Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 January 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Theo van Seggelen (The Netherlands), member
on the claim presented by the player,
Player A, country B,
as Claimant / Counter-Respondent
against the club,
Club C, country D
as Respondent / Counter-Claimant
and the club,
Club E, country B
as intervening Party
regarding an employment-related dispute between the parties
I.
Facts of the case
1. On 2 July 2014, the player from country B, Player A (hereinafter: the Claimant),
born on 29 December 1991, and the club from country D, Club C (hereinafter: the
Respondent), signed an employment contract (hereinafter: the contract) valid as
from 1 July 2014 until 30 June 2016.
2. According to the contract, the Claimant was entitled to the following
remuneration:
- EUR 30,000 as annual salary payable in ten equal instalments on the 15 th day
of the following month for season 2014/2015;
- EUR 35,000 as the annual bonus for season 2015/2016 payable on 31 July 2015;
- EUR 50,000 as annual salary payable in ten equal instalments on the 15th day
of the following month for season 2015/2016.
3. Furthermore, the annex to the contract established that the Claimant was also
entitled to the following remuneration:
- EUR 3,600 as housing expenses for season 2014/2015;
- EUR 3,600 as housing expenses for season 2015/2016;
- one flight ticket for the route city F to city G for season 2014/2015;
- three flight tickets for the route city F to city G for season 2015/2016.
4. Clause 16 of the contract stipulates that “[t]o settle disputes between them
arising, the parties agree to submit their solution to the Arbitration Commission
in accordance with Article 55 of the Collective Labour Agreement for Professional
Football”.
5. On 29 June 2015, the Claimant put the Respondent in default asking for the flight
tickets in order to return to country D from his summer holidays, and informing
the Respondent that, due to this situation, he would not be able to attend the
pre-season.
6. On 4 July 2015, the Claimant requested the Respondent again for his flight tickets,
as well as for the salaries of May and June 2015.
7. On 7 July 2015, the Respondent replied to the Claimant and informed him that it
would pay May 2015’s salary.
8. On 9 July 2015, the Claimant travelled to country D under his own expense.
Player A, country B / Club C, country D / Club E, country B
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9. On 20 July 2015, the Claimant terminated the contract, which was notified in
written form to the Respondent.
10. On 29 July 2015, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, and requested the payment of the total
amount of EUR 94,843.92, broken down as follows:
- EUR 3,500 corresponding to the outstanding salaries for season 2014/2015;
- EUR 2,734.92 corresponding to the flight tickets paid by the Claimant;
- EUR 3,600 corresponding to the housing expenses;
- EUR 50,000 corresponding to the salary for season 2015/2016;
- EUR 35,000 corresponding to the bonus for season 2015/2016.
The Claimant also requested FIFA to fix a further compensation due to the
specificity of sport.
11. The Claimant explained in his claim that the Respondent failed to pay him part
of his remuneration by making only partial payments during the term of the
contract.
12. Moreover, the Claimant explained that on 11 and 12 July 2015, he tried to attend
the trainings of the Respondent and his access to the Respondent’s facilities was
denied on both occasions. In this context and in support of his allegation, the
Claimant presented a notarial deed.
13. With regard to the commitment of the Respondent to pay the salary of May 2015,
as per its correspondence of 7 July 2015, the Claimant declared that only part of
the salary of May 2015 was paid and that the flight tickets and the salary of June
2015 remained unpaid.
14. In its reply to the claim, the Respondent first contested the competence of FIFA
to hear the matter at stake, alleging that, despite the international dimension of
the dispute, country D has an independent arbitration tribunal that guarantees a
fair trial and respects the principle of equal representation of players and clubs.
15. In this regard, the Respondent asserted that the parties agreed, in clause 16 of
the contract, that all disputes must be decided by the “Arbitration Commission”
of the Football Association of country D (hereinafter: the Arbitration
Commission). In this context, the Respondent provided a copy of the relevant
articles of the “Collective Labour Agreement between the league of country D of
Professional Football and the Union of Professional Football Players”
(hereinafter: the collective bargaining agreement), which establishes that the
Arbitration Commission is made up of six members, three of them appointed by
Player A, country B / Club C, country D / Club E, country B
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the league of country D and another three appointed by the Union of
Professional Football Players of country D. Additionally, art. 55 lit. a) of the
collective bargaining agreement states that the Arbitration Commission shall
“resolve any labor disputes existing between football players and clubs or sports
clubs”.
