Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 March 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player T, from country G
as Claimant
against the club,
Club P, from country U
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 20 February 2008, Player T, from country G (hereinafter: the Claimant), and Club P,
from country U (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract) valid as from the date of signature until 31 December 2009.
2.
According to art. 3.1.3 of the contract, the Claimant was entitled to receive a monthly
remuneration of currency of country U 500,000.
3.
On 29 February 2008, the parties signed an annex to the contract (hereinafter: the
annex), according to which the Claimant was entitled to the following amounts:
- currency of country U 32,000,000 as “incentives” after the signature of the
contract;
- currency of country U 18,000,000 payable on 15 April 2008;
- currency of country U 24,000,000 payable on 10 March 2009;
- currency of country U 24,000,000 payable on 10 July 2009.
4.
On 29 October 2009, the Claimant lodged a complaint before FIFA against the
Respondent, requesting, after amending his claim, that the latter should proceed with
the payment of the total amount of currency of country U 48,000,000, made up of:
- currency of country U 24,000,000 corresponding to the payment due on 10
March 2009;
- currency of country U 24,000,000 corresponding to the payment due on 10 July
2009.
5.
With his claim, the Claimant provided FIFA with copies of three letters addressed to the
country U Football Federation, dated 3 March 2009, 24 July 2009 and 3 August 2009,
which state as follows:
- Claimant’s letter dated 3 March 2009: the Claimant states that, in spite of
having always complied with his professional obligations as per the
employment contract, by the beginning of the season 2009, the Respondent
stopped paying his salaries and included him in the transfers list. Despite the
alleged interest of many clubs, he could not be transferred to a new club and
was excluded from the training of the main squad. In addition, the Respondent
allegedly authorized him to go to country G and promised that his salaries
would be paid, but not the other amounts established in the contract, since
70% of the 2009 matches would be held without his participation.
- Claimant’s letter dated 24 July 2009: the Claimant states that his previous letter
has remained unanswered and without effect.
- Claimant’s letter dated 3 August 2009: the Claimant stated that, after
concluding his treatment in country G in January 2009, he re-joined the
Respondent club in perfect physical condition. However, he was without any
Player T, from country G / Club P, from country U
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explanation prohibited by the Respondent’s coach to participate in trainings.
The Claimant equally claimed having been forced to leave the Respondent club
in April 2009, allegedly without explanation, and advised to wait for the
Respondent to contact him, which never occurred.
6.
In its response, the Respondent did not submit any comments as to the substance of the
claim, but enclosed copies of several documents related to the Claimant’s employment,
as follows:
- Respondent’s “protocol no. 2” dated 20 February 2009: concerning a meeting
held by the Respondent, in which the latter, inter alia, acknowledged the
existence of a foot injury of the Claimant, agreed to send him to country G for
medical treatment and decided not to register him for the country U cup
championship “if the health is not well”.
- Respondent’s “order no. 9 A” dated 4 March 2009: which states that “Because
of his leaving the staff, make account for salary to country G football player T
to the existing contract from January 1 up to June 20, 2009”.
- Respondent’s “protocol no. 5” dated 13 July 2009: concerning a meeting held
by the Respondent, and according to which the Claimant had not yet returned
from country G after his medical treatment and did not answer to the letters
allegedly sent to him by the Respondent on 15 May 2009 and 7 June 2009.
Consequently, the Respondent concluded that the Claimant should be
transferred “because of his irresponsibleness”.
- Respondent’s “order no 36” dated 14 July 2009: by means of which the
chairman of the Respondent club ordered “to cancel the contract” signed on 1
February 2008 with the Claimant, with effect as of 14 July 2009, due to the fact
that he did not resume his activities with the Respondent after his treatment,
did not show discipline towards the Respondent’s staff and disregarded “the
orders of the club leaders and trainers.” Additionally, “full accounting with
Player T.” was ordered.
- Claimant’s authorisation letter dated 11 August 2009: authorizing Player L to
“take full debts of the club”, “to sign instead of me and do any activities
depending on the implementation of these assignments”.
- Respondent’s “cash expenditure warrant” dated 24 August 2009: issued by the
Respondent, in the amount of currency of country U 1,143,960, corresponding
to “football Player T’s account” and given to “football Player T.”.
- Respondent’s letter dated 23 September 2010: addressed to the General
Director of Professional Football League country U and according to which the
Respondent “made full calculation with the football player T, […] on 24 August
2009 by proxy sent by the football player from country G and certified notarilly,
full calculation has been given out Player L”.
