Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 27 April 2006, in the following composition: Slim Aloulou (Tunisia), Chairman Jean-Marie Philips (Belgium), member Wilfried Straub (Germany), member Carlos Soto (Chile), member Philippe Piat (France), member on the claim presented by the Player X, as Claimant against the club Y, Represented by xxxx as Respondent regarding outstanding remuneration on the basis of an employment contract

2 I. Facts of the case 1. The player X, Claimant, and the club Y, Respondent, signed an employment contract on 22 March 2000 valid until the end of the season 2003/ On 29 July 2002, the Claimant and the Respondent signed a termination agreement, according to which the Respondent agreed to pay to the Claimant the amount of EUR 28,548 on 4 September 2002 and the amount of EUR 48,080 on 4 September On 7 March 2005, the Claimant contacted FIFA claiming that the Respondent never paid him any amount as agreed on 29 July The Claimant provided a duly signed copy of the relevant termination agreement dated 29 July The Respondent is disputing the competence of the FIFA Dispute Resolution Chamber since article 4 of the relevant settlement agreement dated 29 July 2002 stipulates that any dispute regarding the fulfillment of the settlement agreement should be dealt with by the Liga Nacional de Fútbol Profesional (LNFP). However, the Respondent never provided its position with regard to the substance of the matter although it was duly informed by FIFA that the competent body would deal with the question of its competence and in the affirmative also with the substance of the present matter on the occasion of the same meeting. 5. The Claimant requested the submission of the matter for a formal decision. 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 7 March 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 on 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 a party is accountable for outstanding payments. 2

3 4. As a consequence, the Dispute Resolution Chamber is the competent body to decide on the present litigation involving a Spanish club and a Croatian player regarding outstanding remuneration in connection with an employment contract. 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 termination agreement at the basis of the present dispute was signed in July 2002 and the claim was lodged at FIFA on 7 March In view of the aforementioned, the Chamber concluded that the former FIFA Regulations for the Status and Transfer of Players (edition 2001, hereafter: the Regulations) are applicable on the case at hand as to the substance. 6. In continuation, the Chamber referred to the argument of the Respondent according to which the latter disputed the competence of the Dispute Resolution Chamber arguing that article 4 of the relevant settlement agreement stipulates that any dispute regarding the fulfilment of the settlement agreement should be dealt with by the Liga Nacional de Fútbol Profesional (LNFP). 7. In this respect, the Chamber referred to its well-established jurisprudence according to which, in general, in employment-related disputes between a club and a player that have an international dimension, i.e. the parties do not belong to the same country, both parties are entitled to refer the dispute to the FIFA s decision making bodies, unless an independent arbitration tribunal respecting the principle of equal representation of players and clubs with an independent chairman has been established at national level. 8. The Chamber acknowledged that the Respondent was unable to prove that the Liga Nacional de Fútbol Profesional complies with the requirements of the FIFA s regulations and is composed of an equal number of player and club representatives and has an independent chairman. As a consequence, the Chamber established that the Respondent s objection to the competence of FIFA to deal with the present matter has to be rejected and that the matter can be considered as to the substance. 9. In continuation, and entering into the substance of the matter, the members of the Chamber started by acknowledging that the Claimant and the Respondent signed a termination agreement on 29 July 2002, according to which the Respondent agreed to pay to the Claimant the amount of EUR 28,548 on 4 September 2002 and the amount of EUR 48,080 on 4 September In particular, the Chamber noted that the Claimant argued that the Respondent neither paid him the amount of EUR 28,548 due on 4 September 2002 nor the amount of EUR 48,080 due on 4 September

4 11. In this respect, the Chamber referred to art. 4 of the Rules Governing the Practice and Procedures of the Dispute Resolution Chamber in connection with art. 44 of the FIFA Regulations, which stipulates that the Dispute Resolution Chamber does not deal with any litigation if more than two years have elapsed since the facts leading to the dispute arose. Taking into account that the relevant instalments should have been paid on 4 September 2002 and on 4 September 2003 and the claim was received on 7 March 2005 the Chamber concurred that the claim with regard to the first instalment in the amount of EUR 28,548 due on 4 September 2002 cannot be considered, since more than two years have elapsed. In casu, over 2 years and 6 months have elapsed. 12. In view of the above, the Chamber concluded that it could only consider the Claimant s claim regarding the second instalment amounting to EUR 48,080 and due on 4 September Turning its attention to the Respondent, the Chamber took due note that the Respondent never took position in the dispute as to the substance, despite having been informed by FIFA that the competent deciding body would deal with the question of its competence and in the affirmative also with the substance of the present matter on the occasion of the same meeting. 14. In this way the Respondent renounced to its right to defence and accepted the allegations of the Claimant with respect that the second instalment amounting to EUR 48,080 has not been paid. 15. In view of all of the above, the Chamber came to the conclusion that the Respondent must pay to the Claimant the amount of EUR 48,080. III. Decision of the Dispute Resolution Chamber 1. The claim lodged by the Claimant, X, is partially accepted. 2. The Respondent, club Y, shall pay the total amount of EUR 48,080 to the Claimant, within 30 days following the date of the communication of the present decision. 3. Any further claims lodged by the Claimant are rejected. 4. In the event that the above-mentioned amount is not paid within the stated deadline, an interest rate of 5% per year will apply as of expiring of the fixed time limit and the present matter shall be submitted to FIFA s Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed. 4

5 5. The Claimant is instructed to inform the Respondent directly and immediately of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. 6. 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 21 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 2 CH-1012 Lausanne Switzerland Tel: Fax: info@tas-cas.org Urs Linsi General Secretary Encl. CAS directives 5