Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
on the claim presented by the player,
X,
represented by Mr. V, lawyer
as “Claimant”
against the club,
Y
as “Respondent”
regarding an employment-related contractual dispute between the player and the
club.
I.
Facts of the case
1.
On 11 November 2005, the player, X, and the club, Y, signed an employment
agreement valid as from 7 November 2005 until “the end of the club’s 2006
VPL playing commitments (including the VPL Top 6 Finals Series)”.
2.
The agreement indicates that the 2006 VPL competition ends about the end of
August 2006 and that the 2006 VPL Top 6 Finals Series starts on the weekend
of 4 September 2006 with the final being on 24 September 2006, the player
being required for the Finals Series if the club qualifies.
3.
According to this agreement, the player, inter alia, is entitled to … 1,000 net
and an accommodation allowance of … 200 “p.w”.
4.
In addition, this agreement indicates that the player will be on a “Business
VISA-Form 457” status with the club in the 2006 VPL run by the regional
Football Federation of Y.
5.
On 11 August 2006, the player turned to FIFA maintaining that after he got
injured on 9 July 2006 while performing his playing duties, on 11 July 2006 he
was told by the club that he was no longer required to train or play for the
club and that he would no longer be paid his entitlements under the
agreement. Furthermore, the club allegedly told him to leave the apartment
by 22 July 2006.
6.
By a letter dated 15 July 2006 addressed to the club and the regional Football
Federation of Y, the player’s agent, who co-signed the relevant employment
agreement, requested that the matter be resolved as soon as possible arguing
that there had been a clear breach of the contract.
7.
X sustains that in order to have permanent residency in the country of Y he
had to leave the country of Y on 29 July 2006 and re-enter the same country,
but that he had lost the ability to become a permanent resident of the country
of Y following the club’s refusal to comply with its contractual obligations. In
view of the fact that the player would not have anywhere to live upon his
return to the country of Y, he accepted the club’s repudiation of the contract.
8.
As regards his financial entitlements, the player asserts that he was entitled to
a weekly salary of … 1,000 net and to a weekly rental allowance of … 200,
which was paid directly to the landlord of his apartment.
9.
In addition, according to the player, it is a strict legal requirement in the
country of Y, pursuant to the “Superannuation Guarantee (Administration) Act
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1992 (Cth)” that the club pays 9% of the player’s gross salary into a
superannuation fund on behalf of the player. In the present case, the club is
required to pay superannuation in addition to the salary of … 1,000 net per
week. He claims being entitled to approximately … 6,225 in superannuation
payments for the whole term of the contract.
10.
The player adds that he has been prevented from obtaining medical treatment
that was previously provided by the club to the player.
11.
X claims that the club has acted in breach of the employment contract and
therefore he asks that the club be ordered to pay to him the following
amounts:
Net salary payments from 07.07.06 to 07.11.06
(1,000 per week for 18 weeks)
Rental allowance payments from 29.07.06 to 07.11.06
(200 per week for 15 weeks)
Reimbursement for the payment allegedly made by the player to
the landlord of his apartment for the period from 22.07.06 to
29.07.06
Reimbursement of his return flight to Canada
Reimbursement of massage treatment on 13.07.06
Reimbursement of medical treatments from 11.08.06 to 01.03.07
18,000
3,000
200
2,970
45
1,355
12.
With respect to the reimbursement of his medical expenses and return flight to
Canada, the player points out that in accordance with national law, the club,
as a sponsor of the player under the Business VISA – Form 457 cf. the
employment agreement, is obliged to pay all medical and hospital expenses for
the player as well as the cost of return travel to his home country.
13.
In addition, he asks the Dispute Resolution Chamber to order the club to pay
an amount for damages and compensation of a “minimum of 3 months”.
14.
Finally, the player asks that the club be ordered to provide evidence and
details of the superannuation payments made to a superannuation fund on
behalf of the player.
15.
The player adds that despite his efforts he is unable to find employment with
another club due to injury and that in order to mitigate his losses he remains in
Canada.
16.
In response to the claim, Y acknowledges that X was a sponsored employee of
the club under the Class 457 Business Visa which is governed and administered
by the national Department of Immigration (DIM).
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17.
