Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), member
on the matter between the player,
Player A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 23 July 2010, the player, Player A (hereinafter: the Claimant), born on 12 May
1992, was transferred on loan from the Club of Country B, Club E, to the Club of
Country D, Club C (hereinafter: the Respondent). On the same date, the Claimant
concluded an employment contract (hereinafter: the contract) with the
Respondent, valid as from the date of signature until 31 December 2011. In this
regard, the related International Transfer Certificate (ITC) was issued on 9 August
2010.
2. According to clause 8.1 of the contract, the Claimant was entitled to a monthly
remuneration in the amount of USD 5,000. In addition, the player was entitled to
a monthly housing assistance allowance amounting to USD 300, as well as “two
air tickets round trip, economic class, City of Country B-Country D for season”.
3. In addition, clause 9.2 of the contract stipulated the following:
“Braking or revoking the work contract in advance, the payment of the
contractor of all the values due to the athletes are realized at the day of contract
termination, or at latest on the next day. The athlete has to hand over to the
contractor at the day of contract termination his working papers and the
necessary documents.”
4. On 3 August 2012, the Claimant lodged a claim before FIFA against the
Respondent for breach of contract without just cause. In particular, the Claimant
requested the payment of all the sums he would have earned until the expiration
of his contract with the Respondent, in the amount of USD 98,490 plus 5%
interest, as from 12 August 2010, calculated as follows:
- USD 86,500, corresponding to 17.3 months of salary (from 23 July 2010 until 31
December 2011);
- USD 5,190, corresponding to 17.3 months of housing allowance (from 23 July
2010 until 31 December 2011);
- USD 6,800, corresponding to four air tickets round trip, economic class, City of
Country B – City of Country D (two for the 2010 season and two for the 2011
season).
5. In addition, the Claimant requested the DRC to determine a supplementary
compensation for the allegedly caused “career damages and emotional
suffering”.
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Player A, Country B / Club C, Country D
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6. On 20 August 2012, the Claimant amended his claim, and requested the payment
of a total amount of USD 196,962, plus 5% interest as of 12 August 2010,
calculated as follows:
- USD 86,450, corresponding to 17.3 months of salary (from 23 July 2010 until 31
December 2011);
- USD 5,187, corresponding to 17.3 months of housing allowance (from 23 July
2010 until 31 December 2011);
- USD 6,844, corresponding to four air tickets round trip, economic class, City of
Country B – City of Country D (two for the 2010 season and two for the 2011
season);
7. In addition, the Claimant suggested the DRC to condemn the Respondent to pay
him a supplementary amount of USD 98,481 for “career damages and emotional
suffering” or “other value determined by the DRC”.
8. According to the Claimant, on 12 August 2010, the Respondent sent a fax to Club
E informing the latter that, following a medical exam, the Claimant was
diagnosed with osteoarthritis of the hip join, meaning that “with such problems
he cannot play football at the higher level”. According to the Claimant, on the
same date, he was informed orally by the Respondent of his health problems.
Consequently, the Claimant considered the contract as terminated without just
cause on 12 August 2010.
9. Subsequently, the Claimant explained that he returned to Country B in order to
continue playing for Club E. However, the summer registration period ended on
19 August 2010.
10. On 28 October 2010, following a request of the Football Federation of Country B,
FIFA denied to issue an International Transfer Certificate (ITC) in order for the
Claimant to be registered in Country B after the end of the registration period,
and informed him that he will need to wait until the next registration period.
11. On 20 January 2011, the Claimant returned to Club E, being employed under the
conditions of his previous employment contract, valid from 1 July 2009 until 30
June 2012.
12. According to the employment contract signed with Club E, the Claimant was
entitled to a monthly salary of 900.
13. In relation to the time limits established in article 25 par. 5 of the Regulations on
the Status and Transfer of Players, the Claimant considered that the Respondent’s
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Player A, Country B / Club C, Country D
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fax of 12 August 2010, and not the signature of the contract, was the event
giving rise to the dispute.
14. As to the substance of the matter, the Claimant refused the medical conclusions
of the Respondent, but also considered that the Respondent was not allowed to
breach the contract even if the Claimant was really injured after the signature of
the contract, in accordance with article 18 par. 4 of the Regulations on the Status
and Transfer of Players.
15. In its reply to the claim, the Respondent stated that it is relevant to consider that
the transfer of the Claimant from Club E was concluded under a Cooperation
Agreement between both clubs in order to promote friendly relations between
them. Furthermore, the Respondent stated that in early August 2010, following
the beginning of the execution of the contract, the Claimant was found to have
serious health problems. Consequently, the Respondent argued that it would
have had a just cause to terminate the contract unilaterally in August 2010.
