F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 18 December 2012, by Mr Philippe Diallo (France), DRC judge, on the claim presented by the player Player W, from country S as Claimant/Counter-Respondent against the club Club L, from country C as Respondent/Counter-Claimant regarding an employment-related dispute

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 18 December 2012, by Mr Philippe Diallo (France), DRC judge, on the claim presented by the player Player W, from country S as Claimant/Counter-Respondent against the club Club L, from country C as Respondent/Counter-Claimant regarding an employment-related dispute between the parties I. Facts of the case 1. On 20 January 2010, Player W, from country S (hereafter: the Claimant/Counter-Respondent), and Club L, from country C (hereinafter: the Respondent/Counter-Claimant), concluded an employment contract (hereinafter: the contract) and a supplementary agreement (hereinafter: the agreement) valid as from 20 January 2010 until 31 May 2010. 2. According to the contract, the Claimant/Counter-Respondent was entitled to receive for his services, inter alia, EUR 5,000 as a signing fee, the amount of EUR 20,000, payable in four equal monthly instalments of EUR 5,000, starting on 31 January 2010, as well as EUR 400 a month to pay for the rent. Moreover, the Respondent/Counter-Claimant was to provide the Claimant/Counter-Respondent and his family with one return plane ticket from country C to either country R or country S; and also undertook to cover all medical expenses resulting from the injuries sustained by the Claimant/Counter-Respondent during the time that he was employed by the Respondent/Counter-Claimant. 3. In addition, according to the agreement, the Claimant/Counter-Respondent was entitled to receive for his services the amount of EUR 40,000, payable in four equal monthly instalments of EUR 10,000, starting on 31 January 2010. 4. On 7 July 2010, the Claimant/Counter-Respondent lodged a petition before FIFA against the Respondent/Counter-Claimant claiming outstanding remuneration in the total amount of EUR 44,500, made up of a proportion of the salary instalment of March (ie EUR 13,300), the full salaries for April and May 2010, and rent for the months of March, April and May 2010. Furthermore, the Claimant/Counter-Respondent requested to be reimbursed the following amounts: i) EUR 2,800 for the medical expenses related to his operation, in support of which the Claimant/Counter-Respondent submitted the relevant invoices; ii) EUR 400 for one flight ticket to travel to country B for medical treatment; and iii) EUR 1,500 for one flight ticket to country S. Finally, the Claimant/Counter-Respondent requested EUR 1,700 for the legal costs incurred as a result of the proceedings before the Dispute Resolution Chamber. 5. In this respect, the Claimant/Counter-Respondent stated that the Respondent/Counter-Claimant refused to pay the abovementioned sums. 6. In its position, submitted on 8 October 2010, the Respondent/Counter-Claimant stated that it put an end to its contractual relationship with the Claimant/Counter-Respondent’s on 19 April 2010 on the basis of “the illegal behaviour” of the latter, in accordance with the internal regulations of the Respondent/Counter-Claimant. Further, the Respondent/Counter-Claimant asserted that on 20 April 2010 it had sent a letter to the Claimant/Counter- Respondent by means of which it informed the latter of its decision to terminate their contractual relationship. In particular, according to the Respondent/Counter-Claimant’s letter, the Claimant/Counter-Respondent had rejected to train with the Respondent/Counter-Claimant due to an injury, despite the opposing view of the Respondent/Counter-Claimant’s team doctor, who also asked the player to subject himself to a new operation. Therefore, according to the Respondent/Counter-Claimant, it had legally terminated the contractual relationship between the parties. 7. Moreover, the Respondent/Counter-Claimant claimed that the Claimant/Counter-Respondent’s salary instalments were set at EUR 12,000 only instead of EUR 15,000 and stressed that it had already paid EUR 36,700 to the player. Further, the Respondent/Counter-Claimant argued that no other sums were outstanding because the contractual relationship between the parties had been legally terminated on 20 April 2010. As to the salary instalment due in March 2010, the Respondent/Counter-Claimant asserted that it had paid EUR 1,700 and argued that the remaining amount corresponding to the March 2010 salary instalment had been deducted in order to settle a fine imposed on the Claimant/Counter-Respondent. Equally, the Respondent/Counter-Claimant stated that, in its view, the reimbursement of medical expenses may not be claimed since the Respondent/Counter-Claimant never refused to offer the Claimant/Counter-Respondent any kind of treatment or operation. 