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, Y,
represented by Mr XY, attorney-at-law
as Claimant/Counter-Respondent
against the club
C, X
as Respondent/Counter-Claimant
regarding a contractual dispute between the player and the club.
1.
Facts of the case
1.
On 12 January 2006, the Y player P (hereinafter: the Claimant) and the club, C,
(hereinafter: the Respondent) signed an employment contract (hereinafter: the
contract) for the period until 31 December 2006 with a unilateral option for the
Respondent to extend the contract for two years, i.e. until 31 December 2008.
According to the contract, the Respondent undertakes to remunerate the Claimant
as follows:
o
o
o
2.
Salary of USD 3,000 per month;
Bonus of USD 20,000, payable as follows:
- USD 10,000 upon signing the contract and
- USD 10,000 payable by 1 July 2006.
Allowances such as two flight tickets, apartment and car
On 15 August 2006, the Claimant lodged a formal complaint at FIFA, claiming not
to have received the salaries relating to March, April, May and June 2006 as well as
the second instalment of the signing-on fee amounting to USD 10,000, due on 1
July 2006. The Claimant explained to have sent written reminders to the
Respondent on 18 and 24 July 2006 asking the Respondent to inform him about the
continuation of the employment relationship but that both letters had remained
without reaction from the Respondent. The Claimant continued that on 1 August
2006, he terminated the contract with just cause. The Claimant claimed that it be
established that the Respondent had breached the contract and requests payment
of a total amount of USD 38,500 from the Respondent which can be broken down
as follows:
o
o
o
o
USD 12,000 as unpaid salaries (15 March - 15 July 2006, i.e. 4 x USD 3,000);
USD 1,500 as unpaid salaries (15 July - 1 August 2006);
USD 10,000 for unpaid signing-on fee, due on 1 July 2006;
USD 15,000 as compensation (equal to five monthly salaries for the months
of August until December 2006).
The Claimant requests, in addition, that disciplinary sanctions be imposed on the
Respondent.
3.
In its response to the claim, the Respondent confirmed that the parties had
concluded an employment contract for the period from 15 January until 31
December 2006. It asserted to have paid the Claimant 14,000 as bonus plus three
monthly salaries of each 4,200 for the period from 15 January until 14 April 2006. In
support of its assertion, the Respondent enclosed copies of payment receipts for the
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aforementioned amounts. The Respondent added that the Claimant had left the
club in the month of May 2006 without authorisation and without informing
anybody and while the Respondent was in the middle of the national and African
championship. The Respondent enclosed a copy of a letter dated 1 July 2006, which
was allegedly sent to the Claimant, by means of which it informed the Claimant
that he had left the club without permission and that he was requested to
immediately resume duty with the club. The Respondent considers that the
Claimant had breached the contract and that the latter had inflicted great damage
to it. By means of a counter-claim, the Respondent therefore claims the
establishment of the fact that the Claimant had breached the employment contract
and requests payment in the amount of USD 19,000 for all monies allegedly paid to
the Claimant:
o
o
USD 10,000 (or 14,000) paid to the Claimant as part of the bonus and
USD 9,000 (or 12,600) paid to the Claimant as salaries.
4.
In his comments thereto, the Claimant fully rejected the counter-claim of the
Respondent and stated that contrary to the statement of the Respondent, the X
national championship had ended in the month of April and the Respondent’s last
match for the X Championship had taken place on 7 May 2006. Furthermore, the
Claimant put forward that he had been authorised to leave X for vacation on 20
May 2006, just after the end of the official competitions and that other foreign
players like L had left at the same time.
5.
With respect to the submitted payment receipts, the Claimant affirmed not to have
received one of the monthly salaries payments since he could not cash the cheque
due to default of money at the Respondent’s account. In support of his assertion,
the Claimant submitted a copy of a certificate of non-payment of a cheque
(“certificat de non paiement de chèque”) in the amount of 4,200, issued by the U
Bank on 30 March 2006. In conclusion, the Claimant asserted to have only received
the first instalment of the signing-on fee and the salaries relating to the period
from 15 January to 15 March 2006. He added that when he left the Respondent for
vacation at the end of the season, two salaries were unpaid relating to the period
from 15 March to 15 May 2006 and that on 15 June 2006, another salary had
become due which had not been paid by the Respondent. The Claimant added that
even though the Respondent had admitted to have been late with its payments, it
had never manifested its intention to pay the amounts due.
