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 Diallo (France), member
Zola Malvern Percival Majavu (South Africa), member
Philippe Piat (France), member
on the claim presented by the player
P, X,
represented by Mr XL, attorney-at-law
as Claimant/Counter-Respondent
against the club
Club C, Y
as Respondent/Counter-Claimant
regarding a contractual dispute arisen between the player and the club.
I.
Facts of the case
1.
On 5 January 2006, the X player P (hereinafter: the Claimant) and the Y club, C,
(hereinafter: the Respondent) signed an employment contract (hereinafter: the
contract) for the period from 7 January 2006 until 31 December 2006.
2.
According to the contract, the Respondent undertakes to remunerate the Claimant
as follows:
o Salary of USD 10,000 per month;
o Bonus of USD 30,000, payable as follows:
USD 15,000 upon signing of the contract and
USD 15,000 payable by 20 January 2006.
o Allowances such as two flight tickets, apartment and car.
3.
On 15 August 2006, the Claimant lodged a formal complaint at FIFA, claiming not
to have received the salaries relating to February, March and April 2006. The
Claimant explained to have sent written reminders to the Respondent on 8 and 16
May 2006 which remained without reaction from the Respondent. On 20 May 2006,
the Claimant claims to have left the Respondent for vacation without having
received the aforementioned salaries nor the money for the flight. The Claimant
explained that consequently, by written notification of 8 June 2006, he terminated
the contract with the Respondent with just cause, as he had worked for five
months but only received the salary of one month. The Claimant requests payment
in the total amount of USD 105,000 from the Respondent which can be broken
down as follows:
o
o
o
o
USD 30,000 as unpaid salaries (15 February - 15 May 2006, i.e. 3 x USD
10,000);
USD 7,666 for unpaid salaries (16 May - 8 June 2006);
USD 2,334 as compensation (8 June - 15 June 2006);
USD 65,000 as compensation (equal to monthly salaries of 15 June - 31
December 2006).
The Claimant requests, in addition, that disciplinary sanctions be imposed against
the Respondent.
4.
In its response to the claim, the Respondent confirmed that the parties had
concluded an employment contract from 15 January until 30 December 2006. The
Respondent explained to have paid to the Claimant 40,000 as performance bonus
plus two salaries of each 13,000 for the period from 15 January 2006 until 14 March
2006, respectively. In support of its assertions, the Respondent enclosed the
following payment receipts: one dated 7 January 2006 in the amount of 40,000,
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and two dated 20 January 2006 and 16 March 2006, respectively in the amount of
13,000. The Respondent added that the Claimant had, together with the player G,
left the Respondent on 20 May 2006 without authorisation from the club and
without informing anyone. It put forward to have sent a letter to the Claimant on
1 July 2006 asking him to immediately resume duty with the club. The Respondent
added that the Claimant had left the club while the Respondent was in the middle
of the national and V championships and informed that two monthly salaries were
due when the Claimant left the club. It affirmed its willingness to pay the
outstanding amounts of two monthly salaries to the Claimant if the latter would
rejoin the club.
5.
The Respondent considers that the Claimant had breached the contract and added
that he had inflicted great damage to it. By means of a counter-claim, the
Respondent requests that it be established that the Claimant had breached the
contract and demands payment in the amount of USD 50,000 from the Claimant
for all the monies allegedly paid to him:
o USD 30,000 (equal to 40,000) as part of the signing-on bonus and
o USD 20,000 (equal to 26,000) as salaries.
6.
In his comments thereto, the Claimant rejected the counter-claim of the
Respondent and stated that contrary to the statement of the Respondent, the Y
national championship had ended in the month of April and the Respondent’s last
match in the V Championship had taken place on 7 May 2006. Furthermore, the
Claimant put forward that he had been authorised to leave Y for vacation on 20
May 2006, which was just after the end of the official competitions and that other
foreign players like G had left the club at the same time. The Claimant also
mentioned that he had never received the alleged letter dated 1 July 2006 from
the Respondent and recalled that he had notified the Respondent on 8 and 16 May
2006 asking it to inform him about the continuation of the employment
relationship and requesting it to pay the outstanding salaries. The Claimant
mentioned that he had never received a reply from the Respondent to the
aforementioned letters. He added that the alleged letter of the Respondent was
sent more than 45 days after having received his first letter and that the
Respondent had tried to contact him on the club’s address which made him
conclude that the Respondent never had the true intention to notify him. With
respect to the submitted payment receipts, the Claimant stated that he had not
received one of the monthly salaries since he was not able to cash one of the
cheques due to default at the Respondent’s account. In support of his assertion, the
Claimant submitted a copy of a “non-payment certificate of the cheque”, issued by
the UIB Bank on 30 March 2006. In conclusion, the Claimant affirmed to have
received only the signing-on fee and the salaries relating to the period from 15
January to 15 February 2006. He added that at the time when he left the club for
vacation at the end of the season, three monthly salaries were unpaid relating to
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the period from 15 February to 15 May 2006 and that on 15 June 2006, another
salary had become due.
