Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 September 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Diallo (France), member
Essa M. Saleh Al-Housani (United Arab Emirates), member
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
on the claim presented by the player,
E,
as Claimant
against the club,
P,
as Respondent
regarding an employment-related contractual dispute arisen between the player and the
club.
I.
Facts of the case
1.
On 30 January 2006, the A / I player, E (hereinafter: the Claimant), and the manager
of the I club, P, signed a contract valid until 4 December 2006 or until the end of the
league “XII” (hereinafter: second contract ).
2.
In accordance with the second contract, the Claimant was entitled to receive inter
alia the total amount of 1,310,000,000 (USD 142,000 according to the Claimant). The
second contract does not include any payment schedule or due dates. Furthermore,
according to the second contract the Claimant was entitled to receive the benefit of
a car, accommodation and air tickets for two passengers A-I.
3.
On 17 March 2008, the Claimant lodged a claim against the club, P (hereinafter: the
Respondent) maintaining that the Respondent had only paid him the total amount
of USD 59,950 (including a USD 20,000 signing-on fee and salaries as from January
2006 until and including June 2006) and therefore, the Respondent still owes him
the total amount of USD 82,050.
4.
Consequently, the Claimant asks that the Respondent be ordered to pay USD 82,050
plus 5% interest p.a. as from 4 December 2006.
5.
In addition, in the light of the breach of contract allegedly committed by the
Respondent, the Claimant asks that sporting sanctions be imposed on the
Respondent.
6.
Finally, the Claimant asks that the Respondent be instructed to pay a contribution
to his legal costs.
7.
The Respondent, for its part, rejects the claim put forward by the Claimant.
8.
In this respect, the Respondent submitted an employment contract signed between
the Claimant and the Respondent on 9 January 2006 valid until 4 December 2006
(hereinafter: first contract), in accordance with which the total amount of
1,310,000,000 is payable by the Respondent to the Claimant as follows: USD 31,000
“loan fee” on 29 January 2006; 200,000,000 “down payment” on 14 February 2006;
804,000,000 payable in 12 equal monthly salaries of 67,000,000. In addition, “When
competition reses, second party [Claimant] will receive 25% of salary a sum
16,750,000 …”
9.
The Respondent asserts having paid to the Claimant the aforementioned “loan
fee”, which according to the Respondent was further transferred by the Claimant to
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his former club, the “down payment” amounting to USD 20,000, the Claimant’s
salaries as from January 2006 until and including July 2006, accommodation in the
total amount of USD 12,449, expenses for a car in the total amount of USD 3,750
and air tickets amounting to USD 10,000.
10.
The Respondent confirms that the salaries for August 2006 until December 2006
have not been paid to the Claimant, since the latter left I in August 2006 without
formal notice to the Respondent. The Respondent then supposedly learned that the
Claimant had signed a contract with another club. To the knowledge of the
Respondent, the Claimant had at least played for another club towards the end of
2006.
11.
In this respect, the Respondent also refers to contractual clause 12 e) in accordance
with which “The second party [Claimant] has to pay 100% fee from his monthly
honorarium if not follow first party [Respondent] train program.” On this basis and
taking into account the Claimant’s early departure from the Respondent, the
Respondent would be entitled to receive 67,000,000 from the Claimant. However,
the Respondent decided not to file a claim against the Claimant since he had been
important to the Respondent.
12.
According to the Respondent, it received and endorsed a letter of resignation from
the Claimant’s agent and both parties had agreed not to prolong the conflict and
close the matter.
13.
It adds that for these reasons and taking into consideration the aforementioned
contractual clause 12 e) the Claimant has no right to claim anything.
14.
In his replication, the Claimant rejects the allegations put forward by the
Respondent and considers that the Respondent is trying to create confusion with
respect to the amounts that it effectively paid to him. He insists that the amount of
USD 31,000 was not to be paid to his benefit but to his former club as a loan fee
and the apartment costs and car expenses were contractually agreed upon.
15.
In its rejoinder, the Respondent fully adheres to its position.
16.
In reply to FIFA’s request for information, the Claimant confirmed that he left the
club on 1 August 2006 “following the breach of contract committed by the
Respondent”.
II.
Considerations of the Dispute Resolution Chamber
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1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the
Chamber” or “the DRC”) analysed whether it was competent to deal with the case
at hand. In this respect, it took note that the present matter was submitted to FIFA
on 17 March 2008. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2005; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 2 and 3 of
the Procedural Rules, edition 2008, in combination with art. 18 par. 2 and 3 of the
Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2008) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a player and an I club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition
2008), and considering that the present claim was lodged on 17 March 2008, the
2008 edition of the said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber noted that two different contracts, i.e. the first contract and the
second contract (cf. nos. I/8. and I/1., respectively, above), have been put forward by
the parties involved in the present matter, both of which include the total amount
of 1,310,000,000 payable to the Claimant during the total duration of the
contractual relationship. In contrast to the second contract presented by the
Claimant, which in fact was concluded between the club manager and the Claimant
and which is referred to as “agreement between manager and the player”, the first
contract presented by the Respondent does include a payment schedule specifying
the manner in which the total amount of 1,310,000,000 is payable by the
Respondent to the Claimant throughout the contractual duration. In this context,
the Chamber noted that the first contract, signed on 9 January 2006, does not
include any benefits in kind, whereas in accordance with the second contract,
signed on 30 January 2006, the Claimant was to receive inter alia the benefit of a
car, accommodation and air tickets for two passengers A-I in addition to the total
amount of 1,310,000,000. On the basis of these circumstances, the Chamber
considered that the second contract presented by the Claimant was most likely
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concluded in addition and in order to ameliorate the employment conditions of the
Claimant contained in the first contract.
