Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 July 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
John Bramhall (England), member
on the matter between the player,
Player 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 case
1. On 31 December 2013, the player from country B, Player A (hereinafter: the
Claimant), signed an employment contract (hereinafter: the contract) with the
club from country D, Club C (hereinafter: the Respondent), valid as from 1 January
2014 until 31 May 2014.
2. According to the contract, the Claimant was entitled to a monthly remuneration
in the amount of 25,000.
3. In addition, clause 8 of the contract stipulated the following:
“[Claimant] sustained injury and sickness during (…) training and competition
must visit the Doctor/Medical Clinic/Para-medical Clinic appointed by the
[Respondent]. Such expenses shall be borne by the [Respondent]”.
4. On 5 November 2014, the Claimant lodged a claim before FIFA against the
Respondent, and requested the payment of the total amount of EUR 71,393.15,
detailed as follows:
- EUR 8,221.83, corresponding to outstanding salaries for the period comprised
between 21 February 2014 and 31 May 2014. In particular, the Claimant
requested 5,250 for the remaining salary for February 2014, and 75,000 for the
months of March, April and May 2014. The Claimant calculated the total
overdue payments in the amount of 80,250, but made his claim in euros in
accordance with a provided conversion rate as of 30 October 2014.
- EUR 13,171.32 corresponding to medical costs, calculated as follows:
- 27 days of hospitalization at the rate of 4,680 per day (126,360 in total,
calculated as EUR 12,945.93 by the Claimant);
- EUR 102,45 for the removal of stitches following the operation of the
player (1,000, conversion rate provided by the Claimant);
- EUR 122,94, for “average daily taxi costs” for transportation between the
player’s home and the hospital during 20 days, at an average cost of 30 per
journey, with forty journeys in total (1,200, conversion rate provided by
the Claimant);
- EUR 50,000, for “moral damages and compensation for non-sporting damage”.
5. According to the Claimant, shortly after he signed the contract with the
Respondent, several of its members, including the technical director and six
players, were accused by the country D’s justice for possible match-fixing and
participation in sports betting.
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Player A, country B / Club C, country D
6. Due to the alleged accusations against the Respondent, the Claimant argued that
the Respondent was not able to process his license with the Football Association
of country D, and did not manage to ensure that the country D’s authorities
would grant him a visa or work permit. Consequently, the Claimant explained
that he would not be able to obtain a medical insurance in country D.
7. Under these circumstances, the Claimant commented that, on 22 January 2014,
he started to feel some pain in his stomach, as a consequence of which he would
not be able to train with the team.
8. In this regard, the Claimant explained that, following a series of health
complications, on 26 January 2014, the Respondent assisted to bring him to the
hospital, where he was diagnosed with peritonitis and appendicitis.
9. Subsequently, the Claimant described that he had to stay in the hospital from 26
January 2014 until 5 February 2014 and that, after returning home, he
experienced no improvement in his health condition. Because of this, the
Claimant argued that he had to return to the hospital, where he was diagnosed
with an infection in the area that had to suffer the previous operation. The
Claimant explained that following this, he had to undergo a series of treatments
that he had to pay by himself, until he would be able to leave country D, which
he apparently did on 7 July 2014.
10. According to the Claimant, and following the Respondent’s problems with the
country D’s judiciary, a “loan” was made from the Claimant to the “Club E”
(hereinafter: Club E), where he would apparently serve as a “soccer goalie
trainer” in order to allow him to obtain a visa and be able to have access to the
country D public health system. In his request, the Claimant considered that this
was just a “fictional” contract made to serve this double purpose, as he never
obtained a copy of this contract or received any salaries in relation to this.
However, the Claimant explained that the hospital never took this contract into
account for the calculation of medical bills.
11. In its reply, the Respondent acknowledged that, on 11 February 2014, the
Football Association of country D suspended it for the remaining matches of the
2013/2014 season, and highlighted that, despite that it handled the matter
diligently before the country D’s Immigration Department, the visa was not
approved due to the impossibility to register the Claimant with the Respondent.
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Player A, country B / Club C, country D
12. In relation to the medical costs, the Respondent argued that the Claimant’s illness
did not occur during any training or competition, meaning that it does not fall
under the criteria established in the contract, and that in any case, medical
insurance is not mandatory in country D.
13. In reference to the moral damages, the Respondent refused to agree with the
Claimant and declared that it sees “the whole incident (…) as a series of
unpleasant and unlucky even instead of the Club was at fault”.
14. In his replica, the Claimant considered that there is no evidence supporting the
Respondent’s statement that it handled the visa application diligently.
15. In addition, the Claimant considered that his health complications started
following his training with the Respondent on 22 and 23 January 2014.
