Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 March 2012,
in the following composition:
Geoff Thomson (England), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on the claim presented by the player
Player P, from country A
as Claimant
against the club
Club Q, from country B
as Respondent
regarding an employment-related dispute
arisen between the Claimant and the Respondent
I.
Facts of the case
1.
On 27 August 2007, the player P, from country A (hereinafter: the Claimant), and the
Club Q, from country B (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract), valid from the date of the signature until 28 June
2008.
2.
Article 3 of the contract established, inter alia, that the player was entitled to receive
an annual salary for the season 2007-2008 amounting to EUR 12,000 payable as
follows:
- EUR 2,250 as signing-on fee;
- EUR 9,750 divided in 9 instalments of EUR 1,083 each payable “at the end of each
month with a grace period of 10 days”, whereas the first instalment shall become
due on 31 August 2007 and the last one on 30 April 2008.
3.
On the same date, the parties concluded a “Complementary Agreement” to the
contract, which established, inter alia, an additional remuneration in the amount of
EUR 12,000 as annual salary, to be paid as follows:
- EUR 1,500 payable on 15 October 2007;
- EUR 10,500 divided in 9 instalments of EUR 1,167 each payable “at the end of each
month with a grace period of 10 days”, whereas the first instalment shall become
due on 31 August 2007 and the last one on 30 April 2008.
4.
Article 19 of the contract and article 5 of the complementary agreement both
established that “the terms of this agreement [were] governed and construed in
accord with the regulations of the country B Football Association and tried before its
tribunal which shall have exclusive jurisdiction and authority”.
5.
On 8 November 2007, the parties concluded an agreement (hereinafter: the appendix
to the termination agreement) additional to the cancellation agreement apparently
signed between the parties on 31 October 2007, and which established the following:
“1) The [club], except for any financial benefits, specified in the [termination
agreement] as compensation for the [Claimant] for termination of the [contract],
as well as the [complementary agreement] of 27/08/2007, shall additionally pay
the amount of EUR 9,300 to the [Claimant], to be paid in cash within 10 days from
today’s date.
2) In the event the abovementioned amount is not paid within 10 days, this
agreement shall become null and void and the [Claimant] shall have the right to
sue for the whole amount under the [contract] dated 28/08/2007.
When the agreement is signed, all claims of financial or of any other nature,
except for the claim from Section 1 above, shall cease to exist between the parties,
and the [player] shall have a free hand when choosing a new sports club.”
Player P, from country A / Club Q, from country B
2
6.
On 25 August 2008, the Claimant lodged a complaint before FIFA against the club,
requesting the amount of EUR 17,300 plus “interest at the rate of 1% per month” as
from 19 November 2007.
7.
In this regard, the player held that he was entitled to a total remuneration of EUR
24,000 based on both the contract and the complementary agreement. However, the
Claimant stated having only received EUR 16,000 from the Respondent, thus the
remaining value, considering both agreements, amounted to EUR 8,000.
8.
Furthermore, the Claimant alleged that the parties had decided to terminate the
contract and that the Respondent would be obliged to pay the amount of EUR 9,300
within ten days from 8 November 2007. In this respect, the Claimant held that in case
the Respondent would fail to comply with the appendix to the termination
agreement, the Claimant would be entitled to receive the amounts due according to
the contract and the complementary agreement “in addition” to the amount of
EUR 9,300 established in the appendix. In continuation the Claimant affirmed that the
Respondent had failed to comply with the appendix of the termination agreement,
thus he was entitled to claim the amount of EUR 8,000 equivalent to the remaining
value of the contract and the complementary agreement, as well as the amount of
EUR 9,300 established in the appendix to the termination agreement.
9.
Moreover, the Claimant explained that the requested interest at the rate of 1% per
month is based on the regular interest rate in country A, while the date of
19 November 2007 is the day on which the amount of EUR 9,300 became due.
10.
In its reply, the Respondent disputed the jurisdiction of the FIFA Dispute Resolution
Chamber (DRC), affirming that in accordance with the contract as well with the
complementary agreement, the parties had decided to submit any dispute regarding
the contractual obligations to the country B Football Association.
