Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 April 2014,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Ivan Gazidis (England), member
on the claim presented by the player,
Player P, from country A
as Claimant
against the club,
Club S, from country E
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 17 December 2007, Player P, from country A (hereinafter: the Claimant), and
Club S, from country E (hereinafter: the Respondent), signed an employment
contract (hereinafter: the employment contract) that was valid from 14
December 2007 until 31 December 2008 or the final match of the national
competition (whichever occurs first).
2.
The annexe to the contract stipulates that the Claimant will receive:
an annual bonus of USD 40,000, the first USD 20,000 to be paid upon
signing the contract, and the remaining USD 20,000 to be paid in two
equal instalments on 14 March 2008 and 14 April 2008.
a monthly salary of USD 10,000 as from February 2008
3.
Clause 4 of the contract states that the Claimant submits, voluntarily, the
contract to the jurisdiction and competence of the country E Football Federation
to settle any dispute arising from the execution or interpretation of the contract.
4.
Clause 13 of the contract states that every 120 days, the technical staff will
evaluate the player and the continuation and validity of the contract will depend
on this. The evaluation will take into consideration the number of games played
in the national championship, sporting performance, conduct and fitness in both
games and training. In the event that the evaluation of performance and fitness
is negative, the Respondent can terminate the contract automatically without a
mediation procedure, and without being able to present a claim.
The clause also prevents the Claimant, in this situation, from pursuing a civil or
labour procedure, judicial or extrajudicial procedure, or from submitting a claim
to the country E Football Federation or FIFA.
5.
On 23 July 2008, the Respondent sent the player a letter confirming that they
were terminating the employment contract on the basis of Clause 13 of the
contract.
6.
The Claimant signed an employment contract with Club F, from country P on 26
August 2008, for the 2008/2009 sporting season. Under the new contract the
Claimant would receive an amount of EUR 3,950 per month, plus a Christmas
bonus of EUR 3,950.
7.
On 29 August and 3 November 2008, the representative of the Claimant
submitted a claim to FIFA for breach of contract.
8.
According to the Claimant:
Player P, from country A / Club S, from country E
2/11
On 10 July 2008 the coach of the Respondent informed the Claimant that
he was no longer required.
On 13 July 2008 the board of the Respondent apparently contacted the
Claimant in order to reach an agreement for the termination of the
contract, and proposed to the Claimant that the Respondent would pay
the amounts matured by that date, i.e. two bonus instalments of USD
10,000 each added to 1 ½ matured monthly salary (USD 15,000).
Furthermore, the Respondent would pay another 1 ½ salary (USD 15,000)
giving a total of USD 50,000.
The parties did not reach an agreement and on 23 July 2008 the
Respondent terminated the contract.
The Respondent neglected to pay salaries and instalments of the signing
on fee.
9.
The Claimant therefore requested USD 20,000 as unpaid instalments of the
signing fee, USD 17,666 as unpaid salaries for June and part of July 2008 plus
USD 52,334 from the remainder of the contract, which corresponds to the total
amount of USD 90,000 plus 5% interest as from the date of each payment. The
Claimant also requested disciplinary sanctions.
10.
On 23 December 2008 the Respondent responded stating:
That FIFA was not competent to decide on the matter since the relevant
national dispute resolution chamber (NDRC) of the country E Football
Federation was installed in July 2008.
The agreement was terminated in accordance with Clause 13 of the
contract.
Clause 4 of the contract requires a dispute to be submitted to the NDRC of
the country E Football Federation.
11.
The Respondent also states that the Claimant’s calculation is, in any case,
incorrect and that the Claimant is owed only USD 5,000 for the second half of
June 2008, USD 5,000 for the first half of July 2008, and USD 2,333 for 16-22 July
2008. This, minus a “debt” of USD 328 and USD 4,520 in tax leaves a total of USD
7,485.
12.
The Respondent states that it does not owe the Claimant the remaining USD
20,000 since the full amount was an “annual bonus” and conditional on the
Claimant completing the full term of his contract. Since he only provided his
Player P, from country A / Club S, from country E
3/11
services from February until July 2008, he is not entitled to the second half of the
bonus.
13.
On 7 May 2009 FIFA requested that the Respondent provided the relevant
documents demonstrating that the NDRC of the country E Football Federation
should be considered the competent body to decide on the matter.
14.
On 21 May 2009 the country E Football Federation sent a letter stating that:
The NDRC is an autonomous body with full independence in the taking of
its decisions. It was created following the requirements of FIFA.
