Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 June 2007,
in the following composition:
Slim Aloulou (Tunisia), President
Percival Zola Majavu (South Africa), member
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
John Didulica (Australia), member
on the claim presented by the player
A, from X
as “Claimant”
against the club,
B, from Y
as “Respondent”
regarding outstanding remuneration
on the basis of an employment contract
concluded between the parties
I.
Facts of the case
1.
In the summer of 2004, player A (hereinafter: the Claimant), born on 13 January
1981, was, according to the Claimant, transferred on a permanent basis from club
C to club B (hereinafter: the Respondent).
2.
On 1 July 2004, the Claimant signed a contract with the Respondent that was valid
from 1 July 2004 to 30 June 2006.
3.
A copy of the aforementioned contract was remitted to the Dispute Resolution
Chamber.
4.
According to the financial provisions in the contract, the Claimant was to receive a
net annual salary of EUR 50,000, payable in 12 monthly instalments.
5.
Article 3 of the contract stipulated that in accordance with article 1, paragraph 1
of the G Code of Obligations, among others, the following conditions would be
significant factors that would justify an immediate termination of the player’s
contract:
-
non-respect or withdrawal of the player’s eligibility status;
the player himself being responsible for him no longer fulfilling the criteria in
the law governing foreigners’ rights to employment and residence in G;
the club not being successful in its attempts to acquire the requisite work and
residence permits for the player.
6.
In article 33 of the contract, the parties agreed that, in case the player not being
of G nationality, once the contract had been signed, the employer, i.e. the
Respondent, would take the necessary steps to acquire the necessary residence
and work permits. It was also agreed that in the event of the necessary permits
not being granted, the contract in question would automatically be terminated
with immediate effect.
7.
On 16 June 2006, the Claimant submitted a formal complaint against the
Respondent with FIFA and explained that in January 2005, he had sustained a
serious injury to his left knee that had prevented him playing, as a result of which
he had undergone surgery in March 2005.
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Player A, from X / Club B, from Y
8.
In particular, the Claimant maintained that between February 2005 and November
2005, he had been treated by various medical experts in W and Z, the costs of
which he had paid himself.
9.
In addition, he stated that in June 2005, i.e. after the end of the 2004/2005 season,
he had travelled to W for a vacation. The Claimant noted that he had already
known at this point that the relevant authorities had not renewed his work permit
for Y. As a result of the non-renewal of his work permit, the Respondent, without
telling the Claimant in person, had informed his previous employer, club C, that
the Claimant’s employment with the Respondent had been terminated and that
he would not be bound to the Respondent as of 1 July 2005.
10.
The Claimant also claimed that the Respondent still owed him the sum of EUR
4,167 as the salary for June 2005.
11.
Finally, the Claimant informed FIFA that he was currently registered as an amateur
for club D, and that he had so far only played a few games for the club in order to
get back into physical shape.
12.
Given these claims and information submitted, the Claimant is of the opinion that
his contract was unilaterally terminated by the Respondent. With this in mind, the
Claimant stressed that according to the FIFA Regulations for the Status and
Transfer of Players, a contract may not be made dependent on the granting of a
work permit. Any provisions to the contrary in the contract between the Claimant
and the Respondent were therefore to be ruled invalid. Consequently, the
contract between the parties had actually been in force for the second season and
the fact that no work permit had been granted to the Claimant did not present
sufficient reason to terminate his contract unilaterally.
13.
In summary, the Claimant is demanding the following:
-confirmation that the Respondent had unilaterally terminated the
contract with the Claimant without just cause;
-payment of the outstanding salary for June 2005 amounting to EUR
4,167 plus interest since the due date;
-EUR 50,000 as compensation for the total amount of money to which the
Claimant would have been entitled until the end of his contract;
-six monthly salaries as additional compensation;
-reimbursement of costs for treatment amounting to EUR 3,519.58;
-imposition of sporting sanctions on the Respondent.
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Player A, from X / Club B, from Y
14.
In response, the Respondent denied that it had ever signed the Claimant on a
permanent basis from the club C. In this regard, the Respondent explained that
the two clubs had agreed that the Claimant would be transferred back to club C
after one year, whereupon the Claimant would then again be transferred to the
Respondent. This procedure had been agreed upon so as to ensure that club C did
not lose its “rights” to the Claimant.
15.