11.
In particular, the club referred to article 3 of the “Regulations EU n. 593/2008 of the
European Parliament and the Council of 17th June 2008, concerning the legal
framework for contractual obligations (Rome I; L 177/6, 4.7.2008)”, which allegedly
established that “the contract is governed by the terms that the parties have agreed.
The agreement should be clearly stated or should be concluded from the terms of the
contract or the facts of the specific case”, without submitting a copy of the
aforementioned regulations.
12.
Even though having been invited on several occasions to provide its position as to the
substance of the matter, as well as duly warned that the DRC would then decide upon
its competence and, in the event that it declared itself competent, it would also, on
the occasion of the same meeting, decide on the substance of the matter, the
Respondent did not present any reply to the player’s claim as to the substance, but
rather insisted that the dispute should be referred for resolution to the country B
Football Association as it had been agreed by the parties in the contract. In particular,
the club insisted that any decision taken by the DRC shall take into consideration the
Player P, from country A / Club Q, from country B
3
13.
true intention of the parties and “show respect for the resolution of the European
Parliament”.
Upon request of FIFA to be provided with the relevant regulations of its national
deciding body, the country B Football Association presented a document labelled the
“Regulations for the Registration and Transfer of Football Players” of the country B
Football Association (edition 2005; hereinafter: the country B Regulations), which
entered into force on 15 June 2005, as well as its translation.
14.
Country B Regulations establish, inter alia, that the Dispute Resolution Committee
(hereinafter: the NDRC) is competent to adjudicate and/or resolve any financial or
other disputes which may arise between clubs and non-amateur players.
15.
Furthermore, according to the Country B Regulations, the NDRC is composed of five
members, namely a Chairman, a Vice-Chairman, as well as one member elected by the
Executive Committee of the country B Football Association and, on the other hand,
two members elected by the country B Football Players’ Association.
16.
In addition, the country B Football Association affirmed that “for many years now, a 5
member Dispute Resolution Chamber Committee is operating under the umbrella of
country B Football Association for resolving similar cases such as this current one. (…)
two of the members in this 5 member DRC [being] appointed by the country B
Football Players Association and the rest of the members [being] appointed [by] the
Board of Directors of [the] country B Football Association”.
17.
In his replica, the Claimant rejected the Respondent’s allegations and affirmed that
there is no independent tribunal at national level within the framework of the country
B Football Association that respects the FIFA Regulations on the Status and Transfer of
Players. Regarding the Regulation (EC) 593/2008 invoked by the Respondent, the
Claimant pointed out that it was not applicable to the contract, since the latter was
concluded in 2007.
18.
In its rejoinder, even though having been advised once again to submit its comments
regarding the substance of the matter, the Respondent maintained its previous
position that the DRC is not competent to hear the present dispute.
19.
Finally, the Claimant informed FIFA that he had not signed any employment contract
during the original period of validity of the contract on the basis of the present
dispute.
Player P, from country A / Club Q, from country B
4
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: Procedural Rules). The present matter was submitted to
FIFA on 25 August 2008, thus after 1 July 2008. Consequently, the Chamber concluded
that the 2008 edition of the Procedural Rules is applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the
Procedural Rules states that the Dispute Resolution Chamber shall examine its
jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer
of Players (edition 2010). In accordance with art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the aforementioned Regulations, 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 A and a Club from country B.
3.
However, the Chamber acknowledged that the Respondent contested the competence
of FIFA’s deciding bodies on the basis of article 19 of the contract and article 5 of the
complementary agreement, which stipulates that any future employment related
dispute would be referred to the tribunals of the country B Football Association.
4.
In this regard, the Chamber noted that the Claimant rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
Taking into account the above, the Chamber emphasised that in accordance with art.
22 lit. b) of the 2010 edition of the Regulations on the Status and Transfer of Players 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 FIFA Circular no. 1010 dated
20 December 2005. In this regard, 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.
6.
