Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 14 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Theo van Seggelen (the Netherlands), member
Gerardo Movilla (Spain), member
Rinaldo Martorelli (Brazil), member
Joaquim Evangelista (Portugal), member
Philippe Diallo (France), member
Ivan Gazidis (USA), member
Percival Majavu (South Africa), member
Essa M. Saleh Al-Housani (UAE), member
on the claim presented by the player
Xxx, Xxx,
as Claimant/Counter-Respondent
against the club
Xxx, Xxx,
as Respondent/Counter-Claimant
regarding a contractual dispute between the parties.
I.
Facts of the case
1.
On 5 January 2006, the player Xxx (hereinafter: the Claimant), submitted a claim
at FIFA against the club Xxx (hereinafter: the Respondent), requesting the
payment of:
-
allegedly outstanding salaries for the months July, August, September
and October 2005 in the amount of USD 17,000,
allegedly due costs for flight tickets in the amount of EUR 1,552 and
medical expenses allegedly incurred in the amounts of USD 1,974 and
EUR 1,670.
2.
The Claimant’s claim is based on an employment contract signed between him and
the Respondent on 5 July 2005, valid for 6 months during the season 2005, i.e.
from July until December 2005, according to which he is entitled to receive a
signing on fee in the amount of USD 40,000 and salaries in the amount of USD
27,000, payable in equal monthly instalments of USD 4,500 each, and 2 annual
flight tickets.
3.
In particular, the Claimant argued that, on 11 July 2005, he became ill. As a
consequence, during July 2005, he had to play in pain and to see the Respondent’s
doctor several times and, from the end of July 2005 until his recovery in October
2005, he was completely prevented from playing for the Respondent. In this sense,
the Claimant stated that during his absence due to his illness he had to undergo
several medical examinations and treatments.
4.
Moreover, the Claimant affirmed that after having returned to the Respondent on
15 October 2005, on 26 October 2005, he was forced to sign a second contract
with the Respondent, valid for the 6 months during the season 2006, i.e. from
January until June 2006, despite not having been paid the claimed salaries, the
travelling costs and the medical expenses under the first contract. In particular, the
Claimant stated that after having been forced to sign the second employment
contract but having been asked to leave the club at the same time, on 27 October
2005, he left the Respondent and returned definitely to xxx, where he was
contracted by the club Xxx as from January 2006.
5.
In its response of 13 April 2006, the Respondent/Counter-Claimant (hereinafter:
the Respondent) lodged a counter-claim against the Claimant/CounterRespondent (hereinafter: the Claimant), by means of which it requested that the
Claimant should resume duty with it and, otherwise, refund the paid signing on
fee in the amount of USD 40,000. In this sense, the Respondent argued that the
Claimant failed to comply with his contractual obligations deriving from an
Player Xxx, Xxx / Club Xxx, Xxx
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employment contract signed between the contractual parties on 6 July 2005, valid
for the duration of one year, i.e. from July 2005 until 30 June 2006. In particular,
the Respondent stated that the Claimant left the club and returned to Xxx
without its knowledge and authorization after having received the signing on fee
on 8 July 2005.
6.
In fact, the Claimant was hospitalized in Xxx from 31 July until 2 August 2005, in
Xxx on 3 August 2005 as well as in Xxx on 6 September 2005 and from 4 to 5
October 2005. According to the medical report issued by a Xxx doctor on 4 August
2005 the Claimant was recommended 4 weeks of regimen on bed. However,
according to the medical report issued by a Xxx doctor on 8 September 2005 the
Claimant had indeed to go on with his treatment but was found to be able to play
football on a regular basis. This diagnosis was confirmed by the medical report
issued by the same Xxx doctor on 6 October 2005.
7.
The player presented documentary evidence regarding the following expenses
allegedly incurred:
-
-
return flight tickets from Xxx to Xxx in the amount of EUR 1,445 (EUR
916 + EUR 529),
medical expenses in Xxx (including the return flight tickets from Xxx to
Xxx) in the amount of EUR 1,679 (EUR 512 + EUR 524 + EUR 392 + EUR
164 + EUR 87),
medical expenses in Xxx in the amount of USD 840 (USD 315 + USD 25 +
USD 250 + USD 150 + USD 100) and
medical expenses in Xxx (including the flight tickets from Xxx to Xxx and
from Xxx to Xxx) in the amount of USD 1,231 (USD 86 + USD 298 + USD
812 + USD 35).
8.
On 5 January 2006, the Association of Football Federations of Xxx refused to issue
the International Transfer Certificate (ITC) for the Claimant upon request of the
Football Association of Xxx dated 30 December 2005 due to the existing contract
between the Claimant and the Respondent.
9.
On 26 January 2006, the Association of Football Federations of Xxx informed the
Football Association of Xxx that the Claimant according to its information was
registered for its member club, Xxx. Therefore, it asked the Football Association of
Xxx to urge its affiliate to send the Claimant back to the Respondent.
10.
The Football Association of Xxx omitted to provide FIFA with information
regarding the circumstances of the Claimant’s alleged registration for its affiliated
club, Xxx, despite having been invited to do so on 3 and 19 May 2006.
