Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 February 2014,
in the following composition:
Geoff Thompson (England), Chairman
Todd Durbin (USA), member
Leonardo Grosso (Italy), member
on the claim presented by the player,
Player B, from country F
as Claimant
against the club,
Club A, from country P
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
Facts relating to the preliminary issue on the competence of the DRC:
1.
On 4 July 2007, Player B, from country F (hereinafter: player or Claimant), and the
Club A, from country P (hereinafter: club or Respondent), concluded an employment
contract (hereinafter: contract) valid as from 1 August 2008 until 30 June 2011.
2.
Clause 14 of the contract stipulates that ``any event and situation not stipulated in
the present contract shall be governed by the Collective Bargaining Agreement
agreed between the professional football players’ union and the country P
Professional League’’. (Note: free translation from French).
3.
According to the translation from country P submitted by the player, clause 15 of the
contract stipulates: “pour résoudre les conflits qui pourraient émerger, les parties ont
accepté de soumettre la solution à la commission arbitrale qui a été constituée dans
les termes de l’article 48 de la Convention Collective pour les professionnels de
football ou au tribunal de travail de pays P “.
4.
According to the club, clause 15 of the contract reads as follows: ``Both parts agreed
that any conflict between them is solved by the country P arbitration tribunal created
in the terms of article 48 of the collective bargaining agreement signed between the
players union and country P professional football league, or by the country P Labour
Court of country P’’.
5.
On 3 May 2010, the player lodged a claim against the club in front of FIFA regarding
breach of contract.
6.
The club contested the competence of FIFA on the basis of clause 15 of the contract,
alleging that the player had lodged a claim in front of the country P Professional
Football League, which handed the proceeding over to the country P arbitration
tribunal (hereinafter: arbitration tribunal) after having collected the club’s
statements as regards the player’s complaint. The arbitration tribunal allegedly
decided that the player had no just cause to terminate the contract.
7.
The club also referred to art. 22 of the FIFA Regulations on the Status and Transfer of
Players and highlighted that not only the parties had agreed upon the jurisdiction
governing the contract, but also that if the player did not wish to submit the case to
the arbitration tribunal, the option of initiating proceedings before the country P
labour court was also available to him.
Player B, from country F / Club A, from country P
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8.
The player, for his part, sustained that the matter was referred to the country P
Football Association as well as to the country P Professional league, but that they
had proven to be ineffective and not independent.
9.
Moreover, the player disputed the club’s allegation that FIFA is not competent in this
matter maintaining that he had never been informed of any ongoing proceeding
before the arbitration tribunal and that his right to be heard had not been granted
as he was never invited to present his position on the matter, which makes him
question its impartiality. In addition, the player sustains that neither the arbitration
tribunal nor the club notified him of the tribunal’s decision.
10.
On account of the above, the player maintained that the arbitration tribunal cannot
be considered an independent arbitration tribunal guaranteeing fair proceedings
and respecting the principle of equal representation of players and clubs in the light
of art. 22 b) of FIFA Regulations on the Status and Transfer of Players.
Facts relating to the substance of the matter:
11.
According to the contract, the player was entitled to receive, inter alia, a
remuneration of EUR 60,000 per season, payable in ten monthly instalments, starting
on 1 August and ending on 31 May of each season. The stipulated due date for the
payments is the fifth day of the following month at the latest.
12.
The contract includes a progressive remuneration system based on the number of
matches played per season.
13.
Furthermore, the player was entitled to receive, for accommodation, the amount of
EUR 500 per month, payable between August and May of each season.
14.
On 4 February 2010, the club informed the player in writing that due to his
behaviour the club would initiate disciplinary proceedings, as of the date of the
correspondence, period during which he was prohibited to appear at the club’s
premises. On 11 February 2010, the club advised the player that a serious disciplinary
sanction could be imposed on him, such as the unilateral termination of the contract
with just cause, on the basis of the findings of the disciplinary proceedings that were
taking place, i.e. missed trainings on 31 January, 1 and 2 February 2010 and suspicion
of on-going negotiations with an English club. The player responded, on 15 February
2010, explaining that he did not attend the trainings for personal reasons and that
he had the authorization from the club. Moreover, he maintained to have
unsuccessfully tried to hold a meeting with the president of the club to discuss the
possibility of his transfer on a loan basis to an English club.
