Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 May 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Piat (France), member
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
Player D, from country A
as Claimant
against the club,
Club B, from country I
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 19 August 2010, Player D, from country A (hereinafter: the Claimant), and Club B,
form country I (hereinafter: the Respondent), concluded an employment contract
(hereinafter: the contract) valid as from the date of signature until 31 May 2012.
2.
According to art. 1, 4 and 5 of the contract, the Respondent undertakes to provide
the Claimant with, inter alia, the following monies:
Currency of country I 37.72.000 for the 2010/2011 season, payable as follows:
currency of country I 8.38.000 as an advance payment and currency of country I
3.66.750 as monthly salary, for 8 months;
Currency of country I 78.60.000 for the 2011/2012 season, payable as follows:
Currency of country I 21.06.000 as an advance payment and currency of country
I 6.39.333 as monthly salary, for 9 months.
3.
In addition, art. 6 of the contract established that “the above monthly salary will be
paid to Second Party [the Claimant] by the First Party [the Respondent] by the 15th of
the subsequent month of full service by the Second Party of the preceding months”.
4.
Article 14 of the contract further stipulates “that the Second Party hereby declares
that he is not hiding any past injury, which would render him unfit for the team and
he will appear before a Medical Board as and when decided by the club to prove his
fitness”.
5.
Moreover, according to art. 19 of the contract, “in case of failure on the part of the
Second Party the First Party will be liberty to terminate the contract with the Second
Party forthwith without any pecuniary compensation”.
6.
Article 21 of the contract further establishes that “In case the Second party got
injured during the practise or any match organized by the First Party full medical
expenses will be borne by the First Party. During the recovery periods of the above
injury the Second Party will get the full salary from the First Party […]”.
7.
Finally, art. 22 of the contract stipulates “that in case of violation of any clause(s)
mentioned above, the First Party shall have the right to take disciplinary/pecuniary
actions against the Second Party by the way of taking appropriate action deducting
money from Monthly Salary of the Second Party”.
8.
On 23 February 2011, by means of a letter sent to the country I Football Association,
an association of the All country I Football Federation, the Respondent terminated
the contract with the Claimant based on art. 19 of the contract, alleging that he had
violated art. 14 of said contract (cf. points I.4. and I.5. above).
Player D, from country A / Club B, from country I
2/12
9.
On 4 March 2011, the Claimant lodged a claim against the Respondent in front of
FIFA, requesting the payment of the total amount of currency of country I 8,654,729,
plus interest, made up of:
Currency of country I 8,593,500 corresponding to 4 monthly of salaries for
January to April 2011 (4 x currency of country I 3.66.750) plus the entire value
of the 2011/2012 season (Currency of country I 78.60.000);
Currency of country I 61,229 as reimbursement of medical expenses related to
his injury; as well as
sporting sanctions on the Respondent.
10.
In his claim, the Claimant stated that in August 2010, after undergoing medical tests,
he was deemed fit and was subsequently registered with the Respondent.
11.
On 12 October 2010, the Claimant sustained a contact injury to his knee during
training. The relevant medical exams identified a tear in the Claimant’s meniscus – as
well as joint effusions and a cyst –, which would require surgery.
12.
By means of a letter dated 29 October 2010, the Respondent accused the Claimant of
violating art. 14 of the contract, by withholding knowledge of the cyst found
through the MRI, as well as of refusing to see a doctor, even though, according to
the Claimant, he was the one that insisted on conducting an MRI.
13.
On 30 October 2010, the Claimant responded to the Respondent’s letter, and
informed the latter that he had been unaware of the existence of such cyst, which
was also not identified in the medical exams prior to his registration. The Claimant
equally consulted an independent doctor, who confirmed that the cyst was
incidental, that it was neither the cause nor a consequence of the injury sustained on
12 October 2010.
14.
