Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
Player A, from country B
as Claimant/Counter-Respondent
against the club,
Club C, from country D
as Respondent/Counter-Claimant
and the club,
Club E, from country B
as Intervening Party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 9 April 2011, the player from country B, Player A (hereinafter: the
Claimant/Counter-Respondent), and the club from country D, Club C (hereinafter:
the Respondent/Counter-Claimant), signed an employment contract (hereinafter:
the contract), valid as from 1 July 2011 until 30 June 2013, i.e. 2 years.
2.
According to the contract, the Respondent/Counter-Claimant undertook to provide
the Claimant/Counter-Respondent, inter alia, with a monthly salary of EUR 25,000,
payable no later than the 25th day of the following month.
3.
In addition, the parties agreed upon the following clauses:
a)
Art. 7.1b): “The [Claimant/Counter-Respondent] shall participate in the
trainings, pre-match meetings, training matches, friendlies and official
matches […] of the [Respondent/Counter-Claimant] […].”
b)
Art. 7.1c): “The [Claimant/Counter-Respondent] shall comply with the training
hours as established by the [Respondent/Counter-Claimant] and its officials.”
c)
Art. 5.3: “The [Respondent/Counter-Claimant] may withhold from the
amounts due to the [Claimant/Counter-Respondent] any fine or sanction
imposed on him in accordance with the Regulations of the Football
Federation from country D and the Internal Regulations of the
[Respondent/Counter-Claimant]”.
d)
Article 12.1: “[…] If the parties are not able to reach an amicable settlement,
the disputes shall be decided by the jurisdictional bodies of the Football
Federation from country D and the Professional Football League in country D,
pursuant to law in country D.”
4.
On
20
February
2012,
the
Claimant/Counter-Respondent
and
the
Respondent/Counter-Claimant concluded an agreement (hereinafter: the
agreement), by means of which the Respondent/Counter-Claimant acknowledged
to owe the Claimant/Counter-Respondent EUR 75,000, which were to be paid to the
Claimant/Counter-Respondent on 5 March 2012.
5.
On 23 February 2012, the Claimant/Counter-Respondent, the Respondent/CounterClaimant and the club from country F, club G, entered into a loan agreement
(hereinafter: the loan), valid until 31 December 2012.
6.
According to art. 4 of the loan, “the [Claimant/Counter-Respondent] declares that
he has no financial claim or any other claim against [the Respondent/CounterClaimant]. Also, the [Claimant/Counter-Respondent] definitively waives his right on
the benefits resulting from the provisions of the Addendums of [the contract]”.
7.
On 14 August 2013, the Claimant/Counter-Respondent lodged a claim in front of
FIFA against the Respondent/Counter-Claimant, requesting, after amending his
claim, the payment of EUR 200,000, plus 5% interest p.a. as from the relevant due
dates until the date of effective payment, broken down as follows:
Player A, from country B / Club C, from country D /
Club E, from country B
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a)
b)
c)
d)
e)
f)
EUR 75,000, due on 5 March 2012 as per the Claimant/Counter-Respondent,
pursuant to the agreement;
EUR 25,000, due on 30 March 2013 as per the Claimant/Counter-Respondent,
corresponding to his salary of March 2013;
EUR 25,000, due on 30 April 2013 as per the Claimant/Counter-Respondent,
corresponding to his salary of April 2013;
EUR 25,000, due on 30 May 2013 as per the Claimant/Counter-Respondent,
corresponding to his salary of May 2013;
EUR 25,000, due on 30 June 2013 as per the Claimant/Counter-Respondent,
corresponding to his salary of June 2013;
EUR 25,000, corresponding to a procedural compensation.
8.
In
his
claim,
the
Claimant/Counter-Respondent
explains
that
the
Respondent/Counter-Claimant failed to pay his salaries from March until June 2013
as per the contract (cf. point I.2. above) and EUR 75,000, in accordance with the
agreement (cf. point I.4. above).
9.
In its response, the Respondent/Counter-Claimant rejects FIFA’s jurisdiction over the
present dispute in favour of the Dispute Resolution Chamber of the Professional
Football League in country D on the basis of art. 12.1 of the contract (cf. point I.3.d)
above) and provided a statement of the Professional Football League in country D
regarding its chamber as fully compliant with art. 22 b) of the Regulations on the
Status and Transfer of Players of FIFA, as well as a partial copy of the 2013 edition
of the Regulations of the Football Federation from country D on the Status and
Transfer of Football Players.
10.
With regard to the substance of the dispute, the Respondent/Counter-Claimant
argues that the Claimant/Counter-Respondent waived his EUR 75,000 credit under
the agreement according to art. 4 of the loan (cf. point I.6. above), which
superseded the agreement, and, therefore, the Claimant/Counter-Respondent is not
entitled to such payment.
