Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 July 2013,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player A, from country N
as Claimant
against the club,
Club D, from country S
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 29 March 2011, Player A, form country N (hereinafter: player or Claimant) and
the Club D, from country S (hereinafter: club or Respondent) signed an
employment contract (hereinafter: contract) valid as from 1 April 2011 until 15
November 2011.
2.
According to § 2 of the contract, the player was entitled to receive from the club a
monthly salary in the amount of currency of country S 14,500, to be paid on the
27th day of each month.
3.
On 13 December 2011, the player lodged a claim in front of FIFA against the club,
requesting from the latter the payment of currency of country S 103,770,
corresponding to his salary for the period as from 1 April until 15 November 2011,
i.e. currency of country S 108,750, minus the amount of currency of country S
4,980 that he had already received from the club.
4.
In addition, the Claimant requested from the Respondent the payment of the
estimated medical costs of EUR 20,000 corresponding to EUR 2,000 as doctor’s fee
for the MRI and the MRI itself; EUR 4,000 as surgeon fee; EUR 2,000 for
anaesthesia; EUR 3,000 as “hospital facility”; EUR 7,500 as rehabilitation and
physical therapy costs and EUR 1,500 as “exigencies”.
5.
The Claimant explained that he had a knee problem during training on
20 September 2011. The club’s doctor allegedly told him that he had a knee
ligament injury. The player further stated that according to the club’s
management, it would take about six months for the surgery to be carried out
and since the player’s contract only ran until 15 November 2011, the club would
not take care of the surgery. The player was of the opinion that the club had to
pay his treatment costs in connection with his injury.
6.
In its response to the claim, the club acknowledged having concluded the contract
with the player. Furthermore, the club stated that the player had only arrived in
country S on 9 August 2011. In this respect, the club was of the opinion that this
date should be regarded as the first valid day of the contract. Moreover, the club
argued that Mr J, who was allegedly the player’s agent, had promised to pay the
player’s salary to the club in order for the player to have a chance in country S but
that the agent had never made any payment to the club, and that this was the
reason why the player had never received his salary. In addition, the club stated
that it had still felt responsible for the player and had therefore provided the
player “with a home and money” in order for him to live a normal life. Moreover,
the club stated that according to its “tax table”, the player was entitled to receive
a monthly salary of currency of country S 10,900 after the taxes had been paid.
Player A, from country N / Club D, from country S
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7.
As regards the player’s knee injury, the club held that it tried everything to help
the player and took him to several doctors in order to determine the injury.
However, according to the club, a knee surgery would have taken about six
months and the player would not even have had a work permit to stay in country
S due to the expiry of his contract. Additionally, the club deemed the treatment
costs requested by the player unreasonable. The club further stated that it would
need to receive invoices and receipts for the knee surgery in case FIFA’s deciding
body considered the club to be responsible for it.
8.
Moreover, the club rejected the claim, however, in case FIFA’s deciding body
considered otherwise, the correct sums would be the following:
- Currency of country S 32,700 for the period from 9 August to 8 November
2011;
- Currency of country S 2,543 for to period from 9 November to 15 November
2011.
Finally, the club stated that the amount of currency of country S 14,303
corresponding to the accommodation costs it had allegedly paid to the player as
well as the sum of currency of country S 4,980 that the player admitted having
received from the club should be deducted from the aforementioned amount of
currency of country S 35,243 due to the player.
9.
In his replica, the player explained that his salary was exclusive of any taxes and
accommodation. Furthermore, the player stated that his visa application to the
country S Embassy, which had been supported by the club, had been refused in
the first place and that in July 2011, the club had decided to apply for his work
permit in country S. As to the treatment costs, the player explained that he had
not been given the receipts until payment is made. Lastly, the player informed
FIFA that he had stayed with the club until the end of the contract, i.e. until 15
November 2011.
10.
In its duplica, the club mainly reiterated its previous position.
Player A, from country N / Club D, from country S
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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, the DRC judge took note that the present matter was
submitted to FIFA on 13 December 2011. 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 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
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012) he is competent to decide on the present litigation, which
concerns an employment-related dispute with an international dimension
between a country N player and a country S club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he 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 matter was submitted
to FIFA on 13 December 2011, the 2010 edition of said Regulations is applicable to
the present matter as to the substance (hereinafter: Regulations).
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing so,
he started by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file.
5.
In this respect, the DRC judge acknowledged that the parties had signed an
employment contract on 29 March 2011, in accordance with which the player was
entitled to receive from the club a monthly remuneration in the amount of
currency of country S 14,500.
6.
In continuation, the DRC judge noted that the Claimant alleged that the
Respondent had failed to pay the amount of currency of country S 103,770
corresponding to his salary for the period as from 1 April until 15 November 2011,
i.e. currency of country S 108,750, minus the amount of currency of country S
4,980 that he had already received from the club.
Player A, from country N / Club D, from country S
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7.
Moreover, the DRC judge noted that the Claimant requested from the Respondent
the payment of EUR 20,000 corresponding to the estimated medical costs for his
knee injury.
8.
Consequently, the Claimant asked to be awarded payment of the total amount of
currency of country S 103,770 plus EUR 20,000.
9.
In addition, the DRC judge took note of the Claimant’s allegation that only in July
2011, the Respondent decided to apply for the Claimant’s work permit in country
S, since his visa application to the currency of country S Embassy had been
previously refused.
10.
