Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 February 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Mohamed Mecherara (Algeria), member
Philippe Diallo (France), member
Carlos Soto (Chile), member
on the claim presented by the
Player A, Xxx,
represented by Mr Xxx
as Claimant
against the
Club B, Xxx,
as Respondent
regarding a contractual dispute arisen between the player and the club.
I. Facts of the case
1.
On 27 January 2007, the player A (hereinafter: the Claimant) and the club B
(hereinafter: the Respondent) signed an employment contract (hereinafter: the
employment contract) for the period from 25 January 2007 until 31 July 2007.
2.
According to the employment contract, the Respondent undertakes to remunerate
the Claimant in the amount of USD 120,000 for the whole contract period, by
means of monthly salary payments of USD 20,000 which are payable at the end of
every month.
3.
On 26 January 2007, the Respondent and the Club C, had concluded an agreement
regarding the loan of the Claimant from the Club B to the Respondent from 26
January 2007 until the end of the current season (hereinafter: the loan agreement).
The employment contract which the Claimant had concluded with Club C provides
for a period of validity from 1 January 2007 until 30 November 2009.
4.
On 16 February 2007, the Claimant lodged a formal complaint at FIFA, explaining
the facts of the case as follows: On 26 January 2007 he was examined by a doctor
of the Respondent who declared him to be in good health. One day later, the two
parties concluded the employment contract. The Claimant further explained to
have subsequently participated in the trainings and in some matches of the
Respondent. On 6 February 2007, he was taken out in the middle of a match and
was taken to the hospital where a MRI of his knee was done. After the MRI, he was
informed by the Respondent that his knee was in a very bad condition. The board
of the Respondent informed him on 10 February 2007 that he needed to sign a
contract for a trial period of three weeks (hereinafter: the trial contract) and that
he would be sent back to Club C if he did not prove himself to be a good scorer in
this trial period. The Respondent warned the Claimant that in case he did not sign
the trial contract, it would consider the loan agreement and the employment
contract as null and void. On 11 February 2007, after his refusal to accept the trial
contract, the director of the Respondent informed him about the termination of
the loan agreement and the employment contract due to his chronic knee injury.
The Claimant demands the fulfilment of the contractual obligations.
5.
In its response to the claim, the Respondent replied that in clause 2 par. 2 of the
loan agreement, Club C had affirmed that the Claimant was in a good physical
condition and that he did not suffer from any chronic injury. Furthermore, the
Respondent put forward that according to clause 4 par. 2 of the employment
contract, the contract was subject to a positive outcome of the medical
examination of the Claimant. It continued that the MRI could not have been done
before 8 February 2007 as the club needed to get an appointment for the MRI at
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Player A / Club B
2
the clinic. The Respondent asserted that prior to the MRI, the Claimant had
participated in a friendly match for several minutes and that his performance had
showed that he was not in a good physical condition. The Respondent continued
that after receiving the medical report, the Claimant had insisted that he was in
good condition and that he needed two weeks to prove it. The Respondent
asserted to have been obliged to inform Club C on 8 February 2007 that the
Claimant had to be sent back as the Respondent could not take the risk of having
an injured player participate in the matches. The Respondent continued that it had
never received any reply from Club C and that it therefore believed that the Club C
understood the situation and agreed to the return of the Claimant. The
Respondent summarised that the Claimant had not passed the medical
examination and that he could therefore not join the team. It added that Club C
had certainly been aware of the Claimant’s injury but had not informed it. The
Respondent is of the opinion to have respected all contractual obligations towards
the Claimant.
6.
In his comments thereto, the Claimant stated that according to the FIFA
Regulations, a contract could not be subject to a positive medical exam. Therefore,
by signing the employment contract, the latter became valid and binding for both
parties. The Claimant added that it was hard to believe that the Respondent had to
wait 15 days, namely from 25 January 2007 until 8 February 2007, to get an
appointment at the clinic for conducting the MRI. The Claimant asserted that it was
not understandable why the Respondent had him train for 15 days and participate
in three friendly matches in six days if he was in such a bad condition due to the
alleged injury. The Claimant assumed that the medical reason was just a pretext
used by the Respondent and that in fact, he was expelled from the Respondent
because he was not accepted by the coach.
