Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 November 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Johan v an Gaalen (S outh Africa), member
Wouter Lam brecht (Belgium ), member
Pav el Piv ov arov (Russ ia), member
on the claim presented by the player,
Play er A, from country A,
as Claimant
against the club,
Club B, from country B,
as Respondent
regarding an employment-related dispute between the parties
Player A, from country A / Club B, from country B
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I.
Facts of the cas e
1.
According to the player, Player A, from country A (hereinafter: Claimant), he started
providing his services to the Club B, from country b(hereinafter: Respondent), “for the
initial period as from 20 January 2016 until 20 January 2017”.
2.
However, as per the Claimant, the employment contract was signed on 22 February
2016, but no copy was ever provided to him.
3.
According to the information provided in the Transfer Matching System (TMS), the
Claimant was registered with the Respondent on 25 February 2016. The employment
contract uploaded in TMS is signed by both parties, but does not include a date of
signature (hereinafter: the contract).
4.
According to clause 1 of the contract, it “shall run for one year with effect from 2016
to 2017 with an option to renew subject to good performance and delivery”.
5.
Clause 2 of the contract holds that “the [Claimant] shall be entitled to USD 3,000 as his
monthly salary”.
6.
As per clause 3 of the contract, “the [Claimant] shall be entitled to his bonuses and also
be paid as at when due subject to the agreement of the [Respondent]”.
7.
In accordance with clause 4 of the contract, “the [Respondent] shall provide
accommodation for the [Claimant] at the hostel/camp like every other player”.
8.
Clause 6 of the contract stipulates that the Respondent “shall pay the [Claimant’s] signon fee on signing this contract either in full or in installments”.
9.
Clause 17 of the contract stipulates that “the [Claimant] shall not travel outside the
state or country without the express written permission of the [Respondent]”.
10.
On 27 December 2017, the Claimant lodged a claim against the Respondent in front of
FIFA and requested the following:
a) USD 64,473 as outstanding remuneration;
b) USD 45,000 as compensation for termination of contract with just cause;
c) USD 30,000 as compensation for termination during the protected period;
d) USD 2,460 as reimbursement of costs allegedly incurred by the Claimant during
his time with the Respondent;
e) USD 50,000 as compensation for moral damages;
f) USD 50,000 as compensation for improper use of the Claimant’s image rights;
Player A, from country A / Club B, from country B
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g) USD 21,000 relating to outstanding match bonuses and a car;
h) That sporting sanctions be imposed on the Respondent by virtue of not
providing the ITC;
i) That sporting sanctions be imposed on the Respondent in light of art. 17 of the
FIFA Regulations on the Status and Transfer of Players.
11.
According to the Claimant, prior to signing the contract on 22 February 2016, he had
already attended training sessions.
12.
The Claimant further held that a monthly salary of USD 5,000 and a sign-on fee of USD
20,000 were agreed upon.
13.
In addition, the Claimant allegedly was verbally promised various match bonuses, to be
paid in as follows:
a) 40,000 per goal scored;
b) 40,000 per assist made;
c) 20,000 per victory in a home game;
d) 40,000 per victory in an away game;
e) 20,000 per draw in an away game.
14.
In this context, the Claimant claimed that between January 2016 and February 2017,
he received a number of payments, which are summarized in the following table:
Month
Am ount paid
Date of pay m ent
January 2016
February 2016
“salary corresponding to 15
unknown
days”
March 2016
April 2016
May 2016
June 2016
July 2016
August 2016
September 2016
October 2016
November 2016
December 2016
January 2017
February 2017
15.
USD 3,000
400,000
400,000
400,000
400,000
400,000
500,000
unknown
5 July 2016
5 August 2016
5 September 2016
5 October 2016
5 November 2015
-
According to the Claimant, the USD 3,000 received in March 2016 was below “the
agreed USD 5,000” and the Respondent unilaterally decided to pay in XX curency
Player A, from country A / Club B, from country B
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instead of USD as of June 2016. Consequently, he started receiving a monthly salary of
400,000, which, as per the Claimant, amounted to USD 400.
16.
The Claimant maintained that for the months of June until October 2016, he received
a monthly salary of 400,000 paid on the fifth day of the following month.
17.
As per the Claimant, the 500,000 received as February 2017 salary amounted to USD
527.
