Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 7 March 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
S tijn Boey kens (Belgium ), member
Tom is lav Kas alo (Croatia), member
Daan de Jong (The Netherlands ), member
Elv is Chetty (S eychelles ), 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 15 February 2018, Player A from Country B (hereinafter: the Claimant) and the
Club C from Country D (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract), valid from the date of signature until 31
December 2018.
2. Clause 3 of the contract established that: “En cumplimiento de los dispuesto en el
título XIII, Art. 59 del Estatuto de la [FIFA], las partes se obligan a someter toda
diferencia o conflicto de orden laboral, deportivo o de cualquier otra índole, a
conocimiento del Tribunal de Resolución de Disputas (T.R.D.).”
Freely translated into English as follows:
“In accordance with the provisions under title XIII, Art. 59 of the [FIFA] Statutes, the
parties are obliged to submit any dispute or conflict related to sporting, labour or
any other matter to the Dispute Resolution Tribunal (T.R.D)”.
3. According to clause 5 of the contract, the Claimant was entitled inter alia to receive
from the Respondent the amount of USD 71,500 as salary for the duration of the
contract, payable in 11 equal monthly instalments of USD 6,500, each.
4. Moreover, clause 5 of the contract provided that: “Para el Campeonato Clausura
2018; en caso de que el [Demandante] logre disputar de titular el 70% de los
partidos de Campeonato Apertura 2018 y en base a respectivo informe o
certificación escrita de la Comisión Técnica [del Demandado]; el [Demandado]
incrementará el salario del [Demandante] en USD 1,000 en cada cuota salarial para
el campeonato clausura 2018.”
Freely translated into English as follows:
“For the Clausura 2018 Tournament; in case the [Claimant] played 70% of the
matches of the Apertura 2018 Tournament and based on a respective report or
written certification from the Technical Commission [of the Respondent]; the
[Respondent] will increase the [Claimant's] salary USD 1,000 in each monthly
instalment for the Clausura 2018 Tournament”.
5. Furthermore, clause 12 of the contract stipulated that: “Será causal a favor del
[Demandante] para poner término anticipado al presente contrato:
a) El incumplimiento o retraso del [Demandado] en la cancelación de sueldos y
primas al [Demandante], por 90 días posteriores al plazo o día previsto para el
pago.”
Freely translated into English as follows:
“It shall be a cause in favor of the [Claimant] to terminate the contract early:
a) Failure or delay of the [Respondent] in the payment of salaries and bonuses to the
[Claimant], for 90 days after the deadline or day provided for payment.“.
Player A, Country B / Club C, Country D
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6. On the same date i.e. 15 February 2018, the Claimant and the Respondent signed a
document, with the logo and letterhead of the Football Federation of Country D,
titled “Contrato Deportivo de Trabajo de Futbolistas Profesionales del Pays D”
(hereinafter: the Football Federation of Country D contract), valid from the date of
signature until 31 December 2018, which was registered in the Federation of
Country D.
7. Clause 8 of the Football Federation of Country D contract established that: “En caso
de controversias contractuales respecto al presente contrato, ambas partes aceptan
someterse a lo que determine el Tribunal de Resolución de Disputas (TRD) en
consecuencia; las partes, renuncian expresamente a trasladar la controversia a la
jurisdicción que no sea la deportiva. Las Resoluciones de la T.R.D. pueden ser objeto,
en última instancia, de un recurso de Apelación o Casación ante la instancia superior
de arbitraje reconocida por la Federación de Fútbol del país D, en ausencia de tal
instancia y durante una fase transitoria, ante cualquier instancia de arbitraje
reconocida por la FIFA y de acuerdo con FIFpro.”
Freely translated into English as follows:
“In the event of contractual disputes with respect to this contract, both parties
agree to submit to whatever the Dispute Resolution Tribunal (TRD) determines
accordingly; the parties expressly waive the possibility of transferring the dispute to
any jurisdiction other than the sports jurisdiction. The decisions of the T.R.D. may, in
the final instance, be the subject of an Appeal or Cassation before the higher
arbitration instance recognised by the Football Federation of Country D, in the
absence of such an instance and during a transitional phase, before any arbitration
instance recognised by FIFA and in accordance with FIFpro.”.
