Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 10 August 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Michele Colucci (Italy), member
Mick McGuire (England), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
A, from X,
as “Claimant / Counter-Respondent”
against the club,
B, from Y,
as “Respondent / Counter-Claimant”
regarding a dispute arisen between the parties
on the basis of an employment contract.
I.
Facts of the case
1.
On 19 July 2005 player A (hereinafter: the Claimant), born on 2 March 1981,
signed a “standard” employment contract with club B (hereinafter: the
Respondent), running from 19 July 2005 to 31 May 2006. According to the
contract, the Claimant was entitled to receive 50,000, i.e. around USD 37,675, cash
in hand. The same day, the parties signed a “private” employment contract valid
from 1 July 2005 to 31 May 2006 with an option for the Respondent to unilaterally
renew the said contract for a further year.
2.
Under the terms of this “private” employment contract, the Claimant was entitled
to receive USD 200,000 (“guaranteed“), payable as follows :
- USD 100,000
- USD 10,000
- USD 1,470
- USD 735
as a signing-on fee;
in monthly salary from 15 August 2005 to 15 May 2006;
also payable within seven days of the 15th of each month;
bonuses for matches played;
match bonus if the Claimant was on the team sheet but did
not actually enter the play.
3.
The Claimant was also entitled to a three-room apartment, a car and two return
trips to X per year for him, his wife and his children.
4.
On 4 June 2006 the Claimant lodged a complaint with FIFA against the
Respondent, alleging that the latter had terminated the contract without just
cause, for which reason he was claiming:
-
-
-
the remainder of the signing-on fee amounting to USD 50,000;
salary for the period 1 July 2005 to 31 May 2006 amounting to USD
100,000;
USD 23,520 in damages for loss of earnings due to the impossibility of
claiming bonuses for the remainder of the season (16 matches
according to the Claimant);
USD 249,980 in damages for loss of earnings due to impossibility of
renewing the contract for the 2006/2007 season;
USD 400,000 in damages for non-pecuniary loss due to the physical
pain suffered during the training sessions he was obliged to take part
in even though his physical incapacity had been medically certified;
USD 400,000 in damages on the basis of article 17 of the FIFA
Regulations for the Status and Transfer of Players;
EUR 22,000 in damages for the loss of revenue in kind (house, plane
tickets, car).
Player A, from X / Club B, from Y
2
5.
The Claimant alleged that he got injured during a match on 6 August 2005. He
was examined by a club doctor at the time, who allegedly deemed him able to
continue playing for the rest of the season and the Respondent obliged him to
take part in the team’s two daily training sessions for another month despite the
extreme pain from which he was suffering. At the same time, the Respondent
allegedly refused to accept his financial claims by only paying part of the signingon fee (USD 50,000 of USD 100,000) and no salary payments at all.
6.
The Claimant explained that he returned to X in September 2005 to receive
treatment after his health deteriorated. On 7 September 2005, a certain Dr. Z
established through a scan that he had suffered a fracture of his fifth metatarsal
(a bone in the foot) some 25 days previously. Dr. Z therefore issued a medical
certificate stating, inter alia, that the Claimant would probably not be able to
resume any sporting activity for another five weeks (i.e. three months after
sustaining the injury). On 14 November 2005 the Claimant was examined once
again with the diagnosis that the injury was 85% healed although he was yet
unable to take part in any sport.
7.
The Claimant asserted that, on 25 January 2006, he invited the Respondent to
honour its contractual obligations without delay, i.e. to pay the USD 50,000
signing-on fee, compensate him for the privileges he would not be able to enjoy
such as a house, car, etc. In said letter, the Claimant explained to the Respondent
that he considered the contract they signed together null and void from the date
of the letter, i.e. 25 January 2006.
8.
The Respondent explained that the sum of USD 50,000 was paid to the Claimant
on 13 September 2005. The outstanding amount, namely USD 50,000 (the
remainder of the signing-on fee) was not paid to the Claimant because he had
been abroad and had not left his bank details. In addition, the Respondent
insisted that in the first week of the 2005/2006 season, the Claimant obtained
three days off to visit his family after the match against club C. At the time, the
Claimant had not informed the Respondent of any kind of injury. After these
three days, he failed to reappear and gave no further word to the club.
9.
The Respondent is of the opinion that it was the Claimant’s duty to inform it of his
injury, which would have enabled the Respondent to offer him medical treatment.
The Claimant neglected to inform the Respondent of any injury. The Respondent
underlined that the Claimant did not receive any authorisation to travel to X to
receive treatment.
10.
In this regard, the Respondent submitted various notary deeds dated 16, 17 and 18
August and 27, 28 and 2 September 2005 to the Dispute Resolution Chamber
Player A, from X / Club B, from Y
3
apparently confirming that the Claimant did not attend trainings between 16 to
18 August and between 27 to 29 September 2005.
11.