18.
The Claimant argued that, “with respect to the Federation Cup won on 6 November
2016, the [Respondent] promised prior to playing the final a bonus to the players of
between USD 10,000 and USD 11,500, as well as a car for each player worth
approximately USD 3,650”.
19.
Furthermore, the Claimant argued that he was also promised 40,000 for winning the
country B Super Cup in 2017.
20.
However, as per the Claimant, the match bonuses nor a car were ever paid or given to
him.
21.
Furthermore, the Claimant claimed that the Respondent is wrongly withholding USD
8,000, corresponding to costs he allegedly made for travelling back to country B on 28
December 2016 as well as for obtaining the residence permit.
22.
In this context, the Claimant provided a document entitled “Debt Re-Payment
Agreement”, dated 19 June 2017, which is only signed by the Respondent. According
to this document, the Claimant allegedly agreed to pay the Respondent “all the cost of
bringing [the Claimant] back to country B in December 2016. The total cost of travel
expenditures including ticket fares, resident permit fees, VISA fees, etc. is put at USD
8,000”.
23.
According to the Claimant, however, the travel and residence permit costs should be
paid by the Respondent. In this respect, the Claimant provided a copy of a “Letter of
Invitation”, dated 21 December 2016, signed and sent by the Respondent to the
country B Consulate in country A, in order for the Claimant to obtain his residence
permit. This letter inter alia held that the Respondent “will be responsible for all
immigration expenses as well as transportation, upkeep and other logistics while in
country B”.
24.
Moreover, the Claimant asserted that the Respondent failed to provide him with a
correct residence permit. The Claimant held that, therefore, he was subject to possible
Player A, from country A / Club B, from country B
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detention by the country B authorities at any moment, plus it prevented him from
opening a bank account in country B.
25.
The Claimant further argued that he and his teammates were not provided with
adequate accommodation when travelling to away games, having to sleep on
matrasses on the floor in bad conditions.
26.
In addition, the Respondent allegedly did not provide food or adequate medical care
when he was injured or sick, as promised.
27.
As per the Claimant, the bad living conditions and the fear of being detained for being
an “illegal immigrant” caused him moral damages. Consequently, the Claimant
demanded compensation for moral damages equal to 10 monthly salaries totaling USD
50,000.
28.
Moreover, the Claimant held that the Respondent exploited his image rights in
numerous publicity campaigns, without his express consent.
29.
As a result, the Claimant demanded compensation for the improper use of his image
rights amounting to 10 monthly salaries totaling USD 50,000.
30.
According to the Claimant, on 21 March 2017, he was granted permission by the
Respondent to find a new club in country A, since it did not require his services any
longer.
31.
In this regard, the Claimant included a statement by the Respondent, dated 19 June
2017, which held the following: “[The Claimant] (…) has been permitted to get a club
that will be interested in his services due to being home sick. We will be willing to
release him to the new club whenever we are officially contacted to do so (…) THIS IS
NOT A LETTER OF RELEASE”.
32.
However, as per the Claimant, no other club was willing to hire him, because he was
still employed by the Respondent.
33.
In reply to the Claimant’s claim, the Respondent firstly held that the Claimant went
“AWOL” on 21 March 2017. In support of its arguments, the Respondent provided a
letter it sent to the country B league, dated 21 March 2017, in which it wrote that the
Claimant left the Respondent’s “camp” without permission.
34.
The Respondent further stated that the Claimant “is also indebted to the [Respondent]
to tune of USD 8,000 which was as he requested, the expenses made in bringing him
to country B he was so much pressuring us then to facilitate his move to come to
Player A, from country A / Club B, from country B
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country B all these includes resident permit. (…) Nevertheless, we are still looking
forward to discuss with any club who is interested in his services as [the Respondent]
cannot hold back any of our player from continuing his career wherever he chooses to
play”.
35.
The Claimant replied that, contrary to what the Respondent held, he is not indebted
towards the Respondent. Furthermore, as per the Claimant, the Respondent did not
provide any evidence, which corroborates its allegations.
36.
In its duplica, the Respondent held that the Claimant “failed to abide by the contractual
agreement between him and the [Respondent]”.
37.