8. In addition to his reply to the Claimant/Counter-Respondent’s claim, the Respondent/Counter-Claimant lodged a counterclaim stating that it suffered damages equivalent to the sums paid to the Claimant/Counter-Respondent, ie EUR 36,700, resulting from the illegal behaviour of the player. 9. In his reply, following the counterclaim lodged by the Respondent/Counter-Claimant, the Claimant/Counter-Respondent stated that he believed that the termination of the contractual relationship was not legal because the Respondent/Counter-Claimant had acted against the fundamental human rights of the Claimant/Counter-Respondent to defend himself and have a fair trial, as the Claimant/Counter-Respondent was never heard. Moreover, the Claimant/Counter-Respondent stressed that on the basis of the contract and the agreement his monthly salary was EUR 15,000 and rejected the Respondent/Counter-Claimant’s assertion that it had paid the amount of EUR 36,700. 10. Furthermore, the Claimant/Counter-Respondent indicated that the operation carried out by the club’s doctor was a failure, therefore, the Claimant/Counter-Respondent went to another doctor of his choice. In this respect, the Claimant/Counter-Respondent stressed that the contract states that the Respondent/Counter-Claimant had to cover all medical expenses. Finally, the Claimant/Counter-Respondent asserted that he had never signed the internal regulations of the Respondent/Counter-Claimant. 11. In turn, the Respondent/Counter-Claimant reiterated its previous arguments and stated that the claim of EUR 49,200 does not correspond to the real facts. In support of its statement, the Respondent/Counter-Claimant submitted a letter sent, on 28 May 2010, by the legal representative of the Claimant/Counter-Respondent by means of which the Respondent/Counter-Claimant was requested to pay the Claimant/Counter-Respondent’s outstanding salaries amounting to EUR 35,000. Also, the Respondent/Counter-Claimant submitted 3 cheques dated 20 January 2010, 30 January 2010, and 25 February 2010, corresponding to the amounts of EUR 5,000, EUR 15,000, and EUR 15,000, respectively. Finally, the Respondent/Counter-Claimant submitted a written statement made by its team doctor according to which he had operated the Claimant/Counter-Respondent on 19 February 2010; following which, the Claimant/Counter-Respondent had been recovering for eight weeks and did not train. As part of the ensuing follow-up the doctor asserted that he had seen the Claimant/Counter-Respondent four times after the operation and that he was ok to resume his footballing activities. Equally, the Respondent/Counter-Claimant asserted that it had paid the player EUR 1,800 in cash on 31 March 2010. 12. In his duplica, the Claimant/Counter-Respondent reiterated his position but amended his original claim as regards the requested monies. The Claimant/Counter-Respondent no longer claimed the salary instalment of May 2010 and thus reduced his overall claim to EUR 34,200. II. Considerations of the DRC judge 1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: 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 7 July 2010. Therefore, the DRC judge concluded that the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the 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 2 and in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012), the DRC judge is competent to decide on the present litigation, concerning an employment-related dispute of an international dimension between a country S player and a country C club. 3. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players (edition 2012), the DRC judge confirmed that he may adjudicate in the present dispute, which value does not exceed currency of country H 100,000. 4. In continuation, the DRC judge analysed which edition of the 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 2010 and 2012) and also considering that the present claim was lodged in front of FIFA on 7 July 2010, the 2010 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 5. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. He started by acknowledging that the parties to the dispute had signed an employment contract as well as a supplementary agreement valid as from 20 January 2010 until 31 May 2010. 