Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 February 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Mohamed Al-Saikhan (Saudi Arabia), member
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 11 December 2013, Player A from country B (hereinafter: the Claimant) and Club
C from country D (hereinafter: the Respondent), concluded an employment contract
(hereinafter: the contract) valid as of 6 January 2014 “to at the end of Country D
Premier League 2016, the end of FA Cup 2016, the end of League Cup 2016 and the
end of AFC competition 2016 (if the club has participates)”.
2.
Pursuant to art. 3.1 of the contract, the Claimant was entitled to receive a monthly
salary of 100,000.
3.
In addition, art. 3.2 of the contract provides that “[the Respondent] shall pay [the
Claimant] in remuneration for training allowance 500 (Five hundred only) per day”.
4.
In continuation, according to art. 3.4 of the contract, “in case of injuries, the
[Respondent] shall pay for medical expenses and this for all duration of the
[Claimant] incapacity to play, the [Claimant] monthly salary shall be paid by the
[Respondent] as usual”.
5.
Furthermore, art. 3.5 of the contract stipulates that ”[the Respondent] shall pay for
air ticket for [the Claimant] value 94,000 (Ninety four thousand only) per year”.
6.
On 2 March 2015, the Claimant put the Respondent in default of reinstating him in
the training and paying him outstanding remuneration as well as medical expenses
in the amount of 328,950 by no later than 4 March 2015.
7.
On 5 March 2015, the Claimant terminated the contract in writing.
8.
On 10 March 2015, the Claimant lodged a claim against the Respondent in front of
FIFA for breach of contract, requesting to be awarded with the following amounts:
300,000 as outstanding salaries for the months of December 2014, January and
February 2015;
18,500 as outstanding remuneration corresponding to 37 days of training
allowance;
10,450 as medical expenses;
2,100,000 as compensation corresponding to the residual value of the contract;
188,000 corresponding to two flight tickets;
“05% interest per annum over the outstanding payments”;
600,000 as damages.
9.
In his claim, the Claimant explains that the Respondent failed to pay him three
monthly salaries and prevented him from training on 21, 24, 25, 26 February 2015, 4
and 5 March 2015. In addition, the Claimant asserts that the Respondent failed to
Player A, country B / Club C, country D
2
reimburse the amount of 10,450 that he incurred as medical expenses in spite of
having the obligation to do so as per art. 3.4 of the contract.
10.
In its reply to the Claimant’s claim, the Respondent explains that after the signature
of the contract and without having played any game with it, the Claimant signed a
contract with the club from country D, Club E, valid for a period of 33 months
running from 1 February 2014 until the end of the 2016 season. In view of this, the
Respondent stresses that Club E was in charge of paying the Claimant’s salary.
11.
In continuation, the Respondent alleges that since the Claimant was no longer a
member of the Respondent, it was entitled to prevent him from training with its
team and had no financial obligations towards him.
12.
In his replica, the Claimant acknowledged that he had been registered with Club E
as of 1 February 2014 on a loan basis. Nevertheless, the Claimant provided a copy of
an agreement dated 7 November 2014 signed by Club E and the Claimant, who
explained in his request that the “loan contract with Club E was terminated” and
that therefore he returned to “his original team”, i.e. the Respondent. In support of
his allegations, the Claimant submitted a cheque of 100,000 stamped on 12 January
2015 and allegedly remitted to him by the Respondent as salary payment for
November 2014.
13.
In addition, the Claimant submitted pictures as well as videos, allegedly showing
him training and playing with the Respondent in January and February 2015.
14.
In its final comments, the Respondent outlines that the Claimant did not submit any
evidence confirming that he was on loan with Club E. In particular, the Respondent
stresses that the termination agreement was signed between Club E and the
Claimant and does not refer to an alleged loan.
15.
As to the payment made, the Respondent explains that it does not constitute a
salary payment but just a loan of money, which is a common practice. In addition,
the Respondent sustains that considering that the salary stipulated in the contract
was gross and that it had the obligation to withhold the tax, the monies actually
received by the Claimant as salary should have been less than 100,000.
Consequently, the Respondent concludes that the payment made in January 2015
was not a salary payment. Furthermore, the Respondent outlines that if it had paid
a salary to the Claimant in January 2015, his name would appear in its tax return of
February 2015, quod non.
16.
In continuation, the Respondent points out that the Claimant was on trial with the
Respondent and that is the reason why he trained and played some friendly games.
In this regard, the Respondent alleges that the Claimant was eventually registered
with Club F and played an official game with the latter club on 14 February 2015.
Player A, country B / Club C, country D
3
17.
According to the information provided by the Football Association of country D, the
Claimant was registered with the following clubs:
2009: Club C (Club G loaned on 2nd Leg)
2010 – 2013: Club G
2014: Club E;
2015: Club F.
18.
