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 (The Netherlands), member on the claim presented by the player N., Cameroon, as Claimant against the club M. Football Club, Vietnam, as Respondent, regarding a contractual dispute arisen between the parties.

2 I. Facts of the case 1. On 1 October 2004, the player N. signed a contract with M. Football Club, starting on that day and expiring at the end of the 2005 season of the First Division League (in other words, August 2005). The player would receive a monthly salary of USD 1, On 17 January 2005, the player informed FIFA that the club had broken the contract on 31 December He said he had been invited to a meeting where the coach told him that he was not selected for the team. The contract was thus dissolved. The club had offered him a month s salary and a plane ticket in compensation. He declined the offer. After two further meetings with the club, the maximum compensation that the player was offered was two months salary. However, he considered this unacceptable. At this point, the club had asked him to return to the team and acted as if he had breached the contract. 3. On 22 February 2005, the Vietnam Football Federation confirmed that the club had decided to cancel the contract with the player as of 31 January The Vietnam Football Federation sent FIFA a statement from the club dated 31 January In the statement, the club confirmed that the player had been paid his salary for October, November and December The player had been injured twice during these three months. After the second injury, despite advice from the doctor and the coach that he should do some light training, the player refused to do so and failed to report for training. As a result, the club invited him to a meeting on 28 December Due to the player s extended absence through injury, it had not been possible to register him for the first phase of the championship. The club had therefore asked him to continue training and wait for the second phase of the championship. The player had not agreed to do so and the club had therefore given him the opportunity to look for a new club and offered him two months salary. The player had asked for compensation of USD 10,000. The club did not agree to this and asked the player to continue training. On 13 and 15 January 2005, the player had once again been asked to report for training, but he did not do so (copies of these letters have been submitted to FIFA). The player s failure to attend training was noted almost every day after that and his absences were recorded in writing. These details have been submitted to FIFA. As a result, the club decided to cancel the contract with the player on 31 January On 1 March 2005, the player stressed that he had suffered an injury on 18 December The team doctor had said he would be out for two weeks, while the doctor at the hospital had said four weeks. In either case, he was therefore not fit to play on 31 December Moreover, his first contact with the so-called team doctor did not come until after his injury. The team doctor had verbally instructed him to rest for two weeks. Only a prescription for medication was recorded in writing by the team doctor. A copy of this prescription has been submitted to FIFA. The doctor at the hospital, however, had instructed the player to rest for a month. The doctor s note in question has 2

3 been submitted to FIFA. On 21 December 2004, the player made his first attempt to train again, which had been very painful. On 28 December 2004, he was invited to a meeting with the club s president, as were the club s other four African players. During the meeting, no mention whatsoever was made of the player s individual situation. It was not until the evening of 31 December 2004 that he was summoned to another meeting. At that meeting, he was never told that he should wait until the second phase of the championship. He was only told that his contract was being cancelled. The player denies ever asking for USD 10,000. To begin with, he had asked for four months salary (USD 4,800) and a return plane ticket to Cameroon (USD 3,500 less the USD 1,000 that the club had already paid) until he found a club for the second phase of the championship. However, after he had been badly treated, he had requested full payment for the remainder of his contract (7 months) as well as the aforementioned remaining payment for his return flights a total amount of USD 10,900. The player said that he had never received the letter dated 31 January Even so, this letter ignored the fact that his contract had already been cancelled on 31 December This resulted in his not being paid for January Finally, a total of seven foreign players had been signed by the club yet only a maximum of five were entitled to play. 5. On 3 June 2005, the player submitted his itemised claim, requesting 8 months salary of USD 1,200 per month, hotel costs of USD 155 per month, VND 1,550,000 (approximately USD 100 based on an exchange rate of VND 50,000 = USD 3.17) for food, and the balance of his return flight amounting to USD 2,500. The player thus requested a total payment of USD 14, On 10 June 2005, the club confirmed its statement dated 31 January 2005 and refused to make any further statement. 7. On 7 July 2005, the player reiterated that the sole purpose of the meetings on 6 and 12 January 2005 had been to determine the compensation he was owed for the club's breach of contract. During the meetings, he had never been asked to resume training. On 12 January 2005, he had returned his training kit to the club. It was not until 12 January 2005, when the player threatened to commence proceedings with FIFA, that the club suddenly claimed that his contract had not been cancelled. On 15 January, the player had even offered to sign a new contract with the club. The club had declined because it stood by the old contract. Only after four meetings with the club did the player contact FIFA. The player s fiancée attested to all of the meetings, except the one on 31 December 2004, as she had attended all four meetings. II. Considerations of the Dispute Resolution Chamber 1. Since the claim at hand had been lodged prior to 1 July 2005 and concerns an employment contract concluded on 1 October 2004, the September

