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 Majavu (South Africa), Member
Michele Colucci (Italy), Member
Rinaldo Martorelli (Xx), Member
on the claim presented by the player
X, Xx,
as “Claimant”
against the club,
Y, Yy,
as “Respondent”
regarding a contractual dispute arisen between the parties involved.
I.
Facts of the case
1.
On 4 December 2003, the Xxian player X and the Yyese club, Y, signed a one-year
employment contract, valid until 15 December 2004.
2.
A copy of the said employment contract was remitted to the Dispute Resolution
Chamber.
3.
According to an appendix to the contract bearing the same date, the player's
remuneration would be of total USD 90,000 (50% payable seven days after having
received the player's International Transfer Certificate and the other half (50%) as
monthly salary payments of equal amounts as of 15 January 2004. Furthermore,
the player was entitled to match bonuses, return air tickets for his wife and two
children as well as accommodation and transport. In the event of incapacity or
illness, art. 8 of the employment contract established that medical expenses
incurred in the territory of Yy would be payable by the club. If, following medical
treatment, the player were to be outside Yy, travel expenses would be payable by
the club and medical expenses by the player's insurance company.
4.
By means of his claim dated 10 January 2006 and received on 31 January 2006 via
the Xxian Football Federation, the player X stated that the club had not respected
its contractual obligations. The player explained that during a training session
with the Y team in mid-February 2004, he injured his ankle and knee. In support
of his submission, the player remitted copies of medical reports dated 22 February,
12 March and 10 August 2004 to the file. The club advised him to receive
treatment in Xx and supplied him with an airline ticket valid from 24 February
2004 to 24 May 2004. A copy of the said airline ticket was remitted to the file. At
the time of his departure, the player asserts that he had only received USD 12,000
rather than the USD 45,000 agreed (50%). Once in Xx, he discovered that the
injury was more serious than first thought. As a result, his treatment in Xx lasted
for a longer period of time and he had to undergo an operation on 3 September
2004. A respective hospital confirmation was remitted to the file. He was
completely recovered by mid-November 2004, one month before the end of his
contract.
5.
The player declared that he remained in contact with the club during his
treatment and informed them of any developments. According to the player, the
club had advised him to complete the treatment in Xx in order to ensure his full
recovery. There were no further communication by the club and it did not pay his
remuneration, except for the initial sum of USD 12,000, leaving the player and his
family in a precarious financial situation. In this respect, the player presented a
Player X, Xx / Club Y, Yy
2
letter dated 8 August 2004, as well as three other undated letters allegedly sent to
the president of the club to claim payment of his salary.
6.
The player thus claimed payment of remuneration until the end of the contract,
namely USD 78,000 plus 5% interest, the bonuses paid to other players during
2004 plus 5% interest, reimbursement of medical expenses of USD 1,900 plus 5%
interest, compensation of USD 45,000 plus 5% interest for the loss of support and
financial damages.
7.
On 25 June 2006, Y rejected the player’s claim. It explained that the player had
been registered as an amateur on 11 January 2004 because the Yyese Football
Association had refused his registration as a professional player because the club
had already registered three foreign professional players. The club presented
documents in ….but has not provided any translation despite a request by FIFA to
do so. The club considers that, as the player was never registered as a professional,
the Dispute Resolution Chamber is not competent but that this is a matter to be
dealt with by the Yyese Football Association.
8.
Even if the Chamber would consider the employment contract to be valid, the club
maintained that the Chamber is not competent for the following reasons: the
player did not follow the procedure described in art. 19 of the contract that sets
out several stages and appeals procedures in the event of a contractual dispute.
The player's letters were addressed to the club president rather than the general
director. Furthermore, the player had not proven that his letters were actually
sent. The player has thus not exhausted the relevant required appeal procedures.
9.
