Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 1 February 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Johan v an Gaalen (S outh Africa), member
S tefano La Porta (Italy ), member
Pav el Piv ov arov (Russ ia), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 17 September 2016, the Player of Country B, Player A (hereinafter: the Claimant),
and the Club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract) valid as from September 2016 until
May 2017.
2.
In accordance with the contract, the Claimant was entitled to receive from the
Respondent, inter alia, the total amount of 10,480. This amount corresponds to:
-
3.
6,300 payable in 9 monthly salaries of 700 each;
850 as travelling tickets;
2,250 as accommodation allowance payable in 9 monthly instalments of 250;
1,080 as travelling allowance payable in 9 monthly instalments of 120 each.
On 14 June 2017, the Claimant put the Respondent in default of the amount of USD
17,600. By means of said correspondence, the Claimant asked the Respondent the
following:
- to pay, within the following ten days, the amount of USD 17,600 as “unpaid
wages corresponding to the months of September 2016, October 2016, November
2016, December 2016 and May 2017”;
- to comply with its obligation to provide him with “specialized medical treatments
for the healing of his injury”.
4.
In August 2017, the Claimant sent three different letters to the Football Association
of Country D (hereinafter: the Football Association E), asking the latter to provide
him with a copy of the contract.
5.
On 16 October 2017 the Claimant lodged a claim against the Respondent, asking FIFA
to “condemn the [Respondent] […] to pay to the [Claimant] the amount of 17,600
USD as unpaid wages corresponding to the months of September 2016, October
2016, November 2016, December 2016 and May 2017, more interests since the date
of the interpellation until full payment”. In addition, the Claimant asked FIFA to
“condemn the [Respondent] to pay a compensation for the medical treatment costs
and moral damages and emotional distress suffered by the [Claimant], in the
additional amount of 15,000 USD, which totals the amount of 32,600 USD”.
6.
In this regard, despite the Claimant being unable to provide a copy of the relevant
contract, he affirmed that “the [Respondent] were obliged to pay to the [Claimant] a
monthly salary of 3,500 USD”.
Player A, Country B / Club C, Country D
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7.
Moreover, the Claimant declared that he “suffered a serious injury during the
contract period” and that “the [Respondent] has never worked for the medical and
urgent treatments of the claimant´s serious injury”. In particular, the Claimant
affirmed having suffered from: “bone trauma, edema and other things which make
him mark and order a medical examination”.
8.
On 27 January 2018, the Respondent replied to the claim by submitting the following
documents:
- a copy of the original employment contract in Arabic, along with its translation
into English;
- the Arabic version of a document titled “Cheque Cashing Statement” (hereinafter
also referred to as: the clearance document) along with its translation into English;
- a copy of the last check dated 17 September 2017, which amounts to 1,350;
- a bank statement showing the cashing of the check.
9.
More in particular, the clearance document – which contains the alleged signature
and fingerprint of the Claimant – reads as follows: “[The Claimant] […] has received
[…] one thousand three hundred fifty [Currency of Country D], cheque No. 66,
withdrawn from […] “Investment Bank” as May 2017 salary and accommodation
allowance of May 2017”. Moreover, the clearance document also contains an
epigraph titled “Acknowledgment”, in which it is stated that: “[The Claimant], do
hereby acknowledge that I have received all my financial entitlements from [the
Respondent] and I do not claim any other financial amounts or have the right to so”;
“I do hereby acknowledge that the [Respondent] is acquitted as I have received all
the aforementioned financial amount of the contract made between me and the
Club which expires on 31/05/2017”.
10.
In his replica, the Claimant reiterated the position expressed with his claim and
contested all the documents presented by the Respondent, maintaining that the
clearance document is “a misrepresented document as the [Claimant] has never
signed any discharge”; arguing that “The only thing […] signed is the discharge from
the last month that the [Respondent] paid” and that “The [Claimant] signed a paper
written in Arabic, and the [Respondent] officials told [him] that the document was
only speaking of the last month´s discharge”. The Claimant further declared that
“the document that the respondent [Respondent] attaches […] is more written,
because the club responsible´s wrote, by hand, what they wanted in that document,
and after the [Claimant]´s signature”.