On 13 March 2015, the Claimant and the club from country D, Club H, entered into
an employment contract, valid as of 1 April 2015 until 31 December 2015 and
according to which the Claimant is entitled to a monthly salary of 90,000.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) 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 10 March
2015. Consequently, the 2015 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. article 21 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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns a dispute with an international dimension between
a player from country B and a club from country D in relation to an alleged
employment-related relationship between the two aforementioned parties, invoked
by the Claimant.
3.
Furthermore, the Chamber analysed which regulations 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 (edition
2015), and considering that the present claim was lodged on 10 March 2015, the
2015 version of said regulations (hereinafter: 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 this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
emphasised that in the following considerations it will refer only to the facts,
Player A, country B / Club C, country D
4
arguments and documentary evidence which it considered pertinent for the
assessment of the matter at hand.
5.
In doing so, the members of the Chamber acknowledged that, according to the
Claimant, he had, on 11 December 2013, concluded with the Respondent an
employment contract valid from 6 January 2014 “to at the end of Country D Premier
League 2016, the end of FA Cup 2016, the end of League Cup 2016 and the end of
AFC competition 2016 (if the club has participates)”. Further, the Chamber also took
note of the Claimant’s allegations according to which the Respondent had breached
the alleged contractual relationship by not paying his monthly salaries for
December 2014, January and February 2015 as well as by preventing him from
training and failing to reimburse his medical costs.
6.
The DRC further took due note of the fact that the Respondent, on its part,
acknowledges having signed the aforesaid employment contract, but asserts that
the contractual relationship with the Claimant came to an end in February 2014
when the latter and Club E entered into an employment contract, valid as of 1
February 2014 until the end of the 2016 season.
7.
In view of this dissent between the parties in respect of the basic question as to
whether a contractual relationship was in force, the members of the Chamber firstly
referred to art. 12 par. 3 of the Procedural Rules, according to which any party
claiming a right on the basis of an alleged fact shall carry the respective burden of
proof. The application of the said principle in the present matter led the members
of the Dispute Resolution Chamber to conclude that it was for to the Claimant to
prove that the contractual relationship, on the basis of which he claims
compensation for breach of contract from the Respondent, indeed existed.
8.
Having stated the above, the DRC recalled that the Claimant maintains that he was
loaned to Club E and that on 7 November 2014, the “loan contract with Club E was
terminated” and, therefore, he returned to “his original team”, i.e. the Respondent.
In support of his assertion, the Chamber noted that the Claimant submitted a
cheque of 100,000 stamped on 12 January 2015 that the Respondent allegedly
remitted him as salary payment for November 2014.
9.
At this stage, the Dispute Resolution Chamber recognised on the one hand that said
payment might constitute a salary payment.
10.
On the other hand, the Chamber deemed it crucial to point out the following facts.
First, the Chamber observed that the Claimant did not submit any copy of a loan
agreement. Furthermore, the DRC emphasised that neither the employment
contract concluded with Club E, nor the termination agreement signed on 7
November 2014 mention that the Claimant was under contract with Club E on a
loan basis.
Player A, country B / Club C, country D
5
11.
In continuation, the members of Chamber were eager to outline that the
employment contract signed with Club E was initially concluded for a duration of
almost three years, i.e. an uncommon duration for a loan, and was due to expire at
the end on the 2016 season, i.e. on the same date as the employment contract
concluded between the Claimant and the Respondent.
12.
Subsequently, the Chamber highlighted that the information provided by the
Football Association of country D, according to which the Claimant had never been
registered with the Respondent after the 2008 season, constitutes an additional
indication that the contractual relationship between the Claimant and the
Respondent was no longer in force in November 2014.
13.
Additionally, and for the sake of completeness, the DRC considered it important to
underline that the Claimant played an official game with Club F on 14 February
2015, i.e. when he was allegedly under contract with the Respondent.
14.
Having duly taken note of the above, the members of the Chamber held that in
order for the Chamber to be able to assume that the Claimant and the Respondent
had indeed been bound through a contractual relationship with the terms as
described by the Claimant, it had to be established, beyond doubt, by documentary
evidence, that the said parties are bound through a contractual relationship, and, if
so, under which terms. In general, the members of the Chamber held that they
could not assume that an employment relationship is in force simply based on
circumstances which, in general, may be likely but are not certain to indicate the
existence of a contractual relationship.
15.
In respect of the foregoing, the members of the Chamber had to conclude that the
documentation presented by the Claimant did not prove beyond doubt that the
Respondent and the Claimant were validly bound through a contractual
relationship. On the contrary, the Chamber pointed out that considering the factual
circumstances above-described, it is most likely that the contractual relationship
between the parties was terminated in February 2014.
16. As a consequence, the DRC decided that, since the Claimant had not been able to
prove beyond doubt that a contractual relationship between himself and the
Respondent was in force, there was no possibility for the Chamber to enter into the
question whether or not such alleged employment contract had been breached.
17. All the above led the Dispute Resolution Chamber to conclude that the claim of the
Claimant has to be rejected.
Player A, country B / Club C, country D
6
III.
Decision of the Dispute Resolution Chamber
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
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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
7