Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 6 August 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Carlos Soto (Chile), member
Caio Cesar Vieira Rocha (Brazil), member
Essa Saleh Al Housani (United Arab Emirates), member
on the claim presented by the player
R,
as Claimant
against the club
FC T,
as Respondent
regarding a contractual dispute
between the parties
I.
Facts of the case
1.
On 5 August 2005, the player, R (hereinafter: the Claimant), and the club, FC T
(hereinafter: the Respondent) concluded an employment contract (hereinafter:
the contract) valid as from 15 July 2005 until 15 July 2008.
2.
According to lit. J of the contract, the Claimant was entitled to receive a gross
monthly salary amounting to 310, equalling to less than USD 1, as well as other
bonuses. According to an annexe to the contract dated 5 August 2005, the
Claimant was entitled to receive an amount of USD 360,000 payable in several
instalments throughout the three years of the validity of the contract, i.e. USD
120,000 per year divided in four instalments of USD 30,000 each year.
3.
On 24 May 2006, the Claimant lodged a complaint against the Respondent before
FIFA claiming the payment of USD 43,000.
4.
In this respect, the Claimant alleged that, on 11 January 2006, the parties to the
dispute had mutually agreed upon the early termination of the contract.
5.
To corroborate his statement, the Claimant submitted to FIFA a correspondence,
dated 11 January 2006, addressed to the Claimant, duly signed by the Executive
Director and the Economic Director of the Respondent and containing the stamp
of the club, in which it was stated that the Respondent renounced to the
Claimant’s services. Furthermore, the aforementioned correspondence stipulates,
inter alia, the following: “2. We inform you that the amount of USD 43,000 will be
paid in your account latest on 31.01.2006. We will inform you when the payment
will be done by sending you an e-mail with an attachment of the pay order.”.
6.
FIFA contacted, on several occasions, the Respondent, via the R Football
Federation, and invited it to present its position to the claim lodged by the
Claimant.
7.
However, the Respondent never submitted any position to FIFA pertaining to the
Claimant’s claim.
8.
On 3 July 2009, FIFA informed both parties that the investigation in the present
matter had been closed and that it would be submitted to the competent deciding
body for consideration and a formal decision.
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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, the Chamber referred to art. 21 par. 1
and 2 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008). The present matter was submitted
to FIFA on 24 May 2006, thus before the aforementioned Rules entered into force
on 1 July 2008. Therefore, the Chamber referred to art. 18 par. 2 and 3 of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (DRC) (hereinafter: Procedural Rules; edition 2005) and
concluded that the 2005 edition of the Procedural Rules is applicable to the matter
at hand.
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 club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on 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 on the Status and Transfer of Players (edition 2008) and,
on the other hand, to the fact that the present claim was lodged on 24 May 2006
and that the relevant employment contract was signed on 5 August 2005. In view
of the aforementioned, the Dispute Resolution Chamber concluded that the 2005
version of the Regulations for the Status and Transfer of Players (hereinafter: the
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. In doing so,
the members of the Chamber firstly observed that the Respondent never took
position on the claim lodged against it by the Claimant, despite having been asked
to do so by FIFA on several occasions. Therefore, the Chamber underlined that, in
doing so, the Respondent renounced to its right to defence and, thus, accepted
the allegations of the Claimant.
5.
As a consequence, the members of the Chamber referred to art. 9 par. 3 of the
Procedural Rules and pointed out that in the present matter a decision shall be
taken upon the basis of the documents on file, in other words upon the
allegations and documents provided by the Claimant.
6.
In this respect, the Dispute Resolution Chamber started by acknowledging that, on
5 August 2005, the parties to the dispute concluded a contract providing for a
monthly salary of 310, equalling to less than USD 1. The Chamber also took due
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note that, on the same day, the parties to the dispute signed an annexe to the
contract, by means of which it was agreed that the Claimant was entitled to
receive a total amount of USD 360,000, payable in several instalments throughout
the validity of the contract.
7.
Furthermore, the members of the Chamber took note that the Claimant alleged
that, on 11 January 2006, the parties to the dispute had agreed to prematurely
terminate their contractual relationship.
8.
In continuation, the Dispute Resolution Chamber analysed thoroughly the
contents of the correspondence dated 11 January 2006 and submitted by the
Claimant in that regard. In this context, the Chamber acknowledged that the
Respondent, under the signature of its Executive Director and Economic Director,
declared renouncing to the Claimant’s services and owing the Claimant an amount
of USD 43,000. In that respect, the said correspondence stipulates, inter alia, the
following: “2. We inform you that the amount of USD 43,000 will be paid in your
account latest on 31.01.2006. We will inform you when the payment will be done
by sending you an e-mail with an attachment of the pay order.”.
9.
In this respect, the Dispute Resolution Chamber admitted that the contents of the
aforementioned correspondence, in particular with regard to the financial aspects,
was unambiguous.
10.
On account of the foregoing, in particular in view of the absence of a statement
from the Respondent, the Chamber had no other alternative but to consider the
aforementioned correspondence from the Respondent, dated 11 January 2006, as
a valid acknowledgement of debt of the Respondent in favour of the Claimant in
an amount of USD 43,000. In addition, and for the sake of completeness, the
Chamber was eager to emphasize that the correspondence at stake was signed by
two people having both the title of Director, which, in the absence of any
statement to the contrary, implied that this document validly bound the
Respondent.
11.
As a consequence, the Dispute Resolution Chamber concluded its deliberations on
the present dispute by deciding that the Respondent, FC T, has to pay to the
Claimant, R, an amount of USD 43,000.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, R, is accepted.
2.
The Respondent, FC T, has to pay to the Claimant, R, the amount of USD 43,000
within 30 days as from the date of notification of this 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, upon request, to FIFA’s Disciplinary Committee
so that the necessary disciplinary sanctions may be imposed.
4.
The Claimant, R, is directed to inform the Respondent, FC T, immediately and
directly of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
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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
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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