The constitution of the NDRC is in accordance with the requirements of
FIFA, and uses equal representatives of clubs and players along with an
impartial chair.
It was created in May 2008 and its regulations were sent to FIFA on 27
June 2008.
The NDRC acts in an absolutely impartial manner.
15.
On 22 August 2011 the country E Football Federation presented a copy of the
“Reglamento de la Cámara de Mediación y Resolución de Disputas de la
Federación de pays E de Fútbol” dated 14 May 2008 (hereinafter: country E
Football Federation NDRC Regulations).
16.
On 2 July 2012 the Claimant provided his response, stating that:
The NDRC Regulations were only approved in May 2008, and sent to FIFA
in June 2008, which is after the employment contract had been concluded
between the Claimant and the Respondent.
At the time the employment contract was signed, even FIFA had not yet
established the minimum guidelines for an NDRC.
Clause 4 of the employment contract is manifestly favourable to the
Respondent and was unilaterally imposed by the Respondent and should
be considered null and void.
Even if Clause 4 is valid, the choice of forum did not exist at the time the
contract was concluded and is therefore ineffective. FIFA’s jurisprudence
requires an explicit and clear reference to the national regulations that
provide such a competence.
It is a requirement that the Claimants’ representatives are appointed by a
players’ association affiliated to FIFPro or, where no such association
Player P, from country A / Club S, from country E
4/11
exists, on the basis of a selection process agreed by FIFA or FIFPro.
However, the Asociación de Futbolistas del pays E had been suspended by
FIFPro.
According to a news item published on the FIFPro website on 18 August
2011, FIFPro considers that the Asociación de Futbolistas del pays E
“operates in absolute complicity with the directors of the Federation…”
Furthermore, the publication states that “FIFPro will report to FIFA that
the NDRC of country E does not comply with FIFA’s requirements…”
17.
On 5 December 2013, the Court of Arbitration for Sport (CAS), based inter alia on
the fact that the independence of the chairman of the “Special Arbitral
Tribunal“ and the “Mediation and Dispute Resolution Chamber” is not
guaranteed, confirmed that the national bodies of the country E Football
Federation do not fulfill the minimum requirements as set by the FIFA
Regulations.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or
the Chamber) analysed whether it was competent to deal with the matter at
stake. In this respect, it took note that the present matter was submitted to FIFA
on 29 August 2008. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 3 of the Procedural Rules).
2.
In this respect, the Chamber first wished to clarify that contrary to the information
contained in FIFA’s letter dated 23 April 2014 by means of which the parties were
informed of the composition of the Chamber, the members Mr M and Mr Y
refrained from participating in the deliberations in the case at hand, due to the
fact that the member M has the same nationality as a party involved in the
present proceedings. In order to comply with the prerequisite of equal
representation of club and player representatives, also the member Mr Y refrained
from participating and thus the Dispute Resolution Chamber adjudicated the case
in the presence of three members in accordance with art. 24 par. 2 of the
Regulations on the Status and Transfer of Players.
3.
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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
Player P, from country A / Club S, from country E
5/11
4.
As a consequence, the Dispute Resolution Chamber would, in principle, be the
competent body to decide on the present litigation involving an country A player
and an country E club regarding an apparent breach of an employment contract
concluded between the parties. The Chamber did, however, acknowledge that the
matter of competence was contested by one of the parties, and recognised that it
would have to return to the issue for further deliberation at a later stage of the
considerations. Subsequently, the Chamber analysed which edition of the
Regulations on the Status and Transfer of Players would be applicable as to the
substance of the matter, should the Chamber eventually conclude that it was the
competent body. In this respect, the Chamber noted that the present claim was
lodged on 29 August 2008 and therefore deemed that the 2008 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations)
which came into force on 1 January 2008, is applicable to the matter at hand as to
the substance.
5.
Turning its attention to the mater of jurisdiction once more, the Chamber noted
that, on the one hand, the Respondent declared that the agreement signed
between the parties contained a clause in which it is clearly stipulated that
disputes arising from the agreement should be dealt with under the jurisdiction of
the country E Football Federation. On the other hand, the Chamber
acknowledged that the Claimant contested the competence of the deciding
bodies of the country E Football Federation and insisted on the fact that FIFA has
jurisdiction to deal with the present matter.
6.
Taking into account the above, the Chamber acknowledged the existence of a
clause in the employment contract referring the parties to the country E Football
Federaiton for the settlement of disputes. However, the Chamber emphasised that
the country E Football Federation NDRC Regulations entered into force in May
2008, whereas the employment contract was signed on 17 December 2007.
