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
Mohamed Al Saikhan (Saudi Arabia), member
Joaquim Evangelista (Portugal), member
Leonardo Grosso (Italy), member
on the claim presented by the player,
Player P, from country S
as Claimant
against the club,
Club T, from country G
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 10 August 2009, Player P, from country S, born in February 1982 (hereinafter:
the Claimant), and Club T, from country G (hereinafter: the Respondent),
concluded a country G Super League employment contract (hereinafter: the
contract) valid as from 10 August 2009 until 30 June 2011.
2.
Pursuant to the contract, the Claimant was entitled to a monthly salary of EUR
826 as well as an amount of EUR 275,218.27, payable in ten instalments as
follows:
- EUR 25,380.71 to be paid on 10 August 2009;
- EUR 22,445.69 to be paid on the following 5 dates:
- 1 September 2009,
- 1 November 2009,
- 1 January 2010,
- 1 March 2010, and
- 1 June 2010;
- EUR 34,402.28 to be paid on the 4 following dates:
- 1 September 2010,
- 1 November 2010,
- 1 January 2011, and
- 1 March 2011.
3.
Clause 4.11 of the contract stipulates that: “In the event of termination of the
contract due to fault of the Club, without prejudice to the specific and minimum
provisions of par. 2 of Article 17 of the Regulations, it is hereby stipulated that
the compensation due to the Player amounts to: a) During the protected period
200.000 €; b) Outside the protected period ---------.“
4.
Clause 10 of the contract states that “All disputes between the parties are settled
by the Appeals Committee for the Resolution of Financial Disputes (PEEOD) at
first instance, and the Court of Arbitration of the country G Football Federation
at the second instance.”
5.
On 20 August 2010, the Claimant lodged a claim against the Respondent in front
of FIFA for compensation for breach of contract and sporting sanctions, alleging
that he had grounds to terminate the contract. The Claimant reported that until
1 June 2010 six instalments fell due totalling the amount EUR 137,609.16.
However, he had only received the total amount of EUR 40,813. Consequently,
the Claimant claimed that there was an amount of “EUR 79,187” net
Player P, country S / Club T, country G
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outstanding. In addition, the Claimant claimed that the Respondent had
prevented him from participating in trainings and matches, despite his requests
to enable him to train with the team and fulfil his duties.
6.
On account of the above, the Claimant requested compensation in the total
amount of EUR 200,000 in accordance with art. 4.11 of the contract.
7.
To its claim, the Claimant enclosed a letter dated 6 August 2010 by means of
which he put the Respondent in default for the amount of EUR 79,187 and
notified the Respondent that he would terminate the contract if it would not pay
the relevant amount within 5 days.
8.
On 6 September 2010, the Claimant reverted to FIFA indicating that, on 10 July
2009, the parties had concluded a pre-contract by means of which they
undertook to sign “a professional contract of labour”. In this respect, the
Claimant submitted a copy of said pre-contract which is only signed by the
Respondent.
9.
According to the pre-contract, the Claimant would be entitled to an advance
payment of EUR 20,000 to be paid upon receipt of the International Transfer
Certificate (ITC) and to EUR 120,000 net per contract year. In addition, the
Claimant would be entitled to the following benefits: accommodation in an
apartment; a car; as well as one plane ticket to country P per year for him and his
family.
10.
As a consequence of the above, the Claimant held that the outstanding amount
amounted to EUR 109,187 (EUR 120,000 – EUR 40,813).
11.
On 13 September 2010, the Claimant reverted again to FIFA indicating that, on
the same day, he notified the Respondent of his decision to terminate the
contract.
12.
On account of all the above, the Claimant requested the Dispute Resolution
Chamber (DRC) to:
a.
b.
c.
d.
13.
declare that the Respondent is in breach of the contract;
order the Respondent to pay outstanding remuneration totalling EUR
109,187 plus interest.
order the Respondent to pay EUR 200,000 as compensation for breach of
contract;
impose sporting sanctions.
