Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 December 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Philippe Diallo (France), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
C,
as Claimant / Counter-Respondent
against the club,
H,
as Respondent / Counter-Claimant
regarding an employment-related contractual dispute
arisen between the parties.
I.
Facts of the case
1.
On 3 September 2007, the player C (hereinafter: the Claimant or CounterRespondent) and the club H (hereinafter: the Respondent or Counter-Claimant)
signed an employment contract valid until the 1st Saturday of June 2008.
2.
Under the terms of this contract, the Claimant was to receive the following payments
and benefits:
-
EUR 1,500 as net monthly salary;
EUR 45,000 as signing-on fee, 50% payable before signing the contract and 50%
due in the first week of January 2008;
accommodation;
a return flight ticket to A for the player and his family;
various bonuses.
3.
In addition, art. 6 of the employment contract stipulated that in the event of an
injury sustained during a match or training, the Claimant was to receive salary
payments as provided for in the contract. Art. 5 ii) also provided that in the event of
incapacity lasting more than seven days, the Claimant was to obtain a medical
certificate and submit it to the Respondent without delay.
4.
On 13 February 2008, the M Football Association (MFA), apparently acting on behalf
of the Respondent, informed FIFA that the player had left the club without prior
notice or authorisation. In this context, the MFA requested FIFA’s intervention to
protect the rights of the Respondent. Despite being asked to do so by FIFA, the
Respondent never specified the exact nature of its request.
5.
On 9 June 2008, the Claimant lodged a claim in front of FIFA against the Respondent
for breach of contract without just cause. The Claimant claimed the following
amounts as compensation for the alleged unilateral termination by the Respondent
of his employment contract:
-
EUR 12,000, corresponding to eight months’ salary, from November 2007 to June
2008 (8 x EUR 1,500);
EUR 22,500, corresponding to 50% of the signing-on fee, which had allegedly
not been paid although it had fallen due in the first week of January 2008;
EUR 2,760 in interest at the rate of 8% on the two above-mentioned amounts
(i.e. 8% on EUR 34,500);
EUR 2,100 for two A-A airline tickets;
EUR 93,000 for moral damages;
EUR 100,000 for personal and sporting damages.
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6.
The Claimant specified that on 12 October 2007 he had suffered an injury to the
cruciate ligaments of his left knee during a match. After having undergone a series
of medical examinations, on 2 November 2007, he signed a document entitled
“engagement” (in English: “undertaking”) with the Respondent, which mentions
that the Claimant was to undergo surgery and rehabilitation in I, and that this
decision to undergo medical treatment abroad was the Claimant’s “personal and
irrevocable” decision. Furthermore, the document in question specified that under
the employment contract signed by the parties, the Respondent undertakes to cover
medical costs. However, if medical treatment was undergone abroad, the Claimant
was to cover the costs himself by subscribing to a personal insurance. If the
rehabilitation sessions were carried out in M, the Respondent would cover their costs.
7.
In addition, the Claimant noted that from November 2007 onwards, the Respondent
had not paid him any salary, nor had it paid him the EUR 22,500 owed to him in
January 2008 under the employment contract as the outstanding 50% of the signingon fee, despite him sending various reminders. The Respondent had also allegedly
promised to help the Claimant financially by paying his rehabilitation costs, but had
apparently not provided financial support, as a result of which he had been obliged
to take out a loan to cover the costs of his recovery and return to fitness in order to
return to play.
8.
The Claimant also claims that on 28 March 2008, he had been declared fit to return
to high-level training by his I rehabilitation centre, and had therefore contacted the
Respondent, but had not received a reply from the latter to his e-mails and
telephone messages. After a number of weeks, the Respondent had allegedly told
him that it would not pay him his outstanding salary payments and did not wish him
to return to the team.
9.
In reply to the Claimant’s claim, the Respondent asserted that the Claimant had left
the club without notice, failing to fulfil his contractual obligations, which had caused
damages for the club. The Respondent therefore claimed EUR 150,000 in damages
caused by the Claimant’s alleged unauthorised departure.
10.
Furthermore, the Respondent alleges that the “undertaking” submitted by the
Claimant did not imply any undertaking by the Respondent, since it was a unilateral
undertaking that had not been signed by a representative of the Respondent. The
Respondent concludes that it provided additional proof that the Claimant had failed
to meet his contractual obligations.
11.
The Claimant responded to the Respondent’s arguments, insisting that the decision
to undergo medical treatment for his injury in I had been taken mutually with the
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Respondent. He further alleged that in November 2007, the Respondent bought
three airline tickets to I for himself and his family, immediately after he and the
president of the Respondent, O, had signed the “undertaking”. The Claimant thus
concluded that the “undertaking” constitutes proof that he did not leave the club
without the latter’s prior consent.
