Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 24 March 2004, in the following composition: Slim Aloulou (Tunisia), chairman Maurice Watkins (England), member Jean Marie Philipps (Belgium), member Mario Colucci (Italy), member Theo van Seggelen (the Netherlands), member on the claim presented by Y, as Claimant against X as Respondent regarding a contractual dispute between the parties involved

2 Facts of the case: - In October 2003 Y filed a claim with FIFA against the X, who had apparently disappeared from the club on without giving any reasons and departed to his home country. - On 23 October 2003 FIFA suspended the player from any football activities worldwide except for his club. - FIFA eventually managed to contact the player in December 2003 and obtained his statements. - After obtaining the explanations from the player, as well as the response of the club in this regard, the FIFA Administration felt obliged to take an administrative measure: the suspension of the player was provisionally lifted on 28 January 2004, allowing him to resume his football activities worldwide (so as to limit all possible damage until a formal decision is passed on the subject). - The player s employment contract stipulates a salary of USD to be paid in 11 equal parts of USD each on the 5 th of every month. - His financial contract stipulates another USD to be paid by An additional USD is to be paid in 11 equal parts of USD every 5 th of the month starting August the claimant, club Y, basically maintains that: - A total of USD net has already been paid to the player. - Another USD due to be paid to him was deposited in the club s financialaccounting department and has been at the disposal of the player, but he hasn t recovered this money. - Bonus payments were made for the player s participation in games amounting to USD net sum, as well as sums for apartment rent amounting to USD. - All the payments made to the player were apparently done in cash. - According to the club, its national legislation obliges the salary of an employee to be paid to him personally. Thus, the claimant stresses that it cannot force a player to receive his remuneration and that the players cannot obtain rights from their own unwillingness to receive their salary in order to find grounds not to fulfil their obligations under the contract. What s more, the player apparently never did make a claim to have his salaries paid to him by bank transfer, which is why the sums were deposited at the club s pay-desk and were at his disposal for receiving. - The fines imposed on the player were adopted in a decision taken on by the Board of Directors of Internal Regulations of rights, liabilities, disciplinary responsibility and target awards of Y. - The decision was based on an infringement of art. 5 of the player s contract, concerning his personal and professional behaviour (this point not further specified). - in response to the club s claim the respondent, X, maintains that: 2

3 - He was obliged to unilaterally cancel his employment contract with Y because no salaries were paid to him since 23 July 2003, the day he arrived in that country, until October 2003, the month in which he abandoned the club. - He was never informed, either orally or in written form, that his salary was available at the club s financial department, despite the fact that he repeatedly asked for the payment of his salaries both to the coach of the team as well as the managers of the club. - The player was faced with grave expenses in his home country which he was unable to comply with, such as the child support for his son, the bank payments for the apartment that was bought for his family members, and the leasing instalments for his automobile. - The aforementioned expenses have been proven by the player through presentation of the relevant contracts, court decisions, official warnings, and payment orders. - After giving various warnings to the management of the club, including an ultimate deadline to pay the outstanding dues by 17 October 2003, the player was left with no other choice but to break his contract with the club Y and return to his home country. 3

4 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 at the request of one of the parties to the dispute. 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. Once its competence was thus established, the Dispute Resolution Chamber went on to treat the substance of the case. It was noted that according to the player, his departure from the club was a result of the nonpayment of his salaries for the months of August 2003 up until October The members pointed out that although the club had provided FIFA with proof of various payments made to the player in terms of premiums and advances for the rent of his apartment, no such payment slips could be presented for the payment of the player s claimed salaries. The members of the Chamber underlined that although it may be true that the money was in the club s financial-accounting department and had been at the disposal of the player throughout their stay with the club, it remains a fact that cannot be proven. The written declarations submitted by the club s own accountant cannot objectively constitute valid proof, such as a bank transaction document or a signed receipt could have done. Moreover, the player declares not having known that the money was at his disposal at the pay-desk of the club and the claimant has not presented any evidence to the contrary. In addition to the aforementioned, the Dispute Resolution Chamber stressed that it defies all logic that a player, in grave need of the money that is due to him for the payment of the basic needs of his family members as well as his own mounting expenses in his home country, would not seek to obtain this money if it had been freely available to him. 4

5 What s more, it is inexplicable why such vital salary payments would be left untouched by the player during three entire months, when apparently no other income was available to him, and considering that the lump sum that had been paid at the singing of the contract had already been invested in real estate and thus not readily available to cover immediate and urgent expenses such as those he proved to have had. In conclusion, and for all the aforementioned reasons, the members of the Dispute Resolution Chamber decided that the claimant s inability to prove that the salaries of the player had been available to him left them with no other choice but to discount this argument as unverifiable and therefore inadmissible as a valid position. The defense of the respondent was accepted and it was decided that the Claimant must pay the amounts corresponding to his outstanding salary payments, after deduction of all fines as well as payments already effectuated. The termination of the working relationship between the player and the Y club was confirmed. The Dispute Resolution Chamber also confirmed the registration of the player with his new club Z. Decision of the Dispute Resolution Chamber 1. The claim lodged by the Claimant is rejected. 2. The Claimant shall pay the amount of USD to the Respondent, within 30 days following the date of the communication of the present decision. 3. In the event that the debts of the Claimant are not paid within the stated deadline, an interest rate of 5% per year will apply. 4. If the aforementioned sums are not paid within the stipulated deadlines, the present matter shall be submitted to FIFA s Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed. 5. The termination of the employment contract between the Claimant and the Respondent is confirmed. 6. The registration of the Respondent with the club Z is confirmed. 5

6 7. 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 10 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 raise to the appeal (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: Jérôme Champagne Deputy General Secretary Enclosed: CAS directives 6