Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2008,
in the following composition:
Mr. Slim Aloulou (Tunisia), Chairman
Mr. Mario Gallavotti (Italy), Member
Mr. Essa M. Saleh al-Housani (UAE), Member
Mr. Rinaldo Martorelli (B), Member
Mr. Mick McGuire (England), Member
on the claim presented by the player
J
represented by Mr. D
as “Claimant”
against the clubs
D
and
S
as “Respondents and Counter-Claimants”
regarding a contractual dispute between the parties involved.
./…
I.
Facts of the case
1.
On 19 December 2003, the player J (hereinafter: the player) and the club D FC
(hereinafter: D) signed an employment contract valid between 1 January 2004
until 31 December 2005.
2.
The relevant contract stipulates in its article 3 that the club has to pay to the
player J a monthly salary of USD 20,000 net per month. Moreover, the same article
stipulates different bonuses to be paid to the player J.
3.
The article 4 point 1 of the aforementioned employment contract stipulates that D
had to pay USD 700,000 for 2 years loan to a private company. The article 4 point 2
of the same contract stipulates an obligation for D to contract an insurance
covering USD 500,000.
4.
On 24 December 2004, the club D and the club S Football Club (hereinafter:
Seongnam) concluded a loan agreement for the player Jefferson. This loan
agreement was not signed by the player. The point 2 of this loan agreement
established the amount of USD 400,000 as transfer compensation to be paid by S
to D.
5.
On 31 January 2005, the player Jefferson signed an employment contract with the
club S valid as from 1 January 2005 until 31 December 2005. In accordance with
the article 3 of the cited employment contact, the player would be entitled to a
monthly salary of USD 22,000 as well as housing, car, bonuses and air tickets.
6.
On 1 July 2005, the player J requested the assistance of FIFA informing that after
he signed the relevant employment contract with S he played 5 matches and in
March 2005 during a match he started to feel pain in his knee, he informed S
about it. In April he continued complaining to S about his pain but he did not
receive any reaction from the club. The latter ordered the player to participate in
training sessions alleging that S´s medical department had diagnosed no injury to
the player J. Because the player Jefferson continued feeling pain in his knee,
finally the club requested a more detailed medical test at a hospital called E.
7.
On 11 April 2005, a medical test was done at the hospital and the diagnosis was
“no injury found”. The player J sent to FIFA a CD with the relevant X-Ray images.
On the same day the player J forwarded the relevant CD to his physician in B. The
doctor informed the player that from the images he can assure that he had a
severe injure and that he had to undergo a knee surgery. The player J submitted
to FIFA the relevant report dated 18 April 2005. J informed S about the report of
the B doctor but S deemed that the player, in fact, was not willing to play and
informed him that he had to go back to training sessions and to play matches.
On 13 April 2005, the player J informed that he signed a document in a
desperately situation and under the pressure of S since it was the only way for the
player to leave K. By means of this document the player stated his intention to
terminate the contract with S and to reimburse the monies received.
8.
Player J / Clubs D and S
Page 2 of 11
9.
On 14 April 2005, the player considered that his injury was not seriously
considered by S and he has to take care of his physical integrity. Therefore, J
deemed that he had not any other option that leave K and returned to his country
(B).
10.
J stated that he paid the two flight return tickets to B (for him and his personal
manager) and that S never paid this amount back. The player submitted to FIFA
evidences of the payments of the two flights tickets.
11.
J rejected the argument of S that he left to B to sign a contract for a new club and
that prove of that is that he was a long time not playing.
12.
Once in B, J visited his doctor, Mr. L and undertook more examinations, the doctor
confirmed his previous diagnosis and informed him that it is expected to recover
within 6 to 10 months. The player J sent to FIFA copy of the medical report.
Moreover, J went to another doctor in B Mr. A who analyzed the examinations
done in K and he confirmed that it is also possible to determine the injury in that
images and confirmed the diagnosis. Finally, Jefferson visited the physician of the
B national team Dr. R who also confirmed the diagnosis. The player sent to FIFA a
copy of the relevant reports.
