Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 April 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Leonardo Grosso (Italy), member
Philippe Diallo (France), member
Todd Durbin (USA), member
on the claim presented by the player,
Player 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 case
Facts relating to the preliminary issue of competence
1.
On 16 June 2011, the Player of Country B, Player A (hereinafter: player or
Claimant) and the Club of Country D, Club C (hereinafter: club or Respondent)
signed an employment contract valid as from 1 July 2011 until 30 June 2014.
2.
The club contested FIFA’s competence to deal with the claim lodged by the player
in front of FIFA, on 25 February 2014, maintaining that the Dispute Resolution
Chamber of the Football Federation of Country D is competent based on the
Professional Football League of Country D’s statement dated 3 February 2014 and
the addendum dated 1 February 2014 mentioned in points I./8. and I./9.,
respectively, below.
3.
The player insists that FIFA has competence to decide on the present matter as to
the substance. In this regard, the player highlights, inter alia, that his claim is also
based on the club’s financial obligations arising from a tripartite loan contract,
which stipulates inter alia that the “parties submit to the exclusive jurisdiction of
the FIFA competent judicial body”.
4.
As regards jurisdiction, clause 12.1 of the employment contract stipulates that
“Any dispute between the Parties arising from or in connection with this
Agreement, …, shall be settled amicably. Unless the Parties shall reach an amiable
resolution then any dispute shall be submitted to the competent bodies of the
Football Federation of Country D and the Professional Football League with
respect of Legislation of Country D.”
5.
According to the club, by stipulating that the bodies of the Football Federation of
Country D and Professional Football League are competent in the event of a
dispute between the parties, the parties, e contrario, expressly excluded any other
judicial bodies.
6.
The club further considers that the validity of the parties’ agreement on the
choice of forum is independent of the question as to whether the chosen deciding
bodies meet the requirements of art. 22 lit. b of the FIFA Regulations.
7.
The club holds the view that the player should have presented his claim in front of
the DRC of the Football Federation of Country D.
8.
In support of its position, the club presented a statement issued by the
Professional Football League of Country D , dated 3 February 2014, in which the
Player A, Country B / Club C, Country D
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latter informs the clubs that according to its decision of 20 January 2014 and the
decision of the ExCo of the Football Federation of Country D of 1 February 2014,
the activities of the judicial bodies within the Professional Football League of
Country D ceased as of 1 February 2014 in accordance with the addendum to the
Football Federation of Country D/Professional Football League of Country D
convention, the latter document being dated 21 June 2013 and valid between 1
July 2013 and 30 June 2014, in accordance with which jurisdiction was previously
split between the Football Federation of Country D and the Professional Football
League of Country D depending on the league in which the club plays.
9.
According to said addendum, signed between the Football Federation of Country
D and Professional Football League of Country D on 1 February 2014 and
“concluded for the 2013/2014 season”, as of 2 February 2014, disputes involving
exclusively clubs participating in the first League and “their senior players” fall
under the authority of jurisdictional bodies within the Football Federation of
Country D.
10.
The club further asserts that the NDRC of the Football Federation of Country D
meets all the requirements set forth in art. 22 lit. b) of the FIFA Regulations.
11.
In support of such position, the club presented the following documents:
a. Letter from the Professional Football League of Country D dated 25
August 2014 in which it explains the constitution of the NDRC of Country
D and concludes that said deciding body meets the requirements;
b. 2013 edition of the Football Federation of Country D Regulations on the
status and transfer of football players, which contains the following
particulars regarding the jurisdictional body:
i. According to the Football Federation of Country D Statutes any
dispute arising from or in connection with football activity in
Country D involving inter alia clubs and players shall be settled
exclusively by the Football Federation of Country D jurisdictional
committees with the exclusion of ordinary courts of law for labour
disputes between clubs and players. If the employment contract
does not have any clause regarding jurisdiction of ordinary courts,
the “jurisdictional body/court of law petitioned by the Plaintiff has
jurisdiction”.
ii. Possibility of appeal in front of Football Federation of Country D or
Professional Football League Appeal Committee, decisions of which
can be appealed in front of the Court of Arbitration for Sport.
iii. Applicable to all claims received as of 14 August 2013.
iv. The NDRC of the Football Federation of Country D is composed of
5 members with a four-year renewable term: a) a president elected
Player A, Country B / Club C, Country D
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v.
vi.
vii.
viii.
ix.
by the representatives of the players and clubs from a list of at
least five names drawn by the Football Federation of Country D
Executive Committee, b) two player representatives nominated by
the Association of Amateur and Non amateur Footballers allegedly
recognised by FIFPro, one of them acting as vice president of the
NDRC, c) two club representatives nominated by the Football
Federation of Country D Executive Committee.