16. As to the substance of the matter, the Respondent stated that it requested the
Claimant to resume his duties on 1 July 2015 for the preparation of the new
season. Nevertheless, according to the Respondent, the Claimant did not show up
on the aforementioned date.
17. Regarding the flight tickets, the Respondent declared that it does not have the
obligation to pay anything for this concept because it paid a flight ticket “on the
amount of EUR 1,690”on 27 May 2015 “to the Claimant to return to country B”.
In this respect, the Respondent provided a copy of a flight ticket for the route city
G-city H-city F dated 28 May 2015.
18. As for the salary of June 2015, the Respondent asserted that it paid all wages
before “the Claimant illegally terminated the contract” and that the Claimant
was not entitled to more salaries after May 2015, as he “abandoned the job”.
19. Regarding the Claimant’s argument that he was prevented from attending the
trainings, the Respondent disputed that fact alleging that it was false and that
nobody from the Respondent denied such access. In this context, the Respondent
stated that the notarial deed presented by the Claimant “is a strictly unilateral
personal act”.
20. As a consequence of the previous points, the Respondent concluded that it has
fulfilled its obligations towards the Claimant during season 2014/2015.
21. Moreover, the Respondent sustained that the Claimant signed a new
employment contract with the club from country B, Club E “following an illegal
unilateral termination and during the protected period” which “caused losses to
the Respondent, because found himself deprived of using that Claimant and was
forced to contract another”.
22. On account of all of the above, the Respondent deemed that the Claimant
terminated the contract without just cause and lodged a counterclaim against the
Claimant and his new club, Club E. In particular, the Respondent claimed the total
amount of EUR 117,900, broken down into the following amounts:
- EUR 27,500 corresponding to the salaries paid by the Respondent to the
Claimant for season 2014/2015;
Player A, country B / Club C, country D / Club E, country B
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-
EUR 3,600 corresponding to the housing expenses for season 2014/2015;
EUR 1,690 corresponding to the plane ticket the Respondent claims to have
paid;
EUR 50,000 corresponding to the salaries for season 2015/2016;
EUR 35,000 as the annual bonus for season 2015/2016;
sporting sanctions.
23. In reply to the Respondent’s submission, the Claimant first remarked that the
documentation submitted by the Respondent regarding the Arbitration
Commission does not mention at all that foreign players are duly represented in
the relevant body and that, therefore, the Arbitration Commission does not
guarantee a fair and equal process to the Claimant, insisting on FIFA’s
competence to decide on the present matter.
24. As to the counterclaim lodged by the Respondent, the Claimant claimed that the
statements made by the Respondent were false and insisted in the Respondent’s
unfulfilment of its obligations, rejecting every allegation of the Respondent.
25. Furthermore, the Claimant recalled that the payment of part of the salary of May
2015 was done after he sent a communication in July 2015, this is, with two
months of delay.
26. Regarding the contract signed with Club E, the Claimant alleged that said
contract was much less advantageous than the one subscribed with the
Respondent.
27. Despite having been invited to do so, Club E did not present its position as to the
matter at stake.
28. The Claimant confirmed that he signed an employment contract with Club E valid
as from 23 July 2015 until 30 June 2017, according to which he was entitled to a
monthly salary of 15,000 for the season 2015/2016 and 18,750 for the season
2016/2017.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analysed whether it was competent to deal with the matter at stake.
In this respect, the DRC took note that the present matter was submitted to FIFA
on 29 July 2015. Consequently, the Chamber concluded that the 2015 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the
Player A, country B / Club C, country D / Club E, country B
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Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to
the matter at hand (cf. art. 21 of the 2015 editions of the Procedural Rules).
