Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 21 February 2006, in the following composition: Mr Slim Aloulou (Tunisia), chairman Mr Philippe Diallo (France), member Mr Ivan Gazidis (USA), member Mr Joaquim Evangelista ( country y), member Mr Michele Colucci (Italy), member on the claim presented by Mr X,.., represented by Mr O as Claimant against the Clube Y,..., represented by Mrs U as Respondent regarding a contractual dispute arisen between the parties

2 I. Facts of the case 1. On 1 July 2004, the player X and Clube Y signed an employment contract valid from that date until 30 June Both parties have provided FIFA with a copy of the aforementioned employment contract. 2. On 25 February 2005, Mr informed FIFA that Clube Y had failed to provide him with a working visa, which was necessary for him to fulfil his employment contract. As a consequence, the player was prevented from entering into country y when he returned from country x, in January In this respect, the player provided the FIFA Administration with a copy of a document issued by the Y authorities, confirming that he was not allowed to enter the country due to the lack of a valid visa. 3. In light of the above and taking into account the alleged fact that he had also not received his salaries since September 2004, Mr X requested the Chamber to consider his employment contract with Clube Y as terminated and declare the latter liable for having breached the contract without just cause. In the meantime, the player informed FIFA that he had requested the Civil Courts in country x to authorize him to proceed with his career on a provisional basis. 4. Moreover, the player requested the Dispute Resolution Chamber to condemn Clube Y to pay him the outstanding amounts that were due to him under their employment contract, i.e. his salaries from September 2004 until February 2005, in the total amount of EUR 5, (EUR 998,48 per month) and to be considered free to sign for another club of his choice. 5. On 28 February 2005, FIFA asked the player to confirm if he had already requested a country x an Civil Court to authorize him to be registered for a new club in country x. Moreover, FIFA warned the player that players are forbidden from submitting matters connected with their registration to Civil Courts. 6. In reply, the player confirmed that in case FIFA would not take a decision regarding the possibility for him to proceed with his career with another club within a deadline of 2 (two) days, he would go before the Civil Courts in country x for that purpose. 7. On 10 March 2005, the country x an Football Confederation informed FIFA that a country x Civil Court had authorized Mr X s registration for its affiliated club, Clube Q. 8. On 8 April 2005, the Y Football Federation forwarded to the attention of FIFA, a copy of the aforementioned decision taken by the country xian Civil Court, Player X, country x / Clube Y, country y 2

3 dated 2 March Furthermore, the said Federation stated that Clube Y had a valid employment contract with Mr X until 30 June Moreover, from the content of the relevant decision, it can be noted that the player in question signed an employment contract with Clube Q on 23 February Apart from the above, Clube Y, a club participating in the third national division in country y, added that Mr X left for country x in December 2004, without its necessary authorization or knowledge and never returned to the club. According to the.. club, the player was informed several times that he should immediately return in order to comply with their employment contract. The Y club failed, however, to provide any evidence in this regard. 10. Moreover, the Y club asserts that the player has always avoided to comply with the necessary legal procedures in order to obtain a working visa. In this respect, the club draws the Chamber s attention to the fact that, even without a proper working visa, Mr could have entered into country y with his country xian passport, like he had previously done. 11. In response, Mr X asserts that, in December 2004, he had the club s authorization to leave the country. The player failed, however, to provide any evidence in this regard. Furthermore, he underlines that the club waited a long time before complaining to FIFA about his alleged breach of contract. 12. Moreover, the player maintains that he could not have remained without an income for much longer and that his recourse to a country xian Civil Court was absolutely necessary in order to guarantee his subsistence. 13. On the other hand, the player insists that he was prevented from entering into country y in January 2005, due to the fact that the club had failed to provide him with a valid visa, which would have allowed him to work in country y. In order to support his position in this regard, the player provided FIFA with a copy of his passport bearing the Y customs stamp and denying his entrance in country y, based on the fact that he had no valid working visa to enter into the country. 14. As a consequence, the player defends that he was prevented from fulfilling his employment contract with Clube Y, entirely due to the club s fault. 15. In addition to the above, the player asserts that he waited almost two months for the Y club to solve his visa problem, without any success. As a consequence, and since he had already been without any remuneration for six months, he had to find another club to work. Player X, country x / Clube Y, country y 3

