Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2013,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Takuya Yamazaki (Japan), member
Essa M. Saleh Al-Housani (UAE), member
Theodoros Giannikos (Greece), member
on the claim presented by the player
Player M, from country B
as Claimant
against the club
Club S, from country I
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 18 October 2006, the player M, from country B (hereinafter: the Claimant), and
Club S, from country I (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract) valid as from the date of signature for two
sporting seasons, 2006/2007 and 2007/2008.
2.
Article 3 of the contract provided that the Respondent would pay the Claimant a
total remuneration of USD 190,000 net, “for 2 sports season”, composed as
follows:
- USD 47,500 net as signing-on fee;
- USD 19,000 net, payable as salary, to be paid in 19 monthly instalments of USD
1,000 each, commencing in October 2006 until May 2008;
- USD 76,000 net, payable in four instalments of USD 19,000 each, due
respectively, at the “end of half of season” 2006/2007, at the “end of season”
2006/2007, at the “end of half season” 2007/2008 and at the “end of season”
2007/2008;
- USD 47,500 net, payable at the beginning of the second season;
- Bonuses.
3.
In addition, art. 5.4 of the contract established that “in case the player is injured in
matches or practice, the club is responsible for paying all the cureing costs and
salary of the player”.
4.
On 30 April 2009, the Claimant lodged a claim against the Respondent for breach
of contract without just cause before FIFA, claiming, after amending the claim on
11 May 2009, USD 839,000 plus interest “from the moment of being due until the
payment”, composed as follows:
- USD 19,000 due at the “end of half season” 2007/2008;
- USD 19,000 for the “end of season” 2007/2008;
- USD 9,000 for 9 monthly installments of USD 1,000 each as from December
2007;
- USD 792,000 for the loss of expected earnings;
The Claimant further requested bonus, payment of taxes resulting from the
Claimant’s income and payment of medical expenses as per art. 5.4 of the
contract, without specifying the amounts claimed.
Player M, from country B / Club S, from country I
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5.
In this respect, the Claimant held having fulfilled all his obligations. Further, in
November 2007, he became sick and alleged having informed the Respondent’s
doctor, but the Respondent’s management apparently insisted for the Claimant to
play in a match. According to the Claimant, in the second half of said match, the
Claimant felt worse and had to be sent to a hospital, where they diagnosed a
“lung embolia”. After said diagnose, the Claimant was transferred to another
hospital and was hospitalized for 15 days and would not be allowed to play
football for at least 6 months as per medical declaration dated 20 December 2007
provided.
6.
The Claimant stated that after his hospitalization, the parties apparently agreed
that he should undergo further examinations and treatment in his home country,
submitting medical findings in relation to his illness. Consequently, after leaving
to country B, the Claimant stated that the Respondent never paid him the
remuneration due. In this respect, the Claimant alleged that even though he
continued to inform the Respondent about the progress of his treatments, he did
not receive any of his salaries. In this regard, the Claimant submitted copy of the
correspondence dated 18 February 2008, 8 April 2008 and 24 January 2009 sent to
the Respondent.
7.
Moreover, the Claimant asserted that the Respondent is responsible for his health
“deterioration” since the Respondent insisted for him to play in a match, even
though he felt ill, and therefore, claims compensation in the total amount of USD
792,000. The Claimant explained that he based his calculation on the amount of
USD 1.320,000 which corresponds to 11 years of his future sport career that he
would still be able to play, considering that he would earn approximately USD
10,000 per month, thus, 11 years receiving annual remuneration of USD 120,000.
The Claimant requested 60% of this amount as compensation. In this respect, the
Claimant provided a medical finding dated 17 June 2008, which stated that the
Claimant “is not allowed to continue to do professional sports as the fully
sanation did not occur and the remaining sequels on deep and superficial veins of
the left leg represent the potential threat of the new thromboembolic incidents”.
8.
In its reply, the Respondent accepted having outstanding debts towards the
Claimant in the total amount of USD 47,000, i.e. USD 19,000 due for the end of
half of season 2007/2008, USD 19,000 due for the end of season 2007/2008 and
USD 9,000 due for 9 monthly salaries. The Respondent further held that a bank
deposit in the amount of USD 8,000 had already been made to the Claimant’s
country I bank account, and therefore, the outstanding remuneration owed to the
Claimant is of USD 39,000. The Respondent also stated that no bonuses are due,
since the Respondent did not have any success in the country’s league.
Player M, from country B / Club S, from country I
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9.