7.
The Respondent reiterated in its comments thereto that no authorisation had been
given to the Claimant to leave for vacation.
8.
In its closing arguments, the Claimant summed up that the Respondent had
admitted to have defaulted on the salary payments and that it had not presented
any evidence to prove the payment of the salaries for the period from 15 February
until 8 June 2006 and had never manifested its intention to pay the outstanding
amounts. Upon request, he informed FIFA that he had signed a new employment
contract with the J club, K, for the period from 1 July 2006 until the end of the
season 2006/2007 which provides for the following wages: EUR 59,850.77 for the
season 2006/2007, payable in ten monthly instalments and a signing-on fee of EUR
2,493.77 as well as a bonus in case of the club’s ascension to a higher division.
9.
By reasons of a possible joint and sever liability, the Claimant’s new club, K, was
invited to submit its position to the present matter as intervening party. In its
response, the Y club only submitted a copy of the employment contract concluded
between it and the Claimant on 11 August 2006.
10.
Upon request, the Y Football Federation informed FIFA that the last match of the
Respondent in the championship 2005/2006 had taken place on 16 April 2006.
II.
Considerations of the Dispute Resolution Chamber
1.
As a preliminary remark, it has to be noted that the chairman of the Dispute
Resolution Chamber (DRC) refrained from deliberating and deciding on the present
matter as a Y club is involved in the matter.
2.
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 15 August 2006,
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.
3.
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
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Resolution Chamber shall adjudicate on employment-related disputes between a
club and a player that have an international dimension.
4.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving an Argentinean player and a Y 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 5 January 2006 and the claim was
lodged at FIFA on 15 August 2006. 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.
6.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging the above-mentioned facts and all further
documentation contained in the file. In particular, they took note that the parties
had concluded an employment contract for the period of validity from 7 January
2006 until 31 December 2006. Furthermore, they noted that the Claimant had left
the Respondent for holidays on 20 May 2006 and had terminated the employment
contract unilaterally on 8 June 2006, i.e. before the ordinary expiry of the contract.
Furthermore, the Chamber noted that the parties had agreed on a monthly salary
of USD 10,000 and a bonus of USD 30,000, half of which was due upon the signing
of the contract and the other half on 20 January 2006.
7.
In this respect, the members of the DRC took note of the fact that on the one
hand, the Claimant considers to have terminated the employment contract with
just cause and that he demands payment of the total amount of USD 105,000, out
of which USD 37,666 are claimed for outstanding salaries and USD 67,334 as
compensation for breach of contract allegedly committed by the Respondent.
8.
On the other hand, the Chamber acknowledged that the Respondent claims that
the Claimant had left the club without just cause and that it therefore requests, by
means of a counter-claim, payment of compensation in the amount of USD 50,000
for the money allegedly paid to the Claimant: USD 30,000 as part of the signing-on
bonus and USD 20,000 as salaries.
9.
The Chamber stated that, in view of these contradictory positions, it first had to
analyse whether or not the player had terminated the contract with just cause, and
to determine whether a party is accountable for outstanding payments and/or
compensation.
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10.
In this respect, the Chamber pointed out that, as a general rule, a party may
terminate an employment contract for just cause at any time (cf. art. 14 of the
Regulations). The Chamber noted that in the case at stake, the Claimant had
terminated the employment contract because he allegedly did not receive all his
salaries.
11.
To that regard, the Chamber stated that, as a general rule, the persistent failure of
a club to pay the salaries to the player, without just cause, is to be considered as a
unilateral breach of an employment contract.
12.
In this respect, the Chamber took note of the fact that it was undisputed that the
Respondent had paid the bonus in the amount of USD 30,000 to the Claimant.
13.
With respect to the assertion of the Respondent to have paid two monthly salaries
of USD 10,000 each for the period from 15 January until 14 March 2006 to the
Claimant, the Chamber stated that in general, the debtor bears the burden of
proof for alleged payments, i.e. in the present case the Respondent has to prove to
have effected the relevant payments to the Claimant.
