Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 September 2007,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Carlos Soto (Chile), member
Philippe Piat (France), member
Philippe Diallo (France), member
Zola Majavu (South Africa), member
on the claim presented by the
Player, X
as Claimant,
against the
Club, Y
as Respondent,
regarding an employment-related dispute arisen between the parties.
./…
I.
Facts of the case
1.
The player X (hereinafter: the Claimant or the player), asserts that he signed an
employment contract with the club Y (hereinafter: the Respondent or the club)
after passing a medical examination. According to the Claimant, this contract came
into force on 22 February 2006 and was due to expire on 6 December 2006.
2.
According to the player, the employment contract stipulated a monthly salary of
15,000 (national currency from the association in which the Respondent is
affiliated), plus accommodation expenses.
3.
On 28 July 2006, the Claimant contacted FIFA to demand compensation and
damages for the Respondent having terminated his employment contract. The
player explained that the club had dismissed him on 26 March 2006, i.e. during the
football season. The player also enclosed a copy of an internet article dated 27
March 2006, which alleged that the coach of the Respondent had decided to
dispense with the services of the player.
4.
The player also added that he had never received a copy of his employment
contract. In fact, the club had allegedly kept all of the copies of the employment
contract as it had to send the documentation to the relevant Association for
registration. However, after his contract had been terminated, the player discovered
that the club had not sent the employment contract for registration with the
Association.
5.
In his claim, the player also enclosed a copy of another internet article, which
alleged that the Respondent had signed with the Claimant for the 2006 football
season. The player also enclosed a screenshot of the club’s official website, which
showed the player wearing the club’s jersey as well as a picture of the Claimant
during an apparent training session.
6.
According to the Claimant, he noted that after he had signed the contract, he went
about his work as per usual, taking part in all training sessions, as proven by the
photographs on the Respondent’s official website.
7.
Consequently, given the fact that the player allegedly had a monthly salary of
national currency 15,000 until the end of his employment contract, the total value
of said contract would be national currency 126,000. Therefore, the player is
claiming, on the basis of art. 17 of the FIFA Regulations for the Status and Transfer
of Players, the sum of national currency 126,000 in relation to the club having
terminated his contract without just cause. Furthermore, the player is claiming the
sum of USD 100,000 in material and moral damages because he had prepared for
life in the country and had taken his family with him. Finally, the player is claiming
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10% interest on the total sum claimed, starting from the date on which his contract
was terminated.
8.
The club Y submitted its position to FIFA on 8 September 2006. In this statement,
the club explained that in February 2006, it had received an offer to sign the abovementioned player, and as the club had not known the player, it had imposed a
condition whereby the player would have to pass medical examinations and a
period of technical tests.
9.
The Respondent noted that the player had been subjected to these tests upon his
arrival in the country in order to allow the club’s coach to evaluate him from
technical and medical perspectives. However, the player had suffered a knee injury,
which required 20 days of treatment for which the club paid.
10.
The Respondent also noted that it had informed the player on 27 March 2006 that it
was not interested in signing a contract with him.
11.
The club added that on the same day, it had paid the player national currency 8,000
to cover the period of tests from 22 February 2006 to 27 March 2006. Additionally,
the club asserted that after this period of tests, the player had left the club without
signing an employment contract with the club and that the Claimant had not
presented any evidence of signing an employment contract. Instead, he had based
his case, which is challenged by the club, on the fact that the club had never
provided him with a copy of an employment contract.
12.
In support of its position, the Respondent presented a receipt, signed by the
Claimant, showing that he had been paid national currency 8,000 “as financial aid
in order to cover the expenses of food and transports during my test period on the
club’s football department, from 22/Feb/2006 to 27/Mar/2006”.
13.
The club mentioned that in view of the above, it is clear that the parties had never
entered into a contractual relationship due to the fact that the player had only ever
visited the country for a period of tests and medical examinations.
14.
The Respondent noted that there was no doubt that the Claimant had always been
aware that there was no guarantee that he would become an employee of the club
following the conclusion of these tests. Furthermore, the club had at all times
respected FIFA’s Regulations by conducting all of the necessary investigations and
tests prior to signing any employment contract with the player in question.
15.
Finally, the club noted that compensation for terminating a contract could not be
applied to this case because there had never been an employment contract to
terminate, and that the player’s claim for moral damages was without foundation.
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16.
