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
Caio Cesar Vieira Rocha (Brazil), member
Carlos Soto (Chile), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
on a claim presented by the player
V,
as Claimant
against the club
G,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts of the case
1.
The player V (hereinafter: the Claimant), born on 12 June 1986, concluded an
undated employment contract (hereinafter: first contract) in English with the club G
(hereinafter: the Respondent), valid from 1 February 2009 to 20 November 2010,
with a monthly salary of USD 4,500 to be paid on the 10th day of every month, plus
a signing fee of USD 2,500, payable at the signature of the first contract.
2.
On 15 February 2009, the Claimant and the Respondent concluded another
employment contract (hereinafter: second contract) in A, valid from the date of
signature until 15 November 2010. According to the second contract, the monthly
salary is specified in its Appendix No. 1.
3.
Clause II.1.1. of the first contract provides that the Respondent is obliged to pay to
the Claimant one return air-ticket Y to B for the season 2009-2010.
4.
Clause II.3.15. of the first contract stipulates that if the Respondent delays its
payments for more than 30 days, it will have to pay to the Claimant 3 salaries,
amounting to a total of USD 13,500, and that the Claimant will automatically be
free.
5.
Clause IV.2. of the first contract states that the contract is drawn up in 3 copies, i.e.
in X and English respectively.
6.
On 21 May 2009, the Claimant lodged a claim against the Respondent for breach of
contract without just cause and asked FIFA to confirm the termination of the first
contract. Additionally, the Claimant claimed:
- outstanding salaries amounting to USD 11,000 corresponding to:
a) February 2009: USD 2,000;
b) March 2009: USD 4,500;
c) April 2009: USD 4,500;
- compensation in accordance with clause II.3.15. of the first contract,
amounting to USD 13,500;
- his return flight ticket from Y used on 29 April 2009, amounting to USD
751;
- 5% interest per annum on the amount of USD 25,251 as from 8 May 2009;
- to consider if, according to Swiss law, a compensation amounting to USD
84,000 is due, being this the whole amount of the contract plus interests
of 5% per annum on the aforementioned amount.
- as well as disciplinary sanctions to be imposed on the Respondent.
7.
According to the Claimant, on 1 February 2009 he received a signing fee of USD
1,500 instead of USD 2,500. For that payment there was no receipt. The salaries of
March 2009 and April 2009 remained outstanding, yet the Claimant received USD
1,500 on 24 March 2009 and USD 2,000 on 27 April 2009 as partial payments. With
regard to these partial payments the Claimant alleged that USD 1,000 corresponded
to the rest of the signing fee and USD 2,500 to a partial payment of the salary of
February 2009.
8.
On 29 April 2009, invoking clause II.3.15. of the first contract, the Claimant left the
Respondent due to the Respondent’s allegedly unfulfilled financial obligations and
after having supposedly been threatened to be deported to the police (since the
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Claimant’s work permit had apparently not been arranged) if he did not sign a
declaration in A (a language he did not understand), apparently a waiver.
Additionally, the President of the Respondent allegedly made a proposal which
would have decreased the Claimant’s salary to USD 3,000 and which the Claimant
did not wish to accept.
9.
In addition, the Claimant asserted that instead of the X version of the contract, an
A version had been signed, but not given to him.
10. In its response to the claim, the Respondent stated that it was still interested in the
services of the Claimant, who left the Respondent unexpectedly and without just
cause. Therefore, the Respondent claims economical and sporting sanctions to be
imposed on the Claimant in accordance with art. 17 of the Regulations on the
Status and Transfer of Players.
11. Moreover, the Respondent asserted that the first contract is not valid, since it is in
fact a copy of a contract of other players who also left the club and whose
signatures are on every page of the contract and not only on its last page, as it is
the case in the contract provided by the Claimant. In addition, the Respondent
stated that its President’s signature is falsified. According to the Respondent, the
only contract which was affectively duly signed by the parties to the present
proceeding is the second contract.
12. With regard to its financial obligations, the Respondent alleged having paid all
salaries in accordance with the second contract. In this respect, the Respondent
presented a receipt for the following payments:
-
USD 1,500 paid on 15 February 2009;
USD 3,000 [sic!] paid on 20 March 2009;
USD 3,500 paid on 27 [sic!] April 2009.
13. In his rejoinder, the Claimant remarked that the first contract bears the
Respondent’s stamp and its President’s signature as well as his own signature.
Therefore, it is a valid contract. As a separate remark, the Claimant asserted that it
is common use to additionally sign another contract for internal use of the club. In
those cases, the player receives at least a translation. Yet, in the present case, the
first contract is not a translation in the aforementioned sense but the original
version of the contract. Moreover, the second contract contains no financial terms,
which, according to its wording, should be in the contract’s Appendix. Such
Appendix was, however, never signed by neither of the parties.
14. In addition, the Claimant alleged that his signature in the payment receipt is
falsified as well as the receipt itself. According to the Claimant, it seems that the
same person who wrote the payment receipt also signed under the Claimant’s
name and that the same pen was used in the whole text. In this respect, the
Claimant also pointed out that the signatures on the receipt appear to be identical,
even though a period of time of one month had elapsed between each of the
alleged signatures. Additionally, the document bears neither the Respondent’s
stamp nor emblem, which could mean that the said document is merely a pay slip.
