Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 February 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Mario Gallavotti (Italy), member
Mohamed Al-Saikhan (Saudi Arabia), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
Facts relating to the club’s affiliation:
1.
On 2 and 21 August 2013, the Football Federation of country D informed FIFA
that the club from country D, Club CP, had been disaffiliated from the Football
Federation of country D due to a liquidation process and relegated to the
amateur division.
2.
After having been informed of this situation, the player from country B, Player
A (hereinafter: the Claimant), on 17 June 2014, requested FIFA to continue
with the proceedings based on the alleged re-affiliation of Club CP. In this
regard, the Claimant maintained that, as Club CP won the C National
Championship of the Football Federation of country D in the season
2013/2014, it was automatically promoted to the second division in compliance
with the relevant regulations, hence becoming a professional club affiliated to
the Football Federation of country D again. In support of his allegations, the
Claimant provided a translated extract of the relevant regulations as well as a
table where a club named “Club E” appeared in the first position of the C
National Championship.
3.
In this context, the Football Federation of country D informed FIFA again that
Club CP “has been dissolved, has entered into liquidation process and, thus,
does not participate in any competition organized under the auspices of the
Football Federation of country D”. Additionally, it informed FIFA that the club
Club C (hereinafter: the Respondent) is currently affiliated and participating in
the Football League Championship, being a “totally different legal entity, not
related to [Club CP]” with different registry numbers.
4.
In this respect, the Claimant held that Club CP “only registered under new
commercial company number but never stopped its activity as a football club”.
According to the Claimant, Club CP “never ceased to exist, using many of its
same players, maintain its colors and logo, playing at the same stadium […]”.
Moreover, the Claimant maintained that on the website of the Respondent
there are still references to the use of “’P’” in its historical name and logo.
5.
Consequently, on 26 August 2015, the Claimant reiterated his claim as to the
substance of the matter against the Respondent, considering that “a club
cannot waive its obligations to his employees only by simply changing its
number of registration”.
6.
The Football Federation of country D, upon request of FIFA, stated that Club
CP and the Respondent “operate parallel to and independently of each other,
have different administrations, different tax registry numbers, different assets
and liabilities and different rights and obligations”.
Player A, country B / Club C, country D
2/9
7.
For its part, the Respondent provided its position to the matter at stake,
highlighting that the “amateur sports association ‘Club C’, which is a separate
and distinct legal entity from [Club CP], took part in the 2013-2014 edition of
the ‘C’ national division amateur league […] and eventually managed to secure
its promotion to the 2014-2015 edition of the Football League”. In this regard,
the Respondent stated that it is a separate and different legal entity, not only
from Club CP, but also from the aforementioned amateur sports association
Club C.
8.
Furthermore, the Respondent specified that no assets or rights were
transferred from Club CP to the Respondent and that the latter is not involved
in any of the liquidation proceedings related to Club CP. In this respect, the
Respondent stressed that the debts against Club CP can still be requested
within the context of the liquidation proceedings.
9.
In addition, the Respondent acknowledged that the only entity that it
succeeded in its rights and obligations was the amateur sports association Club
C. Moreover, the Respondent pointed out that the players of the Respondent
are different from the players that played with Club CP. In support of the
previous statements, the Respondent provided extracts of the Official
Government Gazette of Country D, establishing the registration of Club CP in
March 2004, the declaration of its liquidation process and disaffiliation in May
2014 and the registration of the Respondent in August 2014.
10.
In view of the above, the Respondent requested FIFA to dismiss the claim of
the Claimant.
Facts relating to the merits of the dispute:
11.
On 5 July 2009, the Claimant and Club CP, signed an employment contract
(hereinafter: the contract) valid as from 6 July 2009 until 30 June 2012.
12.
Clause 3 of the contract established the following remuneration payable to the
Claimant:
- Season 2009-2010: EUR 215,000 net paid in “11” equal installments of EUR
21,500 net each on the 30th day of each month, the first installment due on
13 July 2009 and the last on 30 May 2010;
- Season 2010-2011: EUR 245,000 net paid in “11” equal installments of EUR
24,500 net each on the 30th day of each month, the first installment due on
30 July 2010 and the last on 30 May 2011;
- Season 2011-2012 EUR 245,000 net paid in “11” equal installments of EUR
24,500 net each on the 30th day of each month, the first installment due on
13 July 2011 and the last on 30 May 2012.
Player A, country B / Club C, country D
3/9
13.
Clause 4 of the contract provides that all the payments mentioned in the
contract are “net of any taxes and deductions of any nature”.
14.