12.
Thus, the Claimant rejects the Respondent’s counterclaim entirely.
13.
In addition, the Claimant provided FIFA with copies of documents including medical
certificates issued in A on 12 and 25 October 2007, various documents concerning the
operation he underwent in I, dated 23, 24 and 25 November 2007, as well as a
certificate dated 19 March 2008 declaring him fit to resume training.
14.
In its final statement, the Respondent argued that, contrary to the Claimant’s
allegations, the “undertaking” had not been signed by the club’s president, as his
name was allegedly B and not O. Furthermore, the Respondent rejected the
Claimant’s assertion that his decision to undergo treatment in I had been agreed
mutually.
15.
The Respondent reiterated that the Claimant’s departure had caused significant
material and moral damages to the club and therefore maintained its counterclaim
for damages and interest and an additional amount of 200,000 for the value of the
contract signed for the transfer of another foreign player to the Respondent.
16.
On 23 July 2009, the Claimant reported that he had not signed a professional
employment contract with another club since the termination of his contract with
the club, and his International Transfer Certificate was still with the MFA. He had,
however, recently signed an “amateur contract” with the club AS F
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the
Chamber”) 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 9 June 2008.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2005; hereinafter: “the Procedural
Rules”) are applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the 2008
edition of the Procedural Rules in combination with art. 18 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 combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2009) 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 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
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2009),
and considering that the present claim was lodged on 9 June 2008, the 2008 edition
of the said regulations (hereinafter: “the 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 above-mentioned facts and documentation contained in the file
as well as carefully considering the arguments submitted by the parties involved in
the present dispute.
5.
In this regard, the Chamber duly established that the parties signed an employment
contract on 3 September 2007 valid until the 1st Saturday of June 2008. Furthermore,
the Chamber noted that the parties have diverging positions on whether the player
was authorised to leave the club at the beginning of November 2007. In this respect,
on the one hand, the Claimant states that following an injury sustained during a
match held on 12 October 2007, he travelled to I in order to seek treatment and to
undergo surgery. The Claimant further alleges that on 2 November 2007, the
Respondent and himself signed an “undertaking” which, according to the Claimant,
demonstrates that the Respondent was aware and had agreed to him carrying on his
treatment and surgery abroad. Subsequently, after his treatment in I was completed,
the Claimant allegedly sought to come back to the club and thus contacted the
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Respondent, but the latter did not respond to his demands and ultimately told him
that he was no longer expected to return to the club. The Claimant thus claims that
the Respondent breached the employment contract and deems that he is entitled to
his outstanding remuneration as from November 2007 until March 2008 as well as
the remaining value of the employment contract, plus an interest rate of 8% per year
over these amounts, as well as compensation for moral and sporting damages and
the reimbursement of his travel expenses, i.e. in total the amount of EUR 232,360.
6.
The Respondent, on the other hand, alleges that it had not authorized the Claimant
to leave the club at any point in time and that consequently the Claimant failed to
meet his contractual obligations. The Respondent also alleges that the signature
mentioned on the document named “undertaking” which was submitted by the
Claimant does not bear the signature of the President, Mr B and that this document
does not in any case bind the Respondent to any obligations towards the Claimant,
nor does it imply that the Respondent had agreed to release the Claimant from his
contractual duties. All the more, the Respondent is of the opinion that the
“undertaking” in a proof that the Claimant failed to meet his obligations towards it.
7.
The Respondent therefore submits that the Claimant’s absence caused a serious
damage to the club and thus claims as compensation for breach of contract the
amounts of EUR 150,000 as well as an additional amount of 200,000 which, according
to the Respondent, corresponds to the amount which it had to pay for the transfer of
a foreign player to the club in replacement of the Claimant.
8.
Having recalled the aforementioned, the Chamber deemed it fundamental to
underline that in view of the Claimant’s and the Respondent’s diverging positions, it
should, first and foremost, establish who is to be held liable for breach of contract in
the present case. With the foregoing in mind, the Chamber started by analysing the
contents of the “undertaking” and agreed that, irrespective of whether the
“undertaking” contains the signature of one of the representatives of the
Respondent or not, the said document expressly stipulates that it was the Claimant’s
own decision to carry out his medical treatment abroad. Additionally, the
“undertaking” is one-sided in the sense that it only refers to the Claimant’s
understanding that, having decided to undergo treatment abroad, he shall bear
alone the costs of said treatment, whereas it does not refer to any obligations of the
Respondent.
9.
