Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 November 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Johan van Gaalen (South Africa), 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
arisen between the parties
I.
Facts of the case
1.
On 1 November 2011, the Player of Country B Player A (hereinafter player or
Claimant) and the Club of Country D Club C (hereinafter club or Respondent)
signed an employment contract valid for the sporting season 2011/2012.
2.
Based on the information contained in the Transfer Matching System (TMS), the
sporting season 2011/2012 in Country D started on 1 September 2011 and came to
an end on 31 August 2012
3.
According to art. 1.1 of the contract, the club undertook to pay a monthly salary of
USD 3,500 to the player, the first installment being due in relation to the month of
November 2011.
4.
According to art. 1.2 of the contract, the club undertook to pay USD 1,500 “as
agent’s fees for player”.
5.
On 24 April 2012, the player lodged a claim before FIFA against the club, claiming
that the latter terminated the contract without any just cause and requesting the
following:
USD 42,000, corresponding to residual value of the contract, i.e. twelve
monthly salaries;
USD 1,500 corresponding to the agent’s fee stipulated in the contract;
USD 21,000 in relation to the image and moral prejudice suffered by the
player;
5% interest p.a. “since the moment the due amount became outstanding”;
sporting sanctions on the club
6.
In his respect, the player explained that after his arrival at the club on 24 October
2011, he started to train with the team.
7.
In continuation, the player asserted that on 22 November 2011, the club’s manager
asked him to leave the club and allegedly handed him flight tickets so that the
player would leave the club immediately.
8.
Finally the player pointed out that no medical examination was performed by the
club prior to the signature of the contract.
Player A, Country B / Club C, Country D
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9.
In this respect, the player held that according to art. 18 of the Regulations on the
Status and Transfer of Players, the validity of an employment contract may not be
made subject to a successful medical examination.
10.
Therefore, and according to the player, “the club can not escape to meet its
contractual obligations, claiming that the [player] was injured when signing the
contract”.
11.
For its part, the club replied that upon his arrival, the player was not willing to
start training with the team as he was suffering from a leg injury since about a
year.
12.
As the club insisted, the player started to train but could not perform up to the
required level.
13.
After the club asked the player to get a medical check with the club’s doctor, the
latter found that the player was “suffering from a very bad leg injury since long
and will take long time for recovery. He is advised to take rest for three months
and regular physiotherapy”.
14.
In continuation, the club asserted that as the player asked to go back to Country B,
the club accepted this request and let the player use the return flight ticket it had
bought for him when it organised the player’s travel to the club.
15.
Also, the club held that in view of the situation, it neither registered the player nor
ever asked for the issuance of an international transfer certificate for the player,
which leads to the fact that the FIFA Regulations are not applicable to the matter
at hand.
16.
In view of the aforementioned, the club held that it is not liable for any breach
and should not be ordered to pay any amount to the player, who lied to the club
in order to be recruited.
17.
Finally, the club enclosed to its statement two payment vouchers bearing the
player’s signature, one for an amount of USD 3,500, and presented as a payment in
relation to the player’s salary for November 2011, and a second one for an amount
of USD 1,500, allegedly corresponding to an amount remitted to the player in
favour of the player’s agent.
18.
In spite of FIFA’s request, the player never specified as to whether he signed any
other employment contracts with any football clubs during the period of time
corresponding to the duration of the employment contract at hand.
19.
Based on the information available on the Transfer Matching System, it appears
that the player was registered with the Club of Country B Club E as from 5 March
2012 until 7 May 2012 and then as from 1 August 2012 until 1 December 2012.
Player A, Country B / Club C, 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 24 April 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. article 21 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
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2014), 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 of Country B and a Club of 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 2014), and considering that the present claim was lodged on 24 April
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.
5.
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.
6.
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.
7.
In this respect, the members of the Chamber duly noted that the Claimant submits
that the Respondent asked him to leave the club after some medical examinations
performed after the signature of the contract revealed a leg injury that required
the Claimant to rest for three months.
8.
The Respondent, for its part, asserted that after the aforementioned medical tests
were performed, it is the Claimant that requested to travel back to Country B,
which the Respondent accepted.
Player A, Country B / Club C, Country D
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9.
Equally, and according to the Respondent, the Claimant was well aware of his
medical condition and deliberately concealed this information to the Respondent
during the recruitment process.
10.
Having recalled the aforementioned parties’ respective positions, the Chamber
deemed that in order to assess the parties’ potential respective accountabilities, if
any, it had to clarify the circumstances of the Claimant’s departure from the club
during the month of November 2011 and the parties’ subsequent behaviours.
11.
In this context, the members of the DRC firstly considered that it is undisputed that
following the performance of medical tests, the Claimant was found to suffer from
a serious and long lasting leg injury preventing him from training properly with
the club’s squad and which would require a rest period of three months.
12.
In continuation, the Chamber also noted that it is undisputed that the player left
the Respondent shortly after the results of the aforementioned medical tests were
known.
13.
However, the Chamber noted that whereas there is no evidence that either of the
parties proceeded to terminate the employment contract that was signed by and
between them on 1 November 2011, the Claimant registered with another club on
5 March 2012 until 7 May 2012 and again on 1 August 2012 until 1 December 2012,
i.e. after the expiry date of the employment contract.
14.
What is more, the Chamber recalled that in the circumstances at hand, the player’s
return to Country B was initially justified by the latter’s need to rest for a period of
three months and to follow a physiotherapy program that would permit him to
recover from his leg injury.
15.
Against such background, the DRC held that whereas it appears that the club did
not take any action to request the Claimant’s return after his convalescence in
Country B, the latter apparently did not show any interest in coming back to the
club either, since he signed for another club in March 2012, i.e. shortly after the
period of recovery for his injury had expired.
16.
On account of the above, the DRC considered that the parties’ respective stances
amounted to a situation of a mutual termination of contract.
17.
Accordingly, the Dispute Resolution Chamber came to the unanimous conclusion
that both parties bear the same responsibility for the termination of the contract.
In other words, given the Claimant’s behaviour following his departure from the
Respondent, there is no reason for the Chamber to grant the Claimant’s claim for
compensation for breach of contract. Therefore, the Chamber decided that the
claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, 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
Acting Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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