5.
Having said this, the Chamber recalled that according to the Claimant, the
Respondent had only paid him the total amount of USD 59,950 out of the alleged
total of USD 142,000. The Chamber pointed out that the Claimant specified that the
amount he received from the Respondent (USD 59,950) included a USD 20,000
signing-on fee and salaries as from January 2006 until and including June 2006.
6.
The members of the Chamber also noted that in his claim, which he lodged in
March 2008 only, the Claimant submits that the Respondent had acted in breach of
contract by having failed to pay the total amount of USD 82,050. The Claimant
failed to present a breakdown of this amount, but the Chamber recalled that in
support of his position, the Claimant had presented the second contract which
outlines the total amount of 1,310,000,000, which according to the player
corresponds to USD 142,000, without any breakdown relating to the date(s) on
which (partial) payment(s) of this amount fell due. Furthermore, with respect to the
second contract, the Chamber noted that the Claimant’s petition does not include
any claim relating to benefits in kind.
7.
In continuation, the Chamber took into account that in his claim and throughout
the proceedings in the matter at hand the player acknowledged that he had
received the said “loan fee” and the “down payment”, both of which are, in fact,
stipulated in the first contract presented by the Respondent, and all of his salaries
up to and including June 2006.
8.
As regards the “loan fee”, the members of the Chamber noted that the Claimant,
apparently in support of his position that the Respondent had failed to comply with
its contractual obligations, pointed out that such “loan fee” was in fact to be paid
to his former club. Such circumstance was confirmed by the Respondent. In this
respect, the Chamber emphasised that according to the first contract the
Respondent had the obligation to pay a “loan fee” to the Claimant, receipt of
which, as stated above, was confirmed by the Claimant. The members of the
Chamber deemed it fit to point out that both contracts presented by the parties
involved in the matter at stake do not include any mention whatsoever of such
“loan fee” being payable by the player to another club and/or that the total
amount of 1,310,000,000 would be exclusive of the said “loan fee”. Consequently,
the Chamber deemed that the Claimant’s statement in this respect must be
considered irrelevant.
9.
The Respondent, for its part, affirms having paid the Claimant’s dues up to and
including the month of July 2006 and confirms that no payments have been made
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to the Claimant as from August 2006 until December 2006. In this respect, the
Chamber took into account that the Respondent had failed to present documentary
evidence demonstrating that the Claimant’s salary of July 2006 had indeed been
duly paid to the Claimant.
10.
Taking into account all of the above considerations, the members of the Chamber
concluded that the Respondent had complied with its contractual obligations up to
and including the month of June 2006.
11.
The Chamber then reverted to the Respondent’s assertion that it had ceased its
payments to the Claimant as from August 2006 in the light of the Claimant’s
departure from the club without formal notice in the same month.
12.
In this context, the members of the Chamber recalled that, in reply to FIFA’s request
for information, the Claimant confirmed that he had left the club on 1 August 2006
“following the breach of contract committed by the Respondent”.
13.
On the basis of the above-mentioned facts, the members of the Chamber came to
the conclusion that the day on which the player had left the club only one monthly
salary (i.e. July 2006) had been outstanding since just a few days, taking into
account that monthly salaries are typically paid out towards the end of the relevant
month in which employment services have been rendered. Consequently, and
bearing in mind the Claimant’s statement that he had left the club “following the
breach of contract committed by the Respondent”, the Chamber emphasised that,
in fact, the Respondent cannot be found liable of any breach of contract.
14.
In this context, the DRC referred to art. 12 par. 3 of the Procedural Rules in
accordance with which any party deriving a right from an alleged fact shall carry the
burden of proof.
15.
Consequently, the Claimant having failed to demonstrate in accordance with art. 12
par. 3 of the Procedural Rules that he was authorised by the Respondent or had just
cause to leave the Respondent as early as on 1 August 2006, the Chamber concurred
that the Respondent had valid reasons to cease any contractual payments due to
the Claimant subsequent to the date on which the Claimant had left the club.
16.
On account of the above, the Chamber decided that the Claimant is not entitled to
any compensation for breach of contract without just cause.
17.
Furthermore, on account of the above considerations, the Chamber decided that
the Claimant is entitled to receive from the Respondent the outstanding salary of
67,000,000 relating to the month of July 2006.
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18.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% per annum as of 4 December 2006
until the date of effective payment.
19.
Finally, in accordance with the constant jurisprudence of the DRC and in line with
art. 15 par. 3 of the Procedural Rules, the Chamber decided to reject the Claimant’s
claim relating to a contribution to his legal expenses.
20.
In conclusion, the Chamber decided to partially accept the claim lodged by the
Claimant.
21.
The DRC concluded its deliberations by rejecting any further request filed by the
Claimant.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player, E, is partially accepted.
2.
The Respondent, the club, P, has to pay to the Claimant within 30 days as from the
date of notification of this decision the amount of 67,000,000 plus 5% interest p.a.
due as of 4 December 2006 until the date of effective payment.
3.
If the sum of 67,000,000 plus interest is not paid by the Respondent to the Claimant
within the aforementioned time limit, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for its consideration and decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
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According to art. 63 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
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 Secretary General
Encl.: CAS directives
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