Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 1 February 2012,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
David Mayebi (Cameroon), member
Philippe Diallo (France), member
Essa M. Saleh Al Housani (United Arab Emirates), member
on the claim presented by the player
Player T, from country H
as Claimant
against the club
Club D, from country I
as Respondent
regarding an employment-related dispute
arisen between the parties.
I.
Facts of the case
1.
On 27 December 2006, Club D, from country I (hereinafter: the Respondent), and
the Player T, from country H (hereinafter: the Claimant), concluded an employment
contract (hereinafter: the contract), valid from 1 January 2007 until 31 May 2007.
2.
According to article 3 of the contract, the Claimant was entitled to receive a total
remuneration in the amount of EUR 29,300 divided in five equal monthly
instalments of EUR 5,860 each, payable on the 30th of each month, whereas the first
salary had to be paid on 31 January 2007.
3.
Furthermore, article 14 of the contract determined that it “shall be governed by
and construed in accordance with the Laws of country I”.
4.
Additionally, in accordance with article 15, the Claimant was also entitled to a
monthly amount of EUR 1,000 “for the expenses covering accommodation, car and
flight tickets”.
5.
On 27 August 2007, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting a total outstanding remuneration in the amount of EUR
20,580 as follows:
- EUR 17,580 corresponding to the monthly salaries for the months of March,
April and May 2007;
- EUR 3,000 corresponding to the expenses for the months of March, April and
May 2007;
The Claimant also requested interests as from each due date as well as “the cost[s]
of the legal procedure[s]”.
6.
According to the Claimant, the Respondent failed to pay him his monthly salaries as
well as the monthly expenses for the months of March, April and May 2007.
7.
In reply to the claim, the Respondent merely disputed the jurisdiction of the FIFA
Dispute Resolution Chamber (hereinafter: DRC), referring to article 14 of the
contract.
8.
Even though having been invited by FIFA to provide its position as to the substance
of the matter and properly warned that the DRC would then decide on its
competence and, in the event that it would declare itself competent, it would also
on the occasion of the same meeting decide on the substance of the matter, the
Respondent did not provide any position as to the substance of the present matter,
insisting that the dispute should be referred for resolution to the country I Football
Association.
9.
Upon request of FIFA to be provided with the relevant regulations of its national
deciding body, the country I Football Association presented documentation referred
to as the “Regulations for the Registration and Transfer of Football Players” of the
country I Football Association (edition 2005; hereinafter: the country I Regulations),
which entered into force on 15 June 2005, as well as its translation.
Player T, from country H / Club D, from country I
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10. The country I Regulations establish, inter alia, that the Dispute Resolution
Committee (hereinafter: the NDRC) is competent to adjudicate and/or resolve any
financial or other disputes which may arise between clubs and non-amateur players.
11. Furthermore, according to the country I Regulations, the NDRC is composed of five
members, namely a Chairman, a Vice-Chairman and one member elected by the
Executive Committee of the Association, as well as, in the other hand, two members
elected by the country I Football Players’ Association.
12. In addition, the country I Football Association submitted a statement affirming that
“for many years now, a 5 member Dispute Resolution Chamber Committee is
operating under the umbrella of country I Football Association for resolving similar
cases such as this current one (…) two of the members in this 5 member DRC [being]
appointed by the country I Football Players Association and the rest of the members
[being] appointed [by] the Board of Directors of [the] country I Football
Association”.
13. In his replica, the Claimant rejected the Respondent’s arguments and explained that
the contract only established the substantive law, but did not refer to any
submission or exclusivity concerning the jurisdiction to decide on the present
dispute. Moreover, the Claimant referred to art. 22 lit. b) of the FIFA Regulations on
the Status and Transfer of Players and stated that the country I NDRC does not fulfil
the requirements set forth by FIFA in order to be considered as an independent
arbitration tribunal.
14. Even though invited once again to submit its position regarding the substance of
the matter, the Respondent insisted that FIFA should “submit the case for
examination to the appropriate Committee of the country I Football Association in
accordance with the provisions of the contract that the player signed with our
club”.
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 Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: the Procedural Rules). The present matter was submitted
to FIFA on 27 August 2007, thus before 1 July 2008. Consequently, the Chamber
concluded that the previous Procedural Rules (edition 2005) are applicable to the
matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of
the Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2010). In accordance with art. 24 par. 1 in combination
with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution
Chamber would, in principle, be competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between
a player from country H and a club from country I.