If the Chamber would consider itself competent to deal with the present matter,
the Yyese club rejected the player's claim because it had fulfilled its obligations to
the player. In this respect, the club returned to the player's declaration of 22 April
2004 in which he declared, as a witness concerning his transfer to the respondent
club, Y, that he accepted having received the sum of USD 60,000 and that the
difference of this amount from the total described by his contract would be paid
to intermediaries who assisted his transfer to the Y. In this way, the difference was
dependent on negotiations with Y. According to the Respondent club, this
document attests that the value of the employment contract is USD 60,000 (rather
than USD 90,000). As the player has already received USD 12,000, the remaining
remuneration due would be USD 48,000. However, the club contested the player's
right to this sum as he was in breach of the terms of the contract.
Player X, Xx / Club Y, Yy
3
10.
According to the club, the player only suffered a minor knee injury that could
have been treated in Yy. There is no medical report stating that the player had to
return to Xx for treatment. The club asserted that the player had asked to return
to Xx for 15 days and the club paid the airline ticket and two monthly salaries, i.e.
USD 9,000. According to the club, the player disappeared and did not return. All
attempts by the club to contact the player failed. The club received no medical
reports or requests for the stay of the player in Xx to be extended. The first
contact that the player claimed to have made is by letter on 8 August 2004, sent
nearly six months after his departure, solely to demand the president for money,
without providing a medical report. The club restated that the player has not
proven that he sent the letters to the club president.
11.
The club concluded that the player had not fulfilled his obligations and that it was
about to lodge a complaint against the player.
12.
On 26 September and 15 November 2006, FIFA requested the Yyese club, via the
Yyese Football Association, to present a translation of the ….. documents.
However, no translations have been received.
13.
Finally, on several occasions, FIFA offered the player the opportunity to state his
position regarding the response of Y of 25 June 2006. In a letter dated 25 May
2007, the player stated that he was awaiting the subsequent position by the Yyese
club in order to provide his position. At present, no comments regarding the
position of Y submitted on 25 June 2006 have been received from the player.
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 31 January
2006, as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable to the matter at hand.
Player X, Xx / Club Y, Yy
4
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 Regulations for the Status and
Transfer of Players (edition 2005). 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 a player from Xx and a Yyese club
regarding allegedly outstanding payments and compensation for breach of
contract 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
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 4 December 2003 and the claim was
lodged at FIFA on 31 January 2006. In view of the aforementioned, the Chamber
concluded that the FIFA Regulations for the Status and Transfer of Players (edition
2005, hereinafter; the Regulations) are applicable on the case at hand as to the
substance.
5.
In continuation, the members of the Chamber referred to the argument of the
Respondent by means of which the latter disputed the competence of the Dispute
Resolution Chamber to deal with this affair. According to the Respondent, the
player X could only be registered as an amateur with the Yyese Football
Federation since the latter had refused his registration as a Professional because Y
had already registered three foreign players for its team at that time.
6.
In this respect, the members deemed it important to emphasize that the mere
administrative act of the registration of a player with an Association does not have
any effect on the question of the status of a player. In fact, as long as the player
has signed an employment contract in writing with his employer and receives
remuneration in excess of the expenses incurred in return for his footballing
activity, he has to be considered as a professional. Moreover, the Chamber
clarified that the question whether a player has to be considered an amateur or a
professional must only be established pursuant to the applicable regulations, in
particular art. 2 par. 2 of the Regulations, which is binding at national level by
virtue of art. 1 par. 3a) of the Regulations. Consequently, in order to satisfy the
requirements to be considered a professional in accordance with art. 2 par. 2 of
the Regulations, a player shall, firstly, have a written employment contract with
Player X, Xx / Club Y, Yy
5
the club employing him based on which he, secondly, receives remuneration in
excess of the expenses effectively incurred in return for his footballing activity.
Both elements need to be cumulatively met.
7.
As a consequence, the members established that the Respondent’s objection to
the competence of FIFA to deal with the matter has to be rejected and that it can
consider the matter as to the substance.
8.