Therefore the Chamber first of all concluded that, on 17 December 2007, the
parties to the contract could simply not have agreed to submit their potential
disputes to the relevant arbitration body of the country E Football Federation,
which started its activity only in May 2008. In this respect, the Chamber pointed
out that the arbitration clause in question did also not specify a particular
deciding body of the country E Football Federation under which such disputes
must be submitted.
7.
In continuation, the Chamber emphasised that in accordance with art. 22 lit. b) of
the Regulations it is competent to deal with a matter such as the one at hand,
unless an independent arbitration tribunal, guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs, has been
established at national level within the framework of the association and/or a
collective bargaining agreement. With regard to the standards to be imposed on
an independent arbitration tribunal guaranteeing fair proceedings, the Chamber
referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the
members of the Chamber further referred to the principles contained in the FIFA
Player P, from country A / Club S, from country E
6/11
National Dispute Resolution Chamber (NDRC) Standard Regulations, which were
issued on 1 January 2008.
8.
In this respect, the Chamber turned its attention 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, 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 fouryear 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 regard, 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”.
9.
In view of the above, the Chamber went on to examine the documentation
presented by the country E Football Federation. In this respect, the Chamber
noted that art. 3 a) of the country E Football Federation NDRC Regulations
stipulated that the president of the NDRC would be appointed by the country E
Football Federation.
10.
In view of this, the members of the Chamber were of the unanimous opinion that
the NDRC of the country E Football Federation did not fulfill one of the conditions
stipulated in art. 22 lit. b) of the Regulations - and illustrated in art. 3 par. 1 of the
FIFA NDRC Regulations -, being that the national arbitration tribunal needs to
respect the principle of equal representation between players and clubs. In this
respect, in accordance with previous decisions of the DRC, the Chamber
emphasised that having the president or chairman of an NDRC appointed by the
federation did not satisfy the aforementioned requirement of equal
representation. On this point, the Chamber highlighted the decision of the CAS on
5 December 2013 in which CAS confirmed that the NDRC of the country E Football
Federation did not satisfy the requirements stipulated in art. 22 lit. b) of the
Regulations.
11.
On account of all the above, the Chamber therefore established that the
Respondent’s objection towards the competence of FIFA to deal with the present
matter has to be rejected, and that the Dispute Resolution Chamber is competent,
on the basis of art. 22 lit. b) of the Regulations, to consider the present matter as
to the substance.
Player P, from country A / Club S, from country E
7/11
12.
Its competence having y been established, the Chamber next turned its attention
to the breach of contract. In this respect, the Chamber highlighted that it was
uncontested that the Respondent was responsible for terminating the contract, on
23 July 2008, and that the fundamental issue was whether the Respondent had
just cause.
13.
In this respect, the Chamber observed that the Respondent argued that it had
terminated the contract in accordance with clause 13 of the employment contract.
The Chamber, analysing the clause in question, observed that it stipulated that the
club’s technical staff would evaluate the player every 120 days, and could
terminate the contract without mediation should the evaluation be negative. In
particular the Chamber observed that the apparent criteria for this evaluation
included the number of games played in the national championship, sporting
performance, conduct and fitness in both games and training.
14.
In this respect, the Chamber held that it could not accept said clause as being valid
since it was potestative, as it provides for a unilateral termination right, without
any compensation, to the benefit of the club only. In addition to the unilateral
character of clause 13, the application of said article appears to be linked to the
player’s physical fitness and performance, which, in accordance with the
Chamber’s constant jurisprudence, cannot be considered a valid reason to
terminate an employment contract. Furthermore, the Chamber deemed that the
clause provided no objective criteria for exercising the right to terminate the
employment contract. Therefore, the Chamber decided that the Respondent could
not legitimately terminate the contractual relation with the Claimant by making
use of clause 13 of the employment contract. Consequently, the Chamber rejected
the Respondent’s argument in this respect, and concluded that the Respondent
had terminated the employment contract without just cause.
15.
In continuation, and prior to establishing the consequences of the breach of
contract without just cause by the Respondent in accordance with art. 17 par. 1 of
the Regulations, the Chamber held that it had to address the issue of any unpaid
remuneration at the moment the contract was terminated by the Respondent.
16.
