Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 April 2014,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Alejandro Marón (Argentina), member
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
on the claim presented by the player,
Player G, from country F
as Claimant
against the club,
Club F, from country S
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1. On 1 July 2012, Player G, from country F (hereinafter: the Claimant), and Club F, from country S
(hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid as
of the date of signature until 30 June 2014.
2. The contract specifies, inter alia, that the Respondent would provide the Claimant with the
following remuneration:
- USD 50,000 payable upon signature of the contract and the Claimant’s presence in country S;
- a fixed remuneration of USD 18,333 per month payable at the end of each month.
3. In addition to the above-mentioned amounts and in accordance with the contract uploaded in
the Transfer Matching System by the club, the player was also entitled to the amount of USD
50,000 due on 1 July 2013.
4. In accordance with article 19 of the contract, the Respondent has to provide the Claimant with
accommodation, a suitable transportation, “two tickets travel in case of approval of the first
party” as well as “one round ticket for family in case of coming to country S”.
5. Article 29 of the contract stipulates that the Respondent “is entitled to take back the total
contract value from the [Claimant] in case he is absent of training or any official or friendly
match, non-commitment for the [Respondent’s] internal lists and systems, or in case he requests
for terminating the contract”.
6. On 23 July 2013, the Claimant lodged a claim before FIFA against the Respondent, requesting the
imposition of sporting sanctions as well as a total amount of USD 290,000 broken down as
follows:
- USD 50,000 as unpaid sign-on fee for the season 2013/2014, plus 5% interest p.a. as of 1 July
2013;
- USD 220,000 as compensation corresponding to the total salaries for the season 2013/14;
- USD 20,000 as additional compensation for loss of benefits in kind.
7. According to the Claimant, he contacted the Respondent, either by fax or e-mail, on 11, 14, 17
and 28 June 2013, asking for information regarding the start of pre-season training and for a
flight ticket in order to return to country S. In particular, in his correspondence of 28 June 2013,
the Claimant indicated that his visa expired on 27 June 2013 and asked for all necessary
documentation in order to fulfil his contractual obligations. The Claimant provided a copy of the
visa which was valid for a period of 60 days and granting him the right to exit and enter country
S during said period. On 29 June 2013, the Respondent answered stating that it received the
Claimant’s last fax and that it had been informed by the Claimant’s agent of his intention to
terminate the contract. The Claimant replied on 2 July 2013 insisting that the agent referred to
does not represent him, that he has no intention to terminate the contract and that he still
awaits the necessary documentation in order to travel to country S, i.e. a flight ticket and a valid
visa.
8. On 6 July 2013, the Respondent informed the Claimant that he should have returned to country S
before his visa had expired and that it would have reimbursed the costs of the flight upon his
arrival. At the same time the Respondent stated that it will apply the relevant sanctions due to
the Claimant’s absence and that his technical level had been assessed as unsatisfactory. In his
reply of 7 July 2013, the Claimant maintained that his absence from the Respondent was only due
to the fact that the Respondent failed to respond to his correspondence as from 11 June 2013
and reiterated his requests in order to pursue the contract. On 9 July 2013, the Respondent stated
that it had no objection with the Claimant fulfilling his contract, that the Claimant would be
provided with a visa and that he should buy his own flight ticket which would be reimbursed
upon arrival. In response, the Claimant acknowledged the Respondent’s intention to organise the
Player G, from country F / Club F, from country S
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issuance of a visa but maintained that the Respondent should also provide him with a flight
ticket.
9. Subsequently, the Respondent informed the Claimant that a specific training programme had
been prepared for him in view of the fact that he had been absent from a pre-season camp in
Rome. On 18 July 2013, the Claimant responded insisting that he had not been called-up for the
training camp in Rome and that his visa had still not been issued.