Entering into the substance of the matter, the members of the Chamber
acknowledged the documentation contained in the file, and in view of the
circumstances of the matter at stake, focused their considerations on the question
whether an unjustified breach of the employment contract signed between the
Claimant and the Respondent occurred and, in the affirmative, which party is
responsible for such breach of contract and to verify and decide concerning the
financial consequences of the possible unjustified breach of the employment
contract.
9.
In this regard, the members of the Chamber started by taking note that the player
X, the Claimant, and the Yyese club, Y, the Respondent, signed on 4 December
2003 an employment contract which was to be valid until 15 December 2004.
10.
Moreover, the members of the Chamber took note that in accordance with an
appendix to the contract, the Claimant was entitled to receive a total
remuneration of USD 90,000 whereas 50% of that amount should be paid within
seven days after the player’s International Transfer Certificate was received and
the other 50% would be payable in equal amounts as a monthly salary as of 15
January 2004.
11.
With regard to the remuneration due to the Claimant, the members of the
Chamber took note of the Respondent’s objection according to which the total
value of the contract was of USD 60,000 only and not USD 90,000. In this respect,
the Chamber observed that the Respondent, in order to support its allegations,
submitted a document entitled as “declaration” dated 22 April 2004 and bearing
the signature of the player. According to the terms of the said “declaration”, the
Claimant serves as a witness regarding his transfer to the Respondent and that, in
this transfer, he “accepted to receive the sum of sixty thousand American dollars
(USD 60,000) the difference of the total amount of the contract would be paid to
intermediates who helped to effect the transfer…”.
12.
After having carefully studied the relevant “declaration”, the Chamber came to
the unanimous conclusion that the Claimant by signing the aforementioned
Player X, Xx / Club Y, Yy
6
document in fact accepted that he is entitled to receive from the Respondent the
total amount of USD 60,000 under the terms of the contract and not the amount
of USD 90,000.
13.
Subsequently, the members noted the Claimant’s statement according to which he
got injured in mid-February 2004 during a training with the Respondent’s team
and that he was advised by the Respondent to receive treatment in Xx. According
to the Claimant, once in Xx, the injury was more serious than first thought for
which reason he had to undergo an operation on 3 September 2004. In particular,
the Claimant states that the Respondent had advised him to fully recover and
complete his treatment in Xx before coming back to the Respondent. In this
context, the Claimant maintains having kept the Respondent up-to date of his
situation at any time but the later failed to communicate and, except of the initial
payment of USD 12,000, stopped paying his remuneration. Therefore, the
Claimant requests payment of the total remuneration until the end of the agreed
duration of the contract, i.e. the amount of USD 78,000 plus interest as well as
compensation amounting to USD 45,000 plus interest and the reimbursement of
medical costs of USD 1,900 plus interest.
14.
On the other hand, the members of the Chamber noted the Respondent’s
objections towards the allegations of the Claimant, while maintaining that it
entirely fulfilled its obligations towards the Claimant. In addition to that, the
Respondent stressed that even thought the Claimant suffered only a minor injury
it had agreed that the Claimant would return to Xx for 15 days and it even paid
for the airline tickets and two monthly salaries. However, according to the
Respondent, the Claimant failed to return at all and all attempts to contact the
Claimant were unsuccessful.
15.
In this respect, the Chamber started by acknowledging that according to the flight
tickets remitted to the file, the Respondent was apparently aware of the Claimant’
absence for the period as from 24 February 2004 until 24 May 2004. In fact, it was
the Respondent that purchased the flight tickets and it was in particular indicated
on the said tickets that the Claimant’s departure was scheduled on 24 February
2004 and his return flight to be taken place on 24 May 2004.
16.
Taking into account the above, and based on the documentation in its possession,
the members of the Chamber established that the Respondent was well aware of
and did not object to the Claimant’s departure to his home country for medical
treatment. In particular, the Chamber was of the unanimous opinion that the
Claimant was authorized to be absent from the Respondent for this period of
time.
Player X, Xx / Club Y, Yy
7
17.