Player T, from country H / Club D, from country I
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3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of article 14 of the employment
contract which stipulates that “the contract was governed by the Laws and relevant
regulation of the Republic of country I”.
4.
In this regard, the Chamber noted that the Claimant rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
While analysing whether it was competent to hear the present matter, first and
foremost, the Chamber deemed it of utmost importance to highlight that the
article 14 of the contract does not consist in a choice of jurisdiction, but rather a
choice of applicable law which does not concern procedural matters. The members
of the Chamber therefore concluded that the contract does not contain any
arbitration or jurisdiction clause. Hence, article 14 of the contract clearly does not
refer to a national dispute resolution chamber or any similar arbitration body in the
sense of art. 22 lit. b) of the aforementioned Regulations.
6.
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 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.
7.
Subsequently, the Chamber analysed 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, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2010, 2009 and 2008)
and, on the other hand, to the fact that the present claim was lodged on 27 August
2007. The Dispute Resolution Chamber concluded that the 2005 version of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
8.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber recalled that the Claimant and the Respondent, on 27 December 2006,
signed an employment contract valid from 1 January 2007 until 31 May 2007, in
accordance with which the Claimant was entitled to receive a total remuneration in
the amount of EUR 29,300 to be paid in five instalments of EUR 5,860 each, the first
instalment being due on 31 January 2007. Furthermore, the Chamber noted that
the Claimant was entitled to receive a monthly amount of EUR 1,000 concerning
expenses with accommodation, car and flight tickets.
9.
The members of the DRC then turned to the claim of the player, who maintained
that the Respondent failed to pay him his monthly salaries as well as the expenses
regarding the months of March, April and May 2007, amounting to a total sum of
EUR 20,580. Consequently, the Claimant asked that the Respondent be instructed to
pay the amount of EUR 20,580 plus interest, applicable as of each due date, as well
as an amount of money to cover the procedural costs.
Player T, from country H / Club D, from country I
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10. On the other hand, the Chamber noted that the Respondent, for its part, had failed
to submit its position as to the substance of the present matter, in spite of having
been invited to do so. In this way, to the members of the DRC, the Respondent
renounced to its right to defence and thus, accepted the allegations of the
Claimant.
11. Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take
a decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
12. Taking into account the documentation presented by the Claimant in support of his
positions, the DRC concluded that the Claimant had substantiated his claim
pertaining to outstanding salaries with sufficient documentary evidence.
13. Hence, the Chamber established that although the Claimant had fulfilled his
contractual obligations, the Respondent had failed to remit to the Claimant the
monthly salaries as well as his expenses for three months, i.e. March, April and May
2007. Consequently, the DRC decided that the Respondent, in virtue of the general
legal principle of “pacta sunt servanda”, is liable to pay the total amount of EUR
20,580 to the Claimant.
14. Concerning the interests claimed by the Claimant, the DRC noted that the contract
did not provide for any specific interest rate in case of late payment. Consequently,
the DRC decided to award, in accordance with the constant practice of the Dispute
Resolution Chamber, default interest at a rate of 5% p.a. to the Claimant as from
the first day after the respective due dates of each installment.
15. Finally, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to costs incurred in accordance with art. 15 par. 3 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
16. The Chamber concluded its deliberations in the present matter by establishing that
any further requests filed by the Claimant are rejected.
*****
Player T, from country H / Club D, from country I
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player T, is partially accepted.
2.
The Respondent, Club D, has to pay to the Claimant, Player T, within 30 days as
from the date of notification of this decision the amount of EUR 20,580 plus
interest at 5% p.a. until the date of effective payment as follows:
- 5% p.a. as of 31 March 2007 over the amount of EUR 6,860;
- 5% p.a. as of 1 May 2007 over the amount of EUR 6,860;
- 5% p.a. as of 31 May 2007 over the amount of EUR 6,860.
3.
Any further requests filed by the Claimant, Player T, are rejected.
4.
If the aforementioned sum is not paid within the above-mentioned time limit, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for its consideration and a formal decision.
5.
The Claimant, Player T, is directed to inform the Respondent, Club D, immediately
and directly of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
*****
Player T, from country H / Club D, from country I
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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:
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player T, from country H / Club D, from country I
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