Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 18 December 2012,
by Mr Philippe Diallo (France), DRC judge,
on the claim presented by the player
Player W, from country S
as Claimant/Counter-Respondent
against the club
Club L, from country C
as Respondent/Counter-Claimant
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 20 January 2010, Player W, from country S (hereafter: the Claimant/CounterRespondent), and Club L, from country C (hereinafter: the Respondent/CounterClaimant), concluded an employment contract (hereinafter: the contract) and a
supplementary agreement (hereinafter: the agreement) valid as from 20 January
2010 until 31 May 2010.
2. According to the contract, the Claimant/Counter-Respondent was entitled to
receive for his services, inter alia, EUR 5,000 as a signing fee, the amount of EUR
20,000, payable in four equal monthly instalments of EUR 5,000, starting on 31
January 2010, as well as EUR 400 a month to pay for the rent. Moreover, the
Respondent/Counter-Claimant was to provide the Claimant/Counter-Respondent
and his family with one return plane ticket from country C to either country R or
country S; and also undertook to cover all medical expenses resulting from the
injuries sustained by the Claimant/Counter-Respondent during the time that he
was employed by the Respondent/Counter-Claimant.
3. In addition, according to the agreement, the Claimant/Counter-Respondent was
entitled to receive for his services the amount of EUR 40,000, payable in four
equal monthly instalments of EUR 10,000, starting on 31 January 2010.
4. On 7 July 2010, the Claimant/Counter-Respondent lodged a petition before FIFA
against the Respondent/Counter-Claimant claiming outstanding remuneration in
the total amount of EUR 44,500, made up of a proportion of the salary
instalment of March (ie EUR 13,300), the full salaries for April and May 2010, and
rent for the months of March, April and May 2010. Furthermore, the
Claimant/Counter-Respondent requested to be reimbursed the following
amounts: i) EUR 2,800 for the medical expenses related to his operation, in
support of which the Claimant/Counter-Respondent submitted the relevant
invoices; ii) EUR 400 for one flight ticket to travel to country B for medical
treatment; and iii) EUR 1,500 for one flight ticket to country S. Finally, the
Claimant/Counter-Respondent requested EUR 1,700 for the legal costs incurred as
a result of the proceedings before the Dispute Resolution Chamber.
5. In this respect, the Claimant/Counter-Respondent stated that
Respondent/Counter-Claimant refused to pay the abovementioned sums.
the
6. In its position, submitted on 8 October 2010, the Respondent/Counter-Claimant
stated that it put an end to its contractual relationship with the
Claimant/Counter-Respondent’s on 19 April 2010 on the basis of “the illegal
behaviour” of the latter, in accordance with the internal regulations of the
Respondent/Counter-Claimant. Further, the Respondent/Counter-Claimant
asserted that on 20 April 2010 it had sent a letter to the Claimant/CounterPlayer W, from country S / Club L, from country C
2
Respondent by means of which it informed the latter of its decision to terminate
their
contractual
relationship.
In
particular,
according
to
the
Respondent/Counter-Claimant’s letter, the Claimant/Counter-Respondent had
rejected to train with the Respondent/Counter-Claimant due to an injury, despite
the opposing view of the Respondent/Counter-Claimant’s team doctor, who also
asked the player to subject himself to a new operation. Therefore, according to
the Respondent/Counter-Claimant, it had legally terminated the contractual
relationship between the parties.
7. Moreover, the Respondent/Counter-Claimant claimed that the Claimant/CounterRespondent’s salary instalments were set at EUR 12,000 only instead of EUR
15,000 and stressed that it had already paid EUR 36,700 to the player. Further,
the Respondent/Counter-Claimant argued that no other sums were outstanding
because the contractual relationship between the parties had been legally
terminated on 20 April 2010. As to the salary instalment due in March 2010, the
Respondent/Counter-Claimant asserted that it had paid EUR 1,700 and argued
that the remaining amount corresponding to the March 2010 salary instalment
had been deducted in order to settle a fine imposed on the Claimant/CounterRespondent. Equally, the Respondent/Counter-Claimant stated that, in its view,
the reimbursement of medical expenses may not be claimed since the
Respondent/Counter-Claimant never refused to offer the Claimant/CounterRespondent any kind of treatment or operation.
