Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 February 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on the claim presented by the player,
X,
as Claimant
against the club,
Y,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 24 August 2006, the player X (hereinafter: the Claimant), and the club, Y
(hereinafter: the Respondent), entered into an employment contract valid from 25 July
2006 to 31 May 2007, as well as an additional contract.
2.
Art. 5 to 7 of the employment contract provides that the Claimant is entitled to a
Championship bonus and a Cup bonus according to the Internal Regulations of the club.
3.
Additionally, art. 16 of the employment contract stipulates that the Respondent shall
provide the Claimant with full medical care for the whole duration of the contract
regarding any injuries sustained during a training session or any other activity of the
Respondent.
4.
On 8 January 2007, the parties signed a termination agreement.
5.
According to art. 2 of this agreement, the Respondent undertook to “reimburse the
player all the salaries until and inclusive of January 2007, as well as any bonuses may
have arisen from the present cooperation of the two parties”.
6.
According to art. 4 of the termination agreement as well as to art. 8 of the employment
contract, if the Respondent is promoted to the A First Division of C within the end of
the season 2006-2007, the Respondent shall pay the Claimant an extra bonus of EUR
1,500. Art. 8 of the additional agreement also refers to such premium.
7.
Art. 3 of the termination agreement refers to the payment by the Respondent of some
medical expenses, and, according to the Claimant’s free translation of the said
document, stipulates that “The employer also undertakes to reimburse the expenses of
the surgical operation that the player underwent in country G and to a doctor of his
choice (despite the reservations of the Employer) that amounts to Euros 2.000
immediately;
3 a. If more expenses are incurred by the surgical operation with receipts and official
medical documents, the employer is bound to look into the case again and increase the
amount that has already been paid”.
8.
On 4 July 2008, the Claimant lodged a claim in front of FIFA for breach of the
termination agreement by the Respondent. In this regard, the player emphasized that
on 14 December 2006, he suffered an injury to his shoulder during a training session.
Thereafter, he was immediately transported to a private hospital, where he received
some treatment on his shoulder. On 17 December 2006, he travelled to country G and
on 21 December 2006, an MRI of his shoulder was performed, allegedly at his own cost.
On 29 December 2006, the Claimant visited an orthopaedic surgeon in a G hospital, who
2/10
told him that he would have to undergo surgery immediately. The surgery allegedly
took place on 3 January 2007.
9.
Following the surgery, the parties mutually decided to terminate their employment
relationship, and thus signed the termination agreement dated 8 January 2007.
10.
The Claimant asserts that the Respondent owes him the following amounts, on the basis
of the employment contract, the additional agreement as well as the termination
agreement:
Match bonuses
Medical
expenses
EUR 800
as alleged outstanding match bonuses payable until
January 2007, in accordance with art. 2 of the
termination agreement and art. 5 of the employment
contract
EUR 1,500
as an extra bonus, due to the fact that the club was
allegedly promoted to the A First Division of C at the
end of the 2006-2007 season, in accordance with art.
4 of the termination agreement and art. 8 of the
additional agreement
EUR 778.48
as alleged remaining amount for the surgery
expenses
EUR 2,200
as doctor’s compensation
EUR 130
as X-ray expenses
EUR 200
as MRI expenses
EUR 1,000
as physiotherapy expenses
all medical expenses above being claimed on the basis of art. 3 of the
termination agreement and art. 16 of employment contract
TOTAL: 6,608.48
11.
In support of his claim for the reimbursement of medical expenses, the Claimant
submitted the following documents (in G and translated into English):
-
-
an invoice dated 4 January 2007 issued by the hospital. for a total amount of EUR
4,075,
a receipt dated 15 February 2007 from the regional branch of the Social Insurance
Institute of country C, which shows that the amount, out of the invoice issued by
the hospital, EUR 3,296.52 would be supported by the insurance, as well as a “cash
voucher” for the payment of the said amount,
a receipt from an orthopaedic surgeon dated 4 January 2007 for the payment of
EUR 2,200,
a medical report dated 11 January 2007 issued by the same orthopaedic surgeon,
certifying that the player underwent a surgical operation on 3 January 2007,
a receipt dated 3 January 2007 from an orthopaedic materials company for the
payment of EUR 130,
3/10
-
a receipt from a radiologist dated 21 December 2006 for the payment of EUR 200,
two receipts dated 12 February and 10 April 2007 from an injury rehabilitation
centre for the payment of EUR 500 each.
12.
The Claimant underlined that, prior to his claim, he had put the Respondent in default
of paying him the aforementioned sum, by a letter dated 5 June 2008 addressed to the
Respondent.
13.
