Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 24 April 2015,
by Philippe Diallo (France), 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.
On 7 March 2014, the player from country B, Player A (hereinafter: the Claimant),
and the club from country D, Club C (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract) valid as from 6 March 2014 until
31 May 2014.
2.
According to art. 5 of the contract, the Respondent undertakes to provide the
Claimant with, inter alia, the following monies:
- USD 35,000 “as a net until 31st May 2014” broken down as follows:
i.
ii.
iii.
iv.
USD 10,000 as sign on fee;
USD 8,300 as monthly salary payable on 30 March 2014;
USD 8,300 as monthly salary payable on 30 April 2014;
USD 8,400 as monthly payable on 30 May 2014.
- USD 500 as monthly accommodation allowance from March to May 2014.
- Two roundtrip air tickets.
3.
In addition, according to art. 2.1. b and 2.1.c of the contract, the Claimant has the
right “to be insured by the Club C from damages and injures happened during the
tours to abroad or within the country in connection with training for matches and
trainings for a club as well as ensure the life at the expense of a club within the
validity of the contract” and “to require the treatment in the case of damage in
the account of the club, and if necessary the surgical operations”.
4.
Moreover, art. 2.1.d of the contract further stipulates that “ in case of injury
player has right to choose place and country for operation and the treatment at
the expense of a club within the validity of the contract”.
5.
On 26 May 2014, the Claimant sent a notice to the Respondent by means of which
he reminded it of its arrears, consisting of 2 monthly salaries and medical
Player A, country B / Club C, country D
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expenses for his operation, and informed it that, in case he would not be paid
within three days, he would refer the matter to FIFA.
6.
On 17 June 2014, the Claimant lodged a claim in front of FIFA for outstanding
amounts, and requested, the payment of the total amount of USD 26,500 and EUR
12,217 net broken down as follows:
i. USD 25,000 as salaries for March to May 2014;
ii. USD 1,500 as accommodation expenses for the period of March to May
2014;
iii. EUR 10,449, as reimbursement of the cost for his operation (cf. point I.9.
below);
iv. EUR 1,768 for flight tickets (cf. point I.9. below).
7.
In his claim, the Claimant explains that, on 20 April 2014, he got injured during a
championship match with the Respondent and that the day after he passed a
medical check in the city E of country D, which detected a serious shoulder injury
that required a surgery. The Claimant further holds having tried several times,
personally as well as with the help of the Football Association of country B, to
obtain the Respondent’s permission to travel for the operation but without
success. By means of his letter dated 24 April 2014, addressed to the Respondent,
the Claimant communicated the following: “inform you that the operation will
take place in city F, country G, on 28 April 2014 (…) request permission to take
recovery in country B in city H under the supervision of a doctor of the national
team of country B (...) from 30.04.2014 until 05.10.2014. On return to the city E of
country D, undertake to provide all necessary documents and receipts for
operation“. The Claimant also provided a copy of a letter of the Respondent
dated 28 April 2014, to the FA of country B stating that since the Claimant’s
injury, they tried to contact him without success, do not know where he is and
that the Claimant did not give any warning or asked for the Respondent’s
permission to leave country D. To their letter, the FA of country B replied on 30
April 2014 that “on 28th of April he [the Claimant] had the shoulder operation in
city F. According to his contract he had the right to choose the place for the
operation and as the national team player, who should be ready for the
Player A, country B / Club C, country D
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forthcoming EURO qualification matches (…) he flew to country B on 25th April.
(…) Before leaving the city E of country D, [he] contacted you several times but
didn’t succeed”.
8.
Finally, the Claimant holds that after his operation in city F, he returned to
country B for a post-operative examination and flew back to the city E of country
D on 6 May 2014.
9.
In this context, the Claimant pointed out that according to the contract he was
entitled to receive a total amount of USD 25,000 as salaries for March to May
2014. However, the Respondent allegedly failed to make the relevant payments
and, in addition, the Claimant holds that the Respondent also failed to pay him
his accommodation allowance for the same period of time, his operation costs
and his flight tickets. In support to his claim, the Claimant provided FIFA with two
invoices dated 29 April 2014 for his operation costs amounting respectively to EUR
9,600 and EUR 700 as well as a receipt dated 27 April 2014 for an amount of EUR
149 from a hotel in city F; In addition the Claimant also provided invoices for
flight tickets in the amount of a) EUR 423 for city E-city H on 25 April 2014; b)
EUR 347 for city H-city F on 27 April 2014; c) EUR 387 city F-city H on 30 April 2014;
d) EUR 295 for city H-city E 6-7 May 2014; e) EUR 316 for city E-city H on 20 May
2014.
10.
In its reply to the Claimant’s claim, the Respondent holds having fulfilled all its
contractual obligations and after the Claimant’s injury, it could not contact him
anymore and contacted the FA of country B in this regard (cf. point I.7. above). In
addition, the Respondent states that the Claimant left the country ignoring the
Respondent’s decision regarding the operation “where and when to operate”,
and further holds that it did not give a permission to the Claimant to leave the
country. In spite of the fact that the contract allows for medical treatment outside
the country, this should be previously discussed and agreed with the Respondent.