On 11 November 2010, the Claimant was allegedly invited to a meeting with the
Respondent, during which he was presented with an amendment to his employment
contract, as per which “the First Party will have the prerogative to immediately
terminate the Agreement dated 19th August 2010 without assigning any reason
thereto, in the Second Party fails to satisfy the First Party by his performance and
attitude within 19th January 2011“, “the contract for the 2011/2012 football season
between the two parties stands cancelled […]” and “the Second Party confirms to
agree with the decision of the First Party regarding his performance and attitude,
which will be final and binding”. The Claimant, however, refused to sign such
document.
15.
As from 13 November 2010, the Claimant was allegedly excluded from training. By
means of his letters dated 15, 19 and 27 November 2010, 31 January 2011 and 28
February 2011, the Claimant requested, inter alia, the reimbursement of the medical
Player D, from country A / Club B, from country I
3/12
costs he had borne in relation to his injury, but received no payment from the
Respondent in this regard.
16.
After the Claimant was deemed fit to resume training by the Respondent’s doctor,
on 3 December 2010, and authorized to participate in professional sporting activities,
on 6 January 2011, he was again injured during a match on 23 January 2011.
According to the Claimant’s personal physician, such injury was a mild one. However,
as the Claimant presented himself at training on 24 January 2011, he was informed
by the coach that he had a serious tear to his meniscus and that his recovery would
take up to 4 months. According to the Claimant, he would have been told by the
Respondent that he should accept the termination of the contract in exchange for 2
monthly salaries.
17.
On 31 January 2011, the Claimant sent the Respondent a warning, requesting that it
respect the contract and reimburse the medical expenses incurred by him. On 2
February 2011, the Claimant received, in copy, a letter from the Respondent to the
country I Football Association, in which the Respondent accused him of hiding a past
injury and requested the intervention of the country I Football Association in this
matter. On 3 February, the Claimant replied to the country I Football Association,
rejecting its jurisdiction over the present matter and demanding the respect of the
contract.
18.
Finally, the Claimant claims having been paid by the Respondent for the last time in
December 2010, and to have never received any other salaries afterwards.
19.
The Respondent did not submit any comments as to the substance of the present
case, but only forwarded documents related to a procedure in front of the country I
Football Association initiated on 2 February 2011 by the Respondent against the
Claimant (cf. Respondent’s letter of 2 February 2011 mentioned in point I.18. above).
Such documents state that, in spite of having been summoned on 9 March 2011, the
Claimant did not take part in the hearing convened on 26 March 2011.
20.
On 2 April 2011, the country I Football Association decided to “dismiss the claim of
[the Claimant] and to uphold the decision of [the Respondent] to terminate their
agreement with Player D”, after concluding inter alia that the Claimant hid a past
injury from the Respondent when signing the contract.
21.
In his replica, the Claimant once again rejected the jurisdiction of the country I
Football Association over the present matter, as he had previously done in his letter
of 3 February 2011 to the country I Football Association (cf. point I.18. above), in
view of the fact that such deciding body “is not an independent arbitration tribunal
guaranteeing fair proceedings and respecting the principle of equal representation”.
The Claimant also claims never having participated in the proceedings carried out
Player D, from country A / Club B, from country I
4/12
before the country I Football Association, having returned to country A on 3 March
2011. In this regard, the Claimant provides a copy of an e-mail dated 3 March 2011
addressed to the Respondent, informing that he was leaving the apartment. Thus,
the Claimant maintains his initial claim.
22.
In spite of having been invited by FIFA to do so, the Respondent did not submit its
final comments on the present affair, nor did it provide any documents pertaining to
the alleged jurisdiction of the country I Football Association’s deciding bodies.
23.
Finally, the Claimant states not to have signed a new employment contract as from
the date of breach until 31 May 2012.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect,
the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 4 March 2011.
Therefore, the Chamber concluded that the edition 2008 of the Procedural Rules was
applicable to the matter at hand (cf. art. 21 par. 2 and 3 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 and 2 in
combination with art. 22 b) of the Regulations on the Status and Transfer of Players
(editions 2010 and 2012; hereinafter: the Regulations), the Dispute Resolution
Chamber shall adjudicate on employment-related disputes between an country A
player and a country I club, with an international dimension.