6.
With respect to the allegation of the Respondent that it had notified the Claimant
in writing on 1 July 2006 to return to the club, the Claimant affirmed not to have
received any such letter from the Respondent. He added that the Respondent had
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tried to contact him on the Respondent’s own address which lead to the conclusion
that it never had the true intention of contacting him. He emphasized again to
have sent two reminders to the Respondent.
7.
The Respondent reiterated in its comments that no authorisation had been given to
the Claimant for his leaving. With respect to the alleged non-cashed cheque of
40,000, it stated that the mentioned cheque was not given to the Claimant and that
the latter was paid his salaries and the bonus in cash. It went on to state that the
aforementioned cheque was issued by a physical person and not by the club.
8.
In its closing arguments, the Claimant stated with respect to the method of
payment that the Respondent itself had presented a receipt dated 16 March 2006
on which it could be seen that his monthly salary was paid by cheque. The Claimant
also corrected that the relevant cheque was not in the amount of 40,000 but 4,200.
He summed up that the Respondent had not presented any evidence for the salary
payments for the period starting on 15 March 2006 and for the second instalment
of the signing-on fee, due on 1 July 2006 and that at the time when he left the
Respondent, more than two monthly salaries were outstanding.
9.
FIFA was informed that the Claimant had signed a new employment with the Y
club, D, for the period from 1 August 2006 until 10 December 2006.
10.
Due to a potential joint and sever liability of the Claimant’s new club, D, the latter
was asked to submit its position to the present matter as intervening party. In its
response, the X club stated that on 10 August 2006, it had entered into an
employment contract with the Claimant and that the Claimant had informed it that
the employment contract with his former club was terminated. The X club further
mentioned that due to a delay in obtaining the International Transfer Certificate
(ITC) for the Claimant from the X Football Federation, the Claimant could never be
fielded but that it still had to pay the Claimant all his monthly salaries.
11.
Upon invitation, the X Football Federation informed FIFA that the last match of the
Respondent in the championship 2005/2006 had taken place on 16 April 2006.
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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 X 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
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 a X club and a Y player 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 12 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 acknowledged the above-mentioned facts as well as all the
documentation contained in the file. In particular, they took note that the parties
had concluded an employment contract for the period from 12 January 2006 until
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31 December 2006. Furthermore, they took note that the Claimant had left the
Respondent for holidays on 20 May 2006 and had terminated the employment
contract unilaterally on 1 August 2006, i.e. before the ordinary expiry of the
contract. Equally, the members noted that the parties had agreed upon a monthly
salary of USD 3,000 and a bonus in the amount of USD 20,000, half of which was
due upon the signing of the contract and the other half on 1 July 2006.
7.
In this respect, the Chamber 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 38,500, out of which
USD 13,500 are claimed for outstanding salaries, USD 10,000 as outstanding signingon fee and USD 15,000 as compensation.
8.
On the other hand, the Chamber acknowledged that the Respondent claims that
the Claimant had left the club without just cause and therefore requests, by means
of a counter-claim, payment of compensation in the amount of USD 19,000 for the
monies paid to the Claimant: USD 10,000 paid as part of the bonus and USD 9,000
paid to the Claimant 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.
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 and bonus.
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 continuation, the Chamber stated that it had to evaluate which salaries actually
had been paid by the Respondent to the Claimant. In this respect, the Chamber
stated that 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.
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13.
The Chamber then drew its attention to the assertion of the Respondent to have
paid 14,000, equal to USD 11,000, to the Claimant as first instalment of the bonus
and three monthly salaries of 4,200 each, equal to USD 3,300 each for the period
from 15 January until 14 April 2006.
14.
With respect to the salary payments, the Chamber took note that the Respondent
had submitted the respective payment receipts for the monthly salaries in the
amount of 4,200 each: one dated 20 January 2006, one dated 16 March 2006 and
one dated 14 April 2006.
15.