Furthermore, the Respondent made reference to the provisions in the contract,
explaining that as the Claimant was himself responsible for him no longer
satisfying the legal requirements for foreigners’ employment and residence in G,
there had indeed been sufficient reasons for the contract being terminated with
immediate effect. In this regard, the Respondent stated that the relevant FIFA
Regulations had not been amended with the new article 18, paragraph 4 either
when the contract was signed (on 1 July 2004) or when it was terminated (on 30
June 2005). The new FIFA Regulations had only come into force on 1 July 2005.
Consequently, when the Claimant failed to receive a residence permit, i.e. on 30
June 2005, the termination clause in the contract had still been legal, and as such,
the Respondent had been entitled to terminate the contract with immediate
effect.
16.
The Respondent also stated that the Claimant had suffered a knee injury on 29
August 2004. In a letter dated 30 May 2005, the P insurance company, who were
responsible for the Claimant’s obligatory accident insurance, noted that “the
operation could no longer be due to the accident suffered on 29 August 2004, but
rather to an accident that you, i.e. the Claimant, had been involved in four years
ago. For these reasons, as of 1 May 2005, all insurance claims in relation to the
accident on 29 August 2004 will be rejected.” Furthermore, the P insurance
company confirmed that the Claimant would not be able to work at all until
further notice.
17.
Given the above, the Respondent is of the opinion that the ongoing treatment
costs could not be attributed to the injury suffered on 29 August 2004, and that as
a result, the Respondent could not be held liable.
18.
The Respondent confirmed the accuracy of the Claimant’s statement in which he
noted that he had returned to W for a summer holiday at the end of the first
season in June 2005 and that he had not returned to the Respondent at any point.
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Player A, from X / Club B, from Y
19.
With regard to the contractual termination, the Respondent also noted that by
failing to report for pre-season training for the 2005/2006 season, the Claimant
had at least implicitly agreed to the termination, or had actually terminated the
contract himself. Furthermore, the Respondent claimed that by this point, the
Claimant had already found a new employer in W. According to the Respondent,
the Claimant had stated that the only written notice of termination that he had
received had been the notice from the Respondent dated 21 October 2005, by
which point he had already received a copy of the Respondent’s letter to club C.
20.
In addition, the Respondent noted that the Claimant had complained about not
receiving his salary for June 2005 and the fact that he had no more money. The
Respondent stated that there had been an agreement that the Claimant could
collect 1,000 from the Respondent’s offices, with the outstanding amount for June
2005 to be transferred once the player had unregistered with the relevant
authorities. Consequently, given this mutual agreement, the Claimant must have
assumed that his contract with the Respondent would be terminated.
21.
Any claims regarding salary payments or outstanding daily allowances could
therefore only refer to the month of June 2005.
22.
With regard to the salary for June, the Respondent noted that it had, at the time,
not been possible to make the payment because the Claimant had not submitted
the necessary documentation, e.g. doctor’s certificate, receipts for doctor’s
services. The Respondent would only have been able to claim daily allowances
from the insurance company once it was in possession of such documents.
23.
In response, the Claimant stated once again that his transfer to the Respondent
had indeed been on a permanent basis. In this regard, he submitted a letter from
club C, to the Football Association of C dated 12 July 2004, in which the club had
confirmed that the Claimant was, as of 30 June 2004, no longer bound to the club.
24.
Irrespective of this, the Claimant noted that the only relevant matter was the fact
that the parties had concluded a contract for a period of two years.
25.
The Claimant also stated that it was clear that the Respondent had breached the
contract. The letter from the Respondent to club C may have been undated, but it
was still clear that it had been sent in June 2005. In this letter, the Respondent had
explicitly stated that, given the fact that the Claimant had not received a work
permit, the Respondent had no other option than to terminate the Claimant’s
contract. Most notably, the letter had not made any reference to any absences of
the Claimant.
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Player A, from X / Club B, from Y
26.
In addition, the Claimant noted that the Respondent had never contacted him to
order him to return to the club. In fact, the Respondent had already informed club
C that his contract had been terminated.
27.
Moreover, the Claimant stressed that at no point had he explicitly or implicitly
accepted a termination.
28.
Finally, with regard to the applicable regulations, the Claimant stressed that the
new Regulations had to be applied.
29.
In its final statement, the Respondent claimed once again that the Claimant’s
transfer had never been on a permanent basis.
30.
