C and
its Nationwide C Trade Union “Footballers of C” Charter. Since 2000 Nationwide C
Trade Union “Footballers of C” has been a member of FIFPro, thus is has the right
to represent football players. Moreover, Nationwide C Trade Union “Footballers of
Player A, from X / Club B, From Y
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C” submitted an appeal against all the decisions of C courts to the G Court of
Human Rights. Thus, all these decisions are allegedly suspended.
14.
The Respondent stated that the Claimant did not provide any proof for his
statements. Moreover, the Respondent refers to the information that it previously
submitted, thereby allegedly demonstrating that all payments were made to the
Claimant.
15.
Finally, the Respondent reiterated that the representative of the Claimant is not
authorized to represent the latter.
II.
Considerations of the Dispute Resolution Chamber
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. The present matter was submitted to FIFA on 9 August 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 combination with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated 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 X and a club from Y
regarding allegedly outstanding payments in connection with their 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 27 May 2005 and the claim was lodged
Player A, from X / Club B, From Y
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at FIFA on 9 August 2006. In view of the aforementioned, the Chamber concluded
that the current FIFA Regulations for the Status and Transfer of Players (edition
2005, hereafter; 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
documentation contained in the file and took note that the Claimant and the
Respondent signed on 27 May 2005 an employment contract which was to be valid
until 30 May 2007. The relevant financial terms of the employment contract, in
particular its Annex 2, stipulated that the Claimant was, inter alia, entitled to
receive a monthly salary of USD 1’250 from June 2005 until May 2006, a salary
which was to be increased as from June 2006 based on an additional agreement.
Moreover, the Claimant was entitled to receive USD 220’000 upon signature of the
contract, USD 220’000 on 1 December 2005, USD 244’000 on 1 April 2006 and USD
244’000 on 1 December 2006.
6.
Furthermore, the Dispute Resolution Chamber acknowledged that the Claimant
maintained that the Respondent had unilaterally terminated the employment
contract without any preliminary notice and had failed to pay him the amount of
USD 488’000, i.e. the last two installments agreed upon in the Annex 2 to the
contract. Furthermore, the Claimant requested payment of outstanding salaries
from June 2006 until the May 2007.
7.
Subsequently, and turning its attention to the position of the Respondent, the
Chamber noted the latter’s submission according to which it had duly fulfilled all
its financial obligations towards the Claimant. In order to corroborate its position,
the Respondent submitted payment orders conforming two payments it made to
the Claimant in the amount of USD 220’000 each, totalling to an amount of USD
440’000. Moreover, the Respondent pointed out that it was in fact the Claimant
who unwarrantedly left the Respondent and subsequently refused to return,
thereby breaching the contract signed between the two parties.
8.
In this respect, with regard to the question which of the parties to the dispute is to
be deemed responsible for the termination of the contract, the members of the
Chamber referred to the document submitted by the Claimant entitled as
“employment register”. The Chamber held that the Respondent in fact did not
contest the accuracy of the translation attached to the said original document. As
the Chamber could note while looking over the said document, on 1 June 2006 an
entry was put into the said “employment register” of the Claimant indicating
“Dismissed voluntarily…”. Moreover, the Chamber revealed that the club’s seal
and the signature of a club’s representative were put on the said document.
Player A, from X / Club B, From Y
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9.
Taking into consideration the above, the Chamber took the view that, obviously,
such an entry into the “employment register” was made by the Respondent on its
own authority without the involvement of the Claimant since no indications were
on hand that the latter was aware or was involved in the course of such entry. The
Dispute Resolution Chamber held that it had no alternative but to assume that the
Respondent’s course of action eventually led to the termination of the contract
signed by and between the Claimant and the Respondent. Such assumption
appears to be justified since, as alleged by the Claimant, allegations which were
not contested by the Respondent, the Respondent stopped paying the Claimant’s
salaries as from June 2006.
10.
Having established that the Respondent’s action caused the termination of the
contract and that the relevant date to be considered as the date of termination of
the contract was 1 June 2006, the members of the Chamber deliberated whether
or not the Respondent had just cause to terminate the employment contract it
entered into with the Claimant.
11.
In this respect, first of all, the Chamber took note that the Respondent was unable
to corroborate with documentary evidence that it was the Claimant who left
without authorization and thereby terminating the contract prior to its expiry
date. Moreover, the Chamber also held that the Respondent could likewise not
demonstrate on the basis of pertinent documents that the relevant entry into the
“employment register” of the Claimant was caused or initiated by the Claimant.
