Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 June 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Mario Gallav otti (Italy ), member
Guillerm o S altos Guale (Ecuador), member
Johan v an Gaalen (S outh Africa), member
Joaquim Ev angelis ta (Portugal), member
on the matter between the player,
Play er A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 24 December 2015, the Player of Country B, Player A (hereinafter: the
Claimant) concluded an employment contract (hereinafter: the contract) with the
Club of Country D, Club C (hereinafter: the Respondent), valid as from 1 January
2016 until 31 December 2016.
2.
According to clause 2 of the contract, the Claimant was entitled to a monthly
salary in the amount of XXX 200,000.
3.
On 16 February 2017, the Claimant lodged a claim before FIFA against the
Respondent, and requested the payment of a total amount of XXX 900,000, plus
5% interest p.a. as from the due dates, detailed as follows:
- XXX 100,000, corresponding to a part of the Claimant’s salary for the month of
August 2016;
- XXX 200,000, corresponding to the Claimant’s salary for the month of
September 2016;
- XXX 200,000, corresponding to the Claimant’s salary for the month of October
2016;
- XXX 200,000, corresponding to the Claimant’s salary for the month of
November 2016;
- XXX 200,000, corresponding to the Claimant’s salary for the month of
December 2016.
4.
According to the Claimant, he sent default notices to the Respondent for the
unpaid amounts, respectively, on 2 November 2016, 2 January 2017 and 2
February 2017. In this regard, the Claimant stated that the Respondent failed to
provide any reply to said notices.
5.
In its reply to the claim lodged by the Claimant, the Respondent explained that,
“in the beginning of August 2016”, it concluded a mutual termination agreement
with the Claimant. In this regard, the Respondent explained that, on 22 August
2016, it drafted a document for the Claimant in order to confirm his status as a
free agent, and that the Claimant himself presented this document to his next
club when he concluded a new employment contract and that, consequently, he
assumed that the contract was mutually terminated in August 2016. Thus, the
Respondent considered that, in accordance with the principle of burden of proof,
it was up to the Claimant to prove that the employment relationship with the
Respondent remained valid after August 2016.
6.
Moreover, the Respondent indicated that the Claimant left Country D in August
2016 without any further notice.
7.
In addition, the Respondent highlighted that it complied with its financial
obligations until the termination of the contract during the month of August
2016.
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D
2
8.
In his replica, the Claimant insisted in his previous arguments, and denied that the
contract was mutually terminated in August 2016. In particular, the Claimant
considered that the document provided by the Respondent does not prove a
mutual termination since it is not signed by him.
9.
In addition, the Claimant explained that he left Country D on 21 August 2016
because he was banned from staying in said country by the local authorities.
According to the Claimant, said ban was imposed because the Respondent failed
to comply with its responsibilities in obtaining a work permit from the local
authorities.
10. Moreover, the Claimant explained that, on 2 October 2016, the Respondent’s
president sent him a letter, by means of which he apparently offered the Claimant
to receive his salaries “missed since [he] had been away and also the remaining
part of [his] contract salaries up to December 2016”. In addition, and according to
said letter, the Respondent underlined that the Claimant also had to take his own
responsibilities as to his own immigration procedures.
11. As final comments, the Respondent confirmed its previous arguments as to the
mutual termination of the contract, and insisted that, when concluding a new
employment contract, the Claimant presented to the new club the
aforementioned document dated 22 August 2016. In this regard, the Respondent
considered that the reason why the Claimant never signed said document was
simply because he was not in Country D at that moment anymore.
12. As to his work permit, the Respondent considered that, in accordance with the
applicable FIFA regulations, a player must cooperate fully in his efforts aiming at
obtaining his visa and that, specifically, he had to put himself at its disposal and
supply the Respondent with all the necessary information and documents in order
to facilitate all relevant tasks.
13. Moreover, the Respondent considered that the letter dated 2 October 2016,
allegedly sent by its president, was forged.
14. Despite being invited to do so, the Claimant failed to provide the original copy of
the letter dated 2 October 2016.
15. According to the information contained in the TMS, the Claimant concluded a
new employment contract with the Club of Country E, Club F, valid as from 8
January 2017 until 7 January 2018. In addition, the document dated 22 August
2016 (cf. point I.5 above) is available in the TMS as “Proof of last contract end
date”.
II. Cons iderations of the Dis pute Res olution Cham ber
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D
3
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analyzed 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 16 February 2017.
Consequently, the 2017 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 2017
edition of the Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 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 2016) the DRC
shall adjudicate on employment-related disputes between a club and a player that
have an international dimension between a Player of Country B and a Club of
Country D.
3.
The competence of the DRC having been established, the Chamber decided
thereafter to analyse 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 (edition 2016), and considering that the present
matter was submitted to FIFA on 16 February 2017, the 2016 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
Having established the foregoing, and entering into the substance of the matter,
the Chamber continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the
matter. However, the DRC emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence which it considered
for the assessment of the matter at hand. Equally, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching
System (TMS).
5.