Player Xxx, Xxx / Club Xxx, Xxx
3
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber had to analyze 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 5 January 2006, as a consequence the Chamber concluded
that the revised Rules Governing Procedures (edition 2005) to 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 combination 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 Xxx player and an Xxx club regarding
a dispute related to 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(s) at
the basis of the present dispute was (were) signed in July 2005 and the claim was
lodged at FIFA on 5 January 2006. In view of the aforementioned, the Chamber
concluded that the current FIFA Regulations for the Status and Transfers of Players
(edition 2005, hereinafter: the Regulations) are applicable to the case at hand as
to the substance.
5.
In continuation, and entering into the substance of the matter, the members of
the Chamber started by acknowledging that, on the one hand, the Claimant based
on an employment contract signed by and between the parties on 5 July 2005,
valid for 6 months, claimed allegedly outstanding salaries for the months of July,
August, September and October 2005 in the amount of USD 17,000, allegedly due
costs for flight tickets in the amount of EUR 1,552 and medical expenses allegedly
incurred in the amounts of USD 1,974 and EUR 1,670. On the other hand, the
Chamber noted that the Respondent claimed the reimbursement of an allegedly
Player Xxx, Xxx / Club Xxx, Xxx
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paid signing on fee in the amount of USD 40,000 for breach of another
employment contract signed by and between the parties on 6 July 2005, valid for
one year.
6.
In this regard, the Chamber first and foremost acknowledged that according to
the employment contract dated 5 July 2005 the Claimant was entitled to a signing
on fee in the amount of USD 40,000, salaries in the amount of USD 27,000,
payable in 6 equal monthly instalments of USD 4,500 each, and 2 annual flight
tickets, whereas, the other employment contract dated 6 July 2005 only provided
the Claimant for the right to receive a basic remuneration in the amount of AZN
1,000,000 (approximately USD 1,174). In particular, the Chamber noted that the
employment contract dated 5 July 2005 stipulated better remuneration terms for
the Claimant than the one dated 6 July 2005. Therefore, the Chamber established
that, in accordance with its well-established jurisprudence, only the employment
contract dated 5 July 2005 (hereinafter: the relevant employment contract) should
be taken into account in order to duly consider the parties’ respective financial
claims.
7.
Furthermore, the Chamber noted that, on the one hand, the Claimant was of the
opinion that the Respondent failed to pay him the above-mentioned monies until
his departure on 27 October 2005 (cf. point II.5.), then forced him to sign a second
contract for another 6 months, valid from January until June 2006, and finally
asked him to leave the club. In particular, the Chamber noted that the Claimant
affirmed that he was absent from work as from July 2005 until 15 October 2005
due to an illness and the pertinent medical examinations and treatments, which
he had to undergo.
8.
On the other hand, the Chamber took due note that the Respondent argued that
the Claimant abandoned the club without its knowledge and authorization on 8
July 2005 and, therefore, the Claimant was not entitled to receive any payments.
9.
Taking into consideration the above, the Chamber stated that in order to duly
consider the questions whether a contractual breach occurred, with or without
just cause, who is to be deemed responsible and what the (financial) consequences
of such a breach will be (cf. art. 17 of the Regulations) it was crucial to establish
whether or not the Claimant’s illness justified his absence from work.
10.
In this respect, the Chamber acknowledged that the Claimant was hospitalized in
Xxx from 31 July until 2 August 2005, in Xxx on 3 August 2005 as well as in Xxx on
6 September 2005 and from 4 to 5 October 2005. In particular, the Chamber took
note that according to the medical report issued by a Xxx doctor on 4 August 2005
the Claimant was recommended 4 weeks of regimen on bed. However, the
Player Xxx, Xxx / Club Xxx, Xxx
5
Chamber also acknowledged that according to the medical opinion issued by a
Xxx doctor on 8 September 2005 the Claimant was found to be able to play
football on a regular basis. The Chamber emphasised that his diagnosis was
confirmed by the medical report issued by the same Xxx doctor on 6 October 2005.
11.
In view of the above, the Chamber emphasised that it could be clearly established
that the Claimant due to his illness was prevented from playing for the
Respondent during July and August 2005, however, that he was able to play again
for the Respondent as from the beginning of September 2005, in particular, 8
September 2005.
12.
Furthermore, the Chamber pointed out that the Claimant did not resume duty
with the Respondent immediately after he had been found able to play, i.e. on 8
September 2007. On the contrary, the Chamber acknowledged that the Claimant
only returned to the Respondent on 15 October 2007, i.e. more than one month
after the recovery from his illness.
13.
Moreover, the Chamber stressed that it was undisputed that the Claimant left the
Respondent for medical examinations and treatments in Xxx and Xxx on 3 August
and 6 September 2005 respectively without the Respondent’s authorization.
14.
In view of the above, the Chamber emphasised that the Claimant’s unauthorized
absence from work was only justified by his illness until the day when he was
found to be able to play again, i.e. on 8 September 2005.
15.
