Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 2 March 2023
regarding an employment-related dispute concerning the player A
BY:
DE WEGER Frans (The Netherlands), Chairperson
LUKASEK Peter (Slovakia), member
VAURASI Laurel (Fiji), member
CLAIMANT:
A, Country A
Represented by
RESPONDENT:
B, Country B
Represented by
pg. 2
I. Facts of the case
1.
On 4 August 2020, the Country A player A (hereinafter: Claimant or player) and the Country
B club B (hereinafter: club or Respondent) concluded an employment contract (hereinafter:
contract) valid as from the same date until 30 June 2023, with an option to further extend
the contract for an additional season.
2.
The contract indicates in its preamble that the player is of Country A nationality. In
accordance with the information provided by the Country B Football Association (B FA) and
equally available in the Transfer Matching System (TMS), the player has been registered
with the club as Country A national.
3.
According to the contract, the Claimant was entitled to the following:
a. Salary of CURRENCY COUNTRY B 43,000 net, payable by the 15th day of the
following month;
b. 28 days of vacation;
c. A sign-on fee of CURRENCY COUNTRY B 270,000 net payable within 7 days of
receipt of the player’s ITC;
d. Several bonuses depending on performance.
4.
Clause 8.1 of the contract reads as follows:
“The relevant resolutions of B FA, in particular the provisions of Minimum Requirements shall
be applicable to any matters not governed by this Contract and in case of matters not
governed by those regulations there shall apply the relevant regulations of Country B Law, in
particular the Country B Civil Code”
5.
Clause 8.2 of the contract reads as follows:
“Any disputes regarding proprietary rights and non-proprietary rights which may be subject
to an arrangement and which may arise in connection with the execution, validity,
performance and termination of the Contract, occurring in connection with the organization
and playing football, shall be submitted by the Parties to exclusive settlement by the Football
Arbitration Court of the B FA”.
6.
Early in the season 2021/2022, the player suffered a knee injury which resulted in his
absence for the remainder of the season. The player ended up playing solely one minute
during one match in such season.
7.
On 4 July 2022, the Respondent terminated the contract unilaterally by means of a notice
served to the player. In such document, the club referred to the fact that the player played
in less than 10% of the matches for the season 2021/2022, with reference to the Resolution
III/54 of the Board of the B FA from 27 March 2015.
pg. 3
8.
On 11 July 2022, the player sent a notice to the club requesting payment of CURRENCY
COUNTRY B 634,680 as compensation for breach of contract, calculated on the basis of
the residual amount of the contract for 12 times CURRENCY COUNTRY B 52,890 gross,
within 10 days.
9.
The player entered into the following employment relationships following the termination
of the contract:
a. With the Country C club, C:
i. For the period between 19 August 2022 until 31 May 2023; however, this
contract was mutually terminated on 6 February 2023.
ii. For a total monthly fixed remuneration of:
1. EUR 1,000 net in line with the corresponding labour agreement.
2. EUR 750 net in line with the corresponding supplementary
agreement, plus a bonus of EUR 17,500.
b. With the Country B club, D:
i. For the period between 9 February 2023 until 30 June 2023, with an option
for the contract to be extended for 2 additional seasons.
ii. For a total remuneration for the season 2022/2023 of CURRENCY
COUNTRY B 136,776 gross, considering a tax rate of 23% (approx.
CURRENCY COUNTRY B 105,310 net in total, CURRENCY COUNTRY B
21,061 per month).
II. Proceedings before FIFA
10. On 28 July 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
11. The player detailed that the NDRC of Country B does not have jurisdiction over this dispute
because said body does not meet the criteria under FIFA Circular 1010.
12. In his claim as to the substance, the player argued that the club did not have just cause to
terminate the contract insofar as the Resolution from the B FA is contrary to “FIFA
Regulations”.
pg. 4
13. The player requested payment of compensation for breach of contract without just cause
of CURRENCY COUNTRY B 634,680 plus 5% interest p.a. as from 22 July 2022 until the date
of payment.
b. Position of the Respondent
Objection as to the competence
14. In its reply, the Respondent objected to the jurisdiction of FIFA. In doing so, the club argued
that the player is both of Country B and Country A citizenship. In particular, the club
indicated that the player was born in Country B to Country B parents, and filed in support
of the foregoing media articles referring to the player’s alleged Country B nationality and
ancestry.