In this respect, the DRC acknowledged that, on 24 December 2015, the parties to
the dispute had signed an employment contract, originally valid as from 1 January
2016 until 31 December 2016, in accordance with which the Respondent would
pay the Claimant a monthly salary in the amount of XXX 200,000.
6.
Moreover, the DRC observed that the Claimant lodged a claim against the
Respondent, requesting the payment of outstanding remuneration for half of his
salary of August 2016 (i.e. XXX 100,000), as well as for his entire salaries for the
period comprised between September 2016 until December 2016 (i.e. XXX 200,000
per month).
7.
Conversely, the DRC took note of the Respondent’s argument, according to which
“in the beginning of August 2016”, it concluded a mutual termination agreement
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D
4
with the Claimant. Moreover, the DRC observed that, according to the
Respondent, on 22 August 2016, it drafted a document for the Claimant in order
to confirm his status as a free agent, and that the Claimant himself presented this
document to his next club when he concluded a new employment contract and
that, consequently, he assumed that the contract was mutually terminated in
August 2016.
8.
In view of the dissent between the parties, the DRC understood that the legal
issue at stake concerns to determine whether the Claimant was legally entitled to
receive the requested outstanding amounts.
9.
In this regard, the Chamber observed that, according to the Claimant, he left
Country D on 21 August 2016 due to an immigration ban imposed by the local
authorities and that, according to the Claimant, it was the Respondent’s
responsibility to obtain a work permit from the local authorities.
10. In this respect, the Chamber wished to emphasize that the petition of the
Claimant was only related to the payment of certain outstanding remuneration
and not to any other issue related to a breach of the contract concluded between
the parties, such as the responsibility for obtaining a work permit for the
Claimant. Thus, the Chamber insisted that, in accordance with the Claimant’s
request, it only had to assess the Claimant’s entitlement to receive the requested
outstanding amounts.
11. Within this context, the members of the Chamber highlighted that the Claimant
left Country D on 21 August 2016 and that, as a result, and regardless of any other
consideration, the Claimant was not in a de facto position to render his services as
a professional football player for the Respondent.
12. In addition, with reference to art. 6 par. 3 of Annexe 3 of the Regulations, the
members of the DRC noted that the document dated 22 August 2016 was
uploaded in the instruction of the player’s next transfer under “proof of last
contract end date” by the new club. In this respect, the DRC understood that the
player indeed assumed that the contract was terminated as of that date by
providing his new club with the aforementioned document.
13. As a result, the members of the Chamber unanimously agreed that, after leaving
Country D on 21 August 2016, the Claimant could not expect to be remunerated
by the Respondent on the basis of non-performed work and, consequently, his
claim for outstanding salaries as from said date, in principle, must be rejected.
14. Notwithstanding the above, the members of the Chamber further observed the
Claimant’s allegation, according to which, on 2 October 2016, the Respondent’s
president sent him a letter, by means of which he apparently offered him to
receive his salaries “missed since [he] had been away and also the remaining part
of [his] contract salaries up to December 2016”.
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D
5
15. In relation to said letter, the members of the Chamber took note of the
Respondent’s allegation, according to which said document was forged.
16. In this respect, the DRC considered it appropriate to remark that, as a general
rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal
law, such as the ones related to the possible forgery of a document, and that such
affairs fall into the jurisdiction of the competent national criminal authority.
17. Notwithstanding the above, the members of the DRC understood that it had to be
established, beyond doubt, by documentary evidence, that the Respondent
indeed agreed to pay the Claimant’s salaries as apparently stated in its alleged
letter dated 2 October 2016.
18. In view of the aforementioned, the members of the Chamber firstly 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 members of the
Dispute Resolution Chamber to conclude that it was up to the Claimant to prove
the validity of the documentary evidence submitted with his claim.
19. Having stated the above, the Dispute Resolution Chamber observed that, despite
being invited to do so, the Claimant was unable to provide the relevant letter in
its original form. On account of these considerations, the Chamber held that the
fact the Claimant had only submitted a copy of the disputed documents was
insufficient, given the circumstances of the case, to establish the authenticity of
the letter dated 2 October 2016.
20. In general, the members of the Chamber held that they could not assume that a
document with potential legal effects had been concluded or issued by any of the
parties simply based on circumstances which are not certain to indicate their
authenticity. In addition, the members of the Chamber agreed, in accordance with
the longstanding jurisprudence of the Dispute Resolution Chamber, that the
Chamber must be very careful with accepting certain documents as evidence when
they may imply certain legal consequences.
21. As a consequence, the DRC decided that, since the Claimant had not been able to
prove beyond doubt that the Respondent issued the letter dated 2 October 2016,
and considering that the Claimant failed to render his services as from 22 August
2016, no outstanding salaries must be awarded as from the date of his departure
from Country D and the claim.
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D
6
III. Decis ion of the Dispute Res olution Cham ber
1. The claim of the Claimant, Player A, is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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).
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D
7
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-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:
Omar Ongaro
Football Regulatory Director
Enclosed: CAS directives
________________________________________________________________________________________________________________
Player A, Country B / Club C, Country D
8