On 30 September 2011, the Respondent replied to the Claimant’s claim, primarily
disputing FIFA’s competence to deal with the matter on the basis of clause 10 of
Player P, country S / Club T, country G
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the contract. The Respondent stressed that both bodies mentioned in clause 10
“are independent arbitration tribunals guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs”. Therefore,
the Respondent argued that the Claimant was obliged to file his claim before the
country G bodies.
14.
In this respect, the Respondent provided FIFA with a copy of the 2009 editions of
the “country G Football Federation Statutes” and the “Procedural Rules of the
Disputes Resolution Committee of the country G Football Federation”.
15.
In the alternative and as to the substance, the Respondent stressed that the
payments due by 1 June 2010 amounted to EUR 108,436 net only, that is EUR
137,609.16 gross minus the applicable 21,2% tax rate.
16.
Moreover, the Respondent maintained that by 1 June 2010 the Claimant had
received an overall amount of EUR 60,813, instead of EUR 40,813. According to
the Respondent, the additional amount of EUR 20,000 corresponded to an
advance payment made on 15 July 2009 to the Claimant, which he had requested
in order to pay his agent’s commission.
17.
In addition to the amount of EUR 60,813, the Respondent claimed to have made
a number of payments in the total amount of EUR 4,308.86 (utilities, insurance,
etc.) on behalf of the Claimant until the end of the season, i.e. 30 June 2010.
Therefore, in the Respondent’s view, the outstanding amount must be set at EUR
43,314.14 instead of EUR 79,187. In this respect, the Respondent held that the
contract must be regarded as terminated as of the date of the filing of the claim,
i.e. 20 August 2010. Consequently, the Claimant was not entitled to receive the
payment due on 1 September 2010 and, as a result, at the time of termination,
only the amount of EUR 43,314.14 was outstanding.
18.
Furthermore, the Respondent pointed out that until July 2010, the Claimant had
never complained about any delayed payments, but, as from mid-July, the
Claimant started causing troubles because he wanted to leave the Respondent,
allegedly because the Respondent’s coach regarded him as third option for the
goalkeeper position. Following this, at the end of July, the Respondent reported
that the Claimant left without notice and never returned, despite the
Respondent’s efforts to persuade him through his agent to return. Moreover the
Respondent rejected that it had prevented the Claimant from taking part in
trainings sessions and from fulfilling his duties.
19.
The Respondent stressed that the Claimant had filed his claim before FIFA
without having previously put the Respondent in default and that he had already
closed his bank account in country G, reason for which the Respondent could not
make any further payments. In this regard, the Respondent claimed to have never
Player P, country S / Club T, country G
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received the letter of 6 August 2010. Similarly, the Respondent pointed out that
the documentation submitted by the Claimant to prove the notification, were
either illegible or not translated into English.
20.
Moreover, the Respondent claimed that, in the meantime, there is no amount
outstanding to the Claimant, because it issued a check for the amount of EUR
53,720.99 in the name of the Claimant, which it deposited with the country G
Football Federation. The Respondent explained that it issued the check because
the Claimant had closed his bank account in country G. Finally, the Respondent
stated that it issued a check for EUR 53,720.99, instead of EUR 43,314.14, because
of other monies that the Claimant was entitled to or that were due to him
(monthly fees and minor expenses).
21.
In continuation, with respect to the Claimant’s request for EUR 200,000 as
compensation, the Respondent rejected such request arguing that, in fact, it was
the Claimant who breached the contract by leaving the Respondent without
terminating the contract and without any notice.
22.
Finally, should the DRC accept the claim of the Claimant, then it shall reduce the
compensation in light of the mitigating factors of the present case, the
Respondent’s payment of all of the outstanding amounts and the
disproportionately of the amount claimed.
23.
In his replica, the Claimant confirmed that a payment of EUR 20,000 had been
made on 15 July 2009, however it was made on an account to which he had no
access “earlier than on 20 of July 2009”. Also, the Respondent “did not prove
that the payment done for the player’s agent should be enlisted to the payments
to which the club was obliged by contract”. Hence, the payment was made as a
commission to the agent and was “not calculated in the player’s salary.”
24.