8. On 19 February 2018, the Claimant and the Respondent signed a document titled
“Adendum a Contrato de Trabajo Jugador A” (hereinafter: the annexe to the
contract), according to which the Claimant was entitled inter alia to receive 1
international flight ticket for him and 1 for his wife.
9. On 15 May 2018, the Claimant put the Respondent in default in writing, requesting
the partially paid outstanding salary of February 2018, and the complete
outstanding salaries of March, April and May 2018, as well as the reimbursement of
a flight ticket, establishing a deadline to the Respondent of 10 days for payment,
stating that otherwise he would terminate the contract.
10. On 25 May 2018, the Claimant put the Respondent in default in writing, requesting
the partially paid outstanding salary of February 2018, and the complete
outstanding salaries of March, April and May 2018, as well as the reimbursement of
a flight ticket, setting a time limit to the club, expiring on 30 May 2018 in order to
remedy the default, stating that otherwise he would terminate the contract.
Player A, Country B / Club C, Country D
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11. Subsequently, by means of a letter dated 1 June 2018, the Claimant unilaterally
terminated the employment relationship, stressing that he had just cause to
terminate the contract since the Respondent failed to pay him the amounts
requested in the default letters dated 15 May 2018 and 25 May 2018.
12. On 14 June 2018, the Claimant lodged a claim against the Respondent before FIFA,
requesting the total amount of USD 122,436.66, plus interest. The Claimant broke
down the amount as follows:
-
USD 24,936.66 as outstanding remuneration:
i.
USD 23,725 corresponding to the partially paid outstanding salary of
February 2018, and the complete outstanding salaries of March, April
and May 2018, plus interest of 5% p.a. as of the due dates; and
ii.
USD 1,211.66 corresponding to the reimbursement of the flight ticket
of his wife, plus interest as of the due date.
-
USD 52,500 as compensation for breach of contract, plus interest as of the
date the contract was terminated i.e. 1 June 2018, corresponding to the
salaries for the time frame as from June 2018 until December 2018.
-
USD 45,000 as additional compensation for specificity of the sport.
Additionally, the player requested the amount of EUR 5,000 corresponding to legal
costs.
As to the competence of the Dispute Resolution Chamber
13. On its reply to the claim, the Respondent firstly questioned the competence of FIFA
to deal with the present matter. In particular, and based on clause 3 of the contract
as well as clause 8 of the Football Federation of Country D contract, the Respondent
argued that the only competent body to decide upon a dispute involving the parties
is the Dispute Resolution Tribunal (T.R.D.) of the Football Federation of Country D
(hereinafter: the TRD of the Football Federation of Country D).
14. In this respect, the Respondent provided a copy of the Statutes of the Football
Federation of Country D, as well as copy of the National Transfer Regulations
(hereinafter: the Football Federation of Country D Regulations). In so doing, the
club referred to art. 58 of the Football Federation of Country D Regulations. Said
article reads as follows: Art. 58 “El Tribunal de Resolución de Disputas es la única
instancia para considerar y resolver los conflictos derivados de la interpretación,
aplicación y cumplimiento de los contratos deportivos suscritos entre un club y un
jugador. No tiene competencia en hechos relacionados con faltas deportivas,
técnicas, o infracciones a las reglas del juego.”
Freely translated into English as follows:
Art. 58 “The [TRD of the Football Federation of Country D] is the only instance to
consider and resolve conflicts arising from the interpretation, implementation and
Player A, Country B / Club C, Country D
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enforcement of sports contracts signed between a club and a player. It does not
have competence in facts related to sports fauls, techniques, or infractions to the
rules of the game.”.
