Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 9 February 2017,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Todd Durbin (USA), 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
1.
On 21 December 2011, the Player of Country B, Player A (hereinafter: the
Claimant) and the Club of Country B, Club E, concluded an employment contract,
valid as from 2 February 2012 until 30 December 2016.
2.
On 11 July 2013, the Claimant, Club E and the Club of Country D, Club C
(hereinafter: the Respondent), concluded an agreement (hereinafter: the loan
agreement) for the loan of the Claimant from Club E to the Respondent until 30
June 2014.
3.
Art. 2.2 of the loan agreement states that “[o]nce this temporary transfer ends,
the employment sports contract concluded between Club E and the [Claimant]
will come back in force and the [Player] committed himself to be presented at
Club E headquarters in 72 hours unless directed asked differently by Club E and
[the Respondent] is obliged to perform all acts necessary for the return of the
PLAYER ITC to Club E via the FIFA TMS”.
4.
Moreover, art. 7 of the loan agreement provides that “[a]ny change to this
contract shall take the form of written document signed by all the parties”.
5.
On the same date, i.e. 11 July 2013, the Claimant and the Respondent concluded
an employment contract (hereinafter: the contract), valid as of the date of
signature until 30 June 2014.
6.
According to the translation of the contract provided by the Claimant, the latter
was entitled to receive a monthly remuneration of EUR 90,390 payable “until the
day five (5) of the month following worked”.
7.
On 10 January 2014, the Claimant and the Respondent concluded a termination
agreement with retroactive effect until 31 December 2013. In particular, Clause
Third stipulates that “[o]n that date the parties expressly and irrevocably state
that already settle their accounts, whether the result of the sports contract of
employment or those resulting from its revocation by this date and have nothing
to demand or claim between themselves”.
8.
On 29 January 2016, the Claimant lodged a claim in front of FIFA against the
Respondent, requesting the amount of “EUR 271,117”, plus 5% interest as from
“January 2014”, corresponding to his salaries for January, February and March
2014.
9.
In his claim, the Claimant explains that in accordance with art. 7 of the loan
agreement, in order to validly terminate the contract, the Respondent would
have needed the written consent of Club E, quod non. Notwithstanding the
Player A, Country B / Club C, Country D
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above, the Claimant alleges that the Respondent acted as if it had obtained said
consent from Club E, which is the reason why he accepted to sign the termination
agreement. The Claimant asserts that he subsequently reported to Club E but the
latter club informed him that it did not agree to the termination of the loan and
that therefore he was still bound to the Respondent. Furthermore, the Claimant
outlines that the Respondent did not return the International Transfer Certificate,
thereby breaching art. 2.2 of the loan agreement. In continuation, and since both
clubs shifted the responsibility on the other, the Claimant asserts that he
remained unpaid and unable to train for three months until Club E eventually reregistered him and loaned him to another Club of Country B. As a consequence,
and considering that the situation resulted from the Respondent’s misbehaviour,
the Claimant claims three monthly salaries, i.e. January, February and March 2014,
as compensation. In this respect, the Claimant insists that the prescription must
be calculated as of the respective due date of each salary claimed.
10.
In its reply, the Respondent first argues that the Claimant’s claim is time-barred.
In this respect, the Respondent points out that the event giving rise to the dispute
is the signature of the termination agreement on 10 January 2014.
11.
As to the substance, the Respondent emphasises that the Claimant explicitly
acknowledged in the termination agreement that he had no claim towards the
Respondent. Furthermore, the Respondent alleges that on 10 January 2014, it
drafted and signed a document titled “agreement for rescission of temporary
transfer agreement”. In this regard, the Respondent explains that said document
was remitted to the Claimant for him to sign it and forward it via his agent to
Club E. the Respondent states however that in spite of several reminders, Club E
has never sent back a signed copy of the aforesaid document.
12.
Moreover, the Respondent insists that the obligation to initiate the instruction
for the return of the Claimant in the Transfer Matching System (TMS) falls to the
club of origin, i.e. Club E. Having said this, the Respondent maintains that Club E
only started the procedure on 1 April 2014, which is the reason why the Claimant
remained unpaid and unable to play for three months.
