Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 11 March 2011,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
J,
as Claimant
against the club,
D,
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 28 July 2008, the player, J (hereinafter: player or Claimant) and the club, D
(hereinafter: club or Respondent) signed an employment contract valid as from
receipt of the international transfer certificate until 31 May 2009.
2.
In accordance with the employment contract, the player was to receive the net
amount of EUR 10,000 in ten monthly equal instalments of EUR 1,000 each as of 30
August 2008 until 30 May 2009.
3.
In addition, on 28 July 2008, the player and the club signed a supplementary
“agreement”, in accordance with which the player was to receive inter alia the
additional net amount of EUR 15,000 payable in ten monthly equal instalments of
EUR 1,500 each as from 30 August 2008 until 30 May 2009 and a signing-on fee of
EUR 3,000.
4.
According to art. 3 lit. f. of the employment contract, the club was to bear all
medical expenses in connection with any illness and/or injury of the player during
the validity of the contract.
5.
On 17 June 2009, the player lodged a claim against the club in front of FIFA
maintaining that the club had failed to pay his salaries for February, March, April,
and May 2009 totalling EUR 10,000 on the basis of the employment contract and
the supplementary agreement. Furthermore, according to the Claimant, the
Respondent failed to pay his medical expenses in the total amount of EUR 2,616.
6.
In reply to the claim, the club maintained that out of the total amount of EUR
28,000 that the player was to receive in accordance with the employment contract
and the supplementary “agreement”, it had paid the total amount of EUR 18,000
(EUR 3,000 as signing-on fee and six monthly payments of EUR 2,500) to the player.
7.
According to the club, the player got injured during a match and he was referred to
the club’s doctor for treatment, the expenses of which were borne by the club.
However, the player advised the club that he wished to seek medical advice from his
doctor in country X, told the club that he would bear all expenses related thereto,
and asked that the club would pay the airfare and then deduct the relevant costs
from his salary. According to the club’s doctor, the player was fit to start training,
but the player decided to travel to country X to consult his doctor, where he stayed
for 40 days.
8.
The club further points out that the employment contract expired on 31 May 2009
until which time training had still been on-going, but the player decided on his
own, without prior consultation with the club, to leave country Y on 2 May 2009.
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Therefore, the club deems that the May 2009 salary shall be deducted from the
player’s receivables.
9.
The club asserts that it paid the airfare of EUR 770, which amount, according to the
club, also is to be deducted from the player’s receivables.
10.
For these reasons, the club indicated that it was ready to pay the amount of EUR
6,730 to the player.
11.
In his replica, the player rejected the club’s allegations submitting that he had asked
the club for permission to go to country X for medical treatment and that the club
had agreed, on condition that he would cover the travel expenses. After 40 days his
doctor told him that he needed an operation, but the club told him to return to
country Y in order to be checked by the club’s doctor. The club’s doctor then told
him to start training, which instructions he followed and he continued to train and
play until the end of the season.
12.
The player asserts that after his (final) return to country X (cf. point I./14. below), his
injury had worsened and he needed an operation.
13.
The player insisted that the club is liable to pay for the medical expenses in
accordance with art. 3 lit. f. of the employment contract.
14.
The player further asserted that he participated in all club activities until the end of
the season, which, according to him, ended in April. In this respect, the player
submitted a written declaration of a X teammate. According to the employment
contract, the final instalment obviously fell due in May 2009 and this regardless of
the fact that the season ended at an earlier stage. Therefore, the May 2009 salary is
due and shall not be deducted.
15.
However, he accepts that the costs of the air ticket of EUR 770 are deducted from
his receivables.
16.
Consequently, the player insisted on receiving the amount of EUR 9,230 for
outstanding salaries and EUR 2,616 for medical expenses incurred.
17.
In its duplica, the club denied that it authorized the player to leave country Y and
points out that the player, in violation of the club’s internal regulations that were
allegedly signed by the player, has not asked any written permission of the coach,
who was the person responsible for such authorization as per the club regulations.
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18.
The club presented written declarations of the club’s coach and of a club’s board
member in this regard.
19.
The club points out that the written statement of the player’s teammate was made
on purpose to cover up the situation.
20.
Finally, the club denies that it is responsible for medical expenses incurred abroad
and insists that it never agreed to pay for these expenses.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the case
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 17 June 2009. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and 2 in conjunction with art.
22 lit. (b) of the Regulations on the Status and Transfer of Players (edition 2010), he
is competent to decide on the present litigation, which concerns an employmentrelated dispute with an international dimension between a player and a club.
3.
Furthermore, the DRC judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions
2009 and 2010) and considering, on the one hand, that the present claim was
lodged on 17 June 2009 and, on the other hand, that the contracts at the basis of
the dispute were signed on 28 July 2008, the 2008 edition of said Regulations
(hereinafter: the Regulations) is applicable to the present matter as to the
substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge acknowledged that, as stated above, on 28 July 2008, the Claimant
and the Respondent signed an employment contract and a supplementary
“agreement”, in accordance with which the player was to receive inter alia the total
monthly remuneration of EUR 2,500 during 10 months as from 30 August 2008 until
30 May 2009.
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5.
The DRC judge noted that the player claims that the club failed to pay his salaries
for February, March, April, and May 2009 in the total amount of EUR 10,000.