12.
In view of the above, the Chamber emphasized that in accordance with the legal
principle of the burden of proof, which is a basic principle in every legal system, a
party deriving a right from an asserted fact has the obligation to prove the
relevant fact (cf. art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (DRC)). Therefore,
due to the lack of proof with regard the Respondent’s allegations related to the
Claimant’s unauthorized departure, the Dispute Resolution Chamber rejected such
argument raised by the Respondent.
13.
In continuation, the Chamber referred to the allegations of the Claimant
according to which the Respondent had failed to pay him contractually agreed
payments, i.e. the two instalments in the amount of USD 244’000 each and due to
be paid on 1 April and 1 December 2006 respectively.
14.
Focussing its attention to the statements of the Respondent thereto, the Chamber
noted that the latter emphasized having fulfilled all its financial obligations
towards the Claimant. Most notably, the Respondent remitted copies of two
payment orders confirming that it had paid the Claimant twice the amount of USD
220’000 on 2 June 2005 and 7 February 2006 respectively.
Player A, from X / Club B, From Y
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15.
The members of the Chamber revealed to this effect that those two payments
made by the Respondent to the Claimant, the receipt of which were confirmed by
the Claimant, corresponded to the contractually agreed payments related to the
first and second payment in the amount of USD 220’000 each that were agreed to
be made by the Respondent to the Claimant. Yet, the members of the Chamber
concluded that the Respondent could not corroborate with documentary evidence
that it paid the Claimant also the relevant payment claimed in the procedure at
stake, which is the amount of USD 244’000 due to be paid on 1 April 2006.
16.
Taking into account the above, the Chamber reached the conclusion that the
Respondent failed to meet its obligations arising from the employment contract
signed with the Claimant. In particular, the Respondent did not fulfil its
obligations towards the Claimant by not paying the amount of USD 244’000 on
the relevant due date agreed upon, i.e. 1 April 2006.
17.
In view of all the above, the deciding authority concluded that the Respondent
breached the employment contract it concluded with the Claimant without just
cause.
18.
In view of the aforementioned conclusion, the Chamber went on to deliberate on
the consequences which should apply on the Respondent.
19.
In this respect, at first, the members of the Chamber stated that the Respondent
has to cancel all outstanding payments that were due to the Claimant until the
termination of the employment contract. Therefore, the Respondent must pay the
Claimant the amount of USD 244’000 as outstanding remuneration until the date
of breach of contract occurred.
20.
Moreover, the members of the Chamber also held that the Respondent was not
only to pay the outstanding remuneration to the Claimant, but also compensation
for breach of contract in conformity with art. 17 par. 1 of the Regulations.
21.
With regard to the determination of the applicable amount of compensation, the
Chamber referred to the aforementioned provision of the Regulations, in
particular to the non-exhaustive enumeration of the objective criteria which need
to be taken into account.
22.
In this respect and considering the relevant objective criteria listed in the said
provision, the Chamber decided that a compensation of USD 258’000 is adequate,
taking in particular into consideration the behaviour of the Respondent during
the present procedure as well as the remuneration due to the Claimant until the
initially agreed expiry date of the contract.
Player A, from X / Club B, From Y
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23.
In light of the above, the Dispute Resolution Chamber decided that the
Respondent has to pay the Claimant the amount of USD 244’000 as outstanding
amount contractually due and USD 258’000 as compensation for breach of
contract without just cause. In total, the Respondent has to pay to the Claimant
the amount of USD 502’000.
24.
Finally, for the sake of good order, the Chamber addressed the complaint of the
Respondent about the Claimant’s representative in the present procedure.
25.
In this regard, the Chamber underlined that it can see no reason why the Claimant
should not be represented by whomsoever he wishes. In fact, the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (DRC) expressly provides that parties may appoint a representative
without the need for such representative to meet any conditions.
26.
Therefore, the Chamber rejected such argument raised by the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player A, is accepted.
2.
The Respondent, club B, has to pay the amount of USD 502’000 to the Claimant,
player A, within 30 days of notification of the present decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiry of the fixed time limit and the
present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
4.
The Claimant, player A, is directed to inform the Respondent, club B, 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.
5.
According to art. 61 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 21 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
Player A, from X / Club B, From Y
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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:
Jérôme Valcke
General Secretary
Encl: CAS directives
Player A, from X / Club B, From Y
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