Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
John Didulica (Australia), Member
Theo van Seggelen (Netherlands),Member
Essa M. Saleh Al Housani (United Arab Emirates), Member
Philippe Diallo (France), Member
on the claim presented by the
Player X, XX,
as Claimant
against the club,
Y, YY,
as Respondent
regarding a contractual dispute arisen between the parties involved.
I.
Facts of the case
1.
On 25 March 2003, the XX player X and the YY club, Y, signed an employment
contract valid as from 26 March 2003 until 24 March 2006.
2.
According to the relevant employment contract, the club undertook to pay to
the player a monthly amount of KK 1’000.00. The aforementioned monthly
salary was set for the period of six months and should have been, after each
period of six months and after consideration of the player’s sporting
achievements, reviewed and changed by the parties. In this respect, the club
pledged to increase the monthly amount due to the player by at least 10
percent after each reconsideration. Furthermore, it was stipulated that the
monthly payments were due until the 28th calendar day of each month.
3.
Moreover, the player was entitled to bonuses for results achieved, the amount
of which should be established by the club’s administration. In addition, the
player had the right to a furnished two-room apartment in the city of Vilnius,
where one room should exceptionally be separated for the player, and the rent
of which should be covered by the club. It was also agreed that the player
should receive, during the whole duration of the contract, one flight ticket for
every period of twelve months on the itinerary YY-XX-YY. Finally, the player was
entitled to 28 calendar days leave per year, which, depending on the club’s
fixture list, should be taken in one period, as far as possible. The said leave
should primarily be taken during the match-free periods and had to be agreed
upon with the club.
4.
On 17 and 29 November 2005, the player lodged a formal claim in front of FIFA
and explained that the club had failed to respect its obligation with respect to
salary, bonus and rental payments and in particular with regard to his right to
take a 28 days leave per year according to the employment contract.
5.
The player maintained in particular that the club failed to pay him the UEFA
Intertoto bonuses since last year in the amount of KK 7’000.00. The
aforementioned amount had been, according to the statement of the player,
received by the other members of the team. Moreover, the player affirmed
that he was not paid his salaries in accordance with the employment contract,
in particular, the clauses based on which the club should increase the salary by
10 percent every 6 months. During the course of the procedure, the player
specified the outstanding amounts and finally, by means of his communication
dated 19 June 2006, claimed as follows:
Player X, XX/ Club Y, YY
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KK 310.00 salary for March 2006; he alleged having received
only KK 1’300.00 instead of KK 1’610.00.
costs for his efforts in the present proceedings: KK 2’000.00.
return ticket to XXafter the expiry of the contract, which he
had to pay on his own: KK 4’000.00.
transportation costs for bus fare between Gatwick Airport and
Heathrow Airport when he was travelling to XXon his holidays
in December 2005; KK 152.00.
6.
Therefore, the total outstanding amount the player is claiming is KK 13’462.00.
7.
Moreover, the player explained that he did not receive the accommodation
agreed upon in the employment contract, i.e. furnished two-room apartment in
the city of YY, where one room should exceptionally be separated for him, but
was removed from the apartment and put in a family house instead.
8.
Finally, the player stressed that he had not been provided with a flight ticket in
order to take his 28 days annual leave for the last season, which, according to
the player, had always been from the first week in December to the first week
of January of the following year, the time when the preseason began.
9.
In reply thereto, the club rejected the player’s allegations and informed that
during the contractual relationship between the parties involved, the player
had changed his place of residence five times, given that neighbours of the
rented apartments were constantly complaining about the player’s attitude.
10.
Moreover, the club is of the opinion that the player totally ignored the interest
of the club by participating in the “…”-Advertisement clip in 2005 without prior
approval of the club and thus violated the provisions contained in the
employment contract.
11.
The club also explained that the player missed several trainings, A-league
competition and ..1st league competition matches of the club and thereby
also violated the employment contract (no documentary evidence provided).
12.
With regard to the payment of the salary, the club maintained that it paid the
player KK 1’130.00 monthly in order to motivate the player to better
performance although it was stipulated in the employment contract that the
player would only receive KK 1’000.00. In this respect, the club added that the
player lost his sporty form during the season 2005 and did not manage to be in
the squad of the A-team.
Player X, XX/ Club Y, YY
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13.