The Respondent also confirmed the accuracy of the Claimant’s statement that it
had terminated the contract with immediate effect in June 2005 because the
Claimant’s Y residence permit had expired and because the Respondent would not
be able to extend the Claimant’s residence permit. This situation had, however,
been listed in the contract as a justifiable reason to terminate the contract with
immediate effect.
31.
In addition, the Respondent repeated its assertion that the contract had been
terminated because the Claimant had actually accepted it by not reporting for preseason training for the 2005/200606 season. At no point had the Claimant ever
informed the Respondent that he would not be accepting the termination, and in
fact, when the Claimant had spoken to the president of the Respondent in July
2005, he had only demanded the outstanding salary for the month of June 2005.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber analysed whether it was competent to deal with the
matter at stake. In this respect, it referred to art. 18 par. 2 and 3 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 16 June 2006,
as a consequence the Chamber concluded that the revised Rules Governing
Procedures (edition 2005) on matters pending before the decision making bodies
of FIFA are applicable on the matter at hand.
2.
With regard to the competence of the Chamber, art. 3 par. 1 of the abovementioned Rules states that the Dispute Resolution Chamber shall examine its
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Player A, from X / Club B, from Y
jurisdiction in the light of articles 22 to 24 of the current version of the
Regulations for the Status and Transfer of Players (edition 2005). In accordance
with art. 24 par. 1 in connection with art. 22 (b) of the aforementioned
Regulations, the Dispute Resolution Chamber shall adjudicate on employmentrelated disputes between a club and a player that have an international
dimension.
3.
As a consequence, the Dispute Resolution Chamber is the competent body to
decide on the present litigation involving an X player and a club from Y regarding
a claim in connection with an employment contract.
4.
Subsequently, the members of the Chamber analyzed which edition of the
Regulations for the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber referred, on the one hand,
to art. 26 par. 1 and 2 of the Regulations for the Status and Transfer of Players
(edition 2005) and, on the other hand, to the fact that the relevant contract at the
basis of the present dispute was signed on 1 July 2004 and the claim was lodged at
FIFA on 16 June 2006. In view of the aforementioned, the Chamber concluded that
the current FIFA Regulations for the Status and Transfer of Players (edition 2005,
hereinafter: the Regulations) are applicable to the case at hand as to the
substance.
5.
Entering into the substance of the matter, the Dispute Resolution Chamber
acknowledged the documentation contained in the file and, in view of the
circumstances of the case at stake, focused its attention on the question whether
an unjustified breach of the employment contract between the Claimant and the
Respondent occurred and which party is responsible for such possible breach of
contract, and to verify and decide upon possible consequences to be applied for
breach of contract.
6.
In this respect, the members of the Chamber started by acknowledging that on 1
July 2004, the Claimant and the Respondent signed an employment contract which
was to be valid until 30 June 2006.
7.
Moreover, the members of the Chamber took note that by virtue of the said
contract, the Claimant was, inter alia, entitled to receive a yearly salary of EUR
50,000 net payable in twelve instalments.
8.
In continuation, the Chamber noted that whereas the Claimant maintains that the
Respondent failed to pay him one monthly salary and the costs of medical
treatment and, furthermore, terminated the employment signed between the two
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Player A, from X / Club B, from Y
parties unilaterally and without just cause, the Respondent, on the other hand, in
essence, claims having had valid reasons for the termination of the contract
entered into with the Claimant.
9.
First of all, the Chamber turned its attention to the Claimant’s allegation
according to which the Respondent failed to pay him the costs for treatment after
he got injured in January 2005. Therefore, the Claimant requests the refund of the
incurred medical costs amounting to EUR 3,519.58. The Chamber further remarked
that the Claimant, in order to corroborate his statements, provided several copies
of invoices generated in connection with the treatment of his injury.
10.
In this context, the Chamber referred to the general principle according to which
it comes under the club’s obligations to be responsible for its players in case of
injury occurred during the validity and performance of the employment contract,
especially if, like in the case at hand, the injury is caused during the period of time
a player rendered his services to his club in fulfilment of his 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 art. 13 et seq. of the Regulations. Any conclusion establishing the
contrary would mean to prejudice the weaker contracting party (the employee).
As a result to this principle, it is in particular the club’s obligation to pay medical
costs incurred by a player following his inability to work. Furthermore, the
Chamber reiterated that in the employment contract in question the Respondent
had committed itself to pay health treatment and therapy to the Claimant.