Clause 6 of the contract establishes the following: “If [Club CP] delays any of
the payments indicated in this contract for more than 60 consecutive days, or
for any amount of salary equal to 45 days […], the [Claimant] shall have the
right and option to terminate the contract and [Club CP] will have to
indemnify the [Claimant] with an amount of the whole salary of the current
season plus the whole remaining salaries of the following season of this
contract as an indemnity. In order to exercise this right and option, the
[Claimant] shall first send a written notification to [Club CP] by fax or by hand,
and if [Club CP] does not pay the due amount within 15 (fifteen) days after
receiving the notification, the [Claimant] shall be free to terminate the
contract with the indicated consequences for [Club CP]”.
15.
Since, according to the Claimant, Club CP failed to pay the salaries on time, on
19 August 2010, both parties concluded a termination agreement, by means of
which Club CP agreed to pay the total amount of EUR 156,570 net to the
Claimant in the following way:
- EUR 36,570 at the signing of the termination agreement;
- EUR 30,000 on 30 October 2010;
- EUR 30,000 on 31 March 2011;
- EUR 30,000 on 31 July 2011;
- EUR 30,000 on 30 October 2011.
16.
Furthermore, the termination agreement established that if Club CP did not
pay the above-mentioned amounts, “the [Claimant] would not agree in the
solution common consent of his contract with [Club CP]”.
17.
According to the Claimant, Club CP did not comply with its obligations set
forth in the termination agreement by only paying EUR 25,000 of the
installment due on 31 March 2011 and by failing to remit the installments that
fell due on 31 July and 30 October 2011. In this regard, the Claimant explained
that he could not cash the three bank cheques issued by Club CP and dated 31
March, 31 July and 30 October 2011, which were meant to cover the agreed
payments.
18.
The Claimant explained that he tried to solve the matter by telephone and he
even sent an e-mail to Club CP requesting the outstanding amounts, however
Club CP only made “oral promises” to him and did not comply with its
obligations. In this regard, the Claimant indicated that, in view of the
condition established in the termination agreement, he could not accept the
mutual termination of the contract and therefore he had the right to request
its full execution.
Player A, country B / Club C, country D
4/9
19.
On account of the above, the Claimant, on 26 December 2012, lodged a claim
against Club CP in front of FIFA for breach of the termination agreement and
requesting compensation for the remaining value of the contract. In particular,
the Claimant requested the following:
- EUR 490,000 net as “loss of income” on the basis of clause 6 of the contract;
- EUR 165,000 as punitive damages;
- interests on all amounts “payable as the court may deem fit”;
- confirmation of Club CP that all the paid amounts are net;
- legal costs.
20.
On 6 March 2013, Club CP replied to the claim stating that the contract had
been mutually and “unconditionally” terminated by means of the termination
agreement and therefore, the contract does not produce any effects since 19
August 2010. In view of the foregoing, Club CP deemed that the request of the
Claimant in the amount of EUR 490,000 should be rejected.
21.
Moreover, Club CP acknowledged that the last two cheques in possession of
the Claimant could not be paid because of insufficient funds of Club CP. In this
respect, Club CP admitted owing the Claimant the last two installments of EUR
30,000 each as well as EUR 5,000 of the installment due on 31 March 2011 and,
therefore, indicated that the outstanding amount owed to the Claimant is EUR
65,000.
22.
Additionally, Club CP offered to pay the amount of EUR 65,000 to the Claimant
by bank transfer at the time the latter returned the three cheques that were
still in his possession.
23.
The Claimant, in his replica, repeated his previous arguments and in particular
reiterated that the condition of the termination agreement, i.e. “without the
payment of the above-mentioned sums the [Claimant] would not agree in the
solution common consent of his contract with [Club CP]”, meant that only the
complete fulfillment of such agreement would bring the contract to a mutual
termination. Based on such statement, the Claimant repeated his request of
being awarded the total salaries established in the contract for the seasons
2010-2011 and 2011-2012 plus punitive damages as compensation for breach
of the termination agreement.
24.
Furthermore, the Claimant enclosed a declaration by means of which he
undertakes to return the three cheques in his possession, upon payment by
Club CP of their full value.
25.
Despite having been invited by FIFA to provide its final position on 2 April
2013, Club CP did not reply or make any further statements.
Player A, country B / Club C, country D
5/9
26.
For its part, the Respondent, having been invited by FIFA to provide its
position as to the substance of the matter, merely stressed that the claim of
the Claimant is time barred as the termination agreement was signed on 19
August 2010 and the Claimant lodged his claim on 26 December 2012.
27.