11.
Furthermore, the Claimant acknowledged having received the salary corresponding
to the last month, but argued that “the months related to the outstanding wages
[…] have no check and there isn´t any proof of payment for the simple reason […]
Player A, Country B / Club C, Country D
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that the outstanding months […] were not paid”. The Claimant continued arguing
that “the copy of the last cheque and the bank statement only proves that the player
received one month, and not the outstanding salaries”. In addition, the Claimant
asked the Respondent to submit the receivables corresponding to the alleged
outstanding salaries.
12.
In its duplica, the Respondent declared, inter alia, that the clearance document was
signed in the presence of Agent F, the Claimant’s agent, who allegedly speaks
fluently Arabic and English. The Respondent further stated that it explained the
content of the clearance document to the Claimant and that his argumentation is
contradictory since, on the one hand, he admits that he has signed the discharge of
the last monthly salary (May 2017) and, on the other hand, he claims that the
Respondent did not pay his salary of May 2017.
13.
Moreover, the Respondent declared that the discharge of the salary corresponding to
May 2017 implies that the Claimant has also received his previous salaries. The
Respondent stated that the Claimant signed and fingerprinted the financial
clearance document twice: “first of which was to acknowledge receipt of a check of
May salary […] and second of which is to acknowledge receipt of entitlements”.
14.
The Respondent further declared that: “The [Claimant]´s claim that the financial
clearance has a printed part and a handwritten part is incorrect, as the clearance and
the acknowledgement of receipt were handwritten in front of the [Claimant] […]”.
15.
The Respondent provided an original version of the clearance document after having
been requested to do so by the FIFA administration. The Claimant, after having been
requested to provide a copy of the financial clearance that he may have in his
possession, stated that “he doesn´t have any copy of that document, because the
document in cause is a misrepresented document as the [Claimant] has never signed
that discharge and that document”.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 16 October 2017. Consequently, the edition 2017 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 Procedural Rules).
Player A, Country B / Club C, Country D
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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 June 2018) 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.
3.
Furthermore, 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 at hand. 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 June
2018), and considering that the present claim was lodged on 16 October 2017,
the 2016 edition of said regulations (hereinafter: 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. However, the Chamber emphasised that
in the following considerations it will refer only to the facts, arguments and
documentary evidence which it considered pertinent for the assessment of the
matter at hand.
5.
In this respect, the Chamber acknowledged that the parties to the dispute had
signed an employment contract valid as from September 2016 until May 2017. In
this respect, first and foremost, the DRC took into account the original
employment contract produced by the Respondent with its reply to the claim, in
accordance with which the Claimant was entitled to receive from the latter, inter
alia, the following amounts: (i) 6,300 payable in 9 monthly instalments of 700 each;
(ii) 850 as travelling tickets; (iii) 2,250 as accommodation allowance payable in 9
monthly instalments of 250; (iv) 1,080 as travelling allowance payable in 9
monthly instalments of 120 each.
6.
In continuation, the members of the DRC noted that, according to the Claimant,
during the employment relationship, the Respondent had failed to remit to him
salaries in the amount of USD 17,600, allegedly corresponding to the months of
September, October, November and December 2016, as well as May 2017.
Moreover, the members of the Chamber observed that the Claimant requested
compensation for medical treatment and “moral damages and emotional
distress” for the additional amount of USD 15,000.
7.
Furthermore, the DRC took note that the Respondent, for its part, claimed that
the parties had signed a clearance document in the presence of the Claimant’s
agent, by means of which the Claimant: (i) “acknowledge[d] receipt of a check of
May salary” and (i) “acknowledge[d] receipt of entitlements”.
Player A, Country B / Club C, Country D
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8.