Taking into account that the Claimant was absent from work without any reason
as from 8 September 2005 until 15 October 2005, the Chamber decided that the
relevant employment contact had to be considered as unilaterally terminated by
the Claimant as per 8 September 2005.
16.
In this context, the Chamber pointed out that, in principle, a player who was not
able to play for medical reasons, had the right to receive the contractually
stipulated remuneration during his absence from work.
17.
Therefore, the Chamber decided that the Respondent was liable to cancel all
outstanding monies under the employment contract until the date on which the
employment relation was considered as terminated, i.e. until 8 September 2005
(cf. point II.15.).
18.
As a result, the Chamber concluded that the Claimant was entitled to receive from
the Respondent the amount of USD 9,000 (2 x USD 4,500) corresponding to the
salaries for the months of July and August 2005 and the amount of EUR 529
Player Xxx, Xxx / Club Xxx, Xxx
6
corresponding to the costs for the flight ticket from Xxx to Xxx occurred at the
beginning of the relevant employment relationship on 5 July 2005 equal to USD
630 (date of currency conversion 5 July 2005).
19.
Moreover, with regard to the Claimant’s claim for medical expenses the Chamber
emphasised that only the costs for medical examinations and treatments incurred
before 3 August 2005 could be taken into consideration, since on that date the
Claimant left the Respondent without its authorization. Therefore, the Chamber
decided to award the Claimant the medical expenses incurred in Xxx from 31 July
until 2 August 2007 in the amount of USD 840 (USD 315 + USD 25 + USD 250 +
USD 150 + USD 100).
20.
On account of the above, the Chamber decided that the Claimant was entitled to
receive the amount USD 10,470 (USD 9,000 + USD 840 + USD 630) from the
Respondent.
21.
Subsequently, the Chamber drew its attention to the Respondent’s counter-claim
for the refund of the signing on fee paid in the amount of USD 40,000. In this
respect, the Chamber recalled that the reason for which the employment contract
had to be considered as early terminated was the unauthorized absence of the
Claimant from work during more than one month. In particular, the Chamber
pointed out that in spite of the circumstances that the Claimant may have had
valid reasons to leave the Respondent, i.e. for medical treatment, he should
previously have acquired the Respondent’s written consent to do so and he should
have resumed duty with the Respondent immediately after his recovery.
22.
In the light of the above, the Chamber reached the conclusion that the Claimant
breached the relevant employment contract without just cause.
23.
Consequently, the Chamber decided that in accordance with art. 17 par. 1 of the
Regulations the Claimant was liable to pay compensation for breach of contract to
the Respondent.
24.
In this regard, the Chamber acknowledged that, on 8 July 2005, the amount of
USD 40,000 was paid by the Respondent as signing on fee to the Claimant.
Furthermore, the Chamber recalled that the Claimant was entitled to receive all
the monies until the termination of the contract (cf. point II. 17.) and, therefore,
also the amount of USD 13,333 (2 x USD 6,666) corresponding to the proportion of
the signing on fee for the months of July and August 2005.
Player Xxx, Xxx / Club Xxx, Xxx
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25.
As a consequence, the Chamber emphasised that for the calculation of the
compensation the above-mentioned proportion of the signing on fee to which the
Claimant was entitled (USD 13,333) had to be taken into consideration.
26.
In particular, the Chamber decided that the Claimant had to reimburse the
Respondent the amount of USD 26,667 corresponding to the total amount of USD
40,000 paid by the Respondent as signing on fee less the said proportion of the
signing on fee in the amount of USD 13,333 to which the Claimant was entitled.
27.
In view of the above, the Chamber concluded that the Respondent was entitled to
receive the amount of USD 26,667 (USD 40,000 – USD 13,333) as compensation for
breach of contract and, thus, to partially accept the Respondent’s counter-claim.
28.
Finally, and summarising the above considerations, the Chamber determined that,
on the one hand, the Claimant was entitled to the amount of USD 10,470 and, on
the other hand, the Respondent was entitled to the amount of USD 26,667.
29.
Therefore, the Chamber in order to simplify matters decided that the Claimant
must pay the total amount of USD 16,197 (USD 26,667 – USD 10,470) to the
Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant, Xxx, is rejected.
2.
The counter-claim lodged by the Respondent, Xxx, is partially accepted.
3.
The Claimant, Xxx, must pay the total amount of USD 16,197 to the Respondent,
Xxx, within 30 days as from the date of notification of this decision.
4.
The Respondent, Xxx, is directed to inform the Claimant, Xxx, 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.
5.
In the event that the above-mentioned sum is not paid within the stated deadline,
an interest rate of 5% per year will apply as from expiry of the aforementioned
time limit and the present matter shall be submitted to the FIFA’s Disciplinary
Committee, so that the necessary disciplinary sanctions may be imposed.
6.
Any further claim of the Respondent, Xxx, is rejected.
Player Xxx, Xxx / Club Xxx, Xxx
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7.
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:
Markus Kattner
Deputy General Secretary
Encl.
CAS directives
Player Xxx, Xxx / Club Xxx, Xxx
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