The Respondent considered the Claimant to have breached the contract through
his own conduct (absence at training, no word during his stay abroad). For this
reason, he allegedly breached the contractual relationship with the Respondent
on 30 January 2006, leaving himself free to find another club.
12.
With regard to the compensation for the Claimant, the Respondent does not
believe that there is any evidence to support his claim. The Respondent also points
out that only it had the option to extend the employment contract with the
Claimant.
13.
The Respondent further underlined the fact that the Claimant cannot claim match
bonuses because he played a total of 28 minutes for the club only.
14.
In view of its position, the Respondent rejected the Claimant’s claims and in turn
lodged a claim against the Claimant (counterclaim) for USD 50,000 (part of the
amount it paid as a signing-on fee)
15.
In his second statement, the Claimant alleged that he was still suffering the aftereffects of the late diagnosis of his injury, caused by the club’s forcing him to train.
He further alleged that at the time of the drafting of the notary deeds dated 16,
17 and 18 August 2005, the Respondent had not honoured its financial
commitments and merely paid USD 50,000 on 13 September 2005.
16.
The Claimant further asserted that as of 27 and 28 September 2005, the
Respondent was in possession of medical certificates attesting his state of health,
for which reason he was authorised to travel to X.
17.
The Claimant also emphasized the fact that the Respondent was not in a position
to unilaterally terminate the contract because the agreement of both parties were
necessary in order to render the termination legal. In addition, he alleged that he
was only informed of the termination of the contract by the Respondent’s
statement in the course of these proceedings before FIFA. The notary did not
appear to have taken the trouble to contact him beforehand.
18.
The Claimant was particularly adamant that the Respondent’s affirmation that it
was not aware of his injury is a lie. In this regard, he points out that it is not
common practice to give a new player three days’ leave to visit his family when
barely a single league match has been played. Furthermore, after his injury in the
38th minute of the match, an ambulance allegedly transported him from the edge
of the pitch to hospital.
Player A, from X / Club B, from Y
4
19.
The Claimant also highlighted the fact that the Respondent only paid him USD
50,000 after he had threatened to take the matter to FIFA.
20.
With regard to the Respondent’s criticism that the Claimant did not inform it of
his trip to X, the Claimant asserted that he gave the Respondent his mobile
telephone number on the day of his departure. The players’ agent who signed the
employment contract with the Claimant is alleged to appear on FIFA’s official list.
21.
The Claimant further alleged that he never received a car and that the house was
not furnished as stipulated in the contract.
22.
The Respondent objected that scans of the Claimant could easily be of someone
else and that the Claimant was quite capable of deliberately injuring himself.
Finally, the Respondent added that the Claimant did not leave any details for
contacting him in X.
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 4 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 to 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
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 Y club regarding a
contractual dispute arisen between the parties involved.
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,
Player A, from X / Club B, from Y
5
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 19 July 2005 and the claim was lodged
at FIFA on 4 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 members of the Chamber
acknowledged the documentation contained in the file, and in view of the
circumstances of the matter at stake, focused its considerations on the question
whether an unjustified breach of the employment contract signed by and
between the Claimant and the Respondent occurred and, in the affirmative, which
party is responsible for such breach of contract and to verify and decide about the
consequences for the possible breach of the employment contract.
6.
In this respect, the Chamber started its deliberations by acknowledging that the
Claimant and the Respondent signed on 19 July 2005 a “private” employment
contract which was designated to be valid until 31 May 2006.
7.
As regards the contents of the “private” employment contract, the Chamber
observed that the Claimant was entitled to receive, inter alia, the amount of USD
100,000 as a signing-on fee and USD 10,000 as a monthly salary as from 15 August
2005 to 15 May 2006.
8.
The members of the Chamber then took note of the Claimant’s allegations
according to which the Respondent breached the employment contract by forcing
him to train with the team although, on 6 August 2005, he got injured. The
Claimant further maintained that the Respondent had paid him only a part of the
agreed signing-on fee, i.e. USD 50,000, and failed to pay him any salaries since the
beginning of their contractual relationship.
9.
Having said that, the members subsequently noted the Respondent’s objections
towards the Claimant’s claim in which it stressed having paid the Claimant USD
50,000 as a part of the amount related to the signing-on fee, i.e. USD 100,000, and
that the Claimant unwarrantedly left the club without giving prior notice, thus
without the Respondent’s authorization. Therefore, the Respondent lodged a
counterclaim against the Claimant for the reimbursement of the amount of USD
50,000 that the latter unduly received as advanced payment.
10.
In continuation, the Chamber acknowledged that the Claimant appears to have
been absent from the Respondent’s club training.