15. In its reply to the Claimant’s rejoinder, the Respondent emphasized that the only
validly signed contract was the second one, in A language. Furthermore, a
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translation into English was allegedly given to the Claimant, who, after having
received the said translation, proceeded to sign the second contract. Furthermore,
the Respondent holds that, originally, it and the Claimant agreed upon a monthly
salary of USD 4,500, but that the Appendix of the second contract containing its
financial terms was not signed since it was agreed that the Claimant’s salary would
depend on his performance.
16. The Respondent asserted having paid USD 1,500 upon the second contract’s
signature and USD 3,500 [sic!] on 20 March 2009. Since the Claimant did not have a
good performance, he agreed to have his salary decreased to USD 3,500. Therefore,
USD 3,500 had been paid on 28 [sic!] April 2009. Consequently, taking into account
the bad performance of the Claimant, the parties allegedly further agreed on a
salary decrease to USD 3,000.
17. According to the Respondent, after receiving his April salary, the Claimant left the
Respondent without a termination notice.
18. In its last position, the Claimant referred once again to the flight ticket, stating that
its cost amounted to EUR 445 plus taxes. Additionally, the Claimant asserted that in
accordance with art. I of the first contract and art. 8.2 of the second contract any
amendment to the respective contract should be agreed in writing. Therefore, the
alleged oral agreements do not comply with this prerequisite.
19. Moreover, the Claimant stated that he never received the translation of the A
version of the contract. In this respect, the Claimant remarked that the referred
version does not contend any financial terms.
20. In response to the Claimant’s final position, the Respondent asserted once again
that there is no contract in English and that the relevant translation from the A
version was delivered to the Claimant. Moreover, the Respondent asserted having
duly paid all salaries until the Claimant left the Respondent as orally agreed.
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
initially submitted to FIFA on 21 May 2009. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. art. 21 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 shall adjudicate on
employment-related disputes between a club and a player of an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation involving a S player and an A club regarding an
employment-related dispute between the parties.
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4.
In continuation, the Chamber analysed which regulations 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 one of the contracts at the
basis of the present dispute was undated, yet, the other contract at stake was
signed on 15 February 2009. In this regard, the Chamber equally pointed out that
the claim was lodged at FIFA on 21 May 2009. In view of the foregoing, the
Chamber concluded that the 2008 edition of the regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
5.
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 started by acknowledging that, on the one hand, the parties
apparently concluded an employment contract in English and that, on the other
hand, the parties apparently concluded another employment contract in A.
6.
After a careful examination of both versions of the employment contract, and
taking into consideration the statements of both the Claimant and the Respondent
according to which the Appendix of the second contract containing its financial
terms had never been signed, the Chamber concluded that the contract in A
language should not be taken into consideration, since its provisions did not
provide for any financial terms, a fact which basically deters the Chamber from
clarifying the financial dispute between the parties involved in the matter at stake.
Thus, the members of the Chamber only considered the English contract for their
deliberations.
7.
In continuation, the Chamber took due note that the Respondent vehemently
contested the validity of the first contract and explained that the signature of its
President had been falsified.
8.
In this respect, the Chamber emphasized that, as general rule, it is not the
competent body to decide upon matters of criminal law, such as the alleged
falsification of a signature or a document, but that such affairs rather fall into the
jurisdiction of the competent national criminal authority.
9.
Yet, based on the documentation currently at its disposal, the Chamber looked at
the relevant original contract in English and noted that it bore the stamp of the
Respondent and that the Respondent’s President’s signature appeared to be
identical to the signatures on other documents provided by the Respondent.
10. In view of all of the above, the Chamber unanimously came to the conclusion that,
since not proven otherwise by the competent national criminal authority, the first
employment contract, drafted in English language, is to be taken into account for
the present dispute.
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11. In continuation, the Chamber turned its attention to the payment receipt provided
by the Respondent, the validity of which was contested by the Claimant. In this
respect, the Chamber took note that according to the Claimant, it seems that the
same person who wrote the payment receipt also signed under the Claimant’s name
and that the same pen was used in the whole text. In this respect, the Claimant also
remarked that the signatures on the receipt appear to be identical, even though a
period of time of one month had elapsed between each of the alleged signatures.
12. In this context, the members of the Chamber again emphasized that, as general
rule, it is not the competent body to decide upon matters of criminal law, such as
the alleged falsification of a signature or a document, but that such affairs rather
fall into the jurisdiction of the competent national criminal authority.
13. However, after having carefully and scrupulously examined the relevant original
payment receipt provided by the Respondent and after having compared the
Claimant’s signatures on the original payment receipt with the Claimant’s signature
on other documents on file, the Chamber noted that the Claimant’s signature on
the alleged receipt of payment does not appear to be identical with the Claimant’s
signature on the other documentation at the Chamber’s disposal. Additionally, the
Chamber noted that it appeared that the same person who wrote the payment
receipt also signed under the Claimant’s name and that even though a period of
time of approximately one month had elapsed between each of the alleged
signatures contained on the said receipt, they appeared to be identical among
themselves. As a result, the Chamber concluded that it appears very unlikely that
the Claimant could have signed the aforementioned document, and therefore, the
aforesaid payment receipt cannot be taken into account.