15. In continuation, the club argued that the contract reads that Country B Law is applicable
as well as B FA’s regulations in accordance with its clause 8.1. It equally underlined that no
collective bargaining agreement exists at that national level.
16. The club equally opposed the jurisdiction of FIFA on the basis of art. 8.2 of the contract,
and stated that the NDRC of Country B meets the criteria under art. 22 par. 1 lit b) RSTP
and FIFA Circular 1010. The club explained that while that was not the case before, the
NDRC of Country B now complies with the criteria set out in FIFA Circular 1010. The
Respondent filed a copy of the regulations of the NDRC of Country B.
17. In particular, the club outlined the following:
a. NDRC of Country B as independent, permanent national arbitration tribunal
Art. 50 of the B FA Statutes establishes that the NDRC of Country B is a national arbitral
tribunal in line with the Country B Code of Civil Procedure, and therefore is equivalent
to a state court under Country B Law.
FIFA has an obligation to examine the criteria set out in the relevant regulations to
determine that the NDRC of Country B complies with the requisites established under
FIFA Circular 1010.
b. Arbitrators of the NDRC of Country B
The arbitrators of the NDRC of Country B are independent and impartial, as confirmed
by a letter issued by the B FA. The club contends that in this respect the Country B Code
of Civil Procedure mimics the xx Model Law and Swiss PILA.
c. Equal representation of clubs and players
pg. 5
In accordance with art. 51 (1) and (3) of the B FA Statutes, the principle of equal
representation is respected insofar as each party appoints an arbitrator from the list,
who then together appoint the chairperson, i.e., “super-arbitrator” from a list of 5. The
club highlighted that the list is composed of 32 arbitrators, being 9 appointed by clubs,
9 appointed by players, 9 as “Chair of the Court”, plus 5 as “Presidium of the Court”.
The club underlined that within 14 days of the decision, parties may request its review
by a Panel of 5 members, in which occasion each party chooses 2 arbitrators each who
then appoint a super arbitrator.
d. Fair proceedings
The club argued that the Regulations of the NDRC of Country B ensure fair
proceedings, namely:
−
the arbitrator of the [NDRC of Country B] is independent and may not be a representative
of any party to the proceeding. The arbitrator should perform the function entrusted
to him/her impartially, to the best of his/her knowledge and conscience. The arbitrator
should also keep secret the proceedings of the deliberations and voting (Art. 12 of the
Regulations of the [NDRC of Country B]);
−
appointed arbitrator should immediately exclude himself from participation in the
case if he considers that there are legal or personal reasons to do so. The arbitrator
may also be dismissed by the chairman of the [NDRC of Country B], taking into account
the justified request of the party (Art. 25 of the Regulations of the [NDRC of Country B]);
−
the arbitrator should exclude himself from participation in a case in the following
situations: (a) in cases where he is a party to, or has a legal or factual relationship with
one of the parties and the outcome of the case may affect his rights or obligations; (b) in
cases relating to his spouse, relatives or affinities in a straight line, lateral relatives up to
the fourth degree and lateral affinities up to the second degree; (c) in cases relating to
persons connected with the arbitrator by adoption, custody or guardianship; (d) in cases
in which the arbitrator was or still is a legal representative or was an advocate or legal
adviser to one of the parties; or (e) in cases in which the arbitrator was involved in the
contested decision, as well as in cases of validity of an act drawn up or dealt with by
him and in cases in which he acted as a public prosecutor (Art. 26 of the Regulations of
the [NDRC of Country B]);
−
the parties may be replaced by authorised representatives, including a counsel or an
attorney. (…) Each party can enter 2 trustees who can listen to the case. A trustee may be
a person with full legal capacity (Art. 62 of the Regulations of the [NDRC of Country B]);
pg. 6
−
the chairman of the arbitral tribunal shall appoint an interpreter if a person who cannot
testify in Country B is to be heard capacity (Art. 63 of the Regulations of the [NDRC
of Country B]);
−
during the hearing, the parties should be given the opportunity to make factual and
legal representations which they consider appropriate to defend their rights (Art. 64 of
the Regulations of the [NDRC of Country B]);
−
after summoning the case, the claimant and then the respondent shall verbally submit
formal motions and demands and present statements and evidence in support of them.
