Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 29 August 2011,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
M,
as Claimant
against the club,
A,
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 13 July 2009, the player M (hereinafter: player or Claimant) and the club A
(hereinafter: club or Respondent) signed an employment contract valid for one
sporting season (hereinafter: contract). Said contract does not specify any expiry
date and, with regard to its duration, refers to the program of the Football
Association J.
2.
According to art. 3 of the contract, the club was to pay to the player the total
amount of USD 15,000 for the sporting season in four installments.
3.
According to art. 4 of the contract, the club was to provide the player with a
furnished apartment, transportation services and medical care.
4.
According to art. 9 of the contract, any party in breach of the contractual terms
shall be imposed a fine in the amount of USD 15,000.
5.
On 22 October 2009, the player lodged a claim in front of FIFA asking that the
employment contract be declared terminated at the club’s fault and to be
awarded payment of the fine amounting to USD 15,000 in accordance with art. 9
of the contract.
6.
In his statement of claim, the player explained that when he arrived in country J,
he was living with the coach, who asked him to join the club, in a suitable
furnished apartment and that he had received USD 6,000 from the club on the
basis of the contract.
7.
The player explained that after the coach’s dismissal, the club dismissed the
interpreter and tried to convince him to leave the club, before it obliged him to
move to a “demolished” apartment, where there was no water nor sanitary
facilities and where “the hygienic conditions were extremely poor.”
8.
The player also asserted that, on 2 August 2009, the club invited him to a
meeting, during which the club’s president insulted him and informed him that
the club was not counting on him any longer, that he had to leave the apartment
immediately and that since the contract was null and void, the club did not have
any obligations towards him.
9.
The player concluded his statement by underlining that when he came back to
the apartment, it was unlocked, all his belongings had been moved and EUR 150
was missing. The player further pointed out that he informed the Football
Association J (FAJ) of his situation.
2/7
10.
In reply to the claim, the club mentioned that the player left the club without
prior notification, whereas he was bound to the club by means of the contract.
11.
The club explained that the player refused to live in the apartment he was given
by the club after having lived with the former coach. The club also explained that
the player was in possession of USD 5,000, which he had not reimbursed.
12.
Furthermore, the new coach from country Y requested the player to stay with the
club until the end of the contractual duration, but the player decided to leave
and returned to country S with the amount of USD 7,000 that he had received
from the club.
13.
In his replica, the player underlined that he was advised to leave the club by the
Football Association J who allegedly “considered [his] safety was at risk and that
it was not the first time that has happened in this club.” In this respect, the player
declared having left country J on 9 August 2009.
14.
Furthermore, the player stated that there is no connection between his claim and
the coach’s departure, pointing out that he continued to perform his professional
duties after the coach’s departure.
15.
Moreover, the player submitted that he met the Y coach once and that the latter
told him that he will not intervene in the situation, since he knew that it is the
club president who decides who plays in the team or not.
16.
Finally, the player mentions that he did receive USD 6,000 from the club as the
first payment based on the contract and he denies having received USD 7,000, as
asserted by the club.
17.
In its duplica, the club rejected the player’s assertion in accordance with which
the Football Association J would have advised him to leave, stating that no
Football Associations J’s employee could adopt such position with regard to one
of its affiliated clubs, which, in addition, is one of the best and biggest clubs in
country J.
18.
As for the apartment, the club stated that it did ask the player to move out from
the apartment that he was sharing with the coach, in order to move to another
apartment in the city, where the player stayed one week. In this respect, the club
asserted that it is not responsible for the state of the apartment and that it is the
player’s duty to take care of its cleanliness.
19.
Furthermore, the club insisted that the player left the club without informing
anyone and left the apartment, despite the country Y coach’s attempts to
convince him to stay.
3/7
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 22 October 2009. Consequently, the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at
hand (cf. art. 21 par. 2 and 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 par. 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 employment-related 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 that the present claim was lodged on
22 October 2009, the 2009 edition of said Regulations (hereinafter: Regulations)
is applicable to the matter at hand 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 started by acknowledging that, on 13 July 2009, an
employment contract was signed by and between the Claimant and the
Respondent, valid for one sportive season, in accordance with which the Claimant
was entitled to receive various remuneration in exchange of rendering his
services to the club, including a furnished apartment, transportation service and
medical care.
5.