Furthermore, the Respondent rejected the argument provided by the Claimant, by
means of which it forced the Claimant to play in a match while having fever. The
Respondent considered his illness to be genetic. Furthermore, it stated that once it
was aware of the Claimant’s illness, he was provided with a private room in the
hospital for 14 days, for which they paid USD 4,000 for his treatment, and that it
was agreed by both parties that the Claimant would go home to visit his family as
well as to undergo further treatment for a period of 10 days, but that the
Claimant was to return after that period which he allegedly did not.
10.
In his replica, the Claimant stated having paid the hospital bills as from 1
December 2007 until 15 December 2007, even though it was the Respondent’s
obligation to do so.
11.
In its final position, the Respondent alleged that if the Claimant had fulfilled his
contract until the contractual end, he would have been entitled to receive the
remaining amount of USD 49,000. Moreover, the Respondent held that the
Claimant did not present himself and neither properly informed the Respondent
the reasons of his absence, through a “valid and authenticated evidence or
document”. Furthermore, the Respondent argued that the Claimant was
diagnosed with deep vein thrombosis disease that cannot be related to any sport
or football related activity and was hospitalized for two consecutive weeks and
left the hospital “on 15 December 2007”. In this regard, the Respondent stressed
that it did not hear anything from the Claimant until his claim at FIFA and that he
did not have a written authorization to leave the club.
12.
In regards to the financial remuneration requested for loss of expected earnings,
the Respondent rejected the Claimant’s requests by claiming it unreasonable, once
the Claimant had not suffered any injury in his professional or football related
activities. Moreover, the Respondent considered that it should not be held
responsible for the Claimant’s disease and that it has paid all the medical expenses
incurred in country I.
13.
Finally, the Respondent stated that the contract was valid until 10 June 2008 and
that after that date, it is not obliged to pay any further compensation.
Nonetheless, the Respondent recognized that there are outstanding instalments
due prior to the termination of the contract towards the Claimant.
14.
The Claimant informed FIFA that he did not sign any new employment contract
considering his medical condition and that he is not allowed to play football
anymore.
Player M, from country B / Club S, from country I
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the present matter. In
this respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber and took note that the present matter was submitted to FIFA on 30 April
2009, thus after 1 July 2008. Consequently, the Chamber concluded that the 2008
edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), is
applicable to the matter at hand.
2.
Subsequently, the members of the DRC referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2012), the Dispute Resolution Chamber shall adjudicate on employment-related
disputes between a club and a player of an international dimension. As a
consequence, the Dispute Resolution Chamber confirmed to be competent to deal
with the matter at stake, which concerns an employment-related dispute between
the player from country B and the country I club.
3.
In this respect, the members of the Chamber analysed which edition of the
Regulations on 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 on the Status and Transfer of Players
(editions 2012, 2010, 2009 and 2008) and, on the other hand, to the fact that the
present claim was lodged on 30 April 2009. In view of the aforementioned, the
Dispute Resolution Chamber concluded that the 2008 edition of the Regulations
on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so,
the members of the DRC started to acknowledge the facts of the case as well as
the documents contained in the file.
5.
In this respect, the Dispute Resolution Chamber started by acknowledging that it
was undisputed by the parties that, on 18 October 2006, the Claimant and the
Respondent concluded an employment contract valid for two sporting seasons
“2006/2007” and “2007/2008” which would entitle the Claimant to a total
remuneration of USD 190,000 net, in accordance to art. 3 of the Contract (cf. point
I.2).
Player M, from country B / Club S, from country I
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6.
The Chamber further acknowledged the contents of art. 5 of the contract that
specified that the Respondent would be responsible for paying all incurring costs
and salary of the Claimant in case of injury, both on matches or practices.
7.
After analyzing the contents of the contract, the Chamber acknowledged that the
Claimant lodged a claim against the Respondent for the breach of the contract,
requesting the total amount of USD 839,000 plus interest “from the moment of
being due until the payment” as well as bonus, taxes and medical expenses.
8.
In this regard, the DRC acknowledged that from the above mentioned amount,
the Claimant requested as outstanding remuneration, a total amount of USD
47,000 composed of USD 19,000 due at the “end of half season” 2007/2008; USD
19,000 for the “end of season” 2007/2008; USD 9,000 for 9 monthly installments of
USD 1,000 each due as from December 2007.
9.
In continuation, the Chamber noted the arguments provided by the Claimant, by
means of which he stated that in November 2007 he became sick and after playing
the second half of the match he had to be hospitalized and was diagnosed with
“lung embolia”. Furthermore, the Chamber noted that according to a medical
declaration provided, the Claimant would not be allowed to play football for at
least six months and it was allegedly agreed with the Respondent that he would
undergo further treatment in country B.
10.
In this regard, the Chamber noted that the Claimant attested that after leaving
the country to pursue further treatment, he continued to inform the club in
writing of his progress and of the Respondent’s arrears, despite not having
received the outstanding salaries from the Respondent.