Player B, from country F / Club A, from country P
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15.
On 6 March 2010, and after having put the club in default on 15 February 2010, the
player terminated the contract in writing.
16.
The club, for its part, contested said termination in writing on 16 March 2010.
17.
On 3 May 2010, the player lodged a claim before FIFA against the club maintaining
that he terminated the contract with just cause. In this connection, the player
requested that the club be ordered to pay the total amount of EUR 245,616 as set
out below:
EUR 18,116 corresponding to the total of unpaid salaries and accommodation until
the termination of the contract:
- EUR 2,404 as outstanding part of August 2009,
- EUR 2,404 as outstanding part of September 2009,
- EUR 2,404 as outstanding part of October 2009,
- EUR 2,404 as outstanding part of November 2009,
- EUR 500 as outstanding part of December 2009,
- EUR 500 as outstanding part of January 2010,
- EUR 7,500 as outstanding salary of February 2010;
EUR 97,500 corresponding to the residual value of the contract, i.e. the salaries for
March 2010 until May 2010 and for August 2010 until May 2011;
EUR 50,000 due to the prejudice allegedly suffered since the player could not
participate in any competition before the season 2010/11;
EUR 50,000 due to the prejudice allegedly suffered due to difficulties to find a
new club because of his absence in competitions and the lack of training in a
professional club;
EUR 30,000 as legal fees;
Procedural costs.
18.
In particular, the player indicated that he played more than 25 matches during the
2008/09 season, which entitled him to a monthly salary of EUR 7,000 for the 2009/10
season. Therefore, the player claimed that he should have received a total monthly
remuneration of EUR 7,500 in the 2009/10 season.
19.
In this respect, the player held that as from the beginning of the 2009/10 season, the
club had paid the salaries late and only partially. Between August and November
2009, the club had allegedly paid only EUR 5,096 per month. The salary of December
2009 was allegedly paid on 8 February 2010 in full.
Player B, from country F / Club A, from country P
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20.
Furthermore, the player explained that the club had requested him to sign
documents, without giving him a copy, which specified that an extra payment of EUR
1,904 was ``due’’ to the player.
21.
The player sustained that he terminated the contract on 6 March 2010 with just
cause, invoking art. 43 of the country P collective bargaining agreement, due to
unpaid salaries, i.e. January and February 2010 as well as part of his salary from the
beginning of the 2009/10 season, and an unjustified prohibition to train with the
team since 4 February 2010.
22.
As to the substance of the matter, the club rejected the player’s claim and stated that
the player had no legal arguments to terminate the contract. In particular, it
explained that since the player had played 21 matches during the 2008/09 season, he
was entitled to a monthly salary of EUR 6,500 plus the sum of EUR 500 per month for
accommodation, amounting to the total of EUR 7,000, which he had fully received,
until the termination of the contract, i.e. 6 March 2010, and in a timely manner.
23.
The club explained that every month, the player signed a receipt stating that he
received EUR 5,096 and another document stating that he had also received EUR
1,904, totalling EUR 7,000. The club sustained that the remuneration corresponding
to the months of March and April 2010 were deposited in ``the player’s account’’
since he had disappeared and could no longer be contacted.
24.
With regard to the disciplinary sanction, the club explained that based on country P
law, it would be possible to suspend a player during the relevant disciplinary
proceedings, which was explained to the player in its letter of 11 February 2010.
25.
With regard to his contractual situation following the termination of the contract,
the player informed FIFA that, on 6 February 2011, he concluded an employment
contract with the Club H, from country I, and valid as from 8 February 2011 until 31
May 2011, which was terminated by mutual consent on 25 February 2011.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the case at hand. In this
respect, it took note that the present matter was submitted to FIFA on 3 May 2010.
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 3 of the Procedural
Rules).
Player B, from country F / Club A, from country P
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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 (edition 2012) 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 country F player and a country P
club.
3.
