F.I.F.A. – Camera di Risoluzione delle Controversie (2013-2014) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2013-2014) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 10 July 2013, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player A, from country N as Claimant against the club, Club D, from country S as Respondent regarding an employment-related dispute between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2013-2014) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2013-2014) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber(DRC) judge passed in Zurich, Switzerland, on 10 July 2013, by Philippe Diallo (France), DRC judge, on the claim presented by the player, Player A, from country N as Claimant against the club, Club D, from country S as Respondent regarding an employment-related dispute between the parties I. Facts of the case 1. On 29 March 2011, Player A, form country N (hereinafter: player or Claimant) and the Club D, from country S (hereinafter: club or Respondent) signed an employment contract (hereinafter: contract) valid as from 1 April 2011 until 15 November 2011. 2. According to § 2 of the contract, the player was entitled to receive from the club a monthly salary in the amount of currency of country S 14,500, to be paid on the 27th day of each month. 3. On 13 December 2011, the player lodged a claim in front of FIFA against the club, requesting from the latter the payment of currency of country S 103,770, corresponding to his salary for the period as from 1 April until 15 November 2011, i.e. currency of country S 108,750, minus the amount of currency of country S 4,980 that he had already received from the club. 4. In addition, the Claimant requested from the Respondent the payment of the estimated medical costs of EUR 20,000 corresponding to EUR 2,000 as doctor’s fee for the MRI and the MRI itself; EUR 4,000 as surgeon fee; EUR 2,000 for anaesthesia; EUR 3,000 as “hospital facility”; EUR 7,500 as rehabilitation and physical therapy costs and EUR 1,500 as “exigencies”. 5. The Claimant explained that he had a knee problem during training on 20 September 2011. The club’s doctor allegedly told him that he had a knee ligament injury. The player further stated that according to the club’s management, it would take about six months for the surgery to be carried out and since the player’s contract only ran until 15 November 2011, the club would not take care of the surgery. The player was of the opinion that the club had to pay his treatment costs in connection with his injury. 6. In its response to the claim, the club acknowledged having concluded the contract with the player. Furthermore, the club stated that the player had only arrived in country S on 9 August 2011. In this respect, the club was of the opinion that this date should be regarded as the first valid day of the contract. Moreover, the club argued that Mr J, who was allegedly the player’s agent, had promised to pay the player’s salary to the club in order for the player to have a chance in country S but that the agent had never made any payment to the club, and that this was the reason why the player had never received his salary. In addition, the club stated that it had still felt responsible for the player and had therefore provided the player “with a home and money” in order for him to live a normal life. Moreover, the club stated that according to its “tax table”, the player was entitled to receive a monthly salary of currency of country S 10,900 after the taxes had been paid. 7. As regards the player’s knee injury, the club held that it tried everything to help the player and took him to several doctors in order to determine the injury. However, according to the club, a knee surgery would have taken about six months and the player would not even have had a work permit to stay in country S due to the expiry of his contract. Additionally, the club deemed the treatment costs requested by the player unreasonable. The club further stated that it would need to receive invoices and receipts for the knee surgery in case FIFA’s deciding body considered the club to be responsible for it. 8. Moreover, the club rejected the claim, however, in case FIFA’s deciding body considered otherwise, the correct sums would be the following: - Currency of country S 32,700 for the period from 9 August to 8 November 2011; - Currency of country S 2,543 for to period from 9 November to 15 November 2011. Finally, the club stated that the amount of currency of country S 14,303 corresponding to the accommodation costs it had allegedly paid to the player as well as the sum of currency of country S 4,980 that the player admitted having received from the club should be deducted from the aforementioned amount of currency of country S 35,243 due to the player. 9. In his replica, the player explained that his salary was exclusive of any taxes and accommodation. Furthermore, the player stated that his visa application to the country S Embassy, which had been supported by the club, had been refused in the first place and that in July 2011, the club had decided to apply for his work permit in country S. As to the treatment costs, the player explained that he had not been given the receipts until payment is made. Lastly, the player informed FIFA that he had stayed with the club until the end of the contract, i.e. until 15 November 2011. 10. In its duplica, the club mainly reiterated its previous position. II. Considerations of the DRC judge 1. First of all, the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 13 December 2011. 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. art. 21 par. 2 and par. 3 of the Procedural Rules). 2. Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) he is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a country N player and a country S club. 3. Furthermore, the DRC judge analysed which 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 par. 2 of the Regulations on the Status and Transfer of Players (editions 2012 and 2010), and considering that the present matter was submitted to FIFA on 13 December 2011, the 2010 edition of said Regulations is applicable to the present matter as to the substance (hereinafter: Regulations). 4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started by acknowledging the abovementioned facts of the case as well as the documentation contained in the file. 5. In this respect, the DRC judge acknowledged that the parties had signed an employment contract on 29 March 2011, in accordance with which the player was entitled to receive from the club a monthly remuneration in the amount of currency of country S 14,500. 6. In continuation, the DRC judge noted that the Claimant alleged that the Respondent had failed to pay the amount of currency of country S 103,770 corresponding to his salary for the period as from 1 April until 15 November 2011, i.e. currency of country S 108,750, minus the amount of currency of country S 4,980 that he had already received from the club. 7. Moreover, the DRC judge noted that the Claimant requested from the Respondent the payment of EUR 20,000 corresponding to the estimated medical costs for his knee injury. 