Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 September 2005,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Michele Colucci (Belgium), member
David Mayebi (Cameroon), member
John Didulica (Australia) , member
Philippe Diallo (France), member
Paulo Rogerio Amoretty Souza (Brazil), member
Eissa M. Selah Al-Housaini (U.A.E.) , member
Peter Friend (Australia), member
on the claim presented by the
Player X,
represented by Mr Z
as Claimant
against the
Club Y,
as Respondent
regarding outstanding remuneration on the
basis of an employment contract
./…
I.
Facts of the case
1.
The player, X, Claimant and the club, Y, Respondent concluded an employment
agreement on 14 June 2003 valid until 31 May 2005.
For the 2003/2004 season the Claimant was entitled to receive from the
Respondent:
-
Signing-on fee: USD 150’000 (to be paid in three instalments:
USD 50’000 upon signing the contract, USD 50’000 before leaving for
the pre-season camp and USD 50’000 after returning from the preseason camp)
-
Monthly salary: USD10’000 (for ten months, starting by the end of
August 2003)
For the 2004/2005 season the Claimant was entitled to receive from the
Respondent:
-
The amount of USD 100’000 (due on 15 June 2004)
Monthly salary: USD15’000 (for ten months, starting by the end of
August 2004)
2.
The Claimant, claimed that, despite several minor injuries in particular, problems
with his knee and an ingrown toenail, he has always done his best to properly
respect the Respondent’s instructions and comply with his obligations. He even
consulted, with the Respondent’s express authorisation, a specialist, in order to
receive the best possible treatment. Yet, after a defeat in the derby and the
change of the team’s coach, the Respondent had decided to expel him from the
first team’s squad. Therefore, he had no alternative but to train alone.
Furthermore, the Claimant maintained that he was not called for the Respondent’s
pre-season camp in winter. The Claimant claimed also that the Respondent tried to
force him to accept a premature termination of the employment contract at the
basis of the dispute on mutual agreement.
3.
According to the Claimant, the Respondent did only pay him part of the October
2003 salary (USD 4’000 instead of USD 10’000) and did not pay him his salary for
the months of November and December 2003 at all. Moreover, he could not cash
the check of USD 50’000 corresponding to the last instalment of the signing-on
fee.
4.
On account of the above, the Claimant demanded the payment of all outstanding
salaries until the unilateral termination of the employment contract by the
Respondent, i.e. 29 December 2003, thus USD 76’000. For the unilateral
termination of the employment contract without just cause, the Claimant asked
for compensation corresponding to the remaining value of the employment
contract until ordinary expiration on 31 May 2005, thus USD 300’000. Furthermore,
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he asked for a sanction to be imposed on the Respondent in accordance with art.
23 of the FIFA Regulations for the Status and Transfer of Players (edition
September 2001).
5.
The Claimant stressed that in its termination letter the Respondent did not
anyhow explain his alleged misconduct, which led to the cancellation of the
contract. In particular, the relevant document does not contain valid reasons for a
termination without notice. Moreover, no documents corroborating the
Respondent’s position were remitted to his attention together with the
communication, which put an end to the labour relation. On account of the
foregoing, the Claimant considered that the cancellation is null and void, due to
the missing justification. In this respect, he pointed out that the Respondent
explained its early termination of the employment contract for the first time when
having been asked by FIFA to reply to the claim he had lodged.
6.
The Claimant recalled that he had urged the Respondent to pay him the
outstanding salaries as well as compensation for the breach of the contract on 26
January 2004, thus already prior to lodging a complaint at FIFA. The Respondent
did, however, not offer any reaction to his correspondence.
7.
The Respondent explained that based on art. 5 of the employment contract, which
stipulates: “Player accepts to obey the rules and regulations of . Professional
Football Disciplinary Regulations” and on art. 20 and 21 of the club’s rules and
regulations, which, according to the Respondent, the Claimant had signed and
agreed to, on 19 December 2003 its board fined the Claimant with the amount of
USD 20’000 and expelled him from the squad for not having participated to
trainings and league matches without valid reasons. In particular, the Respondent
is of the opinion that an ingrown toenail does not justify his absences. Various
certified reports were remitted to FIFA, giving evidence for the Claimant’s absence
from training from 8 to 13 December 2003, from the league match against A on 14
December 2003, from the training camp held in Adana on 15/16 December 2003 as
well as from the cup match against B on 17 December 2003. The relevant decision
was sent to the Claimant on 25 December 2003.
