Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 November 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mario Gallavotti (Italy), member
Zola Malvern Percival Majavu (South Africa), member
Michele Colucci (Italy), member
Rinaldo Martorelli (Brazil), member
on the claim presented by the player
A, AA
as Claimant
against the club
B, BB
represented by…, attorney-at-law
as Respondent
regarding a contractual dispute arisen between the player and the club.
I.
Facts of the case
1.
On 14 September 2006, the AAn player A (hereinafter: the Claimant) and the BB
club, B (hereinafter: the Respondent), concluded an employment contract for the
season 2006/2007. The contract provides for an advance payment of USD 190,000,
payable in the following instalments:
- USD 60,000 upon the signing of the contract and the receipt of the International
Transfer Certificate (ITC);
- USD 25,000 on 31 October 2006;
- USD 25,000 on 31 December 2006;
- USD 25,000 on 28 February 2007;
- USD 25,000 on 31 March 2007;
- USD 30,000 on 31 May 2007.
Additionally, the parties agreed on a monthly salary of USD 6,000 and allowances
such as, inter alia, the providing of a furnished accommodation, a car and two
flight tickets.
2.
On 14 November 2006, the Claimant lodged a formal complaint at FIFA claiming
that the Respondent had unilaterally terminated the employment contract after he
had participated in only four matches. The Claimant put forward that from 17
October 2006 onwards, he was not allowed to participate in the trainings of the
Respondent anymore due to his hepatitis B infection. The Claimant asserted that
his infection was used by the Respondent as a pretext since the club had, after
receiving the results of the blood test, informed him that the infection did not
constitute a problem and that it would cover potential medical costs. The Claimant
put forward that he believed that the fact that he did not score any goal in the
four matches in which he participated was the real reason why the Respondent
terminated the employment contract with him prematurely.
3.
The Claimant explained having received from the Respondent USD 190,000 (out of
which USD 85,000 in cash and the rest, USD 105,000 by means of several cheques),
plus USD 3,000 as salary payments for the period from 14 to 30 September 2006
and a victory match premium for the first match in the amount of USD 1,700. The
Claimant requested payment of the salaries for the remainder of the contract, i.e.
for 10 months, in the amount of USD 60,000 minus the amount of USD 3,000 which
he had already received from the Respondent. Therefore, he claims payment of a
total amount of USD 57,000 plus a flight ticket for him to return to France, as
stipulated in the employment contract. He added that he also demands to be
entitled to keep the sum of USD 190,000 which he had received from the
Respondent as advance payment.
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Player A, AA / B, BB
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4.
FIFA was then informed by the Claimant that the Respondent did not hand him out
his passport wherefore he was not able to leave the BB. According to the Claimant,
the Respondent put mental pressure on him to make him pay back the already
received amounts in order to obtain, in return, his passport back. After the
involvement of FIFA, the player was handed out his passport and a flight ticket to
France and was able to leave the country on 18 December 2006.
5.
In response to the claim, the Respondent confirmed that on 14 September 2006 it
had concluded an employment contract with the Claimant valid until the end of
the sporting season 2006/07, i.e. for ten months. As the first match of the season
had already taken place, i.e. on 15 September 2006, the medical test had to be
postponed. The Respondent explained that even though the Claimant had
affirmed to be in good health and to play well, the results of the medical test had
shown that the Claimant suffered from a hepatitis B infection. The Respondent
added that such an infection was dangerous and contagious and that the national
laws in the BB did not allow hepatitis B infected people to obtain a residence
permit. The Respondent asserted to have informed the Claimant about these facts
but that the Claimant did not show any reaction. In addition to that, the
Respondent put forward that the Claimant had not participated in the daily
trainings and that he had been absent from 10 until 12 October 2006 without
giving any convincing reason. The Respondent explained that as the other players
were in panic to get infected by the Claimant, it could not allow him to play with
the team.
6.