16. Finally, the Claimant insisted that it was the Respondent’s fault that it was
suspended and therefore not able to register him, and that in any case the
Respondent had to diligently verify if there was any non-sporting circumstance
under which the registration could have been denied. In this regard, the Claimant
considered that he had no intervention in any of the problems in which the
Respondent has been involved.
17. The Respondent provided its final comments one day after the closure of the
investigation-phase, although argued that the submission was filed on time. In
this regard, the Respondent insisted that it handled the application process
diligently, and attached several documents in this regard. The Respondent
concluded that the only reason why the Claimant did not obtain a visa is due to
the fact that it was not possible to complete his registration. In relation to the
Claimant’s health problems, the Respondent explained that one of the doctors
who attended the Claimant, apparently declared that “the sickness which the
player suffered is normal and it occurs to everyone regardless of their job
nature”.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) 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 5
November 2014. Consequently, the 2014 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
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Player A, country B / Club C, country D
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
of the 2014 and 2015 editions 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 lit. b of the Regulations on the Status and Transfer of
Players, edition 2015, the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and a club from country
D.
3. The competence of the Chamber having been established, the Chamber analysed
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, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (editions 2014 and 2015), and considering that the present matter was
submitted to FIFA on 5 November 2014, the 2014 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 Chamber 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.
5. First of all, the DRC observed that the Respondent, for its part, in spite of having
been invited to do so, failed to present its final comments to the claim of the
Claimant within the relevant time-limit. In fact, the final comments of the
Respondent were only received after the investigation-phase of the matter had
already been concluded. As a result, the DRC 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.
6. In particular, the Chamber took note that, on 31 December 2013, an employment
contract was concluded between the Claimant and the Respondent, valid as from
1 January 2014 until 31 May 2014, in accordance with which the Claimant was
entitled to receive, inter alia, the amount of 125,000 as total remuneration for the
term of the contract (i.e. 25,000 per month).
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Player A, country B / Club C, country D
7. In continuation, the DRC noted that the Claimant alleged that the Respondent
had failed to pay the amount of 80,250 established by the parties in the contract,
for the period comprised between 21 February 2014 and 31 May 2014.
Consequently, the Claimant requested to be awarded with the payment of the
amount of 80,250 as outstanding salaries.
8. In this regard, the Chamber took due note of the arguments put forward by the
Respondent, which explained that it was unable to register the Claimant and,
consequently, was also unable to obtain a visa, due to its suspension on 11
February 2014 by the Football Association of country D for the remaining
matches of the 2013/2014 season.
9. In this context, the Chamber was of the firm opinion that the occurrence of these
events and the alleged consequences thereof could not be held against the
Claimant, who had no influence whatsoever on these processes and bore no
responsibility in this regard.
10. For the sake of completeness, the Chamber considered also relevant to recall its
jurisprudence in accordance with which the validity of an employment contract
cannot be made conditional upon the execution of (administrative) formalities,
such as, but not limited to, the registration procedure in connection with the
international transfer of a player, which are of the sole responsibility of a club
and on which a player has no influence. In this regard, the DRC pointed out that
it is the responsibility of the engaging club to ensure that the player is properly
registered with his new club in order to be able to provide it with his services.
Since the Respondent is supposedly interested in acquiring the rights of the
Claimant and in benefiting from his services, it is also expected from it that it acts
accordingly in view of obtaining the player’s ITC and his subsequent registration.
11. Consequently, the members of the Chamber unanimously agreed that the
contract was properly concluded and formalized between the parties.
12. In view of all the above and, in particular, taking into account that the
Respondent did not contest that the relevant salaries had remained unpaid, the
DRC decided that, in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its contractual obligations towards the
Claimant and is to be held liable to pay the Claimant the amount of 80,250,
corresponding to salaries for the period comprised between 21 February 2014
and 31 May 2014. In this regard, the Chamber was eager to emphasise that, in
accordance with its well-established jurisprudence in this respect, it cannot grant
any outstanding amounts in euros, as the parties had agreed upon payment of
the Claimant’s remuneration in country D’s currency.
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Player A, country B / Club C, country D
13. The Chamber then reverted to the Claimant’s claim in relation to the medical
costs which he allegedly incurred due to his apparent sickness and subsequent
hospitalization in country D, and according to which the Claimant requested the
payment of EUR 13,171.32 for the following items:
- 27 days of hospitalization at the rate of 4,680 per day (126,360 in total, or EUR
12,945.93 in total);
- EUR 102,45 for the removal of stitches following the operation of the
Claimant (or 1,000);
- EUR 122,94, for “average daily taxi costs” for transportation between the
player’s home and the hospital during 20 days, at an average cost of 30 per
journey, with forty journeys in total (or 1,200).
14. In particular, the members of the Chamber noted that the Claimant argued that,
following his sickness that started on 22 January 2014, the Respondent assisted to
bring him to a hospital, and that said hospital was appointed by it. The members
of the Chamber highlighted that none of the aforementioned events (i.e. the
Claimant’s sickness and subsequent hospitalization) were contested by the
Respondent and, consequently, presumed that the description of the Claimant
was truthful.
