Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 March 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Roy Verm eer (The Netherlands ), member
Alex andra Góm ez (Uruguay ), member
Wouter Lam brecht (Belgium ), member
Joel Talav era (Paraguay ), member
on the claim presented by the player,
Play er 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 cas e
1.
On 7 February 2014, the player of Country B, Player A (hereinafter: the player or the
Claimant) and the club of Country D, Club C (hereinafter: the club or the Respondent)
entered into an employment contract (hereinafter: the contract) valid as from 7
February 2014 until 31 December 2016.
2.
According to article 8.1 in combination with the “schedule” of the contract, the player
was entitled to receive a monthly salary of 300,000 in the currency of Country D
(approx. EUR 1,345 on 7 February 2014), due “not later than the last business day of
each month.”
3.
On 24 October 2016, the player lodged a claim against the club in front of FIFA, which
he amended on 16 June 2017, requesting that the club be ordered to pay him the
following amounts:
Outstanding remuneration in the amount of 3,600,000 in the currency of Country D
- 12 monthly salaries of 300,000 in the currency of Country D for the time between
June 2014 until May 2015, plus 5% interest p.a. as of 30 June 2014, in total
3,600,000 in the currency of Country D;
Compensation for breach of contract in the amount of 300,000 in the currency of
Country D
- 300,000 in the currency of Country D as residual value of the contract, plus 5%
interest p.a. as from June 2015.
Finally, the player requested for sporting sanctions and legal costs to be imposed on
the club.
4.
In his claim, the player stated that after suffering a “major injury” during a match for
the club, the latter stopped paying his salary and verbally cancelled the employment
contract on 3 June 2014.
5.
Based on the information and documentation in its possession, FIFA sent the player
two letters, dated 1 November 2016 and 7 April 2017, informing him that due to
prescription FIFA did not appear to be competent to deal with the matter at hand.
6.
In his replies dated 27 January 2017 and 18 April 2017, the player insisted on his claim,
arguing that the verbal termination of the contract was not valid for the following
reasons:
“It is abusive / absurd to cancel / terminate a written employment verbally, a verbal
termination/ cancellation of contract is not a standard communication to termination
of a valid and subsisting contract.
It must also be noted that according to the FIFA regulations status and transfer of
players that every contract between a Professional Player and a club must be written,
therefore any contract entered verbally without written is not acceptable to FIFA and a
Player A, Country B / Club C, Country D
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written contract cancelled verbally may not be acceptable, since such contract was
reduced in writing”.
7.
In casu, the player argued that the contract was only “properly / legally” terminated
on 14 May 2015, the date when the club issued his “Transfer Certificate” and as a
result he insisted that FIFA needs to take a decision on the present matter, considering
14 May 2015 as the date of the contract termination.
8.
Furthermore, the player states that he had sent several default letters to the club,
requesting the outstanding salaries and/or compensation, the first of which sent on 30
June 2014, however to no avail.
9.
Despite having been invited to do so, the club did not present its position to the claim
of the player.
10.
According to the player, he signed a new employment contract with the club of
Country D, Club E, on 29 July 2015. The new contract is valid as from 29 July 2015 “for
a period of 2 years commencing from the 2015 to 2017 football season”. His monthly
salary amounts to 250,000 in the currency of Country D.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 case at hand. In this respect,
it took note that the present matter was submitted to FIFA on 24 October 2016.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2015; hereinafter: 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 highlighted 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 (editions 2016 and
2018) 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 of Country B and a club of Country D.
3.
Notwithstanding the above, bearing in mind that the employment contract at the
basis of the present matter was concluded on 7 February 2014 and – according to the
information initially provided by the player in his own claim – terminated on 3 June
2014, as well as the fact that the Claimant lodged his claim against the Respondent in
front of FIFA on 24 October 2016, the members of the DRC considered that they should
examine if the present claim, or any part of it, is barred by the statute of limitations.
4.
Indeed, the members of the Chamber referred to art. 25 par. 5 of the Regulations on
the Status and Transfer of Players (editions 2016 and 2018), which, in completion to
Player A, Country B / Club C, Country D
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the general procedural terms outlined in the Procedural Rules, clearly establishes that
the Dispute Resolution Chamber shall not hear any dispute if more than two years
have elapsed since the event giving rise to the dispute arose and that the application
of this time limit shall be examined ex officio in each individual case.
5.
In view of the above, the DRC deemed it fundamental to underline that in order to
determine whether the Chamber could hear the present matter, it should, first and
foremost, establish which is “the event giving rise to the dispute”, i.e. which is the
starting point of the time period of two years as set out under art. 25 par. 5 of the
Regulations.
6.
The members of the Chamber acknowledged that, according to the Claimant, the club
verbally terminated the contract on 3 June 2014. The Claimant, however, deems that
this verbal termination was invalid and should not be considered in order to assess the
timeliness of his claim. In particular, the Claimant deems that the date of 14 May 2015,
i.e. the date on which the Respondent issued his “Transfer Certificate” in favour of
“any club of his choice”, should be considered as the formal date of termination of the
contract and the actual event giving rise to the dispute. Thus, his claim of 24 October
2016 would have been lodged within the 2 years regulatory time limit.
7.
While referring to art. 12 par. 3 of the Procedural Rules, which reflects the basic legal
principle of burden of proof, the Chamber went on to analyse the documentation
provided by the Claimant in support of his allegations – in particular of the allegation
of admissibility of his claim. In this respect, the Chamber noted that the Claimant had
served the Respondent several default notices, between 30 June 2014 and 17 August
2016.
8.
In particular, the Chamber focused its attention on the default notice of 30 June 2014,
requesting from the club the payment of outstanding remuneration and
compensation, and specifically mentioning that he was: “using this medium to inform
[the club] that FIFA is against arbitrarily termination of employment contract” and
“appealing that [the club] reconsider me and treat my injury, pay me off with lump
sum in lieu of wrongful termination of my employment contract”. The Chamber noted
that also in the player’s default notices sent to the club on 15 February 2015, 29
February 2015, 15 April 2015, 27 April 2015, 31 May 2016 and 17 August 2016, all of
which are on file, the player consistently mentioned that his contract was terminated
by the club in mid-June 2014.
9.
Having considered the content of the above documentation provided by the Claimant
himself, the Chamber concluded that, even though a formal termination document
appears not to have been issued by the club, the latter by its actions put an end to its
employment relationship with the player in mid-June 2014, fact which is already
mentioned in the player’s default notice of 30 June 2014. The unilateral termination of
the employment contract by the club, which occurred around mid-June 2014 and for
Player A, Country B / Club C, Country D
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sure before 30 June 2014, is therefore to be considered as the event giving rise to the
dispute between the player and the club.
10.
As a consequence, referring to art. 25 par. 5 of the Regulations on the Status and
Transfer of Players, the DRC concluded that the time limit of two years for the
Claimant to claim outstanding remuneration and compensation had already elapsed at
the time he lodged his claim in front of FIFA on 24 October 2016.
11.
Therefore, the Chamber decided that the claim of the Claimant is barred by the statute
of limitations and is, consequently, inadmissible.
III.
Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is inadmissible.
*****
Note relating to the m otiv ated 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
Player A, Country B / Club C, Country D
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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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