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 (editions 2010 and 2012), and considering that
the present claim was lodged on 4 March 2011, the 2010 edition of said regulations is
applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, the Chamber
started by acknowledging all the above-mentioned facts as well as the arguments
and the 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.
Player D, from country A / Club B, from country I
5/12
5.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 19 August 2010, the Claimant and the Respondent signed an
employment contract valid as from the date of signature until 31 May 2012, in
accordance with which the Claimant was entitled to receive remuneration in the
total amount of currency of country I 37.72.000 for the 2010/2011 season and
currency of country I 78.60.000 for the 2011/2012 season.
6.
In addition, the Chamber noted that it was equally undisputed by the parties that
the contract was terminated by the Respondent in writing on 23 February 2011.
7.
The DRC noted that, on the one hand, the Claimant claims that the Respondent
terminated the contract without just cause. In this respect, the Claimant claims that
when the contract was signed, on 19 August 2010, he underwent medical exams,
which confirmed that he was fit to play, having been subsequently registered with
the club. The Claimant further claims that, on 12 October 2010, he was injured
during a match and the relevant medical exams identified also a cyst in his knee.
8.
According to the Claimant, the Respondent accused him of having hidden a past
injury and presented him with an amendment to his employment contract, by means
of which the Respondent would be entitled to terminate the contract with
immediate effect and without giving any reasons for it, the contract for season
2011/2012 would be cancelled and the Claimant would confirm that an unspecified
decision of the Respondent, which would be final and binding. The Claimant claims
having refused to sign such amendment and explained that he was – as the
Respondent – unaware of the existence of such cyst, which the admission exams also
did not identify.
9.
In addition, the DRC noted that the Claimant claims to have borne all the costs of his
medical treatment, in spite of the Respondent’s obligation to bear such costs, as per
the contract. The Claimant further claims that in spite of the several requests of
reimbursement sent to the Respondent, such amounts remained unpaid by the latter.
10.
Moreover, the Claimant states that, after another injury sustained in January 2011 –
allegedly a mild one – the Respondent once again proposed the termination of the
contract in exchange of the payment of two monthly salaries, which he refused. The
Claimant also claims not having received his salaries after December 2010.
11.
Finally, the Claimant claims that, as he was informed of the fact that the Respondent
had referred the issue to the country I Football Federation on 2 February 2011, he
immediately rejected the competence of said Federation, in writing on 3 February
2011, refusing to participate in any proceedings. On 3 March 2011, he left country I.
Player D, from country A / Club B, from country I
6/12
12.
On the other hand, the DRC noted that the Respondent did not reply as to the
substance of the claim, but only forwarded inter alia a copy of a decision of the
country I Football Association, which confirmed the Respondent’s decision to
terminate the contract, based on the fact that the Claimant allegedly concealed his
knowledge of a pre-existing cyst.
13.
Having established the aforementioned, the Chamber deemed that the underlying
issue in this dispute, considering the claim of the Claimant and the allegations of the
Respondent, was to determine whether the employment contract had been
unilaterally terminated with or without just cause by the Respondent.
14.
In this context, the Chamber acknowledged that it first had to examine whether the
reasons put forward by the Respondent could justify the termination of the contract
in the present matter.
15.
In this respect, the Chamber recalled that the Respondent did not present any
defence as to the substance of the present matter. Nonetheless, and analysing the
documentation provided by the Claimant in support of his claim, the Chamber noted
that the reason provided by the Respondent for the termination of the contract with
the player on 23 February 2011 was the alleged pre-existence of a cyst in the player’s
knee, which was only revealed during medical exams performed subsequent to an
injury suffered by the player on 12 October 2010. The Respondent accuses the
Claimant of having concealed the existence of said cyst when signing the contract
and, therefore, considered to have a just cause to unilaterally terminate their
employment relationship on 23 February 2011.
16.
First and foremost, in the light of the main reason at the basis of the termination of
the contract in the matter at hand, i.e. the player’s medical condition, the Chamber
wished to emphasise that on the basis of art. 18 par. 4 of the Regulations and the
Chamber’s respective jurisprudence, a club wishing to employ a player has to exercise
due diligence and carry out all relevant medical examination prior to entering into
an employment contract with a player.