Furthermore, the Claimant:
-
insisted on the competence of FIFA to hear the present dispute;
indicated that the amount of EUR 4,308.86 was a separate obligation of
the Respondent;
indicated that he never got any information in relation to the check;
asserted that the statements of the Respondent in relation to his
abandonment of the club are not true.
25.
In its replica, the Respondent adhered to its previous position.
26.
Finally, the Claimant indicated that he signed a new employment contract with
Club R, from country P, on 19 January 2011, valid as from the date of signature
until 31 December 2011. In accordance with the contract, the player was entitled
Player P, country S / Club T, country G
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to currency of country P 22,712 gross per month, apart from the month of
January 2011, in which he was entitled to currency of country P 9,352.
27.
On 22 July 2013, the Court of Arbitration for Sport (CAS) rendered an award
whereby it decided that the national arbitration bodies of the country G Football
Federation fulfil the requirements of equal representation and of an
independent chairman and guarantee fair proceedings.
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 20 August 2010. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 2 and par. 3 of the Procedural Rules).
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 articles 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2012). In accordance with art. 24 par. 1 and par. 2 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 country S player and a country G club.
3.
However, the DRC acknowledged that the Respondent contested the competence
of FIFA’s deciding body on the basis of clause 10 of the employment contract,
asserting that the arbitration bodies of the country G Football Federation are
independent arbitration tribunals guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs.
4.
The Chamber noted that the Claimant, for his part, rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
In this respect, and first of all, the Chamber outlined that the standard country G
Super League employment contract signed by and between the Claimant and the
Respondent on 10 August 2009 contains a clause in accordance with which all
disputes between the parties are settled by the Appeals Committee for the
Resolution of Financial Disputes (PEEOD) at first instance and the Court of
Arbitration of the country G Football Federation at second instance.
Player P, country S / Club T, country G
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6.
As to the pre-contract dated 10 July 2010, the Chamber considered that said precontract was only signed by the Respondent but not by the Claimant and that it
could therefore not be considered by the Chamber. Consequently, the Chamber
decided that the standard country G Super League employment contract signed
by and between the Claimant and the Respondent on 10 August 2009 shall be
considered to be the only valid contract at the basis of the present matter. For this
reason, the Chamber concluded that when analysing the preliminary question as
to the competence of the Chamber, it shall take into account only the terms of
the standard country G Super League employment contract signed by and
between the Claimant and the Respondent on 10 August 2009.
7.
In continuation, the Chamber emphasised that in accordance with art. 22 lit. b) of
the 2012 edition of the Regulations on the Status and Transfer of Players, it is
competent to hear a matter such as the one at hand, unless an independent
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 DRC referred to FIFA Circular no. 1010 dated
20 December 2005. In this regard, the Chamber further 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 this respect, the Chamber took into account that, on 22 July 2013, the CAS
issued an award, whereby it decided that the national arbitration bodies of the
country G Football Federation fulfill the requirements of equal representation
and of an independent chairman and guarantee fair proceedings, in compliance
with the aforementioned applicable standards.
9.
In this context, the Chamber took note that the country G deciding bodies at the
basis of the aforementioned CAS decision are the same deciding bodies as the
ones included in the jurisdiction clause of the standard country G Super League
employment contract dated 10 August 2009.
10.
On account of the above, the DRC referred to art. 22 lit. b) of the Regulations on
the Status and Transfer of Players and established that it is not competent to
adjudicate on the present matter since a) clause 10 of the relevant employment
contract constitutes a clear and exclusive jurisdiction clause in favour of the
PEEOD and the Court of Arbitration of the country g Football Federation, and b)
CAS confirmed that the relevant country G deciding bodies fulfill the
requirements of equal representation and of an independent chairman and
guarantee fair proceedings, i.e. the relevant country G deciding bodies are
competent to adjudicate on disputes between players and clubs like the matter at
hand.
Player P, country S / Club T, country G
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11.
In light of the above, the Chamber unanimously decided that the claim of the
Claimant is inadmissible.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player P, 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 P, country S / Club T, country G
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