4 16. Finally, the player draws the Chamber s attention to the fact that the Y club only reported his alleged contractual breach to FIFA in April 2005, which according to him, not only demonstrates that the club was aware of his departure to country x, but also proves its negligence in order to get him a valid visa to work in country y. 17. In response, Clube Y asserts that it has always been in contact with the player in January 2005 until the moment when the player stopped answering its phone calls. 18. Moreover, the Y club underlines that the passport provided by the player to FIFA in May 2005 is not the passport that allows him to enter into country y. In this respect, the club provided FIFA with a copy of a valid passport of the player. 19. In this context, FIFA asked the Y Football Federation to inform it under which circumstances a country xian citizen may enter into country y, in particular, if such a citizen needs any kind of visa or if his passport would be sufficient. In reply, the aforementioned Federation asserted that [ ] the entrance of country xian citizens is free of visa if they come to country y for cultural, journalistic, tourist or business purposes. In this case, the country xian citizen can stay in country y up to 180 days. Any other enter requests (working permit, residence, etc) needs visa. 20. In light of the above, Clube Y explains that it has incurred into the following expenses with regard to the engagement of Mr X and, as a counterclaim, is consequently demanding the following amounts from the player: A. EUR 3,175 for the player s international transfer and registration in country y. The Respondent has provided FIFA with a copy of the relevant registration document with the Y Football Federation confirming the claimed amount. B. EUR 8, as costs incurred with regard to the player s personal accident insurance. The Respondent has provided FIFA with a copy of an insurance policy against working accidents for 20 players, including Mr X, regarding the 2004/2005 sporting season, in the amount of EUR 4, and payment receipts in the total amount of EUR 9, C. EUR 6,900 regarding an accommodation contract allegedly concluded for the player in the amount of EUR 575 per month. The Respondent has provided FIFA with a copy of the aforementioned contract and respective payment receipts from August 2004 until June 2005, in the total amount of EUR 6,900 (these include two receipts for August 2004). Player X, country x / Clube Y, country y 4

5 D. EUR 49,924 corresponding to all the salaries due to the player until the end of their employment contract, i.e. from May 2005 to 30 June In conclusion, Clube Y is claiming the total amount of EUR 68, from Mr X, as well as the imposition of the adequate disciplinary measures on the player. 22. Finally, the Y club provided FIFA with copies of salary receipts not signed by the player in the total amount of EUR 4,773.77, regarding the months from July until November 2004, as well as cheques issued in favour of the player in the total amount of EUR 2, In reply, Mr X acknowledges having received the amounts claimed by the Y club as salaries and match bonuses, but reaffirms that he has not received his salaries of December 2004, as well as January and February As a consequence, the country xian player is requesting the Chamber to condemn the Y club to pay to him his salaries of December 2004, as well as January and February 2005, plus compensation corresponding to half of the amounts that are stipulated in the parties employment contract until its end, in accordance with country xian Law (amounts were not specified). 25. Moreover, the player asserts that the fact that he used a new passport when he tried to return to country y in January 2005 is due to the fact that he had lost his original one (the one claimed by the club). 26. In reply, the club defends that it did not pay the player s salary of December 2004 because the latter was absent in country x on 8 January 2005, i.e. the date when the salary was effectively due. Moreover, it understands that the player s salaries of January and February 2005 are not due since he was not at the club s disposal any longer. 27. At the request of FIFA, the player informed that, in the meantime, and since his departure from the Y club, he has been registered for the country xian clubs Clube Q (contract valid from 23 February 2005 until 23 February 2008, with a monthly salary of BRL 5,000, UUU from 15 March until 30 June 2005 (monthly salary of BRL 5,000) and OOO FC since 10 August 2005 (contract valid until 31 December 2005, with a monthly salary of BRL 8,000). The Claimant has provided FIFA with copies of the aforementioned employment contracts. 28. The present matter was already submitted to the Dispute Resolution Chamber for consideration and formal decision on 12 January 2006, which decided to refer the matter back to the FIFA administration in order to proceed with the investigation and clarify certain aspects. Player X, country x / Clube Y, country y 5