6. Equally, the DRC judge observed that the contract and agreement concluded between the parties clearly stipulated that the parties had agreed a total remuneration of EUR 67,000, made up of: a EUR 5,000 signing fee; four equal monthly instalments of EUR 15,000; and EUR 400 a month, from January to May 2010, to pay for the Claimant/Counter-Respondent’s rent. In addition, the DRC judge acknowledged that the Claimant/Counter-Respondent was entitled to one return plane ticket from country C to either country R or country S for the Claimant/Counter-Respondent and his family. 7. In continuation, the DRC judge noted that the Claimant/Counter-Respondent lodged a claim against the Respondent/Counter-Claimant requesting the payment of the amount of EUR 44,500, corresponding to unpaid salary instalments, namely the remaining portion of the instalment due in March 2010, and the instalments of April and May of the same year, as well as the rent for the months of March, April and May 2010. Furthermore, the DRC judge took note that the Claimant/Counter-Respondent also requested the reimbursement of the following amounts: EUR 2,800 for the medical expenses related to the his operation; EUR 400 for one flight ticket to fly to country B for medical treatment; and EUR 1,500 for one flight ticket to country S. Finally, the Claimant/Counter-Respondent requested EUR 1,700 as compensation for the legal costs incurred in relation with the present matter. 8. In addition, the DRC judge observed that the Claimant/Counter-Respondent had, later on, amended his claim to EUR 34,200. 9. Having said this, the DRC judge turned his attention to the arguments of the Respondent/Counter-Claimant and took note of the Respondent/Counter-Claimant’s termination notice dated 20 April 2010 allegedly addressed to the Claimant/Counter-Respondent, by means of which the Respondent/Counter-Claimant informed the Claimant/Counter-Respondent in writing that it considered the employment contract to have been unilaterally terminated at the Claimant/Counter-Respondent’s fault and imposed on the Claimant/Counter-Respondent a sanction consisting of one month without payment. 10. The DRC judge noted that according to the Respondent/Counter-Claimant, who fully rejects the claim put forward by the Claimant/Counter-Respondent, the instalments to be paid to the Claimant/Counter-Respondent were set at EUR 12,000 instead of EUR 15,000; and the remaining portion of the instalment due in March 2010 had been deducted in order to settle a fine imposed on the Claimant/Counter-Respondent. Also, the DRC judge observed that the Respondent/Counter-Claimant claimed that it had paid the Claimant/Counter-Respondent EUR 36,700. Further, the DRC judge noted that, in any event, according to the Respondent/Counter-Claimant, there were no sums outstanding since, in its view, the contractual relationship between the parties had been legally terminated. Equally, the DRC judge took note that the Respondent/Counter-Claimant objected to the reimbursement of the medical expenses on the basis that it offered the Claimant/Counter-Respondent both the necessary treatment and the possibility of undergoing surgery. 11. In this respect, the DRC judge firstly recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 12. In view of the above, the DRC judge concluded that the Respondent/Counter-Claimant shall carry the burden of proof that the parties had in any manner amended the remuneration set out in the contract and the agreement, since these documents clearly provided for four aggregated instalments amounting to EUR 15,000 each. In view of the foregoing, and in the absence of any evidence to the contrary, the DRC judge concluded that the parties had in fact agreed upon a monthly salary of EUR 15,000. 13. Furthermore, the DRC judge assessed the Respondent/Counter-Claimant’s unilateral termination of the contractual relationship between the parties. In so doing, whereas the DRC judge acknowledged that despite the principle of respect of contract, both a player and a club may terminate a contract with just cause, he also stated that the unilateral termination should only be used as a last measure after less severe alternatives have failed to assure the, in this specific matter, employee’s fulfillment of his contractual obligations. Hence, a premature termination of an employment contract can always only be used as ultima ratio. Further, the DRC judge recalled that whether just cause exists shall be established in accordance with the merits of each particular case. 14. On account of the aforementioned considerations, the DRC judge concluded that the behaviour of the Claimant/Counter-Respondent to the extent proven by the Respondent/Counter-Claimant could not justify the termination of the contractual relationship for just cause. 