The parties may also indicate the legal basis for their requests and demands. Each party
shall be required to make a statement regarding the other party's factual claims. The
hearing also includes, as appropriate, evidence-gathering and discussion of its results
(Art. 65 of the Regulations of the [NDRC of Country B]);
−
the arbitral tribunal shall decide, in accordance with its own conviction, about the
parties' requests for evidence. In particular, the arbitral tribunal may admit
documentary evidence, inspect and question the parties, witnesses and experts,
and take an oath from them (Art. 66 of the Regulations of the [NDRC of Country
B]);
−
until the hearing is closed, a party may cite factual circumstances and evidence to
substantiate its motions or to refute the motions and claims of the opposing party, subject
to adverse consequences in terms of costs and substantive resolution that may result
from acting for delay or failure to comply with the orders of the chairman of the arbitral
tribunal (Art. 69 of the Regulations of the [NDRC of Country B]);
−
the decision of the Arbitration Court shall be made by a majority of votes (Art. 82 of the
Regulations of the [NDRC of Country B]);
−
within 14 days of the announcement of the decision, the secretary of the arbitration
court shall deliver to both parties, against a receipt or proof of delivery, an arbitral
decision with justification, signed by the arbitrators and bearing the seal of the [NDRC
of Country B] (Art. 88 of the Regulations of the [NDRC of Country B]);
−
the party to the proceeding may submit an application for reconsideration of the case by
a five-member changed panel of the [NDRC of Country B] (each party selects two
arbitrators who then appoint a super-arbitrator) within 14 days of delivery of the
decision with justification (Art. 93 of the Regulations of the [NDRC of Country B]).
Objection as to the substance
18. As to the substance, the club argued that the player played less than 10% of the season’s
game and therefore it was entitled to terminate the contract on the basis of the B FA
pg. 7
Resolution, and therefore the player is not entitled to compensation. Alternatively, in case
the DRC found that compensation was due to the player, the club highlighted that:
a. The sign-on fee was not amortized over the entire contract.
b. The player found new employment, which should count as mitigation.
19. The club filed the following request for relief:
−
The Respondent kindly request the honorable FIFA Football Tribunal to adjudicate that the
FIFA Football Tribunal and its FIFA DRC do not have a jurisdiction in the present case and the
Claim is not admissible.
−
The Respondent kindly request the honorable FIFA Football Tribunal (FIA DRC) to adjudicate that
- in accordance with the Contract - the competent body to adjudicate on the pertinent manner
any claims related to the Contract is exclusively the B FA deciding body as an independent
arbitration tribunal established on a national level in conformity with RSTP and FIFA Circular No.
1010.
−
In the unlikely event the FIFA Football Tribunal (FIFA DRC) decides that the Claim is
admissible, the Respondent respectfully asks the FIFA DRC to dismiss the Claim in its entirety.
−
In the unlikely event the FIFA Football Tribunal (FIFA DRC) decides that the Claim is
admissible, the Respondent respectfully asks the FIFA Football Tribunal (FIFA DRC) to order
Respondent to provide documents mentioned in point 6.8 above.
−
The Respondent respectfully asks the FIFA Football Tribunal (FIFA DRC) to adjudicate that the
Claimant shall bear all legal and procedural costs, if any, of the entire proceeding related to
the Proceeding.
−
The Respondent reserves its right to amend- and/or expand- and/or submit new- statements,
allegations, claims and explanation related to the present proceeding, including its request for
relief, depending on the further submission of the Claimant, including responses to the present
Answer.
c. Rejoinder of the Claimant
20. In his replica, the Claimant insisted on the competence of FIFA to hear the dispute. He
outlined that speaking Country B language or having Country B ancestry is not relevant to
determine the DRC’s jurisdiction, moreover so due to the limited evidence filed by the club.
He furthermore recalled that he is registered in Country B before the relevant authorities.
21. As to the NDRC of Country B, the player argued that it does not meet the criteria of equal
representation, since out of 32 arbitrators only 9 are appointed by the players. Additionally,
the player underlined that the Chair and Vice-Chairs of the said body, as well as the
pg. 8
secretary, are appointed solely by the management of the B FA, and without any
consultation with the player representatives. Equally, the player indicated that the
“Presidium” of the NDRC, out of 5 members, only one is indicated by the players.
22. In continuation, the player indicated that the Regulations of the NDRC state that the Chair
of each Panel must be chosen from the list of arbitrators indicated by the board of the B
FA, and therefore the criterion for equal representation is not met.
23. With regard to the substance, the player argued that the remarks of the club as to the signon fee are irrelevant since the bonus is linked to the execution of the contract, not its
performance.
