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 a matter between the player
X,
as Claimant
and the club
Y,
as Respondent
regarding a contractual dispute between the parties
I.
Facts of the case
1.
On 1 July 2006, the player X (hereinafter: the player), and the club Y (hereinafter:
the club), signed an employment contract valid from the day of the signature until
30 June 2009.
2.
According to this employment contract, the player is entitled to a monthly salary
of 6,500 during the seasons 2006/2007, 2007/2008 and 2008/2009. Furthermore,
the relevant employment contract stipulates that disputes concerning the
rescission of the contractual relationship shall be decided by the competent bodies
(first and second instance) of the Y Football Association. Possible financial disputes
that could arise shall, according to the contract, be decided by the “arbitration
tribunal for football players”.
3.
On 6 September 2007, the player contacted FIFA in connection with the relevant
employment contract. In particular, the player stated that after the end of the first
season, i.e. on 8 June 2007, he went on authorized vacation to country X. On 30
June 2007, when he intended to resume duty with the club for the second season,
he was not able to re-enter country Y.
4.
In this respect, the player argued that on his way to country Y, at the international
airport in country S, the airline refused to issue the boarding card to him since his
visa had expired in January 2007 and he had also not been in possession of a
round-trip ticket allowing him to enter country Y as a tourist. Thus, he had no
other option than to go home to country X.
5.
Furthermore, the player affirmed that, after that, he had repeatedly asked the
club to provide him with the relevant work permit in order to obtain the visa in
question, however, without success.
6.
Therefore, the player requested that the club shall immediately provide him with
the relevant work permit so as to enable him to resume duty with it. Should the
club though not be interested in his services anymore, the player requested to be
immediately released from the employment contract.
7.
In its response dated 19 September 2007, the club argued that the player was
found in breach of contract. In particular, the club alleged that, in summer 2007,
the player had failed to return to the club from his holidays in country X without
giving any explanation. In this respect, the club affirmed that it had even
extended the term for the player to return (from beginning of July) until 15
August 2007.
8.
Consequently, the club had submitted a petition, dated 17 August 2007, to the
national dispute resolution chamber of the Y Football Association for dissolution
of the relevant contract on the player’s fault. In view of the claim pending before
the relevant deciding body of the Y Football Association, the club requested to
stay the proceedings before FIFA.
9.
On 9 October 2007, the dispute resolution chamber of the Y Football Association
decided, in absence of the player, that the contractual relationship between the
club and the player was dissolved “on the grounds of the Player’s fault”.
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10.
In his replica of 5 November 2007, the player argued that he did not recognise the
validity of the above-mentioned decision taken by the relevant body of the Y
Football Association for the reasons set out below (cf. points I.11. – I.13.).
However, the player agreed with the termination of the contractual relationship
between him and the club provided that the club would pay him the salaries until
the end of the season.
11.
In this respect, the player emphasised that he had been informed about the
pending proceedings at the Y Football Association and invited to present himself
at the national tribunal in question on 26 September 2007 only after he had
lodged a complaint at FIFA in the matter at stake. Therefore, the player deemed
that the club’s claim before the relevant body of the Y Football Association had
been made too late and, as a consequence, could not be taken into consideration.
12.
Furthermore, the player emphasized that he had not been in a position to attend
the meeting at the tribunal of the Y Football Association. In this context, the
player recalled that he had lodged a claim at FIFA for not being in possession of
the relevant visa to enter country Y due to the club’s fault.
13.
Moreover, the player argued that the relevant tribunal of the Y Football
Association was not independent and did not respect the principle of equal
representation of the parties, i.e. clubs and players.
14.
On 27 February 2008, the player amended his complaint lodged against the club at
FIFA. In particular, the player claimed from the club outstanding salaries for the
period between July 2007 until February 2008 in the amount of 52,000 (8 x 6,500)
and compensation corresponding to the rest value of the season, i.e. the period
between March 2008 until December 2008, in the amount of 65,000 (10 x 6,500).
Overall the player’s claim amounts to 117,000.
15.
In its duplica, the club reiterated that the contract with the player had been
terminated by the decision of the dispute resolution chamber of the Y Football
Association dated 9 October 2007. In this regard, the club pointed out that it was
not able to determine as to whether the dispute resolution chamber of the Y
Football Association had indeed been established in accordance with the
requirements set out in the FIFA Regulations. Consequently, the club referred to
information to be provided by the Y Football Association.
16.