7.
The Claimant demands compensation in the amount of USD 120,000 for breach of
contract allegedly committed by the Respondent, i.e. compensation for the whole
contract value. He stated that the employment contract contained a clause
according to which the Respondent had, in case of breach of contract by the
Claimant, the right to claim compensation in the amount of all monies paid to the
Claimant as well as the amounts due from the date of termination of the contract
until the end of the agreed contract term. The Claimant asserted that it was
unacceptable to draft such a clause only in favour of the Respondent and that it
thus has to be applied for both parties. Therefore, the Claimant concluded that he
had the right to claim compensation for the whole contract value. Additionally, the
Claimant requests that sporting sanctions be imposed on the Respondent.
8.
The Claimant informed FIFA that he had not played for any club from the date he
left the Respondent until the end of the loan agreement, i.e. the end of the season
in XXX. He stated to have resumed duty with Club C on 31 July 2007.
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Player A / Club B
3
9.
Although having been invited by FIFA to submit its final arguments several times,
the Respondent did not submit any final arguments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution 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 16 February 2007. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. 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 2008) 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 2008) the previous version of the regulations (edition 2005; 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. The
members of the Chamber started by acknowledging the above mentioned facts
and all further documentation contained in the file. In particular, they took
note that on 27 January 2007, an employment contract was concluded between
the parties for the period from 25 January until 31 July 2007 and that the
Respondent had unilaterally terminated the employment contract with the
Claimant on 11 February 2007, i.e. before the ordinary expiry of the
employment contract. Furthermore, the Chamber acknowledged that the
parties had agreed, inter alia, on a remuneration of USD 120,000, payable as
monthly salaries of USD 20,000, payable at the end of every month.
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Player A / Club B
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5.
In this respect, the members of the DRC took note of the fact that the Claimant
considers that the Respondent had terminated the employment contract without
just cause and that he demands payment of USD 120,000 as compensation
corresponding to the whole contract value as well as the imposing of sporting
sanctions.
6.
On the other hand, the Chamber acknowledged that the Respondent claims to
have had a just cause for the unilateral termination of the employment contract as
the Claimant had not passed the medical test and could therefore not join the
team.
7.
The Chamber stated that, in view of these contradictory positions, it first had to
analyze whether or not the Respondent had terminated the contract with just
cause, and to determine whether a party is accountable for outstanding payments
and/or compensation.
8.
In this respect, the members of the DRC turned their attention to the argument of
the Respondent that it had terminated the employment contract on the basis of
the outcome of the medical examination carried out on 6 February 2007 which
showed that the Claimant suffered from a knee injury.
9.
In this context, the members of the Chamber referred to art. 18 par. 4 of the
Regulations which stipulates that “the validity of a contract may not be made
subject to a positive medical examination and/or the granting of a work permit”.
10.
The Chamber recalled the undisputed sequence of the facts in the present matter:
On 26 January 2007, the Claimant was examined by a doctor assigned by the
Respondent who diagnosed that the Claimant was in good health. One day later,
on 27 January 2007, the parties concluded the employment contract. After having
participated in some trainings and a few matches with the Respondent, the
Claimant was taken out in the middle of a match on 6 February 2007 and brought
to a clinic where a MRI was carried out by means of which the knee injury was
diagnosed.
11.
The members of the Chamber stated that it was uncontested that the MRI was
carried out after the parties had signed the relevant employment contract.
12.
The DRC then drew its attention to the argument of the Respondent that the
employment contract stipulates in clause 4 par. 2 that it was subject to the positive
outcome of the medical examination, in clear contradiction to the aforementioned
art. 18 par. 4 of the Regulations.
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Player A / Club B
5
13.
In this context, the members stated that the contents of art. 18 par. 4 of the
Regulations was of mandatory nature and could not be contractually amended or
circumvented. The Chamber therefore stated that the argument of the Respondent
had no legal grounds.
14.
Furthermore, the DRC referred to the argument of the Respondent that the MRI
could not have been done prior to 8 February 2007 as it had to get an appointment
at the clinic.
15.