Upon FIFA’s request, the Claimant confirmed that he signed a new
employment contract with the club from country B, Club F, valid as from 1 July
2010 until 30 May 2012. According to a written confirmation of Club F, the
Claimant’s monthly salary was 30,000 net.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 26 December 2012. Consequently, the 2012 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 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 2015), the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
In continuation, the Chamber analysed which edition of the Regulations on
the Status and Transfer of Players should be applicable as to the substance of
the matter. In this respect, it referred, on the one hand, to art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (edition 2015), and, on
the other hand, to the fact that the present claim was lodged in front of FIFA
on 26 December 2012. Therefore, the DRC concluded that the 2012 edition of
the Regulations on the Status and Transfer of Players (hereinafter: the
Regulations), is applicable to the matter at hand as to the substance.
4.
The competence of the Dispute Resolution Chamber and the applicable
regulations having been established, the Chamber entered into the substance
of the matter. In doing so, it started by acknowledging the abovementioned
facts of the matter as well as the documentation contained in the file.
However, the Chamber 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.
Player A, country B / Club C, country D
6/9
5.
In this respect, the DRC acknowledged that according to the information
received from the Football Federation of country D on 2 and 21 August 2013,
the professional club, Club CP, is no longer affiliated to the Football
Federation of country D due to its relegation to the amateur division. In
addition, the Football Federation of country D clarified that, as a result of its
relegation and consequent dissolution, Club CP “does not participate in any
competition organized under the auspices of the Football Federation of
country D”.
6.
The Chamber further noted that the Claimant, for his part, rejected such
position and insisted that Club CP was re-affiliated to the Football Federation
of country D under a new name and a new tax registry number but
maintaining its activity as a football club with the same colours, logo and
players as Club CP. Consequently, the Claimant reiterated its claim against the
Respondent under the consideration that the Respondent is the same entity as
Club CP, i.e. its legal and sporting successor.
7.
In this context, the members of the Chamber further took note of the
additional information provided by the Football Federation of country D,
which maintained that Club CP and the Respondent are independent of each
other, have a different management, different tax registry numbers as well as
different assets and liabilities.
8.
Moreover, the DRC acknowledged the position of the Respondent, which
confirmed the information provided by the Football Federation of country D
and added that no rights or obligations were transferred from Club CP to the
Respondent as well as that it is not involved in any of the liquidation
proceedings which Club CP is going through.
9.
In view of the foregoing considerations, the Chamber went on to analyse the
nature of the alleged relationship between Club CP and the Respondent. In
doing so, the DRC first outlined that the Claimant considers that, due to the
fact that a club named “Club E” won the C National Championship in the
season 2013/2014, such club, allegedly the same as Club CP, was promoted to
the second division and, thus, automatically re-affiliated to the Football
Federation of country D.
10.
In continuation, the Chamber referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof. The application of the said principle
in the present matter led the members of the Chamber to conclude that it was
for the Claimant to prove that the Respondent is, indeed, the same club as
Club CP. Having stated the above, the DRC emphasised that the Claimant did
not submit sufficient proof to establish, without a doubt, that Club CP is one
and the same club as the Respondent.
Player A, country B / Club C, country D
7/9
11.
At this stage, the Chamber turned its attention to the information provided by
the Football Federation of country D, which indicated that Club CP had been
disaffiliated and “dissolved” and that it does not participate in any
competition organized under the auspices of the Football Federation of
country D. In this regard, the members of the Chamber concluded that the
information provided by the Football Federation of country D in connection
with the status of Club CP and the Respondent is reliable and that, in absence
of convincing evidence provided by the Claimant stating the contrary, they had
no reason to doubt the accuracy of the respective statements made by the
Football Federation of country D. Indeed, as confirmed by the Football
Federation of country D, Club CP and the Respondent have different
administrative and tax registry numbers and can, therefore, under the given
circumstances and based on the documentation on file, not be considered as
one and the same legal entity.
12.
On account of the above, the Chamber confirmed that Club CP, i.e. the club
with which the Claimant had signed the contract at the basis of the present
dispute, is no longer affiliated to the Football Federation of country D.
13.
As a consequence, since the Claimant had not been able to prove that a
relationship existed between Club CP and the Respondent i.e. that the
Respondent is the legal and sporting successor of Club CP and that, therefore,
the Respondent should be liable for the payment of amounts derived from the
contractual relationship between the Claimant and Club CP, the Chamber was
of the unanimous opinion that the position of the Claimant could not be
upheld.
14.
All the above led the Dispute Resolution Chamber to conclude that the claim
of the Claimant has to be rejected.
Player A, country B / Club C, country D
8/9
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, 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:
Markus Kattner
Acting Secretary General
Player A, country B / Club C, country D
9/9