11.
In connection with the period between the end of the loan and the expiration of
the contract, the Respondent/Counter-Claimant claims that the Claimant/CounterRespondent displayed unprofessional behaviour and did not participate in the
training sessions between 15 and 30 May 2013 (cf. point I.16. below). Accordingly,
the Claimant/Counter-Respondent was sanctioned with a fine of EUR 75,000 for
breach of art. 7.1 lit. b) and c) of the contract (cf. point I.3. above). The
Respondent/Counter-Claimant explains, however, that the fine was still to be
ratified by the Professional Football League in country D.
12.
Consequently, the Respondent/Counter-Claimant argues that it is entitled to
withhold said amount in accordance with art. 5.3 of the contract (cf. point I.3.c)
above) or set-off any eventual receivables of the Claimant/Counter-Respondent
against the aforementioned fine.
13.
Finally, the Respondent/Counter-Claimant lodged a counterclaim for breach of
contract against the Claimant/Counter-Respondent, requesting the payment of the
total amount of EUR 75,000, plus 5% interest p.a. as from 25 June 2014 until the
Player A, from country B / Club C, from country D /
Club E, from country B
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date of effective payment, based on the fine imposed on the Claimant/CounterRespondent (cf. point I.11. above), and legal and procedural costs.
14.
In his reply, the Claimant/Counter-Respondent insists on the competence of the FIFA
DRC, claiming that the jurisdictional bodies of country D do not comply with the
requisites established in art. 22 b) of the Regulations on the Status and Transfer of
Players.
15.
As to the counterclaim, the Claimant/Counter-Respondent rejects it in full, stating
that the Dispute Resolution Chamber of the Professional Football League in country
D does not respect the principle of equal representation of players and clubs.
Additionally, the Claimant/Counter-Respondent asserts that he was not notified of
any disciplinary proceeding against him nor of the imposition of the fine referred to
by the Respondent/Counter-Claimant.
16.
In its final position, the Respondent/Counter-Claimant submitted a copy of a
decision taken by its board of directors on 30 December 2013, whereby it imposed a
sports penalty of 25% of the contractual rights due to the Claimant/CounterRespondent for the season 2012/2013 based on the alleged absence of the
Claimant/Counter-Respondent at the training sessions between 15 and 30 May
2013. The Respondent/Counter-Claimant also submitted a payment order dated 31
March 2014 in the amount of EUR 100,000, corresponding to the Claimant/CounterRespondent’s salaries from March until June 2013. In this respect, the
Respondent/Counter-Claimant claims that it only paid the said amount because the
Football Federation from country D required so in order to renew its licence.
17.
In his final position on the Respondent/Counter-Claimant’s counterclaim, the
Claimant/Counter-Respondent
acknowledges
having
received
from
the
Respondent/Counter-Claimant the payment of his salaries from March until June
2013 on 30 March 2014. However, he claims that the Respondent/Counter-Claimant
did not pay interests on such salaries, which were accrued between the
corresponding due dates until 30 March 2014 at 5% interest p.a. rate. In this sense,
the Claimant/Counter-Respondent provided a calculation amounting to EUR
3,495.99 and reinforced his claim for the amount of EUR 75,000 as well as
procedural costs.
18.
Likewise, the Claimant/Counter-Respondent presented five reports of matches
played by him for the Respondent/Counter-Claimant on 13, 17, 22 and 26 May 2013
and 1 June 2013. In this regard, the Claimant/Counter-Respondent argues that the
fine imposed by the Respondent/Counter-Claimant for missing the training sessions
between 15 and 30 May 2013 has no factual basis taking into consideration that he
played five official matches during the alleged period.
19.
The Claimant/Counter-Respondent further affirms that the decision of the board of
directors of the Respondent/Counter-Claimant was taken six months after the
employment relationship between him and the Respondent/Counter-Claimant
ended and, in any case, after lodging his claim against it in front of FIFA. Moreover,
the Claimant/Counter-Respondent claims that the Respondent/Counter-Claimant
infringed his right to be heard because he was not notified of the opening of
disciplinary procedures against him and, therefore, he could not exercise such right.
Player A, from country B / Club C, from country D /
Club E, from country B
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Finally, the Claimant/Counter-Respondent argues that, according to the
jurisprudence of the Dispute Resolution Chamber, a club may not validly set-off a
player’s receivables against a fine imposed against him in a disciplinary proceeding.
20.
After being invited by FIFA to comment on the counterclaim lodged against the
Claimant/Counter-Respondent, his new club, Club E (hereinafter: the Intervening
Party), explained that there was no breach of contract between the
Claimant/Counter-Respondent and the Respondent/Counter-Claimant and that the
contract between them ended on 30 June 2013, i.e. its original expiry date.