Player T, from country G / Club P, from country U
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7.
In his replica, the Claimant states that the documentation presented by the Respondent
was unilaterally issued by the latter and does not reflect the truth.
8.
The Claimant states having left to country G for his vacations in December 2008, the
travel expenses having been borne by the Respondent. The Respondent, however, did
not provide him with the means to return to country U in the beginning of January
2009. Thus, the Claimant organized and bore the costs of his return to country U, on 15
January 2009. In this respect, he encloses a statement of the player T, dated 21 February
2011, according to which ”Player T bought the ticket on his own money with us and we
all three on the first available flights on 15 January appear on the base of the club”. A
stamp on the Claimant’s passport, a copy of which was provided by the latter, indicates
that he left country G on 15 January 2009.
9.
Due to the long duration of the trip, the Claimant had a stiff ankle and, therefore, had
to undergo physiotherapy for 10 days in country G, the costs of which were borne by
the Respondent. A stamp on the Claimant’s passport, a copy of which was provided by
the Claimant, indicates that he returned to country G on 29 January 2009.
10.
On 12 February 2009, as the Claimant returned to the headquarters of the Respondent
and, in spite of being in good health, he was allegedly obliged to train alone and was
excluded from the national championship. The Claimant allegedly questioned the
Respondent about the reasons of his exclusion, but received no answer. By the
beginning of April 2009, the Respondent allegedly provided him with a return ticket to
country G and never again contacted him until 5 August 2009, when he received from
the Respondent its letter of 14 July 2009, according to which their contract was
terminated. The Claimant claims never having received any warnings from the
Respondent prior to such termination letter. A stamp on the Claimant’s passport, a copy
of which was provided by the Claimant, indicates that he left country U on 6 April 2009.
11.
Disposing of no funds to return to country U, the Claimant granted another player,
Player L, an authorization to receive on his behalf the amounts due to him by the
Respondent, dated 11 August 2009. However, instead of the due currency of country U
24,000,000, the Claimant claims having received from Mr. L only the amount of currency
of country U 1,000,000. Therefore, the Claimant deems that the Respondent has not
entirely acquitted its debts towards him, as it claims.
12.
In addition, on 20 February 2009, as “protocol no 2” was issued, the Claimant had
already concluded his medical treatment and was already in country U, since 12
February 2009. Therefore, the content of the aforementioned document is incorrect. In
this respect, the Claimant provides FIFA with a copy of a medical statement, according
to which his physician confirms that “from 2 February 2009 to 12 February 2009 [the
player] passed the ten-day full course of manual therapy with diagnosis inflammation of
Player T, from country G / Club P, from country U
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legs ankle joints. I declare with full responsibility that the course of treatment was
successful and at the time of its completion the footballer was absolutely healthy”, as
well as a copy of his passport containing the arrival stamp in Tashkent on 12 February
2012.
13.
The Claimant finally states never having received any warnings from the Respondent
dated 15 May and 7 June 2009 and rejects the Respondent’s accusations according to
which he never resumed his activities with it after his medical treatment and showed
lack of discipline towards its personnel.
14.
In its final position, the Respondent maintains its previous argumentation and states
that the value of the ticket purchased by the Claimant was reimbursed by the
Respondent upon the Claimant’s arrival.
15.
According to the Respondent, the Claimant left by the end of January 2009 with the
results of several exams, in order to undergo surgery in country G. As he returned to
country U in February 2009, he allegedly refused to undergo medical assessment by the
club. Since his health condition was uncertain, he was assigned to train with the reserve
team. In order to allow him to resume his activities in the second half of the
championship, the Respondent decided to bear the costs of the Claimant’s
rehabilitation in country G and paid him all due contractually amounts for January until
July 2009. After the conclusion of his treatment, the Claimant however never returned
to country U.
16.
The Claimant claims not having signed any new employment contract after the
termination of the contract with the Respondent.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was submitted to FIFA on 29
October 2009. 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 par. 2 and par. 3 of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2009)
(hereinafter: the Regulations), he is competent to decide on the present litigation, to
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the extent that concerns an employment-related dispute with an international
dimension between a country G player and an country U club.
3.
