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
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by the
Player X,
as “Claimant”,
against the
Club Y,
as “Respondent”,
regarding an employment-related dispute arisen between the parties.
I.
Facts of the case
1.
The player X, the Claimant, signed an employment contract with club Y, the
Respondent. This employment contract, a copy of which was submitted by the
Claimant, states that it is valid for three years, from 1 July 2006 to 30 June 2009.
2.
Article 3 of the employment contract provides for a monthly salary of 2,000
[national currency] without specifying the exact number of months for which it is
payable.
3.
Article 7 of the contract provides that “En cas d’accidents ou de blessures du
joueur pendant les matchs et les entraînements, le [club Y] s’engage à verser les
salaires suivant la réglementation du code de travail” [In the event of accidents or
injuries to the player during matches and training, the club undertakes to pay the
salary in accordance with the provisions of the labour code].
4.
Article 8 of the employment contract provides for the payment of a return airfare
from [X] to [X] and back at the end of each season.
5.
Article 10 of the contract provides that “Tout manquement grave commis par le
joueur envers le club entraîne la résiliation du contrat à ses torts et griefs” [Any
serious breach committed by the player against the club will lead to the
termination of the contract attributable to the player].
6.
On 29 June 2007 the player lodged a complaint against club Y with FIFA. The
player claims that according to FIFA Regulations, a three-month delay in the
payment of the player’s salary results in the termination of the contract in
question and the release of the player. The player thus seeks:
a.
b.
c.
the termination of his employment contract;
salary payments (for November and December 2006 and March, April and
May 2007) amounting to the sum of [national currency] 10,000, equivalent
to USD 7,812.50 according to the player;
the reimbursement of the airfare from [X] to [X] costing USD 1,535.34.
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7.
The player claims that he suffered an injury in mid-August 2006 and after
undergoing several examinations while at the club, he received physiotherapy
treatment. During the investigations of the present proceedings, the Claimant has
submitted several medical documents, including a medical certificate dated 25
April 2007 which states “un bassin F centrée sur le pubis + écho musculaire
carrefour pubien chez un footballeur déjà opéré pour pubalgie et qui présente
une rechute de ses douleurs au niveau des adducteurs” [pelvis F centred on the
pubis + muscle scan of pubic junction of footballer previously operated on for
pubalgia who is suffering a recurrence of pain at the height of his adductors].
8.
The Claimant adds that he was operated on with any assistance from the
Respondent, who merely released him so that he could travel to [X] to receive said
treatment. He alleges that all expense in connection with the medical treatment,
such as payment of the operation, medicine and physiotherapy was borne by the
player and that to date he had not received any reimbursement from the
Respondent. The player has submitted a document from the club in which the club
president grants the player exceptional leave from 26 October 2006 to 15 January
2007 to undergo surgery in [X]. The Claimant has also submitted a certificate from
a clinic stating that the player X was treated there between 20 November 2006
and 12 January 2007 due to surgery necessitated by chronic inflammation of the
pubic region.
9.
The Claimant adds that his salary was always paid late, as proven by the three
receipts he has submitted. One receipt dated 8 February 2007 is for the amount of
[national currency] 100 and states that it is an advance on the salary for October
2006. The second receipt is dated 23 March 2007 and for the amount of [national
currency] 3,000 and states that it is a complementary salary payment for October
2006 and a monthly salary payment for January 2007. The third receipt is dated 20
April 2007 and for the amount of [national currency] 2,000 and states that it is a
salary payment for February 2007.
10.
The player adds that no salary was paid to him for the months of November and
December 2006, i.e. during the months he was receiving medical treatment. He
claims that he was released by the club but that in accordance with article 7 of the
employment contract, he should have received the club’s full support for both the
payment of medical treatment and his salary, but only received a return airline
ticket from [X] to [X] and back.
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11.
The Claimant submits that the club did not pay him for March, April and May 2007.
The player mentions that at the end of the season, which ended on 27 May 2007,
he had to pay his own travel expenses because the club allegedly did not provide
him with any airline tickets as set forth in the employment contract. He notes that
the airline tickets were paid for by his family, as proven by a receipt for payment
issued by a company.
12.
On 24 July and 13 August 2007 FIFA requested the Respondent to submit a
statement in response to the claim lodged by the player. In its statement, the club
claims that despite the fact that it did not benefit from the player’s services, it paid
his salary and bonuses until January 2007.
13.
The Respondent adds that from the very first weeks of the execution of the
contract, the player’s physical and mental capacity deteriorated significantly, which
led the club to believe that it was an injury. The club adds that it had undertaken
to cover costs (reimbursement of all medical expenses, return ticket,
accommodation, salary payments, etc.) so that the interested party could make his
recovery in the best possible conditions.
14.
The club stresses that after the Claimant returned to his home country, where he
was operated on, it was completely taken by surprise by the diagnosis of the
player’s health, which revealed that he was not suffering from an injury but from
pubalgia.
15.