Therefore, the Claimant/Counter-Respondent was free to sign a new employment
contract with a third club and so he did with the Intervening Party on 16 August
2013. Consequently, there was no inducement to breach the contract, according to
the Claimant/Counter-Respondent’s new club.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA on
14 August 2013. Consequently, the 2012 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.
1 and par. 2 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 par. 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (editions 2012 and 2014), 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 B and a club from country D.
3.
However, the Chamber acknowledged that the Respondent/Counter-Claimant
contested the competence of FIFA’s deciding bodies on the basis of art. 12.1 of the
contract, highlighting that the parties to the contract had agreed that “[…] if the
parties are not able to reach an amicable settlement, the disputes shall be decided
by the jurisdictional bodies of the Football Federation from country D and the
Professional Football League in country D […].”
4.
In this regard, the Chamber noted that the Claimant/Counter-Respondent rejected
such position and insisted that FIFA has jurisdiction to deal with the present matter.
5.
In continuation, the DRC referred to the above-mentioned article of the contract,
on the basis of which the Respondent/Counter-Claimant contested FIFA's
jurisdiction. According to said article, “the disputes shall be decided by the
jurisdictional bodies of the Football Federation from country D and the Professional
Football League in country D”.
6.
Hence, the Chamber outlined that the content of the relevant article is not clear
and that said clause does not explicitly refer to the competent national dispute
Player A, from country B / Club C, from country D /
Club E, from country B
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resolution chamber or similar arbitration body in the sense of art. 22 lit. b) of the
aforementioned Regulations but it actually refers to, at least, two different entities.
Therefore, the Claimant/Counter-Respondent was not in a position to know at the
moment of signing the contract to which body the potential disputes related to his
employment relationship were to be submitted.
7.
In view of all the above, the DRC concluded that, in line with its constant
jurisprudence, the Respondent/Counter-Claimant's objection to the competence of
FIFA to deal with the present matter has 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.
8.
In continuation, the Chamber analysed which regulations should be applicable as to
the substance of the matter. In this respect, it confirmed that in accordance with
art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(editions 2012 and 2014), and considering that the present claim was lodged on 14
August 2013, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
9.
The competence of the Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect, the
Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the DRC
emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence which it considered pertinent for the
assessment of the matter at hand.
10.
In this respect, the members of the DRC acknowledged that it was undisputed by
the parties that they signed an employment contract, an agreement and a loan
agreement on 9 April 2011, 20 February 2012 and 23 February 2012, respectively (cf.
points I.1. – 6. above).
11.
The DRC further noted that the parties also do not dispute the fact that the
employment relationship between the Claimant/Counter-Respondent and the
Respondent/Counter-Claimant lasted until the original expiry date of the contract.
12.
Finally, the Chamber acknowledged that it was equally undisputed by the parties
that, after entering into the agreement –according to which the
Respondent/Counter-Claimant was to pay EUR 75,000 to the Claimant/CounterRespondent–, the Claimant/Counter-Respondent granted a full release and waiver
in favour of the Respondent/Counter-Claimant, without any carve-out or exception,
and that the Claimant/Counter-Respondent received from the Respondent/CounterClaimant the payment of his salaries from March until June 2013.
13.
Subsequently, the Chamber recalled that the Claimant/Counter-Respondent
maintains that the Respondent/Counter-Claimant owes him EUR 3,495.99, as
interests on the late payment of his salaries from March until June 2013, EUR 75,000
as per the agreement (cf. point I.4. above) and EUR 25,000 as procedural
compensation.
Player A, from country B / Club C, from country D /
Club E, from country B
6/9
14.
Furthermore, the DRC noted that the Respondent/Counter-Claimant requests the
payment of EUR 75,000 based on the fine imposed on the Claimant/CounterRespondent (cf. point I.11. above) and legal and procedural costs, while arguing
that, according to the loan, the Claimant/Counter-Respondent waived his EUR
75,000 credit under the agreement.
15.
Having established the aforementioned, the DRC deemed that the central issue in
the matter at stake would be, thus, to determine the amount of outstanding
remuneration and which party owes the other. In order to do so, the DRC would
first need to determine the basis of the financial right upon which the parties are
claiming in front of the DRC.
16.
In this regard, the members of the Chamber noted that, according to the
Claimant/Counter-Respondent, the legal basis of the claim at stake is mainly the
agreement. In this respect, the Chamber noted that three days after the parties
concluded the agreement (cf. point I.4. above), they signed the loan (cf. point I.5.
above) and included in it the following clause: “the [Claimant/Counter-Respondent]
declares that he has no financial claim or any other claim against [the
Respondent/Counter-Claimant].
Also,
the
[Claimant/Counter-Respondent]
definitively waives his right on the benefits resulting from the provisions of the
Addendums of [the contract]” (cf. point I.6. above), without making any reservation
of rights in respect of the amount indicated in the agreement.