According to the club, the governing contract is the DIM document dated 29
November 2005 for a Class 457 Business Visa Sponsorship agreement and it
emphasises that the agreement of employment signed on 11 November 2005 is
unenforceable and void in light of the strict DIM rules and of the fact that this
agreement was not lodged with the regional football federation of Y as the
football governing body.
18.
X’s 457 Business Visa was due to expire on 24 September 2006, therefore, the
date of 11 November 2006 indicated by X is erroneous.
19.
Furthermore, the club points out that the matter involving X was finalised with
DIM and the Regional Football Federation of Y in July and August 2006
respectively.
20.
According to Y, it advised DIM that X’s sponsored Business Visa agreement was
to be terminated for reasons of ongoing poor/under-performance in his
execution of duties. The club asserts the contract was lawfully terminated
under the national Industrial Relations (IR) legislation approximately 2 months
and 13 days early due to his poor/under-performance. In this regard, the club
presented a copy of its letter dated 11 July 2006 addressed to X by means of
which the player was notified, inter alia, of the termination with immediate
effect of his services and 457 sponsored Business Visa arrangement for reasons
of poor / under-performance.
21.
Therefore, the club rejects the player’s claim that it acted in breach of contract
and denies that X is entitled to any compensation payment.
22.
Moreover, Y asserts that X is not entitled to any salary payments or rental
allowances beyond 11 July 2006.
23.
With respect to the player’s emoluments, the club sustains that according to
the 457 Business Visa document the player was entitled to an annual salary of
… 39,100 (… 650 net per week), food, housing, and medical expenses. It
explains that the … 1,000 net per week payment consisted of the … 650 net
per week salary and another … 350 per week to cover food and living
expenses. The … 200 per week for accommodation were directly paid to the
landlord.
24.
With respect to the player’s claim pertaining superannuation payments, the
club points out that it made numerous requests to the player to provide the
club with details of his tax file number and of his eligible national
superannuation fund to no avail.
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25.
The club deems that FIFA has no jurisdiction in this matter, since X was not on
a professional football contract but on a Y sponsored 457 Business Visa
arrangement.
26.
Y further points out that it plays in a state based second level competition and
not in a national league administered by the Football Federation of Y.
27.
Moreover, according to the club, in January 2006, the regional Football
Federation of Y advised the club that strict DIM rules governed the sponsored
457 Business Visa holders, such as X, and as such the regional Football
Federation of Y only registered and formally recognised the Business Visa
agreement with DIM as the valid contract for the player with the club. The club
presented a written statement from the regional Football Federation of Y in
this respect.
28.
In reaction to the club’s response to his claim, X insists that FIFA has
competence to deal with his claim referring to art. 22 of the Regulations for
the Status and Transfer of Players. In support of his position he has presented a
copy of an article of the regional Football Federation of Y constitution.
29.
He further disputes the club’s claims that it has lawfully terminated the Visa or
the employment contract under national law.
30.
Moreover, he points out that it is the club’s responsibility to register the
contract with the relevant authorities and that the club’s apparent failure to
do so does not make the contract void or unenforceable.
31.
The player adds that the Visa agreement and the employment contract are two
separate documents, the Visa agreement being an agreement between the
club and the DIM that it will sponsor the player during his stay in its country.
The employment agreement is an agreement between the player and the club.
32.
In this regard, the player presented a communication from a DIM officer dated
18 July 2006 in which it is confirmed that “A decision by a sponsoring employer
to discontinue the services of a sponsored person does not result in a breach of
sponsorship undertakings. This would be a matter to be settled between the
two parties on the basis of the employment contract they would have entered
into. The parties have recourse to all avenues available under relevant
industrial relations provisions.”
33.
In its final comments, Y reiterates its position and alleges that the player has
been “forum shopping” by raising his claims with the DIM, the regional
Football Federation of Y and the Football Federation of Y before turning to
FIFA.
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34.
The club denies that the player was dismissed due to an injury and asserts that
his dismissal was due to his lack of performance for a longer than reasonable
period (5 to 6 months). The club points out that it followed the notice
requirements on a minimum of 3 warnings / appraisal sessions with the coaches
and his agent.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all and taking into consideration the position of Y denying the
Chamber’s competence in the present matter, the Chamber analyzed whether
it is 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 11 August 2006, as a consequence the Chamber
concluded that the Rules Governing the Procedures of the Players' Status
Committee and the Dispute Resolution Chamber (DRC) (hereinafter: the Rules)
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, unless an independent arbitration tribunal guaranteeing fair
proceedings and respecting the principle of equal representation of players
and clubs has been established at national level within the framework of the
Association and/or a collective bargaining agreement.