10. The Respondent then informed the Claimant on 18 July 2013 that it was seriously thinking of
terminating the contract or negotiating a mutual termination due to the Claimant’s alleged
negligence towards his duties. Then, on 19 July 2013, the Respondent informed the Claimant that
a visa was going to be issued shortly for the Claimant to travel to country S ‘’ in order to pay all
amounts required from you’’. In this context, the Respondent made reference to article 29 of the
contract.
11. On 20 July 2013, the Claimant addressed a default notice to the Respondent, requesting the
payment of an alleged unpaid sign-on fee by no later than 22 July 2013. The Respondent
apparently never executed, which is why the Claimant lodged his claim in front of FIFA on 23 July
2013.
12. In this context, the Claimant alleges that the Respondent did not comply with its primary
obligation of payment. The Respondent apparently did not pay the sign-on fee of USD 50,000
allegedly due for the season 2013/2014. As a matter of fact, the Claimant points to the
Respondent’s persistent delay in paying the Claimant’s salaries for the season 2012/2013. The
Claimant provided cheques evidencing the delayed payment of several salaries.
13. Moreover, the Claimant stresses that the Respondent lacked genuine interest to retain his
services. The Claimant highlights the fact that he was not contacted in order to resume training
and take part in pre-season camp and insists that his multiple attempts to contact the Respondent
before expiry of his contract remained unanswered. According to the Claimant, the Respondent is
to be held liable for his incapacity to return to country S since it failed to carry out the necessary
administrative steps to renew his visa. In addition, the Claimant underlines the Respondent’s
violation of article 19 of the contract since it refused to book the flight ticket for the Claimant’s
return to country S.
14. Finally, the Claimant maintains that the Respondent was in bad faith when it informed him on 19
July 2013 that he should reimburse the entire value of the contract pursuant to article 29 of the
contract on the basis that he had failed to resume training.
15. In its defence, the Respondent holds that the Claimant has received all his financial dues for the
season 2012/2013 before he left on vacation. The Respondent also points to the Claimant’s
negligence regarding his professional duties since he had been absent for 4 days without a
formal reason and had initiated a strike of two days with other players during the 2012/2013
season.
16. Subsequently, the Respondent asserts that it had no intention to terminate the contractual
relationship with the Claimant. According to the Respondent, the main issue is the fact that the
Claimant did not return to country S before the expiry of his visa. Regarding the Claimant’s
requests for information about training and a flight ticket, the Respondent maintains that the
Claimant knew about his obligation to return before expiry of his visa – i.e. within the relevant
period of two months - which demonstrates the Claimant’s lack of desire to pursue the
contractual relationship. In this respect, the Respondent also recalls that it only has to cover the
Claimant’s travel costs upon its approval, pursuant to article 19 of the contract. In any event, the
Respondent underlined that it had offered the Claimant to reimburse the value of his plane ticket
to return to country S.
Player G, from country F / Club F, from country S
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17. Finally, the Respondent emphasises that it sent a new visa to the Claimant in order for him to
return to country S and requested the Claimant’s return to the Respondent. In this respect, the
Respondent refers to its correspondence dated 26 July 2013 by means of which it informed the
Claimant of the issuance of his new visa, and its correspondence of 28 July 2013 ‘’asking your
presence to the Kingdom of country S in order to complete the remaining period of your
employment contract and to negotiate on paying item 29 with the club due to your evident
absence any your tardiness to come before the expiration of the visa that was given to you’’.
18. Upon FIFA’s request, the Claimant stated on 28 March 2014 that he had remained unemployed
since 23 July 2013 to date. The Claimant provided the relevant documentation indicating the
monthly allowances received from the country F state regarding his unemployment since
September 2013 which correspond to the total amount of EUR 5,153 from October 2013 until
March 2014. The Claimant also explained having joined, as an amateur, the club US C, and since
January 2014 the Club T.
19. The International Transfer Certificate (ITC) for the envisaged registration of the Claimant as an
amateur with Club C was requested by the country F Football Federation on 23 August 2013.