Furthermore, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter concerning the contractual dispute
between the parties. In this respect, he confirmed that, in accordance with art. 26 par. 1
and par. 2 of the Regulations (edition 2009) and considering that the present matter
was submitted to FIFA on 29 October 2009, the 2009 edition of said Regulations is
applicable to the present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the judge entered into the substance of the matter. In doing so, he started
to acknowledge the facts of the case as well as the documents contained in the file.
5.
In this respect, the DRC judge acknowledged that it was undisputed by the parties that
they had signed an employment contract and an annex to it, on 20 and on 29 February
2008, respectively, valid as from the date of signature until 31 December 2009, and
according to which the Claimant was entitled to receive, inter alia, currency of country
U 500,000 as monthly remuneration, currency of country U 32,000,000 as “incentives”
after the signature of the contract, currency of country U 18,000,000 on 15 April 2008,
currency of country U 24,000,000 payable on 10 March 2009, and currency of country U
24,000,000 payable on 10 July 2009.
6.
The DRC judge further noted that, on the one hand, the Claimant claims, inter alia, that
the Respondent excluded him from the trainings of the main squad, failed to pay him
the installments due to him on 10 March 2009 and on 10 July 2009 as per the annex to
the contract, in the total amount of currency of country U 48,000,000, and terminated
the contract without any previous warning or just cause, by means of its letter of 14 July
2009.
7.
Before that, the Claimant claims having been obligated to return to country G in the
beginning of April 2009 and wait for a contact of the Respondent, regarding his
participation in the second half of the championship. However, the Claimant claims
never having been contacted by the Respondent, until the 5 August 2009, when he
received the aforementioned termination letter.
8.
The Claimant equally explains that, after the termination, and in order to receive from
the Respondent the amounts that he deemed still due, i.e. the aforementioned
installments in the total amount of currency of country U 48,000,000, he granted a
fellow player, Player L, an authorization dated 11 August 2009, authorizing him to
“take full debts of the club”, “to sign instead of me and do any activities depending on
the implementation of these assignments”.
Player T, from country G / Club P, from country U
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9.
The DRC judge also noted that the Claimant, however, claims having received from
Player L only the amount of currency of country U 1,000,000, instead of the currency of
country U 48,000,000 that he considered to be the correct amount of the debt of the
Respondent towards him. Therefore, the Claimant claims before FIFA the payment of
the aforementioned amount of currency of country U 48,000,000.
10.
Subsequently, the DRC judge took due note of the allegations of the Respondent, who
claims, on the other hand, that the Claimant did not resume his activities with it after
the conclusion of his medical treatment, the costs of which were allegedly bore by the
Respondent. In this regard, the DRC judge noted that the Respondent does not indicate
a specific date for the Claimant’s departure, but claims having sent him reminders dated
14 May 2009 and 7 June 2009. In this particular, the DRC judge noted that the
Respondent did not provide a copy of such reminders and the Claimant denies having
received them.
11.
Based on the Claimant’s allegedly unjustified absence and lack of discipline and respect
towards the club’s staff, on 14 July 2009, the Respondent terminated the employment
contract in writing and ordered “full accounting with Player T”.
12.
The DRC judge further noted that, according to the Respondent, all amounts due were
paid to the Claimant, via his representative, Player L, which collected such amounts and
signed a receipt on behalf of the Claimant, thoroughly extinguishing their financial
obligations as per the employment contract. Therefore, the Respondent deems that the
claim of the Claimant should be rejected.
13.
Having established the aforementioned, the DRC judge concluded that the underlying
issue in this dispute, considering the claim of the Claimant and the allegations of the
Respondent, was firstly to determine whether the Claimant was entitled to receive the
amounts claimed in the Claim and subsequently to establish whether the financial
obligations of the Respondent towards the Claimant could be considered as
extinguished, as the Respondent claims.
14.
Before analyzing the positions presented by the parties to the dispute and in view of
the multitude of arguments and documents presented by the both of them, the DRC
judge deemed it appropriate to emphasize that the following outline of the parties‘
arguments is illustrative and does not comprise every contention put forward by them.
However, the DRC judge has carefully considered all submissions made by the parties,
even if no explicit reference to those submissions is made in the following analysis.
15.
Having said that, the DRC judge started analyzing the main aspects of the positions of
both the Claimant and the Respondent, firstly those related to the termination of the
contract and the outstanding amounts due by that date.
Player T, from country G / Club P, from country U
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16.