With regards to the above, the DRC observed that the Respondent produced a
copy of the said clearance document containing two signatures and two sets of
fingerprints of the Claimant. Moreover, the Chamber observed that the said
document comprised two separate declarations from the Claimant:
a.
one reading as follows: “[The Claimant] […] has received […] one thousand
three hundred fifty [Currency of Country D], cheque No. 66, withdrawn from […]
“Investment Bank” as May 2017 salary and accommodation allowance of May
2017”;
b. and one, titled “Acknowledgment”, reading as follows: “[The Claimant], do
hereby acknowledge that I have received all my financial entitlements from [the
Respondent] and I do not claim any other financial amounts or have the right to
so”; “I do hereby acknowledge that the [Respondent] is acquitted as I have
received all the aforementioned financial amount of the contract made between
me and the [Respondent] which expires on 31/05/2017”.
9.
In this respect, the DRC further observed that the Claimant maintained that he
only signed the “discharge” concerning the monthly salary of May 2017 but he
did not waive his entitlement to the rest of the alleged outstanding salaries.
Moreover, the members of the Chamber took into account that the Claimant
maintained that the document in question was written in Arabic and allegedly
concerned only a waiver of the salary of May 2017. The members of the DRC
further observed that, according to the Claimant, the Respondent had added a
second part to the clearance document concerning the rest of his salaries at a
later stage, after he had put his signature on it.
10.
In light of the foregoing, the members of the DRC considered that the underlying
issue in the present dispute, considering the parties’ position, was to determine
as to whether or not the said clearance document had been validly concluded in
its entirety, i.e. comprising the waiver of any financial entitlements deriving from
the employment relationship at stake.
11.
First of all, the members of the DRC took into account the Claimant’s argument
that he “signed a paper in Arabic, and the [Respondent] officials told the
[Claimant] that the document was only speaking of the last month’s discharge”.
In this respect, the members of the Chamber deemed it fit to emphasise that a
party signing a document of legal importance without knowledge of its precise
contents, as a general rule, does so on its own responsibility. Consequently, the
Chamber concluded that such argument could not be upheld.
12.
The foregoing having been established, the members of the Chamber turned
their attention to the Claimant’s argument that the clearance document is “a
misrepresented document as the player has never signed any discharge”.
Player A, Country B / Club C, Country D
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13.
In this respect, the members of the DRC deemed it important to firstly recall that,
according to the DRC’s well established jurisprudence, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such
as the ones concerning falsified signature of documents, and that such affairs fall
into the jurisdiction of the competent national criminal authority.
14.
However, the members of the DRC took into account that the Respondent
produced an original specimen of the clearance document signed twice by the
Claimant and bearing two sets of his fingerprints. In this respect, the Chamber
noted that, on the one hand, the Claimant argued that he had only signed the
part of the said document which referred to his waiver of the salary of May 2017,
claiming that the rest, i.e. the part referring to the rest of his salaries, had been
added by the Respondent at a later stage. On the other hand, the members of
the DRC noted that the Claimant expressly admitted being unable to produce the
original version of the different, allegedly narrower, clearance document that he
claimed he had signed.
15.
In other words, the DRC, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof, observed that the Claimant failed to provide
evidence that he had signed only a document concerning his waiver of May 2017.
16.
Consequently, the DRC concluded that, in accordance with the principle of the
burden of the proof, the Claimant did not prove that he had signed a different
waiver than the one produced by the Respondent and, thus, that the said
clearance document had not been validly concluded between himself and the
Respondent in its entirety.
17.
On account of the above, and considering that – by signing the said clearance
document – the Claimant waived his entitlement to any outstanding salaries, the
DRC rejected his claim in that respect.
18.
That said, the members of the DRC analysed the Claimant’s request of an
additional amount of USD 15,000 regarding “medical costs and moral damages”.
Concerning the medical costs, the DRC observed that there was no contractual
stipulation entitling the Claimant to the said costs and the latter had not been
able to provide any evidence corroborating his requests.
19.
Lastly, with regards to the compensation for moral damages, the Chamber
deemed it appropriate to point out that the request for said compensation
presented by the Claimant had no legal or regulatory basis and it underlined that
no corroborating evidence had been submitted that demonstrated or quantified
the damage suffered.
Player A, Country B / Club C, Country D
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20.
On account of the above, and considering that – by signing the said clearance
document – the Claimant waived his entitlement to any outstanding salaries, the
DRC concluded that his claim had to be rejected.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
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