Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 9 November 2004, in the following composition: Slim Aloulou (Tunisia), Chairman Philippe Piat (France), member Philippe Diallo (France), member on the claim presented by Player X, Brazil as Claimant against Y, Morocco as Respondent regarding a contractual dispute between the parties involved./

2 Facts of the case: An employment contract between the player X and the Moroccan club Y was signed on 24 April 2002 with validity as of 31 July 2002 for the 2002/2003 season. On 12 November 2003 Mr. X approached FIFA claiming the non-payment of his entire contract with the Moroccan club. Upon being questioned with respect to the player s allegations, the respondent explained that the club did not deem it owed Mr. X anything, since it paid the agent of the player an amount of USD upon signing the contract, after which both the player and the agent apparently disappeared from the club. No documentary proof has been provided to support this statement. The claimant denies ever having received any money from the respondent and explains furthermore that the reason he left Y was that this club sent him on loan to a Saudi Arabian club for a period of three (3) months. This has been confirmed by the Saudi Arabian Football Federation, which claims that the player was loaned from Y to the Saudi Arabian club A S.C. for three (3) months, from until , for an amount of USD A copy of the player s International Registration Transfer Certificate, sent from the Moroccan Football Federation to the Saudi Arabian Football Association on , has been provided to substantiate this information, as well as copies of the player s employment contract with A S.C. and of the transfer agreement between the two clubs. During his stay with the Saudi club, Mr. X had been paid a salary of USD per month. According to the player, when his contract with the Saudi Arabian club ended, Y informed him that they did not want him to return to Morocco. He was not offered any explanations, nor any damage compensation, as a result of this unilateral cancellation of the contract. The Saudi Arabian Football Association has confirmed that the Moroccan Football Federation never requested the return of the player s International Registration Transfer Certificate after his contract with A S.C. terminated. Mr. X is now back in Brazil and has been unemployed ever since. He claims the following amounts in concept of salaries, unpaid fees, and damage compensation for breach of contract: * USD (signing-on fee) * USD (one year s salaries) * USD (hotel bills and airplane tickets) * USD (bonus payment) * USD (damage compensation for the invalid termination of the contract) Considerations of the Dispute Resolution Chamber The Dispute Resolution Chamber of the FIFA Players Status Committee shall review disputes coming under its jurisdiction pursuant to Art. 42 of the FIFA Regulations for the Status and Transfer of Players (hereafter: FIFA Regulations) at the request of one of the parties to the dispute. Player X, Brazil / Y, Morocco Page 2 of 5

3 According to Art. 42 of the FIFA Regulations for the Status and Transfer of Players, the triggering elements of the 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 of the FIFA Players Status Committee. Consequently, the Dispute Resolution Chamber is the competent body to decide on the present litigation concerning the alleged breach of contract between the claimant and the respondent. The members of the Dispute Resolution Chamber were summoned to pass a decision on this matter by the Chairman pursuant to Art. 1 point 6) of the Rules Governing the Practice and Procedures of the Dispute Resolution Chamber. Subsequently, and entering into the substance of the matter, the Chamber observed that although Mr. X claimed he had not been paid any of his salaries since the day his contract with the Moroccan club became effective, the club had not essentially disputed the nonpayment of his salaries. Instead, the respondent focused its defence on the allegation that it had paid an amount of USD to the player and his agent at the signing of the contract, after which they both disappeared with the money and did not return to the club. In response, the claimant denied having received any such payment and has also clarified that he did not simply disappear from the club, but rather, he departed in order to comply with his duties at a Saudi Arabian club to which he had been loaned. After the expiration of the loan period, the player explained, he was unable to resume his duties at Y due to the fact that he was prevented from returning by the club itself. The members of the Chamber remarked that the aforementioned explanations offered by the claimant have been backed by the declarations and evidence provided by the Saudi Arabian Football Federation in this regard. This Saudi Arabian Football Federation has in fact confirmed that the player was loaned from Y to the Saudi Arabian club A S.C. for a period of three (3) months between October 2002 until January 2003, for an amount of USD Apparently, as sustained by the player himself, the club in Morocco refused to allow his reintegration once the loan period had expired, also evidenced by the fact that the Moroccan Football Federation never asked for the return of his International Registration Transfer Certificate. The Saudi Arabian Football Federation has substantiated its statements with a copy of the loan contract signed between the clubs A S.C. and Y, a copy of the player s temporary employment contract with A S.C., and a copy of the International Registration Transfer Certificate sent from the Moroccan Football Federation to the Saudi Arabian Football Association on Player X, Brazil / Y, Morocco Page 3 of 5

4 The Dispute Resolution Chamber remarked that these circumstances belied the statements of defence presented by the respondent. The player could not have been loaned to another club if he had effectively deserted the club from which he was being loaned. Moreover, the Chamber reasoned, if the claimant had in fact departed with the USD as affirmed by the respondent, it is incomprehensible why no proof has been submitted to substantiate this payment, nor is it clear why a formal complaint was never filed at FIFA at the time of the player s alleged disappearance. In conclusion, the members of the Dispute Resolution Chamber deemed the allegations put forward by the claimant are credible and unambiguous, particularly in light of the respondent s inability to disprove any of the claimant s statements or to establish a substantiated defence. Consequently, the respondent shall be held responsible for the disputed breach of contract. All the same, the Chamber felt the claimant s financial demands could not be entirely accepted. Although it was decided that there had been a breach of his contract on the side of the respondent, it shall be taken into account that the player had in fact not been involved in the activities of the club since at least the month of October 2002, when he departed to Saudi Arabia. In this respect the Chamber found it reasonable to grant the claimant his salaries for the months that he was under contract with Y, minus the three months that he had been remunerated by the Saudi Arabian club. In conclusion, the amount to be paid by the respondent is of 9 months of salaries at USD 500,- each, that is a total of USD The remaining financial claims of the player were rejected. Player X, Brazil / Y, Morocco Page 4 of 5

5 Decision of the Dispute Resolution Chamber 1. The claim lodged by the Claimant is partially accepted. 2. The Respondent shall pay an amount of USD to the Claimant, Mr. X, within 30 days following the date of the communication of the present decision. 3. In the event that this amount is not paid within the stated deadline, an interest rate of 5% per year will apply. 4. If the aforementioned sum is not paid within the stipulated deadline, the present matter shall be submitted to FIFA s Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed. 5. According to art. 60 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 10 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: Avenue de l Elysée Lausanne Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Urs Linsi General Secretary Encl. Player X, Brazil / Y, Morocco Page 5 of 5