After a careful analyses of the receipts, the Chamber noted that the latter contain
the letterhead of the Respondent, the name of the Claimant as beneficiary, the
relevant amounts, the dates of execution and all of them contain the same
signature.
16.
With respect to the signature, the Chamber noted that the Claimant had never
contested to have signed the three respective receipts. However, the Chamber took
note of the fact that the Claimant asserted not having been able to cash one of the
cheques.
17.
In this respect, the members first of all stated that the payment receipts did not
appear to be copies of cheques but rather seemed to be receipts of effected
payments. Although it could not be reliably concluded from the receipts whether
the payments were effected in cash or whether a cheque was, in addition, handed
out to the Claimant, the Chamber mentioned that according to the payment
receipts, it appeared that the salary and bonus payments were effected in cash, as
asserted by the Respondent.
18.
The members then carefully analysed the produced certificate of non payment of
the cheque dated 30 March 2006 (in the original version: “certificat de non
paiement de chèque”), a document supposedly proving that the amount of 4,200
could not be cashed by the Claimant. After having examined the aforementioned
document, the members stated that it did neither contain the name of the Claimant
as the supposed beneficiary nor did it contain (in a legible manner) the name and
address of the Respondent. Therefore, the members concluded that by means of
this document, it could not be established that one of the cheques could not be
cashed by the Claimant.
19.
On account of the above, the members concluded that it had been established by
the produced payment receipts that the Respondent had paid three monthly
salaries to the Claimant.
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20.
With respect to the bonus payments, the members acknowledged that it was
undisputed that the Respondent had paid the first instalment of the bonus in the
amount of USD 10,000 to the Claimant. With respect to the second instalment in
the equal amount USD 10,000, the members noted that this amount had not been
due until 1 July 2006.
21.
The Chamber concluded that at the time when the player left the Respondent, i.e.
on 20 May 2006, the second instalment of the bonus had not been due yet.
22.
On account of the foregoing, the Chamber summarised that at the time of the
Claimant’s leaving from the Respondent on 20 May 2006, he had been paid three
monthly salaries for the period from 15 January until 14 April 2006 which meant
that only one monthly salary had remained unpaid, namely for the period from 15
April until 14 May 2006. The Chamber reiterated that no bonus payment were
outstanding on 20 May 2006.
23.
In this respect, the Chamber concluded that the Respondent’s default on the
payment of one single monthly salary, could not justify the Claimant’s premature
leaving of the Respondent, in particular as the Claimant had left only five days after
the outstanding amount of USD 3,000 had became due. In addition, the Chamber
stated that it was somewhat not understandable that the Claimant had left the
Respondent without reminding the Respondent of the outstanding amount. The
Chamber added that it was not until 18 July and 24 July 2006, i.e. two months later,
that the Claimant had put, from his holidays, the Respondent in default. The
Chamber emphasised that the Claimant had been absent from the Respondent for
two months without returning to the Respondent and without reminding the
Respondent to pay the outstanding amount and without inquiring the club about
the continuation of the employment relationship.
24.
The Chamber therefore decided that the Claimant had no just cause to terminate
the employment contract with the Respondent and had therefore breached the
contract without valid reason.
25.
However, the Chamber mentioned that the Claimant is entitled to receive the salary
of one month in the amount of USD 3,000 for the period from 15 April until 14 May
2006, period at which he rendered his services at the Respondent but did not get
paid his salary.
26.
Finally, with respect of the counter-claim of the Respondent for compensation, the
Chamber first recalled that the latter had, on his side, not duly fulfilled all of its
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contractual obligations towards the Claimant. Furthermore, and more importantly,
the Chamber stated that the Respondent had not substantiated the damage it
sustained due to the Respondent’s premature termination of the employment
contract. The Chamber added that the Respondent had only indicated the amounts
paid to the Respondent as salary and bonus for the period at which the Claimant
was actually working at the Respondent, however, the as the Respondent had
obtained, in return, the services of the Claimant, the damage actually sustained by
the Respondent was not substantiated.
27.
On account of the above, the Respondent decided that the counter-claim of the
Respondent has to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Y player, P, is partially accepted.
2.
The Respondent, C, has to pay the total amount of USD 3,000 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, P, are rejected.
5.
The Claimant, P, 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 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).
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The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
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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