Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2015,
in the following composition:
Geoff Thompson (England), Chairman
Carlos González Puche (Colombia), member
Theo van Seggelen (Netherlands), member
Guillermo Saltos Guale (Ecuador), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On an unspecified date, the player from country B, Player A (hereinafter: player or
Claimant) and the club from country D, Club C (hereinafter: club or Respondent)
signed an employment contract valid as from 18 June 2012 until “31 November
2014” (hereinafter: the contract).
2.
According to article 7 of the contract, the player was entitled to receive, inter alia:
3.
a sign-on fee of USD 50,000, due 7 days after the signing of the contract;
a sign-on fee of USD 50,000, due in January 2013;
a sign-on fee of USD 50,000, due in January 2014;
a monthly salary of USD 25,000.
On 10 January 2013, the player lodged a claim before FIFA against the club,
claiming compensation for breach of contract by the club, requesting the total
amount of USD 871,226.35, broken down as follows:
USD 50,000 as sign-on fee;
USD 100,000 as sign-on fees for the second and third year of the contract;
USD 128,333 as the difference between the monthly salaries he would have
received at the club and the monthly salary he received under the (new)
contract with Club E between 18 June 2012 and 21 August 2012;
USD 57,447.33 as the difference between the monthly salaries he would have
received at the club and the monthly salary he received under the (new)
contract with Club E between 22 August 2012 and 30 November 2012;
USD 60,446.02 as monthly salaries for the period between 1 January 2013
and 31 December 2014;
USD 475,000 as monthly salaries for the period between 1 May 2013 and 31
December 2014.
Further, the player requested 5% interest on the afore-mentioned amounts and
asked for sporting sanctions to be imposed on the club.
4.
The player states that on or ‘about’ 18 June 2012, he signed a contract with the
club, and that, after he arrived on 28 June 2012 in country D, he was immediately
informed that he had to train alone and that he had to undergo a medical
examination. According to the player, the medical examination took place on 4
July 2012 and afterwards, he trained with the club’s team. Further, the player
states that after the training session, he was informed by his agent that he had to
undergo a MRI-scan.
Player A, country B / Club C, country D
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5.
In addition, the player argues that after the MRI-scan, he was informed that he
had liver cancer, as a result of which his contract was terminated by the club. The
player concludes that the club told him to leave the hotel room where he was
staying, that he was sent home by the club and did not receive any payments.
6.
Finally, the player states that he returned to country B, where he asked a second
opinion from a medical expert. According to the player, the medical expert, Dr F,
concluded that he had no liver cancer and that he could play professional
football.
7.
In its reply, the club stated that the player arrived on 29 June 2012 in country D
and that – after having rested on 30 June 2012 – he participated in a ‘recovering
training with the reserve team coach’. Further, the club argues that the player
complained he felt ‘physically unwell’ and that on 3 July 2012 – on the initiative of
the club – he was brought to a hospital where a ‘physical exam’ took place.
8.
In this respect, the club states that it refused the player to participate in the ‘high
intensity combat training’, because it wanted to avoid the player to be
‘unnecessary injured’. Further, according to the club, no formal contract was
signed (the club later adapted this allegation and argued that on 4 July 2012 the
player and the club signed a ‘formal contract’). In addition, the club stated that
the player played a ‘teaching game’ on 6 July 2012, after which game he left
country D on 8 July 2012 without any notice. The club states that the player did
not have permission from the club to leave the country and that by doing so, he
unilaterally terminated the contract.
9.
In addition, the club denied that it informed the player that he had liver cancer,
since it is not possible to diagnose cancer ‘through basic check-ups’.
10.
Finally, the club concludes that on 16 August 2012, the player concluded an
employment contract with the club from country B, Club E, despite still having a
contract with the club.
11.
In his replica, the player acknowledged the club’s statements about his arrival in
country D and the training sessions. The player argues that after the medical
examination on 4 July 2012, it turned out that there was an irregularity in his
liver, which would require a further MRI-scan. After the MRI-scan, according to
the player, the club told him that he had liver cancer and that he had to leave the
hotel room, due to the termination of the contract.
12.
According to the player, said circumstances have to be considered as a unilateral
termination of the contract by the club without just cause.
Player A, country B / Club C, country D
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13.
In its duplica, the club stated that after the player and the club first signed a
contract of intention, on 4 July 2012, a ‘final contract’ was concluded. In addition,
the club reiterates that the player left country D on 8 July 2012, without
informing the club and without permission from the club.
14.
Further, according to the club, the outcome of the medical check on “3 July 2012”
was that the player was ‘physically normal’. Also, the club states the player did not
provide any evidence of his allegations. The club concludes that the player
unilaterally violated the terms of the contract. Further, the club asks for the
rejection of all the claims of the player.
15.
According to the player, he signed new contracts with:
the club from country B, Club E, valid from 21 August 2012 until 30 April
2013, according to which the player was entitled to receive a gross weekly
salary of 2,307.70, which corresponds to a weekly salary of 1,649.69 net. For
the period between 21 August 2012 and 30 April 2013, this equals an
amount of 61,038.53 net.
the club from country B, Club G, valid from 1 September 2013 until 7 May
2014, according to which the player was entitled to receive a gross weekly
salary of 3,802.15. For the period between 1 September 2013 and 7 May
2014, this equals an amount of 136,877 gross.
the club from country B, Club H, valid from 1 August 2014 until 31 May 2016,
according to which the player was entitled to receive a gross monthly salary
of 11,441.67. For the period between 1 August 2014 and 30 November 2014,
this equals an amount of 45,766.68 gross.