11.
In this respect, the Chamber took note of the fact that the Respondent could not
provide documentary evidence for having paid the relevant medical costs incurred
by the Claimant. Moreover, the Chamber noted that the Respondent referred to a
letter dated 30 May 2005 from the P insurance company in which the
latter referred to an accident the Claimant apparently suffered on 29 August 2004
and stating that as of 1 May 2005 all insurance claims in relation to the accident
on 29 August 2004 will be rejected.
12.
Taking into account the above, the Chamber revealed that the Respondent did not
take position to the allegations of the Claimant for having suffered an injury in
January 2005 but merely referred to an accident incurred by the Claimant in
August 2004. The Chamber concluded that the Respondent could thus not refute
the Claimant allegations that the Respondent failed to pay his medical costs
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Player A, from X / Club B, from Y
incurred in connection with his injury sustained in fulfilment of his contractual
obligations.
13.
In continuation, as regards the divergent statements of both parties whether or
not the Claimant was transferred from club C, to the Claimant on a permanent
basis, the Chamber deemed that these explanations have no impact on the matter
at stake, i.e. valid reasons for the termination of the two years employment
contract entered into by and between the Claimant and the Respondent on 1 July
2004.
14.
Subsequently, and related to the question whether or not the Respondent had just
cause to terminate the employment contract with the Claimant, the members of
the Chamber present at the meeting took note that the Respondent informed the
Claimant’s former club C, in its letter, without bearing a date, that it was
compelled to terminate the employment contract it signed with the Claimant
prematurely and with immediate effect on 30 June 2005 due to the fact the
Claimant’s residence permit for Y had expired on 30 June 2005 and had not been
extended by the relevant authorities.
15.
In this respect, the Chamber took note that the Respondent, by referring to the
provision contained in the relevant employment contract, takes the view that, as
the Claimant was himself responsible for no longer satisfying the legal
requirements for foreigner’s employment and residence in G, there had indeed
been sufficient reasons for the contract being terminated with immediate effect.
Moreover, the Respondent asserted that at the moment when the Claimant
allegedly failed to receive the required residence permit, i.e. on 30 June 2005, the
termination clause in the employment contract had still been legal, considering
that the art. 18 par. 4 contained in the amended version of the Regulations had
come into force only on 1 July 2005, date of the coming into force of the new
Regulations (version 2005).
16.
To this regard, the deciding body, at first, noticed that the Respondent did not
provide any written documentary evidence proving that the Claimant was indeed
responsible for no longer satisfying the legal requirements for foreign players to
stay in Y. Contrary to the statements of the Respondent, the contract signed
between the Claimant and the Respondent provided that the employer, i.e. the
Respondent, would take the necessary steps to acquire the residence and work
permit.
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Player A, from X / Club B, from Y
17.
Moreover, the Dispute Resolution Chamber underscored that it is a basic principle
of labour law that an employer has to provide his employees with a residence
permit, if need be. If an employer does not undertake the necessary to provide his
employees with a residence and/or work permit, and if this compels the player to
leave the country where he is employed, and therefore to quit his work, this is
basically to be considered as an unjustified breach of the employment contract by
the employer. To this end, the Chamber referred also to the contents of art. 18
par. 4 of the Regulations, which clearly states that the validity of a contract may
not be made subject to a positive medical examination and/or the granting of a
work permit. The members deemed that, although the aforementioned art. 18
par. 4 of the Regulations does not specifically contain the need of a club to ensure
that the player’s residence permit is obtained, the sense of this article requires that
any such conditions that are included in a contract are not recognised. The
meaning of the aforementioned article is to require a club to undertake all
necessary research and to take all appropriate steps before concluding a contract.
Once a contract has been signed, all parties involved can rely in good faith on it
being respected throughout its agreed validity.
18.
In addition to that, the deciding authority lend emphasis to the fact that if an
employer maintains that it does not bear any responsibility for the extension of
the residence permit, it is up to the employer to prove this allegation. In case the
employer fails to prove this allegation, it has to be presumed that it bears the
responsibility for the extension of the residence permit.
19.
Since the Respondent did not present unambiguous written evidence proving that
it does not bear any responsibility for the extension of the residence permit of the
Claimant, and since the relevant permit of the Claimant expired on 30 June 2005,
i.e. one year before the ordinary expiration of the employment contract, the
Dispute Resolution Chamber stated that this behaviour of the Respondent has to
be considered as a breach of contract without just cause.