On 19 June 2008, the Y Football Association, upon request, informed FIFA in
writing that the dispute resolution chamber “in light of current regulations is a
body entitled to terminate players’ contracts. Presently it takes a position of
National Dispute Resolution Chamber which will be composed in the nearest
future as a Status based body”. However, the Y Football Association did not
provide FIFA with any documentary evidence with regard to its composition and
functioning.
17.
On 6 February 2008, the player signed a contract with the Club Z, valid from 25
May 2008 until the end of the official tournament of the season 2008. Under the
terms of this contract the player’s salary was to be determined at the moment of
the issuance of the ITC for the player. However, according to a confirmation issued
by the X Football Association the player did not sign any contract during the
season 2008.
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (DRC) analysed whether it was
competent to deal with the case at hand. In this respect, the Chamber referred to
art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules). The present matter was submitted to FIFA on 6 September 2007,
thus before 1 July 2008. Consequently, the Chamber concluded that the 2005
edition of the Procedural Rules is applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of
the Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2005). In accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b) of the aforementioned Regulations, the Dispute
Resolution Chamber would, in principle, be competent to deal with the matter at
stake, which concerns an employment-related dispute with an international
dimension between a player and a club.
3.
However, the Chamber acknowledged that the Club, Y (hereinafter: the
Respondent) contested the competence of FIFA to deal with the present matter
due to the fact that the latter had already been dealt with as to the substance by
the national dispute resolution chamber of the Y Football Association.
4.
In this regard, the Chamber observed that the player X (hereinafter: the Claimant)
argued that the above-mentioned deciding body of the Y Football Association did
not guarantee him fair proceedings. In particular, it was not independent and did
not respect the principle of equal representation of the parties, i.e. clubs and
players. Therefore, the Claimant contested the competence of the deciding body
of the Y Football Association and, consequently, did not participate in the
procedure pending in country P. Furthermore, the Claimant pointed out that, in
any case, the matter at hand had been pending before the deciding bodies of FIFA
before he was informed that a claim had been lodged by the Respondent before
the national dispute resolution chamber of the Y Football Association.
5.
In this context, the Chamber emphasized that in accordance with art. 22 b) of the
Regulations on the Status and Transfer of Players, the DRC is competent to deal
with a matter such as the one at hand 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. With
regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to FIFA Circular no. 1010
dated 20 December 2005 (hereinafter: the Circular no. 1010) and the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations (hereinafter: the FIFA NDRC Regulations) which came into force on 1
January 2008.
6.
In view of the above, the Chamber went on to examine the documentation
regarding the composition and the functioning of the national dispute resolution
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chamber in question presented by the Respondent and the Y Football Association.
In this regard, the Chamber acknowledged that the Respondent referred in its
duplica to information to be provided by the Y Football Association.
7.
In this respect, the Chamber took due note that, according to the Y Football
Association, the national dispute resolution chamber “in light of current
regulations is a body entitled to terminate players’ contracts. Presently it takes a
position of National Dispute Resolution Chamber which will be composed in the
nearest future as a Status based body”. In particular, the Chamber acknowledged
that the Y Football Association did not provide any documentary evidence with
regard to the composition and functioning of the deciding body in question, in
spite of FIFA’s respective requests.
8.
Thus, in light of the above-mentioned statement of the Y Football Association
related to their national dispute resolution chamber and the fact that no
documentary evidence was provided by the Y Football Association with regard to
the composition and functioning of said body, the members of the Chamber were
of the unanimous opinion that the Respondent was not able to prove that the
national dispute resolution chamber of the Y Football Association fulfilled the
minimum procedural standards stipulated in art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the FIFA Circular no. 1010 and the FIFA NDRC
Regulations, at the time when the relevant decision was rendered by said body.
9.
As a consequence, the DRC decided that it could not recognise said decision as
well as its effects, since it was passed by a deciding body in lack of jurisdiction.
Thus, based on the fact that the matter is not affected by the general legal
principle of res judicata, the DRC rejected the Respondent’s objection and
declared itself competent to decide on the matter at hand between a player and a
club in accordance with art. 22 lit. b) ab initio of the Regulations on the Status and
Transfer of Players. For the sake of completeness, the DRC underlined that, in view
of the foregoing conclusion, the pertinent clause of the employment contract
referring to the resolution of disputes cannot be considered and construed as a
valid clause of competence.
10.
