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, X, A
as Claimant
against
the club, Y, B,
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
According to the player X (hereinafter: the player or the Claimant), on 3 April
2005, he and the club Y (hereinafter: the club or the Respondent) concluded an
employment contract valid as from the same date until September 2005. The
player claims that the alleged employment contract provided for a total
remuneration of BBB 150,000,000 (USD 15,000) [N.B. all currency conversion into
USD is made by the player] to be paid to him. Of this amount, the player asserts
having received BBB 18,500,000 (USD 1,850) on 4 April 2005 and BBB 10,000,000
(USD 1,000) in May 2005. Furthermore, according to the Claimant, he was entitled
to receive a ticket for the route B – A – B on the basis of the alleged employment
contract.
2.
On 6 March 2006, the Claimant contacted FIFA and thereby lodged a formal
complaint against the club. The player explained that the Respondent had
unilaterally terminated the employment contract allegedly concluded between
the parties without just cause. With respect to the relevant employment contract,
the Claimant explained that the agreement had been stolen from his hotel the
day after its signature, and that the club as well as the Football Federation of B
had subsequently refused to hand out a copy to him. According to the player, he
had been discussing his case with the Football Federation of B, which had thereby
allegedly affirmed that neither the Federation nor its affiliated club concerned
was in possession of the relevant employment contract. Furthermore, the player
asserted that on occasion of his meeting with the Football Federation of B and the
club, he had been requested to write a letter declaring that the matter had been
settled amicably, which he had refused to do. On account of these circumstances,
the player claims the following amounts based on the alleged contract
termination without just cause on the part of the club:
1.
The remaining contract value:
total contract value: BBB 150,000,000
./. amount received: BBB 28,500,000
BBB 122,500,000 [RECTE: BBB 121,500,000] USD 12,250
2.
Flight ticket B – A – B
USD 3,500
3. Residence permit (incl. costs for overstay, visa application)
USD 3,300
___________________________________________________________________________
Total
USD 19,050
3.
In order to support his allegations, the player enclosed the following
documentation with his claim:
Player X / Club Y
2
-
A copy of a signed letter in the language of B, dated 6 May 2005, carrying
the letterhead and the stamp of the Respondent and addressed to the
Claimant; according to the translation provided by the player, the letter
states the following:
“referring to the evaluation result conducted by Y, the concerned player had
not been maximizing his contribution enough and considered to be poor in
performance which made us suffer in terms of social achievements as well as
financially. Thus, worried about possibility of anarchy acts by the team
supporters, Y team officials had decided to put an end to the concerned
player contract”;
-
a printout of an internet page indicating the player X as one of the players
of Y;
extracts from the local newspaper of B mentioning the club Y and the player
X in the same articles;
a copy of the relevant player’s “Limited Stay Permit Card” indicating B as his
place of residence and the Football Association of B as the “sponsor”.
4.
FIFA addressed two letters to the club via the Football Federation of B requesting
the Respondent to present its position with regard to the claim of the player. Both
letters remained unanswered. On further two occasions, the Football Federation
of B and its relevant affiliated club were asked to provide FIFA with a copy of the
agreement allegedly concluded between the club and the player, if any. Also
these two letters remained without response.
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, the Chamber referred to art. 18
paras. 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 6 March 2006, thus after 1 July 2005. Therefore, the Dispute
Resolution Chamber concluded that the revised Rules Governing the Procedures
(edition 2005) on matters pending before the decision making bodies of FIFA are
applicable to the matter at hand.
Player X / Club Y
3
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 para. 1
of the above-mentioned Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of arts. 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 para. 1 in conbination with art. 22 lit. 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 A and an club from B
regarding an employment-related dispute between the parties.
4.
Subsequently, the Dispute Resolution Chamber analysed which edition of the
Regulations for the Status and Transfer of Players should be applicable to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 paras. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the facts that the alleged employment
relationship had been entered into in April 2005 and that the relevant player’s
claim had been lodged with FIFA on 6 March 2006. In view of the aforementioned,
the Dispute Resolution Chamber concluded that the current FIFA Regulations for
the Status and Transfer of Players (hereinafter: the Regulations) are applicable to
the substance of the present case.
5.