As regards the Claimant’s absenteeism from the Respondent after 24 May 2004,
the members took note of the Claimant’s statements according to which he
remained in contact with the Respondent and informed the latter of his current
state of health at any time. Yet, the Claimant did not provide any documentary
evidence to corroborate that he was authorized to be absent from the Respondent
after 24 May 2004. Moreover, as submitted by the Claimant, the first
correspondence he sent to the Respondent was on 8 August 2004, thus more than
two months after he should have returned to the Respondent.
18.
In view of the above, the Chamber emphasized that in accordance with the legal
principle of the burden of proof, which is a basic principle in every legal system, a
party deriving a right from an asserted fact has the obligation to prove the
relevant fact (cf. art. 12 par. 3 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (DRC)). Therefore,
due to the lack of proof with regard the Claimant’s allegations related to his
authorized absence after 24 May 2004 and bearing in mind its considerations in
connection with the flight ticket, the Dispute Resolution Chamber decided that
the Respondent has breached the employment contract he signed with the
Respondent without just cause by not returning to his employer, the Respondent,
on 24 May 2004.
19.
In continuation, as far as the Claimant’s financial claim is concerned, the Chamber
went on to emphasize that, as a general rule, it comes under the club’s obligations
to be responsible for its players in case of injury caused during a training by the
player for his club in fulfilment of his contractual obligations. This principle is
essential within the scope of the provisions related to the maintenance of
contractual stability between professionals and clubs as contained in art. 13 et seq.
of the Regulations. Any conclusion establishing the contrary would mean to
prejudice the weaker contracting party (the employee). As a result to this
principle, it is in particular the club’s obligation to continue to pay the salaries of a
player during the latter’s inability to work for an injury caused during the
fulfillment of his employment contract. The Chamber underlined that this
principle is somehow reflected in the contract signed by and between the
Claimant and the Respondent, which provides that the Claimant shall be entitled
to receive full medical and medicine cover.
20.
In this respect, the members reiterated that, as established above, the Claimant
got authorization from the Respondent to receive treatment in Xx until 24 May
Player X, Xx / Club Y, Yy
8
2004. As a result, the Chamber underlined that the Respondent is liable to cancel
all allegedly outstanding amounts contractually agreed upon by the parties for the
relevant period until the said end, i.e. end of May 2004.
21.
In this respect, the members stated that until 24 May 2004, the date when the
Claimant should have returned to the Respondent, half of the contractual agreed
duration have elapsed. Therefore, the Claimant was entitled to received the half
of the contractual agreed remuneration, which is USD 30,000 from the total of
USD 60,000. As the Claimant confirmed having received an amount of USD 12,000
this equates to a remaining outstanding amount of USD 18,000.
22.
In view of the above, the Chamber decided that the Respondent must pay to the
Claimant the amount of USD 18,000.
23.
Finally, the Chamber considered the Claimant’s claim related to the
reimbursement of costs incurred due to the treatment in Xx. In this respect, at
first, the members of the Chamber referred to the contents of the employment
contract, in particular its point 8, according to which it does not come under the
club’s obligation to pay for treatment of its player which is taking place outside
the territory of Yy. Moreover, the Chamber explained that the relevant treatments
took place after the Claimant committed a breach of contract. For these reasons,
the Chamber decided to reject this part of the claim.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, player X, is partially accepted.
2.
The Respondent, Y, has to pay the amount of USD 18,000 to the Claimant, player
X, within the next 30 days as from the date of notification of this decision.
3.
In the event that the due amount is not paid within the stated deadline, an
interest rate of 5% p.a. will apply as of expiring of the fixed time limit and the
present shall be submitted to FIFA’s Disciplinary Committee, so that the necessary
disciplinary sanctions may be imposed.
4.
The Claimant, player X, is directed to inform the Respondent, Y, immediately of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
Player X, Xx / Club Y, Yy
9
5.
According to art. 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision and
has to contain all elements in accordance with point 2 of the directives issued by
the CAS, copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
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
General Secretary
Encl: CAS directives
Player X, Xx / Club Y, Yy
10