In this context, the DRC judge noted that both parties appear to agree upon the fact
that – regardless of the apparent movements of the Claimant between country G and
country U between January and July 2009 on dates that are partially disputed by the
parties – on 14 July 2009, the contract was unilaterally terminated by the Respondent,
in writing. In this regard, the DRC judge observed that the termination was not
contested by the Claimant, who subsequently started taking the necessary measures to
collect the amounts he considered as still outstanding by the Respondent.
17.
Having established the date of termination on 14 July 2009, the DRC judge went on to
determine which amounts were to be considered as outstanding by the time of
termination. In this regard, he took into account the allegations of the Claimant,
according to which the total amount of currency of country U 48,000,000,
corresponding to the two installments of currency of country U 24,000,000 each, due on
10 March 2009 and on 10 July 2009, had not been paid by the Respondent. In
continuation, the DRC judge equally observed that the Respondent did not provide
evidence that those amounts had already been entirely paid to the Claimant before the
termination and were, therefore, no longer claimable.
18.
At this point and for the sake of good order, the DRC judge recalled the basic principle
of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to
which a party claiming a right from an alleged fact shall carry the respective burden of
proof.
19.
Bearing in mind the aforementioned article as well as the allegations of the parties, the
DRC judge concluded that the Respondent was not able to present consistent evidence
regarding the payment of the aforementioned installments before it terminated the
contract, on 14 July 2009. In view of the foregoing and taking into account the legal
principle of pacta sunt servanda, the DRC judge concluded that, in principle, the
Claimant has the right to demand the payment of the amount of currency of country U
48,000,000 from the Respondent, corresponding to the installments due on 10 March
2009 and on 10 July 2009.
20.
Notwithstanding the foregoing, the DRC judge took due note of the fact that, in order
to demand the payment of the aforementioned amount from the Respondent, the
Claimant, alleging not having the financial means of travelling himself to country U,
provided a fellow player, Player L with an authorization to collect the amounts due to
him by the Respondent.
21.
At this point, the DRC judge deemed it appropriate to recall the wording of said
authorization, dated 11 August 2009, as follows: “I, Player T, depute/authorize Player L
that, he can take full debts of the club P capital city in country U instead of me,
according to my personal contract with this club. According to this, he has a right to
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sign instead of me and do any activities depending on the implementation of these
assignments”.
22.
Subsequently, the DRC judge noted that the Respondent provided FIFA with a “cash
expenditure warrant” dated 24 August 2009, issued by the Respondent, in the amount
of currency of country U 1,143,960, corresponding to “football player Player T’s
account” and given to “football player Player L.”, as well as with a letter of the
Respondent dated 23 September 2010, addressed to the General Director of
Professional Football League country U, according to which it “made full calculation
with the football player T, […] on 24 August 2009 by proxy sent by the football player
from country G and certified notarilly, full calculation has been given out Player L”.
23.
In view of the foregoing, the DRC judge noted that, by means of his authorization of 11
August 2009, the Claimant authorized Player L to “take full debts of the club”, “to sign
instead of me and do any activities depending on the implementation of these
assignments”. In addition, the DRC judge noted that said authorization does not specify
the amount to be collected by Player L on behalf of the Claimant.
24.
The DRC judge, after analyzing the content of said document, concluded that by
granting a fellow player with such a broad and non-specific authorization, the Claimant
accepted the risk of not obtaining the full calculation of his debts with the Respondent,
which he expected, but did not explicitly specify in writing. In this context, the DRC
judge deemed it appropriate to emphasize that a party signing a document of legal
importance without precisely specifying its content, as a general rule, does so on its own
responsibility and is consequently liable to bear the possible legal consequences arising
from the execution of such document.
25.
In the present case, by means of the document “cash expenditure warrant” dated 24
August 2009, issued by the Respondent and apparently signed by the Claimant’s
authorized representative, the debt of the Respondent towards the Claimant was
acquitted, even though not in the amount expected by the Claimant, as this amount
was nowhere specified.
26.
Therefore, the DRC judge concluded that the content of the authorization dated 11
August 2011 had been exhausted and that the debt of the Respondent towards the
Claimant had been acquitted, as Player L, making use of the powers granted to him,
signed the aforementioned “cash expenditure warrant”.
27.
In view of all the aforementioned arguments, the DRC judge concluded that the claim
of the Claimant had to be rejected.
Player T, from country G / Club P, from country U
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*****
III.
Decision of the DRC judge
The claim of the Claimant, Player T, 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 DRC judge
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player T, from country G / Club P, from country U
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