15. Art. 60 of the Football Federation of Country D Regulations provides that: “El
Tribunal de Resolución de Disputas, está constituido por cinco miembros:
a) Dos miembros designados por el Comité Ejecutivo de la Federación de Fútbol
del país D;
b) Dos miembros designados por la dirigencia de los jugadores de fútbol a nivel
nacional, y designados por el Comité Ejecutivo de la Federación de Fútbol del
país D;
c) Un Presidente designado por el Comité Ejecutivo de la Federación de Fútbol
del país D, en consenso con la dirigencia de jugadores a nivel nacional, quien
dirimirá las decisiones únicamente en casos de empate.”
Freely translated into English as follows:
“The [TRD of the Football Federation of Country D] is constituted by five members:
a) Two members appointed by the Executive Committee of the Football
Federation of Country D;
b) Two members appointed by the national football players’ union and
appointed by the Football Federation of Country D Executive Committee;
d) A President appointed by the Football Federation of Country D Executive
Committee, in consensus with the national football players' union, who will
decide on decisions only in cases of a tie.”.
16. On the other hand, the Claimant insisted on the competence of FIFA and held that
the contract “clearly refers to the FIFA Dispute Resolution Chamber in its
designation in Spanish and not to the on allegedly implemented by the [Football
Federation of Country D]”. In addition to that, the Claimant argued that the
Respondent failed to prove that the TRD of the Football Federation of Country D
complies with the requirements established by FIFA, as it “not even filled the
regulations of said tribunal allegedly in force”.
As to the substance
17. In his claim, the Claimant stated that the Respondent’s failure regarding its
contractual obligations towards him began since the first month of the employment
relationship, and continued until he terminated the contract. In this regard, the
Claimant sustained that on March 2018, he was paid USD 975 out of USD 6,500,
corresponding to February’s salary.
18. Subsequently, the Claimant held that in February 2018, the Respondent did not
reimburse the amount of USD 1,211.66 corresponding to the costs he had to incur
Player A, Country B / Club C, Country D
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for the flight ticket of his wife, as it was contractually agreed in the annexe of the
contract.
19. In this respect, the Claimant alleged that after the non-fulfillment of the
Respondent’s obligations towards him continued during the months of March and
April 2018, on 15 May 2018 he sent the club default notices.
20. In this context, according to the Claimant on 20 May 2018, the Respondent paid him
the amount of USD 1,300 corresponding to the partially paid monthly instalment of
February 2018. Nevertheless, the Claimant emphasized that at that moment he was
still owed the following amounts:
-
USD 4,225 corresponding to the partially paid outstanding salary of February
2018;
-
USD 19,500 corresponding to the complete outstanding salaries of March,
April and May 2018; and
-
USD 1,211.66 corresponding to the reimbursement of the flight ticket of his
wife.
21. Furthermore, the Claimant recalled clause 5 of the contract and sustained that he
played in 9 out of the 12 matches that the Respondent played during the period
between 15 February 2018 and mid-May 2018, therefore, according to the Claimant,
the compensation shall be calculated taking into account the increase of USD 1,000
mentioned in the aforementioned clause. In this regard, the Claimant argued that
he did not took into account for the calculation the match played on 17 February
2018, as he had just signed the contract two days earlier.
22. In spite of having been invited to do so, the Respondent did present comments as to
the substance of the claim.
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 matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 14 June 2018.
Consequently, the 2018 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 2018 edition
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 2018; hereinafter; the 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
of Country B and a club from Coutnry D.
Player A, Country B / Club C, Country D
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3. However, the Chamber acknowledged that the Respondent claimed that not FIFA
but the TRD of the Football Federation of Country D was competent to deal with
the present matter. In particular, the DRC took note that the Respondent argued
that the parties voluntarily agreed on clause 3 of the contract and clause 8 of the
Football Federation of Country D contract, respectively, that, for every employmentrelated dispute regarding the contracts are subject to the exclusive jurisdiction of
the TRD of the Football Federation of Country D.
4. In this regard, the members of the DRC observed that the Claimant insisted that FIFA
was competent to decide on the present issue as the Claimant held that the clause 3
of the contract “clearly refers to the FIFA [DRC] in its designation in Spanish and not
to the one allegedly implemented by the [Football Federation of Country D]”.
