Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 1 June 2005, in the following composition: Slim Aloulou (Tunisia), Chairman Jean-Marie Philips (Belgium), member Philippe Diallo (France), member Philippe Piat (France), member Michele Colucci (Italy), member on the claim presented by the player, X, Bosnia and Herzegovina, as Claimant against the club, Y, Cyprus as Respondent regarding a contractual dispute between the player and the club,

2 Facts of the case On 11 January 2003, the parties signed an employment contract valid for a fixed period of 18 months from 11 January 2003 to 30 June In accordance with this contract, the player is entitled to receive, inter alia, the total amount of EUR 140,000 (free of taxes) payable as follows: EUR 28,000 upon receipt of the player s proof that he is able to fulfil his transfer; EUR 112,000 in 18 monthly instalments. In addition, the player is entitled to receive bonuses (free of taxes) for matches won in accordance with the internal club regulations. No copy of these internal club regulations has been made available to FIFA. Article 10 of this contract stipulates that the club shall pay the player s emoluments with a grace period of 60 days. According to article 8, a financial dispute between the parties shall be subject to arbitration before the competent authority of the Cyprus Football Association (CFA) pursuant to the provisions governing financial disputes applicable by the CFA. According to article 15, the parties agree to submit to the exclusive jurisdiction of the competent sporting organs and/or authorities of Cyprus setting aside and/or otherwise waiving the provisions of any labour law and/or labour related tribunal as well as the jurisdiction of any civil courts. On 15 January 2004, the parties signed an agreement in accordance with which the club was obliged to pay to X the amount of EUR 32,000 on or before 29 February 2004 in full settlement of all outstanding monies in connection with his employment. Furthermore, should this deadline be met, the player would withdraw any claim against the Cypriot club. On the other hand, according to clause 3, should the said deadline be ignored by the club, the player would reserve all claims in connection with his employment contract. The said agreement also stipulates that the club undertakes to notify the Cyprus Football Association to issue the international registration transfer certificate. On 23 March 2004, the player turned to FIFA claiming that the club failed to pay any amount of money and therefore, X claims payment of the following monies invoking the above-mentioned clause 3 of the settlement agreement: 2

3 a) 50% of January 2003 salary EUR 3,111 b) Balance for salaries March July 2003 EUR 1,000 c) Salaries from August December EUR 31, d) Bonuses for the season CYP 9,250 (EUR 15,725 acc. to player) e) Reimbursement of air ticket costs EUR 1,000 f) School fees for player s child EUR 350 TOTAL CYP 9,250 and EUR 36,571 As regards point f) it must be noted that the employment contract includes a pertinent clause, however, no receipts have been presented by the player. As regards points e) and f) it must be noted that the player withdrew these items in reaction to the club s response. With respect to point d) regarding match bonuses no supporting documentation has been presented by the player. In reply, the club confirms that items a) and c) above are outstanding. The club strongly denies that items b), d), e), and f) above are due to the player maintaining that these claims are unfounded. No supporting documentation has been presented by the club in this regard. However, Y claims that the Dispute Resolution Chamber has no jurisdiction in the present matter referring to articles 8 and 15 of the employment contract. Therefore, according to the club, X s claim should be rejected. In reply to the club s response, the player has specified the matches in relation with which he claims being entitled to bonuses. Furthermore, he withdrew his claim relating to air ticket costs and school fees. As regards the jurisdiction of the Dispute Resolution Chamber in the present matter, the player asserts that his claim is based on the agreement dated 15 January 2004 by means of which the employment contract was terminated. As a result, the club cannot invoke the above-mentioned provisions regarding jurisdiction. For this and other reasons, X denies that FIFA has no jurisdiction to decide on this case. 3