24. Due to the mitigation, the player argued that he would earn CURRENCY COUNTRY B
118,000 for the season 2022/23 in Country C, and therefore he amended his claim to
request CURRENCY COUNTRY B 516,680 plus “statutory interest in the rate of 5% p.a. as from
22 July 2022 until the date of payment”
d. Final Comments of the Respondent
25. In its final comments, the Respondent largely reiterated its position and indicated that the
members of the Presidium of the NDRC of Country B are impartial and independent, as
allegedly confirmed by the Country B Players’ Union, who limited themselves to question
“some procedural aspects of the appointment of members”. A copy of the letter in question
was made available by the Respondent.
26. The club further indicated that the player is in abuse of right by stating that his salary in
Country C was lower than what in fact it is.
e. Contents of the statutes/regulations of the NDRC of Country B
27. On the basis of the file, the following rules found either in the Statutes of B FA or the NDRC
of Country B are relevant for the outcome of the dispute:
B FA Statutes
Art. 22 - Number and status of delegates to the General Assembly Meeting
§ l. The General Assembly Meeting is the supreme authority of the Country B Football Association.
§ 2. The General Assembly Meeting consists of 118 delegates who represent B FA members in the
following manner:
1) All Regional Football Associations have a total of 60 delegates representing clubs operating within
their respective areas. The number of delegates is determined in the following manner:
pg. 9
[description of the number of delegates from each regional football associations]
2) Associated clubs of xxx and xxx shall have a total of 50 delegates. The distribution of these
delegates in the· aforementioned two leagues is determined in the following manner:
a) In the case of 16 teams participating in xx competitions: 2 delegates each;
b) In the case of 18 teams participating in xx competitions:
-clubs taking the first 14 places in the league at the end of the competition season before 1
July - 2 delegates;
- the club in the 15th place in the league at the end of the competition season before 1 July 1 delegate;
- each of the 3 clubs referred to as “xx” (clubs advancing to the league from a lower
competition level) of the xx competitions in the season beginning after 1 July - 1 delegate;
c) 18 clubs of the xx: 1 delegate each.
3) Football Coach Association: 3 delegates.
4) Country B Football Referee Association: 1 delegate.
5) Women's football: 2 delegates representing all clubs participating in women’s football
competitions in Country B.
6) Futsal: 2 delegates representing all clubs participating in 5-member team competitions in Country
B
Art. 35 - Composition of the Management Board
§ 1. The Management Board consists of 18 members elected by the General Assembly Meeting. ·
§ 2. The Management Board of B FA consists of the following parties, elected in separate ballots:
President of the Country B Football Association
- 5 Vice-Presidents of B FA, including 3 Vice-Presidents elected at the request of the President of B FA
(including the Vice-President for Organization and Finance, Vice-President for Coaching and VicePresident performing other functions specified by the President of B FA before the candidate is put
to vote) as well as Vice-President for Amateur Football (elected at the request of Regional Football
Associations), and Vice-President for Professional Football (elected at the request of clubs of two
highest completion classes, by absolute majority of votes).
10 members from the list of candidates submitted by the delegates or presented pursuant to
art. 23 sec. 4.
1 member elected at the request of xx Clubs.
1 member elected at the request of xx Clubs.
pg. 10
Regulations of the NDRC of Country B
Art. 11, Chapter 3:
“3. ORGANISATION OF THE COURT OF ARBITRATION.
Art. 11
1. The Football Court of Arbitration shall be composed of 32 arbitrators appointed and dismissed by
the Management Board of B FA.
2. The Management Board of B FA appoints the Chairman, Vice-Chairman, Secretary and 2 members
of the Praesidium of the Court - one proposed by the league club community and the other by the
league player community, and 27 arbitrators proposed by the league club community (9 arbitrators),
league player community (9 arbitrators) and the Chairman of the Court (9 arbitrators). The
information on whom recommended particular arbitrators shall be published on the website of the
Country B Football Association and included on the list referred to in Art. 22 sec. 7.
3. Nine arbitrators recommended by the league club community shall be determined as follows:
xxx clubs, represented by xxx, recommend – 5 candidates,
I liga clubs, represented by the First Football Division association, recommend - 3 candidates,
II liga clubs, represented by the Second Football Division Association, recommend - 1 candidate.
4. Nine arbitrators recommended by the league player community are proposed by the Country B
Football Association.