The DRC judge took into account that according to the Claimant, the club asked
him to leave the apartment he was sharing with the coach in order to move to
another one, of which the living conditions were unsatisfactory. Additionally, the
Claimant stressed that during a meeting he had with the Respondent, he was
informed that the Respondent was not counting on his services any longer. The
player also pointed out that the club dismissed the interpreter that had assisted
him. The DRC judge noted that, therefore, the Claimant held that the
Respondent had breached its obligations and consequently claimed to receive the
amount of USD 15,000 from the Respondent on the basis of art. 9 of the
employment contract.
4/7
6.
The Respondent, for its part, considered that, based on the contractual terms, it
only had to provide the player with an apartment, which it did, but that it was
not in charge of its cleanliness. In addition, the Respondent held that in spite of
the coach having requested the Claimant to stay until the end of the contractual
duration, the player left the club without notification. Therefore, it deemed that
it is not in breach of its contractual obligations and that the claim has to be
rejected.
7.
In continuation, the DRC judge firstly turned to the parties’ conflicting position
with respect to, inter alia, the second apartment that was provided by the
Respondent to the Claimant after the apparent dismissal of the country S coach.
8.
In particular, the DRC judge took due note of the fact that the Claimant held,
inter alia, that the club had him moved to a “demolished” apartment in which
“the hygienic conditions were very poor”.
9.
The DRC judge also noted that the Respondent recognised having asked the
player to move from the first apartment in which he was living with the coach to
the second apartment, which is at the basis of the Claimant’s claim. Furthermore,
the DRC judge noted that the Respondent held that it was not responsible for the
state of apartment and that it was the player’s duty to take care of its cleanliness.
10.
In this respect, the DRC judge reverted to the contractual clause relating to
accommodation and noted that said clause solely stipulates that the club would
provide the player with a furnished apartment, without any further obligation,
indication or precision.
11.
Subsequently, and irrespective of the preceding consideration, the DRC judge
referred to the documentation presented by the Claimant in support of his
allegations in this respect, i.e. photos taken of an apartment. In this regard, the
DRC judge pointed out that there were no elements on the photos that would
permit to objectively consider that the photos at stake were indeed taken in the
second apartment provided by the club.
12.
The DRC judge then turned his attention to the Claimant’s allegation regarding
the interpreter. In this respect, the DRC judge took into account that the
employment contract did not contain any provision in accordance with which an
interpreter mandated by the Respondent would be at the Claimant’s disposal to
assist him and that, regardless of such fact, no documentary evidence related to
his allegations in this regard was presented by the Claimant.
13.
Continuing his analysis of the matter at hand, the DRC judge turned his attention
to the Claimant’s allegation in accordance with which, during a meeting with the
5/7
Respondent, the latter would have, inter alia, informed the Claimant that it was
not counting on him to play for the team any longer.
14.
In this respect, and referring to art. 12 par. 3 of the Procedural Rules, the DRC
judge deemed essential to underline that the Claimant did not submit any
documentary evidence in connection with such allegation and that, for its part,
the Respondent had challenged this version of the facts.
15.
Furthermore, the DRC judge noted that the Respondent held that the Claimant
left the Respondent without any notification, whereas the new coach had tried
to convince him to stay with the Respondent until the end of the duration of the
employment contract.
16.
What is more, the DRC judge noted that the Claimant did not deny having left
country J without having notified the Respondent about his departure.
17.
In this respect, the DRC judge reverted to the Claimant’s statement by means of
which the latter explained that his departure from country J would have actually
been based on the Football Association J’s alleged recommendation to do so
since his security would have been at risk.
18.
However, the DRC judge wished to highlight that this version of the facts
presented by the Claimant, if at all to be considered a valid reason to leave the
club, had not been corroborated by any documentary evidence.
19.
In light of the above, the DRC judge came to the conclusion that the Claimant
had failed to corroborate his allegations with documentary evidence in
accordance with the general legal principle of burden of proof (cf. art. 12 par. 3
of the Procedural Rules).
20.
In this context, the DRC judge deemed it essential to highlight that at no point in
time the Claimant appears to have put the Respondent in default of its
obligations prior to having left on 9 August 2009.
21.
On account of all the above, the DRC judge decided to reject the Claimant’s claim
relating to breach of contract and compensation for breach of contract.
III.
Decision of the DRC judge
The claim of the Claimant, M, is rejected.
*****
6/7
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 DRC judge:
___________________
Jérôme Valcke
Secretary General
Encl. CAS directives
7/7