14. In continuation, the Chamber, on the one hand, took note that the Claimant
requested allegedly outstanding salaries based on the financial terms stipulated in
the first contract.
15. On the other hand, the Chamber took due note that the Respondent asserted that,
originally, it and the Claimant agreed upon a monthly salary of USD 4,500, but that
the Appendix of the second contract containing its financial terms was not signed
since it was agreed that the Claimant’s salary would depend on his performance.
Therefore, according to the Respondent, taking into account the alleged bad
performance of the Claimant, the parties further agreed on a salary decrease to
USD 3,500 and, at a later stage, to USD 3,000.
16. In this respect, the members of the Chamber held that since both parties seemed to
disagree on the exact amount of money to which the Claimant was entitled to
receive by the Respondent and since the Claimant had provided an employment
contract containing financial terms, whereas the Respondent has only based its
allegations on its own statements without providing any documentary evidence in
support of its position, the Chamber turned its attention to the financial terms
stipulated in the first contract and acknowledged that according to the said
contract the Claimant is entitled to receive a monthly salary of USD 4,500 to be paid
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on the 10th day of every month, plus a signing fee of USD 2,500, payable at the said
contract’s signature.
17. Finally, the Chamber took into consideration that the Claimant alleged having
received a signing fee of USD 1,500 instead of USD 2,500 and that his salaries of
March 2009 and April 2009 remained outstanding, yet he admitted to have received
USD 1,500 and USD 2,000 as partial payments pertaining to the above-said
outstanding monies.
18. In view of all of the above, and taking into account the partial payments received
by the Claimant in accordance with his own allegations, the Chamber concluded
that the Respondent has breached the first contract without just cause and should
therefore be held liable to pay the relevant outstanding salaries pertaining to part
of the month of February 2009 (USD 2,000), to the months of March and April 2009
(USD 4,500 for each month) as well as compensation for breach of contract without
just cause to the Claimant.
19. In this connection, the Chamber referred to art. 17 par. 1 of the Regulations, and
emphasised that, first of all, it had to clarify as to whether the relevant employment
contract contains a provision by means of which the parties had beforehand agreed
upon an amount of compensation for breach of contract, payable by the party
responsible for such breach.
20. Thus, the Chamber took note that the clause II.3.15. of the first contract stipulates
that if the Respondent delays its payments for more than 30 days, it will have to pay
to the Claimant 3 monthly salaries, amounting to a total of USD 13,500.
21. In this context, the Chamber concluded that since the Respondent was not able to
prove that it duly complied with its financial obligations provided for in the first
contract, the relevant compensation should be calculated based on the
aforementioned provision, i.e. as agreed beforehand by the parties.
22. Also, the Chamber acknowledged that the Claimant is, in addition, claiming the
reimbursement of his flight ticket from Y to B. In this respect, the members of the
Chamber took note that the clause II.1.1. of the first contract provides that the
Respondent is obliged to pay to the Claimant one return air-ticket Y to B for the
season 2009-2010. In light of the said provision, the Chamber concluded that the
Respondent has to reimburse the costs in which the Claimant incurred in order to
pay his return flight ticket.
23. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of USD 11,000, plus interests at the rate of 5% per year as from 8
May 2009, as outstanding salaries, the amount of USD 13,500 as compensation for
breach of contract and the amount of USD 751 for the Claimant’s return flight
ticket, in accordance with the provisions established in the first contract.
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24. Finally, the Dispute Resolution Chamber concluded its deliberations in the present
matter by establishing that any further claims lodged by the Claimant and/or the
Respondent are rejected.
25. To conclude, and for the sake of good order, the Chamber emphasised that the
contractual relationship between the parties to the present dispute had come to an
end.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, V, is partially accepted.
2.
The Respondent, G, must pay to the Claimant, V, the amount of USD 11,000, plus
interests at the rate of 5% per year as from 8 May 2009, within 30 days as from
the date of notification of this decision.
3.
If the aforementioned amount (cf. no. 2 above) is not paid within the
aforementioned time limit, the matter will be submitted, upon request, to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be imposed.
4.
The Respondent, G, must pay to the Claimant, V, the amount of USD 14,251, within
30 days as from the date of notification of this decision.
5.
If the aforementioned amount (cf. no. 4 above) is not paid within the
aforementioned time limit, an interest rate of 5% per year as of the expiry of the
fixed time limit will apply and the matter will be submitted, upon request, to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be imposed.
6.
The Claimant, V, is directed to inform the Respondent, G, 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.
7.
The contractual relationship between the Claimant, V, and the Respondent, G, is
declared dissolved.
8.
Any further request filed by the Claimant, V, is rejected.
*****
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Note relating to the motivated decision (legal remedy):
According to article 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
Encl.
CAS directives
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