4 edition of the Regulations for the Status and Transfer of Players (hereinafter the Regulations) shall apply (cf. art. 26 par. 1 of the July 2005 Regulations). 2. The Dispute Resolution Chamber of the FIFA Players Status Committee shall review disputes coming under its jurisdiction pursuant to art. 42 of the Regulations at the request of one of the parties to the dispute. 3. According to art. 42 par. 1 lit. (b) (i) of the Regulations, 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. 4. As a consequence, the Dispute Resolution Chamber is the competent body to decide on the present litigation involving a club from Vietnam and a player from Cameroon and regarding outstanding remuneration in connection with an employment contract signed between the parties. 5. Therefore, the members of the Dispute Resolution Chamber at first confirmed to be competent to pass a decision in this matter. In addition, the Chamber acknowledged the above-mentioned facts as well as the further documentation contained in the file. 6. Subsequently, and entering into the substance of the matter, the Chamber considered that the player N. and the club M. Football Club signed a valid employment contract on 1 October 2004, expiring at the end of the 2005 season in August 2005 and that the club agreed to pay a monthly salary of USD 1,200 to the player. 7. The Chamber observed that the player had suffered an injury on 18 December 2004 and that on the one hand, the player forwarded FIFA a copy of a prescription for medication recorded by the team doctor and that on the other hand, the doctor at the hospital had instructed the player to rest for a month. Therefore, the Chamber considered that the player provided FIFA with sufficient evidence concerning the injury he had suffered. 8. Furthermore, the Chamber took note that the club based his answer to the claim and the letter of cancellation of the employment contract on the fact that the player had been asked to attend the training sessions and that the club provided FIFA with reports of the player s absences. However, the Chamber underlined that these absence reports cannot be taken into consideration as the absences were asserted during the month-long disablement of the player to render his services to the club. The Chamber took into consideration that in the termination letter, the club referred explicitly to the repeated absences from the training sessions. However, the Chamber stated that the player contacted FIFA already on 17 January 2005 and that the termination letter of the club is dated 31 January 2005, thus after the first letter received from FIFA. In this respect, the Chamber stated that the claim of the player in his letter dated 17 January 2005 that the club already tried to dissolve the contract at the end of December 2004 is plausible. Finally, the Chamber 4

5 acknowledged that the player did not receive his salary for the month of January 2005 even if the termination letter is dated 31 January Having taken into consideration all the above, the Chamber concluded that by stopping to pay the player s salary and trying to dissolve the contract at the end of December 2004, the Vietnamese club had breached the relevant employment contract without valid reasons. As a result, the Chamber established that the club liable to pay compensation to the player for the breach of the contract. 10. In continuation, the Chamber referred to the amount of compensation to which the player should be entitled to for the unjustified breach of the employment contract. To that regard, the Chamber considered the remaining duration of the contract at the time of its breach and the financial terms of the contract. Therefore, the Chamber decided that the club has to pay the remaining eight monthly salaries in the amount of USD 9,600 (8 x USD 1,200). 11. Subsequently, the Chamber turned to the question of the claimed reimbursement of a return plane ticket to Cameroon. The player acknowledged in his claim that the club had already paid him part of this ticket in the amount of USD 1,000. The player asked therefore for the reimbursement of USD 2,500 (USD 3,500 less the USD 2,500). The Chamber acknowledged on the one hand, that the club did not contest this part of the claim and that on the other hand, the contract stipulated that the player has the right to a return plane ticket Cameroon Vietnam. Therefore, the Chamber accepted the claim of the player with regard to the reimbursement of the amount of USD 2,500 for the aforementioned return plane ticket. 12. So far the player claimed hotel costs of USD 155 per month and approximately USD 100 for food, the Chamber observed that the parties did not stipulate any compensation for costs in connection to board and lodging in the employment contract. Therefore, the Chamber decided to reject this claim. 13. Consequently, having thus analysed the various aspects of the player s claim, as well as the club s defence statement, the Dispute Resolution Chamber concluded its deliberations by announcing that the player s claims were partially accepted. 14. Taking into account all of the above, the Dispute Resolution Chamber decided that M. Football Club must pay the amount of USD 12,100 (USD 9,600 corresponding to eight monthly salaries and USD 2,500 as balance of the player s return flight) to the player N. III. Decision of the Dispute Resolution Chamber 5

6 1. The claim of the player N. is partially accepted. 2. The club M. Football Club has to pay the amount of USD 12,100 to the player N. within the next 30 days as from the date of notification of this decision. 3. Any further financial claims lodged by the player N. 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 and the present matter shall be submitted to FIFA s Disciplinary Committee, so that the necessary disciplinary sanctions may be imposed. 5. The player N. is instructed to inform M. Football Club immediately and directly 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: Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Urs Linsi General Secretary Encl. CAS directives 6

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