Player A, from X / Club B, from Y
6
11.
In view of the foregoing, the deciding body deemed it necessary to figure out
whether the Claimant had just cause to be absent from the Respondent.
12.
Thereto, at first, the members of the Chamber deemed it appropriate to hold that,
in principle, it is the obligation of a player to render his services to the club in
accordance with the terms agreed upon in the contract signed between the two
parties. Should the player, for whatsoever reasons, not be able to offer his services
to the club as stipulated in the relevant contract, he has, inter alia, the obligation
to inform the club, his employer, accordingly.
13.
In this respect, the members of the Chamber took note of the medical certificates
remitted to the file by the Claimant.
14.
Moreover, the Chamber took note that the Claimant maintained having been
forced by the Respondent to continue with the training although he suffered
extreme pain. According to the Claimant, allegedly at the beginning of September
2005, he travelled to X in order to receive treatment after his state of health
deteriorated.
15.
In this context, the members of the Chamber further noticed the Claimant’s
explanation that the Respondent had always been updated of his whereabouts
and was in particular provided with copies of medical certificates attesting his
state of health as of 27 September 2005.
16.
Taking into account the above, the Chamber started by pronouncing its doubt
that the Claimant, having obviously suffered a severe injury as mentioned by the
medical reports, may have continued to train with the Respondent for, as alleged
by the Claimant, another month and this twice a day.
17.
Notwithstanding the above, the Chamber observed, however, that the Claimant
was not able to provide any documentary evidence to support his statements that
the Respondent was informed of his injury or of his whereabouts after he left Y.
18.
The Chamber further held that it would have been the duty of the Claimant to
have either the Respondent’s doctor examining his state of health prior to
travelling to X or to have, at least, the written authorization of the Respondent
for his absenteeism.
19.
In this context, the Chamber emphasized that in accordance with the legal
principle of the burden of proof, which is a basic principle in every legal system, a
party asserting a fact has the obligation to prove the same. Therefore, due to the
lack of proof concerning the Claimant’s allegations that the Respondent was
notified about his premature departure to X and in application of the
Player A, from X / Club B, from Y
7
aforementioned principle, the Dispute Resolution Chamber concluded that the
Claimant neglected his duty under the employment contract, that is, to inform the
Respondent of his whereabouts and his state of health.
20.
In view of all the above, the deciding authority found that the Claimant did not
comply with his duties under the employment contract and thereby breached the
employment contract signed between the parties prematurely and without just
cause.
21.
In this context, the Chamber noted that the Respondent, by means of its
counterclaim, claims the refund of the amounts it paid to the Claimant, i.e. USD
50,000 as a part of the signing-on fee.
22.
In this respect, the members of the Chamber explained that the Claimant was
present with the club at least until 15 August 2005 and therefore is entitled to
receive the relevant remuneration related to this month. Such remuneration
consists at first of the first monthly salary in the amount of USD 10,000. In addition
to that, the Chamber held that the Claimant is also entitled to receive a pro rate
part of the signing-on fee corresponding to each month which equates to an
amount of USD 9,090 (i.e. 1/11 of USD 100,000) and resulting in a total monthly
remuneration of USD 19,090 to which the Claimant was entitled to for the time he
spent under contract with the Respondent.
23.
On the other hand, as regards the advanced payment the Claimant received from
the Respondent in the amount of USD 50,000, and which the Respondent claims
back, the deciding body decided that the Claimant has to refund this unduly
received amount to the Respondent. Consequently, having established that the
Claimant was entitled to receive the amount of USD 19,090 but, on the other
hand, is liable for the reimbursement of USD 50,000, this results to an amount of
USD 30,910 that the Claimant must reimburse to the Respondent.
24.
In view of the aforementioned considerations, the Dispute Resolution Chamber
decided that the Claimant has to refund the Respondent the amount of USD
30,910.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, player A, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, club B, is partially
accepted.
Player A, from X / Club B, from Y
8
3.
The Claimant / Counter-Respondent, player A, has to pay the amount of USD
30,910 to the Respondent / Counter-Claimant, club B, within 30 days as from the
date of notification of this decision.
4.
If the aforementioned sum is not paid within the aforementioned deadline, an
interest rate of 5% p.a. will apply as of expiry 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.
5.
The Respondent / Counter-Claimant, club B, is directed to inform the Claimant /
Counter-Respondent, player A, 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
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receiving notification of this decision and
has to contain all elements in accordance with point 2 of the directives issued by
the CAS, copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for the filing of the statement of appeal, the appellant
shall file with the CAS a brief stating the facts and legal arguments giving rise to
the appeal (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
General Secretary
Encl: CAS directives
Player A, from X / Club B, from Y
9