17.
The members of the Chamber noted from the file and from the Claimant’s
allegations that the player had been medically checked prior to the signature of the
contract by the parties, following which he was deemed fit to play. The Chamber also
took into account the fact that the player had rendered his services to the club
apparently without problems for two months, until the exams performed subsequent
to the injury sustained on 12 October 2010 revealed the existence of the cyst.
18.
At this point, the Chamber deemed it appropriate to remind the parties of its wellestablished and long-standing jurisprudence, according to which an injury or health
condition of a player can be no valid reason to cease the payment of a player’s
Player D, from country A / Club B, from country I
7/12
remuneration and even less so to terminate an employment contract. The Chamber
noted that, in the matter at stake, the parties even agreed to include in the contract
a specific article, i.e. art. 21 (cf. point I.6. above), which stipulated that, in case the
Claimant injures himself during practise or any match, the Respondent should bear
the full medical expenses and pay the Claimant’s full salary during his recovery.
19.
With regard the Respondent’s allegation that the Claimant had not disclosed his
medical condition prior to concluding the employment contract, invoked by the
Respondent as a reason for the termination of the contract in its letter of
termination dated 23 February 2011, the Chamber pointed out that the Respondent
never contested the Claimant’s allegation, according to which he successfully passed
the admission exams and was deemed fit to play, subsequent to which he was
registered with the club. In addition, the Chamber further noted that the Claimant
also presented a statement of an external physician, according to which the cyst was
neither the cause nor a consequence of the injuries he sustained.
20.
In continuation and as to the decision taken by the country I Football Association on
2 April 2011, the Chamber pointed out that the Claimant had immediately and
repeatedly denied the competence of the relevant deciding body and that it
remained uncontested that the Claimant left country I at the beginning of March
2011 and, thus, did not take part in the relevant proceedings.
21.
In view of the aforementioned, the Chamber was of the opinion that the
aforementioned decision, which was rendered without the participation of the
Claimant, in spite of his explicit refusal to accept the country I Football Association’s
jurisdiction and in the absence of an arbitration clause in the contract, could not be
taken into account for the solution of the present case before FIFA and would have
to be disregarded.
22.
Consequently, the members of the Chamber deemed that the Claimant’s health
condition could not be considered as a just cause for the Respondent to unilaterally
terminate the contract with the Claimant. Thus, the members of the DRC concluded
that the Respondent had terminated the contract with the Claimant without just
cause on 23 February 2011.
23.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract without just
cause by the Respondent. However, prior to establishing such consequences, in
accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to
address the issue of any unpaid amounts at the moment the contract was terminated
by the Respondent.
Player D, from country A / Club B, from country I
8/12
24.
In this regard, the Chamber noted that the Claimant claims that the Respondent has
failed to reimburse him the medical expenses borne by him in connection with his
injury, in the total amount of currency of country I 61,229. In addition, the Chamber
noted that the Claimant inter alia also requests the payment of his salary for January
2011, which had allegedly remained outstanding by the time of the termination by
the Respondent, on 23 February 2011.
25.
At this point, the DRC deemed it appropriate to remind the parties of the content of
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 burden of proof”.
26.
Having said that, the Chamber noted that, on the one hand, the Claimant had
provided several receipts in the total amount of currency of country I 61,229, all
related to expenses borne by himself in connection with his medical treatment. In
addition, the Chamber observed that the Claimant also provided evidence of having
requested the reimbursement of the medical costs from the Respondent on several
occasions (cf. point I.15. above).
27.
In this context, the Chamber also took note of art. 21 of the contract, according to
which “In case the Second party got injured during the practise or any match
organized by the First Party full medical expenses will be borne by the First Party.
During the recovery periods of the above injury the Second Party will get the full
salary from the First Party […]”.
28.
In view of the foregoing, the Chamber deemed that it remained uncontested that
the Respondent, which had, under the terms of the contract, committed to pay for
the Claimant’s medical expenses in case of injury, had failed to reimburse such
expenses incurred by the Claimant.
29.