6 29. In this respect, the Y Football Federation was requested to inform FIFA whether Mr X was registered for Clube Y or not and if the player in question has actually represented the Y club in any official matches during the 2004/2005 sporting season. 30. In reply, the Y Football Federation informed FIFA that Mr X has effectively been registered with Clube Y during the sporting season 2004/2005 and that he has represented such club in 14 official matches, from September until December Furthermore, on 13 and 27 January 2006, Clube Y and the Y Football Federation were respectively asked to inform FIFA whether Mr X had a valid work permit enabling him to work in country y during the sporting season 2004/2005 or not and, if so, to provide FIFA with a copy of it. The Y Football Federation was also asked to inform FIFA about who would be entitled to apply for such permit, in particular, if the Y club could have done it by itself or if such application should have been made by the player. Finally, the aforementioned Federation was asked to inform FIFA about the reasons why it had proceeded to register Mr X with Clube Y, in case he was not holding the aforementioned work permit. 32. In reply, Clube Y only stated that all the necessary procedures were done for his inscription at the Y Football Federation. 33. On the other hand, the Y Football Federation informed FIFA that it was not possible for it to check whether the player in question had a valid work permit for the relevant sporting season. Moreover, it underlined that, [ ] only the player may obtain his working visa [ ]. 34. Finally, the Y Football Federation clarified that it had registered the player s contract with Clube Y due to the fact that the documents submitted together with the registration request contained sufficient elements for the acquisition of working visa [ ]. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Chamber analysed whether it was competent to deal with the matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber. The present matter was submitted to FIFA on 25 February Player X, country x / Clube Y, country y 6

7 2005, as a consequence the Chamber concluded that the previous Procedural Rules (edition 2001) on matters pending before the decision making bodies of FIFA are applicable to the matter at hand. 2. With regard to the competence of the Chamber, art. 42 par. 1 lit. (b) (i) of the FIFA Regulations for the Status and Transfer of Players (edition 2001) establishes that, the triggering elements of the employment-related 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. 3. If an employment contract is breached by a party, the Dispute Resolution Chamber is also responsible to verify whether the party is accountable for outstanding payments and/or compensation. Equally, the Chamber shall decide whether sports sanctions shall be imposed. 4. As a consequence, the Dispute Resolution Chamber is the competent body to decide on the present litigation involving a Y club and a country xian player regarding a dispute in connection with an employment contract concluded between the parties. 5. Subsequently, the members of the Chamber analyzed which edition of the Regulations for 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 for the Status and Transfer of Players (edition 2005) and, on the other hand, to the fact that the relevant contract at the basis of the present dispute was signed on 1 July 2004 and the claim was lodged at FIFA on 25 February In view of the aforementioned, the Chamber concluded that the former FIFA Regulations for the Status and Transfer of Players (edition 2001, hereinafter: the Regulations) are applicable on the case at hand as to the substance. 6. In continuation, and entering into the substance of the present labour dispute, the Chamber started by acknowledging that, on 1 July 2004, Mr X and Clube Y signed an employment contract valid until 30 June On the basis of that contract, the player lodged a claim with FIFA asking in particular, for the confirmation that the Y club has breached the relevant contract, that the contractual relationship is terminated and that he is to be considered free from any contractual obligation towards the said club. Furthermore, the player demands for the payment of outstanding salaries for the months of December 2004 until February 2005 and an unspecified amount as compensation. Player X, country x / Clube Y, country y 7