While analysing whether it was competent to hear the present matter, first and
foremost, the Chamber deemed important to highlight that the present dispute also
pertains to the execution of the appendix to the termination agreement and that the
latter agreement does not contain any arbitration or jurisdiction clause.
Player P, from country A / Club Q, from country B
5
7.
Having said this, for the sake of completeness, the members of the Chamber turned to
article 19 of the contract and article 5 of the complementary agreement, on the basis
of which the Respondent contested FIFA’s jurisdiction. According to said articles, “the
terms of this agreement are governed and construed in accord with the regulations of
the country B Football Association and tried before its tribunal which shall have
exclusive jurisdiction and authority”. Hence, they refer to a national dispute resolution
chamber in the sense of art. 22 lit. b) of the aforementioned Regulations.
8.
Notwithstanding the above, the DRC referred to the principle of equal representation
of players as well as of clubs and underlined that this principle is one of the very
fundamental elements to be fulfilled, in order for a national dispute resolution
chamber to be recognised by FIFA. Indeed, this prerequisite is mentioned in the FIFA
Regulations on the Status and Transfer of Players, in the Circular no. 1010 as well as in
art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle
as follows: “The NDRC shall be composed of the following members, who shall serve a
four-year renewable mandate: a) a chairman and a deputy chairman chosen by
consensus by the player and club representatives (…); b) between three and ten player
representatives who are elected or appointed either on proposal of the players’
associations affiliated to FIFPro, or, where no such associations exist, on the basis of a
selection process agreed by FIFA and FIFPro; c) between three and ten club
representatives (…).” Equally, the FIFA Circular no. 1010 provides the following: “The
parties must have equal influence over the appointment of arbitrators. This means for
example that every party shall have the right to appoint an arbitrator and the two
appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where
arbitrators are to be selected from a predetermined list, every interest group that is
represented must be able to exercise equal influence over the compilation of the
arbitrator list.”
9.
The members of the Chamber concurred that the “Regulations for the Registration
and Transfer of Football Players” of the country B Football Association, in accordance
with which, inter alia, the chairman, vice-chairman and one member are elected or
appointed by the Executive Committee of the country B Football Association and two
members are elected or appointed by the country B Football Players’ Association, do
not meet the aforementioned principles.
10.
In view of the aforementioned and taking into account the pre-requisites for the
recognition of the jurisdiction of a Dispute Resolution Chamber at a national level
stipulated in art. 22 lit. b) of the FIFA Regulations, the FIFA Circular no. 1010 and the
FIFA NDRC Regulations, the DRC considered that, in light of the documentation
provided by the country B Football Association, the relevant national deciding body
does not appear to be composed of an equal number of players’ and clubs’
representatives, since the representation of the clubs, if any, is not evident.
11.
Therefore, the members of the Chamber wished to stress that although the contract
and the complementary agreement at the basis of the present dispute have included
such arbitration clause in favour of the national dispute resolution chamber, the
Respondent was unable to prove that, in fact, the Dispute Resolution Committee of
Player P, from country A / Club Q, from country B
6
the country B Football Association meets the minimum procedural standards for
independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations.
12.
In view of all the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter has to be rejected and that
the Dispute Resolution Chamber 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.
13.
Subsequently, 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, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2010 and 2009) and, on the
other hand, to the fact that the present claim was lodged on
25 August 2008. The Dispute Resolution Chamber concluded that the 2008 version of
the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
14.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, the
Chamber recalled that the parties had concluded on 27 August 2007 an employment
contract as well as a complementary agreement, both valid until 28 June 2008, which
established an aggregate remuneration in the total amount of EUR 24,000. Moreover,
the DRC considered that, even though the relevant copy was not provided by any of
the parties, it remained undisputed by the Respondent that the parties had signed on
31 October 2007 an agreement, in accordance with which they had terminated the
employment contract and the complementary agreement. Finally, the DRC took note
that, on 8 November 2007, the parties had signed an appendix to the termination
agreement, establishing the payment of compensation in the amount of EUR 9,300 in
favour of the Claimant.