Subsequently, the Chamber analysed which edition of the Regulations on 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 on the Status and Transfer of Players (editions 2008, 2009
and 2010) and, on the other hand, to the fact that the present claim was lodged
on 6 September 2007 and amended on 27 February 2008 as well as that the
relevant employment contract was signed on 1 July 2006. The Dispute Resolution
Chamber concluded that the 2005 version of the Regulations for the Status and
Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
11.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
the Chamber recalled that, on 1 July 2006, the Claimant and the Respondent had
signed an employment contract valid from the date of the signature until 30 June
2009. The Chamber acknowledged that according to the relevant contract the
Claimant was entitled to receive a monthly salary of 6,500 during the seasons
2006/2007, 2007/2008 and 2008/2009.
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12.
In continuation, the Chamber paid due consideration to the fact that the Claimant
claimed from the Respondent allegedly outstanding salaries and compensation for
breach of contract respectively for the period between July 2007 and December
2008 in the total amount of 117,000.
13.
In this regard, the Chamber took due note that the Claimant stated that after the
end of the first season of the contract, i.e. on 8 June 2007, he went on authorized
vacation to country X and on 30 June 2007, when he intended to resume duty
with the Respondent for the second season of the contract, he was not able to reenter country Y due to the fact that his visa had expired in January 2007 and he
had also not been in possession of a round-trip ticket allowing him to enter
country Y as a tourist. Thus, he had no other option than to go home to country X.
Moreover, the Chamber acknowledged that the Claimant affirmed that, after
that, he had repeatedly asked the club to provide him with the relevant work
permit in order to obtain the visa in question, however, without success.
14.
Subsequently, the Chamber went on examining the answer of the Respondent as
to the substance of the claim. In this regard, the Chamber observed that the
Respondent argued that the Claimant was found in breach of contract. In other
words, the Respondent rejected the Claimant’s claim maintaining that it had a just
cause to terminate their contractual relationship.
15.
In particular, the Chamber acknowledged that according to the Respondent, in
summer 2007, the Claimant had failed to return to it, the Respondent, from his
holidays in country X without giving any explanation. In this respect, the Chamber
noted that the Respondent assured that it had even extended the term for the
player to return (from beginning of July) until 15 August 2007.
16.
In view of the above, the Chamber recalled that the Respondent had submitted a
petition, dated 17 August 2007, to the national dispute resolution chamber of the
Y Football Association in order to terminate the relevant labour relationship.
Consequently, the Chamber determined that the relevant employment contract
between the Claimant and the Respondent had to be considered as terminated by
the Respondent on 9 October 2007, at the moment when, upon its request, the
relevant decision regarding the dissolution of the contract in question was
rendered by the national dispute resolution chamber of the Y Football
Association. This, despite the fact that said decision could not be recognised by the
DRC as outlined above (cf. point II.9.). In this respect, the Chamber clarified that
the Claimant had not accepted the aforementioned decision, but subsequently he
had agreed with the termination of the contractual relationship provided the
Respondent would pay him the salaries until the end of the season.
17.
Having established that the Respondent was responsible for having terminated
the contractual relationship with the Claimant at the beginning of October 2007,
the Chamber went on to analyse whether the contract in question had been
terminated by the Respondent with or without just cause.
18.
In this regard, and taking into consideration the line of argumentation of the
parties, the Chamber referred to art. 18 par. 4 of the Regulations which stipulates,
inter alia, that the validity of a contract may not be made subject to the grant of a
work permit. In this respect, the members stated that the contents of art. 18 par. 4
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of the Regulations were of mandatory nature and could not be circumvented. The
Respondent had therefore been required to undertake all appropriate steps to
duly acquire a work permit for the Claimant not only before concluding the
relevant contract but also during the term of said contract.
19.
Taking into account the above, the members of the Chamber acknowledged that
the Respondent did not explicitly contest the argument of the Claimant that he
lacked a work permit and consequently a visa to re-enter country Y after his
holidays in country X in summer 2007, but that it merely alleged that the Claimant
had failed to return to it without giving any explanation.
20.
Therefore, the Chamber concluded that the Respondent appeared to have
recognized the fact that, at the moment in question, it had not acquired the
relevant work permit and visa for the Claimant from the local authorities in order
to enable him to return to the club and fulfil his contractual obligations.
21.