8 8. In this respect, the members of the Chamber duly noted that Mr X had requested a country xian Civil Court to authorize him to be registered for a new club in country x, in particular, Clube Q, and, moreover, that FIFA had warned him that players are forbidden from referring matters connected with their registration to Civil Courts. 9. The Chamber also noted that, despite of the above, on 10 March 2005, the country xian Football Confederation informed FIFA that a country xian Civil Court had authorized Mr X s registration for its affiliated club, Clube Q. 10. In view of the above, the Chamber concluded that it could not protect the player s stance. In fact, by referring the question of his registration to a Civil Court he had violated art. 61 par. 2 of the FIFA Statutes. Yet, with regard to his contractual dispute, he preferred to revert to the decision-making bodies of the football instances. The Chamber was of the unanimous opinion that such forum shopping cannot be accepted, in particular in view of the disrespect of the FIFA Statutes. As a consequence, it decided not to enter into the consideration of the player s claim. 11. In continuation, the deciding body turned to the counterclaim lodged by the Y club. The members of the Chamber noted that Clube Y defends that, by signing a new employment contract with Clube Q on 23 February 2005, Mr X has breached their employment contract without just cause and is consequently claiming from the player, compensation in the total amount of EUR 68,986.30, corresponding to EUR 3,175 for the player s international transfer and registration in country y, EUR 8, as costs incurred with regard to the player s personal accident insurance, EUR 6,900 regarding an accommodation contract allegedly concluded for the player in the amount of EUR 575 per month and EUR 49,924 corresponding to all the amount due to the player until the original end of their employment contract, i.e. from May 2005 to 30 June The members of the Chamber acknowledged that, in support of its aforementioned financial claim, the Y club has provided FIFA with a copy of the player s registration document with the Y Football Federation, confirming the claimed amount, a copy of an insurance policy against working accidents for 20 players, including Mr X, regarding the 2004/2005 sporting season in the amount of EUR 4, and payment receipts in the total amount of EUR 9, as well as a copy of the aforementioned contract for accommodation and respective payment receipts form August 2004 until June 2005, in the total amount of EUR 6,900, whereby the relevant receipts include two receipts for August Furthermore, the Chamber noted that, in support of its claim, the Y club explains that the player, X left the club without authorisation in December Player X, country x / Clube Y, country y 8

9 2004. Furthermore, the Y club defends that, not only it has paid to Mr X all his salaries until and including November 2004 and that December s salary was only payable in January 2005, but also that the player had always avoided to comply with the necessary legal procedures in order to obtain a working visa. 14. On the other hand, the Chamber acknowledged that, according to the player, at the time of his claim, he had already been without any remuneration for six months, i.e. from September 2004 until February Mr X defends that under such circumstances, he had no alternative than to find another club to work, which was allegedly the reason why he signed a new employment contract with Clube Q, on 23 February In this regard, the Chamber emphasized the fact that, throughout the present procedure, the Claimant has contradicted himself regarding his outstanding salaries. In particular, contrary to his initial claim, in which he claimed the aforementioned six months of outstanding salaries, in his final statements, after the Y club having provided FIFA with copies of the relevant salary receipts, Mr X has confirmed having received his salaries up to and including November Moreover, the Chamber considered that Mr X asserts that Clube Y has failed to provide him with a working visa, which was necessary for him to fulfil his employment contract and that, as a consequence, in January 2005, after having left to country x on holidays, he was prevented from entering into country y again. In this respect, the Chamber noted that, in support of his position, the player has provided FIFA with a copy of his passport bearing the Y custom s stamp, denying his entrance in country y, based on the fact that he had no valid working visa to enter into the country. 17. In this respect, the Chamber in particular took into consideration that the player claims that he was prevented from fulfilling his employment contract with Clube Y, entirely due to the club s fault. The player stresses that he had waited a long time for the Y club to solve his visa problem, without any success. 18. To that regard, the deciding body noted that the Y club defends that, even without a proper working visa, Mr X could have entered into country y with his country xian passport, like he had previously done. 19. With regard to the central issue of the working visa, the members of the Chamber also took into consideration the information provided by the Y Football Federation, at the request of FIFA, according to which, [ ] the entrance of country xian citizens is free of visa if they come to country y for cultural, journalistic, tourist or business purposes. In this case, the country xian citizen can stay in country y up to 180 days. Any other enter request (working permit, residence, etc) needs visa. Player X, country x / Clube Y, country y 9