15. In this regard, the members of the Chamber recalled the contents of clause 8 of
the contract, which stipulated the following:
“[Claimant’s] sustained injury and sickness during (…) training and competition
must visit the Doctor/Medical Clinic/Para-medical Clinic appointed by the
[Respondent]. Such expenses shall be borne by the [Respondent]”.
16. Concerning the aforementioned clause, the Chamber took note of the
Respondent’s argument, according to which the Claimant’s illness did not occur
during any training or competition, meaning that it does not fall under the
criteria established in the contract.
17. In connection to this, the members of the Chamber considered that it was
relevant to analyse the specific contents of clause 8 of the contract. In particular,
the members of the Chamber observed that, in accordance with the said clause,
the Respondent agreed to cover all expenses related to the Claimant’s “injury
and sickness”. In this regard, the members of the Chamber noted that the
aforementioned clause was unclear and ambiguous, and made no particular
reference to the specific medical expenses covered by the Respondent.
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Player A, country B / Club C, country D
18. Furthermore, and referring to the Respondent’s argument, the Chamber was of
the opinion that the considered clause does not clearly establish that the covered
medical expenses should be directly derived, or be a direct consequence, from
training or competition. Thus, the members of the Chamber considered that the
ratio behind the wording, “sustained injury and sickness during (…) training and
competition”, was to cover the medical expenses during the Claimant’s
professional stay (incl. training and competition) with the Respondent.
19. In view of the above, the members of the Chamber understood that, by means of
the aforementioned clause 8 of the contract, the Respondent accepted to provide
to the Claimant all necessary medical expenses during his stay with the
Respondent in country D, with the sole limitation that said medical expenses
would only be covered by the Respondent if they were arising from a medical
treatment as appointed by it.
20. Consequently, and in the light of clause 8 of the contract, the members of the
Chamber unanimously agreed that the Respondent was aware of and did not
oppose to the medical expenses incurred by the Claimant following his sickness,
and is therefore liable to pay their cost.
21. For the sake of completeness, the Chamber noted that the provisions established
in clause 8 only made strict reference to costs related to the Claimant’s “injury
and sickness”. Thus, the members of the Chamber understood that, in any case,
the Respondent would only be liable to pay costs of a strict medical nature.
22. In this regard, the members of the Chamber noted that the medical expenses
requested by the Claimant made reference to three different items:
hospitalization costs, removal of stitches following the operation of the Claimant,
and “average daily taxi costs”.
23. On account of the above, the members of the Chamber noted that the “average
daily taxi costs” incurred by the Claimant do not bear a strict medical nature.
Therefore, the members of the Chamber unanimously agreed that the request for
the payment of the aforementioned costs by the Respondent to the Claimant,
must be rejected.
24. On the other hand, and referring again to the contents of article 8 of the
contract, the members of the Chamber noted that the Claimant requested the
payment of two different amounts, corresponding to 27 days of hospitalization
at the rate of 4,680 per day (126,360 in total, or EUR 12,945.93 in total), and EUR
102,45 for the removal of stitches following the operation of the Claimant or
1,000, which were apparently not paid by the Respondent.
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Player A, country B / Club C, country D
25. On this subject, the members of the Chamber unanimously agreed that the
aforementioned costs seem to bear a clear medical nature and, therefore, fall
within the parameters of clause 8 of the contract.
26. In view of the above, and taking into account the documentation presented by
the Claimant in support of his petition, the Chamber concluded that the Claimant
had substantiated his claim pertaining to medical expenses with sufficient
documentary evidence, and that said evidence remained undisputed by the
Respondent.
27. Consequently, the DRC decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent must fulfil its contractual
obligations towards the Claimant and is to be held liable to pay the Claimant the
amount of 127,360, corresponding to the aforementioned medical expenses. In
this regard, the Chamber was eager to stress once again, that it cannot grant any
outstanding amounts in euros, as the parties had agreed upon payment of the
Claimant’s remuneration in country D’s currency and said expenses were
documented in country D’s currency.
28. Furthermore, as regards the Claimant’s request pertaining to “moral damages
and compensation for non-sporting damage”, the Chamber agreed that such
claim is to be rejected due to a lack of legal basis.
29. Finally, the Chamber concluded its deliberations by rejecting any further claim
lodged by the Claimant.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is partially accepted.
2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
207,610.
3. In the event that the aforementioned sum is not paid by the Respondent within
the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of
the aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4. Any further claim lodged by the Claimant is rejected.
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Player A, country B / Club C, country D
5. The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance under point 2. is 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 (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:
Marco Villiger
Acting Deputy Secretary General
Enclosed: CAS directives
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Player A, country B / Club C, country D