Art. 22, Chapter 4:
“4. ADJUDICATING PANELS.
Art. 22
1. Subject to sec. 2 and 3, the consideration and resolution of disputes subjected to the jurisdiction
of the Court of Arbitration shall Ile with three-member Adjudicating Panels, appointed in accordance
with these Regulations.
2. Disputes shall be resolved by one arbitrator if:
a) the value of the subject matter of the dispute does not exceed CURRENCY COUNTRY B 10,000,
subject to the provisions of Art. 4 sec. 2 of the Regulations,
b) it was decided so by the Presidium of the Court at a reasonable of a party to which the other party
did not oppose within the specified period not exceeding 7 days,
pg. 11
c) the case concerns the determination of the amount of the training compensation, regardless of
the value of the subject matter of the dispute.
3. Requests for the reconsideration of a case as well as request for the reconsideration of a case
resolved by one arbitrator and appeals against final decisions issued by the B FA Appeals Committee
for Cub Licensing in cases related to the granting, suspension or revocation of a licence shall be
considered by a 5-member Adjudicating Panel, with each party appointing two arbitrators. who shall
elect the Chairman of the Adjudicating Panel (Chief Arbitrator) from among the Chairman, ViceChairman and Secretary of the Court or arbitrators elected at the request of the Chairman of the
Court, subject to the provisions of Art 23 sec. 3 of these Regulations. Minutes of the election of the
Chief Arbitrator shall be drawn up and signed by the Adjudicating Panel, the Secretary of the Court
and, in the absence of the Secretary. by the Chairman of the Court and it shall immediately be
included in the case file.”
Art. 51:
“Art. 51 – Proceedings before the [NDRC of Country B]
1. [NDRC of Country B] consists of consists of up to 32 arbitrators, appointed and dismissed by the
Management Board of B FA, including 5 members of the Presidium of the Court and up to 27
arbitrators proposed by the league club community (9 arbitrators), league player community (9
arbitrators) and the Chair of the Court (9 arbitrators).”
(…)
3. In the first instance, disputes submitted to the [NDRC of Country B] shall be considered and settled
by Adjudication Panels composed of three arbitrators. Each party shall designate one arbitrator from
the [NDRC of Country B]‘s list of members, and both arbitrators shall designate the Presiding
Arbitrator (chief arbitrator) from the list.
4. A party may file a request for reconsideration of the case in a five-member panel, altered
adjudicating panel within 14 days of receiving the decision with justification. Each party designates
two arbitrators who shall designate the chief arbitrator.
Art. 52 – Regulations of the [NDRC of Country B]
1. The rules for appointing and dismissing members, organising the [NDRC of Country B], and the
procedures of this court, are defined by the management Board of the B FA in the form of regulations,
in accordance with the provisions of the Code of Civil Procedure and by taking into due consideration
the rules applicable in FIFA and UEFA.
2. The current activities of the [NDRC of Country B] are managed by its Praesidium, consisting of the
Chair, Vice-Chair, secretary, and two members appointed by the management board of B FA (…)”.
pg. 12
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 presented to FIFA on 28 July 2022 and submitted for
decision on 2 March 2023. Taking into account the wording of art. 34 of the October 2022
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
29. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Country A player and a Country B club.
30. The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the NDRC of Country B, alleging that the latter is competent to
deal with any dispute deriving from the relevant employment contract, in accordance with
its clause 8. It equally noted that the Respondent challenged the competence of FIFA on
the grounds of the nationality of the player, who according to the Respondent is Country B
and not Country A. Lastly, the DRC confirmed that the Respondent also disputed the
applicable law to these proceedings.
31. Along these lines, the DRC remarked that the longstanding jurisprudence of the Football
Tribunal (FT) denotes that the FIFA regulations prevail over another national law chosen by
the parties. In line with this reasoning, the objective of the RSTP, and the FIFA regulations
in general, is to create a standard regulatory framework to which all actors within the
football community are subject to and can trust.
32. This objective would not be achievable if the FIFA bodies had to apply the national law of a
specific party to each dispute brought before it. It is in the interest of football, for instance,
that the remuneration of a player or a club is based on uniform criteria and not on
provisions of national legislation which may vary considerably from one country to another.
pg. 13
33. Therefore, the DRC confirmed that it is not appropriate in the matter at hand to apply
specific aspects of a particular national law (i.e., Country B Law), but rather the RSTP, the
general principles of law and, where it exists, the well-established jurisprudence of the FT.