10 20. Moreover, the Chamber noted that Mr X was effectively registered with Clube Y during the sporting season 2004/2005 and that he represented such club in 14 official matches, from September until December In this context, at the request of FIFA, and regarding the fact whether Mr X had or not a valid work permit enabling him to work in country y during the sporting season 2004/2005, Clube Y informed that all the necessary procedures were done for his (the player s) inscription at the Y Football Federation. 22. Furthermore, the Chamber took into account that, with regard to the question whether anyone would be entitled to apply for such permit, in particular, if the Y club could have done it by itself or if such application should have been made by the player himself, the Y Football Federation informed FIFA that [ ] only the player may obtain his working visa [ ] and that it was not possible for it to check whether the player in question had a valid work permit for the relevant sporting season. 23. With respect to the question related to the reasons why it would have had proceeded to register Mr X with Clube Y in case the player did not have the aforementioned work permit, the Y Football Federation clarified that it had registered the player s contract with Clube Y due to the fact that the documents submitted together with the registration request contained sufficient elements for the acquisition of working visa [ ]. 24. In light of the above, the members of the Chamber reached the conclusion that, once Mr X signed a valid employment contract with Clube Y, he should have done everything in order to obtain his working permit, in particular, taking into account that he was the only person entitled to do so. As a consequence, he should have offered all his assistance in this respect to the Y club. 25. Furthermore, the members of the deciding body concluded that, in view of the statements of the Y Football Federation, Clube Y appears to have prepared all documents and taken all measures, which were in its power, in order for the player to obtain the relevant working visa. In other words, a possible nonissuance of a working visa was not to be attributed to its negligence. As a consequence, it cannot be blamed for any misconduct in this respect. 26. Equally, the members of the Chamber were of the opinion that, being a country xian citizen, even if he was not in possession of a working permit, Mr X could have entered into country y with a valid passport, as he appears to have done earlier, e.g. for the first half of the 2004/2005 season. Player X, country x / Clube Y, country y 10

11 27. Furthermore, and taking into account the fact that, Mr X has effectively been registered with Clube Y during the sporting season 2004/2005 and that he represented such club in 14 official matches, from September until December 2004, the Chamber rejected the arguments raised by the player, according to which, he was prevented from fulfilling his employment contract with the Y club due to the lack of a valid visa/working permit. 28. With regard to the financial aspect, the members of the Chamber concluded that Clube Y has complied with its financial obligations towards Mr X, in particular, that, as recognized by the player, it has paid to Mr X all his salaries until November 2004, i.e. until the date of his departure from country y. The salary for December 2004 became only due in January 2005, thus after the player s departure. As a consequence, when the player left, no salaries remained unpaid to him. 29. In addition, the Chamber emphasised that the player had lodged his claim with FIFA on 25 February 2005, thus two days after having already signed a new contract with the country xian Clube Q on 23 February 2005, which guaranteed him a significantly higher salary than in country y. From the Chamber s point of view, such stance does not speak in favour of the player s good faith either. 30. Finally, the deciding body pointed out that there were no evident interests for the Y Clube Y for a contractual breach. From a financial point of view, as exposed before, it had complied with its obligations towards the player and invested for a club of its seize and importance (a club of the third national division in country y) - a considerable amount of money for the acquisition of the player s services. On the other hand, in view of the considerable higher salary agreed upon with the country xian Clube Q, the player had an obvious reason for an early termination of the contract with the Y club. 31. In light of all the above, the Dispute Resolution Chamber concluded that Mr X has breached his employment contract with Clube Y without just cause. Furthermore, the deciding body stated that since the breach occurred during the first season of a 5 years contract, the relevant infringement happened during the so-called protected period (cf. art. 21 par. 1 (a) of the Regulations). 32. As a consequence, and in compliance with the content of Chapter VIII of the Regulations, in particular, with its art. 21 par. 1 (a), the Chamber decided that the player is liable for the payment of compensation and to impose sports sanctions for unilateral breach of contract without just cause during the socalled protected period on Mr X. 33. With regard to the amount of compensation to be paid, the Chamber referred on the one hand to the financial claim submitted by Clube Y. Furthermore, and Player X, country x / Clube Y, country y 11

