Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 12 May 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.
On 18 March 2014, the Player of Country B Player A (hereinafter: the Claimant),
lodged a claim in front of FIFA against the Club of Country D, Club C (hereinafter:
the Respondent), for breach of contract, requesting to be awarded with the amount
of USD 60,000.
2.
In his claim, the Claimant explains that on 20 December 2013, the Respondent sent a
letter to his former club, Club E, expressing its interest in his services for the period
running as from 1 January 2014 until 30 April 2014. Consequently, and after Club E
accepted the Respondent’s proposal in exchange for the Claimant’s waiver of his
right to receive USD 20,000, the Claimant asserts that on 1 January 2014, he entered
into an employment contract (hereinafter: the contract) with the Respondent, valid
as of 10 January 2014 until 10 May 2014. In this respect, the Claimant alleges that
the Respondent refused to provide him with a signed copy of the contract.
3.
In continuation, the Claimant sustains that on 9 January 2014, he entered Country D
with an entry visa that the Respondent provided him.
4.
However, according to the Claimant, the Respondent never requested the
International Transfer Certificate (ITC) and terminated the contract two days after
its signature. In light of the foregoing, the Claimant states that the Respondent
terminated the contract without just cause and therefore claims to be awarded with
the amount of USD 60,000, allegedly corresponding to the total value of the
contract.
5.
After the closure of the investigation, the Respondent submitted its reply to the
Claimant’s claim. In its submission, the Respondent alleges that the medical
examination revealed that the Claimant was suffering an “epidemic hepatitis”. In
view of the above, and due to the fact that the law of Country D does not allow to
deliver a residence permit to a person suffering from such a disease, the Respondent
affirms that it eventually did not sign any employment contract with the Claimant.
6.
Upon request, the Claimant informed FIFA that in January 2014, he returned to his
former club, Club E and played for free until the end of May 2014.
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 18 March 2014. Consequently, the 2012 edition of the Rules Governing the
Player A, Country B / Club C, Country D
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Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
With regard to the competence of the DRC judge to decide on the present matter,
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 combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015) the
DRC judge is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Player of
Country B and a Club of Country D in relation to an alleged employment relationship
between the two aforementioned parties invoked by the player.
3.
Moreover, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in
the present dispute which value does not exceed CHF 100,000.
4.
Furthermore, the DRC judge 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 2 of the Regulations on the Status and Transfer of Players (edition
2015), and considering that the present claim was lodged on 18 March 2014, the
2012 version of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The DRC judge
started by acknowledging the above-mentioned facts as well as the documentation
contained in the file. However, the DRC judge emphasised that in the following
considerations he will refer only to facts, arguments and documentary evidence
which he considered pertinent for the assessment of the matter at hand.
6.
In doing so, the DRC judge started by acknowledging that, according to the
Claimant, he had, on 1 January 2014, concluded with the Respondent an
employment contract valid from 10 January 2014 until 10 May 2014, in accordance
with which the Respondent allegedly had undertaken to pay him the total amount
of USD 60,000. Further, the DRC judge also took note of the Claimant’s allegations
according to which the Respondent had terminated the alleged contractual
relationship two days after the signature of the contract. Therefore, the Claimant
asked to be awarded compensation for breach of contract by the Respondent in the
amount of USD 60,000.
7.
Subsequently, the DRC judge observed that the Respondent, for its part, in spite of
having been invited to do so, failed to present its response to the claim of the
Player A, Country B / Club C, Country D
3
Claimant within the relevant time-limit. In fact, the reply of the Respondent was
only received after the investigation-phase of the matter had already been
concluded. As a result, the DRC judge decided not to take into account the reply of
the Respondent and established that, in accordance with art. 9 par. 3 of the
Procedural Rules, he shall take a decision upon the basis of those documents on file
that were provided prior to the closure of the investigation-phase, in casu, upon the
statements and documents presented by the Claimant.
8.
In continuation, the DRC judge referred to 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 principle 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 compensation
for breach of contract from the Respondent, indeed existed.
9.
Having stated the above, the DRC judge recalled that the Claimant maintained that
he never received a copy duly signed by both parties of the employment contract he
asserts having signed with the Respondent. However, the Claimant had submitted
several documents in support of his claim which were in continuation examined by
the DRC judge.
10.
Firstly, the DRC judge deemed it important to highlight that, in order for an
employment contract to be considered as valid and binding, it must bear the
signature of both the employer and the employee. In this respect, the DRC judge
observed that the Claimant was unable to provide with a copy of the employment
contract duly signed by both the Claimant and the Respondent.
11.
Furthermore, the DRC judge took note that the Claimant submitted an exchange of
correspondence between the Respondent and his former club, Club E, by means of
which the Respondent expressed its interest in the Claimant’s services for the period
running as from 1 January 2014 until 30 April 2014 and Club E accepted to release
the Claimant for this period. In addition, the DRC judge noticed that the Claimant
presented a copy of his passport evidencing that he had obtained a visa and had
entered Country D on 9 January 2014.
12.
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,
Player A, Country B / Club C, Country D
4
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.
13.
In respect of the foregoing, and referring to art. 12 par. 3 and 6 of the Procedural
Rules, 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. Indeed, according to the DRC judge,
the exchange of correspondence only evidence that discussions had been
undertaken between both clubs but did not prove anything as to the relationship
between the Claimant and the Respondent. Regarding the information contained in
the Claimant’s passport, the DRC judge deemed it fit to outline that the Claimant
could have travelled to Country D for other reasons than signing the alleged
contract. In particular, the DRC judge pointed out that the Claimant could have
gone to Country D in order to take trial tests with the Respondent in view of a
potential signature of a contract.
14.
Moreover, even if it would have been possible to establish on the basis of the
documents 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.
15. 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
DRC judge to enter into the question whether or not such alleged employment
contract had been breached.
16. All the above led the DRC judge to conclude that the claim of the Claimant has to
be rejected.
*****
Player A, Country B / Club C, Country D
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III.
Decision of the DRC judge
The claim of the Claimant, Player A, 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
Acting Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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