8. In addition to his reply to the Claimant/Counter-Respondent’s claim, the
Respondent/Counter-Claimant lodged a counterclaim stating that it suffered
damages equivalent to the sums paid to the Claimant/Counter-Respondent, ie
EUR 36,700, resulting from the illegal behaviour of the player.
9. In his reply, following the counterclaim lodged by the Respondent/CounterClaimant, the Claimant/Counter-Respondent stated that he believed that the
termination of the contractual relationship was not legal because the
Respondent/Counter-Claimant had acted against the fundamental human rights
of the Claimant/Counter-Respondent to defend himself and have a fair trial, as
the Claimant/Counter-Respondent was never heard. Moreover, the
Claimant/Counter-Respondent stressed that on the basis of the contract and the
agreement his monthly salary was EUR 15,000 and rejected the
Respondent/Counter-Claimant’s assertion that it had paid the amount of EUR
36,700.
10. Furthermore, the Claimant/Counter-Respondent indicated that the operation
carried out by the club’s doctor was a failure, therefore, the Claimant/CounterRespondent went to another doctor of his choice. In this respect, the
Player W, from country S / Club L, from country C
3
Claimant/Counter-Respondent stressed that the contract states that the
Respondent/Counter-Claimant had to cover all medical expenses. Finally, the
Claimant/Counter-Respondent asserted that he had never signed the internal
regulations of the Respondent/Counter-Claimant.
11. In turn, the Respondent/Counter-Claimant reiterated its previous arguments and
stated that the claim of EUR 49,200 does not correspond to the real facts. In
support of its statement, the Respondent/Counter-Claimant submitted a letter
sent, on 28 May 2010, by the legal representative of the Claimant/CounterRespondent by means of which the Respondent/Counter-Claimant was requested
to pay the Claimant/Counter-Respondent’s outstanding salaries amounting to
EUR 35,000. Also, the Respondent/Counter-Claimant submitted 3 cheques dated
20 January 2010, 30 January 2010, and 25 February 2010, corresponding to the
amounts of EUR 5,000, EUR 15,000, and EUR 15,000, respectively. Finally, the
Respondent/Counter-Claimant submitted a written statement made by its team
doctor according to which he had operated the Claimant/Counter-Respondent on
19 February 2010; following which, the Claimant/Counter-Respondent had been
recovering for eight weeks and did not train. As part of the ensuing follow-up
the doctor asserted that he had seen the Claimant/Counter-Respondent four
times after the operation and that he was ok to resume his footballing activities.
Equally, the Respondent/Counter-Claimant asserted that it had paid the player
EUR 1,800 in cash on 31 March 2010.
12. In his duplica, the Claimant/Counter-Respondent reiterated his position but
amended his original claim as regards the requested monies. The
Claimant/Counter-Respondent no longer claimed the salary instalment of May
2010 and thus reduced his overall claim to EUR 34,200.
II. Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: the
DRC judge) analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was submitted
to FIFA on 7 July 2010. Therefore, the DRC judge concluded that the 2008
edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and
3 of the Procedural Rules).
Player W, from country S / Club L, from country C
4
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 and in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012), the DRC judge is competent to decide on the present
litigation, concerning an employment-related dispute of an international
dimension between a country S player and a country C club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on
the Status and Transfer of Players (edition 2012), the DRC judge confirmed that
he may adjudicate in the present dispute, which value does not exceed currency
of country H 100,000.
4.
In continuation, the DRC judge analysed which edition of the regulations should
be applicable as to the substance of the matter. In this respect, he confirmed
that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2010 and 2012) and also considering that the
present claim was lodged in front of FIFA on 7 July 2010, the 2010 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
5.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. He started
by acknowledging that the parties to the dispute had signed an employment
contract as well as a supplementary agreement valid as from 20 January 2010
until 31 May 2010.
6.
Equally, the DRC judge observed that the contract and agreement concluded
between the parties clearly stipulated that the parties had agreed a total
remuneration of EUR 67,000, made up of: a EUR 5,000 signing fee; four equal
monthly instalments of EUR 15,000; and EUR 400 a month, from January to May
2010, to pay for the Claimant/Counter-Respondent’s rent. In addition, the DRC
judge acknowledged that the Claimant/Counter-Respondent was entitled to one
return plane ticket from country C to either country R or country S for the
Claimant/Counter-Respondent and his family.