In continuation, the Chamber found that the Claimant himself confirms having
travelled to I in November 2007 in order to receive some medical treatment and that
his treatment was completed at the end of March 2008. Furthermore, the Chamber
noted that the Respondent, via the MFA, contacted FIFA on 13 February 2008 in
order to inform FIFA that it was not aware of the Claimant’s whereabouts.
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10.
In view of the above, and on the basis of the Claimant’s submissions as well as the
MFA’s letter dated 13 February 2008, the Chamber, referring to the rule of the
burden of proof mentioned in art. 12 par. 3 of the Procedural Rules, agreed that the
Claimant could not prove that he at any point in time between November 2007 and
March 2008 informed the Respondent of his whereabouts nor of his health situation.
Equally, the Chamber duly noted that the Claimant had not provided sufficient
evidence that he had tried to contact the Respondent in order to resume his duties
after having completed his treatment. In this respect, the Chamber deemed that the
Claimant should have at least returned to M in order to manifest his intention to
resume his duties.
11.
Finally, the Chamber wished to emphasise that although it had doubts as to the
circumstances under which the “undertaking” was drafted, this document did not in
itself constitute irrefragable evidence that the Respondent had authorised the
Claimant to leave the club. Equally, the Chamber duly noted that the Claimant had
failed to provide further evidence that the Respondent had agreed to his departure.
12.
In light of all of the aforementioned considerations surrounding the Claimant’s
absence from the club between November 2007 and March 2008, the Chamber came
to the firm conclusion that the Claimant, who decided alone to undergo treatment in
I following an injury, failed to prove that he had complied with his duties under the
employment contract signed with the Respondent. In particular, the Claimant clearly
lacked diligence by not informing the Claimant properly of his situation during the
aforementioned timeframe and not manifesting his wish to resume his duties with
the Respondent after having completed his treatment.
13.
Therefore, the Chamber established that the player, by leaving the Respondent in
early November 2007 and not informing the latter of his whereabouts, and by not
returning to the Respondent following the completion of his medical treatment,
clearly committed a breach of contract in early November 2007, for which he is to be
held liable. Thus, the members of the Chamber concluded that the claim of the
Claimant for remuneration for the period between November 2007 and March 2008
plus compensation for breach of contract must be rejected.
14.
Having stated the above, the Chamber focussed its attention on the question of the
consequences of such unjustified breach of contract committed by the Claimant. In
this respect, the Chamber acknowledged that in accordance with art. 17 par. 1 of the
Regulations, the party found to breach of contract shall pay compensation. In this
respect, the Chamber recalled that the Respondent had lodged a counterclaim
against the Claimant and requested the amount of EUR 150,000 in damages caused
by the Claimant’s failure to fulfil his contractual obligations, additionally, the
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amount of 200,000 allegedly corresponding to the amount which the Respondent
had to pay for the transfer of a foreign player in replacement of the Claimant.
15.
In respect of the above, the Chamber first of all underlined that although the
Claimant is to held liable for the unjustified breach of contract in the case at hand,
the Respondent’s conduct could not be viewed as entirely diligent. Indeed, according
to the Claimant’s statement, he left the Respondent in November 2007; this fact was
not contested by the Respondent. However, the Chamber noted that the Respondent
contacted FIFA for the first time on 13 February 2008, i.e. approximately three
months after the departure of the Claimant. Therefore, the Chamber came to the
conclusion that the Respondent did not show any particular interest for the Claimant
over a long period of absence.
16.
Furthermore, the Chamber was eager to emphasise that the Respondent’s
counterclaim was not consistent or precise enough. In this respect, the Chamber
agreed that the Respondent’s claim for compensation in the amount of EUR 150,000
was not supported by any factual or documentary evidence of the actual damage
suffered by the Respondent due to the breach committed by the Claimant. In
addition, regarding the claim for the amount of 200,000 allegedly corresponding to
the amount which the Respondent had to pay for the transfer of another foreign
player, the Chamber established that the circumstance of having concluded a transfer
agreement with a club in order to secure the services of a player could not
legitimately be taken into account as part of the Respondent’s financial claim for
breach of contract, since there remains a doubt as to the recruitment of this
particular player was made in order to replace the Claimant.
17.
In view of the foregoing considerations, and also taking into account the general
principle of equity, the members of the Chamber concluded that the Respondent’s
arguments in support of its counterclaim for breach of contract in the amount of EUR
150,000 as well as 200,000 could not be upheld. Therefore, the Chamber decided that
the said counterclaim of the Respondent must be rejected.
18.
As a conclusion, the Chamber reiterated that both claims of the Claimant/CounterRespondent and the Respondent/Counter-Claimant are rejected.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, C, is rejected.
2.
The claim of the Counter-Claimant, H, is rejected.
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Note relating to the motivated decision (legal remedy):
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
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