8.
As a result, the Respondent is of the opinion that due to the Claimant’s repeated
non-fulfilment of his obligations, it was entitled to rescind the employment
contract on 29 December 2003.
9.
With regard to the third instalment of the signing-on fee, the Respondent
maintained that the check dated 30 July 2003 was handed out to the Claimant on
14 June 2003. Subsequently, he could cash USD 34’000 on 1 September 2003 and
USD 10’000 on 3 October 2003. Copies of the relevant receipts signed by the
Claimant were remitted to the attention of FIFA. A balance of USD 6’000 is
admitted. Yet, the Claimant did not return the relevant check. Consequently, the
Respondent pointed out that the Claimant is still in a position to cash the
outstanding amount.
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10.
With regard to the salaries, the Respondent claimed having paid the amount due
for August, September, October and November 2003, i.e. USD 40’000. In this
respect, it presented two receipts signed by the Claimant for the payment of
USD 39’930 and TRL 100’000’000 dated 24 November 2003.
11.
Furthermore, the Respondent stated that, although it was not contractually
agreed, it paid USD 10’200 for the renting of the Claimant’s accommodation,
USD 2’000 as guarantee to the Claimant’s landlord and USD 850 to the real estate
commission. These amounts were than charged to the Claimant.
12.
The Respondent deemed that it fully respected its contractual obligations, and
that it was the Respondent who breached the agreement. Consequently, the
Respondent requested compensation amounting to USD 250’000.
13.
With regard to the Respondent’s decision to impose a fine on the Claimant, the
latter emphasised that he had not been given the opportunity to defend himself
before the decision was taken. Consequently, his right to be heard had been
disregarded and the decision was null and void. Furthermore, in the Claimant’s
opinion the amount of the fine appears to be disproportionate, since it
corresponds to two monthly salaries.
14.
Referring to the Respondent’s allegation that he had left the club without
permission on 8 December 2003, the Claimant presented a declaration dated 15
July 2004 from Mr E, member of the Embassy, stating that he had driven the
Claimant to the training sessions during the month of December 2003, since, due
to the snow, the Claimant was not able to reach the training facilities alone. Yet,
the relevant document does not indicate any precise dates, on which the
transportation services were carried out. Furthermore, the Claimant explained that
he left Turkey on 23 December 2003 only, for Christmas holidays. This fact can be
verified by means of the stamp in his passport.
15.
The Claimant is of the opinion that, even if he had remained absent from certain
training sessions, the unilateral termination of the employment contract would
not be valid. In fact, the Respondent never warned him that in case of further
unexcused absences his contract would be rescinded.
16.
The Claimant, contested the authenticity of the receipts presented by the
Respondent in order to corroborate the payments on his favour. Some of them
bear a forged signature. Moreover, the Claimant claimed that the receipt dated 1
September 2003 had been altered. In fact, originally it confirmed the payment of
USD 4’000 only and not USD 34’000. The Claimant emphasised that the amounts
indicated on the receipts do not correspond to those stipulated in the employment
contract. Equally, the modalities of payment chosen by the Respondent, i.e. cash
payments with receipts, leave space for falsifications of the relevant documents.
Finally, the Claimant deemed that, if the receipts were genuine, the Respondent
would have presented them to him already in reply to his letter of 26 January
2004.
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17.
On 16 February 2004 FIFA, under the given circumstances in particular, the lack of
interest of both parties to continue with the employment relationship, advised the
parties to consider their labour relationship as terminated and the Claimant was
free to sign for another club of his choice.
18.
In its final submissions the Respondent, reiterated that the sanctions imposed on
the Claimant, in particular the fine, were justified and in full accordance with the
employment contract and the club’s rules and regulations. The Claimant, had been
informed of the relevant decision in due time through a notary public.
Furthermore, the Respondent emphasised that, prior to the remarks of his legal
representative to the answer filed by it the Claimant never contested the validity
of the fine.
19.
The Respondent stressed that the Claimant did not participate to the club’s
activities even after having been sanctioned. Therefore, the club’s board decided
to prematurely terminate the contract. Moreover, the Respondent explained that
even if the Claimant left Turkey on 23 December 2003 only, this does not prove
that he attended the trainings and matches during the relevant month.