12 on the other hand, the deciding body recalled that according to art. 22 of the Regulations, compensation for breach of contract shall be calculated with due respect to all objective criteria which may be relevant to the case, such as remuneration under the existing contract and/or the new contract, length of time remaining on the existing contract, amount of any fee or expense paid or incurred by the former club, amortised over the length of the contract and whether the breach occurred during the so-called protected periods. 34. In this respect, the members of the Chamber at first acknowledged that the rest value of the contract concluded between the parties to the dispute is of EUR 49,924, corresponding to the salaries due to the player from May 2005 until 30 June 2009, date of the ordinary end of the relevant employment contract. Furthermore, the Chamber noted that the contractual breach occurred after six months only of a 5 years employment contract. Equally, the deciding body emphasised that the player s salary with his new country xian club corresponds to double the amount he earned with the Y club. 35. In continuation, the Chamber took note of the fact that the Y club had presented written evidence with regard to the costs it incurred with regard to the player s international transfer and registration in country y, i.e. EUR 3,175. The deciding body was of the opinion that this amount should in any case be refunded to Clube Y. Yet, the members of the Chamber deemed that the costs claimed by the Y club with regard to the player s personal accident insurance had not been sufficiently accredited by the club. The same goes for the costs allegedly related to the accommodation contract, which, according to the Y club, had been concluded on behalf of the player. 36. As a result of these considerations, as well as in view of the Y club s claim for compensation, the Chamber deemed it appropriate to award an amount of EUR 53,099 to Clube Y as compensation for the unjustified breach of the employment contract. 37. Finally, and taking into account the fact that Mr X was 19 years old at the time when the contractual breach occurred, and that it took place within the first year of contract, the Chamber decided to sanction Mr X with a restriction of four months on his eligibility to participate in any official football matches, as stipulated in art. 23 par. 1 (a) of the Regulations. III. Decision of the Dispute Resolution Chamber 1. The claim filed by the Claimant, Mr X, shall not be considered. 2. The counter-claim of the Respondent, Clube Y, is partially accepted. Player X, country x / Clube Y, country y 12

13 3. The Claimant, Mr X, shall pay the total amount of EUR 53,099 to the Respondent, Clube Y, within 30 days of notification of the present decision. 4. If the Claimant, Mr X, fails to comply with the above-mentioned deadline, an interest rate of 5% per year will apply and the case will immediately be presented to the FIFA Disciplinary Committee. 5. Any other financial claim of the Respondent, Clube Y, is rejected. 6. The Respondent, Clube Y, is directed to inform the Claimant, Mr X, 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. The Claimant, Mr X, is suspended for the period of 4 (four) months from participating in any official football match, as from the date of notification of the present decision. 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). The full address and contact numbers of the CAS are the following: Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Urs Linsi General Secretary Encl: CAS directives Player X, country x / Clube Y, country y 13