Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 12 January 2006, in the following composition: Slim Aloulou (Tunisia), Chairman Jean-Marie Philips (Belgium), Member Zola Malvern Percival Majavu (South Africa), Member Rinaldo Martorelli (Brazil), Member Theo van Seggelen (Netherlands), Member on the claim presented by Player A, as Claimant against Club B, as Respondent regarding a dispute about the employment contract concluded between the parties.

2 I. Facts of the case 1. The player A and the club B concluded an employment contract valid from January 2004 until October 2005, stipulating a gross monthly salary of USD 6,500 (net USD 5,525), rental of an apartment for USD 1,400, and the payment of one flight ticket from X to Y per year for the player and his family. 2. On 15 May 2004, the club notified the player that it unilaterally terminated the employment contract due to the player s injury, and paid the player a compensation of two monthly salaries. 3. On 9 July 2004, the player A submitted a claim to FIFA against the club B, maintaining that the club had no just cause to unilaterally terminate the contract and should therefore be condemned to pay compensation. 4. In this respect, the player claims for USD 97,500, being the salaries from 1 June 2004 to 31 October 2005, less the compensation of two monthly salaries, which the club had already paid to the player. 5. Moreover, the player claims for USD 23,800, being the amount related to the apartment rentals from 1 June 2004 to 31 October On 3 February 2005, the club B replied to the claim of the player by presenting a cheque signed by the player for the receipt of USD 11,050, being the two months compensation for the early termination of the contract. 7. The club is of the opinion that by signing this cheque, the player agreed on the premature termination of the contract. 8. Note: Since the termination of the player s contract with club B, the player did not enter into a labour relationship with any other club. II. Considerations of the Dispute Resolution Chamber 1. The matter at stake was submitted to FIFA before 1 July Therefore, and in accordance with Article 18 Para. 2 and 3 of the revised Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (edition 2005), not the revised Rules, but the previous Rules Governing the Practice and Procedures of the Dispute Resolution Chamber (edition 2002, hereinafter referred to as; the Procedural Rules) do apply on the matter at hand as procedural rules. 2. Moreover, in accordance with Article 26 Para. 1 and 2 of the revised Regulations for the Status and Transfer of Players (edition 2005), not the revised Regulations, but the previous Regulations for the Status and Transfer of Players 2/6

3 (edition 2001, hereinafter referred to as; the Regulations) do apply on the dispute at stake as far as the substance of the matter is concerned. 3. The members of the Dispute Resolution Chamber of the FIFA Players Status Committee were summoned to pass a decision on the matter at stake by the Chairman of the Dispute Resolution Chamber pursuant to Art. 1 point 6) of the Procedural Rules. 4. The members of the Chamber started its deliberations asserting that the matter at stake concerns a dispute about the unilateral termination of an employment contract concluded between a player and a club, and a request for compensation in view of such unilateral termination. 5. In accordance with Art lit. (b) of the Regulations, and in particular Para. (i) of the said provision, it falls within the purview of the Dispute Resolution Chamber to determine whether one of the parties has committed a unilateral breach of contract without just cause. In the case that the employment contract was breached by a party, the Dispute Resolution Chamber is responsible to verify and decide whether this party is accountable for outstanding payments and compensation. 6. In view of the above, the Dispute Resolution Chamber concluded that it was competent to decide on the present litigation. 7. Entering into the substance of the matter, the Chamber acknowledged the facts of the case as well as the documentation contained in the file, and in view of the circumstances of the matter, turned to the question whether the club has committed a unilateral breach of the employment contract without just cause, and if so, to verify and decide whether the club is accountable for outstanding payments and compensation. 8. With regard to the question whether the club has committed a unilateral breach of the employment contract without just cause, the Chamber took note that the club indicated as reason for the early termination of the employment contract an injury of the player. 9. In this regard, the Chamber had to deliberate if this was a just cause for the club to terminate the contract. 10. The Chamber stated that according to its constant and persistent jurisprudence, the premature and unilateral termination of an employment contract by a club because of an injury of the player was always considered as an abusive termination of the contract without just cause. 3/6

4 11. Moreover, the Chamber stated that if such a termination would be accepted as a termination with just cause, this would create a disproportionate repartition of the rights of the parties to an employment contract, to the strong detriment of the player. 12. Therefore, the Dispute Resolution Chamber stated that the fact that a player is injured during the course of an employment contract is clearly not a just cause for the club to prematurely and unilaterally terminate the employment contract. 13. On account of the above, the Chamber concluded that the employment contract between the player A and the club B was terminated by the club in question without just cause. 14. In consequence, the Dispute Resolution Chamber had to verify and decide whether the club B is accountable for outstanding payments and compensation towards the player A. 15. With regard to a compensation for unjustified breach of contract, the Chamber stated that according to Art. 22 of the Regulations, the club B has to pay to the player A on account of compensation for breach of contract without just cause the contractual salaries for the remainder of the contract, i.e. the net salaries for the months from April 2004 to October 2005, which is USD 93,925 in total. 16. Moreover, the Chamber noted that the employment contract indicated that the player was entitled to the rental of an apartment for USD 1,400. The Chamber decided that since a fix amount for the rental was indicated, this amount was also to be considered as a salary the player was entitled to from the club. 17. Therefore, the Chamber stated that in addition to the above, the club has to pay to the player on account of compensation for breach of contract without just cause USD 1,400 per month for the remainder of the contract, i.e. for the months from April 2004 to October 2005, which is USD 23, Therefore, the total compensation for breach of contract without just cause amounts to USD 117, With regard to the position of the club that by signing a cheque in the amount of two monthly salaries, the player agreed on the premature termination of the contract and renounced to any further compensation, the Chamber stated that the player indeed received the relevant payment, but never declared accepting this amount in settlement of all debts. Moreover, the player expressly contested such position of the club. As a result, and due to 4/6

5 the lack of evidence in this respect, the Chamber could not uphold the club s position. 20. The Chamber however noted that the club already paid the player a compensation for the early termination of the contract in the amount of USD 11,050, amount which therefore is to be deducted from the compensation. 21. Therefore, the total compensation for breach of contract amounts to USD 106, In view of the above, the Chamber decided that the club B has to pay to the player A the amount of USD 106,675. III. Decision of the Dispute Resolution Chamber 1. The claim of the player A is partially accepted. 2. The club B from has to pay the amount of USD 106,675 to the player A. 3. The amount due to the player A has to be paid by the club B within the next 30 days as from the date of notification of this decision. 4. If the aforementioned sum is not paid within the aforementioned deadline, the present matter shall be submitted to FIFA s Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed. 5. If the aforementioned sum is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as from the first day after the aforementioned deadline. 6. Any further request made by the player A is rejected. 7. The player A is directed to inform the club B immediately of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. 8. According to art. 60 par. 1 of the FIFA Statutes this decision may be appealed before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receiving notification of this decision and has to contain all elements in accordance with point 2 of the directives issued by the CAS, copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for the filing of the statement of appeal, the appellant shall file with the CAS a brief stating the facts and legal arguments giving rise to the appeal (cf. point 4 of the directives). 5/6

6 The full address and contact numbers of the CAS are the following: Château de Béthusy Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Urs Linsi General Secretary Encl. CAS directives 6/6