20.
The Respondent pointed out that, following FIFA’s authorisation to sign for a new
club of his choice, the Claimant found a new employer in Norway by the end of
March 2004. Consequently, from the Respondent’s point of view, the Claimant’s
aim is now to gain double income for the same period of time.
21.
Finally, the Respondent referred to the medical report presented by the Claimant
and emphasised that it is dated 6 October 2003. According to the Respondent, the
Claimant participated to the match against D on 25 October 2003 and was part of
the squad also for the match against G on 22 November 2003. As a consequence,
the Respondent deemed that the remitted medical report cannot justify the
Claimant’s absences in December 2003.
II.
Considerations of the Dispute Resolution Chamber
1.
The Dispute Resolution Chamber reviews disputes coming under its jurisdiction
pursuant to Art. 42 of the FIFA Regulations for the Status and Transfer of Players
(edition 2001), at the request of one of the parties to the dispute.
2.
According to Art. 42, par. 1 lit. (b) (i) of the FIFA Regulations for the Status and
Transfer of Players (edition 2001), the triggering elements of the dispute (i.e.
whether a contract was breached, with or without just cause, or sporting just
cause), will be decided by the Dispute Resolution Chamber.
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3.
If an employment contract is breached by a party, the Dispute Resolution Chamber
is responsible to verify whether a party is accountable for compensation and
outstanding payments as well as whether sport sanctions must be imposed.
4.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a club and a player regarding
outstanding remuneration and compensation in connection with an employment
contract.
5.
Subsequently, and entering into the substance of the matter, the members of the
Chamber started by acknowledging that the Claimant and the Respondent had
signed an employment contract on 14 June 2003 valid until 31 May 2005.
6.
According to the relevant employment contract the Respondent agreed to pay to
the Claimant for the 2003/2004 season a signing-on fee amounting to USD 150’000
(to be paid in three
instalments: USD 50’000 upon signing the contract,
USD 50’000 before leaving for the pre-season camp and USD 50’000 after
returning from the pre-season camp) as well as a monthly salary amounting to
USD 10,000 during ten months starting by the end of August 2003. For the
2004/2005 season the Respondent agreed to pay to the Claimant the amount of
USD 100,000 on 15 June 2004 as well as a monthly salary amounting to USD 15,000
during ten months starting by the end of August 2004.
7.
In continuation, the Chamber acknowledged that the Claimant requested the
payment of all salaries as from October 2003 until the unilateral termination of
the employment contract by the Respondent, i.e. 29 December 2003 and the
amount of USD 50’000 corresponding to the last instalment of the signing-on fee,
thus USD 76’000, compensation amounting to USD 300’000 (corresponding to the
remaining value of the employment contract until the ordinary expiration on
31 May 2005) and a sanction to be imposed on the Respondent arguing that the
Respondent failed to fulfil its financial obligations towards him and therefore
breached the employment contract.
8.
Turning its attention to the Respondent’s position, the Chamber acknowledged
that, on the one hand, the Respondent provided receipts signed by the Claimant
for the payment of USD 39’930 and TRL 100’000’000 dated 24 November 2003
regarding the salaries for the months of August, September, October and
November 2003. On the other hand, regarding the claimed signing-on fee in the
amount of USD 50,000, the Chamber noted that the Respondent maintained that
the check dated 30 July 2003 was handed out to the Claimant on 14 June 2003 and
that the latter did not contest this fact and also never returned it.
9.
Moreover, the Chamber took due note that the Respondent request compensation
amounting to USD 250,000 due to the Claimant’s breach of the contract.
10.
Subsequently, the Chamber observed that on 29 December 2003 the Respondent
terminated the employment contract, since in its opinion the Claimant left the
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club without permission on 8 December 2003. On the other hand, the Chamber
acknowledged that the Claimant affirmed that he had tried to comply with his
obligations, but due to the weather conditions he was unable to reach the
training facilities and attend to the training camp. As a result, the Claimant is of
the opinion that the Respondent terminated the relevant employment contract
without just cause.
11.
In continuation, the Chamber turned its attention to the termination of the
contractual relation of the parties involved and to the compensation claimed for
the breach of contract by each party.
12.
