Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 August 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Rinaldo Martorelli (Brazil), member
Gerardo Movilla (Spain), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on a matter between
the player J,
as Claimant
and
the club U,
as Respondent
regarding an employment related contractual dispute
arisen between the parties.
I.
Facts of the case
1.
On 18 November 2003 the player J (hereafter: the Claimant) and club U
(hereafter: the Respondent), concluded an employment contract for the period
17 December 2003 to 16 December 2005. On 15 April 2005 the two parties
terminated the contract by mutual consent, the Respondent agreeing to pay to
the player “USD 172,813.82 gross” and the reimbursement of the price of
airline tickets for the player’s wife provided that he submitted to the club a
copy of the original invoice for the tickets and a copy of her passport showing
entry to and departure.
2.
The player confirms that he received the sum of USD 125,146.02 from the
Respondent. However, on 5 December 2006, he lodged a claim against the
Respondent seeking payment of the following:
the difference between the amount stipulated, USD 172,813.82, and the
amount received, USD 125,145.02, amounting to USD 47,468.80;
annual interest of 5% on the amount of USD 47,468.80 from 1 May 2005
to 1 May 2008, amounting to USD 7,120.32;
USD 5,000 for the airline tickets.
3.
The Respondent replied by rejecting the player’s complaint, claiming that it
was clearly stipulated in the termination agreement that the sum due to the
player was “USD 172,813.82 gross”. According to the Respondent, this was a
gross amount from which taxes and other deductions had to be deducted, thus
resulting in the sum of USD 125,146.02. With regard to interest, the
Respondent alleges that it does not owe any salary to the player and therefore
does not owe any interest on the sum claimed. With regard to the amount
claimed for the airline tickets, the Respondent insists that according to the
termination agreement, it is only required to reimburse the cost of the player’s
wife’s airline tickets and that for this purpose the player must provide a copy
of the original invoice for the airline tickets and a copy of his wife’s passport
showing entry to and departure.
4.
The player responded to these allegations by confirming his initial position,
noting that the Respondent had affirmed without proof that the gross amount
of USD 172,613.82 was equivalent to USD 125,145.02 after tax and other
deductions and questioning why the Respondent did not explain how it had
made this calculation. In this regard, the player affirmed that unless it can
legally justify the tax deducted, the Respondent should pay the whole of the
sum of USD 47,468,80. As for the airline tickets, the player claims that he
submitted the invoices to the Respondent.
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5.
The Respondent replied that the tax imposed by the government was 27.5%,
corresponding to USD 47,468.80. To support its allegations, the Respondent
has submitted an official certificate from the tax office, confirming the amount
in question. With regard to the airline tickets, the Respondent alleges to be
still waiting to receive the documents requested.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed whether it was
competent to deal with the case at hand. In this respect, it took note that the
present matter was submitted to FIFA on 5 December 2006. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2005, hereafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 18 par. 2 and 3 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
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to deal
with the matter at stake, which concerns an employment-related dispute with
an international dimension between a player and a Respondent.
3.
Furthermore, the Chamber analysed which regulations should be applicable as
to the substance of the matter. In this respect, it confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of
Players (edition 2008), and considering that the present claim was lodged on 5
December 2006, the previous version of the regulations (edition 2005;
hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The
members of the Chamber carefully studied the facts outlined above as well as
the entire documentation on file. In this respect, the Chamber acknowledged
that the two parties of the dispute did not contest that they concluded an
employment contract for the period 17 December 2003 to 16 December 2005 and
that they terminated the said contract by mutual consent on 15 April 2005,
agreeing on gross compensation payable to the player of USD 172,813.82 and the
reimbursement of the price of airline tickets for the player’s wife provided that he
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submitted to the Respondent a copy of the original invoice for the tickets and a
copy of her passport showing entry to and departure.
5.
With regard to the claimed amount of USD 47,468.80 corresponding to the
difference between the amount received by the player, USD 125,145.02, and the
amount contractually agreed upon, the Chamber acknowledged that the
player claimed that the Respondent had affirmed without proof that the gross
amount of USD 172,613.82 was equivalent to USD 125,145.02 after tax and
other deductions and that he was questioning why the Respondent did not
explain how it had made this calculation. The Chamber noted that the player
affirmed that unless it can legally justify the tax deducted, the Respondent
should pay the whole of the sum of USD 47,468,80.
6.
On the other hand, the Chamber took note of the fact that the Respondent
replied to this allegation that the tax imposed by the government was 27.5%,
corresponding to USD 47,468.80 and that in order to support its allegation, the
Respondent has submitted an official certificate from the tax office,
confirming the amount in question.
7.
In this respect and taking into consideration that the player never contested
that the amount contractually agreed upon in the termination contract
concluded between the parties on 15 April 2005 was gross, the members of the
Chamber retained that the Respondent proved in a credible manner that the
taxes to be deducted corresponded to the alleged amount of USD 47,468.80
and that there was no conceivable reason why it should doubt the originality
or the authority of the said confirmation provided by the Respondent.
8.
On account of all of the above, the members of the Chamber unanimously
decided to reject the player’s claim for USD 47,468.80. As a consequence, the
Chamber rejected any further claim for interest on the basis of this amount.
9.
As for the reimbursement of the airline tickets, the Chamber wished to
emphasise that the Respondent had never contested its obligation to refund
such tickets once being provided with the contractually agreed
documentation. Nevertheless, the Chamber remarked that the player was not
able to provide the Chamber with any documentary evidence proving that the
alleged flight costs had even effectively been generated.
10.
Consequently, the members of the Chamber concluded that the player was
unable to prove that the Respondent had a contractual obligation to refund
such airfare tickets and thus decided to reject the claim of the player for USD
5,000 as a reimbursement for airfare tickets.
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant J is rejected.
Note relating to the motivated decision (legal remedy):
According to art. 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
Enclosed: CAS directives
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