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)
Mohamed Al Saikhan (Saudi Arabia)
Joaquim Evangelista (Portugal)
Leonardo Grosso (Italy)
on the claim presented by the player,
Player B, from country S
as Claimant
against the club,
Club V, from country R
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 21 July 2006 Player B, from country S (hereinafter: the Claimant), and Club V, from
country R (hereinafter: the Respondent), concluded a “Civil Services Agreement”
(hereinafter: the contract) valid from 22 July 2006 until 22 July 2008. The parties also
signed two appendixes governing the financial terms of the contract (hereinafter: the
appendixes) valid from 26 July 2006. On 26 July 2007, the parties signed an agreement
extending the term of their contractual relationship until 20 July 2009 (hereinafter: the
agreement).
2.
Pursuant to the appendixes, the Claimant was entitled to the following remuneration:
- 2006-2007 season: USD 60,000 payable as follows:
i. USD 20,000 to be paid by 25 July 2006;
ii. USD 15,000 to be paid by 10 December 2006;
iii. USD 12,500 to be paid by 15 March 2007;
iv. USD 12,500 to be paid by 25 May 2007.
The amounts set out in ii., iii., and iv. shall be fully paid in the event the Claimant
participates in at least 75% of the games. However, should the Claimant take part in
less than 75% of the games, he shall receive a percentage of the agreed amount to be
determined on the basis of the number of games played. Furthermore, the amount set
out in iv. shall only be paid in the event the Respondent is ranked between 1st and 12th
at the end of the season.
- 2007-2008 season: USD 70,000 payable in several instalments (USD 20,000, two
instalments of USD 17,500 and USD 15,000) “under the same conditions as in the
previous years plus condition of 9 scored goals (USD 8,000)”.
3.
In addition, the appendixes provide further bonus payments, as follows:
- USD 8,000 in the event the Claimant scores 9 goals during the 2006-2007 season;
- USD 25,000 for the 2007-2008 season, provided if the Respondent finishes 7th or 8th
and with a minimum of 51 points. The relevant appendix also provides that “bonuses
for places 1-8 shall be granted by percentage, minimum 80% field participation
respectively”;
- Currency of country R 3,000 per home win as well as currency of country R 5,000 per
away win. In case of victory against either “Club S”, “Club D”, “Club R” or “Club C” the
aforementioned amounts shall be doubled.
4. Regarding the 2008-2009 season, the agreement provides for the amount of “USD
90,000 payable under the same conditions as agreed for the payments for the previous
year” as well as a bonus of USD 8,000 “in case the player scores 9 goals” during that
season. In addition, “the other clauses provided in the previous financial appendix to
the civil agreement remain unchanged”.
5. Article 8 of the contract states that “during the temporary transfer the civil agreement
is suspended and the professional football player shall not benefit from any right
provided in the present agreement and its appendixes”.
Player B, from country S / Club C, from country R
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6.
Article 17 of the contract provides that in case of a dispute, ‘’the parties shall submit, in
good faith, all efforts to amiably settle any disputes, controversies or agreements
arising form or in connection with the present agreement. Should this not be possible,
the litigation shall only be submitted for settlement to the sportive jurisdiction bodies
of country R Football Federation or PFL.’’
7.
On 17 August 2010, the Claimant lodged a claim before FIFA requesting the following
outstanding amounts:
USD 25,000 for ranking 7th at the end of the 2007-2008 season as well as for
qualifying for the Intertoto Cup, which, according to the Claimant, should have
been paid after the end of the season and before the first match of the Intertoto
Cup;
USD 90,000 for the 2008-2009 season, which, according to the Claimant, should have
been paid as follows: USD 45,000 on 20 July 2008 and the remaining amount in
three instalments of USD 15,000 all paid by the end of the agreement;
USD 75,000 for ranking 5th in the country R League I;
USD 8,000 for scoring 9 goals during the 2008-2009 season;
USD 13,000 for 11 home wins, between 30 July 2008 and 30 May 2009, three of
which against “Club S”, “Club C” and “Club R”;
USD 9,250 for 6 away wins, between 3 August 2008 and 30 May 2009.
8.