Equally, the DRC judge took note of the reply of the Respondent, who asserted
that the player had only arrived in country S on 9 August 2011, which is why,
according to the Respondent, this date should be considered the day on which the
contract entered into force. Furthermore, the DRC judge noted that the club
rejected the claim, however, in case the DRC judge decided otherwise, the correct
amount due to the player would be currency of country S 32,700 for the period
from 9 August to 8 November 2011 and currency of country S 2,543 for the period
from 9 November to 15 November 2011, i.e. the sum of currency of country S
35,243, whereas the amount of currency of country S 14,303 corresponding to
accommodation costs the club had allegedly paid to the player as well as the
amount of currency of country S 4,980 that the player admitted having received
from the club should be deducted from the aforementioned amount of currency
of country S 35,243.
11.
In this regard, and taking into consideration the line of argumentation of the
parties, the DRC judge referred to art. 18 par. 4 of the Regulations which
stipulates, inter alia, that the validity of a contract may not be made subject to the
grant of a work permit. In this respect, the DRC judge referred to the constant
jurisprudence of the Dispute Resolution Chamber and emphasised that the
responsibility to obtain the necessary work permit or visa in order for a player to
render his services to the club is incumbent on the club, i.e. the Respondent. The
Respondent had therefore been required to undertake all appropriate steps to
duly acquire a work permit for the Claimant not only before concluding the
relevant contract but, as the case may be, also during the term of said contract.
12.
Taking into account the above, the DRC judge acknowledged that the Respondent
did not explicitly contest the argument of the Claimant that he lacked a work
permit and consequently a visa to enter the country of country S at the beginning
of his contract, but that the Respondent merely alleged that the Claimant had
failed to come to country S before 9 August 2011.
Player A, from country N / Club D, from country S
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13.
Therefore, the DRC judge concluded that the Respondent appeared to have
recognized the fact that, at the moment in question, it had not acquired the
relevant work permit and visa for the Claimant from the local authorities in order
to enable him to come to the club at the beginning of his contract, i.e. on 1 April
2011, and fulfil his contractual obligations.
14.
Moreover, the DRC judge deemed it also appropriate to recall the general
principle of burden of proof stipulated in 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. In this regard, the DRC judge was eager to underline
that the Respondent did not submit any document or any explanation attesting
that it had acquired the work permit on time. The DRC judge enlightened the fact
that the Respondent had presented a “letter of support” dated 4 July 2011 signed
by a manager of the club, which indicates the club’s will to obtain a work permit
and a visa for the player via the country S Embassy in country N. Thus, according to
the DRC judge, there are strong indications that the Respondent’s application for
the player’s work permit and visa was late. In addition, the Respondent did not
contest the Claimant’s allegation that the Respondent only applied for his visa in
July 2011, even though the contract was already valid as from 1 April 2011.
15.
Consequently, the DRC judge had no alternative but to conclude that the
Respondent had failed to create any plausible doubt with regard to the Claimant’s
assertions concerning the missing work permit. Thus, in the absence of the proof
of the contrary, the DRC judge considered that the required work permit for the
Claimant had not been acquired by the Respondent before July 2011.
16.
In view of all the aforementioned considerations, the DRC judge came to the
conclusion that the Claimant’s arrival in country S on 9 August 2011 due to the
Respondent’s failure to obtain the relevant documents for the Claimant in a timely
manner did not change the term of the contract. Consequently, the DRC judge
decided to reject the Respondent’s argument in this respect.
17.
In continuation, the DRC judge acknowledged that the Respondent undisputedly
did not pay the Claimant the remuneration due according to the contract as from
1 April 2011. In addition, the DRC judge took into account that the Respondent
had not refuted the Claimant’s statement that he stayed with the club until the
end of the contract, i.e. until 15 November 2011.
18.
Consequently, the DRC judge decided that the Respondent is liable to pay all
outstanding monies due to the Claimant under the contract until the date on
which the contractual relationship had ended, i.e. until 15 November 2011.
19.
In this respect, the DRC judge determined that remuneration for the entire
months of April until October 2011 (7 x currency of country S 14,500 = currency of
Player A, from country N / Club D, from country S
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country S 101,500) and for 15 days of the month of November 2011 (currency of
country S 14,500 / 2 = currency of country S 7,250), minus the amount of currency
of country S 4,980 that the Claimant already received from the Respondent, in the
overall amount of currency of country S 103,770 remained outstanding.
20.
Referring to the aforementioned art. 12 par. 3 of the Procedural Rules, the DRC
judge decided that the Respondent had not presented any credible evidence for a
deduction of accommodation costs or taxes from the salary, as put forward by the
Respondent.
21.
As a result, the DRC judge concluded that the Claimant was entitled to receive
from the Respondent outstanding remuneration for the months of April until
November (pro rata) 2011 in the amount of currency of country S 103,770.
22.
As regards the amount of EUR 20,000 relating to alleged medical costs, the DRC
judge noted that the contract did not contain any provisions regarding the
reimbursement of such alleged medical treatment. In addition, the DRC judge
noted that the Claimant did not provide any receipts or invoices in this regard.
Hence, the DRC judge decided to reject the Claimant’s claim regarding the medical
costs.
23.
Finally, the DRC judge concluded his deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
*****
Player A, from country N / Club D, from country S
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III.
Decision of the DRC judge
1.
The claim of the Claimant, Plyer A, is partially accepted.
2.
The Respondent, Club D has to pay to the Claimant the amount of currency of
country S 103,770 within 30 days as from the date of notification of this decision.
3.
If the aforementioned amount is not paid within the stated deadline, interest at the
rate of 5 % p.a. will fall due as of expiry of the above-mentioned time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
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. 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
Player A, from country N / Club D, from country S
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For the DRC judge:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player A, from country N / Club D, from country S
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