The Respondent further attached a letter dated 26 April 2017, allegedly sent to the
Football Association of country B and to the country B league, in which it requested
the deregistration of the Claimant, and in which it stated that it is unable to get in
contact with the Claimant.
38.
Finally, the Respondent argued that the Claimant must pay “the agreed sum, which
was the cost of bringing him to country B”.
39.
On 16 October 2018, the Claimant informed FIFA that he has remained unemployed
since leaving the Respondent.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 27 December
2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. art. 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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2018) 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 and a
club.
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
Player A, from country A / Club B, from country B
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par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2018) and
considering that the present claim was lodged on 27 December 2017, the 2016 edition
of the 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 and arguments as
well as the documentation on file. 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. In
particular, the Chamber recalled that in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA may use, within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or contained
in the Transfer Matching System (TMS).
5.
In this respect, the Chamber firstly recalled that, according the Claimant, he signed an
employment contract with the Respondent on 22 February 2016, valid as from 20
January 2016 until 20 January 2017, but that no copy was ever provided to him.
Furthermore, the Chamber noted that the Respondent had not provided a copy of an
employment contract either.
6.
Given the above, and bearing in mind that the Claimant had presented other
documentation demonstrating that he was employed by the Respondent, the DRC took
into account the employment contract uploaded in TMS, and noted that according to
said contract, the employment relationship would be valid “for one year with effect
from 2016 to 2017 with an option to renew subject to good performance and delivery”.
The members of the Chamber further took into account that this contract does not
contain any date of signature. Basing itself on this contract as well as the Claimant’s
statement that he started training as early as in January 2016, which was not contested
by the Respondent, the Chamber established that the employment relationship
between the Claimant and the Respondent started running as from January 2016. As
regards the duration, the Chamber further noted that the contract was valid until at
least 31 December 2016 and that it includes an option for renewal for an unspecified
duration.
7.
In this context, the DRC concurred that both parties seem to have implied that they
were contractually bound for a period of time, albeit undefined, beyond January 2017,
and that, thus, the contract was extended. Indeed, the Claimant alleged that on 21
March 2017 he was granted permission by the Respondent to look for a new club in
country B. Furthermore, in its letter dated 21 March 2017 addressed to the country B
league the Respondent alleged that the Claimant had left without its permission. What
Player A, from country A / Club B, from country B
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is more, the Respondent issued a written statement dated 19 June 2017, by which it
inter alia permitted the Claimant to find a new club.
8.
Having said that, the Chamber recalled that in his statement of claim, the Claimant
requested both outstanding remuneration and, inter alia, compensation for
termination of the contract with just cause. Similarly, the DRC noted that as per the
Respondent, the Claimant had left on 21 March 2017 without its permission, still owing
the Respondent USD 8,000.
9.
In this regard, the DRC firstly established that the Claimant had not submitted proof
showing that the Respondent had granted him permission to leave as early as on 21
March 2017. Secondly, the Chamber noted that the Claimant had not placed the
Respondent in default of payment of any contractual entitlements, neither prior to nor
after 21 March 2017. Similarly, the DRC also took note of the fact that the Respondent,
for its part, had not sent any default letter to the Claimant, requesting his return. In
this regard, the Respondent, who claimed that the Claimant went “AWOL”, has not
demonstrated with corroborating documents that it had made attempts to locate the
Claimant. In this respect, the members of the Chamber highlighted that with its
correspondence dated 21 March 2017 addressed to the country B league, the
Respondent merely informed the latter that the Claimant had left without its
permission. What is more, the Chamber recalled that in its written statement dated 19
June 2017, the Respondent granted the Claimant permission to look for a new club.
10.
Furthermore, the DRC placed particular emphasis on the fact that no notice of
termination of contract was issued by either of the parties. Furthermore, the Chamber
agreed that from the documentation on file, it is not clear until when the contract was
to run further. Given all of the above, the Chamber concluded that the parties were no
longer interested in continuing the employment relationship after the Claimant had
left the Respondent on 21 March 2017.
11.
However, given that the Claimant rendered his services to the Respondent until 21
March 2017, the members of the Chamber concurred that the Respondent must fulfil
its obligations as per the employment contract up until this date in accordance with
the general legal principle of “pacta sunt servanda”.
12.
In this context, the Chamber recalled that the Claimant inter alia requested USD 64,473
as outstanding remuneration and USD 21,000 as outstanding match bonuses plus a car.
