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
Philippe Diallo (France), member
Essa M. Saleh Al-Housani (U.A.E.), member
Theo van Seggelen (the Netherlands), member
John Didulica (Australia), member
on the claim presented by the player
X, xxxx
Represented by xxxxx, attorney at law
as Claimant
against the club
Y, xxxxx
as Respondent
regarding outstanding remuneration
on the basis of an employment contract
I.
Facts of the case
1.
On 21 February 2005 the player X, the Claimant, and the club Y, the
Respondent, signed an employment contract with an undetermined duration
starting on 10 February 2005.
2.
According to the undated additional act to the employment contract duly
signed between the Claimant and the Respondent the duration of the
employment contract was as from 10 March 2005 until 30 June 2007. Moreover,
the Respondent agreed to pay to the Claimant, from 10 March 2005 up to 30
June 2005, the amount of EUR 3,000 net per month. For the time as from 1 July
2005 until 30 June 2006, the Claimant was entitled to the amount of EUR 60,000,
of which EUR 6,000 net in advance and the remaining amount of EUR 54,000 in
equal monthly installments. For the time as from 1 July 2006 until 30 June 2007,
the Claimant was entitled to the amount of EUR 80,000, of which EUR 8,000 net
in advance and the remaining amount of EUR 72,000 in equal monthly
installments.
3.
According to art. 5 of the duly signed additional act to the employment
contract the Claimant can unilaterally terminate the employment contract until
30 June 2006 by paying the amount of EUR 150,000 to the Respondent.
4.
On 5 April 2005, the Claimant informed FIFA that the club still owes him EUR
6,000 (salary for March and April 2005). Moreover, the Claimant pointed out
that he never received a copy of the employment contract, but only a copy of
the annex.
5.
On 20 May 2005, the Respondent pointed out that the Claimant is not a
member of its team and does not have any contractual relationship with it. As a
result, the Respondent is of the opinion that it does not owe any amount at all
to the Claimant.
6.
On 27 June 2005, the Respondent further explained that as the Claimant was
not able to produce his documents necessary to issue the working permit in due
time, his contract could not be registered with the Professional Football League.
Consequently, the relevant contract is void. Furthermore, the Respondent
stressed that although it could not count on the services of the Claimant, it paid
him the amount of USD 1,000 so that he could cover his travel expenses. As a
result, the Respondent contested its obligation to pay any further remuneration
to the Claimant.
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7.
On 14 July 2005, the Claimant contested the club’s position and explained that
it is the Respondent’s responsibility to make any necessary investigation, or to
take any appropriate action, before concluding the contract in order to
legalise the residence of the player in xxxxx. As a result, the Claimant requests
the total amount of EUR 9,000 for the time as from 10 March 2005 until 30 June
2005 plus compensation.
8.
On 1 August 2005, the Respondent contested the Claimant’s position regarding
its responsibility to make any necessary investigation, or to take any appropriate
action, before concluding the contract in order to legalise the residence of the
Claimant in xxxxxx. The Respondent once again pointed out that the Claimant
failed to provide the club with the necessary documents required to issue the
work permit in due time.
9.
On 24 August 2005, the Respondent provided a copy of the duly signed
employment contract and pointed out that the Claimant never requested a
copy.
10.
On 5 September 2005, the Claimant again referred to his previous submissions
and explained that since he arrived in xxxx he has not been registered with any
club because the xxxxx Championship already started in January 2005. As a
result, the Claimant requests the total amount of EUR 9,000 for the time as from
10 March until 30 June 2005 plus compensation.
II.
Considerations 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 5 April 2005,
as a consequence the Chamber concluded that the previous Procedural Rules
(edition 2001) on matters pending before the decision making bodies of FIFA
are applicable on the matter at hand.
2.
With regard to its competence, the Chamber indicated that, as established in
art. 42 par. 1 lit. (b) (i), and (ii) of the FIFA Regulations for the Status and Transfer
of Players (edition 2001), it falls within the purview of the Dispute Resolution
Chamber to determine whether one of the parties has committed a unilateral
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breach of contract with or without just cause and if so, to verify whether this
party is accountable for outstanding payments and whether financial or sport
sanctions must be imposed.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving a club from Romania and a Brazilian
player regarding a claim concerning outstanding remuneration 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 in February 2005 and
the claim was lodged at FIFA in April 2005. In view of the aforementioned, the
Chamber concluded that the former FIFA Regulations for the Status and
Transfer of Players (edition 2001, hereafter: the Regulations are applicable to
the case at hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging that none of the parties contests that
an employment contract was signed between them based on which the
Claimant was entitled to receive for the time as from 10 March 2005 up to 30
June 2005, the amount of EUR 3,000 net per month.