14.
The Chamber acknowledged that the Respondent had submitted two payment
receipts in the amount of 13,000 each, one allegedly paid on 20 January 2006 and
one on 16 March 2006. After a careful analysis of the receipts, the Chamber stated
that the latter contain the letterhead of the Respondent, the name of the Claimant
as beneficiary, the amounts, the dates of execution and both of them contained a
signature. With respect to the signatures, the Chamber took note of the fact that
the Claimant had never contested having signed the two receipts.
15.
The members of the DRC then drew their attention to the allegation of the
Claimant of not having been able to cash one of the cheques from the Respondent.
In this respect, the members first of all stated that the payment receipts produced
by the Respondent were not copies of cheques but receipts of payments and that it
therefore did not emanate from the payment receipts in which form the payments
had been effected.
16.
Furthermore, the members drew their attention to the produced non payment
certificate of the cheque (“certificat de non paiement de chèque”), a document
supposedly proving that one of the cheques of 13,000 could not be cashed by the
Claimant. After having examined the aforementioned document, the members
stated that the document neither contained the name of the beneficiary, i.e. the
Claimant, nor the name and address of the Respondent. Therefore, the members
concluded that by this document, it could not be concluded that one of the
cheques could not be cashed by the Claimant.
17.
On account of the aforementioned, the members concluded that it had been
established by documentary evidence that the Respondent had paid two monthly
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salaries of 13,000 each, equal to USD 10,784, to the Claimant corresponding to the
period from 15 January until 14 March 2006.
18.
In continuation, the Chamber stated that at the time of the Claimant’s leaving
from the club, i.e. on 20 May 2006, four monthly salaries were due. As elaborated
above, two monthly salaries had been paid by the Respondent. Therefore, until 20
May 2006, the Respondent had failed to make two monthly salary payments in the
amount of USD 10,000 each.
19.
In view of the above, the Chamber decided that by not having paid salaries in the
total amount of USD 20,000 to the Claimant, the Respondent had breached the
employment contract without valid reason. As a consequence, the Claimant had
terminated the contract with just cause on 8 June 2006.
20.
In conclusion, the Chamber decided that the Claimant is, apart from the
undisputedly outstanding salaries, entitled to receive compensation from the
Respondent for breach of contract without just cause.
21.
In this respect, the Chamber, however, added that the Claimant bears part of the
responsibility for the early termination of the employment contract as, admittedly,
he had put the Respondent in default on 8 and 16 May 2006 and had left the
Respondent on 20 May 2006, only four days after reminding the Respondent to pay
the outstanding amounts. The members considered it to be a very short time limit
granted to the Respondent to pay the due amounts. Furthermore, the members
added that the Claimant did not return to the Respondent but instead terminated
the employment contract on 8 June 2006 while he was still on holidays.
22.
Given that the Claimant bears part of the responsibility, the Chamber deemed that
this should have a mitigating effect on the compensation which is to be paid by the
Respondent.
23.
Furthermore, and still with respect to the amount of compensation to be paid to
the Claimant, the Chamber took into consideration that the Claimant had signed a
new employment contract with club K for the period from 1 July 2006 until the end
of the season 2006/2007. As a consequence, the earnings out of such contract also
need to be considered.
24.
On account of all the above, the Chamber decided as follows: Given that the
Claimant had left the Respondent 20 May 2006 with just cause the Claimant is
entitled to receive two monthly salary of USD 10,000 for the period from March
2006 until May 2006 which amounts to a total amount of USD 20,000.
25.
Moreover, with regard to the compensation due for breach of contract without
just cause committed by the Respondent, the Chamber decided that taking into
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account the aforementioned considerations (points II.20 to II.23 above), the
Respondent has to pay to the Claimant the lump sum of USD 20,000.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the X player P is partially accepted.
2.
The Respondent, Club C, has to pay the total amount of USD 40,000 (USD 20,000 as
outstanding salaries and USD 20,000 as compensation) to the player P, within 30
days following the date of the notification 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 as of expiry of the relevant
time-frame and the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
4.
Any further claims submitted by the Claimant are rejected.
5.
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.
6.
The counter-claim submitted by Club C is fully rejected.
7.
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 (CAS)
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
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For the Dispute Resolution Chamber:
Markus Kattner
Deputy General Secretary
Enclosed: CAS directives
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