3.
The Chamber recalled that the present matter is between an … club and a
player from … and took into account the argument of the Respondent
according to which the Dispute Resolution Chamber has no competence in the
present matter.
4.
In this respect, the members of the Chamber referred to the well-established
jurisprudence of the Dispute Resolution Chamber according to which, in
general, in employment-related disputes between a club and a player that
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have an international dimension, i.e. the parties do not belong to the same
country, both parties are entitled to refer the dispute to FIFA’s deciding bodies,
unless an independent arbitration tribunal respecting the principle of equal
representation of players and clubs with an independent chairman has been
established at national level.
5.
The Chamber acknowledged that the Respondent was unable to prove that an
independent arbitration tribunal in compliance with the requirements of the
FIFA Regulations has been established in this case.
6.
On account of the above considerations, the Chamber established that the
Respondent’s objection to the competence of FIFA to deal with the matter at
hand has to be rejected and that the present case can be considered as to the
substance.
7.
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 facts that the relevant
contract at the basis of the present dispute was signed in November 2005 and
that the claim was lodged at FIFA on 11 August 2006. In view of the
aforementioned, the Chamber concluded that the current FIFA Regulations for
the Status and Transfers of Players (edition 2005, hereinafter: the Regulations)
are applicable to the case at hand as to the substance.
8.
Once its competence and the applicable Regulations were thus established, the
Dispute Resolution Chamber went on to deal with the substance of the case.
After having studied all of the documentation and the positions presented by
the parties, the Chamber thought it necessary to firstly proceed to establish
which document shall be deemed to constitute the legal and validly binding
contract of employment between the parties in the matter at stake.
9.
In this regard, the club asserts that the DIM document dated 29 November
2005 for a Class 457 Business Visa Sponsorship agreement shall be the
governing contract. The Chamber noted that the club presented a copy of an
application form co-signed by the player in this respect. Furthermore,
according to Y the employment agreement signed on 11 November 2005 is
unenforceable and void in light of the strict DIM rules and of the fact that this
agreement was not lodged with the regional Football Federation of Y as the
football governing body.
10.
The player, for his part, rejects such position and holds that the Visa agreement
and the employment contract are two separate documents, the Visa
agreement being an agreement between the DIM and the club that the latter
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will sponsor the player during his stay in the country of Y. The employment
contract on the other hand is an agreement between the player and the club
containing the relevant conditions of employment.
11.
It was duly noted that the club has failed to produce any written evidence in
support of its position that the employment agreement signed on 11
November 2005 would be unenforceable and void in light of strict DIM rules.
12.
In fact, the Chamber took special note of the communication from a DIM
officer dated 18 July 2006 in which the DIM clearly confirms that “A decision
by a sponsoring employer to discontinue the services of a sponsored person
does not result in a breach of sponsorship undertakings. This would be a
matter to be settled between the two parties on the basis of the employment
contract they would have entered into.” This statement appears to confirm
that according to DIM an employment contract indeed may be entered into
between a club and a player and that, moreover, a breach of sponsorship
undertakings would have to be settled on the basis of such employment
contract.
13.
The Chamber felt that the documents issued by the DIM in connection with the
employment of the player, X, with Y must be considered as a standard
administrative tool used by the national government allowing a foreigner to
obtain a visa and be employed in the country of Y. In continuation, as such, the
DIM documents would merely organise the link of both the club and the player
towards the national government.
14.
Furthermore, the members of the Chamber took into account that the nonregistration of an employment contract at the national Association does not
render such contract void. In this context, the Chamber stressed that a player
cannot be held responsible for the registration of his employment contract
with the football association concerned; the club must be considered solely
responsible for such registration and the related administrative procedure.
15.
On account of the above, the members of the Chamber concurred that it shall
disregard the said Visa Sponsorship agreement and that the governing
contract at the basis of the present dispute is the employment agreement
signed between the parties on 11 November 2005. Consequently, the Chamber
agreed that it shall solely take into account the rights and obligations
contained in this employment agreement when dealing with the substance of
the present matter.