In this respect, the Chamber noted that the Respondent admits that it owes the
player for the second half of June 2008. Furthermore, the Chamber emphasised
that it did not provide any evidence to demonstrate that it paid the first half of
June 2008. The Chamber referred to art. 12 par. 3 of the Procedural Rules,
according to which any party claiming a right on the basis of an alleged fact shall
carry the burden of proof. In view of this, the Chamber deemed that the full
amount for June 2008 – USD 10,000 – remained outstanding.
17.
Furthermore, the Chamber highlighted that the Respondent admitted owing 22
days of July 2008, however since the contract was terminated on 23 July 2008, the
Chamber concluded that in fact 23 days of July 2008 were outstanding, an amount
of USD 7,419.
Player P, from country A / Club S, from country E
8/11
18.
The Chamber continued by considering the two instalments of USD 10,000 which
were due on 14 March 2008 and 14 April 2008 respectively. In this regard, the
Chamber acknowledged that the Respondent had not contested the fact that this
instalment had not been paid to the Claimant. However, the Chamber noted that
the Respondent had argued that the instalments were part of an “annual bonus”
and the full amount was being paid dependent on the player completing a full
year. On this point, the Chamber noted first of all that the contract did not specify
that these instalments were due only if the player remained for the second half of
the contract. Furthermore, the Chamber emphasised that the payments had fallen
due on 14 March and 14 April 2008 respectively, while the employment contract
was still in existence, and while the Respondent was continuing to pay the
Claimant’s salary in return for his footballing services. The Chamber deemed that
such payments were due on the dates stipulated in the contract and following a
failure to pay the amounts on time, could not then retrospectively be made
subject to an assessment of the player several months later in July 2008. Therefore,
the Chamber concluded that the two instalments of USD 10,000 are to be
considered outstanding payments due to the Claimant.
19.
Finally, the Chamber rejected the argument of the Respondent that deductions for
a “debt” and for tax should be made to the above outstanding payments. In this
respect, the Chamber emphasised that no evidence for making such deductions
had been provided by the Respondent, and thus, citing the principle of the burden
of proof once more, the deductions would not be included in the overall
calculation. Therefore, the Chamber calculated that the total amount of
outstanding remuneration is USD 37,419 plus 5% interest p.a. as of the date each
payment was contractually due.
20.
Having established the above, the Chamber turned its attention to the question of
the consequences of the unilateral termination of the employment contract by the
Respondent without just cause on 23 July 2008.
21.
In doing so, the members of 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 Claimant 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.
22.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains 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
Player P, from country A / Club S, from country E
9/11
clause was included in the employment contract at the basis of the matter at
stake, and in any case, such a clause was never invoked by either of the parties.
23.
Subsequently, the Chamber considered the amount that was due to the player in
accordance with the employment contract, for the remainder of the contractual
term, as from the date of termination by the Respondent, i.e. from 24 July 2008
until 31 December 2008. In this respect, the Chamber calculated that amount to be
USD 52,581.
24.
In continuation, the Chamber verified as to whether the Claimant 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 Dispute Resolution Chamber, 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.
25.
In this respect, the Chamber noted that the Claimant signed an employment
contract with Club F, from country P on 26 August 2008, for the 2008/2009
sporting season. Under the contract the player would receive an amount of EUR
3,950 per month, plus a Christmas bonus of EUR 3,950.
26.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC decided that the Respondent must pay
the Claimant the amount of USD 25,500 which was to be considered a reasonable
and justified amount of compensation for breach of contract without just cause in
the matter at hand. Furthermore, the Chamber deemed that 5% interest p.a. as
from the date of the claim must also be imposed.
27.
The Chamber concluded its deliberations in the present matter by establishing
that any further claim filed by the Claimant is rejected.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player P, is partially accepted.
2.
The Respondent, Club S, has to pay to the Claimant outstanding remuneration
in the amount of USD 37,419, plus 5% interest p.a. as of the date each payment
fell due, within 30 days as from the date of notification of this decision.
Player P, from country A / Club S, from country E
10/11
3.
The Respondent, Club M, is ordered to pay to the Claimant the amount of USD
25,500 plus 5% interest p.a. as from 29 August 2008 until the date of effective
payment, within 30 days as from the date of notification of this decision.
4.
In the event that the amount due to the Claimant in accordance with the abovementioned point 2. plus interest are not paid by the Respondent within the stated
time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claims lodged by the Claimant are rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances are to be made and to notify the Dispute
Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Player P, from country A / Club S, from country E
11/11
Jérôme Valcke
Secretary General
Encl.
CAS directives
Player P, from country A / Club S, from country E
12/11