Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 January 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands), member
Tom is lav Kas alo (Croatia), member
Pav el Piv ov arov (Russia), member
Daan de Jong (The Netherlands), member
on the matter between the player,
Play er A, Country B
as Claimant
and the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 3 March 2016, the player of Country B, Player A (hereinafter: the Claimant) and
the club of Country D, Club C (hereinafter: the Respondent) entered into an
employment contract (hereinafter: the contract), valid from 1 July 2016 until 30
June 2017.
2.
In accordance with clause 5 of the contract, the Claimant was entitled to a monthly
salary in the amount of EUR 6,500, payable, following clause 6.1. of the contract,
“until the 25th of next month, in currency of Country D at the official exchange
rate of the National Bank of Country D on the day such payment is made”.
3.
Moreover, clause 12.1 of the contract was drafted as follows:
“Any dispute between the Parties arising from or in connection with this
Agreement, including its validity, interpretation, execution or termination, shall
be settled amiably. Unless the Parties shall reach an amiable resolution then any
such dispute shall be submitted to the competent bodies of the Football
Association of Country D and the Professional Football League with respect of the
legislation of Country D.”
4.
In addition, on 3 March 2016, the Claimant and the Respondent concluded an
Addendum to the contract, according to which, inter alia, the Claimant would be
entitled to the following:
“2 airline tickets/season for route Country D - Country B – Country D”.
5.
According to the Claimant, on 14 June 2017 he signed and returned via email to
the Respondent a copy of a “Termination Agreement”, by means of which the
parties apparently agreed on the termination of the contract as from 31 May 2017.
6.
In addition, the termination agreement included the following:
“2. Both parties have commonly agreed and certify through the signing of this
addendum, that they do not have other obligations, financial or any other, for
past, present or future, as a result from and in relation with the [contract].”
7.
On 2 August 2017, the Claimant lodged a claim against the Respondent, and
requested the payment of the following amounts:
- “In principal”: EUR 13,088.41, corresponding to the salaries for May 2017 and
June 2017 as well as an air ticket for the amount of 800 in the currency of Country
D (according to the Claimant, equivalent to EUR 175.9), plus 5% interest p.a. “as
from 25 June 2017 and 25 July 2017 until the date of effective payment”;
- “In subsidiary and only for the case in which the Chamber deems that the
Termination Agreement entered into force”: EUR 9,524, corresponding to “the
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Player A, Country B / Club C, Country D
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pending salary for May 2017 and 14 days of June 2017, the air ticket” or
alternatively, EUR 6,588.41 “representing the pending salary for May 2017 and the
air ticket, in all cases plus interest of 5% p.a. as from 25 June 2017 until the date
of effective payment.”
8.
According to the Claimant, on 13 May 2017, the Respondent played its last match
of the 2016/2017 season and the team went afterwards into summer vacation. In
this regard, the Claimant explained that at that time he was also informed that he
would not be continuing for the following season.
9.
In this respect, the Claimant explained that the Respondent invited him to
conclude a termination agreement. However, according to the Claimant, said
agreement should not be deemed as valid since the Respondent never returned a
countersigned copy. Notwithstanding the above, the Claimant confirmed that he
signed the termination agreement.
10. Moreover, the Claimant considered that FIFA should be competent since, in his
opinion, the clause as provided in the contract is unclear (cf. point I. 3 above).
11. In its reply, the Respondent contested FIFA’s competence, arguing that the matter
should be referred “to the competent bodies of the Football Federation of
Country D and / or the Professional Football League”.
12. As to the substance, the Respondent rejected the Claimant’s arguments, and
considered that he was not sufficiently motivated and that, consequently, “he
wanted to leave the country as soon as possible”. In view of the above, the
Respondent explained that a termination agreement was concluded, by means of
which the parties settled all their financial obligations. Consequently, the
Respondent argued that it had no obligations towards the Claimant for the
months of May 2017 and June 2017.
13. In addition, the Respondent considered that the Claimant should bear all the
expenses and procedural costs.
14. In his replica, the Claimant insisted in FIFA’s competence on the grounds that the
jurisdiction clause as provided in the contract is unclear and that it does not
specifically exclude FIFA’s jurisdiction. In particular, the Claimant argued that “the
mere fact that the clause in dispute does not exclude the jurisdiction of the FIFA
legal bodies renders any further discussion on competence matters unnecessary.”
15. As to the facts, the Claimant insisted that the Respondent owed him the amount
of EUR 13,088.41, whereas the total value of the contract was EUR 28,380.45
(22,500 as salaries, a bonus for EUR 5,000 and EUR 880.45 for flight tickets).
16. Despite being invited to do so, the Respondent failed to provide its final
comments.
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Player A, Country B / Club C, Country D
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II. Cons iderations of the Dis pute Res olution Cham ber
1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analyzed whether it was competent to deal with the case at hand. In this respect,
he took note that the present matter was submitted to FIFA on 2 August 2017.
Consequently, the 2017 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 of the 2017 and
2018 editions of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 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 (editions 2016 and 2018) the Dispute Resolution Chamber shall adjudicate
on employment-related disputes between a player and a club that have an
international dimension.