In reply to the Claimant’s claim, the Respondent admitted that the parties had signed
an employment contract and an additional agreement on 28 August 2006, as well as the
termination agreement on 8 January 2007. In respect of the termination agreement, the
Respondent referred to its art. 3, according to which it had to pay the amount of EUR
2,000, allegedly because the Claimant did not consult the doctors of the Respondent
and preferred to visit his own doctor, and as a consequence, undertook to pay himself
all the expenses in excess of this amount.
14.
Moreover, also referring to art. 3 of the termination agreement, the Respondent
undertook to review payments in excess of the EUR 2,000. In this respect, the
Respondent expressed the opinion that on 8 January 2007, the Claimant already had a
full overview of the costs incurred by his injury, since his surgery had occurred a few
days before. Therefore, by not disclosing any further expenses to the Respondent, the
Claimant had allegedly agreed to limit the reimbursement of his expenses to the sum of
EUR 2,000, which the Respondent allegedly already paid. Furthermore, the Respondent
stressed that it appeared evident that the Claimant did not undergo any other surgery
following the surgery held in the beginning of January 2007.
15.
Thus, the Respondent denied the player’s claim for the reimbursement of medical
expenses.
16.
However, the Respondent recognised that it owed the player EUR 1,500 as a bonus for
the promotion of the club to Division A.
17.
In his replica, the Claimant stated that none of the agreements signed with the
Respondent contained a clause which mentioned that, in case of the injury, he was
supposed to consult only a doctor assigned by the Respondent, nor that this doctor had
to be in country C . Additionally, according to the Claimant, when he went to country G
to undergo surgery, the Respondent did not oppose to such surgery taking place
abroad.
18.
Furthermore, the Claimant underlined that he is not asking for the full amount of the
costs linked to the surgery, since part of these costs were covered by the state insurance.
4/10
19.
The Claimant also affirmed that when a player sustains an injury while being at the
service of a club, the said club should undoubtedly provide the best possible insurance
policy and medical care to the player.
20.
The Claimant expressed the view that he had demonstrated good faith in the present
matter by agreeing to sign the termination agreement.
21.
The Claimant thus upheld his initial claim.
22.
In its final position, the Respondent stated that the agreements signed with the
Claimant necessarily implied that the latter would be assigned to the Respondent’s
doctor for treatment. In this respect, the Respondent stressed that the termination
agreement expressly provides that the club would undertake any medical expenses
incurred by his injury in the amount of EUR 2,000, despite the club’s reservations
concerning the choice of doctor.
23.
Furthermore, the club stated that the correct translation of art. 3 a. of the termination
should be:
“3 a. In case that greater expenses occur with official receipts and medical certificates
for the treatment of the player, the Employer is bound to re-examine the costs and it is
the Club’s discretion to decide whether to cover any more expenses”.
24.
The Respondent also underlined that when a professional player sustains an injury, the
club must cover the expenses incurred by such injury at the best interest of the club. This
allegedly implies that it should not accept to pay for medical care provided in another
country, when the same care could have been provided to the player by the club’s
doctors, at a lower cost.
25.
In view of the above, the Respondent denied the Claimant’s claims, without, however,
specifically referring to the claim regarding the bonus in the amount of EUR 1,500.
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 4 July 2008.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) are
applicable to the matter at hand (cf. article 21 par. 2 and 3 of the Procedural Rules).
5/10
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 a 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 4 July 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 Dispute Resolution Chamber and the applicable regulations
having been established, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the documentation
contained in the file.
5.
In this respect, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract on 24 August 2006, valid as from 25 July 2006 until 31
May 2007, as well as an additional contract on the same date, covering the same time
period. Furthermore, it is not contested by either of the parties that following the
Claimant’s injury, the parties signed a termination agreement on 8 January 2007.
6.
In addition, the Chamber duly noted that the Claimant is claiming, on the one hand,
some alleged outstanding bonuses in accordance with both the employment contract
and the termination agreement in the amount of EUR 800 and EUR 1,500 respectively,
and on the other hand, the reimbursement of some medical expenses following his
injury in the total amount of EUR 4,308.48.
7.
With the foregoing in mind, the Chamber first of all remarked that the Respondent
had, at least in its first submission without having specifically amended such position in
its second submission, acknowledged owing the Claimant a bonus in the amount of EUR
1,500 for the promotion of the club to Division A. Therefore, the Chamber came to the
conclusion that the Claimant is entitled to receive such bonus in accordance with art. 4
of the termination agreement as well as art. 8 of the additional agreement and that the
Respondent must pay the amount of EUR 1,500 to the Claimant.
8.
In continuation, the Chamber underlined that the Respondent denied the Claimant’s
other claims, i.e. the payment of an alleged bonus in the amount of EUR 800, as well as
the reimbursement of the Claimant’s medical expenses (cf. point II./6. above). Regarding
the medical expenses, the Respondent submitted that following the Claimant’s injury, it
6/10
paid the Claimant’s medical expenses up to the amount of EUR 2,000, as laid out in art.