20.
On the other hand, the Chamber tackled the objection raised by the Respondent
according to which the relevant Regulations had not been amended with the new
art. 18 par. 4 either when the contract was signed, i.e. on 1 July 2004, or when it
was terminated, i.e. on 30 June 2005. The new Regulations (version 2005) had only
come into force on 1 July 2005. Therefore, the Respondent is of the view that
when the Claimant failed to receive a residence permit, i.e. on 30 June 2005, the
termination clause in the contract had still been legal, which is the reason why it
had just cause to terminate the contract with the Claimant.
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Player A, from X / Club B, from Y
21.
In this respect, the members of the Chamber referred to point II.4 of the precedent
considerations, whereby the Dispute Resolution Chamber established that the
current version of the Regulations (edition 2005), is applicable to the case at hand
as to the substance. Yet, for the sake of completeness, the Chamber recalled that
already the former version of the Regulations (edition 2001) established in its art.
30 par. 1 that the validity of an employment contract between a player and a club
cannot be made conditional upon the positive results of a medical examination or
upon the acquisition of a work permit. Thus, the crucial question in the matter at
stake, whether or not the Respondent had just cause to terminate the
employment contract with the Claimant due to the fact that the latter’s residence
permit was not extended by the relevant authorities, was already regulated by the
former version of the Regulations. Therefore, the Chamber decided not to
consider the statements of the Respondent in this regard as valid.
22.
In view of all of the above, the Chamber referred to its well-established
jurisprudence and unanimously reached the conclusion that the reasons raised by
the Respondent for having just cause to terminate the employment contract with
the Claimant have to be considered as unjustified. Therefore, the Dispute
Resolution Chamber concluded that the Respondent terminated the employment
contract it entered into with the Claimant without just cause.
23.
In continuation, and in application of art. 17 of the Regulations, the members had
to deliberate whether the Respondent is accountable for outstanding payments
and compensation towards the Claimant.
24.
In this respect, as far as the responsibility of the Respondent for outstanding
payments is concerned, the Dispute Resolution Chamber stated that the latter has
to pay to the Claimant the remaining value of the employment contract until the
date of early termination of the contract.
25.
Taking into account the above, the Chamber reached the conclusion that the
Respondent must pay to the Claimant the amount of EUR 4,167 reflecting the
salary for June 2005 which remained unpaid under the employment contract
before its premature termination on 30 June 2006.
26.
In continuation, the Chamber turned its attention to the consequences in
connection with the breach of the employment contract and concluded that in
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Player A, from X / Club B, from Y
accordance with art. 17 par. 1 of the Regulations the Respondent is liable to pay
compensation to the Claimant for the breach of contract.
27.
To this end, the Chamber referred to art. 17 par. 1 of the Regulations, in particular
to the non-exhaustive enumeration of objective criteria, and took into account the
remuneration due to the Claimant under the employment contract singed
between the parties to the present dispute as well as the time remaining on the
said employment contract as from the date the contract was terminated by the
Respondent. Equally, the Chamber considered that the Claimant had apparently
not been able to find a new club playing professional football, but is currently
registered as an amateur for a W club.
28.
In view of all of the above, the Dispute Resolution Chamber decided that an
amount of EUR 40,000 appears to be reasonable and justified. Therefore, the
Respondent is liable to pay to the Claimant a compensation in the amount of EUR
40,000. Equally, the Respondent shall pay the Claimant EUR 4,167 as outstanding
salary for June 2005 and shall also refund the medical costs of EUR 3,519.58
satisfactory corroborated with documentary evidence.
29.
As a result, the Chamber unanimously decided that the Respondent must pay to
the Claimant the total amount of EUR 47,686.58.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, player A, is partially accepted.
2.
The Respondent, club B, must pay to the Claimant, player A, the total amount of
EUR 47,686.58 within 30 days as from the date of notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline an
interest rate of 5% per year will apply as of expiring of the fixed time limit and
the present matter shall be submitted to FIFA’s Disciplinary Committee, so that the
necessary disciplinary sanctions may be imposed.
4.
Any further claim lodged by the Claimant, player A, are rejected.
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Player A, from X / Club B, from Y
5.
The Claimant, player A, is directed to inform the Respondent, club B, 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 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
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
General Secretary
Encl.
CAS directives
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Player A, from X / Club B, from Y