In addition, the Chamber was eager to emphasize that contrary to the information
contained in FIFA’s letter dated 21 February 2014 by means of which the parties
were informed of the composition of the Chamber, the member Mr E and the
member Mr S refrained from participating in the deliberations in the case at hand,
due to the fact that the member Mr E has the same nationality as the Respondent
and that, in order to comply with the prerequisite of equal representation of club
and player representatives, also the member Mr S refrained from participating and
thus the Dispute Resolution Chamber adjudicated the case in presence of three
members in accordance with art. 24 par. 2 of the Regulations.
4.
Moreover, the Chamber acknowledged that the Respondent claimed that not FIFA
but the country P arbitration tribunal was competent to deal with the present case.
In particular, the Chamber took note that the Respondent referred to art. 22 lit. b)
of the Regulations on the Status and Transfer of Players and that it invoked clause
15 of the employment contract in support of its position.
5.
In this regard, the Chamber observed that the Claimant argued that the arbitration
tribunal in question does not comply with the requirements established in art. 22 lit.
b) of the Regulations on the Status and Transfer of Players and insisted that FIFA
was competent to decide on the present matter.
6.
In view of the above, the members of the Chamber proceeded with an analysis of
the relevant documents on file.
7.
After a careful examination of the employment contract, the Chamber considered it
of utmost importance to highlight that the employment contract which is at the
basis of the dispute at stake contains a clear arbitration clause in the event of a
dispute between the parties. In particular, clause 15 of the employment contract
makes explicit reference to the relevant arbitration body that would be competent
in the event of a dispute between the parties, i.e. the “country P arbitration tribunal
created in the terms of article 48 of the collective bargaining agreement signed
between the players union and country P professional football league”.
Player B, from country F / Club A, from country P
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8.
In continuation, the Chamber referred to art. 22 b) of the Regulations on the Status
and Transfer of Players, according to which 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 FIFA Circular no. 1010 dated 20 December
2005.
9.
Taking into account the above, the members of the Chamber referred to the
decision passed by the Dispute Resolution Chamber on 28 March 2008, in which it
concluded that the arbitration tribunal, which is the same arbitration tribunal as
referred to in the case at hand, complies with the requirements established in art. 22
lit. b) of the Regulations on the Status and Transfer of Players and in FIFA Circular
no. 1010.
10.
In this regard, the members of the Chamber recalled that according to the
agreement between the country P League of Professional Football and the Union of
Professional Football Players, in country P, the “Joint Arbitration Commission” is
responsible for the resolution of labour disputes between football players and clubs
or sportive societies and that “in case of a conflict arising from a sports employment
contract, the same shall be submitted to the Joint Arbitration Commission Comissão Arbitral Paritária (CAP)”.
11.
Furthermore, the Chamber elicited that, as considered in its decision of 28 March
2008, in accordance with the collective bargaining agreement and its annexes, the
Joint Arbitration Commission is composed of six members, three of them appointed
by the country P League of Professional Football and the other three appointed by
the Union of Professional Football Players (SJPF), i.e. an equal number of player and
club representatives. In this respect, the Chamber acknowledged that each party
shall notify to the other, with the knowledge of the Ministry of Employment and
Social Security, the designation of its representatives at the Joint Arbitration
Commission.
12.
Moreover, as previously established by the Chamber on 28 March 2008, the
members of the Chamber noted that every other two months one of the members
of the Joint Arbitration Commission shall exercise the function of the president, in
obedience of the alternation principle for perfect parity of the contractual parties,
being such system in automatic rotation and that deliberations of the Joint
Arbitration Commission shall only be validly adopted in attendance of the majority
of the members which effectively represent each of the parties and such
deliberations shall be taken by consensus. Only in case of incurable divergences
Player B, from country F / Club A, from country P
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between the members, there shall be a voting, whereby the president’s vote shall
break a tie.
13.
Consequently, and taking into consideration the entire structure and functioning of
the Joint Arbitration Commission as set out in said agreement between the country
P League of Professional Football and the Union of Professional Football Players, on
28 March 2008, the Chamber already established that the Joint 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.
14.
On account of the facts that a) the employment contract at the basis of the matter
at stake contains a clear and explicit arbitration clause and that b) the relevant
national arbitration body 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, 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 on the Status and Transfer of Players, to
consider the present matter as to the substance.
Player B, from country F / Club A, from country P
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player B, 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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player B, from country F / Club A, from country P
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