Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 March 2013,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player G, from country F
as Claimant
against the club,
Club O, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 12 January 2010, Player G, from country F (hereinafter: the Claimant) and the
Club O, from country C (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract) valid as from 12 January 2010 until 16 May
2010.
2.
According to the contract, the Claimant was to be remunerated with the total
amount of EUR 4,000 payable in 4 installments of EUR 1,000.
3.
On 12 February 2010, the Claimant and the Respondent concluded a
supplementary agreement without a specified ending date, in accordance with
which the Claimant would receive the total amount of EUR 16,000 payable in 4
installments of EUR 4,000. Equally, the Claimant would receive EUR 500 per month
for accommodation.
4.
Art. 3 a) of the contract stipulates that: “Any dispute in respect of the contract
shall be governed by the country C Football Association and/or FIFA regulations
applicable and in force and hereby the parties irrevocably agree that if any
dispute arise will be decided by the country C Football Association’s relevant
committee. (…)”
5.
On 14 September 2010, the Claimant lodged a claim in front of FIFA against the
Respondent, explaining that the Respondent still owed him one month salary and
one month’s rent. Therefore, the Claimant claimed the amount of EUR 5,500.
6.
In reply to the claim, the Respondent first of all contested the competence of FIFA
to adjudicate on the matter indicating that according to the employment contract
any dispute would be decided by the “relevant committee” of the country C
Football Association.
7.
As to the substance, the Respondent denied each and all allegations of the
Claimant and stated that the Claimant had received all the payments due under
the contract and agreement.
8.
Upon request of FIFA to be provided with a copy of the relevant documentation
which would establish that there exists an independent national arbitration
tribunal guaranteeing fair proceedings in country C, the country C Football
Association provided FIFA with its Regulations for the Registration and Transfer of
Football Players of the country C Football Association (hereinafter: the Cypriot
Regulations; that came into force on 15 June 2005). According to the Cypriot
Player G, from country F / Club O, from country C
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Regulations, the Dispute Resolution Committee (hereinafter: NDRC) is composed
of five members, namely the Chairman, the Vice-Chairman and one member, all
appointed by the Executive Committee of the country C Football Association and
two members appointed by the country P Football Players’ Association (art. 22.1.1
and art. 22.1.3).
9.
The decisions are taken by simple majority (art. 22.8.1), subsequent to a summary
and written procedure (art. 22.13.1 and art. 22.13.3). Clubs affiliated to the
country C Football Association, football players and other interested persons are
entitled to lodge a claim before the NDRC (art. 22.13.5). Any decision of the NDRC
may be appealed to the Disciplinary Authority of the country C Football
Association, which shall reach a final decision (art. 22.10).
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he was
competent to deal with the case at hand. In this respect, the DRC judge took note
that the present matter was submitted to FIFA on 14 September 2010.
Consequently, the DRC judge concluded that the 2008 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 par. 2 and 3 of the Procedural Rules).
2.
With regard to the competence of the DRC judge, art. 3 of the Procedural Rules
states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24
of the Regulations on the Status and Transfer of Players (edition 2012). In
accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of
the aforementioned Regulations, the DRC judge would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a country F player and a
country C club.
3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. 3 a) of the contract
highlighting that the parties to the contract had agreed to submit any dispute to
the “relevant committee” of the country C Football Association.
4.
In this respect, the DRC judge referred to the above-mentioned article of the
contract, on the basis of which the Respondent contested FIFA’s jurisdiction.
According to said article, “Any dispute in respect of the contract shall be
governed by the country C Football Association and/or FIFA regulations applicable
Player G, from country F / Club O, from country C
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and in force and hereby the parties irrevocably agree that if any dispute arise will
be decided by the country C Football Association’s relevant committee”. Hence,
the DRC judge outlined that the content of the relevant article is rather vague
and that said clause does not explicitly refer to a national dispute resolution
chamber or any similar arbitration body in the sense of art. 22 lit. b) of the
aforementioned Regulations.
5.
Notwithstanding the above, the DRC judge emphasised that in accordance with
art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of
Players he 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 DRC judge
referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the
DRC judge 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.
In this context, the DRC judge wished to stress that the Respondent was unable to
prove that, in fact, the country C Football Association “Dispute Resolution
Committee” 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.
7.
In this respect, the DRC judge referred to the jurisprudence of the Dispute
Resolution Chamber, which already, on several occasions, established that the
country C Football Association “Dispute Resolution Committee” does not meet
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
this regard, the DRC judge, as previously done by the DRC, referred to the
principle of equal representation of players and clubs and underlined that this
principle was one of the very fundamental elements to be fulfilled, in order for a
national dispute resolution chamber to be recognised as such. Indeed, this
prerequisite is mentioned in the 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
Player G, from country F / Club O, from country C
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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 (…).” In
this respect, the FIFA Circular no. 1010 states 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.”
8.
In conformity with the jurisprudence of the DRC, the DRC judge decided that the
country C Football Association’s “Regulations for the Registration and Transfer of
Football Players”, in accordance with which, inter alia, the chairman, vicechairman and one member are elected by the Executive Committee of the country
C Football Association and two members are elected by the country P Football
Players’ Association, do not meet the aforementioned principles.
9.
In view of all the above, the DRC judge established that, in line with the constant
jurisprudence of the DRC, the Respondent’s objection to the competence of FIFA
to deal with the present matter has to be rejected and that the DRC judge 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.
10.
Subsequently, the DRC judge 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, he confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (editions 2009, 2010 and
2012) and considering that the present claim was lodged in front of FIFA on 14
September 2010, the 2009 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.
11.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well as
the documentation contained in the file.
12.
First of all, the DRC judge acknowledged that the Claimant and the Respondent
had concluded an employment contract valid as from from 12 January 2010 until
16 May 2010 as well as a supplementary agreement without a specified ending
date. As to the financial terms of said contract and agreement, the DRC judge
took note that it had been agreed upon between the parties that the Respondent
would remunerate the Claimant with a total salary of EUR 20,000 net, payable in
Player G, from country F / Club O, from country C
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4 equal instalments of EUR 5,000 each. In addition, the DRC judge took due note
that the Claimant was entitled to rent in the amount of EUR 500.
13.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of EUR 5,500,
corresponding to one monthly salary and one month of rent.
14.
Subsequently, the DRC judge noted that the Respondent, in its defence, stated
that it had paid the Claimant all amounts due.
15.
In this context, the DRC judge first recalled the basic principle of the burden of
proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a
party claiming a right on the basis of an alleged fact shall carry the respective
burden of proof.
16.
In this respect, the DRC judge noted that the Respondent did not substantiate its
defence, as it did not present any documentary evidence in respect of the
payments it sustained to have already paid to the Claimant.
17.
In view of all the above and, in particular, taking into account the lack of
documentary evidence presented by the Respondent, the DRC judge concluded
that it could be established that the Respondent had failed to pay the Claimant
the amount of EUR 5,500 as agreed upon between the parties in the contract and
agreement. As a consequence, and in accordance with the general legal principle
of pacta sunt servanda, the DRC judge decided that the Respondent must fulfil its
obligations towards the Claimant and is to be held liable to pay the Claimant the
outstanding salaries in the amount of EUR 5,500.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player G, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Club O, has to pay to the Claimant the amount of EUR 5,500,
within 30 days as from the date of notification of this decision.
Player G, from country F / Club O, from country C
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4.
In the event that the aforementioned sum is not paid by the Respondent within
the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of
the aforementioned time limit and the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the DRC
judge of every payment received.
Note relating to the motivated decision (legal remedy):
According to article 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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player G, from country F / Club O, from country C
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