3 of the termination agreement (cf. point I./7. above). However, the Respondent
refused to cover any expenses in excess of this amount in view of the fact that art. 3 a.
of the termination agreement allegedly stipulates that “In case that greater expenses
occur with official receipts and medical certificates for the treatment of the player, the
Employer is bound to re-examine the costs and it is the Club’s discretion to decide
whether to cover any more expenses”. In this respect, the Respondent emphasized that
the Claimant had allegedly refused to undergo treatment with the club’s doctors and
thus that the club had no interest in paying for a player’s medical care provided in
another country, when the same care could have been provided by the club’s doctors, at
a lower cost.
9.
Subsequently, the Chamber underlined that the Claimant, for his part, while not
contesting that the Respondent had paid EUR 2,000 following his surgery, was however
of the opinion that art. 3 a. of the termination agreement, which was drafted in G
language, should translate, into English, as follows: “If more expenses are incurred by
the surgical operation with receipts and official medical documents, the employer is
bound to look into the case again and increase the amount that has already been
paid”. On this basis, the Claimant asserts that the Respondent should be held liable for
the payment of the additional costs incurred by his treatment following his surgery.
10.
Having stated the aforementioned, the members of the Chamber pointed out that the
parties to the present dispute seem to disagree on the correct translation of art. 3 a. of
the termination agreement, which apparently concerns the payment of the Claimant’s
medical expenses. In this regard, the Chamber deemed appropriate to emphasise that if
confronted with two different translations of a same document, it would have to rely
on a certified translation of such document in combination with the rule of the burden
of proof mentioned under art. 12 par. 3 of the Procedural Rules, which provides that a
party claiming a right on the basis of an alleged fact shall carry the burden of proof.
11.
On account of the aforementioned, the Chamber agreed that, in casu, the Claimant
having omitted to submit a certified translation of the termination agreement along
with his claim, and in view of the differences in the free translations by both parties of
the said document, the Chamber was not able to take into account the allegations
made by the Claimant regarding the payment by the Respondent of his additional
medical expenses.
12.
In addition, and for the sake of good order, the Chamber wished to emphasise that it
could not take into account art. 16 of the employment contract, which stipulates that
the Respondent shall provide the Claimant with full medical care for the whole duration
of the contract regarding any injuries sustained during a training session or any other
activity of the Respondent. Indeed, the Chamber stressed that by signing the
termination agreement, the parties had renounced to enforce the effects of the
7/10
employment contract signed between them. Furthermore, and contrary to the
Claimant’s view, the Chamber held the view that the parties to a termination
agreement may freely decide to waive the club’s obligation to pay for medical costs,
especially in view of the fact that the club is losing the services of the player for the
remainder of the contractual period.
13.
In light of the above, the Chamber decided to reject the Claimant’s claim for the
reimbursement by the Respondent of additional medical expenses in the total amount
of EUR 4,308.48.
14.
In continuation, the members of the Chamber focused their attention on the Claimant’s
claim in relation to an alleged outstanding bonus in the amount of EUR 800 in
accordance with art. 2 of the termination agreement and art. 5 of the employment
contract. In this regard, the Chamber firstly acknowledged that the Respondent had
denied such claim. Thus, once again, the Chamber emphasised that in accordance with
the rule of burden of proof (cf. art. 12 par. 3 of the Procedural Rules), it fell upon the
Claimant to provide evidence that this bonus was effectively due to him. The Chamber
subsequently found that the Claimant did not prove that this amount was due to him,
i.e. that the event triggering the payment of this particular bonus had indeed occurred.
Furthermore, the Chamber wished to emphasise that in any case, the termination
agreement or even the employment contract did not specify which exact amount would
be payable to the Claimant. In view of the aforementioned, the Chamber held that the
Claimant’s claim for a bonus in the amount of EUR 800 must be rejected.
15.
In conclusion and in view of all of the aforementioned, the Chamber decided that the
claim of the Claimant is partially accepted and that the Respondent must pay to the
Claimant the amount of EUR 1,500.
16.
The Chamber concluded its deliberations in the present matter by rejecting any further
claim of the Claimant.
*****
8/10
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, X, is partially accepted.
2.
The Respondent, Y, has to pay to the Claimant the amount of EUR 1,500 within 30 days
as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, interest at
the rate of 5% per year will apply as of expiry of the stipulated time limit and the
present matter shall be submitted, upon request, to the FIFA’s Disciplinary Committee
for consideration and a formal decision.
4.
Any further request filed by the Claimant is rejected.
5.
The Claimant, X, is directed to inform the Respondent, Y., immediately and directly of
the bank account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
9/10
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
Enclosed: CAS directives
10/10