34. In continuation, the DRC turned to the challenge of the club regarding the competence of
FIFA on the grounds that the player holds Country B citizenship. In accordance with art. 22
par. 1 lit. b) in conjunction with art. 24 of the RSTP, FIFA is competent to deal with
employment-related disputes between a club and a player of an international dimension,
unless an independent arbitration tribunal guaranteeing fair proceedings exists at national
level.
35. The wording of the article in question clearly implies that the first condition that needs
compulsorily to be fulfilled in order for FIFA to be competent to hear an employmentrelated dispute between a club and a player is that said dispute has an “international
dimension”. This means that FIFA is only competent to hear an employment-related dispute
between of such kind when the parties have different nationalities.
36. By this token, the jurisprudence of the FT confirms that in cases where a player has dual
citizenship, in general the case lacks international dimension. However, jurisprudence of
FT and CAS also allows exceptions from this general principle. In particular, in the case of
players holding dual nationality, the registration of a player is a determining factor when
assessing if the international dimension is present, due to the fact that clubs may enjoy
benefits in registering a player with a certain nationality, inter alia, given to regulations on
limitations of home-grown players/foreign quota.
37. Bearing in mind the foregoing, the DRC was observant of the fact that in accordance with
the contract, the player was indicated as Country A national. Equally, per the information
provided by the B FA and available in TMS (although the player has no influence over such
registration), the player was registered as Country A national with the club.
38. Given the above constellation, and the burden of proof combined with the fact that the
club has not provided any evidence that the player holds Country B nationality, since no
Country B passport of the player or any other relevant evidence has been provided, the
DRC confirmed that the dispute at hand is of international dimension.
39. In continuation, the DRC underlined that in accordance with art. 22 par. 1 lit. b) of the RSTP,
FIFA is, in principle, competent to hear an employment-related dispute between a club and
a player of an international dimension. Nevertheless, the parties may explicitly opt in
writing for such dispute to be decided by an independent arbitration tribunal that has been
established at national level within the framework of the association and/or a collective
bargaining agreement. Any such arbitration clause must be included either directly in the
contract or in a collective bargaining agreement applicable on the parties. The independent
national arbitration tribunal must guarantee fair proceedings and respect the principle of
equal representation of players and clubs.
pg. 14
40. In this context, the DRC proceeded to examine whether the employment contract at the
basis of the present dispute contained a clear and exclusive jurisdiction clause in favour of
the NDRC of Country B. In this respect, it referred to the cited clause 8.2 of the employment
contract, as set out above, according to which:
“Any disputes regarding proprietary rights and non-proprietary rights which may be subject
to an arrangement and which may arise in connection with the execution, validity,
performance and termination of the Contract, occurring in connection with the organization
and playing football, shall be submitted by the Parties to exclusive settlement by the Football
Arbitration Court of the Country B Football Association”.
41. After analysing the wording of the jurisdiction clause, the DRC concluded that such clause
was indeed clear and exclusive in favour of the competence of the NDRC of Country B.
42. Having established the foregoing, the DRC went on to analyse the further pre-requisites for
establishing the competence of a NDRC, in particular the principle of equal representation
of players and clubs, which is one of the very fundamental elements to be fulfilled, in order
for a national dispute resolution chamber to be recognised as such.
43. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of
Players, in the FIFA 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 (…).”
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”.
44. With the aforementioned principles in mind, the DRC turned to the documentation
presented by the Respondent referred in particular to articles 22, 35, 51 and 52 of the B FA
Statutes, as well as Chapter 11, art. 11 and Chapter 4, art. 22 of the NDRC of Country B
Regulations, cited above in the relevant section.
45. Considering the foregoing rules, the DRC concluded that club representatives enjoy more
influence than player representatives in the nomination of members of the NDRC of
Country B, which leads to an imbalance when the parties are indicating their members to
pg. 15
compose a specific panel, in that either the two appointed representatives will nominate a
third member:
a.
b.
c.
indicated by the clubs, generating an imbalance towards players;
indicated by the players, generating an imbalance towards clubs; or
indicated by the Management Board of the B FA (be those the 9 arbitrators from the
list of the 5 of the Praesidium), generating an imbalance towards players, because
they have no influence in this nomination in accordance with art. 22 and 35 of the
Statutes (since the player have no delegates in the general assembly of the B FA).