On 31 August 2008, the Claimant was transferred on the basis of a loan to the Club W,
from country R, allegedly, as a result of the fact that the Respondent did not allow him
to train with the first team, nor had it registered him for the upcoming season. The
Claimant underlined that his visa expired on 23 January 2009 because of the failure of
the Respondent to provide the required documents, as requested by the Claimant. As a
consequence, the Claimant was apparently prevented from re-entering the country
before April 2009. Until then, the Claimant reported that he had tried to reach the
Respondent in order to sort out his situation, but did not receive any assistance from
the Respondent. The Claimant asserted that he lodged a complaint before the country
R Football Federation against Club W. According to the Claimant, the country R
Football Federation passed a decision ordering Club W to pay EUR 14,000,
corresponding to 7 monthly instalments.
9.
In its reply, the Respondent contested the jurisdiction of the FIFA Dispute Resolution
Chamber (DRC) on the basis of the contract. The Respondent argued that the relevant
arbitration clause is valid under both country R law and Swiss law and that two national
independent arbitration tribunals exist at national level which are the National Dispute
Resolution Chamber of the country R Football Federation and the Dispute Resolution
Committee of the country R Professional Football League. The Respondent maintains
that both of the stated deciding bodies meet the requirements of article 22 of the FIFA
Regulations on the Status and Transfer of Football Players (hereinafter: FIFA
Regulations), Circular No. 1010 of 20 December 2005 and the FIFA National Dispute
Resolution Standard Regulations. Furthermore, the Respondent argued that the
Player B, from country S / Club C, from country R
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Claimant had seized the country R Football Federation regarding the present matter
and thus, acknowledged the competence of the c NDRC. Finally, the Respondent
requested FIFA to decide on its jurisdiction prior to adjudicating on the substance of the
present matter as provided for under country R law.
10. Regarding the substance, the Respondent rejected the Claimant’s financial claims.
Regarding the USD 25,000 bonus payment resulting from the Respondent’s
classification in the 2007-2008 season, the Respondent held that the Claimant was not
entitled to the payment because neither of the two conditions set out in the agreement
had been met. Indeed, the Respondent only obtained 47 points. In any event, the
Respondent argued that such payment was not due because the statute of limitation
provided for both in the Regulations on the Status and Transfer of Football Players
(hereinafter: the country R Football Federation Regulations, edition 2007) as well as in
accordance with FIFA Regulations had been exceeded. Moreover, the fact that the
Claimant had allegedly not taken part in at least 80% of the games during the 20072008 season prevented him from being granted the abovementioned bonus payment.
11. As for the remaining part of the Claimant’s financial claim amounting to USD 195,250,
the Respondent argued that since it is related to the 2008-2009 season, the statute of
limitation as provided for in the 2008 edition of the country R Football Federation
Regulations had been exceeded. According to the Respondent, the relevant date was
the date marking the end of the 2008-2009 season, meaning 10 June 2009. In any event,
the Respondent also claimed that the contract had been suspended during the 20082009 season as a result of the loan of the Claimant to Club W. In particular, the
Respondent referred to article 8 of the contract. Finally, the Respondent rejected the
Claimant’s allegation that it refused to assist the Claimant in renewing the visa and
stressed that the residence permit obtained with the support of the Respondent was
valid until 23 January 2009, date on which the Claimant had already been transferred to
Club W. Moreover, the Respondent asserted that the Claimant did not inform the
Respondent that he needed its assistance in renewing his visa nor did he notify the
Respondent that the loan to Club W had prematurely ended. Lastly, the Respondent
underlined that the Claimant failed to provide evidence in support of his claim.
12. The Respondent provided FIFA with a copy of the 2009 editions of the country R
Football Federation Regulations and of the country R Football Federation Statutes,
which establish the following:
a. with regard to the existing deciding bodies:
Art. 26.1 lit. a) of the country R Football Federation Regulations indicates that the
first instance deciding bodies are the NDRC of the country R Football Federation,
the DRC of the country R Professional Football League and the Commission for the
Players’ Status of the County Football Association (CFA).
b. with regard to the jurisdiction of the deciding bodies:
According to art. 26.2 lit. a) of the country R Football Federation Regulations, the
NDRC of the country R Football Federation is competent to decide on disputes
concerning “the conclusion, interpretation and execution of contracts concluded
between clubs and players, and maintaining contractual stability”.
Player B, from country S / Club C, from country R
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As per art. 26.8 of the country R Football Federation Regulations, the DRC of the
country R Professional Football League is “exclusively” competent to solve disputes
involving “Clubs participating in the 1st League National Championship, officials,
players and their coaches (…) according to the country R Football Federation and
the country R Professional Football League annual convention”.
c. with regard to the composition of the deciding bodies:
Art. 26.5 of the country R Football Federation Regulations provides that the NDRC
of the country R Football Federation is composed of a chairman and a vicechairman “elected by consensus by the players and clubs’ representatives from a list
containing the names of at least five people, drawn by the Executive Committee of
the country R Football Federation”, three players’ representatives nominated by
the Association of Amateur and Non-Amateur Footballers, and three clubs’
representatives nominated by the Executive Committee of the country R Football
Federation.
