Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 December 2013,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Theodoros Giannikos (Greece), member
Todd Durbin (USA), member
on the claim presented by the player,
Player C, from country U
as “Claimant”
against the club,
Club D, from country O
as “Respondent”
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 21 May 2008, Player C, from country U (hereinafter: player or Claimant) and Club D,
from country O (hereinafter: club or Respondent), signed an employment contract
(hereinafter: the contract) valid from 20 June 2008 until the end of the sport season
2008-2009, according to which the Respondent shall pay the Claimant a monthly salary
of USD 3,000 as well as a signing on fee amounting to USD 10,000.
2.
In this respect, art. 14 of the contract specified that “in the event of failure to pass the
player of the medical examinations and tests that are functional in the contract and the
ability -/10000 received ten thousand U.S. dollars”. Furthermore, art. 9 of the contract
stated that “Given the failure to pass the player of the item number (14) special
medical examinations upon the parties agreed that in case the player before the end of
January 2009 it re-submitted the contract fully in the case of player injuries after a
month in January to re-half of the decade”.
3.
Equally, the contract provided for the Claimant to be able to prematurely terminate
the contract by informing the Respondent accordingly three months in advance, in
which case it would have to bear the costs of its flight back home (cf. art. 9 of the
contract). In addition, the Claimant would have to “pay the full knots” (cf. art. 12 of
the contract).
4.
Finally, the contract specified that “if the party finished second service without warning
to observe a period stipulated in item (9) of this contract [cf. par. 3 above] party is
entitled to the first fine amount of $ (9000) nine thousand dollars only.”
5.
On 31 August 2008, the Respondent terminated its contractual relationship with the
Claimant referring to art. 14 of the contract (cf. par. 2 above). In addition, the
Respondent informed the Claimant that it could collect its “balance dues” at its finance
office.
6.
On 8 April 2009, the Claimant lodged a claim with FIFA against the Respondent
requesting from the latter the payment of USD 46,000 as compensation for breach of
contract, corresponding to its salary during 12 months, plus USD 10,000, as signing on
fee. Furthermore, the Claimant requested the payment of an addition unspecific
amount of compensation.
7.
In this respect, the Claimant contested the validity of art. 14 of the contract arguing
that it violated the provision included in art. 18 par. 4. of the Regulations on the Status
and Transfer of Players which inter alia stipulates that the validity of a contract may not
be made subject to a successful medical examination. Hence, the Claimant deemed that
the contract had been terminated without just cause.
Player C, from country U / Club D, from country O
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8.
Finally, the Claimant alleged having had to pay to the Respondent USD 5,000 in order
for his ITC to be issued in favour of its new club.
9.
In its response on 6 July 2010, the Respondent rejected the Claimant’s claim arguing
that the latter had failed to pass the medical and fitness examination. In addition, the
Respondent alleged that the amount of USD 10,000 had already been paid to the
Claimant as signing on fee and that the latter had to reimburse such amount as per art.
14 of the contract. As to that and considering that the Claimant had apparently so far
only reimbursed USD 5,000, the Respondent requested FIFA to intervene “in this matter
to procure the remaining fund from the player”. In this respect and as proof of its
allegations, the Respondent provided FIFA with a document dated 31 August 2008,
allegedly signed by the Claimant, by means of which the latter confirmed having
received “all my receivables finance in addition to ticket Club D (..). I claim is not
entitled to any payments or succession where my services ended with the club in 31
August 2008. As I testified after the claim only after the transition of international
payment and the ability - /10000 $ (..) for Club D, which received a provider contract”.
10.
In spite of having been asked to do so, the Claimant did not provide FIFA with its
position on the Respondent’s response, although it was informed that, in absence of a
reply a decision would be taken on the basis of the information and evidence at
disposal.
11.
Nevertheless, on 21 November 2013, asked about its labour situation during the period
between 31 August 2008 and 31 August 2009, the Claimant informed FIFA that it had
signed an employment contract with Club G, from country P, which was valid from 19
February 2009 until the end of the season 2009, and provided for it to receive a
monthly salary of USD 400 as well as a signing on fee in the amount of USD 5,915 to be
paid in 6 instalments of USD 985.83 each on the following dates: 28 February 2009; 30
April 2009; 30 June 2009; 30 August 2009; 31 October 2009 and 15 December 2009. In
total, the Claimant argued to have received until 31 August 2009, the amount of USD
2,550, corresponding to its salary during 6 months and 11 days, and a bonus of USD
3,940, corresponding to 4 instalments of USD 985 each.
*****
Player C, from country U / Club D, from country O
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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 8 April 2009.
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. art. 21 par. 2 and 3 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 conjunction with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an
country U player and an country O 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
par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2012,
2010, 2009 and 2008), and considering that the present claim was lodged on 8 April
2009, the 2008 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 and started by
acknowledging the facts of the case, as well as the documentation contained in the
file. In this respect, the Chamber recalled that the parties had signed an employment
contract valid as from 20 June 2008 until the end of the sport season 2008-2009, in
accordance with which the Claimant was entitled to receive, a monthly salary of USD
3,000 and a signing on fee amounting to USD 10,000.
5.
Subsequently, the members of the Chamber turned its attention to the claim of the
Claimant, who argued that the Respondent had breached the employment contract,
and claimed the payment of USD 46,000 as compensation for breach of contract, as
well as the payment of the amount of USD 10,000, as a signing on fee and the payment
of an unspecific amount of compensation.
6.
In continuation, the Chamber observed that, for its part, the Respondent rejected the
claim of the Claimant. In particular, the Chamber took due note that during the
procedure the Respondent provided FIFA with a waiver dated 31 August 2008, signed
by the player, by means of which the player acknowledged that he has received all his
outstanding remuneration and the club has no further obligations.
Player C, from country U / Club D, from country O
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7.
In this respect, the Chamber took note that the Claimant failed to present any
comments on the position of the Respondent, in spite of having been invited to do so.
8.
In this regard, the members of the Chamber referring to art. 12 par. 3 of the Procedural
Rules, in accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof, the Chamber considered that the Claimant
renounced to its right to defence and, thus, it had to be assume that it had accepted
the legitimacy of the above-mentioned document. As a consequence of the
aforementioned consideration, the Chamber concurred that in accordance with art. 9
par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents
already on file.
9.
In the light of all of the above, and in particular bearing in mind the fact that the
Claimant signed the aforementioned waiver, the Dispute Resolution Chamber decided
to reject the claim put forward by the Claimant.
10.
The members of the Chamber then turned its attention to the counterclaim lodged by
the Respondent against the Claimant, who maintains that the latter is to be held liable
to reimburse the amount of USD 10,000 which was paid by the Respondent as a signing
on fee to the Claimant.
11.
In this context, the members of the Chamber recalled once again the basic principle of
burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to
which a party claiming a right on the basis of an alleged fact shall carry the respective
burden of proof.
12.
According to this, the members of the Chamber noted that the Respondent did not
substantiate its allegations, as it did not present any evidence in respect of the
allegedly payment of USD 10,000.
13.
As a result, and based on the documents at its disposal the Chamber decided to reject
the counterclaim of the Respondent against the Claimant.
*****
Player C, from country U / Club D, from country O
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III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player C, is rejected.
2. The counterclaim of the Respondent, Club D, 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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player C, from country U / Club D, from country O
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