17.
In view of the foregoing, the members of the Chamber agreed that the
aforementioned clause inserted in the loan (cf. points I.6. and II.16. above), signed
by both the Claimant/Counter-Respondent and the Respondent/Counter-Claimant,
unambiguously stipulates that the Claimant/Counter-Respondent did not have any
claim against the Respondent/Counter-Claimant. In addition, bearing in mind art. 12
par. 3 of the Procedural Rules, in accordance with which any party claiming a right
on the basis of an alleged fact shall carry the burden of proof, the Chamber
deemed that the Claimant/Counter-Respondent had not presented any
documentation, which would demonstrate that the debt specified in the agreement
would be excluded from the release and waiver of actions contained in the relevant
clause of the loan.
18.
Furthermore, the Chamber highlighted that the Claimant/Counter-Respondent
signed the loan on 23 February 2012 while being fully aware of the contents of the
agreement entered into on 20 February 2012 (i.e. three days before the loan). In
this context, the Chamber deemed it appropriate to emphasize that a party signing
a document of legal importance, as a general rule, does so on its own responsibility
and is consequently liable to bear the possible consequences arising from the
execution of such document.
19.
Based on the aforementioned, in particular on art. 4 of the loan, the Chamber
deemed that it could not uphold the Claimant/Counter-Respondent’s arguments as
to being EUR 75,000 the amount of outstanding remuneration in his favour, based
on the agreement.
20.
With regard to the Claimant/Counter-Respondent’s claim for procedural
compensation, the Chamber recalled the contents of art. 18 par. 4 of the Procedural
Player A, from country B / Club C, from country D /
Club E, from country B
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Rules as well as to its long-standing and well-established jurisprudence, which
clearly stipulates that no procedural compensation is awarded in proceedings in
front of the Dispute Resolution Chamber. Therefore, the members of the Chamber
had no alternative other than to reject this part of the claim.
21.
Subsequently, the DRC referred to the claim of the Claimant/Counter-Respondent
regarding interests on the late payment of his salaries from March until June 2013.
In this sense, the Chamber highlighted that it is the DRC’s constant practice to
award interest at the rate of 5% p.a. on outstanding amounts. However, in the case
at stake, the Claimant/Counter-Respondent did not evidence the existence of any
outstanding amount in his favour and, therefore, the members of the Chamber are
not in a position to award interests.
22.
In continuation, the Chamber went on to deliberate as to whether the allegation of
the Claimant/Counter-Respondent regarding the imposition of a fine in the amount
of EUR 75,000 is corroborated by substantial pieces of evidence.
23.
At this point, the DRC further noticed that the Claimant/Counter-Respondent
claimed that the factual basis for a fine did not exist, that he was prevented from
exercising his right to be heard in the alleged disciplinary proceeding against him
and that he was not notified of the imposition of any fine.
24.
The DRC concurred that the fine imposed on the Claimant/Counter-Respondent by
the Respondent/Counter-Claimant (cf. point I.11 above) shall be disregarded since
the Respondent/Counter-Claimant did not prove any alleged unprofessional
behaviour of the Claimant/Counter-Respondent and the total amount of the fine
imposed on the Claimant/Counter-Respondent by the Respondent/Counter-Claimant
(i.e. “a sports penalty of 25% of the contractual rights due to the player for the
season 2012/2013”) must be considered disproportionate.
25.
In this respect, the Chamber noted that a copy of a decision taken on 30 December
2013 by the board of directors of the Respondent/Counter-Claimant (cf. point I.16.
above) is the only document upon which the Respondent/Counter-Claimant argues
that it is entitled to receive EUR 75,000 from the Claimant/Counter-Respondent,
withhold them or set them off from his receivables, if any. Furthermore, the
Chamber underlined that the Claimant/Counter-Respondent also claims not to have
been informed of or to have participated in these proceedings. Thus, the
counterclaim of the Respondent/Counter-Claimant cannot be upheld.
26.
In addition, and irrespective of the foregoing considerations, the DRC wished to
address the fact that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a method to set off outstanding
financial obligations towards players.
27.
Finally, the claim of the Respondent/Counter-Claimant regarding legal and
procedural costs must be disregarded for the same reasons described in point II.20.
above.
28.
On account of the aforementioned considerations, the DRC established that there is
no basis for any financial right as claimed by either party and, therefore, no party
Player A, from country B / Club C, from country D /
Club E, from country B
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owes any amount to the other party. Consequently, both the claim of the
Claimant/Counter-Respondent and the counterclaim of the Respondent/CounterClaimant must be rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Player A, is admissible.
2.
The claim of the Claimant/Counter-Respondent is rejected.
3.
The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected.
*****
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 A, from country B / Club C, from country D /
Club E, from country B
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