7.
In continuation, the DRC judge noted that the Claimant/Counter-Respondent
lodged a claim against the Respondent/Counter-Claimant requesting the
payment of the amount of EUR 44,500, corresponding to unpaid salary
instalments, namely the remaining portion of the instalment due in March 2010,
and the instalments of April and May of the same year, as well as the rent for
the months of March, April and May 2010. Furthermore, the DRC judge took
note that the Claimant/Counter-Respondent also requested the reimbursement
Player W, from country S / Club L, from country C
5
of the following amounts: EUR 2,800 for the medical expenses related to the his
operation; EUR 400 for one flight ticket to fly to country B for medical
treatment; and EUR 1,500 for one flight ticket to country S. Finally, the
Claimant/Counter-Respondent requested EUR 1,700 as compensation for the
legal costs incurred in relation with the present matter.
8.
In addition, the DRC judge observed that the Claimant/Counter-Respondent
had, later on, amended his claim to EUR 34,200.
9.
Having said this, the DRC judge turned his attention to the arguments of the
Respondent/Counter-Claimant and took note of the Respondent/CounterClaimant’s termination notice dated 20 April 2010 allegedly addressed to the
Claimant/Counter-Respondent, by means of which the Respondent/CounterClaimant informed the Claimant/Counter-Respondent in writing that it
considered the employment contract to have been unilaterally terminated at
the Claimant/Counter-Respondent’s fault and imposed on the Claimant/CounterRespondent a sanction consisting of one month without payment.
10. The DRC judge noted that according to the Respondent/Counter-Claimant, who
fully rejects the claim put forward by the Claimant/Counter-Respondent, the
instalments to be paid to the Claimant/Counter-Respondent were set at EUR
12,000 instead of EUR 15,000; and the remaining portion of the instalment due
in March 2010 had been deducted in order to settle a fine imposed on the
Claimant/Counter-Respondent. Also, the DRC judge observed that the
Respondent/Counter-Claimant claimed that it had paid the Claimant/CounterRespondent EUR 36,700. Further, the DRC judge noted that, in any event,
according to the Respondent/Counter-Claimant, there were no sums
outstanding since, in its view, the contractual relationship between the parties
had been legally terminated. Equally, the DRC judge took note that the
Respondent/Counter-Claimant objected to the reimbursement of the medical
expenses on the basis that it offered the Claimant/Counter-Respondent both the
necessary treatment and the possibility of undergoing surgery.
11. In this respect, the DRC judge firstly recalled that according to the legal
principle of the burden of proof, any party claiming a right on the basis of an
alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural
Rules).
12. In view of the above, the DRC judge concluded that the Respondent/CounterClaimant shall carry the burden of proof that the parties had in any manner
amended the remuneration set out in the contract and the agreement, since
these documents clearly provided for four aggregated instalments amounting
to EUR 15,000 each. In view of the foregoing, and in the absence of any
Player W, from country S / Club L, from country C
6
evidence to the contrary, the DRC judge concluded that the parties had in fact
agreed upon a monthly salary of EUR 15,000.
13. Furthermore, the DRC judge assessed the Respondent/Counter-Claimant’s
unilateral termination of the contractual relationship between the parties. In so
doing, whereas the DRC judge acknowledged that despite the principle of
respect of contract, both a player and a club may terminate a contract with just
cause, he also stated that the unilateral termination should only be used as a
last measure after less severe alternatives have failed to assure the, in this
specific matter, employee’s fulfillment of his contractual obligations. Hence, a
premature termination of an employment contract can always only be used as
ultima ratio. Further, the DRC judge recalled that whether just cause exists shall
be established in accordance with the merits of each particular case.
14. On account of the aforementioned considerations, the DRC judge concluded
that the behaviour of the Claimant/Counter-Respondent to the extent proven
by the Respondent/Counter-Claimant could not justify the termination of the
contractual relationship for just cause.