Regarding the air tickets, the club informed that during the period of the
contract, the player already received twice air tickets for his vacations. Since
the club arranged training sessions until 2 December 2005, vacations could only
be arranged as from 5 December 2005.
14.
In his second statement, the player contested the statements made by the
club. The player, inter alia, maintained that he was forced to change his
apartments for reasons not linked to his behaviour but rather because the club
failed to pay the rental charges.
15.
Furthermore, the player provided a letter from “…” and signed by the assistant
film director, confirming that he received information and permission from the
agent of the player to act in the creation of the “…”-Advertisement. Moreover,
the player maintained that he never lost his sporting skills but rather was not
allowed to play with the A-team only because he refused to sign the extension
of his contract.
16.
The player was also of the opinion that he should have received KK 1’610.00 as
a monthly salary as from September 2005 based on the minimum percentage
increment agreed upon in the employment contract. In this respect, the player
stated that there had not been any problems as to the increment of his salary
from March 2003 until November 2005, when he was paid only KK 1’400.00 for
October and KK 1’400.00 for November 2005. In this respect, he added that he
had even received KK 1’600.00 for September 2005 when the latest increment
became effective.
17.
Regarding the annual leave, the player confirmed that he was given air tickets
twice for his vacation during the 2003 and 2004 season, respectively. Allegedly,
the player was informed by the president of the club that the club would not
allow him to go on holidays for the season 2005 and that no flight ticket would
be purchased since his contract would anyway expire in March 2006.
18.
In its last response and with regard to the rental of the apartments, the YYn club
reaffirmed that neighbours constantly complaint about the player’s behaviour
and noise at night. In this respect, the club alleged having had to pay penalties
for non-adherence to the rental conditions.
19.
Furthermore, the club mentioned that it paid all the remuneration to the bank
account of the player and informed that if FIFA wishes, it could address the
bank with the request to provide the specified report in order to show that the
club accurately effected the payments to the player.
Player X, XX/ Club Y, YY
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20.
With regard to the increase of the player’s salary, the club referred to the
relevant paragraph of the employment contract, and emphasized that the
player’s remuneration would be increased after taking into consideration the
player’s sporting achievements and upon the mutual agreement between the
parties. However, the player mostly played in the second team of the club and
in particular, no mutual agreement for the increment of the remuneration was
ever signed.
21.
Finally, the club paid the player a two-way ticket on 23 December 2005 in order
for him to take holidays.
22.
With regard to the player’s participation in the “…”-Advertisement, the club
reaffirmed that it was not informed about the player’s participation therein.
Moreover, the said advertising project appeared to be even commercial.
Therefore, the club deemed that the player violated the employment contract
again and in particular its paragraph 3.2.(“The Player authorizes the Club to use
his name, picture and video images for the common Club’s marketing.”)
Player X, XX/ Club Y, YY
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II.
Considerations of the Dispute Resolution Chamber
a) As to the competence of the Dispute Resolution Chamber
1.
First of all, the 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 17
respectively 29 November 2005, 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 employmentrelated disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a XX player (hereinafter: the
Claimant) and a YYn club (hereinafter: the Respondent) 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 2005) and, on the other hand, to the fact that the relevant
contract at the basis of the present dispute was signed on 25 March 2003 and
the claim was lodged at FIFA on 17 and 29 November 2005 respectively. 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.
Player X, XX/ Club Y, YY
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b) As to the substance of the present dispute
5.
Entering into the substance of the matter the members of the Chamber
acknowledged the documentation contained in the file, and in view of the
circumstances of the matter at stake, focused its considerations on the question
whether the Respondent, as ascertained by the Claimant, did not fulfil its
financial obligation on the basis of the employment contract concluded
between the parties.
b1) Payment of the Claimant’s salaries
6.
In this respect, the members of the Chamber started by acknowledging that
the Claimant and the Respondent signed on 25 March 2003 an employment
contract with validity until 24 March 2006. Furthermore, it was observed by the
members of the Chamber that the employment contract foresaw in its art. 4
par. 1 the remuneration due to the Claimant. Considering the aforementioned
article of the employment contract, the members of the Chamber observed
that the Respondent pledged to pay the Claimant a monthly salary of KK
1’000.00, a salary which is set for the period of six months. After the period of
every six months, and after consideration of the Claimant’s sporting
achievements, the parties must oversee and change this monthly amount. The
Respondent pledged to increase the monthly salary due to the Claimant by at
least 10 percent after each consideration.