15. Thereafter, the DRC judge also acknowledged that it was undisputed between the parties that the Respondent/Counter-Claimant had paid the Claimant/Counter-Respondent EUR 1,700 as part of the instalment due in March 2010. However, the DRC judge note that the Respondent/Counter-Claimant was not able to corroborate that a fine had indeed been imposed on the Claimant/Counter-Respondent as a consequence of which the remaining proportion of the March 2010 instalment had been deducted. In particular, the DRC judge established that the Respondent/Counter-Claimant did not present any documentary evidence in order to prove that a sanction equivalent to the remaining proportion of the March 2010 instalment had been imposed on the Claimant/Counter-Respondent nor had it provided the documentary evidence on the basis of which such fine was imposed. 16. In addition, the DRC judge acknowledged the evidence that corroborated that the Respondent/Counter-Claimant had paid by cheque to the Claimant/Counter-Respondent the amounts of EUR 5,000, EUR 15,000, and EUR 15,000, respectively, on 20 January 2010, 30 January 2010, and 25 February 2010. Notwithstanding this, the DRC judge ascertained that such payments corresponded, respectively, to the signing bonus and the salary instalments due in January and February 2010, that were not requested by the Claimant/Counter-Respondent in his claim. 17. On account of the aforementioned considerations, the DRC judge concluded that it could be established that the Respondent/Counter-Claimant failed to remit the Claimant/Counter-Respondent: i) a proportion of the salary instalments of March 2010, amounting to EUR 13,300, and the full salary instalment of April 2010 amounting to EUR 15,000; and ii) EUR 1,200 as outstanding rent for the months of March, April and May 2010. Equally, the DRC judge concluded that the Claimant/Counter-Respondent was entitled to be reimbursed the price of a one-way plane ticket country C – country S, the price of which was set at EUR 1,150 by FIFA Travel. 18. Furthermore, as to the Claimant/Counter-Respondent’s request for reimbursement of medical expenses and the plane ticket to country B, the DRC judge acknowledged that the Claimant/Counter-Respondent had not presented any evidence that the Respondent/Counter-Claimant had agreed to finance the treatment to be provided to the Claimant/Counter-Respondent in country B. In absence of such documentary evidence, the DRC judge decided to reject this part of the Claimant/Counter-Respondent’s claim. 19. Furthermore, the DRC judge decided that the Claimant/Counter-Respondent’s claim for legal costs is rejected in accordance with art. 18 par. 4 of the Procedural Rules. 20. Taking into account all the above, the DRC judge decided to partially accept the Claimant/Counter-Respondent’s claim and that therefore the Respondent/Counter-Claimant is liable to pay the Claimant/Counter-Respondent the total amount of EUR 30,650. 21. Finally, the DRC judge noted that the Respondent/Counter-Claimant requested the reimbursement of an amount which it alleged to have already paid to the Claimant/counter-Respondent as salary. Considering that such amount was allegedly already paid by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent as salary for the services already rendered by the latter to the former prior to the actual termination of the contract by the Respondent/Counter-Claimant, the DRC judge saw no pertinent reason to grant such request. Therefore, the DRC judge rejected the counterclaim lodged by the Respondent/Counter-Claimant. ***** III. Decision of the DRC judge 1. The claim of the Claimant/Counter-Respondent, Player W, is partially accepted. 2. The counter-claim of the Respondent/Counter-Claimant, Club L, is rejected. 3. The Respondent/Counter-Claimant, Club L, has to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, the amount of EUR 30,650. 4. In the event that the amount due to the Claimant/Counter-Respondent in accordance with the above-mentioned number 3 is not paid by the Respondent/Counter-Claimant within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant/Counter-Respondent is rejected. 6. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant immediately and directly of the account number to which the remittance is to be made and to notify the DRC judge of every payment received. ***** 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: info@tas-cas.org www.tas-cas.org For the DRC judge: Jérôme Valcke Secretary General Encl. CAS directives