5. Moreover, the DRC duly noted that the Claimant alleged that the Respondent did
not prove that the TRD of the Football Federation of Country D does comply with
the requirements established by FIFA as according to the Claimant, the Respondent
failed to enclose the relevant regulations that could prove that. Moreover, the DRC
noted that the Claimant did not made any comment regarding the Football
Federation of Country D contract.
6. On that basis, the members of the Chamber started by acknowledging that, despite
being entitled to seek redress before an ordinary national court of law, the parties
did not dispute that the matter at hand was brought to an alternative dispute
resolution process within football.
7. Taking into account the above, the DRC emphasised that it was necessary to
ascertain who is competent to decide on the issue within the football related
dispute resolution system. In other words, the competence of a national deciding
body on the one side and FIFA on the other must be determined.
8. In view of the above, the Chamber proceeded with an analysis of the relevant
documents on file.
9. After a careful examination of the contract and the Football Federation of Country
D contract, the members of the DRC considered it of utmost importance to highlight
that the contract and the Football Federation of Country D contract which are at the
basis of the dispute at stake, contain an arbitration clause in the event of a dispute
between the parties. In particular, clause 3 and clause 8 of the contract and the
Football Federation of Country D contract, respectively, make reference to the
relevant arbitration body that would be competent in the event of a dispute
between the parties, i.e. “Cláusula 3: En cumplimiento de los dispuesto en el título
XIII, Art. 59 del Estatuto de la [FIFA], las partes se obligan a someter toda diferencia
o conflicto de orden laboral, deportivo o de cualquier otra índole, a conocimiento
del Tribunal de Resolución de Disputas (T.R.D.).”
Freely translated into English as follows:
Player A, Country B / Club C, Country D
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“Clause 3: In accordance with the provisions under title XIII, Art. 59 of the [FIFA]
Statutes, the parties are obliged to submit any dispute or conflict related to
sporting, labour or any other matter to the Dispute Resolution Tribunal (T.R.D)”;
and
“Cláusula 8: En caso de controversias contractuales respecto al presente contrato,
ambas partes aceptan someterse a lo que determine el Tribunal de Resolución de
Disputas (TRD) en consecuencia; las partes, renuncian expresamente a trasladar la
controversia a la jurisdicción que no sea la deportiva. Las Resoluciones de la T.R.D.
pueden ser objeto, en última instancia, de un recurso de Apelación o Casación ante
la instancia superior de arbitraje reconocida por la Federación de Fútbol del país D,
en ausencia de tal instancia y durante una fase transitoria, ante cualquier instancia
de arbitraje reconocida por la FIFA y de acuerdo con FIFpro.”
Freely translated into English as follows:
“Clause 8: In the event of contractual disputes with respect to this contract, both
parties agree to submit to whatever the Dispute Resolution Tribunal (TRD)
determines accordingly; the parties expressly waive the possibility of transferring the
dispute to any jurisdiction other than the sports jurisdiction. The decisions of the
T.R.D. may, in the final instance, be the subject of an Appeal or Cassation before the
higher arbitration instance recognised by the Football Federation of Country D, in
the absence of such an instance and during a transitional phase, before any
arbitration instance recognised by FIFA and in accordance with FIFpro.”.
10. To that end, the members of the DRC considered that the contract and the Football
Federation of Country D contract are complementary and, therefore, the fact that
the Football Federation of Country D contract stipulated that “…the decisions of the
T.R.D. may, in the final instance, be subject to of an Appeal or Cassation before the
higher arbitration instance recognized by the Football Federation of Country D ….”
made the DRC conclude that the dispute resolution body established on clause 3 of
the contract and clause 8 of the Football Federation of Country D contract i.e. the
TRD, referred to the dispute resolution body that is within the framework of the
Football Federation of Country D i.e. the TRD of the Football Federation of Country
D.