15. Thereafter, the DRC judge also acknowledged that it was undisputed between
the parties that the Respondent/Counter-Claimant had paid the
Claimant/Counter-Respondent EUR 1,700 as part of the instalment due in March
2010. However, the DRC judge note that the Respondent/Counter-Claimant was
not able to corroborate that a fine had indeed been imposed on the
Claimant/Counter-Respondent as a consequence of which the remaining
proportion of the March 2010 instalment had been deducted. In particular, the
DRC judge established that the Respondent/Counter-Claimant did not present
any documentary evidence in order to prove that a sanction equivalent to the
remaining proportion of the March 2010 instalment had been imposed on the
Claimant/Counter-Respondent nor had it provided the documentary evidence
on the basis of which such fine was imposed.
16. In addition, the DRC judge acknowledged the evidence that corroborated that
the Respondent/Counter-Claimant had paid by cheque to the Claimant/CounterRespondent the amounts of EUR 5,000, EUR 15,000, and EUR 15,000,
respectively, on 20 January 2010, 30 January 2010, and 25 February 2010.
Notwithstanding this, the DRC judge ascertained that such payments
corresponded, respectively, to the signing bonus and the salary instalments due
in January and February 2010, that were not requested by the
Claimant/Counter-Respondent in his claim.
17. On account of the aforementioned considerations, the DRC judge concluded
that it could be established that the Respondent/Counter-Claimant failed to
remit the Claimant/Counter-Respondent: i) a proportion of the salary
Player W, from country S / Club L, from country C
7
instalments of March 2010, amounting to EUR 13,300, and the full salary
instalment of April 2010 amounting to EUR 15,000; and ii) EUR 1,200 as
outstanding rent for the months of March, April and May 2010. Equally, the
DRC judge concluded that the Claimant/Counter-Respondent was entitled to be
reimbursed the price of a one-way plane ticket country C – country S, the price
of which was set at EUR 1,150 by FIFA Travel.
18. Furthermore, as to the Claimant/Counter-Respondent’s request for
reimbursement of medical expenses and the plane ticket to country B, the DRC
judge acknowledged that the Claimant/Counter-Respondent had not presented
any evidence that the Respondent/Counter-Claimant had agreed to finance the
treatment to be provided to the Claimant/Counter-Respondent in country B. In
absence of such documentary evidence, the DRC judge decided to reject this
part of the Claimant/Counter-Respondent’s claim.
19. Furthermore, the DRC judge decided that the Claimant/Counter-Respondent’s
claim for legal costs is rejected in accordance with art. 18 par. 4 of the
Procedural Rules.
20. Taking into account all the above, the DRC judge decided to partially accept the
Claimant/Counter-Respondent’s
claim
and
that
therefore
the
Respondent/Counter-Claimant is liable to pay the Claimant/Counter-Respondent
the total amount of EUR 30,650.
21. Finally, the DRC judge noted that the Respondent/Counter-Claimant requested
the reimbursement of an amount which it alleged to have already paid to the
Claimant/counter-Respondent as salary. Considering that such amount was
allegedly already paid by the Respondent/Counter-Claimant to the
Claimant/Counter-Respondent as salary for the services already rendered by the
latter to the former prior to the actual termination of the contract by the
Respondent/Counter-Claimant, the DRC judge saw no pertinent reason to grant
such request. Therefore, the DRC judge rejected the counterclaim lodged by the
Respondent/Counter-Claimant.
*****
Player W, from country S / Club L, from country C
8
III.
Decision of the DRC judge
1.
The claim of the Claimant/Counter-Respondent, Player W, is partially accepted.
2.
The counter-claim of the Respondent/Counter-Claimant, Club L, is rejected.
3.
The Respondent/Counter-Claimant, Club L, has to pay to the Claimant/CounterRespondent, within 30 days as from the date of notification of this decision,
the amount of EUR 30,650.
4.
In the event that the amount due to the Claimant/Counter-Respondent in
accordance with the above-mentioned number 3 is not paid by the
Respondent/Counter-Claimant within the stated time limit, interest at the rate
of 5% p.a. will fall due as of expiry of the aforementioned time limit and the
present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
6.
The
Claimant/Counter-Respondent
is
directed
to
inform
the
Respondent/Counter-Claimant immediately and directly of the account number
to which the remittance is to be made and to notify the DRC judge of every
payment received.
*****
Player W, from country S / Club L, from country C
9
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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player W, from country S / Club L, from country C
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