In his comments on the position of the club, the Claimant stated that the medical
test was carried out on 19 September 2006 but he had nevertheless already
participated in the Respondent’s first match of the national championship on 22
September 2006. Regarding the allegation of the Respondent that any person
infected with hepatitis B was not allowed to obtain a residence permit in the BB,
he asserted that - unlike for HIV infections - he could not find such provision on the
internet. He also explained that he had been infected with the virus since many
years and that a doctor’s certificate attested that he did not need to take any
medicine at the present stage. He asserted that the representatives of the
Respondent had told him that the infection would not change anything with
respect to his playing at the club and that the employment contract would not be
terminated. The Claimant put forward that he did not believe that other players
were panicking as they probably were not even aware of his infection. The
Claimant added that it was true that he had not participated in the trainings on a
few days but affirmed to have given the Respondent a valid reason for his absence.
He explained that one day, some representatives of the Respondent came to his
hotel and wanted to hand him out the termination notice which he refused to
accept. From that moment on, he was told by a hotel manager that he could only
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Player A, AA / B, BB
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stay in the hotel if he paid the room out of his own pocket, as the Respondent did
not cover the hotel expenses for him anymore. He was threatened by the
Respondent to pay back the monies already received and to agree with the
termination of the contract otherwise he would be sent to prison.
7.
On 30 March 2007, the Claimant informed FIFA that he had not been able to cash
the cheque dated 31 December 2006 in the amount of the BB currency 92,000
which he had received from the Respondent. He further asserted that he did not
try to cash the two other cheques as the bank charges a fee for every non cashable
cheque. The Claimant furthermore added that he also claims compensation in the
amount of EUR 71,000 from the Respondent, broken down as follows:
o
EUR 9,000 (9 x EUR 1,000 for the rent and additional charges which he
would have received during 9 months);
o
EUR 10,000 (for moral damages due to the threatening by the Respondent,
the withdrawal of his passport and the ban on leaving the country);
o
EUR 30,000 (for damages suffered by his family who lives in France);
o
EUR 10,000 (for professional damages as he did not find another job for
some time);
o
EUR 12,000 (for financial damages for lost salaries for six months, 6 x EUR
2,000).
8.
In its closing arguments, the Respondent rejected the claim of the Claimant in full
and stated that the latter was not entitled to receive any further compensation. It
confirmed that the total value of the contract was USD 190,000, payable in six
instalments, and that furthermore, a monthly salary of USD 6,000 had been agreed
upon. It stated that the Claimant had been paid the amount of USD 85,000 at the
signing of the contract which comprised USD 60,000 as signing-on fee plus the first
instalment of USD 25,000 due on 31 October 2006. Furthermore, the Respondent
affirmed to have handed out the following four cheques, issued by the National
Bank of , to the Claimant:
-
9.
Cheque dated 31.12.06 in the amount of USD 25,000;
Cheque dated 28.2.07 in the amount of USD 25,000;
Cheque dated 31.3.07 in the amount of USD 25,000 and
Cheque dated 31.5.07 in the amount of USD 30,000.
The Respondent asserted that the player had undergone a medical test on 19
September 2006 which attested a hepatitis B infection which the Claimant did not
accept. The Respondent added that the Claimant had participated in four matches
and that the money paid to the Claimant was a substantial amount for the club as
it was a small, relegated club with little financial means. The Respondent explained
that the coach had informed the chairman of the board of the Claimant’s infection
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Player A, AA / B, BB
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and of the fact that the player’s performance had declined. The Respondent stated
that it would not have been able to provide the Claimant with a residence visa due
to his infection and due to the national laws of the BB. As no amicable solution
could be found between the parties, the Respondent sent a letter of termination
on 21 September 2006 to the Claimant. The Respondent added to have asked the
Claimant to refund the signing-on fee as well as the amount of BB currency 6,379
for his food bill at his accommodation, but that the Claimant had refused to pay
the amounts back. The Respondent continued that he had paid BB currency 1,480
for the flight ticket of the Claimant and that after the Claimant had left, it had to
recruit another player.
10.
The Claimant informed FIFA that he concluded a new employment contract with
the French club, Y, for the period from 16 July 2007 until the end of the season
2007/2008.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 14 November
2006, as a consequence the Chamber concluded that the 2005 edition of the Rules
Governing Procedures on matters pending before the decision making bodies of
FIFA is applicable to the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of articles 22 to 24 of the 2005 edition of the Regulations
for the Status and Transfer of Players. In accordance with art. 24 par. 1 in
combination with art. 22 (b) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a
club and a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving an BB club and a AAn player regarding a
dispute arisen in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
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Player A, AA / B, BB
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substance of the matter. In this respect, the Chamber referred, on the one hand, to
art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed on 14 September 2006 and the claim was
lodged at FIFA on 14 November 2006. In view of the aforementioned, the Chamber
concluded that the FIFA Regulations for the Status and Transfer of Players entered
into force on 1 July 2005 (hereinafter: the Regulations) are applicable to the case at
hand as to the substance.
