Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 July 2013,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player B, from country A
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1. Player B, from country A (hereinafter: player or Claimant), and the Club C, from
country D (hereinafter: club or Respondent), signed an employment contract, not
dated, valid as of 22 March 2011 until 4 November 2011 (hereinafter: contract).
2. In accordance with the contract, the player was entitled to receive, inter alia, a weekly
salary of EUR 1,000, appearance bonus in the amount of EUR 1,000 ``for the first 10
appearances’’ and EUR 2,000 ``per appearance’’ thereafter, as well as match bonuses as
follows:
Winning bonus
Draw bonus
USD 2,000
USD 750
3. Furthermore, with regard the termination of the contract by the parties, art. 10.2 of
the contract stipulates that ``The contract may be cancelled by Party A [the club] with
immediate effect, and Party A does not assume any responsibility: (…) (7) if Party B
[the player] fails the physical examination; (8) if Party B [the player] fails before 23
March 2011 registered in the country D Football Association (…)’’.
4. Moreover, the contract contains the following clause: ``The contract may be cancelled
by Party B by notifying Party A. If Party B requests to resign the job for unavoidable
reasons Party B shall give notice to Party A in written form 30 days in advance and get
consent/affirmation of Party A.
5. On 21 June 2012, the player lodged a claim against the club in front of FIFA
maintaining that, on 24 March 2011, the club breached the employment contract.
6. Therefore, the player requested the Dispute Resolution Chamber to order the club to
pay the amounts of EUR 33,000 and USD 26,000 as follows:
EUR 33,000 relating to salaries as of 22 March 2011 until 4 November 2011 (EUR
1,000 x 33 weeks);
USD 11,000 (EUR 1,000 x 10 games and EUR 2,000 x 5 games) relating to appearance
bonuses, which were estimated by the player at 15 games;
USD 19,000 relating to match bonuses, based on the club’s results during the 2011
season (EUR 2,000 x 5 won games and EUR 750 x 12 drawn games);
A deduction of USD 4,000 from the total above-mentioned amount of USD 30,000
corresponding to the player’s salaries with his new club, Club F, from country A, as
of 18 July 2011 until 18 November 2011 (USD 1,000 x 4 months).
7. Furthermore, the player requested 5% interest to be accrued as of 24 March 2011 and
that the club be banned from registering new players for two registration periods.
Player B, from country A / Club C, from country D
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8. According to the player, after the signature of the contract, the club informed him
that there was not sufficient time to register him with the country D Football
Association and to comply with the requirements established by the country D
Football Association as regards the transfer of professionals between associations,
prior to the transfer window closing date, i.e., 23 March 2011.
9. Moreover, the player maintained that the club cancelled the air tickets country Acountry D that it had purchased and informed him that only two foreign players
among the five they expected to transfer would be incorporated to the team in order
to comply with the country D Football Association’s requirements. In this respect, the
player submitted a correspondence sent by the club to his agent, dated 25 March 2011,
in which the club explained the situation, apologized for the outcome and mentioned
to have urged the player to fly on 20 March 2011. The letter further stated ``although
you cancel the flights, we have paid 4,000 pounds to the Airline company as the
liquidated damages’’.
10. The player sustained that the club was responsible for registering the contract with
the association and that the validity of an employment contract should not be made
subject to a successful medical examination and/or the registration of the contract
with the association.
11. According to the club, on 14 March 2011, the employment contract was signed
between the parties and the very same day the club requested the player to travel to
country D before 23 March 2011. The club maintained that it booked air tickets for the
player to fly on 20 March 2011 in the amount of currency of country D 38,891.
Furthermore, the club alleged that, on 21 March 2011, the player’s agent contacted
the club via email to inform that, due to personal reasons, the player could not travel
on 20 March 2011 and not arrive at the club prior to 23 March 2011.
12. Moreover, bearing in mind that the player was unable to arrive in country D before 23
March 2011, the club referred to art. 10.2 of the employment contract and sustained
that the termination of the contract between the club and the player was justified. In
addition, the club stated that the breach of contract by the player caused financial
losses to the club in the amount of the air tickets for which it could not obtain any
refund. The club reserved its right to claim such loss.
Player B, from country A / Club C, from country D
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or 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 21 June 2012.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 par. 2 and par. 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 par. 2 in
conjunction 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 an country A player and a country D club.
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 (editions
2012 and 2010), and considering that the present claim was lodged on 21 June 2012,
the 2010 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. The members of
the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. In this respect, the Chamber recalled that the
parties had signed an employment contract valid as of 22 March 2011 until 4
November 2011.
5.
In this context, the Chamber noted that the Claimant based his claim on an alleged
breach of the employment contract by the Respondent. In this respect, the members
of the Chamber acknowledged that, according to the Claimant, the Respondent
failed to register the employment contract signed between the parties with the
country D Football Association prior to the transfer window closing date, i.e., 23
March 2011.
6.
Furthermore, the Claimant sustained that the Respondent cancelled the air tickets
country A - country D and informed him that there was not sufficient time to
perform all the necessary prerequisites established by the country D Football
Association as regards the transfer of professionals between associations and register
him before 23 March 2011.
Player B, from country A / Club C, from country D
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7.
The DRC then turned its attention to the arguments of the Respondent and
acknowledged that, according to the latter, air tickets were booked by the
Respondent for the Claimant to fly on 20 March 2011 to country D and the reason for
the cancellation of the airfares was the impossibility of the Claimant to travel on the
mentioned date due to personal reasons.
8.
In view of the foregoing, the Chamber concluded that although the employment
contract signed between the parties was fully valid and enforceable as of 22 March
2011, the execution of the contract had, thus, never started.
9.
In continuation, the DRC recalled that according to the legal principle of the burden
of proof, any party claiming a right on the basis of an alleged fact shall carry the
burden of proof (cf. art. 12 par. 3 of the Procedural Rules). The application of this
principle in the present matter led the DRC to conclude that it was for the Claimant
to prove that the Respondent is liable for the failure to start the execution of the
contract and breach of the contractual terms.
10.
In continuation, the Chamber proceeded with a thorough examination of the
submissions and documentation presented by the Claimant. In this respect, the DRC
noted that the Claimant had submitted correspondence, dated 25 March 2011, sent
by the Respondent to the Claimant’s agent, in which the Respondent explained that
it had urged the Claimant to travel to country D on 20 March 2011 as the transfer
procedures had to be finalized on or before 23 March 2011. In this regard, the
members of the Chamber also recalled that the execution of the contract was to start
on 22 March 2011. Moreover, in this same correspondence presented by the
Claimant, the Respondent stated that the Claimant was responsible for the
cancellation of the flight that was undisputedly booked by the Respondent in order
for the Claimant to travel to country D on 20 March 2011.
11.
The DRC emphasised that said correspondence dated 25 March 2011 was the only
document presented by the Claimant in the context of his allegations against the
Respondent.
12.
Consequently, on account of all of the above-mentioned considerations, the
members of the Chamber decided that the Respondent cannot be held liable for the
failure to start the execution of the employment contract on 22 March 2011 and
that, thus, the claim put forward by the Claimant is rejected.
Player B, from country A / Club C, from country D
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player B, 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 B, from country A / Club C, from country D
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