The NDRC of the Football Federation of Country D adjudicates in
panels composed of at least three members, including the NDRC
president and vice president and shall always include an equal
number of player and club representatives.
NDRC members can be replaced during their term by the Football
Federation of Country D Executive Committee upon motivated
proposal of the NDRC President.
The jurisdiction of the jurisdictional committees is the one valid on
the date of submission of the statement of claim.
Statement of claim shall be filed in writing in Language of Country
D. Note: according to the letter of the Professional Football League
(cf. point I./11.a. above), in case of foreign players, if they are not
represented by the Footballers Union of Country D, procedures are
conducted in one of the official FIFA languages).
The party filing a claim before the NDRC shall bear the burden of
proof.
Facts relating to the substance of the matter
12.
In accordance with the employment contract, the player was entitled to receive,
inter alia, as from 1 July 2013 until 30 June 2014, the total net amount of EUR
200,000 payable in 12 equal monthly instalments of EUR 16,666.66 each.
13.
The employment contract further stipulates that the monthly instalments are due
until the 25th day of the next month.
14.
During the period as from 1 August 2013 until 31 May 2014 the player was
registered on a loan basis with the Club of Country E, Club F.
15.
According to the relevant loan agreement, which was signed by the club, the
player and Club F, the Club of Country D undertook to pay the player’s monthly
salary of EUR 16,666.66 to the player during the loan period and the player was
not entitled to receive any other amounts.
Player A, Country B / Club C, Country D
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16.
On 25 February 2014, with a subsequent amendment on 8 July 2014, the player
lodged a claim in front of FIFA against the club maintaining that the latter had
failed to pay the total amount of EUR 99,999.96 relating to his salary as from
January 2014 until June 2014, which fell due as of 25 February 2014 until 25 July
2014, respectively.
17.
Therefore, the player asks to be awarded the amount of EUR 99,999.96 plus 5%
interest as from the respective due dates.
18.
After having been provided with the amended claim, as to the substance of the
matter, the club presented documents showing that the player’s initial claim
relating to salaries of up to January 2014 was settled amicably, with the exception
of the player’s remuneration for January 2014.
19.
As regards the player’s claim relating to the January 2014 salary as well as the
amended claim pertaining to further outstanding salaries until the ordinary expiry
of the employment contract, the club points out that, on 25 February 2014, when
the player lodged his initial claim, the January 2014 salary was not yet overdue, as
a result of which he cannot claim payment as of that day.
20.
The club further explains that the delay in payment of the player’s receivables was
caused by the delay in payment by Club F of the loan compensation.
21.
The insolvency administrators of the club have asked that proceedings in which
the club is involved are suspended in the light of the insolvency procedure that
has been opened against this club on 4 February 2015 and National Law of
Country D.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 25
February 2014. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
Player A, Country B / Club C, Country D
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combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Player of Country B
and a Club of Country D.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of the Professional Football
League of Country D’s statement dated 3 February 2014 and the addendum,
dated 1 February 2014, to the Football Federation of Country D/Professional
Football League of Country D convention of 21 June 2013 (cf. points I./2., I./8. and
I./9. above). The Respondent further holds that the relevant national deciding
body meets all the requirements set forth in art. 22 lit. b) of the FIFA Regulations
on the Status and Transfer of Players.
4.
The Chamber noted that the Claimant rejected such position and insisted that
FIFA has jurisdiction to deal with the present matter highlighting, inter alia, that
his claim is also based on the club’s financial obligations arising from the tripartite
loan contract, which stipulates inter alia that the “parties submit to the exclusive
jurisdiction of the FIFA competent judicial body”.
5.
Taking into account the above, the Chamber emphasised that, in accordance with
art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players, 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 National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force
on 1 January 2008.
6.
While analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse
whether the contracts at the basis of the present dispute actually contain a
jurisdiction clause.
7.
Having said this, the Chamber noted that the tripartite loan agreement, which is
at the basis of the Claimant’s claim pertaining to his income during the relevant
Player A, Country B / Club C, Country D
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loan period, stipulates inter alia that the “parties submit to the exclusive
jurisdiction of the FIFA competent judicial body”.
8.
In the light of such exclusive and clear clause assigning jurisdiction to FIFA, the
Chamber decided that in accordance with art. 22 lit. b) of the FIFA Regulations on
the Status and Transfer of Players it is competent to deal with the claim of the
Claimant based on the relevant tripartite loan agreement.
9.