13.
On 3 May 2005, Jefferson undertook the surgery with Dr. L. The player informed
that the medical costs, expenses were of 14,170. The player sent copies of the
receipts to FIFA. Moreover the player remitted to FIFA a copy of estimate budget
for therapy, 18 sessions per week for 8 months totalling 62,100.
14.
In particular, the player J stated that his loan was agreed by both K club without
his participations and it is contrary to the art. 10 of the Regulations for the Status
and Transfer of Players (hereinafter: the Regulations). Moreover, J states that he
signed the relevant employment contract with S under pressure.
15.
In addition, Jefferson stated that the position of D is unacceptable since they could
have informed S about taking J back, if the player was not properly treated. D
escaped from his responsibilities derived from the employment contract signed on
19 December 2003.
16.
Therefore D and S are jointly responsible for the consequences of the relevant and
respective breach of contracts.
17.
In view of the above, the player Jefferson requests to FIFA:
a) to acknowledge that because of the K clubs behaviour by neglecting the
injury and medical treatment gave rise to declare the relevant employment
contract terminated with just cause;
b) to condemn both clubs to pay the amount of USD 48,639.07 as expenses
divided in the following way: a) USD 16,501.58 (USD 8,033 x 2 air tickets); b)
USD 6,262.49 (medical tests, hospital fees, surgery) and c) USD 25,875,00
(therapy sessions);
c) to pay the amount of USD 22,000 as salary of April 2005;
Player J / Clubs D and S
Page 3 of 11
d)
e)
f)
g)
h)
to pay a compensation equivalent to the remaining amount of monthly
salaries until the end of the validity of the employment contract with S taking
in consideration that the player will not able to play for a long time;
to pay the amount of USD 500,000 as amount compromised to cover by an
insurance based on the article 4 point 2 of the relevant employment contract
with D;
to pay a compensation for moral and physical damages;
to set out an interest rate of 5% per annum applying on all payments since
their due date;
to impose disciplinary measures on the clubs in accordance with art. 23. par. 2
of the Regulations.
POSITION OF D
18. When J went on holidays to B after season 2004, he was still playing for D. J
requested D several times to be transferred to another club.
19.
On 24 December 2004, D and S concluded a loan agreement. On 31 January 2005
the player J signed an employment contract with S according to their free will. The
conditions of the new employment contract were better for the player than the
previous contract with D.
20.
On 25 February 2005, S paid to D the amount of USD 400,000 as transfer
compensation.
21.
Since J was playing for S, D did not have any longer any responsibility towards the
player.
22.
If there were any contractual problems between J and S, the player or the club
should have informed D about it. J never informed D about the injury and he left
K without giving any notice.
23.
D was not in a position to know that J was injured during the period of his loan to
S. If the player was injured S should take that responsibility.
24.
According to the loan agreement signed between both clubs, D does not have any
responsibility for any possible injury of the player J during the loan.
According to the terms of the employment contract signed between J and S in
case of injury the player should be examined and treated at the hospital
designated by S. The article 11 of the cited employment contract establishes that if
the player needs medical treatment due to injuries made during the activities he
should be treated at the hospital appointed by the club.
25.
26.
J breached the employment contract with S by going to B instead of staying in K
and being treated at the hospital appointed by the cited club. Therefore J has to
compensate both K clubs for damages.
27.
In particular, D states that according to the article 20 of the employment contract
concluded with Jefferson he should pay compensation for damage. In particular,
the cited clause refers to the event if the player leaves the team without notice or
breach the contract, in that case, the player should compensate by double the
Player J / Clubs D and S
Page 4 of 11
amounts that he received until the moment of the termination of the relevant
contract.
28.
D informed that Jefferson received from D during the course of their labour
relationship the total amount of USD 940,000 divided as, USD 240,000 (in
accordance with article 3 of the employment contract) and USD 700,000 (in
accordance with article 4 of the cited contract).
29.