3. As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves a player of Country B
and a club of Country D regarding an employment-related dispute.
4. However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause 12.1 of the contract (cf.
point I. 3 above) alleging that the matter should be referred “to the competent
bodies of the Football Federation of Country D and / or the Professional Football
League”.
5. On the other hand, the Chamber noted that the Claimant insisted on the
competence of the FIFA DRC to adjudicate on the claim lodged by him against the
Respondent.
6. Taking into account all the above, the Chamber emphasized that in accordance with
art. 22 lit. b) of the 2016 and 2018 editions 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 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.
7. In relation to the above, the Chamber also deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another organ
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Player A, Country B / Club C, Country D
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than the DRC is competent to settle an employment-related dispute between a club
and a player of an international dimension, is that the jurisdiction of the relevant
national arbitration tribunal or national court derives from a clear reference in the
employment contract.
8. Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
contained a clear jurisdiction clause.
9. In this respect, the Chamber recalled that clause 12.1 of the contract stipulated the
following:
“Any dispute between the Parties arising from or in connection with this
Agreement, including its validity, interpretation, execution or termination, shall be
settled amiably. Unless the Parties shall reach an amiable resolution then any such
dispute shall be submitted to the competent bodies of the Football Association of
Country D and the Professional Football League with respect of the legislation of
Country D.”
10. Having examined the relevant provision, the Chamber came to the unanimous
conclusion that clause 12.1 of the contract does not constitute a clear jurisdiction
clause in favour of one specific court or arbitration tribunal in Country D, since it
only appears to be a generic reference to “the competent bodies of the Football
Association of Country D and the Professional Football League with respect of the
legislation of Country D”. In particular, the Chamber highlighted that it remains
unclear from the aforementioned stipulation whether said bodies are part either
of the Football Association of Country D and/or the [Country D] Professional
Football League.
11. On account of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has to
be rejected, and that the Dispute Resolution Chamber is competent, on the basis of
art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider
the present matter as to the substance.
12. The competence having been established, the Chamber decided thereafter to
analyze which edition of the Regulations on the Status and Transfer of Players
should be applicable as to the substance of the matter. In this respect, it confirmed
that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2016 and 2018), and considering that the present
matter was submitted to FIFA on 2 August 2017, the 2016 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
13. Having established the foregoing, and entering into the substance of the matter,
the DRC continued by acknowledging the above-mentioned facts as well as the
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Player A, Country B / Club C, Country D
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documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence which it considered
pertinent for the assessment of the matter at hand.
14. In this respect, the Chamber acknowledged that, on 3 March 2016, the parties to
the dispute had signed an employment contract valid as from 1 July 2016 until 30
June 2017.
15. Subsequently, the Chamber noted that the Claimant lodged a claim against the
Respondent, maintaining that the latter had outstanding salaries towards him for
the amount of EUR 13,088.41 and corresponding to the salaries for May 2017 and
June 2017, in addition to the refund of certain air tickets (cf. point I.7 above).
16. In this respect, the members of the Chamber further observed that the Claimant
acknowledged that, on 14 June 2017, he signed and returned via email to the
Respondent a “termination agreement” (cf. points I. 5 and I.6 above).
17. In relation to the aforementioned agreement, the Chamber took note of the
Claimant’s argument, according to which the termination agreement should not be
deemed as valid since the Respondent never returned a countersigned copy.
18. As a preliminary remark, the members of the Chamber noted, however, that the
Claimant acknowledged that he signed said termination agreement. Consequently,
they unanimously understood that there are no doubts that the Claimant accepted,
for his part, the terms and conditions of said agreement.
19. For the sake of completeness, the members of the Chamber further observed the
documentation provided by the Respondent, and observed that the latter provided,
during the course of the procedure, a countersigned copy of said termination
agreement. In view of the above, the members of the Chamber unanimously agreed
that the termination agreement was valid and binding between the parties.
20. Subsequently, the members of the Chamber observed the terms and conditions
agreed between the parties. In particular, the Chamber noted the contents of art.
2 of said agreement, which stipulate the following:
“2. Both parties have commonly agreed and certify through the signing of this
addendum, that they do not have other obligations, financial or any other, for past,
present or future, as a result from and in relation with the [contract].”
21. In this respect, the members of the Chamber concluded that the contents of the
aforementioned stipulation are clear and leave no room for interpretation, since it
is clearly established that, by signing the termination agreement, the Claimant
abdicated from all his rights arising from the contract, including his pending salaries
and any other (financial) obligation.
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Player A, Country B / Club C, Country D
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22. In view of the above, the members of the Chamber unanimously agreed that the
claim of the Claimant had to be rejected in full.
23. Moreover, the Dispute Resolution Chamber decided to reject the Respondent’s
claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
III. Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is admissible.
2. The claim of the Claimant is rejected.
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Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 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 (CAS)
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:
Marco Villiger
Chief Legal & Integrity Officer
Enclosed: CAS directives
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Player A, Country B / Club C, Country D
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