2. Subsequently, the DRC referred to art. 3 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 2015) the DRC would,
in principle, be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an player
from country B and a club from country D.
3. However, the Chamber acknowledged that the Respondent, with reference to
the second part of art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (hereinafter: the Regulations), claimed that not FIFA but the arbitration
tribunal of country D was competent to deal with the present case. In particular,
the Chamber took note that the Respondent argued that an equitably
represented, independent, national arbitration tribunal such as that demanded
by the FIFA Regulations (art. 22 lit. b) of the Regulations) existed in country D and
that the parties had agreed in clause 16 of the employment contract that, if a
dispute arose, an independent tribunal such as that mentioned in article 55 of
the collective bargaining agreement would be called upon.
4. In this regard, the Chamber observed that the Claimant argued that the
arbitration tribunal in question did not comply with the requirements established
in art. 22 lit. b) of the Regulations alleging that the foreign players were not duly
represented in the Arbitration Commission and that, therefore, such body does
not guarantee a fair and equal process to the Claimant. Based on the above, the
Claimant claimed that FIFA was competent to decide on the present issue
5. As a consequence, the Chamber started by acknowledging that, despite being
entitled to seek redress before an ordinary national court of law, the parties did
not dispute that the matter at hand was brought to an alternative dispute
resolution process within football.
6. Taking into account the above, the Chamber emphasised that it was necessary to
ascertain who is competent to decide on the issue within the football-related
dispute resolution system. In other words, the competence of a national deciding
body on the one side and FIFA on the other must be determined.
7. In this regard, the Chamber emphasised that in accordance with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players it is competent to deal with
a matter such as the one at hand, unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal
Player A, country B / Club C, country D / Club E, country B
6
representation of players and clubs, has been established at national level within
the framework of the association and/or a collective bargaining agreement. With
regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no.
1010 dated 20 December 2005. Equally, the members of the Chamber referred to
the principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations, which came into force on 1 January 2008.
8. In view of the above, the Chamber went on to examine the documentary
evidence presented by the Respondent, i.e. the copy of the relevant collective
bargaining agreement.
9. In this respect, the Chamber acknowledged that according to article 55 of the
collective bargaining agreement, in country D, the Arbitration Commission is
responsible for the resolution of labour disputes between football players and
clubs or sportive societies. Equally, article 54 of the collective bargaining
agreement explicitly states that “in case of a conflict arising from a sports
employment contract, the same shall be submitted to the Arbitration Commission
Joint”.
10. Furthermore, and referring to the composition of the said decision-making body
of country D, the Chamber noted that in accordance with article 55 of the
collective bargaining agreement the Arbitration Commission is composed of six
members, three of them appointed by the league of country D of Professional
Football and the other three appointed by the Union of Professional Football
Players, i.e. an equal number of player and club representatives.
11. Consequently, and taking into consideration the entire structure and functioning
of the Arbitration Commission as set out in the collective bargaining agreement,
the Chamber deemed that the Respondent was able to prove that the Arbitration
Commission meets the minimum procedural standards for independent
arbitration tribunals as laid down in art. 22 b) of the Regulations for the Status
and Transfer of Players and in FIFA Circular no. 1010.
12. Finally, the Chamber was eager to emphasise that the employment contract at
the basis of the present dispute contains an arbitration clause in favour of
national arbitration and, specifically, in favour of the Arbitration Commission. In
particular, the DRC pointed out that clause 16 of the said employment contract
makes an explicit and unambiguous reference to the Arbitration Commission for
the solution of disputes arising from the contract as well as to the relevant
collective bargaining agreement that provides for such a national arbitration (cf.
point I. 4. above).
Player A, country B / Club C, country D / Club E, country B
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13. In view of all the above, the Chamber established that the Respondent’s objection
to the competence of FIFA to deal with the present matter has to be accepted
and that the Dispute Resolution Chamber is not competent, on the basis of art.
22 lit. b) of the Regulations for the Status and Transfer of Players, to consider the
present matter as to the substance.
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is inadmissible.
*****
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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D / Club E, country B
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