Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 20 August 2014,
by DRC judge,
on the claim presented by the player,
Player M, from country R
as Claimant
against the club,
Club S, from country Z
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
According to the player M from country R (hereinafter: the Claimant), on 22 July
2013, he and the club S from country Z (hereinafter: the Respondent) concluded an
employment contract valid as from its date of signature until 31 December 2013,
under which the Respondent allegedly undertook to pay the Claimant a monthly
salary of USD 4,000.
2.
The Claimant indicated that he was not in possession of the above-mentioned
employment contract, but, in order to prove that an employment contract existed
between the parties, he provided an extract of the Transfer Matching System (TMS).
According to the Claimant it could be proven by means of said extract that, on 29
July 2013, the Respondent uploaded the relevant employment contract into TMS and
requested the issuance of the International Transfer Certificate (ITC).
3.
On 22 July 2013, the Claimant travelled to country W where the Respondent was
holding its pre-season training camp and on 7 August 2013 he returned to country R,
anticipating the issuance of his work permit.
4.
On 7 September 2013, the Claimant was apparently paid USD 1,900 by the
Respondent.
5.
On 12 September 2013, the Claimant received an email from the Respondent stating
that: “due to the impossibility to issue an entry visa to our country, we prematurely
terminate the contract with [the Claimant]. We paid the salary for August.” This
stance was further ratified by a letter dated 1 September 2013 attached to the
aforementioned email, which reads as follows: “By virtue of the present, we inform
you that [the Respondent], country Z, terminates the contract with [the Claimant]
concluded on 22 July 2013. [The Respondent] has no claim against [the Claimant]”.
6.
On 18 September 2013, the Claimant lodged a claim against the Respondent in front
of FIFA maintaining that the latter unilaterally terminated the employment contract
without just cause.
7.
The Claimant emphasised that the responsibility to obtain the necessary visa prior to
the signing of the employment contract or during the period of its validity is the sole
responsibility of the Respondent. Hence, the Respondent had no valid reason to
terminate the employment contract on 12 September 2013.
8.
On account of the above-mentioned circumstances, the Claimant claimed the
following amounts as well as sporting sanctions to be imposed on the Respondent:
Player M, from country R / Club S, from country Z
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1) Outstanding salary: USD 4,990 net plus 5% interest p.a. as of 13 September
2013.
- USD 1,290 pro rata for the July 2013 salary;
- USD 2,100 for the August 2013 salary (4,000 - 1,900 already paid);
- USD 1,600 pro rata for September 2013 salary.
2) Compensation: “USD 28,400” net plus 5% interest p.a. as of 13 September 2013.
- USD 2,400 pro rata for the remaining part of the September 2013 salary;
- USD 12,000 for the October to December 2013 salaries;
- USD 12,000 as additional compensation.
9.
In spite of having been invited to do so, the Respondent did not present its reply to
the claim of the Claimant.
10.
Upon FIFA´s request, the Claimant stated that he had not concluded an employment
contract with any other club between September 2013 and January 2014.
11.
The employment contract uploaded by the Respondent into TMS is dated 22 July
2013, signed by both parties and valid until 31 December 2013. Said employment
contract provides for a monthly salary “from 840 to 1000 currency of country Z
(COZ).”
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 18 September 2013. Consequently, the DRC judge concluded
that the 2012 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 2012 and 2014 edition
of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 lit. i. in
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014), the DRC judge is competent to decide on the present
Player M, from country R / Club S, from country Z
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matter, which concerns an employment-related dispute with an international
dimension between a player M and a club S.
3.
Furthermore, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (edition 2012 and 2014)
and considering that the present claim was lodged in front of FIFA on 18
September 2013, the 2012 edition of the Regulations on the Status and Transfer
of Players (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge 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 the facts, arguments and
documentary evidence which he considered pertinent for the assessment of the
matter at hand.
5.
In this respect and first of all, the DRC judge acknowledged that according to the
Claimant, he and the Respondent had signed an employment contract providing
for a monthly salary of USD 4,000. However, the Claimant indicated that he was
not in possession of the relevant employment contract.
6.
What is more, the DRC judge duly observed that the Claimant held that the
Respondent had terminated the contractual relationship without just cause on 12
September 2013 by means of an email.
7.
Furthermore, the DRC judge noted that, despite having been given the
opportunity to reply to the claim lodged against it by the Claimant, the
Respondent failed to present its response to the claim. In this way, the DRC judge
deemed that the Respondent renounced its right of defence.
8.
As a consequence of the preceding consideration, the DRC judge established that,
in accordance with art. 9 par. 3 of the Procedural Rules as well as art. 6 par. 3 of
Annexe 3 of the Regulations, he shall take a decision upon the basis of the
documents on file and upon the documentation contained into TMS.
9.
Turning his attention to the claim of the Claimant and the allegations contained
therein, the DRC judge stressed that in accordance with the legal principle of the
burden of proof as contained in art. 12 par. 3 of the Procedural Rules, any party
Player M, from country R / Club S, from country Z
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claiming a right on the basis of an alleged fact shall carry the respective burden of
proof. In view of the foregoing and considering the claim of the Claimant, the
DRC judge ruled that it was for the Claimant to prove that he was indeed entitled
to a monthly salary of USD 4,000.
10.
In this respect, the DRC judge took note that by means of the various documents
provided by the Claimant, it could only be established that the parties had
concluded an employment contract, but that there had been no documentation
made available from which the DRC judge could reasonably assume that the
parties had agreed upon a monthly salary amounting to USD 4,000. In this respect,
the DRC judge emphasised that the apparent payment of USD 1,900, which was
however not supported by any documentary evidence, did not suffice to prove
that the parties had agreed upon a monthly salary of USD 4,000.
11.
The DRC judge further pointed out that in accordance with the employment
contract uploaded into TMS, which was the only document available duly signed
by both parties, the parties had agreed upon a monthly salary “from 840 to 1000
COZ.”
12.
As a result, considering the documentation at his disposal as well as taking into
account the information contained in TMS, the DRC judge considered that it could
only be established that the parties to the employment contract had agreed upon
a monthly salary amounting to, at the most, currency of country Z (COZ) 1,000.
13.
Consequently, and taking into account that the payment of 5 salaries of COZ
1,000 corresponds to an amount lower than the amount of USD 1,900, i.e. the
amount apparently already received by the Claimant, the DRC judge had, on the
basis of the documentation on file, no alternative than to reject the claim of the
Claimant.
*****
Player M, from country R / Club S, from country Z
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III.
Decision of the DRC judge
1.
The claim of the Claimant, Player M, 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player M, from country R / Club S, from country Z
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