Together with submitting the above-mentioned contracts, the player adapted his
claim from the original amount of USD 871,226.35, to the amount of USD
723,119.34.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 10 January 2013. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2012;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
Player A, country B / Club C, country D
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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 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.
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 2 of the Regulations on the Status and Transfer of Players
(edition 2015), and considering that the present claim was lodged on 10 January
2013, the 2012 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. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. However, the
Chamber emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
5.
In this respect, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent, maintaining that the Respondent had terminated
the contract without just cause, because it told the Claimant that he had liver
cancer, that he had to leave his hotel room and that consequently he was ‘sent
home’. The Chamber further noted that, according to the Claimant, after a second
opinion it turned out that he had no liver cancer.
6.
The Respondent, for its part, stated that it never told the Claimant that he had
liver cancer and that the Claimant left country D on 8 July 2012 without notice
and without authorization. The Respondent further argued that the Claimant did
not submit evidence of his allegations that the contract was terminated by the
Respondent without just cause.
7.
In this respect, 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 Chamber to conclude that
it was up to the Claimant to prove that the Respondent terminated the contract
without just cause, as alleged by the Claimant. The Chamber duly noted that on
the basis of the aforementioned circumstances, the Claimant claims compensation
for breach of contract from the Respondent.
Player A, country B / Club C, country D
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8.
In this regard, the Chamber reiterated that the Claimant stated that he was
informed by the Respondent that after a medical examination on 4 July 2012, it
turned out that he had liver cancer. As a result thereof, according to the Claimant,
the Respondent told him that he had to leave his hotel room and was sent home.
The Claimant considers these circumstances as a termination of the contract by
the Respondent and further argued that he did not receive any of the payments
agreed upon. The Respondent however categorically denied these allegations of
the Claimant.
9.
In this context, the members of the Chamber highlighted that the Claimant did
not submit any documentation in support of his allegations, on the basis of which
it could be established that the Respondent informed the Claimant after the
medical examination on 4 July 2012 that he had liver cancer and/or that the
contract should be considered as terminated. In particular, no documentation has
been provided by means of which the Claimant would have informed the
Respondent that its findings were incorrect and that he was at the club’s disposal
to perform his obligations under the contract.
10.
Based on the abovementioned considerations, the DRC recalled once more the
basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural
Rules and noted that the Claimant did not substantiate his claim, as he did not
provide any evidence on the basis of which it could be concluded that the
contract was effectively terminated by the Respondent.
11.
On account of all the above-mentioned considerations, the Chamber concluded
that the Claimant had not been able to prove that the contract was terminated by
the Respondent in July 2012 and that the Respondent should therefore be held
liable for paying the total amount of USD 723,119.34 as requested by the
Claimant.
12.
Having stated the above and bearing in mind the previous considerations, the
Dispute Resolution Chamber went on to deal with the further consequences of
the (short) execution of the contract.
13.
In this respect, the members of the Chamber recalled that the Claimant and the
Respondent agreed upon a sign-on fee of USD 50,000, which should be paid
within 7 days after the signing of the contract.
14.
In this context, the members of the Chamber underlined that the Claimant stated
that on or around 18 June 2012, he signed a contract with the Respondent.
Further, the Claimant submitted a copy of the contract, signed by both the
Claimant and the Respondent and starting on 18 June 2012, on the basis of which
the parties started executing the contract until 8 July 2012 at the latest.
Player A, country B / Club C, country D
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15.
The members of the Chamber further noted that the Respondent in its first
submission stated that it did not sign a ‘formal contract’ with the Claimant, but
that in a second submission, it stated that it signed a ‘formal contract’ with the
Claimant on 4 July 2012. In this respect, the members of the Chamber underlined
that there is only one contract on file signed between the Claimant and the
Respondent and that contract contains the date of 18 June 2012.
16.
Based on the aforementioned considerations, the members of the Chamber noted
that it remained undisputed that an employment contract between the parties
was signed and executed and that the Claimant rendered his services towards the
Respondent in the period between 30 June 2012 and 8 July 2012.
17.
As a result, the members of the Chamber established that the Claimant is entitled
to the instalment of USD 50,000, which should have been paid 7 days after the
signature of the contract.
18.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the
Claimant´s claim and that the Respondent must pay to the Claimant the amount
of USD 50,000 as outstanding remuneration.
19.
In addition, taking into account the Claimant’s request as well as the constant
practice of the DRC, the Chamber decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the amount of USD 50,0000 as of the date the
claim was lodged, i.e. 10 January 2013 until the date of effective payment.
20.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
*****
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
USD 50,000 plus 5% interest p.a. as from 10 January 2013 until the date of
effective payment.
Player A, country B / Club C, country D
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3.
In the event that the aforementioned sum plus interest is not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for 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
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
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
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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