Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 September 2012,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Thilina Panditaratne (Sri Lanka), member
on the claim presented by the player,
V,
as Claimant
against the club,
FC E
as Respondent
regarding a dispute arisen between the parties
I.
Facts of the case
1.
On 14 December 2010, the player, V (hereinafter: player or Claimant) lodged a claim
against the club from Country A, FC E (hereinafter: club or Respondent) in front of
FIFA, maintaining that, on 6 July 2010, he concluded an employment contract with
the club valid for two years, under which the club allegedly undertook to pay the
player the amount of EUR 65,000 for the first year and EUR 75,000 for the second
year.
2.
The player submits that this document was signed in the presence of his agents and
that there were many reports in the press about the conclusion of a contract
between the parties.
3.
The player further points out that he was told by the club that he would receive a
copy of the contract after its certification by the Football Association of Country A
(FAA). In spite of his written request to both the club and the Football Association
A, he never received a copy of the alleged contract.
4.
He further asserts that he received an advance payment of EUR 10,000 from the club
and he presented a copy of the pertinent cheque dated 7 July 2010.
5.
In addition, he submits that in order to open a bank account in Country A for salary
payments, the bank requested a confirmation issued by the club that the player was
indeed employed by it. In this regard, the player presented a written confirmation,
dated 12 July 2010, signed by the club with the indication “without damage”
stating that the player signed a contract with the club for the period of 2010-2011.
6.
The player also presented a copy of an apartment rental agreement that he
concluded in the context of the club’s alleged obligation to cover his
accommodation expenses in the monthly amount of EUR 450.
7.
According to the player, after having played two friendly matches in Country A, the
team went to Country B for preparations and training, where he sustained a knee
injury, which needed to be operated.
8.
The player asserts that when he requested to be sent for operation at the club’s
expenses, he was told by the club that it was no longer counting on his services and
it offered to cover the costs of his air ticket to Country C and refused any kind of
compensation, as the club considered that it never signed an employment contract
with him.
9.
The player, therefore, claimed that the club unilaterally terminated the alleged
employment contract without just cause and asks to be awarded the following
monies:
a. EUR 150,000 (including EUR 20,000 as compensation for the loss of a season) plus
interest as of the date on which claim was lodged;
b. xy 7,500 (Currency of Country C) as reimbursement of medical expenses plus
interest as of 28 November 2010;
c. Reimbursement of his legal expenses in relation with this matter.
10.
In reply to the claim, the club denies that the player and the club concluded a
written two years’ contract for the total amount of EUR 140,000 or any other
contract.
11.
The club explains that the player came to Country A in July 2010 and participated in
trainings and joined the summer preparation in Country B, in order for the coach to
decide if the player would meet the club’s needs. No contract was signed with the
player, since the coach did not consider him capable.
12.
The club acknowledges that the player sustained an injury and asserts that he was
sent for medical examination, the costs of which were covered by the club.
13.
The club further points out that it never signed any contract with any player
exceeding the sum of EUR 30,000 per year.
14.
The club acknowledges that it paid EUR 10,000 to the player, which was given to
him as compensation for the time he spent during the trials and expenses he
incurred. The club denies that it was a contractual advance payment.
15.
As regards the document dated 12 July 2010 presented by the player, the club states
that it was given to the player with the possibility that it would sign a contract with
the player. The phrase “he signed a contract” is a clerical error and the club stresses
that it was given “without prejudice” in order for the player to open a bank
account in Country A.
16.
The club presented a letter dated 17 November 2010 addressed to the player, in
which it replied to the player’s request for a copy of the alleged contract by stating
that “we were surprised to hear that you signed a contract with our club” and
emphasizing that the money was given to him as a kind of compensation for the
time he spent and expenses he incurred.
17.
For these reasons, the club fully rejects the claim of the player.
18.
After the closure of the investigation into the matter, the club presented a written
declaration of an agent that was referred to by the player in his claim, stating that
he was never involved in any meeting concerning the player and the club. In
addition, the club presented a written confirmation issued by the FAA on 14
February 2011 stating that the club “almost never has his football contracts exceed
the amount of EUR 30,000 per year”.
19.
In reaction, the player rejected the club’s allegations.
20.
The player informed FIFA that, on 13 January 2011, he signed an employment
contract with the club F, from Country Z.
21.
On 11 February 2011, the FAA informed FIFA that the player was never registered
with FC E and that it never received any request in this regard. Furthermore, the
FAA indicated that it is not in possession of any employment contract between the
parties.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) 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 14 December
2010. 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. article 21 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 2010) the Dispute Resolution Chamber is competent to deal with the
matter at stake, which concerns a dispute with an international dimension between
a player from Country C and a club from Country A in relation to an alleged
employment relationship between the two aforementioned parties invoked by the
player.
