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, X,
as Claimant
against the club
B, Y,
as Respondent
regarding outstanding remuneration on the basis of an employment contract.
I.
Facts of the case
1.
On 30 January 2006, the player A from the country X, the Claimant, and the club
from the country Y, the Respondent, signed an employment contract valid until 30
June 2007. On the same date, the parties signed a further document “annex”.
2.
According to clause 4 i. of the employment contract and the aforementioned
annex, the Claimant was entitled to receive for the months February to May 2006
four monthly salaries of USD 2,000 each, with sixty days grace period.
3.
According to clause 4 ii. of the employment contract, the Claimant was entitled to
receive for the season 2006/07 ten monthly instalments of USD 2,500 each
between the months August 2006 to May 2007, with sixty days grace period,
whereas according to the annex the Claimant is entitled to receive for the said
season ten monthly instalments of USD 2,000 only.
4.
Clause 3 of the above-mentioned employment contract establishes that the
“employer has the absolute (one side) right to discontinue this agreement for the
second year (2006-7) provided that the notice is given at least 30 days from the
ending of the transfer football period 2006-7.”
5.
On 27 July 2006, the Claimant demands from the Respondent the amount of USD
7,000 for outstanding salaries and USD 25,000 as compensation for the latter’s
alleged breach of contract.
6.
According to the Claimant, the Respondent did not pay him the amount of USD
7,000 by May 2006, which was confirmed by a letter from the Respondent in May
2006. In this respect, the Claimant presented a copy of the aforementioned letter,
which does not indicate a date. By means of the said letter, the Respondent
admitted owing the Claimant the amount of 3,350, which corresponds
approximately to amount of USD 7,680, for the services of the Claimant until June
2006 and terminated the relevant employment contract on the date of the letter.
7.
The Claimant explained that the Respondent did not execute its right to
unilaterally decide on the non-renewal of the employment contract in accordance
with clause 3 of the said contract and therefore breached the relevant contract.
Consequently, the Claimant is claiming from the Respondent the above-mentioned
amounts of total USD 32,000.
8.
The Respondent affirmed having terminated the employment contract in
accordance with clause 3 of the said contract by means of the above-mentioned
letter. Furthermore, the Respondent explained that the Claimant, on 17 May 2006,
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had signed a receipt of payment according to which he received the amount of
1,000 in cash for the full settlement of the contract. Finally, the Respondent
presented a confirmation of the Y football association stating that the
international transfer certificate (ITC) was sent for the player in favour of the X
football association on 25 July 2006.
9.
The Claimant replied that he did not sign the receipt of payment put forward by
the Respondent. Furthermore, he insisted that the Respondent did not fulfil the
requirements of the above-mentioned unilateral non-renewal clause.
Consequently, the Claimant adhered to his claim.
10.
The Respondent did not present any further statements, although it was invited to
do so.
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 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 27 July
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 employment-related disputes between a
player and a club 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 player and a Y club regarding a dispute 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
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2005) and, on the other hand, to the fact that the relevant contract at the basis of
the present dispute was signed on 30 January 2006 and the claim was lodged at
FIFA on 27 July 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, the members of the Chamber acknowledged the above-mentioned
facts as well as all the further documentation contained in the file.
6.
To that regard, the members acknowledged that the parties signed an employment
contract on 30 January 2006 valid until 30 June 2007, with an option in favour of
the club to unilaterally terminate the contract in case that notice is given at least 30
days prior to the ending of the transfer football period 2006/07 (cf. clause 3 of the
relevant employment contract).
7.
Furthermore, the Chamber noticed that the Claimant requests USD 7,000 as
outstanding salaries until June 2006. To that regard, the Chamber took note that
the Respondent did not contest the claimed amount of outstanding salaries, but
presented a document according to which the Claimant allegedly received the
amount of 1,000 in cash for the full settlement of the contract.
8.
Analysing the aforementioned alleged payment receipt, the Chamber deemed that,
first of all, the signature of the Claimant on the said document looks different from
the one on the employment contract. Secondly, the Chamber took note that after
the Claimant having contested the validity of this document, the Respondent did
not provide FIFA with any further comment thereto, although having been invited
to do so.
9.
On account of the above, the Chamber concluded that the Respondent, at least
tacitly, accepted the outstanding amount of salaries amounting to USD 7,000. As a
result, the Chamber awarded the Claimant’s claim regarding outstanding salaries.
10.
In continuation, the members of the Chamber took due note that, on the one hand,
the Claimant asserts that the Respondent did not execute the aforementioned
option right and therefore breached the employment contract. On the other hand,
the Chamber acknowledged that the Respondent is convinced that it terminated
the employment contract in accordance with clause 3 of the said contract.
11.
In consideration of these positions, the members proceeded to verify whether the
relevant clause in the employment contract, which awards the club the possibility to
unilaterally terminate the employment contract, is valid or not.
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12.
In this respect, the Chamber recalled that, in accordance with its established
jurisprudence, a clause which gives one party the right to unilaterally cancel or
lengthen the contract, without providing the counter-party with the same rights, is
a clause with unacceptable contents and thus not legally binding.
13.
Therefore, the Chamber concluded that the unilateral option in favour of the club
in the employment contract at the basis of the present litigation cannot be
considered as being legally binding on the Claimant and decided that the
Respondent unilaterally terminated the employment contract in June 2006 without
just cause.
14.
Notwithstanding the above, and for the sake of completeness, the Chamber
emphasized that even if it would have admitted the present option clause, the said
clause would not have been legally binding on the Claimant, since the Respondent,
carrying the burden of proof, was not able to provide FIFA with the sufficient
evidences, i.e. the necessary discharge of having duly executed the said clause (cf.
art. 12 par. 3 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
15.
In continuation, the Chamber turned its attention to the consequences of the
unjustified breach of contract committed by the Respondent in accordance with art.
17 of the Regulations. In this context, and taking into consideration the objective
criteria listed in art. 17 par. 1 of the Regulations, in particular, the remuneration
due to the Claimant under the existing contract and the fact that the Claimant’s ITC
was sent by the Y football association in favour of the X football association, thus
the Claimant apparently signed a new employment contract as of July 2006, the
Chamber decided that the compensation of USD 13,000 is adequate in the present
case.
16.
In view of all of the above, the members of the Dispute Resolution Chamber
resumed that the Respondent must pay outstanding remuneration to the Claimant
in the amount of USD 7,000 and compensation of USD 13,000 due to the breach of
contract without just cause.
III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant is partially accepted.
2.
The Respondent has to pay the amount of USD 20,000 to the Claimant, within 30
days as from the date of notification of this decision.
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3.
If the aforementioned amount is not paid within the stated deadline, an interest
rate of 5% per year will apply, as from expiry of the stated deadline and the
matter will be submitted to FIFA’s Disciplinary Committee, so that the necessary
disciplinary sanctions can be imposed.
4.
Any further claims of are rejected.
5.
The Claimant 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 about any receipt of the payment.
6.
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
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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