Equally, the Respondent did not contest that it did not pay the Claimant’s salary for
the month of January 2011.
30.
Based on the foregoing, the Chamber concluded that the Claimant’s salary for
January 2011 in the amount of currency of country I 366,750, as well as the costs
related to his medical treatment in the total amount of currency of country I 61,229
were outstanding by the time the contract was unilaterally terminated by the
Respondent on 23 February 2011.
31.
Hence, the Dispute Resolution Chamber held that, according to the legal principal of
pacta sunt servanda, the Respondent shall be held liable to pay the total amount of
currency of country I 427,979 as outstanding contractual amounts towards the
Claimant, plus 5% interest p.a. as from 4 March 2011 until the date of effective
payment, as per the Claimant’s claim.
Player D, from country A / Club B, from country I
9/12
32.
In continuation and taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the Claimant is also entitled to receive compensation from the
Respondent for the termination of the contract without just cause.
33.
The members of the Chamber firstly recalled that, in accordance with art. 17 par. 1 of
the Regulations, the amount of compensation shall be calculated, in particular and
unless otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and
further objective criteria, including, in particular, the remuneration and other
benefits due to the Claimant under the existing contract and/or the new contract,
the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
34.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contained a provision by
means of which the parties had beforehand agreed upon an amount of
compensation payable by the contractual parties in case the event of breach of
contract.
35.
In this regard, the Chamber noted that the contract does not contain any clause
establishing an amount of compensation payable by either of the parties in case of
breach of contract.
36.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. The
Chamber recalled that said provision provides for a non-exhaustive enumeration of
criteria to be taken into consideration when calculating the amount of compensation
payable. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body. In this regard, the Dispute Resolution Chamber
emphasized beforehand that each request for compensation for contractual breach
has to be assessed by the Chamber on a case-by-case basis taking into account all
specific circumstances of the respective matter.
37.
In order to estimate the amount of compensation due to the Claimant in the present
case, the members of the Chamber first turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of art.
17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and the new contract in the calculation of the amount of
compensation.
Player D, from country A / Club B, from country I
10/12
38.
In this regard, the Chamber took due note of the residual amount of the contract
indicated by the Claimant in his claim, excluding the salary of January 2011, which
was already outstanding by the time of termination on 23 February 2011, as
explained above. Consequently, the Chamber concluded that the amount of currency
of country I 8,226,750, corresponding to the residual value of the contract as
indicated by the Claimant, serves as the basis for the final determination of the
amount of compensation for breach of contract.
39.
The Chamber then took due note of the employment situation of the Claimant after
the termination of the contract with the Respondent and, in this regard, it
acknowledged that the Claimant had not signed any other employment contracts
until the date of the original expiry of the contract with the Respondent. i.e. 31 May
2012. Thus, the Claimant was not able to mitigate his damages arising from the
unilateral termination of the contract by the Respondent without just cause.
40.
Consequently, the Chamber concluded that the Respondent should pay
compensation for breach of contract to the Claimant in the total amount of currency
of country I 8,226,750 plus 5% interest p.a. as from 4 March 2011 until the date of
effective payment, as per the Claimant’s claim.
41.
For all the above reasons, the DRC decided that the Claimant’s claim is accepted.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player D, is accepted.
2.
The Respondent, Club B, is ordered to pay to the Claimant outstanding remuneration
in the amount of currency of country I 427,979 plus 5% interest p.a. as from 4 March
2011 until the date of effective payment, within 30 days as from the date of
notification of this decision.
3.
The Respondent is ordered to pay to the Claimant compensation for breach of
contract in the amount of currency of country I 8,226,750 plus 5% interest p.a. as from
4 March 2011 until the date of effective payment, within 30 days as from the date of
notification of this decision.
Player D, from country A / Club B, from country I
11/12
4.
In the event that the amounts due to the Claimant are not paid by the Respondent
within the stated time limits, the present matter shall be submitted, upon request, to
the FIFA Disciplinary Committee for consideration and a formal decision.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
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
Enclosed: CAS directives
Player D, from country A / Club B, from country I
12/12