6.
The Chamber took due note that the Claimant requests the total amount of
EUR 9,000 for the time as from 10 March until 30 June 2005 plus compensation.
7.
Yet, the Chamber took due note of the fact that the Respondent argued that
as the Claimant was not able to produce his documents necessary to issue the
working permit in due time, his contract could not be registered with the
Professional Football League. Consequently, the relevant contract is void. The
members of the Chamber noted that the Respondent failed to present any
relevant documentary evidence corroborating its allegation in this respect.
8.
Furthermore, the Respondent stressed that although it could not count on the
services of the Claimant, it paid him the amount of USD 1,000 so that he could
cover his travel expenses.
9.
In continuation, the Chamber took note that the Claimant contested the
position of the Respondent emphasizing that it is the Respondent’s responsibility
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to make any necessary investigation, or to take any appropriate action, before
concluding the contract in order to legalise the residence of the player in
xxxxxx.
10.
Furthermore, the Chamber duly noted that, on the one hand, the Claimant is
of the opinion that the Respondent breached the employment contract and is
therefore requesting the total amount of EUR 9,000 due for the period as from
10 March until 30 June 2005 plus compensation.
11.
On the other hand, the Chamber took due note that the Respondent argued
that it does not owe any further amount at all to the Claimant since the
contract was void and it already paid to the Claimant the amount of USD 1,000
so that he could cover his travel expenses.
12.
Turning its attention to the question as to whether a party has committed a
unilateral breach of the employment contract without just cause, the Chamber
refereed to its constant jurisprudence according to which it is the club’s
responsibility to take any appropriate action before concluding the contract, in
particular, to ensure that the contractual party, i.e. the player is provided with
the required work permit.
13.
In addition, the Chamber confirmed that the obligation to register an
employment contract at a member association is solely incumbent upon the
club. As a result and referring to art. 30 of the Regulations, the Chamber
unanimously concluded that the validity of a contract may not be made
subject to the granting of a work permit.
14.
Moreover, from the above, it is certain that the Respondent has not remitted
any salary payment to the Claimant on the basis of the relevant employment
contract and its annex.
15.
In the light of the above, the Chamber reached the conclusion that the
Respondent breached the employment contract signed with the Claimant
without just cause.
16.
As a consequence, the Dispute Resolution Chamber turned its attention to the
question as to whether the Respondent is accountable for outstanding
payments and/or compensation towards the Claimant in accordance with art.
22 et seq. of the Regulations.
17.
The Chamber took into consideration that the Respondent did not pay any
salary at all to the Claimant and that the player requests the total amount of
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EUR 9,000 due for the period as from 10 March until 30 June 2005 plus
compensation for the breach of contract.
18.
In continuation, the Chamber established that the Respondent is liable to pay
compensation to the Claimant, for its breach of the contract. In this sense, the
Chamber referred to art. 22 of the Regulations and considered
the
remuneration and other benefits due to the player under the existing contract
and/or new contract, the specificities of the case at hand, the time remaining
on the existing contract as well as the player’s obligation to mitigate the
damages.
19.
In view of all of the above, the Chamber concluded that the Respondent is
liable to pay compensation amounting to EUR 59,000 to the Claimant.
20.
Subsequently, the Chamber emphasised that in accordance with art 23 par. 2
(a) of the Regulations, in addition to the obligation to pay compensation,
sporting sanctions shall be imposed on any club found to be in breach of
contract during the first or the second year of the contract.
21.
In the present case, the relevant employment contract was signed in February
2005 and the breach of contract occurred some months later only,
consequently, the Chamber was left with no other choice than to strictly apply
the contents of art. 23 par. 2 of the Regulations according to which, in case the
breach occurs at the end of the first or second year of the contract, the
sanction shall be a ban on registering any new players, either nationally or
internationally, for two consecutive transfer periods.
22.
In view of all of the above, the Chamber decided that the Respondent must
pay compensation for the breach of contract amounting to EUR 59,000 to the
Claimant and that in application of art. 23 par. 2 (a) of the Regulations sport
sanctions for unilateral breach of contract are to be imposed on the
Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, Mr X is accepted.
2.
The Respondent, Y, must pay the total amount of EUR 59,000 to the Claimant
within 30 days as from the date of notification of this decision.
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3.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year as of expiry of the aforementioned deadline will
apply and the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
4.
The Claimant is directed 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.
The club Y is banned from registering any new player, either nationally or
internationally, until the expiry of the second transfer period following the
notification of this decision.
6.
According to art. 61 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:
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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