Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2010,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Johan Van Gaalen (South Africa), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
P,
as Claimant
against the club,
FC M,
as Respondent
regarding an employment-related dispute
between the player and the club
I.
Facts of the case
1.
On 1 August 2007, the player P (hereinafter referred to as “player” or
“Claimant”) signed an employment contract (hereinafter: “contract”) with the
club FC M (hereinafter referred to as “club” or “Respondent”) valid until 30 June
2008.
2.
According to art. 11 par. 1 and par. 3 of the contract, the player was to receive a
monthly gross salary of EUR 8,750 as well as a monthly amount of EUR 1,000 net
for accommodation.
3.
Art. 20 of the contract stipulates that if the contract is suspended because of an
accident or illness of the player, in accordance with art. 18 of the bargaining
agreement dated 7 June 2006, the club undertakes to pay the player the
guaranteed salary for the first month and, with respect to the second month of
incapacity, to complete the amount the player receives from the insurance
company so that the player finally receives the full contractual salary.
Additionally, said article stipulates that if the contract comes to its end during the
player’s incapacity to perform the contract, the above-described mechanism
remains in force and, after these two months are elapsed, the player will only
receive the amount paid by the insurance company.
4.
On the other hand, in accordance with art. 20 of the contract, in case of
incapacity resulting from a work-related accident, in line with art. 17 of the
bargaining agreement dated 7 June 2006, the club has to pay the guaranteed
salary for the first month and, as from the second month until the sixth month of
incapacity included, the player’s contractual salary. However, in case the contract
comes to its end during the said incapacity, the club shall be liable for the
payment of the contractual salary for two months, the player’s receivables being
afterwards limited to the amount paid by the relevant insurance company only.
5.
By letters dated 1 October 2008 and 17 December 2008, the player put the club in
default of payment of the amount of EUR 52,500 gross plus EUR 6,000
corresponding to outstanding salaries and benefits, respectively, as from January
2008 until June 2008.
6.
On 5 March 2009, the player lodged a claim in front of FIFA against the club so as
to receive payment of the aforementioned amounts. The player asserted in his
statement of claim that the club stopped paying him the above-mentioned
contractual amounts (cf. point I./2. above) as from 1 January 2008, whereas he
had kept on rendering his services to the club until 30 June 2008.
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7.
The club replied that the player could not play for the team due to a chronic
disease affecting one of his knees. Consequently, the club considers that it did
not have to pay the player during the said period, since the player’s situation was
covered by the health insurance system.
8.
The club presented a copy of its exchange of correspondence with the apparent
agent of the player, from which it can be noted, inter alia, that, on the one hand,
the player asserted having sustained an injury during a training session on 7
January 2008 and that, on the other hand, the club considered the medical issue
to be related to a pre-existing condition.
9.
The player, for his part, rejects the club’s representation of the situation and
states that he did not suffer from any chronic disease. The player adds that “his
health troubles have ever appeared unexpectedly as a result of specified
undesired event”.
10.
Furthermore, the player points out that no medical examination whether made
before or after the conclusion of the contract has ever demonstrated any chronic
illness. In support of his position, the player transmitted two medical reports
dated 9 February 2007 and 13 February 2007, the first one stating that his right
thigh muscle does not present any sign of injury, the second one, realised on the
basis of pain in the right thigh, mentioning that the ultra-sound scan did not
permit to identify any anomaly.
11.
The player concludes by pointing out that even if he was suffering from a chronic
disease, the contract does not contain any provision regulating mutual
obligations in the event of the occurrence of a chronic disease. Consequently, the
player considers that the club would in such case still have to comply with its
obligations and to pay the aforesaid amounts.
12.
The club, in its final position, replied by reiterating its position. The club also
asserts that a “judgement” by experts in this kind of medical issues is required.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
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 5
March 2009. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 2 and 3 of the Procedural Rules).
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2.
Subsequently, the members of the Dispute Resolution 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 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 5 March
2009, the 2008 edition of the said regulations (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. In this
respect, the Dispute Resolution Chamber started by acknowledging that on 1
August 2007, an employment contract, valid until the end of June 2008, was
signed by and between the Claimant and the Respondent, in accordance with
which the Claimant was entitled to receive a monthly gross salary in the amount
of EUR 8,750 and a contractual rent allowance amounting to EUR 1,000 net per
month.
5.
It is undisputed that the Respondent ceased paying the Claimant’s salaries and
rent allowance as from January 2008.
6.
In continuation, the members of the Chamber noted that the essence of the
matter at hand lies in the conflicting position of the parties with respect to the
Claimant’s medical condition, which prevented him from executing the contract
as from January 2008.
7.
In this respect the Chamber took note that from the Claimant’s point of view, his
knee injury was resulting from a work-related accident. In support of this
assertion, the player transmitted various information and documentation,
including medical reports, which were duly taken into account by the Chamber.
8.
Additionally, the Chamber took into account a letter transmitted by the
Respondent itself as an attachment to its reply to the claim during the
investigation into the case at hand, and bearing the handwritten annotation “1
February 2008”. Said letter was sent by the apparent player’s agent to the
Respondent with respect to the medical steps to take with regard to the
Claimant’s situation.
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9.
In continuation, the Chamber noted that in this letter, said agent is reporting
that the Claimant sustained an injury during a training session with the club on 7
January 2008, i.e. within the context of the execution of the employment
contract. In this regard, the Chamber also noted that, in its letter dated 5
February 2008 sent as a reply to the Claimant’s apparent agent and a copy of
which was presented by the Respondent, the latter hardly addressed the agent’s
questions, briefly evoking a recent knee use and leaving it up to the club from
which the player was loaned (i.e. T Football Club) to decide about the medical
steps to be taken with regard to the Claimant’s medical situation. From the
contents of said letter, as well as from the Respondent’s position with regard to
the claim lodged before FIFA, the Chamber concluded that the Respondent
deems that the Claimant was suffering from a chronic disease or a pre-existing
medical condition. Additionally, the Chamber noted that the Respondent, in fact,
in said letter, did not explicitly reject the assertion in accordance with which the
Claimant sustained an injury during an official training session.