In this respect, the Chamber acknowledged that, on the one hand, the Claimant
presented a declaration dated 15 July 2004 from Mr E, member of the Embassy,
stating that he had driven the Claimant to the training sessions during the month
of December 2003, since, due to the snow, the Claimant was not able to reach the
training facilities alone. Yet, the relevant document does not indicate any precise
dates, on which the transportation services were carried out. Furthermore, the
Chamber took due note that the Claimant explained that the Respondent never
warned him that in case of further unexcused absences his contract would be
rescinded. On the other hand, the Chamber duly considered the various certified
reports provided by the Respondent, giving evidence for the Claimant’s absence
from training as from 8 December 2003, as well as that based on the Claimant’s
absences the Respondent rescinded the employment contract on 29 December
2003.
13.
After long deliberations and taking into account the above as well as all
submissions made by both parties in this respect, the Chamber came to the
conclusion that the conduct of both parties lead to the early termination of the
relevant employment relation and that neither party can be held exclusively
responsibly for the breach of the relevant employment contract.
14.
As a result, the Chamber unanimously decided that the employment contract at
the basis of the dispute has come to an end in December 2003 due to the
reciprocally fault behaviour of both parties, and therefore, neither party can be
held liable to pay any compensation nor sanctioned in accordance with art. 23 of
the FIFA Regulations for the Status and Transfer of Players (edition September
2001).
15.
In continuation, the Chamber turned its attention to the Claimant’s claim with
regard to the alleged outstanding remuneration in relation to the salaries of the
months of October 2003 until December 2003. In this respect and first of all, the
Chamber emphasised that based on the fact that the employment contract has to
be considered as terminated as from December 2003 due to the reciprocally
responsibility of both parties, the Claimant is not entitled to receive the salary for
the said month. At the same time the Chamber for the same reasons did not
consider the fine imposed by the Respondent on the Claimant.
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16.
Then, the Chamber underlined that with regard to the alleged falsification of the
payment receipts provided by the Respondent regarding the salaries for the
months of August, September, October and November 2003, the Claimant
expressly renounced in his correspondence dated 22 November 2004 to provide a
graphologist expertise. In this respect, the Chamber pointed out that the present
body is not competent to decided whether a document is forged or genuine.
Moreover, the Chamber emphasised that each party is responsible to corroborate
its allegations and that in respect with the alleged falsification the Claimant
abstain from providing the pertinent evidence.
17.
As a result, the Chamber emphasised that based on the documents provided and
for lack of evidence of the contrary it has to be concluded that the Respondent
paid all salaries to the Claimant until the relevant employment contract was
terminated.
18.
Subsequently, the Chamber turned its attention to the Claimant’s claim in the
amount of USD 50,000 corresponding to the last instalment of the signing-on fee
and underlined that a check dated 30 July 2003 was handed out to the Claimant
on 14 June 2003 and that the latter did not contest this fact and also never
returned it. Nevertheless, the Chamber underlined that the Respondent admitted
that in this respect the amount of USD 6,000 is still outstanding.
19.
As a result, the Chamber concluded that the Respondent should pay the amount
of USD 6,000 to the Claimant and that the latter should return the check dated 30
July 2003 in the amount of USD 50,000 to the Respondent.
20.
Taking into account all of the above, the Dispute Resolution Chamber established
that the employment contract at the basis of the dispute had come to an end in
December 2003 and that apart from the amount of USD 6,000 payable by the
Respondent to the Claimant, neither party should be held responsible to pay any
further amount to the other. Finally, the Dispute Resolution Chamber decided
that the Claimant must return the check dated 30 July 2003 to the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, Mr X, is partially accepted.
2.
The Respondent shall pay the total amount of USD 6,000 to the Claimant, within
30 days following the date of the communication of the present decision.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply and the present matter shall
be submitted to FIFA’s Disciplinary Committee, so that the necessary disciplinary
sanctions may be imposed.
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4.
The Claimant is instructed 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 of every payment received.
5.
Any further claims lodged by the Claimant are rejected.
6.
The Claimant is ordered to immediately return to the Respondent the check he
received amounting to USD 50,000.
7.
The counterclaim lodged by the Respondent, Club Y, is rejected.
8.
According to art. 60 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 10 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:
Avenue de Beaumont 2
CH-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:
Urs Linsi
General Secretary
Encl.
CAS directives
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