Thereto, the Chamber reiterated that the responsibility to conduct the necessary
medical examinations prior to the signing of the employment contract is
incumbent on the Respondent and that therefore, the argument of the
Respondent could not be allowed.
16.
Finally, and for the sake of good order, the Chamber shortly addressed the
statement of the Respondent that the club from which the Claimant was loaned,
Club C, had affirmed in clause 2 par. 2 of the loan agreement that the Claimant
was in good health and had not informed the Respondent about the Claimant’s
knee problems. The Chamber stated that the affirmations of Club C did not
concern the contractual relation between the Claimant and the Respondent and
that this affirmation of Club C could therefore in no way be used as an argument
against the Claimant in the present matter.
17.
In view of the aforementioned, the Chamber stated that the unilateral termination
of the employment contract on 11 February 2007 by the Respondent constitutes a
breach of contract.
18.
Having established that the Respondent had committed a breach of contract, the
Chamber decided that the Respondent is liable to pay compensation to the
Claimant for breach of contract in accordance with art. 17 of the Regulations.
19.
The Chamber noted that the employment contract contained a clause with respect
to the compensation payable in the event of an early termination of the
employment contract by the Claimant. In this case, the Claimant would have to pay
back all the expenses incurred by the Respondent plus compensation for damages.
However, the contract does not stipulate the consequences of an early termination
of the employment contract by the Respondent. The Chamber concluded that a
clause which was only drafted in favour of the Respondent was not acceptable due
to its unilateral nature and therefore had to be applied on both contracting
parties.
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Player A / Club B
6
20.
Moreover, and still with respect to the compensation payable to the Claimant, the
Chamber took into consideration the particularities of the specific case such as the
length of the employment contract, in a particular the length of time remaining
after the unilateral termination of the employment contract and the circumstances
and reasons of the unilateral termination of the Respondent.
21.
In this context, the Chamber took into account that the Claimant had been entitled
to receive a salary of USD 120,000 for the whole contractual period and that he
had not received any salary. At least, no evidence to the contrary has been
provided by the Respondent (cf. art. 12 par. 3 of the Procedural Rules).
Furthermore, the Chamber took note of the fact that the Claimant had remained
unemployed for the whole contractual period after having left the Respondent.
22.
Taking into account the aforementioned considerations (points II.19 to II.23 above),
the Chamber decided that the Respondent has to pay to the Claimant the lump
sum of USD 120,000 as compensation for breach of contract.
23.
The DRC then turned its attention to the question of the possible imposing of
sanctions on the Respondent in accordance with art. 17 par. 4 of the Regulations.
According to the said provision, sporting sanctions shall be imposed on any club
found to be in breach of contract during the protected period, in addition to the
obligation to pay compensation. This sanction shall be a ban on registering new
players, either nationally or internationally, for two registration periods.
24.
In this context, the members of the Chamber stated that as elaborated above, the
Respondent had been found responsible for the breach of contract. Furthermore,
the Chamber stated that the breach occurred in the first month of the contractual
period, i.e. undoubtedly during the protected period.
25.
In view of the aforementioned, the Chamber decided that the Respondent is
sanctioned by a ban on registering new players, either nationally or internationally,
for two registration periods.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the player A is accepted.
2.
The Respondent, club B, has to pay the total amount of USD 120,000 as
compensation to the player A, within 30 days following the date of the
communication of the present decision.
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Player A / Club B
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3.
In the event that the above-mentioned amount is not paid within the stated
deadline, an interest rate of 5% per year will apply as of expiry of the relevant
time-frame.
4.
The Claimant is directed to inform the Respondent directly and immediately of the
account number to which the remittance is to be made and to notify the Dispute
Resolution Chamber of every payment received.
5.
A ban on registering new players, either nationally or internationally, for two
registration periods, following the notification of this decision shall be imposed on
the Respondent, club B.
6.
In the event that the Respondent does not comply with the present decision, the
matter shall be submitted to FIFA’s Disciplinary Committee, so that the necessary
disciplinary sanctions may be imposed.
7.
According to art. 61 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 (CAS)
Avenue de Beaumont 2
CH-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
Enclosed: CAS directives
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Player A / Club B
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