15.
The members of the Chamber then turned to the complaint of the Claimant, who
alleged that the Respondent had only paid him the amount of EUR 16,000 based on
the contract and the complementary agreement, thus the remaining value of both
agreements was of EUR 8,000. In continuation, the Claimant recalled that the parties
had signed a termination agreement as well as an appendix to this agreement,
establishing the payment of EUR 9,300 as compensation due to the Claimant in view of
the early termination of both agreements. In this regard, the Claimant held that the
appendix to the termination agreement established that in case of non-fulfilment of
its terms, the Claimant would be entitled to receive EUR 9,300 in addition to the
remaining value of the contract and of the complementary agreement.
16.
Consequently, the Claimant asked that the Respondent be instructed to pay the
amount of EUR 17,300 as well as interest at the rate of 1% per month as from 19
November 2007.
Player P, from country A / Club Q, from country B
7
17.
Subsequently, the Chamber noted that the Respondent, for its part, had failed to
submit its position as to the substance of the present matter, in spite of having been
invited to do so. In this context, the members of the DRC considered that the
Respondent renounced to its right to defence and thus, accepted the allegations of
the Claimant.
18.
Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documents on file, in other words, upon the statements
and documents presented by the Claimant.
19.
Taking into account the documentation presented by the Claimant in support of his
position, the DRC concluded that the appendix to the termination agreement clearly
established that such agreement would become null and void, in case the amount of
EUR 9,300 established as compensation for the termination of the contract would not
be paid within the established deadline. Additionally, the DRC considered that, since
the termination agreement and its appendix became null and void, the Claimant
would only be entitled to claim compensation on the basis of both agreements signed
on 27 August 2012, i.e. the contract and the complementary agreement.
20.
Moreover, the DRC took note that it remained undisputed by the Respondent that it
had not paid the amount of EUR 9,300 within the established deadline, thus that the
termination agreement and its appendix became so null and void. As a consequence,
the DRC considered that the Claimant could only claim the amounts in accordance
with the employment contract as well as the complementary agreement.
21.
Hence, the Chamber decided that the Respondent was liable to pay to the Claimant
the amount of EUR 8,000 as compensation for the early termination of the contract,
considering both the employment contract and the complementary agreement, as
requested by the Claimant. Consequently, the DRC decided that the Respondent, in
virtue of the principle pacta sunt servanda, is liable to pay the amount of EUR 8,000 to
the Claimant.
22.
Concerning the interests claimed by the Claimant, the DRC noted that the contract did
not provide for any specific interest rate and that the rate requested by the Claimant
has no contractual basis. Consequently, the DRC decided to award, in accordance with
the constant practice of the Dispute Resolution Chamber, default interest at a rate of
5% per annum to the Claimant.
23.
In conclusion, the Dispute Resolution Chamber decided that the Respondent has to
pay to the Claimant the amount of EUR 8,000 plus 5% interest per annum on said
amount as from the date of the decision.
24.
The Chamber concluded its deliberations in the present matter by establishing that
any further requests filed by the Claimant are rejected.
Player P, from country A / Club Q, from country B
8
*****
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player P, is admissible.
2.
The claim of the Claimant, Player P, is partially accepted.
3.
The Respondent, Club Q, has to pay to the Claimant, Player P, within 30 days as from
the date of notification of this decision, the amount of EUR 8,000 as well as 5% interest
per annum on said amount as from the date of the decision until the date of effective
payment.
4.
In the event of non-payment of the aforementioned amount by the Respondent,
Club Q, within the established deadline, the present matter shall be submitted, upon
request, to the FIFA’s Disciplinary Committee for consideration and a formal decision.
5.
Any further claims lodged by the Claimant, Player P, are rejected.
6.
The Claimant, Player P, is directed to inform the Respondent, Club Q, immediately and
directly of the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
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
Player P, from country A / Club Q, from country B
9
For the Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl:
CAS directives
Player P, from country A / Club Q, from country B
10