11.
In this respect, the Chamber acknowledged that the Respondent partially accepted
the Claimant’s claim for outstanding salaries, since it confirmed having
outstanding debts in the amount of USD 47,000, but asserted having paid USD
8,000, leaving towards the Claimant a final outstanding amount of 39,000 only.
12.
In view of the above, the DRC recalled that according to the legal principle of the
burden of proof, any party claiming a right on the basis of an alleged fact shall
carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
13.
Therefore, the DRC understood that despite the Respondent’s statement that the
amount of USD 8,000 had been paid, it failed to provide any evidence that such
payment had indeed been honored.
Player M, from country B / Club S, from country I
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14.
Thus, the Dispute Resolution Chamber held that, in accordance with the general
legal principle of pacta sunt servanda, the Respondent must fulfill its obligations
as per the employment contract concluded with the Claimant and, consequently,
pay the outstanding remuneration, which is due to the latter.
15.
Concerning the interest claimed by the Claimant, the DRC noted that the contract
did not provide for any specific interest rate in case of late payment nor did the
Claimant request any. Considering that the Claimant did not specify the due dates
of each installment as well as that the contract did not establish exact dates either,
the DRC decided to award, in accordance with the constant practice of the Dispute
Resolution Chamber, default interest rate of 5% p.a. to the Claimant as from the
day the claim was lodged, i.e. 30 April 2009.
16.
Consequently, the DRC considered that the Respondent is liable to pay to the
Claimant the total amount of USD 47,000 as outstanding remuneration plus
interest at 5% p.a. as from 30 April 2009 until the date of effective payment.
17.
Having established the outstanding remuneration due towards the Claimant, the
DRC continued to analyze the Claimant’s further requests relating to bonus, taxes
and medical expenses and understood that such claims could not be taken into
account once the Claimant did not specify the amounts owed nor did the Claimant
provide any evidence in this respect (cf. art. 12 par. 3 of the Procedural Rules).
18.
Therefore, the DRC moved on to analyze the Claimant’s request for the amount of
USD 792,000 as compensation for loss of expected earnings based on the
approximate salary he would have earned per month, i.e. USD 10,000, multiplied
over a period of 11 years. The Chamber took note that the Claimant requested
60% of the total amount (cf. point I.7.).
19.
In this regard, the Chamber noted that the Claimant alleged having had “lung
embolia”, blaming the Respondent for his health deterioration, since the
Respondent insisted on him to play a match. Furthermore, the DRC note that the
Claimant attested having paid the hospital bills as of 1 December 2007 until 15
December 2007, despite being the Respondent’s obligations, without providing
the Chamber with evidence of such payments. In this respect, the DRC noted that
the Claimant provided a medical finding which stated that the Claimant was not
allowed to continue practicing sports on a professional level.
20.
On the other hand, the DRC noted that the Respondent rejected the Claimant’s
claim for compensation by alleging that until expiry of the contract, the Claimant
would have been entitled to the amount of USD 49,000 only. Furthermore, the
Respondent stated and that it cannot be held responsible for the Claimant’s
disease since it is not related to any sport or football activity, and that it honored
to pay all medical bills incurred by the Claimant in country I.
Player M, from country B / Club S, from country I
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21.
After acknowledging the arguments provided by the Claimant and the
Respondent relating to the compensation request, the DRC recalled the parties to
the contents of art. 17 par. 1 of the Regulations, and understood that the
Claimant is only entitled to receive from the Respondent compensation which
enters into the scope and period of the relevant employment contract. Moreover,
the DRC highlighted that the employment contract was valid until the end of
season 2008.
22.
Moreover, in any case, the DRC recalled the principle of burden of proof and
considered that the Claimant did not provide enough evidence regarding his claim
and the amount requested.
23.
After taking due consideration to the facts and considering that the employment
contract signed by the parties was valid for seasons 2006/2007 and 2007/2008, the
Chamber rejected the Claimant’s claim for compensation in the total amount of
USD 792,000 for loss of expected earnings for the lack of legal basis.
24.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
***
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player M, is partially accepted.
2.
The Respondent, Club S, has to pay to the Claimant, Club M, within 30 days as
from the date of notification of this decision the amount of EUR 47,000 plus
interest at 5% p.a. as from 30 April 2009 until the date of effective payment.
3.
If the aforementioned sum plus interest is not paid within the above-mentioned
deadline, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for its consideration and a formal decision.
4.
Any further request filed by the Claimant, Player M, is rejected.
Player M, from country B / Club S, from country I
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5.
The Claimant, Player M, is directed to inform the Respondent, Club S, 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.
***
Note relating to the motivated decision (legal remedy):
According to art. 67 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:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00 / Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player M, from country B / Club S, from country I
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