Consequently, D requests based on the aforementioned article 20 from the player
J the payment of the total amount of USD 1,880,000 as damage compensation as a
consequence for the breach of the relevant employment contract.
30.
In addition, D requests FIFA to reject the claim of the player J.
POSITION OF SEONGNAM
31. The club S states that the player J informed them that his son was ill in Bl. The
player left K on 14 April 2005 to go to B without authorization of the club. S
deems that Jefferson went to B in order to be transferred to a B club.
32.
If the player J deems that the loan agreement concluded with S was done without
his authorization, the player has to prove it.
33.
S paid special attention to the injury of the player Jefferson including checks and
examinations at the Hospital E. As a result of these exams, the doctor
recommended physical therapy. S remitted the relevant medical report dated 29
April 2005 to FIFA.
34.
S paid to J USD 8,033 on 14 April 2005 for the flight ticket.
35.
S submitted to FIFA the following bank transfer confirmations for a total amount
of USD 534,746 (transfer compensation, salary, premium bonus, etc.):
•
USD 440,000, transfer compensation paid to D on 25 February 2005.
•
USD 19,264, amount paid to the player J on 28 February 2005, no reason
specified.
•
USD 45,449, amount paid to the player J on 28 March 2005, no reason
specified.
•
USD
8,033, flight ticket paid to the player J on 14 April 2005. The player J
stated that the club made a deposit in his bank account in K and after he left
the country, S gave the order to the bank to not release any monies to him.
•
USD 22,000, fee for players´ agent service paid to a private company owned
by the players´ agent on 25 February 2005.
36.
S refused to pay to Jefferson the following issues:
•
medical expenses or fees since they do not agree with the diagnosis and
treatment provided to the player in B.
•
the amount of USD 22,000 as salary of April 2005, because the player left K on
14 April 2005 without the relevant permission of the club.
•
the amount of 500,000 as damage because in the contract between S and J
there is not an specific clause for damages.
Player J / Clubs D and S
Page 5 of 11
37.
S tried several times to find an amicable solution with the player but it was not
possible, the player J left K and he did not come back.
38.
S stated that an evidence of the breach of the employment contract is the
document dated 13 April 2005 by means of which, the player stated his intention
to terminate the contract and to refund the 3 months salaries already paid (as
from January until March 2005) by the club in accordance with article 15 of the
relevant employment contract. The cited article 15 states that if the player
terminates the contract, the salaries that the player received should be paid back
to the club.
39.
S considers that the player J breached the relevant employment contract without
just cause and therefore requests the payment of a damage compensation of USD
539,771 taking in consideration all the monies that the club paid for the player J.
Moreover, S requests FIFA to impose disciplinary sanctions to the player J.
40.
On 26 August 2005, FIFA remitted to the three relevant parties a communication
informing that based on the circumstances it appears that the labour relationship
was seriously disrupted and advised the parties to focus on the financial aspects of
the dispute.
41.
The B Football Confederation informed FIFA that the player J was registered for
the B club G on 12 January 2006. The B Football Confederation remitted to FIFA a
copy of the relevant employment contract, which was valid as from 1 January 2006
until 31 May 2006 with a monthly salary of 11,000.
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 1 July 2005. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber,
edition 2005 (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 B player and two K clubs.
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), and considering that the present claim was lodged on 1 July 2005,
Player J / Clubs D and S
Page 6 of 11
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 members of the Chamber entered into the substance of the
matter by acknowledging three important facts: - firstly that the player J
(hereinafter: the player) and the club D FC (hereinafter: D) signed an employment
contract on 19 December 2003 valid as from 1 January 2004 until 31 December
2005; secondly that the club D and the club S (hereinafter: S) agreed on 24
December 2004 the transfer of the player on a loan basis and thirdly that the
player and the club S signed an employment contract on 31 January 2005 valid as
from 1 January 2005 until 31 December 2005.
5.
In continuation, the members of the Chamber pointed out that the player and the
K clubs have antagonistic positions.
6.