Art. 26.8 in fine of the country R Football Federation Regulations stipulates that the
DRC of the country R Professional Football League – and its appeal body – is
composed of five members, among which one president and one vice-president,
their names and functions being approved by the Executive Committee of the PFL
for a one-year mandate.
d. with regard to the possibility of an appeal:
Art. 26.1 lit. b) of the country R Football Federation Regulations establishes that the
decisions of the NDRC of the country R Football Federation may be appealed
before the “Appeal Committee of the country R Football Federation” and that the
decisions of the DRC of the country R Professional Football League may be
appealed before the “Appeal Commission of the country R Professional Football
League”. Art. 26.1 lit. c) of the country R Football Federation Regulations provides
that the decisions of the aforementioned appeal bodies may be appealed to the
Court of Arbitration for Sport (CAS).
13. In its replica, the Claimant indicated that FIFA has jurisdiction in accordance to the FIFA
Regulations and the FIFA Circular letter no. 1010 and that the country R NDRC does not
comply with art. 22 b) of the FIFA Regulations since it cannot be considered as
independent. Thus, the Claimant considered the arbitration clause provided for in the
contract as not valid. Moreover, the Claimant rejected the argumentation regarding the
prescription of his claim which he considered to have been lodged in accordance with
art. 25 para. 5 of the FIFA Regulations. As for the bonus of USD 25,000 for the season
2007/2008, the Claimant considered that it was still due and that achieving 47 or 51
points does not change anything to the ranking. Regarding the outstanding amount of
USD 90,000, the Claimant argued that said amount was still due as he considered that
the contract was not suspended by the loan to Club W for the season 2008/2009. Finally,
the Claimant alleged that the failure of the Respondent to provide him with a work
permit and fulfil its financial obligations evidenced a breach of contract by the
Respondent and thus shall be sanctioned. Therefore, the Claimant reiterated his claim.
14. In its duplica, the Respondent held that both parties had in full knowledge agreed on
the principle of a specific arbitration clause and that by contesting such clause, the
Player B, from country S / Club C, from country R
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Claimant attempted to escape from his commitment. Also, the Respondent emphasized
the fact that the Claimant did not indicate why in his opinion both country R
arbitration tribunals do not meet the requirements required by FIFA Regulations. It also
stressed the fact that the Claimant had asked and obtained from a jurisdictional body
of the country R Football Federation a judgement regarding the dispute he had with
Club W, and had fully accepted the resolution in question. According to the
Respondent, the Claimant did not send a copy of said decision, demonstrating the
Claimant’s bad faith. Regarding the loan to Club W, the Respondent underlined that
Club W was the only party entitled to request an extension of the work permit as said
club was considered as the only employer during the period in question. In this context,
the Respondent also insisted on the fact that by accepting to play for Club W on loan,
the Claimant accepted the fact that the initial contract would be replaced by his
contract with Club W for the period of the loan. Therefore, the Respondent reiterated
that the Claimant’s claim was time-barred and thus shall be rejected. The Respondent
also requested that the procedural costs be borne by the Claimant.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect,
the Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules). The present matter was submitted to FIFA on 17 August 2010.
Therefore, the Chamber concluded that the edition 2008 of the Procedural Rules was
applicable to the matter at hand (cf. art. 21 par. 2 and 3 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 and 2 in combination with
art. 22 b) of the Regulations on the Status and Transfer of Players (editions 2010 and
2012; hereinafter: the Regulations), the Dispute Resolution Chamber shall adjudicate
on employment-related disputes between a club and a player, with an international
dimension.
3.
Having said that, the DRC stated that it would, in principle, be the competent body to
decide on the present litigation involving a country S player and a country R club
regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the competence
of FIFA’s Dispute Resolution Chamber to deal with the present case, referring to art.
17 of the contract according to which any dispute arisen between the parties should
be submitted to the deciding bodies of the country R Football Federation and of the
country R Professional Football League.
Player B, from country S / Club C, from country R
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5.
The Chamber equally noted that the Claimant rejected such position and insisted on
the fact that FIFA had jurisdiction to deal with the present matter because the country
R Football Federation and the country R Professional Football League do not fulfil the
requirements set out in art. 22 lit. b) of the Regulations.
6.