The club alleges that pubalgia is not an injury in the true medical sense of the term
because it directly relates to personal hygiene and that it was incumbent on the
player to maintain a level of personal hygiene in his private life that conformed to
pre-established norms for professional players. The Respondent added that the
condition revealed a serious breach on the part of the player. As a result, the club
claims that the player seriously breached article 10 of the employment contract in
question and seeks confirmation of the termination of the contract in accordance
with said article. Finally, the club requests the dismissal of the complaint in view of
the above.
16.
On 8 October 2007 FIFA received a response from the player stating that the club’s
arguments were erroneous. The Claimant alleges that he played in 14 matches for
the club as well as pre-season fixtures.
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17.
The player disputes the club’s allegations about his physical and mental health
because he had not arrived in [X] with a contract but to undergo tests and was
only approved after a series of rigorous medical and physical tests, without which
the club would never have contracted him.
18.
With regard to the Respondent’s surprise at the diagnosis of his injury, the player
claims that this is absurd because he injured his pubis while playing matches for
the club. He also claims that the fact that the club released him so that he could
travel to [X] proves that it was aware of his pubis injury. The Claimant further
states that his injury has nothing to do with his personal hygiene but with the
physical activity particular to this profession. The Claimant has submitted an
undated medical certificate from a clinic which states that the player was
diagnosed as suffering from pubalgia on 7 November 2006 and that on 13
November 2006 he underwent surgery. The document adds that the pubalgia from
which the player suffered was not related to any kind of sexually transmitted
disease and that he had been examined by an urologist with a full set of
laboratory tests.
19.
On 12 October 2007 the player responded to a request for information by FIFA. In
his submission, the player mentions that the date of his departure from [X] to
undergo the operation in [X] was 1 November 2006. He states that the date of his
departure from [X] to return to the club in [X] was 14 January 2007. Finally, the
player mentions that the date on which he definitively left the Respondent was 18
June 2007.
20.
In faxes dated 10 October and 7 November 2007, FIFA requested the Respondent
to submit a rejoinder. In these communications, FIFA also requested the
Respondent to indicate the exact date on which the player returned from the
operation and the exact date on which the player definitely left club Y. These
communications from FIFA did not receive any response from club Y.
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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 29 June 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 X and a club Y.
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, and entering into the substance of the matter, the members of the
Dispute Resolution Chamber started their deliberations by acknowledging that the
player X and the club Y signed an employment contract on 1 July 2006. This
contract was due to expire on 30 June 2009.
5.
Equally, the members of the Chamber noted that the relevant employment
contract foresaw a monthly salary of [national currency] 2,000.
6.
Furthermore, the members of the Chamber took note that the player left [X] on 1
November 2006, in order to undergo a surgical operation and that he came back
to [X] on 14 January 2007. The Chamber also concluded that the player X definitely
left the Respondent on 18 June 2007. The Dispute Resolution Chamber pointed out
that these dates provided by the Claimant were not disputed by the club Y.
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7.
In this respect, the Chamber acknowledged that the Claimant suffered an injury
and was hospitalized in [X] from November until 14 January 2007 according to the
medical reports provided by the Claimant. Furthermore the Chamber noted that,
on the one hand, this absence was authorised by the Respondent according to the
document provided by the player and signed by the president of the club, and
that, on the other hand, the player X returned to the club on 14 January 2007. In
continuation the members of the Dispute Resolution Chamber concluded that the
Claimant was at the disposal of the club from 14 January 2007 until 18 June 2007
and that this argument was not contested by the club Y.
8.
The Dispute Resolution Chamber noted that the Respondent argues that the
player’s injury was due to his level of personal hygiene and therefore constitutes a
serious breach by the player, on which ground article 10 of the employment
contract is applicable to the present case. The Respondent adds that the contract
was terminated for reasons entirely attributable to the player X.
9.
In view of the circumstances of the matter at stake, the Chamber focused its
considerations on the question as to whether an unjustified breach of the
employment contract signed between the Claimant and the Respondent occurred
and, in the affirmative, which party is responsible for such breach of contract and
to verify and decide on the financial aspects of the present case.
10.
As mentioned above, the Dispute Resolution Chamber noted the Respondent’s
allegation that the injury suffered by the player, i.e. the pubalgia, is not an injury
in the true medical sense of the term but is directly related to the player’s personal
hygiene. In this regard, in the light of the medical dossier submitted by the
Claimant, the members of the Chamber concluded that in the present case the
injury of the player X is due to his professional activity as a football player.
Consequently, the Chamber rejects club Y’s arguments concerning the nature and
origin of the Claimant’s injury.
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11.
In this respect and concerning the possible breach of the present contract, the
Chamber referred to the general principle according to which it falls within the
club’s obligations to be responsible for its players in case of injury caused in
relation with the players’ professional activity and in fulfilment of their contractual
obligations. This principle is essential within the scope of the provisions related to
the maintenance of contractual stability between professionals and clubs as
contained in article 13 et seq. of the Regulations. Any conclusion establishing the
contrary would mean to prejudice the weaker contracting party (the employee). As
a result of this principle, it is in particular the club’s obligation to continue to pay
the salaries of the player during the latter’s inability to work for an injury caused
during the fulfilment of his employment contract. Furthermore, the injury of a
player cannot be considered a valid reason to unilaterally and prematurely
terminate an employment contract.