On the one hand, the player alleged that based on the lack of medical treatment
of his injury by the club S during the term of his loan and the negligent behaviour
done by the club D, the player deemed that the relevant employment contracts
were breached by each K club respectively.
7.
On the other hand, both K clubs stated that the player breached the respective
employment contracts by leaving K without authorization and not following the
medical treatment prescribed by the doctors appointed by the club S.
8.
At this stage, the members of the Chamber focused its attention to the player´
allegation that he signed the employment contract with S under pressure and that
by not signing the transfer agreement concluded between both K clubs the art. 10
of the Regulations was breached.
9.
First and foremost, the Chamber pointed out that in accordance with the principle
of burden of proof and for the sake of the legal security the player had to provide
with evidences to sustain his allegation about signing the relevant employment
contract with S under pressure. At this stage, the members of the Chamber
concluded that the player only made an allegation but not submitted any
evidences in this respect. Therefore the Chamber concluded that this player’s
allegation has to be rejected.
10.
In continuation, the Chamber pointed out that by signing the employment
contract with the club S, the player tacitly accepted the loan agreed between both
K clubs. Therefore the Chamber concluded that the art. 10 of the Regulations was
not breached.
11.
Consequently, the Chamber stated that not only the loan agreement dated 24
December 2004 signed by both K clubs but also the employment contract dated 31
January 2005 signed between the player and the club S are valid.
12.
The members of the Chamber focussed their attention to the fact that because the
player deemed that he was not receiving the adequate medical treatment and
Player J / Clubs D and S
Page 7 of 11
apparently his injury was not seriously considered by S he decided to left K and
return to B.
13.
At this stage, the members of the Chamber deemed appropriate to remark the
general legal principle that the contracts are concluded to be respected otherwise
consequences have to be assumed by the relevant party.
14.
Moreover, the members of the Chamber took note that the relevant employment
contract concluded between the player and the club S has a specific clause, i.e. art.
11, by means of which it is stipulated that in case the player would need medical
treatment due to injuries, he should be treated at the hospital appointed by the
club and in that case the club will cover the relevant expenses.
15.
In this respect, the members of the Chamber pointed out that specific clauses
established in valid employment contracts are binding and therefore have to be
fulfilled by the parties involved, i.e. the player and the club S.
16.
In addition, the Chamber deemed that based on the evidences submitted during
the process of the matter at stake it was established that the club S did not neglect
its contractual obligations with regard to the medical treatment to the player in
case of an injury. Actually, the club S had a different point of view on how to deal
with the injury than the player supporting the position that the player’s injury had
to be treated but not operated.
17.
However, the members of the Chamber stated, that based in all the evidences and
positions provided by the player and by the club S during the course of the matter
at stake, it seems possible and reasonable that the aforementioned parties could
have a strong conviction that the relevant injury should be faced in one or in the
other way.
18.
Moreover, the Chamber added that the circumstances relating to the player’s
health in the matter at stake could possibly have had an influence on his ability to
take objective and appropriate decisions and that possibly also the language
barrier could affected the player as well.
19.
Furthermore, the members of the Chamber took note that the player left Kon 14
April 2005 and that he only played again for his new club in B on 12 January 2006
that means that he was 8 months inactive.
20.
The members of the Chamber concluded that although it seems that by leaving K
on 14 April 2005 without authorization of the club S to have a surgery in B instead
of staying in K doing the medical treatment supported by the cited club, the
player breached the employment contract dated 31 January 2005, it appears
reasonable and equitable that the club S should contribute to pay the expenses
and costs assumed by the player for going under surgery in B.
21.
In continuation, the members of the Chamber decided to focused their attention
to the letter submitted by the player to the club S dated 13 April 2005. In this
respect the Chamber took note the player alleged that he signed the
aforementioned document in a desperately situation and under the pressure of
Player J / Clubs D and S
Page 8 of 11
the club S. In this respect, the Chamber reiterated that based on the principle of
burden of proof and the legal security it was the player’s obligation to ground his
allegations and taking into account that he did not submit strong evidences in this
respect the allegation in question has to be rejected.