Having established its competence to deal with the case at hand as well as the
applicable Regulations, the Dispute Resolution Chamber entered into the
substance of the matter. In this respect, the members of the Chamber proceeded
to analyse the facts of the case and first of all acknowledged that, whereas the
player X claims having concluded an employment agreement with Y which was
subsequently allegedly terminated by said club without just cause, the player had
not been in a position to provide FIFA with a copy of the relevant contract. In view
of the foregoing, the members of the Chamber deemed that first and foremost it
had to be established whether the Claimant and the club had been bound by a
contractual relationship and, if so, whether this relationship had been terminated
by the Respondent with or without just cause.
6.
In this respect, the members of the Chamber examined the documentation which
had been presented by the player in order to support his allegations that, despite
not being in a position to present a copy of the relevant employment agreement
since it had allegedly been stolen from him, he had been employed by the club. In
this regard, the members of the Chamber first paid due consideration to the
“Limited Stay Permit Card” of the player, indicating B as his place of residence
Player X / Club Y
4
and the Football Federation of B as “sponsor”, as well as to the newspaper
extracts which referred to the Claimant and the Respondent in the same article. In
this regard, the Chamber deemed that the relevant documents, although not able
to prove by themselves that the Claimant and the Respondent had been bound by
an employment relationship, could be considered an indication that the player
played with the club in question.
7.
In continuation, the members of the Chambers turned their attention to the
signed letter in the language of B, dated 6 May 2005, which uncontestedly carried
the letterhead and the stamp of Y and was addressed to the Claimant. According
to the translation of the letter provided by the player, the letter had served as a
notification of contract termination on the part of the club, since it had not been
satisfied with the player’s performance and therefore apparently feared “anarchy
acts” of the team supporters.
8.
In this context, the members of the Chamber concluded that the above-mentioned
letter of the Respondent, the translation of which had not been contested by the
club, unmistakably referred to a labour contract between the club and the player
concerned, i.e. the Claimant who was the addressee of the letter in question, and
terminated the relevant contract due to the indicated reasons.
9.
The Dispute Resolution Chamber also paid due consideration to the fact that the
Respondent had failed to provide FIFA with any statements whatsoever with
regard the Claimant’s complaint, although it had repeatedly been invited to
proceed accordingly. In this regard, the Chamber established that, in doing so, the
club had renounced its right to defence and had, in particular, not denied that a
labour relationship had existed between the club and the player and that it had
terminated the said relationship. The members of the Dispute Resolution Chamber
therefore had no alternative but to conclude that the Respondent accepts the
Claimant’s allegations in this respect.
10.
As a consequence, the Dispute Resolution Chamber deemed that, in view of the
allegations and evidence presented by the player and the fact that neither had
been contested by the club, it had to be established that the Claimant and the
Respondent had been bound by an employment agreement and that such
contract had been prematurely terminated by the club.
11.
With regard to the reasons for the contract termination put forth by the club in its
letter dated 6 May 2005, namely the allegedly poor performance of the player and
the alleged risk of anarchistic acts by the club’s supporters, the Chamber held that
such arguments could not serve as valid legal grounds for a termination of a
contract with just cause. Thus, and taking into consideration that the Respondent
Player X / Club Y
5
had failed to present its position on the player’s allegations, the Dispute
Resolution Chamber concluded that the club had terminated the labour
relationship in question without just cause.
12.
Consequently, the members of the Chamber turned their attention to the
consequences of such an unjustified breach of contract as set out in art. 17 para. 1
of the Regulations for the Status and Transfer of Players. On the basis of the said
article, the Chamber concluded that the Respondent was liable to pay
compensation to the Claimant for breach of contract. In view of the circumstances
surrounding the present case, the Chamber concluded that the amount of USD
12,150 was reasonable and justified as compensation for breach of contract to be
awarded to the player.
13.
As to the reimbursement of the costs for the flight ticket and residence permit
requested by the Claimant, the Dispute Resolution Chamber finally stated that the
Claimant had not presented any documentary evidence proving that he had
incurred such costs. Therefore, the Chamber concluded that the Respondent did
not have to bear the claimed costs in this regard.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the player X, is partially accepted.
2.
The Respondent, the club Y, shall pay the amount of USD 12,150 to the Claimant,
X, within 30 days as of notification of the present decision.
3.
In the event that the above-mentioned amount is not paid within the indicated
deadline, interest at the rate of 5% per annum shall fall due as of expiry of the
said time limit and the present matter shall be submitted to FIFA’s Disciplinary
Committee for its consideration and decision.
4.
The Claimant, X, is instructed to inform the Respondent, Y, 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
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
Player X / Club Y
6
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
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
On behalf of the
Dispute Resolution Chamber:
Jérôme Valcke
General Secretary
Encl.
CAS directives
Player X / Club Y
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