13.
First, as regards the Claimant’s request for outstanding remuneration in the amount of
USD 64,473, the DRC referred to the employment contract uploaded in TMS and
established that as from January 2016 until 21 March 2017, the Claimant would have
been entitled to 14 monthly salaries of USD 3,000 each, as well as 20 days for March
Player A, from country A / Club B, from country B
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2017, totalling USD 44,000. With respect to the Claimant’s assertion relating to a signon fee, the Chamber took into account that the contract does not stipulate any amount
relating to a sign-on fee. In continuation, the Chamber took into account that,
according to the Claimant, he only received approx. USD 12,500 after conversion.
Similarly, the Chamber noted that the amount allegedly received by the Claimant has
not been disputed by the Respondent. Consequently, the DRC concluded that salaries
in the amount of USD 31,500 remain outstanding.
14.
In continuation, the Chamber turned to the Claimant’s request for outstanding match
bonuses in the amount of USD 21,000 plus a car and recalled that according to the
employment contract, the Claimant was entitled to bonuses “subject to the agreement
of the [Respondent]”. Furthermore, the Chamber referred to the Claimant’s position
that the Respondent had verbally promised him various match bonuses and a car (cf.
I./13. and I./18. above). However, the DRC took into account that no written evidence
was provided, which demonstrates that the Claimant was entitled to the claimed match
bonuses and car. Indeed, the contract does not provide for any amount payable as
bonuses and does not include the benefit of a car. Indeed, as per the Chamber, all of
the Claimant’s requests for outstanding bonuses and a car are based on verbal promises
allegedly made by the Respondent.
15.
In conclusion, the DRC concluded that the Claimant had not substantiated his claim
regarding the alleged outstanding bonuses and a car with pertinent documentary
evidence in accordance with art. 12 par. 3 of the Procedural Rules. Consequently, the
DRC decided to reject this part of the Claimant’s claim.
16.
In this context, the Chamber recalled that, according to the Respondent, the Claimant
is indebted towards it in the amount of USD 8,000. However, the DRC took into account
that no convincing evidence corroborating such allegation was provided by the
Respondent. As a consequence, the Chamber concluded that the Respondent’s position
could not be upheld.
17.
The Chamber then turned its attention to the Claimant’s request for reimbursement of
costs allegedly incurred in the amount of USD 2,460 and established that the Claimant
failed to substantiate what these costs are related to and had not provided evidence
demonstrating that he is entitled to this amount. Therefore, the DRC determined that
the Claimant’s request for reimbursement for costs allegedly incurred is rejected.
18.
On account of the aforementioned considerations, the DRC decided that, in accordance
with the general legal principle of pacta sunt servanda, the Respondent is liable to pay
to the Claimant outstanding remuneration in the total amount of USD 31,500.
Player A, from country A / Club B, from country B
Page 9 of 11
19.
In continuation, the Chamber reverted to the Claimant’s claim pertaining to
compensation for the alleged termination of the contract with just cause.
20.
In this regard, taking into account its considerations under numbers II./9. and II./10.
above, the DRC decided that the Claimant’s claim for compensation for breach of
contract cannot be upheld.
21.
Subsequently, the DRC analysed the request of the Claimant corresponding to
compensation for moral damages in the amount of USD 50,000. In this regard, the
Chamber deemed it appropriate to point out that the request for said compensation
presented by the Claimant had no legal or regulatory basis and pointed out that no
corroborating evidence had been submitted that demonstrated or quantified the
damage suffered. Therefore, the DRC decided to reject such request.
22.
For the same reasons as exposed above, the Chamber had to reject the Claimant’s claim
for compensation in the amount of USD 50,000 for the alleged exploitation by the
Respondent of the Claimant’s image rights in publicity campaigns without his express
consent.
23.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
*****
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, w ithin 30 day s as from the date
of notification of this decision, outstanding remuneration in the amount of USD 31,500.
3.
In the event that the amount due to the Claimant in accordance with the abovementioned point 2. is not paid by the Respondent within the stated time limit, 5%
interest 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.
Player A, from country A / Club B, from country B
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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 m otiv ated decision (legal remedy):
According to art. 58 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:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives
Player A, from country A / Club B, from country B
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