10.
The Chamber further took into account that the Respondent deemed not being
liable to remit any payment to the Claimant since it considered the Claimant’s
incapacity to result from a chronic disease or a pre-existing condition. Hence, the
Chamber duly noted that in the Respondent’s opinion, the Claimant’s
remuneration should have been covered by the insurance system and not by the
Respondent.
11.
With respect to the Claimant’s medical situation, the Chamber highlighted that
from the documentation in its possession, it can be noted that the Claimant
appears to have rendered his services to the Respondent during the first five
months of the contract and seems to have played normally, i.e. without any sign
of a chronic medical problem having occurred, until the injury that the Claimant
sustained during the training session on 7 January 2008, which led the members
of the Chamber to believe that the existence a chronic knee problem was highly
implausible.
12.
The Chamber also deemed relevant to refer to art. 18 par. 4 of the Regulations,
which requires clubs to undertake all necessary (medical) research and to take all
appropriate steps before concluding a contract.
13.
Furthermore, for the sake of good order, and regardless of the aforementioned
considerations, the Chamber wished to highlight that the Respondent has failed
to present documentation corroborating its position in accordance with 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.
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14.
As a consequence of the above, and bearing in mind art. 18 par. 4 of the
Regulations as well as the circumstance that the Claimant rendered his services to
the Respondent during five months of the contract without any sign of a medical
(chronic) problem until the injury that the Claimant sustained in January 2008
during a training session, the members of the Chamber unanimously agreed to
reject the Respondent’s position that the Claimant was suffering from a chronic
disease and to accept that the Claimant’s incapacity resulted from a work-related
accident/injury.
15.
Moreover, the Chamber deemed it fit to point out that in all situations pertaining
to art. 20 of the contract, the Respondent remains liable for the payment of
salaries to the Claimant for at least the first month and (partially) the second
month of the Claimant’s incapacity, depending on the nature and the duration of
the Claimant’s incapacity. On account of the above, the Chamber wished to point
out that regardless of the nature of the Claimant’s incapacity, the Respondent
did not pay any amount to the Claimant as of January 2008, and consequently
violated the terms of the employment contract.
16.
In this respect, and upon FIFA’s request, the Claimant had indicated that he had
not received any monies from any insurance company over the said period of
time, i.e. as from January 2008 until June 2008.
17.
More generally, regardless of the question as to whether the Respondent and/or
an insurance company would be liable to pay the Claimant’s remuneration, the
Chamber deemed that it is definitely not acceptable that the Claimant stayed
without any single payment over the last six months of the contractual
relationship.
18.
Having said this, the members of the Chamber went on analysing the financial
aspect of the matter at hand and recalled that according to the Claimant, he had
received no salaries nor accommodation allocation as from January 2008 until
June 2008, which was not contested by the Respondent, who relied itself on the
position that such remuneration was due to be paid by the insurance company.
19.
Additionally, the Chamber deemed it important to underline that, as a general
principle, the employer has the obligation to pay the employees’ salaries and
other contractual benefits during the validity of the contract.
20.
Furthermore, the members of the Chamber noted that no domestic regulations
related to art. 20 of the employment contract were provided by the Respondent,
who limits itself to state that the Claimant’s situation should have been dealt
with via the insurance system.
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21.
In the context of the specific case at hand and bearing in mind that the
Claimant’s incapacity was considered to result from a work-related accident (cf.
point II./14. above), the Chamber unanimously agreed that on the basis of art. 20
of the contract the Respondent is liable to pay to the Claimant his salaries as from
the first month until the sixth month of the Claimant’s incapacity, i.e. from
February 2008 to the end of June 2008.
22.
On account of all the above, the Chamber decided that the Respondent has to
pay to the Claimant the gross amount of EUR 52,500, corresponding to six
months of salary for the period starting as of January 2008 until the end of June
2008.
23.
Additionally, and as previously stated, it is in principle the obligation of an
employer to pay the employees’ contractual benefits. The Chamber took into
account that the contractual rent allowance was not included in the scope of said
art. 20 of the contract. Furthermore, the contract does not appear to include any
clause stipulating that in case of the Claimant’s incapacity for whatever reason
the club would no longer be liable to pay said contractual rent allowance during
the period of incapacity. Consequently, the members considered that the
Respondent also had to pay to the Claimant the contractual rent allowance in the
amount of EUR 1,000 net per month over the six months at stake, i.e. as of
January 2008 until the end of June 2008.
24.
On account of all the above, the members of the Chamber decided that the
Respondent is liable to pay to the Claimant his gross salary as from the first
month of incapacity, i.e. January 2008, until the end of the sixth month of
incapacity, i.e. June 2008, as well as the contractual rent allowance in the amount
of EUR 1,000 net per month during the aforesaid six months.
III
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, P, is accepted.
2.
The Respondent, FC, has to pay to the Claimant the amounts of EUR 52,500 gross
and EUR 6,000 net within 30 days as from the date of notification of this decision.
3.
In the event that the amounts due to the Claimant are not paid by the
Respondent within the stated time limit, 5% interest p.a. will fall due as of expiry
of the fixed time limit and the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and decision.
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4.
The Claimant is directed to inform the Respondent 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.
*****
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
Encl. CAS directives
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