5.
In continuation, and entering into the substance of the matter, the members of the
Chamber started by acknowledging the above-mentioned facts and all further
documentation contained in the file. In particular, they took note that on 14
September 2006, an employment contract was concluded between the parties for
the period until the end of the season 2006/2007 and that the Respondent had
unilaterally terminated the employment contract with the Claimant by written
notice on 21 September 2006, i.e. before the ordinary expiry of the employment
contract. Furthermore, the Chamber acknowledged that the parties had agreed,
inter alia, on an advance payment (rather to be qualified as a signing-on fee) of
USD 190,000 and a monthly salary of USD 6,000.
6.
Furthermore, the members of the DRC took note that the Claimant considers that
the Respondent terminated the employment contract without just cause and that
therefore, the Claimant demands payment of outstanding salaries in the amount of
USD 57,000 as well as compensation in the amount of EUR 71,000 for the claimed
breach of contract allegedly committed by the Respondent.
7.
On the other hand, the Chamber acknowledged that the Respondent rejects the
claim of the Claimant asserting to have had a valid reason for the premature
termination of the employment contract due to the Claimant’s hepatitis B infection
and due to the national laws of the BB according to which foreigners tested with
hepatitis B were not entitled to obtain a residence permit.
8.
The Chamber stated that, in view of these contradictory positions, it first had to
analyse whether or not the Respondent had terminated the contract with just
cause, and then to determine whether a party is accountable for outstanding
payments and/or compensation.
9.
Subsequently, the members of the DRC turned their attention to the argument of
the Respondent that it had terminated the employment contract on the basis of
the outcome of the medical examination carried out on 19 September 2006 which
showed that the Claimant suffered from a hepatitis B infection.
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Player A, AA / B, BB
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10.
In this context, the members of the Chamber referred to art. 18 par. 4 of the
Regulations which stipulates that “the validity of a contract [between a
professional player and a club] may not be made subject to a positive medical
examination and/or the granting of a work permit”.
11.
The Chamber recalled the sequence of the facts in the present matter: On 14
September 2006, the parties concluded the employment contract and subsequently,
the Claimant participated in trainings sessions and in a few matches with the
Respondent. Eventually, on 19 September 2006, the medical test was carried out
with the Claimant.
12.
The members of the Chamber noted that it was uncontested that the medical
examination had been carried out after the parties had signed the relevant
employment contract. The relevant contract’s validity had not been made subject
to any condition. Equally, the aforementioned article would in any case not have
allowed for the said contract to be made subject to a positive medical examination.
In other words, art. 18 par. 4 of the Regulations implies that medical examinations
shall be made by the potential new club prior to the concluding of the employment
contract. A club carrying out the pertinent tests only after having signed the
employment contract does so at its own risk. The result of the medical examination
can in any case not have an effect on the validity of the contract. The members
added that the obligation imposed on the clubs to conduct the medical
examinations of players prior to the signing of the employment contract was of
mandatory nature which could neither be contractually amended nor circumvented
in any other way. As a result, the DRC concluded that the employment contract in
question had been validly concluded.
13.
In view of the aforementioned, the Chamber equally stated that the unilateral
termination of the employment contract by the Respondent on 21 September 2006
constitutes a breach of contract without just cause. In this respect, and for the sake
of good order, the DRC deemed it appropriate to state that the alleged unjustified
absence of the player from trainings between 10 and 12 October 2006, also
invoked by the Respondent to justify the termination of the contract is irrelevant as
it occurred after the club’s written notice on 21 September 2006.
14.
However, the Chamber drew its attention to the argument of the Respondent that
the national laws of the BB stipulate that no foreigner infected with hepatitis B can
obtain a residence permit. The Chamber mentioned that even though the said
alleged national law did by no means constitute a valid reason for the unilateral
termination of the employment contract, attenuating circumstances should be
applied.
