Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 February 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
John Bramhall (England), member
Santiago Nebot (Spain), member
on the claim presented by the player,
Player M, from country P
as Claimant
against the club,
Club S, from country P
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 18 June 2010, Player M, from country P and country J (hereinafter: the
Claimant), and Club S, from country P (hereinafter: the Respondent), signed an
employment contract (hereinafter: the contract) valid as from 1 June 2010 until
1 June 2012. The contract specified that the Claimant has the country P
nationality and holds a country J passport.
2.
The country P Football Association confirmed that, during the validity of the
employment contract, the Claimant was registered within the country P
Football Association under the country P nationality and that he played in the
country P senior national team.
3.
According to article 4 of the contract, the Claimant was entitled to a monthly
salary in the amount of currency of country J 925 as well as to a down payment
in the amount of currency of country J 5,000 “for: A) signing the contract only
B) or for the validity of the whole contract C) or part of the salaries”.
4.
Article 4 par. 6 of the contract establishes that the Respondnet has to provide
the Claimant with an insurance “that covers sickness cases, treatment, injury,
deficit or death for the whole duration of the contract […], and the insurance
coverage should include the cases that still have effects extended after the end
of the contract”.
5.
Article 6 of the contract states that the Respondent “has no right to stop
paying the salaries of the second party or reducing them due to the injury of
the player during playing or training or as a result of both, and the second
party shall enjoy all of his rights exactly in the same way before the injury and
until the end of the contract or until the player is recovered, without the
violating the right of the player in compensating him from defect caused by
the injury according to the regulations of the player’s situation or movement
or the contract whichever is best for the player”.
6.
Article 9 par. 1 of the contract establishes the following: “both parties seek to
solve their conflicts regarding the implementation of the contract in amicable
settlement, and if that failed they reach the specialized committees in the
National Federation or FIFA”.
7.
On 30 September 2012, the Claimant lodged a claim against the Respondent in
front of FIFA, requesting to be awarded with the total amount of currency of
country J 69,925 (approx. USD 98,800) according to the following breakdown:
Player M, from country P and country J / Club S, from country P
2/7
-
-
Currency of country J 4,625 as outstanding salaries for the unpaid
monthly remuneration of five months, as from January 2012 until May
2012;
Currency of country J 5,000 as the down payment envisaged in the
contract;
Currency of country J 12,000 as medical expenses;
Currency of country J 48,300 as compensation for not having provided
the Claimant with a medical insurance as per the contract.
8.
In this regard, the Claimant explained that on 1 January 2012, during an
official match of the country P league, he collapsed and had to be assisted in
the hospital where the doctors informed him that he suffered a heart disease
that required surgery. Later on, the Claimant was informed by another doctor
in country J that he suffered a wide complex tachycardia that had not been
discovered before because it had not revealed any symptoms, and that he
could not continue playing football. Consequently, the Claimant had to
undergo several operations and had to incur medical expenses.
9.
Furthermore, the Claimant declared that he never received the amount to
which he was entitled as per article 4 of the contract, i.e. neither the down
payment nor his salaries for the period as from January 2012 until May 2012.
10.
Based on the above, the Claimant considered that he is entitled to “full
disability compensation” because the injury occurred during the term of the
contract. Moreover, the Claimant deemed that the Respondent had to cover all
the medical expenses and that it had to pay him compensation, due to the fact
that the Respondent did not provide the Claimant with a proper medical
insurance that would have covered all costs.
11.
Additionally, the Claimant pointed out that the Respondent did not carry out
the correct medical examinations before joining the team, because if it had
done it properly, they would have discovered the heart disease he was
suffering.
12.
The Respondent replied to the Claimant’s claim and firstly referred to the
country P nationality of the Claimant, pointing out that the claim should be
heard by the bodies of the country P Football Association.
13.
As to the substance of the matter, the Respondent explained that it could not
be responsible for a “congenital deficiency” that was unknown at the moment
of the signing of the contract, despite the fact that the injury occurred during
the term of the contract. In this regard, the Respondent pointed out that it
carried out a proper medical examination of the Claimant as a condition for
Player M, from country P and country J / Club S, from country P
3/7
the validity of the contract, but that it did not discover the Claimant’s heart
disease and the Claimant did not inform the Respondent about it either.
14.
Moreover, the Respondent declared that, as a country P Player, the Claimant is
entitled to any required medical treatment payable by the country P
Authorities. In addition, the Respondent highlighted that the insurance to
which article 4 par. 6 of the contract refers, is for an injury or disability caused
“because of the football activity” and, in the matter at stake, the Claimant’s
injury was caused by a “congenital deficiency”. Therefore, the Respondent
should not be responsible for such injury.
15.
