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
Carlos Soto (Chile), member
Philippe Piat (France), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by the
Player, X
as Claimant,
against the
Club, Y
as Respondent,
regarding a contractual dispute arisen between the parties.
./…
I.
Facts of the case
1.
On 14 January 2004, the player X (hereinafter: the Claimant or the player) signed an
employment contract with the local football association so that he could play for its
member club, club Y (hereinafter: the Respondent or the club). This contract was
printed on club Y’s Football Association header paper. It was valid from 14 January
2004 until 31 December 2004.
2.
The Claimant asserted that, during a league match on 7 July 2004, he suffered a
serious leg injury – a first-degree fracture. He also pointed out that this injury
required him to go into hospital and have an operation on the leg. According to his
own assertions, the Claimant has not been able to play football since the injury.
3.
On 17 March 2005, the player, represented by his Football Association, contacted
FIFA to lodge a claim against the Respondent.
4.
The player demanded that art. 2(c) of his employment contract with the club be
enforced. This article makes reference to SCHEDULE B, which stipulates that various
insurance policies would be taken out in favour of the player.
5.
Point (a) of SCHEDULE B states that the following insurance policies will be taken
out:
a.
b.
Personal accident policy with cover of (national currency) 120,000;
Medical treatment insurance and a “Terme life” with cover of (national
currency) 10,000 and an extension for a permanent disablement policy with
cover of (national currency) 25,000.
6.
Point (b) of SCHEDULE B stipulates that the employee is to contribute to the
contingency fund in line with a legislative act.
7.
As a result, the player claims the following from the Respondent:
a.
b.
c.
Personal accident policy to the amount of (national currency) 120,000 or USD
30,000;
Extension for a permanent disablement policy to the amount of (national
currency) 25,000 or USD 7,000;
Employee’s contingency fund and social security to the amount of USD 50,000.
___________________________________________________________________________________________________________
2
8.
On 20 July 2005, FIFA received, via the Respondent’s Football Association, two
documents signed by the Claimant. The first document denominated
“TERMINATION OF CONTRACT”, dated September 2004, is signed, inter alia, by the
player. This document states that the player requests the termination of his contract
by mutual agreement as of 15 August 2004 and that he will accept 3 months
compensation as a final settlement with the other party. It also states that the
player agrees not to lodge any claim after accepting the terms of the document.
9.
The second document, dated 11 September 2004 and written by the Claimant, states
that the player's contract was due to expire in December 2004 and, as the club had
failed to qualify for the national cup, his services as a player with the club had
ended on 8 August 2004. The document also provides the same information that
was written previously in the other document and indicates that the payment made
by the club was considered to be a full and final settlement.
10.
On 22 August 2005, the Claimant sent to FIFA his replica to the club’s statement.
The Claimant maintained that, as the club had not qualified for the national cup, his
contract had been terminated in August 2004.
11.
He affirmed in writing that the club had developed a convention whereby the
player was given a kind of contract annulment by the club in order to terminate the
formalities of the contract. The player therefore pointed out that, on 11 September
2004, he terminated his contract in writing, something which, he says, the
Respondent’s Football Association would have believed.
12.
As a result, he asserted that the club must honour the contract and make the
insurance payments specified in SCHEDULE B because he had been injured before
signing the said contract annulment. He therefore claims everything stipulated in
his initial claim apart from the employee’s contingency fund and social security
payments whereby he acknowledged that these amounts must be determined by
the Respondent’s Football Association.
13.
Despite several requests from FIFA on 14 February, 14 July and 16 August 2006, the
Respondent has not submitted any further statement in relation to this case.
___________________________________________________________________________________________________________
3
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 17 March 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 to the matter at
hand.
2.
With regard to the competence of the Chamber, art. 42 par. 1 lit. (b) (i) of the FIFA
Regulations for the Status and Transfer of Players (edition 2001) establishes that the
triggering elements of the employment-related 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.
3.
If an employment contract is breached by a party, the Dispute Resolution Chamber
is also responsible to verify whether a party is accountable for outstanding
payments and/or compensation.
4.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation involving a player and a club regarding a dispute in
connection with an employment contract.
5.
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 14 January 2004 and the claim was lodged at
FIFA on 17 March 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.
6.
In continuation, and entering into the substance of the matter, the members of the
Chamber acknowledged the documentation contained in the file and took note
that the Claimant signed on 14 January 2004 an employment contract providing for
that the Claimant would play for the Respondent.
___________________________________________________________________________________________________________
4
7.
First of all, the members of the Chamber considered that in view of the
circumstances of the matter at stake, they will have to focus their considerations on
the question concerning the way in which the employment contract finished and if
any outstanding amounts are still due to the Claimant by the Respondent.
8.
In this respect, the members of the Chamber duly analysed the document dated
September 2004 and denominated “TERMINATION OF CONTRACT” sent by the
Respondent to the Dispute Resolution Chamber during the investigation of the
present case.
9.
As regards the relevant contractual relationship and considering the above
mentioned document, the members of the Chamber noted that the Claimant did
not deny having signed the said “TERMINATION OF CONTRACT” dated September
2004 providing for the annulment of the employment contract signed in January
2004. Equally, the Chamber remarked that the validity of this document is not
contested by the Claimant. Then, the Chamber duly took note of the contents of
this relevant document denominated “TERMINATION OF CONTRACT”, which
mentions the following: “I [name of the player], Passport No: H 0129999 and as a
Professional Player with [name of the Respondent], would like to have my contract
terminated with effect from 15th August, 2004 with the mutual consent from The
[local Football Association]. I also agree to accept the 3 months compensation as
final settlement from [local Football Association]. I also agree that I shall not make
any claim from the [local Football Association] after this”.
10.
As a consequence of the above consideration, the Dispute Resolution Chamber
came to the conclusion that the relevant contractual relationship between the
Claimant and the Respondent terminated undoubtedly on 15 August 2004 by
mutual consent and that by means of this document which was duly signed by the
Claimant, the latter confirmed this contractual termination and the final settlement
of this matter in which the obligations of the Respondent are concerned. The
members of the Chamber agreed that this document must be considered as a waiver
duly signed by the Claimant. That is, by signing the said declaration, which refers
explicitly to the employment contract the parties entered into, the Claimant waived
all direct rights that he may have towards the Respondent on the basis of the
relevant employment contract in future.
11.
Therefore, the Dispute Resolution Chamber considered that the player X is not
entitled to claim to the Respondent any financial aspect of the employment contrat.
12.
As a result of all of the above, the Dispute Resolution Chamber decided to fully
reject the Claimant’s claim.
___________________________________________________________________________________________________________
5
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is rejected.
2.
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:
Court of Arbitration for Sport
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:
Markus Kattner
Deputy General Secretary
Enclosed: CAS directives
___________________________________________________________________________________________________________
6