Following the refusal of the country S Football Federation to deliver the ITC and a request for
provisional registration by the country F Football Federation, the Single Judge of the Players’
Status Committee authorised the Claimant’s provisional registration with Club C on 14 October
2013.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 23 July 2013. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. article 21 par. 1 and
2 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 2012) 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 country S club and a country F player.
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 par. 2 of
the Regulations on the Status and Transfer of Players (edition 2012), and considering that the
present claim was lodged on 23 July 2013, the 2012 edition 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 the above-mentioned facts as well as the arguments and documentation
submitted by the parties. 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. The members of the Chamber acknowledged that the parties were bound by an employment
contract, which was signed on 1 July 2012. The Claimant, on the one hand, maintains that the
Player G, from country F / Club F, from country S
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employment contract was breached by the Respondent which did not contact him to resume
training or take part in pre-season camp and which did not help him to return to country S. The
Claimant thus alleged having terminated the contract with just cause as a result of his incapacity
to return to the club after the expiry of his visa on 27 June 2013. The Respondent, on the other
hand, rejects such claim asserting that the Claimant had in fact acted in violation of his
contractual obligations by failing to return to country S before the date of expiry of his visa.
6. The Chamber highlighted that the underlying issue in this dispute, considering the claim of the
Claimant and the conflicting positions of the parties, was to determine whether the
employment contract had been prematurely and unilaterally terminated with or without just
cause by either of the parties.
7. In view of the above, the Chamber deemed it appropriate to shortly recall the timeline of
events in the present matter according to the documentary evidence provided by either party as
well as the respective allegations which have remained uncontested by the opposing party.
8. In this respect, the Chamber noted that the Claimant left country S to go on vacation and held a
visa allowing him to exit and enter country S during a period of 60 days, i.e. until 27 June 2014.
The Claimant held having contacted the Respondent several times during the month of June,
asking for the starting date of pre-season training as well as to be provided with a flight ticket
to return to country S.
9. The DRC also acknowledged that the Respondent answered after the expiry of the Claimant’s
visa, informing the Claimant that he should have returned within the 60 days for which he had
a valid visa and that in any case, he should bear his own travelling expenses since it had no
contractual obligation to pay the Claimant flight tickets in advance.
10. In view of the foregoing sequel of events and taking into account the parties’ respective
contractual obligations, the Chamber deems that the Claimant failed to comply with his
obligations towards the Respondent by not returning to country S before 27 June 2013. The
Chamber considers that although the Respondent did not show doubtless interest in ensuring
the player’s timely return to country S, the Claimant acted in violation of his contractual
obligations by not travelling to the country despite being aware of the forthcoming expiry of
his visa.
11. Reverting to the traveling costs, the DRC refers to article 19 of the contract – as outlined in
point 3 above – according to which the Respondent has to cover the Claimant’s traveling costs
only upon its approval. In this context, the Chamber was of the opinion that there was no
express obligation contained in the contract for the Respondent to provide the Claimant with a
flight ticket and pay for such prior to the player’s travel. In this context, the Chamber concluded
that the Respondent had not committed any violation of his contractual obligations and could
not be reproached for its stance of requesting the player to travel before being reimbursed.
12. On account of the above considerations, the DRC decided that the Claimant breached the
contract without just cause. Consequently, the Chamber judges that the contract should be
considered as terminated by the Claimant as of 28 June 2013 and the Respondent was not to be
held liable for said termination. Therefore, the Chamber decides to reject the claim for
compensation lodged by the Claimant.
13. The Chamber then turned its attention to the Claimant’s claim for USD 50,000 which he
considers to have fallen due on 1 July 2013. In this regard, and consequently with the
considerations here-above, the members of the Chamber agreed that the Claimant was not
entitled to said amount since the contract had already been terminated by him without just
cause prior to the payment falling due.
Player G, from country F / Club F, from country S
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14. Therefore, the DRC concluded its deliberations by establishing that the claims lodged by the
Claimant are rejected.
III. Decision of the Dispute Resolution Chamber
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 Dispute Resolution Chamber:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Player G, from country F / Club F, from country S
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