Therefore, the Claimant asks that the Respondent be ordered to pay said
outstanding salaries. The Claimant further asks to be awarded reimbursement by
the Respondent of his medical expenses totalling EUR 2,616.
6.
The Respondent, for its part, asserts having paid to the Claimant the total amount
of EUR 18,000, including six monthly salaries and the signing-on fee, out of the total
contractual value of EUR 28,000. The DRC judge took into account that the
Respondent acknowledges that it owes the amount of EUR 6,730 to the Claimant
after the deduction of air ticket costs and the salary for May 2009, totalling EUR
3,270, from the Claimant’s receivables. The Respondent further denies being liable
to pay for the Claimant’s medical costs incurred abroad.
7.
The DRC judge duly noted that the Claimant acknowledges that the amount of EUR
770 relating to air ticket costs is to be deducted from his financial entitlements.
However, the Claimant contests the Respondent’s justification for the deduction of
the amount of EUR 2,500 from his receivables, disagrees with the Respondent’s
viewpoint relating to his medical costs and, consequently, insists on receiving the
amount of EUR 11,846.
8.
Consequently, the DRC judge then focussed his attention on the arguments put
forward by the Respondent in its defence. Firstly, the DRC judge noted that
according to the Respondent, the Claimant had left the club without prior
consultation as early as on 2 May 2009, whereas the employment contract ran until
31 May 2009. In this respect, the Claimant indicated that he had participated in all
club activities until the end of April 2009, at which time, according to the Claimant,
the sporting season had ended. In the light of such statement, the DRC judge
concluded that the Claimant acknowledged having been absent from the club as of
early May 2009. In support of his position regarding the end of the sporting season,
the Claimant solely presented a written declaration of a X teammate, which, so the
DRC judge, could not be considered sufficient documentary evidence corroborating
such position. Whilst referring to art. 12 par. 3 of the Procedural Rules, which
stipulates that any party claiming a right on the basis of an alleged fact shall carry
the burden of proof, the DRC judge further noted that the Claimant had not
presented any document signed by the Respondent authorising the Claimant to
leave the club as per the beginning of May 2009. Therefore, the DRC judge
concluded that the Claimant had been absent from the club without authorisation
as of the beginning of May 2009 and, consequently, accepted that the Respondent
cannot be held liable for the payment of the Claimant’s salary relating to the month
of May 2009.
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9.
The DRC judge then turned his attention to the issue of the medical costs, which
according to the Claimant shall be borne by the Respondent, whereas the
Respondent denies being liable to pay for the specific costs claimed by the Claimant
as they were incurred abroad. The Respondent insisted that it had borne all costs
relating to the Claimant’s medical treatment in country Y, which statement was not
refuted by the Claimant, and that the Claimant wished to seek medical treatment in
country X.
10.
In this respect, first and foremost, the DRC judge recalled that according to art. 3 lit.
f. of the employment contract, the club was to bear all medical expenses in
connection with any illness and/or injury of the player during the validity of the
contract.
11.
The DRC judge took note that the Claimant asks to be awarded reimbursement of
medical costs in the amount of EUR 2,616 and that, to this end, he submitted a copy
of an invoice issued by a X hospital on 19 May 2009 for a treatment received on 16
May 2009.
12.
Consequently, it can be noted that the medical costs claimed by the Claimant are
related to a medical treatment abroad, i.e. outside of the country of the
Respondent.
13.
Reverting to the contents of the contractual clause relating to medical issues, i.e.
art. 3 lit. f. of the employment contract, in accordance with which the club was to
bear all medical expenses in connection with any illness and/or injury of the player
during the validity of the contract, the DRC judge highlighted that such clause does
not explicitly refer to a liability on the part of the club to cover medical expenses
incurred by the player abroad (emphasis added). The DRC judge deemed that
obligations arising from such general clause relating to which party shall bear
medical expenses cannot possibly be understood as being extended to expenses
incurred outside of the country of the employer, unless specifically contractually
agreed upon. Furthermore, and again referring to art. 12 par. 3 of the Procedural
Rules, the DRC judge took into account that the Claimant had failed to present
documentation demonstrating that the club would have agreed to cover his medical
expenses incurred abroad.
14.
Moreover, the DRC judge deemed it fit to point out that the circumstance that the
Claimant appears to have undergone a medical treatment abroad with the
Respondent’s permission does not inevitably entail that costs related to such
treatment abroad were to be borne by the Respondent.
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15.
On account of these considerations, the DRC judge decided that the Respondent is
not liable to pay the medical expenses incurred by the Claimant outside of country
Y.
16.
On account of all of the above, the DRC judge decided to partially accept the claim
of the Claimant and to order the Respondent to pay to the Claimant the amount of
EUR 6,730, i.e. the Claimant’s receivables for February, March, and April 2009 minus
the air ticket costs of EUR 770.
17.
The DRC judge concluded his deliberations by rejecting any further request filed by
the Claimant.
III.
Decision of the DRC judge
1.
The claim of the Claimant, J, is partially accepted.
2.
The Respondent, D, has to pay to the Claimant the amount of EUR 6,730 within 30
days as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry
of the aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the DRC judge
of every payment received.
*****
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
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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 DRC judge:
Markus Kattner
Deputy Secretary General
Encl.: CAS directions
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