8. Consequently, the Claimant asked to be awarded payment of the total amount of currency of country S 103,770 plus EUR 20,000. 9. In addition, the DRC judge took note of the Claimant’s allegation that only in July 2011, the Respondent decided to apply for the Claimant’s work permit in country S, since his visa application to the currency of country S Embassy had been previously refused. 10. Equally, the DRC judge took note of the reply of the Respondent, who asserted that the player had only arrived in country S on 9 August 2011, which is why, according to the Respondent, this date should be considered the day on which the contract entered into force. Furthermore, the DRC judge noted that the club rejected the claim, however, in case the DRC judge decided otherwise, the correct amount due to the player would be currency of country S 32,700 for the period from 9 August to 8 November 2011 and currency of country S 2,543 for the period from 9 November to 15 November 2011, i.e. the sum of currency of country S 35,243, whereas the amount of currency of country S 14,303 corresponding to accommodation costs the club had allegedly paid to the player as well as the amount of currency of country S 4,980 that the player admitted having received from the club should be deducted from the aforementioned amount of currency of country S 35,243. 11. In this regard, and taking into consideration the line of argumentation of the parties, the DRC judge referred to art. 18 par. 4 of the Regulations which stipulates, inter alia, that the validity of a contract may not be made subject to the grant of a work permit. In this respect, the DRC judge referred to the constant jurisprudence of the Dispute Resolution Chamber and emphasised that the responsibility to obtain the necessary work permit or visa in order for a player to render his services to the club is incumbent on the club, i.e. the Respondent. The Respondent had therefore been required to undertake all appropriate steps to duly acquire a work permit for the Claimant not only before concluding the relevant contract but, as the case may be, also during the term of said contract. 12. Taking into account the above, the DRC judge acknowledged that the Respondent did not explicitly contest the argument of the Claimant that he lacked a work permit and consequently a visa to enter the country of country S at the beginning of his contract, but that the Respondent merely alleged that the Claimant had failed to come to country S before 9 August 2011. 13. Therefore, the DRC judge concluded that the Respondent appeared to have recognized the fact that, at the moment in question, it had not acquired the relevant work permit and visa for the Claimant from the local authorities in order to enable him to come to the club at the beginning of his contract, i.e. on 1 April 2011, and fulfil his contractual obligations. 14. Moreover, the DRC judge deemed it also appropriate to recall the general principle of burden of proof stipulated in 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 burden of proof. In this regard, the DRC judge was eager to underline that the Respondent did not submit any document or any explanation attesting that it had acquired the work permit on time. The DRC judge enlightened the fact that the Respondent had presented a “letter of support” dated 4 July 2011 signed by a manager of the club, which indicates the club’s will to obtain a work permit and a visa for the player via the country S Embassy in country N. Thus, according to the DRC judge, there are strong indications that the Respondent’s application for the player’s work permit and visa was late. In addition, the Respondent did not contest the Claimant’s allegation that the Respondent only applied for his visa in July 2011, even though the contract was already valid as from 1 April 2011. 15. Consequently, the DRC judge had no alternative but to conclude that the Respondent had failed to create any plausible doubt with regard to the Claimant’s assertions concerning the missing work permit. Thus, in the absence of the proof of the contrary, the DRC judge considered that the required work permit for the Claimant had not been acquired by the Respondent before July 2011. 16. In view of all the aforementioned considerations, the DRC judge came to the conclusion that the Claimant’s arrival in country S on 9 August 2011 due to the Respondent’s failure to obtain the relevant documents for the Claimant in a timely manner did not change the term of the contract. Consequently, the DRC judge decided to reject the Respondent’s argument in this respect. 17. In continuation, the DRC judge acknowledged that the Respondent undisputedly did not pay the Claimant the remuneration due according to the contract as from 1 April 2011. In addition, the DRC judge took into account that the Respondent had not refuted the Claimant’s statement that he stayed with the club until the end of the contract, i.e. until 15 November 2011. 18. Consequently, the DRC judge decided that the Respondent is liable to pay all outstanding monies due to the Claimant under the contract until the date on which the contractual relationship had ended, i.e. until 15 November 2011. 19. In this respect, the DRC judge determined that remuneration for the entire months of April until October 2011 (7 x currency of country S 14,500 = currency of country S 101,500) and for 15 days of the month of November 2011 (currency of country S 14,500 / 2 = currency of country S 7,250), minus the amount of currency of country S 4,980 that the Claimant already received from the Respondent, in the overall amount of currency of country S 103,770 remained outstanding. 20. Referring to the aforementioned art. 12 par. 3 of the Procedural Rules, the DRC judge decided that the Respondent had not presented any credible evidence for a deduction of accommodation costs or taxes from the salary, as put forward by the Respondent. 21. As a result, the DRC judge concluded that the Claimant was entitled to receive from the Respondent outstanding remuneration for the months of April until November (pro rata) 2011 in the amount of currency of country S 103,770. 22. As regards the amount of EUR 20,000 relating to alleged medical costs, the DRC judge noted that the contract did not contain any provisions regarding the reimbursement of such alleged medical treatment. In addition, the DRC judge noted that the Claimant did not provide any receipts or invoices in this regard. Hence, the DRC judge decided to reject the Claimant’s claim regarding the medical costs. 23. Finally, the DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Plyer A, is partially accepted. 2. The Respondent, Club D has to pay to the Claimant the amount of currency of country S 103,770 within 30 days as from the date of notification of this decision. 3. If the aforementioned amount is not paid within the stated deadline, interest at the rate of 5 % p.a. will fall due as of expiry of the above-mentioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for its consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The Claimant is directed to inform the Respondent 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