46. At this point, the DRC underlined that contrarily to what was raised by the Respondent, the
NDRC of Country B does not follow the same composition and standard of the FIFA DRC. In
fact, the latter requires a consensus between the players and the clubs for the appointment
of the Chairperson and Deputy Chairpersons, while the remaining members (30) are all half
indicated at the initiative of the player representatives (i.e., FIFPRO), and the other half by
clubs, leagues, members associations and confederations. In the case of the NDRC of
Country B, that scenario is not present, in that the necessity of consensus between the
players and the clubs for the appointment of members of the NDRC of Country B by the
Board of the B FA does not exist.
47. As such, the DRC rejected the parallelism drawn by the Respondent between the NDRC of
Country B and the FIFA DRC. In doing so, the DRC was eager to underline that the
Respondent was not clear to read the letter by the Country B Players’ Union brought to the
file, which does not state what the Respondent alleged in its final comments. Quite the
opposite, the letter confirms that the members of the NDRC of Country B have a
respectable curricula, not that they have been appointed in line with what that union
believes to be adequate in terms of player representation.
48. On the basis of the foregoing, the DRC rejected the position of the Respondent and
confirmed it is competent to hear the dispute as to the substance.
49. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition), and
considering that the present claim was lodged on 28 July 2022, the July 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
50. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 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. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
pg. 16
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
51. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
52. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties dispute whether the Respondent had just
cause to terminate the contract: according to the Claimant, it did not; the Respondent in
turn argued that it had said just cause based on the Resolution of the B FA.
53. In this context, the Chamber recalled that Country B Law or the regulations of the B FA do
not apply to the matter at hand. As such, and given that the player was dismissed on the
grounds of his lack of participation in the season due to an injury, the DRC concluded that
the club did not have just cause to terminate the contract. The Chamber was eager to recall
that appearance of a player in fewer than 10 % of official matches constitutes a sporting
just cause pursuant to art. 15 of the Regulations which provision can be invoked only by a
player (established professional) and not by a club. For the sake of completeness, the DRC
also remarked that the regulations invoked by the Respondent to justify the termination of
the contract are not in line with the Regulations, and therefore cannot constitute just cause
for such termination, otherwise it would put the players at the mercy of their clubs.
54. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent, and turned to the calculation of the amount of compensation payable to the
player by the club in the case at stake.
55. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due consideration
for the law of the country concerned, the specificity of sport and further objective criteria,
including in particular, the remuneration and other benefits due to the player under the
existing contract and/or the new contract, the time remaining on the existing contract up
to a maximum of five years, and depending on whether the contractual breach falls within
the protected period.
pg. 17
56. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
57. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
58. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of CURRENCY COUNTRY B 516,000 net (i.e., CURRENCY
COUNTRY B 43,000 net times 12) serves as the basis for the determination of the amount
of compensation for breach of contract.
59. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages. The Chamber outlined that the Respondent had requested the
production of certain documents in his submissions, which the DRC duly noted. However,
the DRC was comforted with the information provided in the course of the proceedings as
well as the information available in TMS regarding the player’s new employment situation,
and therefore found it unnecessary to order the production of any additional
documentation.
60. Indeed, the player found employment with clubs in Country C and Country B. In accordance
with the pertinent employment contracts, the player was entitled to approximately
CURRENCY COUNTRY B 70,200 in Country C and CURRENCY COUNTRY B 175,510 in
Country B. Therefore, the Chamber concluded that the player mitigated his damages in the
total amount of CURRENCY COUNTRY B 245,710, that is, the sum of the two cited figures.
61. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
pg. 18
termination took did not take place due to said reason, and therefore decided that the
player shall not receive additional compensation.
62. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of CURRENCY COUNTRY B 270,290 net to the player (i.e., CURRENCY COUNTRY B 516,000
net minus CURRENCY COUNTRY B 245,710), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter. The DRC
confirmed that because of the wording of the relevant contract, this amount should be paid
net of taxes to the player.
63. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 22 July 2022 until the date of effective payment.
ii. Compliance with monetary decisions
64. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
65. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
66. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
67. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
68. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of
the Regulations.
pg. 19
d. Costs
69. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
70. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
71. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 20
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, A.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, B, has to pay to the Claimant, CURRENCY COUNTRY B 270,290 net as
compensation for breach of contract without just cause plus 5% interest p.a. as from 22 July
2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 21
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 22