22.
Consequently, the Chamber stated that the letter dated 13 April 2005 addressed
by the player to the club S is valid and that by means of which the player stated his
intention to terminate the contract with S and to reimburse the monies received in
accordance with the art. 15 of the relevant employment contract.
23.
The Chamber focused its attention to the evidences of payments submitted by the
club S and took note that the cited club proved having paid USD 64,713 in
consideration for the services provided by the player directly. Furthermore, the
Chamber considered that in accordance with the employment contract signed
between the player and the club S, the aforementioned parties agreed on a
monfhly salary of USD 20,000. Moreover, the Chamber took note about the other
amounts paid by the club S but concluded that cannot be taken into consideration
for the reimbursement under the light of art. 15 of the relevant employment
contract. As a result, the Chamber rejected the claims of the club S in this respect.
24.
Subsequently, the Chamber considered that the player rendered his services to the
club S as from January 2005 until middle of April, when he left without
authorization. Moreover, the Chamber took into account that the player had
medical expenses amounting to USD 32,138 and that the club S does not contest
not having paid the entire salaries due to the player for the time he actually
rendered his services to the cited club.
25.
In continuation, the Chamber also considered, that the club S explained having
paid the one airplane ticket to the player, as contractually agreed, and that the
player neither contested this fact nor could corroborate the club’s obligation to
pay any additional airplane tickets.
26.
In addition, the Chamber also considered that the player seems to have been
unable to perform his sporting activity due to his injury since April 2005 until
January 2006.
27.
Consequently, and considering the specificity of the circumstances of the present
affair, the members of the Chamber decided that equitably the player and the
club S do not have to pay any amount to each other. As a result, the Chamber
rejected the claims of the player as well as of the club S.
28.
The Chamber turned its attention to the player allegations regarding the club D
and in this respect took note that the player requests to declare D jointly
responsible for the termination of the employment contract with S.
29.
In this context, the members of the Chamber pointed out that, as a general rule,
when a club transfers a player “on loan” to another club, the responsibilities of
the former club are transferred to the new club either until the player would be
back or until the loan is finished. Moreover, the Chamber underlined that an
exception of the aforementioned rule is if both clubs agreed expressly that the
Player J / Clubs D and S
Page 9 of 11
former club will assume specific responsibility for instance when the former club
agrees to pay part of the salary of the player with the new club.
30.
Consequently, the Chamber analyzed carefully the content of the transfer
agreement concluded on 24 December 2004 between the club D and the club S
and took note that there are no specific obligations or responsibilities assumed by
the club D. The Chamber concluded that since the player was transferred on loan
to the club S, the latter was the sole responsible as employer.
31.
In addition, the members of the Chamber took note that even though D did not
have responsibilities during the term of the loan during the process of the matter
at stake it was clear that D was not informed formally about difficulties neither
from the player nor from the club S.
32.
In view of the foregoing, the members of the Chamber concluded that D did not
breach any contract and therefore is not responsible to pay any monies to the
player.
33.
In continuation, the members of the Chamber focussed its attention to the request
for damage compensation made by the club D based on the art. 20 of the
employment contract concluded between them on 19 December 2003.
34.
For the sake of clarification the Chamber remarked that the aforementioned
article expressly states that if the player would leave the team without notice or
would breach the contract, in that case the player should compensate by double
the amounts that he received until the moment of the termination of the relevant
contract.
35.
The members of the Chamber reiterated that since the player was transferred “on
loan” to the club S the obligations of D as employer were transferred to the new
club and therefore D is not in a position to invoke any clause of the relevant
employment contract or to claim any compensation from the player.
36.
Therefore, the members of the Chamber decided that the claim of the club D for
damage compensation has to be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, the player J, is rejected.
2.
The counterclaim of the Respondent/Counter-Claimant, D FC, is rejected.
3.
The counterclaim of the Respondent/Counter-Claimant, S FC, is rejected.
*****
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
Player J / Clubs D and S
Page 10 of 11
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:
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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player J / Clubs D and S
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