In his replica, the Claimant noted that the Respondent’s argument regarding the
period of tests and medical examinations was not applicable because why would a
29-year-old player be submitted to a period of tests lasting longer than one month
and be officially presented to the press and the club’s fans.
17.
With regard to his injury, the player noted that there was no proof of this, and that
if even if such an injury could be proven, such proof would not be valid as the
validity of a contract cannot be made subject to a medical examination. Therefore,
the Claimant explained that the club had violated the art. 18 par. 4 of the FIFA
Regulations for the Status and Transfer of Players as it had informed the player that
it was no longer interested in his services due to medical problems.
18.
The player confirmed that he had received the sum of national currency 8,000 to
cover food and transport expenses.
19.
In its rejoinder, which was submitted on 19 June 2007, the club repeated its original
position. The club noted that the certificate from its Association proved that there
had never been a contractual relationship between the two parties.
20.
The Respondent reiterated that it had always respected the above-mentioned art.
18 par. 4 as all tests had been conducted prior to signing any employment contract.
21.
On 20 June 2007, the Respondent’s Association confirmed that the Claimant was
never registered for the Respondent.
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 28 July 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 combination with art. 22 (b) of the aforementioned Regulations, the Dispute
Resolution Chamber shall adjudicate on employment-related disputes between a
club and a player that have an international dimension.
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3.
As a consequence, the Dispute Resolution Chamber is the competent body to decide
on the present litigation involving a player and a club regarding a dispute in
connection with an allegedly concluded employment contract.
4.
Subsequently, the members of the Chamber analysed 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 employment contract
was allegedly concluded in February 2006 and that the claim was lodged at FIFA on
28 July 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.
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 maintains
having signed an employment contract with the Respondent in February 2006,
which, in continuation, was allegedly terminated by the latter, whereas the
Respondent alleges never having concluded any employment contract with the
Claimant.
6.
In view of the contradictory positions exposed by the parties in dispute, the
Chamber deemed that it firstly has to establish whether, as maintained by the
Claimant, the Claimant and the Respondent in fact signed an employment contract
in February 2006.
7.
In this respect, first of all, the Chamber acknowledged that the Claimant was not in
a position to provide a copy of the alleged employment contract, maintaining that
the Respondent kept all the relevant copies of it in order to provide its Association
with them for registration.
8.
In this context, and turning its attention to the Respondent, the members of the
Chamber noted that the Respondent denied having ever signed any employment
contract with the Claimant.
9.
Equally, the Chamber took into consideration that upon FIFA’s request, the
Respondent’s Association confirmed that the Claimant was never registered for the
Respondent.
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10.
On account of the above, the Chamber was in doubt about the alleged conclusion
of an employment contract between the parties in dispute. In this respect, the
Chamber particularly underlined that the different circumstances mentioned by the
Claimant, for instance, the fact that his family also moved to this country, do not
constitute a binding proof of the alleged existence of an employment contract
between the Claimant and the Respondent.
11.
In fact, and turning its attention once again to the Respondent, the members of the
Chamber acknowledged that the Respondent particularly based its defense on a
receipt, signed by the Claimant, by means of which the Claimant confirmed having
received from the Respondent monies in the amount of national currency 8,000 to
cover food and transport costs during his period of tests with the club that took
place at the Respondent as from 22 February 2006 to 27 March 2006.
12.
In light of all of the above, the Chamber unanimously concurred that, as maintained
by the Respondent, the parties in dispute never proceeded to the signing of an
employment contract and that rather the Claimant travelled in order to present his
services to the Respondent in view of a possible conclusion of an employment
contract. Thereto, the Chamber particularly emphasised that the Claimant got
compensated for the relevant period of trial by the Respondent with monies in the
amount of national currency 8,000. In other words, the Chamber concluded that no
employment contract was ever in place between the parties in dispute.
13.
As a result of the above, the Chamber rejected the Claimant’s complaint in its
entirety. Where no employment contract was signed, so the Chamber, no
compensation for breach of contract in the sense of art. 17 of the Regulations can
be due.
14.
Moreover, the members of the Chamber deemed it appropriate to mention, for the
sake of completeness only, that the Claimant’s request for USD 100,000 for material
and moral damages cannot be backed as no illegal conduct of the Respondent has
been substantiated by the Claimant.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim lodged by the Claimant is rejected.
2.
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:
Avenue de Beaumont 2
CH-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
Enclosed: CAS directives
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