16.
The Chamber then focussed its attention on the question as to whether the
club has acted in breach of the employment contract as claimed by the player.
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17.
The members of the Chamber acknowledged that according to the player, he
was unlawfully dismissed by the club on 11 July 2006 after he allegedly had
sustained an injury. The club, for its part, asserts that the contract with the
player was lawfully terminated under national Industrial Relations (IR)
legislation approximately 2 months and 13 days early due to the player’s
poor/under-performance. The Chamber noted that the club had omitted to
present any relevant documentation in support of such position. In this
context, the Chamber took due note of the contents of the club’s letter dated
11 July 2006 addressed to X by means of which the player was notified, inter
alia, of the termination with immediate effect of his services for reasons of
poor/under-performance.
18.
In this respect, the Chamber referred to its constant jurisprudence when
pointing out that poor performance of a player cannot be accepted as a valid
reason to unilaterally and prematurely terminate an employment contract.
19.
Taking into account the above, the Chamber concurred that the club has
terminated the employment contract without just cause on 11 July 2006.
Consequently, taking into consideration art. 17 par.1 of the Regulations, the
Chamber decided that, in the present case, the player is entitled to receive an
amount of money as compensation in addition to any outstanding payments
on the basis of the relevant employment contract.
20.
The Chamber then turned to the player’s financial claim from which it can be
deduced that X has received all payments due to him by the club until the
termination of his services on 11 July 2006. Furthermore, the Chamber noted
that the player inter alia claims payment of his salaries, which according to the
player amount to … 1,000 net per week, and rent until the date of 7
November 2006 as well as an amount of money for damages and
compensation of a 3 months’ minimum.
21.
In this regard, the Chamber took into account that in spite of the fact that the
employment contract does not indicate any frequency of payment of the
player’s financial entitlement of … 1,000 net, from the club’s statements it can
be noted that such amount was indeed payable net by the club to the player
on a weekly basis. In addition, the Chamber recalled that in the employment
contract the rental allowance payable to the player has been fixed at … 200
per week, which amount, as a matter of fact, has also been confirmed by the
club.
22.
Furthermore, the members of the Chamber acknowledged that the relevant
employment contract was valid until 24 September 2006 at the latest and that,
consequently, on the date of the termination of the contract by the club, i.e.
11 July 2006, the said contract was to run for 10 more weeks.
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23.
In the light of all of the above-mentioned facts and considerations, the
Chamber agreed that a compensation to the amount of … 12,000 is
appropriate in the specific case at hand.
24.
The Chamber then turned to the additional claim of the player pertaining to
the reimbursement of his medical expenses and return flight to Canada. In this
respect, the members of the Chamber noted that the player bases such claim
on national law in accordance with which, the club, as a sponsor of the player
under the Business VISA – Form 457 as indicated in the employment
agreement, allegedly is obliged to pay all medical and hospital expenses for
the player as well as the cost of return travel to his home country.
25.
In this regard, first of all, the Chamber pointed out that X has failed to
produce any evidence demonstrating that he sustained an injury during the
performance of his duties as a player at the club. Furthermore, as stated above
under point II.12, the Chamber shall base its considerations solely on the rights
and obligations contained in the relevant contract of employment and that the
Visa Sponsorship agreement shall be disregarded. Such employment contract,
however, does not include any entitlement of the player to air tickets.
26.
Therefore, the Chamber decided to reject the player’s claims relating to
reimbursement of medical costs and his return flight.
27.
As regards X’s claim pertaining to “superannuation” payments, the members
of the Chamber deemed that the player shall address his request directly at the
relevant authorities dealing with such matters. Consequently, the Chamber
decided to reject the player’s claim relating to “superannuation” payments.
28.
In the light of all of the above, the Chamber decided that Y is liable to pay to X
compensation in the amount of … 12,000 for the termination without just
cause of the employment contract.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The Respondent, Y, has to pay the amount of … 12,000 to the Claimant within
30 days as from the date of notification of this decision.
3.
In the event that this amount is not paid within the stated deadline, interest at
the rate of 5% per year will apply as of expiry of the aforementioned deadline
and the present matter shall be submitted to the FIFA Disciplinary Committee.
4.
Any further claim of the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately of the bank
account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
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
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 General Secretary
Enclosed: CAS directives
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