16. Moreover, the Respondent also stated that it did not take any unilateral actions,
but that it only informed Club E on the Claimant’s health, and bought him return
flight tickets to Country B. The Respondent also considered that at that moment
the Claimant did not make any objections to the mutual termination of the
contract, which was confirmed with the signature of a termination agreement in
2011, even though the Respondent acknowledged that the relations between the
Claimant and the Respondent were terminated on 12 August 2010. In the opinion
of the Respondent, it is not understandable how the Claimant could raise any
request almost two years after he terminated any relations with the Respondent.
In addition, the Respondent stated that in any case the Claimant was receiving
salary from Club E after terminating the relations with the Respondent and
returning to Country B.
17. Finally, the Respondent argued that the Claimant tacitly accepted the terms of
the termination agreement by playing for Club E, and quoted DRC jurisprudence,
according to which “the parties have tacitly complied with the terms of the
private contract and through this action, have implied that their real intentions
were stipulated in this agreement”.
18. In his replica, the Claimant considered that the existence of a Cooperation
Agreement between Club E and the Respondent is irrelevant, as the Claimant was
not aware of its existence. The Claimant insisted that, in any case, the validity of a
contract may not be made subject to a positive medical examination. In addition,
the Claimant declared that he did not object to the termination of the contract
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Player A, Country B / Club C, Country D
4
with the club in August 2010 because he “had no option but taking the plane
and return to Country B”. Finally, the Claimant acknowledged that a termination
agreement was signed in January 2011 because it was his only option to return to
work as a professional player, and that in no case this means that he “abdicated
from his salaries, benefit and indemnity”.
19. The Claimant acknowledged that he received salaries from Club E during the
remaining loan period, but that the value (USD 400) is much less than the salary
offered by the Respondent.
20. As final comments, the Respondent confirmed its position elaborated in the
response. In particular, the Respondent highlighted that the parties agreed
verbally to terminate the contract. The Respondent stated that the Claimant’s
health issue “was not a condition precedence to the Employment Agreement, but
a just cause to terminate”. The Respondent also highlighted the fact that, by
signing a termination agreement in January 2011, the Claimant made no further
requests on salaries. In reference to the flight tickets, the Respondent considered
that they were only provided and paid for the Claimant’s presence in Country D,
and that they should not be awarded as he was away. The Respondent also
rejected the claimed amount in relation to the housing allowance, since the
Claimant was not living in City of Country D.
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 case at hand. In
this respect, it took note that the present matter was submitted to FIFA on 3
August 2012. Consequently, 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 (cf. art. 21
of the 2008, 2012 and 2014 editions of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players, edition 2014, the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a Player of Country B and a Club of Country D.
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Player A, Country B / Club C, Country D
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3. The competence of the Chamber having been established, 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, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2010, 2012 and 2014), and considering that the
present matter was submitted to FIFA on 3 August 2012, the 2010 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4. Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the
matter. However, the Chamber emphasised that in the following considerations it
will refer only to the facts, arguments and documentary evidence which it
considered for the assessment of the matter at hand.
5. In this respect, the members of the DRC took note that on 23 July 2010, an
employment contract was concluded between the parties for the period from 23
July 2010 until 31 December 2011, following a transfer on loan from Club E to the
Respondent.
6. In continuation, the Chamber took note of the Claimant’s allegation that the
contract was terminated without just cause by the Respondent on 12 August
2010, after sending a fax to Club E on that same date of a fax informing the Club
of Country B of the Claimant’s apparent medical problems.
7. In this regard, the members of the Chamber underlined that the Claimant
declared that, having been orally informed by the Respondent of his apparent
medical problems on 12 August 2010, he considered the contract terminated and
subsequently returned to Country B in August 2010.
8. Moreover, the Chamber highlighted that it was undisputed between the parties
that they signed a mutual termination agreement in January 2011.
9. Furthermore, the Chamber took note that the Claimant acknowledged that he
was being paid by Club E following his return to Country B in August 2010.
10. In addition, the Chamber highlighted that the claim against the Respondent was
lodged on 3 August 2012, while the termination agreement was apparently
signed by the parties in January 2011. In this regard, the Chamber observed that
during this entire period of time, the Claimant did not contest the alleged
unilateral termination of the contract by the Respondent.
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Player A, Country B / Club C, Country D
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11. Taking into consideration all the foregoing, the Chamber concluded that the
Claimant had tacitly accepted the termination of the contract. Therefore, the
members of the Chamber unanimously decided to reject the claim lodged by the
Claimant.
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is rejected.
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 (CAS)
Avenue de Beaumont 2
CH-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
Enclosed: CAS directives
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Player A, Country B / Club C, Country D
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