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Player A, AA / B, BB
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15.
In continuation, the Chamber recalled that according to the employment contract,
the Claimant was entitled to receive an advance payment, or better a signing-on
fee of USD 190,000 and a monthly salary of USD 6,000.
16.
In this respect, the Chamber stated that until the date of termination of the
employment contract, the salary due to the Claimant amounts to USD 6,000 (for
the first month of work) and the signing-on fee due to the Claimant pro rata
temporis equals to USD 19,000. The Chamber then acknowledged the undisputed
fact that the Claimant had already received USD 3,000 from the Respondent as
partial salary payment. As a result, the Chamber ascertained that the total amount
of USD 22,000 is due to the Claimant by the Respondent in terms of outstanding
salaries and proportion of the signing-on fee.
17.
Having established that the Respondent has committed a breach of contract
without just cause, the Chamber concluded that, apart from outstanding salaries,
the Respondent is liable to pay compensation for breach of contract to the
Claimant, in accordance with art. 17 par. 1 of the Regulations.
18.
With respect to the determination of the amount of compensation, the Chamber
stated that in application of art. 17 par. 1 of the Regulations, the particularities of
the specific case had to be taken into consideration such as, inter alia, the fact that
the employment contract had been concluded by the parties for a period of one
sporting season. Furthermore, and referring to the non-exhaustive enumeration of
objective criteria to be taken into account when calculating compensation for
breach of contract mentioned in art. 17 par. 1 of the Regulations, the members of
the DRC acknowledged that the time remaining on the contract concluded
between the parties was of 9 months. Equally, it was considered that, in terms of
salaries the amount of USD 54,000 would have been due to the player until the
ordinary termination of the contract, and, again on a pro rata basis USD 171,000 as
signing-on fee. This in consideration of the fact that the relevant cheques could not
be cashed by the player. Moreover, the Chamber also took into account the fact
that the player had not signed any new contract prior to the originally agreed
termination date of the contract that was breached.
19.
In continuation, the DRC pointed out that art. 17 par. 1 of the Regulations also
grants a certain degree of discretion to the deciding body when calculating the
relevant compensation. The Chamber recalled that it regularly makes use of this
margin of action, in particular also in order to reflect the specificity of sport,
another element contained in art. 17 par. 1 of the Regulations. In this respect, and
referring to the specificities of the case at hand, the members of the Chamber
recalled that, as elaborated above, attenuating circumstances apply to present
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Player A, AA / B, BB
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matter which must result in a mitigating effect on the compensation due by the
Respondent.
20.
Moreover, given that it was uncontested that the Claimant had already received
the amount of USD 85,000 as part of the advance payment from the Respondent,
the Chamber stated that this amount has to be deducted from the amount of
compensation payable by the Respondent.
21.
In view of all the above-mentioned elements, the Chamber decided that after the
deduction of the amount of USD 85,000, the Claimant is entitled to receive a lump
sum of USD 15,000 from the Respondent as compensation for breach of contract
without just cause.
22.
The DRC also referred to the Claimant’s initial claim for payment of a flight ticket
in accordance with the contract. Yet, it is not contested that after FIFA’s
intervention, the Respondent not only handed out the player’s passport but
provided the player also with a flight ticket to France. Therefore, that part of the
claim was rejected.
23.
Finally, and for the sake of good order, the members of the Chamber referred to
the four cheques in the total amount of USD 105,000 which the Claimant had
received from the Respondent but which he could not cash.
24.
In this respect, the Chamber emphasised that the Claimant is requested to return
the relevant cheques to the Respondent and, on the other hand, it is the
responsibility of the Respondent to take the necessary measures to avoid the
encashment of the said cheques.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the AAn player A is partially accepted.
2.
The Respondent, B, has to pay the total amount of USD 37,000 to the player A,
within 30 days following the date of the communication of the present decision.
3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the relevant
time-frame and the present matter shall be submitted to FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
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Player A, AA / B, BB
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4.
Any further claims submitted by the Claimant are rejected.
5.
The Claimant is directed to inform the Respondent directly and immediately of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
6.
According to art. 63 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
Enclosed: CAS directives
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Player A, AA / B, BB
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