13.
Subsequently, the Respondent sustains that Club E was interested in transferring
the Claimant back, which is the reason why it accepted, in good faith, to
terminate the contractual relationship.
14.
In his replica, the Claimant reiterates that his claim is not time barred since it was
received by FIFA on “1 February 2016”, that is, within the two-year time-limit
considering that the events giving rise to the disputes occurred on 5 February
2014, 5 March 2014 and 5 April 2014 respectively (cf. point 6 above).
15.
In continuation, the Claimant outlines that Club E has never been contacted by
the Respondent in order to terminate the loan agreement. In this respect, the
Player A, Country B / Club C, Country D
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Claimant emphasises that the “agreement for rescission of temporary transfer
agreement” does not bear Club E’s signature. The Claimant then reverted to his
previous argument that the employment contract was subisidiary to the loan
agreement and that consequently any major change to the employment contract,
such as its termination, would have required the consent of all the signing parties
to the loan agreement, quod non.
16.
In its final comments, the Respondent reiterates its previous argumentation.
II.
Considerations of the Dispute Resolution Chamber
1.
In a first instance, 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 29 January 2016. Consequently, the 2015 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) are 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 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2016) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation involving a Player of Country B and
a Club of Country D regarding a claim for compensation.
4.
In this respect, the Chamber was eager to emphasise that contrary to the
information contained in FIFA’s letter dated 3 February 2017 by means of which
the parties were informed of the composition of the Chamber, the member Mr F
and the member Mr G refrained from participating in the deliberations in the
case at hand, due to the fact that the member Mr F has the same nationality as
the Respondent and that, in order to comply with the prerequisite of equal
representation of club and player representatives, also the member Mr G
refrained from participating and thus the Dispute Resolution Chamber
adjudicated the case in presence of three members in accordance with art. 24 par.
2 of the Regulations.
5.
Nevertheless, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that the Claimant’s claim is time-barred.
Player A, Country B / Club C, Country D
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6.
Having this in mind, the members of the DRC stressed on the content of art. 25
par. 5 of the Regulations on the Status and Transfer of Players (edition 2017),
which reads as follows:
“The Players’ Status Committee, the Dispute Resolution Chamber, the single
judge or the DRC judge (as the case may be) shall not hear any case subject to
these regulations if more than two years have elapsed since the event giving rise
to the dispute. Application of this time limit shall be examined ex officio in each
individual case”.
7.
In view of the above, the Chamber had to determine which is the event giving
rise to the present dispute. In doing so, the DRC deemed it important to
emphasise that the three monthly salaries claimed by the Claimant are not
claimed as outstanding remuneration, but as compensation. In this regard, the
Chamber pointed out that the Claimant explicitly states that his alleged right to
receive compensation arises from the conclusion of the termination agreement
that he allegedly signed due to the Respondent’s bad faith. In view of the above,
the Chamber held that the event giving rise to the dispute is the conclusion of
the termination agreement, which occurred on 10 January 2014. The Chamber
felt comforted in its conclusion considering that the Claimant is even requesting
interest as of January 2014. Indeed, in the Chamber’s view, by requesting interest
as of that date, the Claimant is de facto acknowledging that the requested
compensation was due at the moment of the signature of the termination
agreement.
8.
Having said this, the Chamber recalled that the claim was lodged on 29 January
2016.
9.
On account of all the above, and considering that more than two years have
elapsed between the event giving rise to the dispute, i.e. the conclusion of the
termination agreement on 10 January 2014, and the date when the claim was
lodged, i.e. on 29 January 2015, the Chamber concluded that the Claimant’s claim
must be considered barred by the statute of limitations in accordance with art. 25
par. 5 of the Regulations.
10.
In light of the above, the DRC decided that the claim of the Claimant is
inadmissible.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is inadmissible.
Player A, Country B / Club C, Country D
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*****
Note relating to the motivated decision (legal remedy):
According to art. 58 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:
Omar Ongaro
Football Regulatory Director
Encl.
CAS directives
Player A, Country B / Club C, Country D
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