12.
Equally, the Chamber took due note of the fact that the Respondent did not
object against the Claimant’s departure to [X] for his medical treatment. In fact,
such objections were also not raised in the course of the present procedure.
Furthermore, the members of the Chamber observed that the Respondent, by not
providing the Dispute Resolution Chamber with its additional statement, indirectly
confirmed the Claimant’s return to [X] on 14 January 2007.
13.
Taking into account the above, and based on the documentation in its possession,
the members of the Chamber established that the Respondent was well aware of
and did not object to the Claimant’s departure to his home country for medical
treatment. Moreover, by reporting back on 14 January 2007, as not contested by
the Respondent, the Claimant manifested his intention to continue and fulfil his
contractual obligations towards the Respondent by offering his services to the
employer after his medical treatment in his home country. In fact, the Respondent
did not provide any information or document which would speak against such
appreciation of the circumstances of the Claimant’s return.
14.
In addition, the members of the Chamber took into account that the Respondent
indirectly admitted that it had paid no salaries to the player after January 2007.
15.
As a result of the above, the Chamber was of the opinion that the Respondent
breached the employment contract signed with the player without just cause.
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16.
On account of the above-mentioned conclusion, the Chamber had to address the
question whether the Respondent is accountable for outstanding payments
towards the player X.
17.
As far as the responsibility of the Respondent for outstanding payments is
concerned, the Chamber noted that the Claimant is claiming, inter alia, his
monthly salaries for November and December 2006 as well as the monthly salaries
for March, April and May 2007, for a total amount of [national currency] 10,000. In
this respect, the Chamber recalled that the Respondent asserted having paid the
player’s salaries until January 2007.
18.
As regards the Respondent’s allegation for having paid all the monthly salaries
until January 2007, in consideration of the player’s claim for the months of
November and December 2006, the members of the Chamber emphasized that in
accordance with the legal principle of the burden of proof, a party deriving a right
from an asserted fact has the obligation to prove the relevant fact (cf. article 12
par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber).
19.
In accordance with the above-mentioned principle, the Respondent had the
burden of proof regarding the payment of the relevant two monthly salaries.
However, the Respondent failed to provide FIFA with written documentary
evidence in order to corroborate its allegations mentioned in consideration II.17.
20.
Due to the lack of proof of the Respondent’s allegation in this respect and in
application of the above-mentioned principle, the Dispute Resolution Chamber
decided that the Respondent has to pay to the Claimant the amount of [national
currency] 4,000 as outstanding salaries for November and December 2006.
21.
Equally and taking into account the player’s claim pertaining to his salaries for the
months of March, April and May 2007, the members of the Chamber made
reference to the above consideration II.18, and outlined that the Respondent did
not provide the Dispute Resolution Chamber with any proof of having paid these
said three salaries, considering that the employment contract was still valid at that
time. In fact, as stated above, the club admitted that it allegedly had paid the
player’s salaries until January 2007 only.
22.
As a consequence of the previous consideration, the Dispute Resolution Chamber
decided that the club Y has to pay the relevant three monthly salaries totalling to
[national currency] 6,000.
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23.
Concerning the flight ticket claimed by the player, a receipt of payment of which
was presented, the members of the Chamber duly analyzed the contents of the
employment contract and noted that article 8 of the relevant contract provided for
the payment of a flight ticket for each season. As a consequence and considering
that the Respondent did not provide the Chamber with any evidence for having
paid the said ticket, the Dispute Resolution Chamber decided to accept the claim
of the player for an amount of USD 1,500 with regard to the payment of the flight
ticket.
24.
Finally and in view of all the above, the Chamber decided to accept the Claimant’s
claim and determined that the Respondent is liable to pay to the Claimant
[national currency] 10,000 as outstanding monthly salaries for November 2006,
December 2006, March 2007, April 2007 and May 2007, as well as the amount of
USD 1,500 corresponding to the flight ticket.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, the player X, is accepted.
2.
The Respondent, club Y, has to pay to the Claimant the amounts of [national
currency] 10,000 and USD 1,500.
3.
The amounts due to the player X have to be paid by the club Y within 30 days as
from the date of notification of this decision.
4.
If the aforementioned amounts are not paid within the stated deadline, an
interest rate of 5% per year shall apply as of expiry of the fixed time limit and the
present matter shall be submitted to FIFA’s Disciplinary Committee for its
consideration and decision.
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5.
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.
6.
According to article 61 par. 1 of the FIFA Statutes this decision may be appealed
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to CAS directly within 21 days of receiving notification of this decision and has
to contain all elements in accordance with point 2 of the directives issued by CAS,
copy of which we enclose hereto. Within another 10 days following the expiry of
the time limit for the filing of the statement of appeal, the appellant shall file with
the CAS a brief stating the facts and legal arguments giving rise to the appeal (cf.
point 4 of the directives).
The full address and contact numbers of CAS are the following:
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
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