Player A, country B / Club C, country D
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Finally the Respondent underlines that “when the player asked about the
payment club offered him salaries until that time”.
II.
Considerations of the DRC judge
1.
First, the Dispute Resolution Chamber (DRC) judge analysed whether he was
competent to deal with the case at hand. In this respect, the DRC judge took note
that the present matter was submitted to FIFA on 17 June 2014. Consequently, the
DRC judge concluded that the 2012 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.
With regard to the competence of the DRC judge, art. 3 of the Procedural Rules
states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24
of the Regulations on the Status and Transfer of Players (editions 2012, 2014 and
2015). In accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22
lit. b) of the aforementioned Regulations, the DRC judge would be competent to
deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between an player from country B and an club
from country D, the litigious value of which does not exceed CHF 100,000.
3.
Subsequently, the DRC judge analysed which edition of the 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 (editions 2012, 2014 and
2015) and considering that the present claim was lodged in front of FIFA on 17
June 2014, the 2012 edition of the Regulations on the Status and Transfer of
Players (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
Player A, country B / Club C, country D
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4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned 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 the Claimant and the
Respondent had concluded an employment contract valid as from 6 March 2014
until 31 May 2014. Further, the DRC judge observed that it is undisputed by the
parties that the Claimant was entitled to the amounts detailed in point I.2. here
above, as per the aforementioned contract.
6.
In continuation, the DRC judge further observed that the Claimant lodged a claim
in front of FIFA against the Respondent seeking the payment of the amount of
USD 26,500 and EUR 12,217, indicating that the Respondent failed to pay him his
monies in accordance with the contract as well as medical costs incurred following
an injury (cf. point I.6. above).
7.
Equally, the DRC judge took note of the reply of the Respondent, which asserted
that it had fulfilled all its contractual obligations. The Claimant, however, left the
club without permission and ignoring its position regarding the Claimant’s
operation (cf. point I.10. above).
8.
In addition, the DRC judge observed that it remained undisputed that the
Claimant sustained an injury in April 2014 during a championship match played
with the Respondent. Furthermore, the DRC judge noted that on the one hand,
the Respondent holds that the Claimant did not consult it before choosing the
location and the moment of the operation and did not receive its approval to
leave the country. On the other hand, the Claimant assures having tried several
Player A, country B / Club C, country D
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times to contact the Respondent before leaving country D for his operation and
insists on his contractual right to freely choose his medical treatment and the
place of its execution.
9.
In this context, and with a view to analysing individually the pertinence of each
claim of the Claimant, the DRC judge started by focusing on the Claimant’s claim
related to the reimbursement of medical expenses. In this respect, the DRC judge
recalled that the Claimant asks that the Respondent be ordered to reimburse the
medical expenses he alleges having incurred in costs in the amount of EUR 12,217,
for which he presented the relevant receipts and the payment of which is not
contested by the Respondent. In this regard, the Chamber took into account that
the employment contract, the terms of which were voluntarily agreed upon by
both parties, in fact includes a specific clause, on the basis of which the
Respondent is held liable for the payment of the Claimant’s medical costs incurred
in case of injury in relation to his football activity. Moreover, the contract contains
another clause specifying that in case of injury, the player has the right to choose
the place or the country for an eventual operation and stating that the treatment
is at the club’s expenses (cf. point I.3. and I.4. above).
10.
Consequently, on account of all of the above-mentioned considerations and
bearing in mind the legal principle of pacta sunt servanda, the DRC judge decided
to accept the Claimant’s claim pertaining to the reimbursement of the medical
costs incurred because of his injury. Thus, the Respondent is liable to pay to the
Claimant the amount of EUR 12,217.
11.
Having established the foregoing, the DRC judge proceeded to analyse the
Claimant’s claim with regard to outstanding amounts related to salaries and
accommodation expenses. In this context, the DRC judge noted that the
Respondent, in its defence, assured having paid the Claimant’s monies until his
injury, however, it did not dispute that the payments due to the player
subsequent to the injury remain outstanding.
Player A, country B / Club C, country D
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12.
In view of all the above and, in particular, taking into account the legal principle
of the burden of proof and the fact that the Respondent did not contest that the
relevant amounts regarding salaries and rent expenses claimed by the Claimant
had remained unpaid, the DRC judge decided that, in accordance with the
general legal principle of pacta sunt servanda, the Respondent must fulfil its
contractual obligations towards the Claimant and is to be held liable to pay him
the amount of USD 26,500, corresponding to the three instalments due on 30
March, 30 April and 30 May 2014 (cf. point I.2. I, ii, ii above) as well as USD 1,500
for the Claimant’s accommodation allowance.
13.
In conclusion, taking into consideration all the above, the DRC judge concluded
that the Respondent is to be held liable to pay the Claimant the amount of EUR
12,217 as well as USD 26,500, and consequently, the Claimant’s claim is accepted.
*****
III. Decision of the DRC judge
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, is ordered to pay to the Claimant, within 30 days as
from the date of notification of this decision, the amount of USD 26,500.
3.
The Respondent is also ordered to pay to the Claimant, within 30 days as from
the date of notification of this decision, the amount of EUR 12,217.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated
time limits, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limits and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
Player A, country B / Club C, country D
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5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the DRC
judge of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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
Acting Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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