Moreover, the members of the Chamber deemed it also appropriate to recall the
general principle of burden of proof stipulated in art. 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof. In this regard, the Chamber was eager to
underline that the Respondent did not submit any document or any explanation
attesting that it had acquired the work permit in question (which would, in the
Chamber’s view, have been fairly easy to prove). By contrast, the DRC enlightened
the fact that the Claimant had apparently repeatedly asked the Respondent to
provide him with the necessary work permit in order to resume duty with it.
22.
Consequently, the members of the Chamber had no alternative but to conclude
that the Respondent had failed to create any plausible doubt in the members’
minds with regard to the Claimant’s assertions concerning the missing work
permit. Thus, in the absence of the proof of the contrary, the DRC considered that
the required work permit for the Claimant had not been acquired by the
Respondent.
23.
In this regard, the Chamber emphasised that the Respondent had not exercised
the usual care expected from it in business life and thus acted in a negligent
manner.
24.
Furthermore, the Chamber highlighted that if a club does not use this diligence
when signing a player or having a player under contract, the club cannot claim
afterwards that the failure to fulfil a contract was based on the fact that the
player has not received a work permit. In other words, the Chamber held that,
once a contract had been signed, all parties involved could rely in good faith on it
being respected and enforced and, thus, the parties had the obligation to strictly
comply with the terms of the contract and their related duties.
25.
In view of all the aforementioned considerations, the Chamber came to the
conclusion that the Respondent’s failure to respect the contract represents an
unconditioned breach of contract without just cause.
26.
In continuation, the Chamber acknowledged that the Respondent undisputedly
did not pay the Claimant the remuneration due under the relevant employment
contract as from July 2007.
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27.
Consequently, the Chamber decided that the Respondent is liable to pay all
outstanding monies due under the relevant employment contract until the date
on which the contractual relationship had been terminated, i.e. until 9 October
2007.
28.
In this respect, the Chamber determined that remuneration for the entire months
of July until September 2007 (3 x 6,500 = 19,500) and for 9 days of the month of
October 2007 1,887) in the overall amount of 21,387 remained outstanding.
29.
As a result, the Chamber concluded that the Claimant was entitled to receive from
the Respondent outstanding remuneration for the months of July until October
(pro rata) 2007 in the amount of 21,387.
30.
Having established that the Respondent had breached the employment contract
concluded with the Claimant, the Chamber turned to art. 17 par. 1 of the
Regulations, according to which, in all cases, the party in breach shall pay
compensation.
31.
In this regard, the Chamber focussed its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of the Chamber firstly recapitulated that, in accordance with art. 17
par. 1 of the Regulations, the amount of compensation shall be calculated in
particular and unless otherwise provided for in the contract at the basis of the
dispute, with due consideration for the law of the country concerned, the
specificity of sport and further objective criteria, including in particular the
remuneration and other benefits due to the player under the existing contract
and/or the new contract, the time remaining on the existing contract up to a
maximum of five years as well as the fees and expenses paid or incurred by the
former club (amortised over the term of the contract) and whether the contractual
breach falls within a protected period. The Dispute Resolution Chamber recalled
that the list of objective criteria is not exhaustive and that the broad scope of
criteria indicated tends to ensure that a just and fair amount of compensation is
awarded to the prejudiced party.
32.
Taking into account the above, the Chamber emphasised that the Claimant would
have been entitled to receive a monthly salary amounting to 6,500 during the
entire term of the contract in question, i.e. until 30 June 2009, and that the
Claimant had apparently remained unemployed after the termination of the
contract, i.e. 9 October 2007, until the end of the season 2008. In other words, he
did not receive any remuneration during this period of time.
33.
Consequently, in view of all of the above-mentioned considerations and the
specificities of the case at hand as well as the claim of the Claimant (i.e. to be
compensated until the end of 2008), the Chamber decided that it was adequate to
award the Claimant the amount of 95,613 as compensation for breach of contract
committed by the Respondent, in accordance with the pertinent provisions of art.
17 of the Regulations.
34.
In conclusion, the Dispute Resolution Chamber decided that the Respondent must
pay to the Claimant outstanding salaries in the amount of 21,387 and
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compensation for breach of contract in the 95,613, i.e. the total amount of
117,000, and therefore the Claimant’s claim is accepted.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is accepted.
2.
The Respondent, Y, must pay to the Claimant, X, the amount of 117,000, within
30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% per year will apply as of expiry of the aforementioned
timeframe and the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee so that the necessary disciplinary sanctions may be
imposed.
4.
The Claimant, X, is directed to inform the Respondent, Y, 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):
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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