Furthermore, the Respondent declared that it had no debts and that even the
Claimant owed the Respondent the amount of currency of country P 3,009,
because it had paid him more than he was entitled to. In this respect, the
Respondent explained that the Claimant failed to attend 21 training sessions
and that, in addition, the Respondent imposed a disciplinary fine. So, the
Respondent deducted the amounts of currency of country P 7,437 and currency
of country P 1,500 respectively.
16.
Finally, the Claimant rejected all of the Respondent’s arguments and insisted
on the competence of FIFA to deal with the case on the basis of his country J
nationality and declaring that the bodies of the country P Football Association
do not respect the principles of fair proceedings and equal representation of
players and clubs.
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 30 September 2012. Consequently, the Rules governing the procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (edition
2008; hereinafter: the Procedural Rules) are applicable to the matter at hand
(cf. art. 21 par. 2 of the 2012 edition 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 (edition 2012) the Dispute Resolution Chamber is competent to deal
with employment-related disputes with an international dimension between a
player and a club.
Player M, from country P and country J / Club S, from country P
4/7
3.
In view of the above-mentioned provisions, the Chamber was eager to
emphasise that, in principle, and without prejudice to the right of any player
or club to seek redress before a civil court for employment-related disputes, it
falls under its competence to deal with international employment-related
disputes between players and clubs, unless an independent arbitration tribunal
has been established at national level.
4.
The members of the Chamber then referred to the Introductory Provision of
the Regulations on the Status and Transfer of Players and particularly to its
par. 2 and par. 3, according to which some principles outlined in the
Regulations are also binding at national level and each association is obliged
to draw up its internal regulations. The associations are within the framework
of their autonomy, free to adapt their internal rules to the necessity and the
particularity of the country concerned. Therefore, the competence of FIFA is
restricted to international transfers and disputes.
5.
Furthermore, in the context of labour disputes, the Chamber underlined that,
as a general rule, the international dimension is represented by the fact that
the player concerned is not a national of the country of the association to
which the relevant club is affiliated.
6.
However, when both parties have the same nationality, the dispute shall be
considered as national or internal, with the consequence that the rules and
regulations of the association concerned shall be applied to the matter and the
deciding bodies in accordance with the relevant provisions are to decide on
the issue. If FIFA’s deciding body would deal with such internal matter, the
internal competence of FIFA Members would be violated. These principles of
delimitation between the competence of FIFA and the competence of the
associations are primordial for the reciprocal recognition of the organisations
and autonomy of FIFA and the member associations.
7.
Having said this, the Chamber turned its attention to circumstances
surrounding the double citizenship of a player. The Chamber observed that
more and more players with two or more nationalities have appeared in the
world of football and that FIFA and its deciding bodies are confronted with an
augmented number of cases, which concern double citizenship. In this respect,
the members of the Chamber emphasised that a player’s nationality is
expressed by his passport(s) or identification documents, but that in the
framework of plural citizenship a player could, under certain circumstances,
possibly invoke a “sportive nationality”. The “sportive nationality” generally is
linked to the concrete situation of the registration of a player with a club
affiliated to the specific association domiciled in a country of which the player
Player M, from country P and country J / Club S, from country P
5/7
also is a national, in compliance with the rules of registration and eligibility for
a club of the association concerned.
8.
In such situations, both the club and the player may reap advantages of the
“sportive nationality”. For example, the player being registered as a “local
player” does not charge any quota of foreign players and would have no
difficulty in obtaining a visa or work permit, if at all required. Furthermore,
any possible restriction on the number of foreign persons in the country would
not be applicable in such situation. Obviously, such circumstances are to the
benefit of both the club and the player.
9.
In this context, the Chamber recalled the crucial fact that the Claimant, who
holds both the country P and the country J nationality, was registered with the
Respondent as a country P player and not as a country J player.
10.
The members of the Chamber then turned to the Claimant’s argument in
accordance with which on the basis of his country J nationality, the matter at
stake should be dealt with by FIFA and not by the country P national deciding
bodies.
11.
In this respect, the Chamber analysed the employment contract and
established that such contract was concluded by the parties making reference
to the country P nationality of the Claimant. Moreover, the DRC noted that the
country P Football Association confirmed that the Claimant was registered,
during the term of the contract, as a country p national and that he even
played for the national team of country P.
12.
On account of all of the above considerations, in particular of the fact that the
country P/country J Claimant was registered as a country P player with the
Respondent, the case of the Claimant in question comes under the jurisdiction
of the football association in the country concerned (i.e. country P), as a result
of which FIFA cannot intervene due to a lack of jurisdiction over the matter.
13.
Consequently, the Dispute Resolution Chamber decided that the present claim
is inadmissible.
Player M, from country P and country J / Club S, from country P
6/7
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player M, 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 M, from country P and country J / Club S, from country P
7/7