4 Considerations of the Dispute Resolution Chamber The members of the Chamber considered that, in principle, in accordance with Article 42 of the FIFA Regulations for the Status and Transfer of Players the Chamber is competent to deal with matters as the case at hand. However, taking into account articles 8 and 15 of the relevant employment contract, which are being invoked by the Respondent in its motivation, the Chamber deemed that the question as to whether it has jurisdiction in the present matter must be answered. Article 15, which deals with exclusive jurisdiction, stipulates that exclusive jurisdiction is assigned to competent sporting organs and/or authorities of Cyprus The Chamber concurred that this ambiguous phrase can be interpreted in such a way that it would include the Dispute Resolution Chamber, which indeed is a competent sporting organisation. In addition, the members of the Chamber agreed that in the absence of a national sports arbitration tribunal composed of members chosen in equal numbers by players and clubs as well as an independent chairman (cf. article 42 par. 1 (b)(i) of the Regulations for the Status and Transfer of Players [hereinafter referred to as the Regulations ]), at the request of a party, the Dispute Resolution Chamber of the FIFA Players Status Committee is competent to deal with an employment-related dispute between a player and a club that has an international dimension, i.e. the parties involved do not belong to the same country. The Chamber acknowledged that the Respondent was unable to prove that an independent arbitration tribunal in compliance with the requirements of the Regulations has been established in Cyprus. As a consequence, the members of the Chamber established that the Respondent s objection to the competence of FIFA to deal with the matter has to be rejected and that the matter can be considered as to the substance. The Chamber noted that approximately one year after the commencement of the player s employment at Y, on 15 January 2004, the parties signed an agreement in accordance with which the club was obliged to pay to X the amount of EUR 32,000 on or prior to 29 February 2004 in full settlement of all outstanding monies. According to clause 3, should this time limit not be respected by the Cypriot club, the player would reserve all his rights in accordance with the employment contract that was signed between the parties on 11 January From the claim lodged by the player in March 2004, it can be noted that the aforementioned time limit was not respected by the Cypriot club and, therefore, X, invoking clause 3 of the above-mentioned settlement agreement, claims payment of certain monies on the basis of the employment contract. 4

5 In its response to this claim, Y acknowledges that it owes 50% of X s salary for January 2003 (EUR 3,111) as well as salaries as from August 2003 until December 2003 (EUR 31,110) to the total amount of EUR 34,221. This amount surpasses the amount of EUR 32,000 contained in the settlement agreement. Subsequently, the members of the Chamber concluded that Y implicitly accepts the validity of the aforementioned clause 3 of the settlement agreement. The Chamber then turned in greater detail to the player s financial claim that also contains allegedly outstanding bonuses for the season to the amount of CYP 9,250. According to the Cypriot club, the player s claim for bonuses is unfounded. However, it failed to present pertinent documentary evidence in support of its position. On the other hand, the player, X, has plainly produced an enumeration of the matches on the basis of which he maintains being entitled to bonuses without having presented any pertinent documentary evidence in this regard. Consequently, the Chamber agreed to accept the player s claim for bonuses to 50% only. Finally, the Chamber duly noted that the club, Y, has not presented any written evidence pertaining to payment of the claimed balance for salaries due for March to July As a consequence, the Chamber decided that the relevant amount of EUR 1,000 must also be awarded to the player, X. In the light of all of the above, the Chamber decided that Mr. X is entitled to receive the amounts of EUR 35,221 and CYP 4,625. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, X, is partially accepted. 2. The Respondent, Y, has to pay the amounts of EUR 35,221 and CYP 4,625 to the Claimant. 3. The amount due to the Claimant has to be paid by the Respondent within 30 days as from the date of notification of this decision. 4. In the event that the debt of the Cypriot club is not paid within the stated deadline, an interest rate of 5% per year will apply as of expiry of the aforementioned deadline. 5

6 5. If the sums of EUR 35,221 and CYP 4,625 are not paid within the aforementioned deadline, the present matter shall be submitted to the FIFA Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed. 6. The Claimant is directed to inform the Respondent immediately of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. 7. 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: For the Dispute Resolution Chamber: Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org Urs Linsi General Secretary Enclosed: CAS directives 6