7.
With regard to the issue of allegedly outstanding salary payments due to the
Claimant, the members of the Chamber took note of the Claimant’s allegation
that the Respondent had failed to pay him regularly the salaries and finally, by
means of his communication dated 19 June 2006, maintained that the
Respondent had failed to pay him the entire salary for March 2006, having
received only the amount of KK 1’300.00 instead of KK 1’610.00.
8.
In this respect, the members of the Chamber referred to the “Statement on
mutual settlement” dated 7 March 2006 and remitted to the file by the
Claimant. In accordance with the contents of the said documents duly signed
by the Claimant and the Respondent, the Claimant literally covenanted that
“the player (the Claimant) does not have any claims towards the team of the
YY (the Respondent)”. Moreover, the Claimant handwritten indicated that he
received “all outstanding payment for my salary”.
Player X, XX/ Club Y, YY
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9.
Having duly studied this documents, the deciding body reached the conclusion
that this document must be considered as a waiver duly signed by the
Claimant. That is, by signing the said document, which refers explicitly to the
employment contract the parties entered into, the Claimant waived its right for
salary payments that he may have towards the Respondent on the basis of the
relevant employment contract.
10.
The Chamber could not grasp how the Claimant could have signed this
document should he have not received his salaries for the entire duration of the
employment contract.
11.
Notwithstanding the above, the members noted that the Claimant could not
corroborate with documentary evidence that the parties mutually agreed, in
accordance with the employment contract, to increase his salaries up to the
amount of KK 1’610.00 and that the latter therefore failed to pay him such an
increased salary instead of the received amount of KK 1’300.00 as confirmed by
him.
b2) Right to other contractual benefits
12.
In continuation, the Chamber noted that the Claimant maintains being entitled
to receive UEFA Intertoto Bonus in the amount of KK 7’000.00, a bonus that other
players of the Respondent apparently received.
13.
To that regard, the members of the Chamber referred to the contents of the
employment contract signed between the Claimant and the Respondent and
recognized that they could not found any indications in the said employment
contract assigning the UEFA Intertoto Bonus to the Claimant as claimed by him.
14.
In this connection, the Chamber stated that in accordance with the legal
principle of the burden of proof, which is a fundamental part of every legal
system, a party asserting a fact has the obligation to prove the same.
15.
In accordance with the above-mentioned principle, the Claimant has the
burden of proof regarding his right to receive the claimed UEFA Intertoto Bonus.
16.
The deciding body noted, however, that the Claimant had never remitted any
written evidence to the file regarding the UEFA Intertoto Bonus and therefore
could not uphold the position of the Claimant in this respect.
Player X, XX/ Club Y, YY
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17.
In continuation, the members noted that the Claimant demanded also to be
refunded the costs for his transportation costs between ..Airport and ..Airport.
18.
Applying the principle of the burden of proof, the deciding body had also to
reject this claim of the Claimant.
19.
Moreover, the Chamber noted the Claimant’s statement that the Respondent
did not pay the costs for his travel back to XX after the expiry of the
employment contract.
20.
To that regard, the members of the Chamber considered that the employment
contract did not foresee that the Respondent had to bear the costs for the
Claimant’s travel costs after the end of the contractual duration (emphasize
added). Moreover, taking into account the principle regarding the burden of
proof, the deciding body concluded that it has also to reject this claim put
forward by the Claimant.
21.
Finally, turning its attention to the reimbursements of expenses claimed by the
Claimant for his efforts in the present procedure, the Chamber referred to its
well established jurisprudence in accordance with which no procedural
compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Furthermore, the members stated that the Claimant did
not quantify these compensations at all, nor provided FIFA with any proving
document. Consequently, the Chamber decided not to award such claimed
expenses.
22.
In view of the all the above, the deciding body held that it had to reject the
claim submitted by the Claimant.
Player X, XX/ Club Y, YY
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player X, is rejected.
2.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision
and has to contain all elements in accordance with point 2 of the directives
issued by the CAS, copy of which we enclose hereto. Within another 10 days
following the expiry of the time limit for the filing of the statement of appeal, the
appellant shall file with the CAS a brief stating the facts and legal arguments
giving rise to the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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:
Urs Linsi
General Secretary
Encl: CAS directives
Player X, XX/ Club Y, YY
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