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
2010), and considering that the present claim was lodged on 14 December 2010, the
4.
current version of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In doing so, the
members of the Chamber started by acknowledging that, according to the
Claimant, he had, on 6 July 2010, concluded an employment contract with the
Respondent for two years, in accordance with which the Respondent allegedly had
undertaken to pay him the total amount of EUR 140,000 over two years. The
Respondent had allegedly not been interested in his services after the alleged
signing of the employment contract and, therefore, the Claimant asked to be
awarded, inter alia, compensation for breach of contract by the Respondent in the
amount of EUR 150,000.
5.
The Dispute Resolution Chamber furthermore took due note of the fact that the
Respondent, on its part, had categorically denied the conclusion of an employment
contract with the Claimant. The Respondent had admitted that the Claimant came
to Country A in July 2010 and participated in trainings and the summer preparation,
in order for the club’s coach to decide if the Claimant would fit the club’s needs, but
declared that finally no employment contract had been concluded due to the
Claimant’s inability to meet the Respondent’s requirements.
6.
In view of this dissent between the parties in respect of the basic question as to
whether or not an employment contract between them had been concluded, the
members of the Chamber firstly referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. The application of the said principle in the
present matter led the members of the Dispute Resolution Chamber to conclude
that it was up to the player to prove that the employment contract, on the basis of
which he claims compensation for breach of contract from the Respondent, indeed
existed.
7.
Having stated the above, the Dispute Resolution Chamber recalled that the
Claimant maintained that he never received a copy of the employment contract he
asserts having signed with the Respondent. However, the player had submitted a
series of documents in support of his claim which were in continuation examined by
the members of the Chamber.
8.
In this regard, the Dispute Resolution Chamber took note of the twelve months’
rental agreement, which was concluded between the Claimant and a private person
as landlord, however, without any reference whatsoever to the Respondent.
9.
In continuation, the Chamber turned its attention to the payment of EUR 10,000,
which the Claimant maintains having received from the Respondent in advance of
his services, whereas the Respondent held that such payment was made to the
Claimant in order to compensate for the time the Claimant had spent during the
trials at the club and the expenses he had incurred. The Chamber acknowledged
that the relevant document presented by the Claimant in support of his position
does not refer to any purpose and/or reason of payment of such amount.
Consequently, the Chamber concluded that this document does not substantiate the
Claimant’s allegation that such payment was made on the basis of an alleged
employment contract between the parties, nor does it prove the existence of such
alleged contract.
10.
The members of the Chamber then took note of the document dated 12 July 2010
(cf. point I./5. above) in accordance with which, as alleged by the Claimant, the
Respondent acknowledged having signed an employment contract with the
Claimant. The Respondent, for its part, held that the phrase “he signed a contract”
is a clerical error and that it was given to the player ”without prejudice” in order for
him to open a bank account in Country A.
11.
The Chamber further referred to the allegation of the Claimant that the
employment contract was signed in the presence of his agents and that there were
many reports in the press dealing with the alleged conclusion of an employment
contract between the parties. The relevant CD presented by the Claimant in support
of such position appeared to contain internet press articles in Language B of
Country B without any translation into one of the four official languages of FIFA
(English, Spanish, French or German) in accordance with art. 9 par. 1 lit c) of the
Procedural Rules.
12.
Having duly taken note of the aforementioned documentation presented by the
Respondent, the members of the Chamber held that in order for the Chamber to be
able to assume that the Claimant and the Respondent had indeed been bound
through a contractual relationship with the terms as described by the Claimant, it
had to be established, beyond doubt, by documentary evidence, that the said
parties had indeed entered into a respective labour agreement, and, if so, under
which terms. In general, the members of the Chamber held that they could not
assume that an employment contract had been concluded by and between parties
simply based on circumstances which, in general, may be likely but are not certain
to indicate the signing of a contract. In addition, the members of the Chamber
agreed that the Dispute Resolution Chamber must be very careful with accepting
documents, other than the employment contract, as evidence for the conclusion of
a contract.
13.
In respect of the foregoing, the members of the Chamber had to conclude that the
documents presented by the Claimant did not prove beyond doubt that the
Respondent and the Claimant had validly entered into an employment contract.
14. What is more, even if it would have been possible to establish on the basis of the
documents on file, other than an employment contract, that the parties had
entered into a labour agreement, the Chamber wished to highlight that it would
need to be in possession of such labour agreement in order to be able to properly
assess the claim of the Claimant.
15. As a consequence, the Dispute Resolution Chamber decided that, since the Claimant
had not been able to prove beyond doubt that an employment contract had validly
been concluded between himself and the Respondent, there was no possibility for
the Chamber to enter into the question whether or not such alleged employment
contract had been breached.
16. All the above led the Dispute Resolution Chamber to conclude that the claim of the
player has to be rejected.
*****
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, V, is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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
Secretary General
Encl. CAS directives