Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 March 2015,
by Theo van Seggelen (Netherlands), DRC judge,
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.
According to the player from country B, Player A (hereinafter: the Claimant), in
December 2013, himself and the club from country D, Club C (hereinafter: the
Respondent) concluded an employment contract (hereinafter: the contract) valid
until December 2016.
2.
According to the Claimant, the contract provided for the following amounts:
USD 10,000 as sign-on fee;
USD 3,000 as monthly salary.
3.
On 14 October 2014, the Claimant lodged a complaint before FIFA against the
Respondent, claiming the amount of USD 98,000 broken-down as follows:
USD 5,000 as balance of sign-on fee;
USD 93,000 as compensation corresponding to the residual value of the contract.
4.
According to the Claimant, the Respondent paid his salary up to May 2014. As from
June 2014, the Respondent apparently no longer paid.
5.
The Claimant also states that the Respondent undertook to pay “later” the amount
of USD 5,000, apparently corresponding to the remaining portion of the sign-on
fee. However, the Respondent allegedly did not pay the said amount either.
6.
After having been invited on two occasions to provide the relevant contract, the
Claimant explained that he was not able to do so since the Respondent apparently
kept all copies of the contract. Instead and in order to prove the existence of the
relevant contractual relationship between the parties, the Claimant provided a
letter dated 4 July 2014 apparently sent by the Respondent to the Claimant
according to which the parties “hereby confirm that the contract between Club C
[the Respondent] and the Player A [the Claimant] has been terminated by mutual
agreement. The player [the Claimant] is therefore free to join any club of his
choice”.
7.
Notwithstanding the above, the Claimant sustains that the Respondent unilaterally
terminated the contract without previously trying to settle with the Claimant.
8.
In spite of having been invited to do so, the Respondent did not submit its
comments pertaining to the matter at stake.
9.
Upon FIFA’s request, the Claimant stated to have remained unemployed from May
2014 to date.
II.
Considerations of the DRC judge
Player A, country B / Club C, Congo DR
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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 14 October 2014. Consequently, the 2014 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 Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 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
2014), he 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 relationship between the two
aforementioned parties invoked by the player, and which value does not exceed
CHF 100,000.
3.
Furthermore, the DRC judge analysed which edition of the FIFA Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (edition 2014), and
considering that the present claim was lodged in front of FIFA on 14 October 2014,
the 2014 edition of said regulations (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing so,
the DRC judge started by acknowledging the abovementioned facts of the case as
well as the documentation contained in the file. However, the DRC judge
emphasised that in the following considerations he will refer only to the facts,
arguments and documentary evidence which he considered pertinent for the
assessment of the matter at hand.
5.
In this respect, the DRC judge acknowledged that, according to the Claimant, in
December 2013, he had concluded an employment contract with the Respondent
for three years, in accordance with which the Respondent allegedly had undertaken
to pay him the amount of USD 10,000 as sign-on fee as well as a monthly salary in
the amount of USD 3,000. The Respondent allegedly no longer paid the Claimant’s
salary as from June 2014 and the Claimant therefore asked to be awarded
compensation for breach of contract by the Respondent in the amount of USD
93,000, in addition to the balance of sign-on fee amounting to USD 5,000.
6.
The DRC judge further noted that the Respondent had been given the opportunity
to reply to the claim submitted by the Claimant, but that the Respondent had failed
to present its response in this respect. In this way, so the DRC judge deemed, the
Respondent renounced to its right of defence and, thus, accepted the allegations of
the Claimant.
Player A, country B / Club C, Congo DR
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7.
As a consequence of the preceding consideration, and in view of the basic question
as to whether or not an employment contract between the parties had been
concluded, the DRC judge referred to art. 9 par. 3 of the Procedural Rules, according
to which he shall take a decision upon the basis of the documents on file, as well as
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 principles in the present matter led the DRC judge to
conclude that it was up to the Claimant to prove that the employment contract, on
the basis of which he claims outstanding amount and compensation for breach of
contract from the Respondent, indeed existed.
8.
Having stated the above, the DRC judge recalled that the Claimant maintained that
he never received a copy of the employment contract he asserts having signed with
the Respondent. However, the Claimant provided a letter dated 4 July 2014
apparently sent by the Respondent which was in continuation examined by the DRC
judge.
9.
According to said letter, the parties “hereby confirm that the contract between Club
C [the Respondent] and Player A [the Claimant] has been terminated by mutual
agreement. The player [the Claimant] is therefore free to join any club of his
choice”.
10.
Having duly taken note of the aforementioned documentation presented by the
Claimant, the DRC judge held that in order for him 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 had indeed entered
into a respective labour agreement, and, if so, under which terms. In general, the
DRC judge held that he could not assume that an employment contract had been
concluded by and between parties simply based on circumstances which, in general,
may be likely but are not certain to indicate the signing of a contract. In addition,
the DRC judge agreed that he must be very careful with accepting documents, other
than the employment contract, as evidence for the conclusion of a contract.
11.
In respect of the foregoing, the DRC judge had to conclude that the documents
presented by the Claimant did not prove beyond doubt that the Respondent and
the Claimant had validly entered into an employment contract.
12.
What is more, even if it would have been possible to establish on the basis of the
documentation on file, other than an employment contract, that the parties had
entered into a labour agreement, the DRC judge wished to highlight that he would
need to be in possession of such labour agreement in order to be able to properly
assess the claim of the Claimant.
13.
As a consequence, the DRC judge decided that, since the Claimant had not been
able to prove beyond doubt that an employment contract had validly been
concluded between himself and the Respondent, there was no possibility for the
Player A, country B / Club C, Congo DR
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DRC judge to enter into the question whether or not such alleged employment
contract had been breached.
14.
All the above led the DRC judge to conclude that the claim of the Claimant has to
be rejected.
III.
Decision of the DRC judge
The claim of the Claimant 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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, Congo DR
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