11. Furthermore, the members of the Chamber determined that the argumentation of
the Claimant regarding the alleged designation in Spanish of the DRC i.e. “clearly
refers to the FIFA [DRC] in its designation in Spanish and not to the one allegedly
implemented by the [Football Federation of Country D]”, cannot be followed as it
was concluded that the parties clearly agreed on the dispute resolution body under
the Football Federation of Country D, apart from the facts that neither clause 3 of
the contract, nor clause 8 of the Football Federation of Country D contract mention
FIFA and the name of the DRC in Spanish is not “Tribunal de Resolución de
Disputas”.
12. With those considerations in mind, the Chamber referred to art. 22 b) of the
Regulations, according to which it is competent to deal with a matter such as the
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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 recalled FIFA’s circular no. 1010 dated 20 December 2005, as
well as the principles established in the National Dispute Resolution Chamber
(NDRC) Standard Regulations, which came into force on 1 January 2008.
13. In this regard, the Chamber referred to the decisions passed by the Dispute
Resolution Chamber on 15 May 2009 and 24 April 2015, respectively, by means of
which the DRC concluded that the TRD of the Football Federation of Country D
established within the scope of the Football Federation of Country D, complies with
the requirements established in art. 22 b) lit. b) of the Regulations and in the
aforementioned FIFA’s circular no. 1010.
14. In continuation, the DRC went on to examine the documentary evidence presented
by the Respondent, i.e. a copy the Statutes of the Statutes of the Football
Federation of Country D, as well as a copy of the Football Federation of Country D
Regulations.
15. In this respect, the members of the Chamber recalled that according to the Football
Federation of Country D Statutes “El Tribunal de Resolución de Disputas es la
única instancia para considerar y resolver los conflictos derivados de la
interpretación, aplicación y cumplimiento de los contratos deportivos suscritos
entre un club y un jugador. No tiene competencia en hechos relacionados con
faltas deportivas, técnicas, o infracciones a las reglas del juego.”
Freely translated into English as follows:
“The [TRD of the Football Federation of Country D] is the only instance to
consider and resolve conflicts arising from the interpretation, implementation
and enforcement of sports contracts signed between a club and a player. It does
not have competence in facts related to sports fauls, techniques, or infractions to
the rules of the game.”.
16. Furthermore, and referring to the composition of the TRD of the Football
Federation of Country D, the DRC noted that in accordance with art. 60 of the
Football Federation of Country D Regulations, the TRD of the Football Federation of
Country D is composed by four members, which are nominated as follows: a) a
President appointed by the Football Federation of Country D Executive Committee
in consensus with the national football players’ union; b) two clubs’ representatives
appointed by the Executive Committee of the Football Federation of Country D; and
c) two players’ representatives designated by the national football players’ union,
i.e. parity when constituting the arbitration tribunal.
17. Consequently, and taking into consideration the entire structure, the entire
structure and functioning of the TRD of the Football Federation of Country D as set
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out in the Football Federation of Country D Statutes and the Football Federation of
Country D Regulations, as well as considering the above-mentioned decisions passed
by the DRC on 15 May 2009 and 24 April 2015, the Chamber deemed that the
Respondent was able to prove that the TRD of the Football Federation of Country D
meets the minimum procedural standards for independent arbitration tribunals as
laid down in art. 22 b) of the Regulations and in FIFA Circular no. 1010.
18. At the same time, the members of Chamber were eager to emphasise that the
argumentation of the Claimant that the Respondent “not even filled the regulations
of said tribunal, cannot be sustained since the Respondent provided the relevant
documentation.
19. On account of the facts that a) the contracts at the basis of the matter at stake, i.e.
the contract and the Football Federation of Country D contract, contain a clear
jurisdiction clause; b) the relevant deciding body meets the minimum procedural
standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the
Regulations and in FIFA Circular no. 1010; and c) the DRC took into consideration
the decision dated 15 May 2009 and 24 April 2015, the Chamber concluded that the
Respondent’s objection to the competence of FIFA to deal with the present matter
has to be accepted and that the DRC is not competent, on the basis of art. 22 lit. b)
of the Regulation, to consider the present matter as to the substance.
*****
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
CH-1012 Lausanne
Player A, Country B / Club C, Country D
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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:
Emilio García Silvero
Chief Legal Officer
Encl.
CAS directives
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