Taking into account the above, the Chamber emphasised that, in accordance with art.
22 lit. b) of the 2012 FIFA Regulations, 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. In this regard, the
members of 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.
7.
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 actually contained a
jurisdiction clause.
8.
Having said this, the members of the Chamber turned their attention to art. 17 of the
contract, which stipulates that ‘’the parties shall submit, in good faith, all efforts to
amiably settle any disputes, controversies or agreements arising form or in connection
with the present agreement. Should this not be possible, the litigation shall only be
submitted for settlement to the sportive jurisdiction bodies of country R Football
Federation or Professional Football League.’’
9.
In view of the aforementioned clause, the members of the DRC were of the opinion
that art. 17 of the employment contract does not make clear reference to one specific
national dispute resolution chamber in the sense of art. 22 lit. b) of the
aforementioned Regulations and does not even provide for the possibility of lodging
a contractual dispute in front of FIFA. Therefore, the members of the Chamber deem
that said clause can by no means be considered as a clear arbitration clause in favour
either of the national deciding bodies, i.e. of the country R Football Federation or the
country R Professional Football League, and, therefore, cannot be applicable. In this
regard, the Chamber pointed out that this lack of clarity is also reflected in the
Respondent’s argumentation since it refers to the alleged competence of the country
R NDRC without further precision.
10.
Having established that the first criterion for the recognition of the competence of a
national decision-making body is not fulfilled in the present matter, the Chamber
deemed unnecessary to examine any further points which would need to be assessed
before concluding to the competence of a national deciding body.
Player B, from country S / Club C, from country R
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11.
In view of the above, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that the
DRC 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.
Subsequently, the members of the Chamber analysed which edition of the Regulations
should be applicable as to the substance of the matter. In this respect, the Chamber
confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (editions
2009, 2010 and 2012) and considering that the claim in front of FIFA was lodged on 17
August 2010, the 2009 edition of said Regulations is applicable to the present matter
as to the substance.
13.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In doing so, it started to
acknowledge the facts of the case as well as the documents contained in the file.
14.
In this respect, the members of the DRC acknowledged that it was undisputed by the
parties that, on 21 July 2006, they signed a contract with two appendixes as well as an
agreement extending the contractual relationship up until 20 July 2009, in accordance
with which the player was entitled to receive, inter alia, a total salary of USD 220,000;
plus further performance-related bonuses in relation to the Respondent’s
classification, goals scored by the Claimant and victories for the Respondent.
15.
The DRC noted that, on the one hand, the Claimant claims that the Respondent failed
to pay his bonus amounting to USD 25,000 relating to the Respondent’s classification
in the 2007-2008 season, as well as the amount of USD 195,250 for the 2008-2009
season, including the amount of USD 45,000 due on 20 July 2008 as well as other
salaries and bonuses.
16.
The DRC noted that, on the other hand, the Respondent rejected the Claimant’s
financial claim on the basis of the statute of limitation as well as the suspension of the
contract due to the Claimant’s loan. In this respect, the Respondent refers to art. 8 of
the contract (cf. point I.5. above).
17.
On account of the above considerations, the Chamber deemed that, first of all, the
claim having been lodged on 17 August 2010 only, the claims relating to the alleged
outstanding remuneration of USD 25,000 and USD 45,000, respectively falling due by
the end of the 2007-2008 season and on 20 July 2008, must be considered barred by
the statute of limitations in accordance with art. 25 par. 5 of the Regulations.
18.
Having established the aforementioned, the Chamber focussed its attention on the
rest of the Claimant’s claim related to amounts due during the 2008-2009 season. The
members of the Chamber referred to art. 8 of the contract which stipulates that
“during the temporary transfer the civil agreement is suspended and the professional
football player shall not benefit from any right provided in the present agreement
and its appendixes”.
Player B, from country S / Club C, from country R
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19.
In this respect, the Chamber took note that the Claimant was transferred on the basis
of a loan on 31 August 2008 for the entire 2008-2009 season. Therefore, the Chamber
concluded that the contract between the Claimant and the Respondent was
suspended during the season 2008-2009. Consequently, the Claimant is not entitled to
any amount in relation with the 2008-2009 season either.
20.
For all the above reasons, the DRC decided that the claim of the Claimant is rejected
insofar as it is admissible.
*****
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant is rejected, insofar as it is admissible.
*****
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:
Player B, from country S / Club C, from country R
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Markus Kattner
Deputy Secretary General
Encl.
CAS directives
Player B, from country S / Club C, from country R
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