In continuation, the members of the Chamber turned their attention to clause
12.1 of the employment contract, which stipulates that “Any dispute between the
Parties arising from or in connection with this Agreement, …, shall be settled
amicably. Unless the Parties shall reach an amiable resolution then any dispute
shall be submitted to the competent bodies of the Football Federation of Country
D and the Professional Football League with respect of Legislation of Country D.”
10.
In this respect, and regardless of the fact that clause 12.1 of the employment
contract contains a reference to dispute resolution at national level, the Chamber
pointed out that such wording was unclear in the sense that it merely refers to
“the competent bodies of the Football Federation of Country D and the
Professional League with respect of Legislation of Country D” and not to one
specific deciding body in the sense of art. 22 lit. b) of the aforementioned
Regulations.
11.
Therefore, and in accordance with its well-established jurisprudence, the Chamber
held that clause 12.1 of the employment contract cannot be considered as a clear
jurisdiction clause in favour of one specific national deciding body within the
framework of the Football Federation of Country D or the Professional Football
League and, therefore, cannot be applicable.
12.
In this context, the Chamber took note of the further documentation presented
by the Respondent in support of its position, in particular of the addendum to the
Football Federation of Country D/Professional Football League of Country D
convention, which was signed between the Football Federation of Country D and
Professional Football League of Country D on 1 February 2014 and “concluded for
the 2013/2014 season”. In accordance with said addendum, as of 2 February 2014,
disputes involving exclusively clubs participating in the first League and “their
senior players” fall under the authority of jurisdictional bodies within the Football
Federation of Country D.
13.
However, the members of the Chamber concurred that this additional
documentation presented by the Respondent in support of its position does not
correspond in time with the date on which the employment contract between the
Player A, Country B / Club C, Country D
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parties was signed, i.e. 16 June 2011. Indeed, the relevant set of rules contained in
the documentation referred to in the previous consideration only came into force
long after the Claimant had signed the employment contract with the
Respondent and are, therefore, not applicable to the contractual relationship
between the parties. Consequently, the DRC decided that said documentation
does not alter its aforementioned finding that the employment contract does not
include a clear arbitration clause in favour of one of the national deciding bodies,
i.e. either of the Football Federation of Country D or of the Professional Football
League of Country D.
14.
Having established that the first criterion for the recognition of the competence
of a national decision-making body is not fulfilled in the present matter, the
Chamber deemed unnecessary to examine any further points which would need
to be assessed before concluding to the competence of a national deciding body.
15.
In view of the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter has to be rejected and
that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, to consider the present matter as to the substance.
16.
In continuation, 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
(edition 2015), and considering that the present claim was lodged on 25 February
2014, the 2012 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
17.
With respect to the request put forward by the insolvency administrators of the
Respondent to suspend proceedings in which the Respondent is involved, the
Chamber stressed that in accordance with jurisprudence of both the DRC and the
Court of Arbitration for Sport, bankruptcy/insolvency procedures do not affect
procedures in front of the DRC. Consequently, so the Chamber, such request has
to be dismissed.
18.
Subsequently, the competence of the Chamber and the applicable regulations
having been established, the Chamber entered into the substance of the matter.
In this respect, the Chamber started by acknowledging all the above-mentioned
facts as well as the arguments and the documentation submitted by the parties.
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.
Player A, Country B / Club C, Country D
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19.
In this respect, the Chamber acknowledged that, on 16 June 2011, the Claimant
and the Respondent signed an employment contract valid as from 1 July 2011
until 30 June 2014.
20.
It was further noted that during the period as from 1 August 2013 until 31 May
2014 the Claimant was registered on a loan basis with the Club of Country E, Club
F, on the occasion of which the Claimant, the Respondent and Club F signed a
loan agreement. According to said loan agreement, the Respondent undertook to
pay to the Claimant his monthly salary of EUR 16,666.66 throughout the loan
period.
21.
In continuation, the Chamber reviewed the claim of the Claimant, who alleges
that the Respondent failed to pay the amount of EUR 99,999.96 relating to his
salary as from January 2014 until and including June 2014. Consequently,
according to the Claimant, the Respondent must be held liable for payment of
said amount plus 5% interest p.a. as of the respective due dates of the relevant
salary payments.
22.
The members of the Chamber then turned their attention to the Respondent,
who points out that at the time when the Claimant lodged his initial claim, the
January 2014 salary was not yet overdue. In addition, the Respondent explains
that the delay in payment of the player’s receivables was caused by the delay in
payment by Club F of the loan compensation.
23.
In continuation, the Chamber established that on the basis of both the
employment contract and the loan agreement the Respondent undertook to pay
to the Claimant his monthly salary of EUR 16,666.66 as from 1 July 2011 until 30
June 2014, thus including the period of time during which the Claimant was
registered with and rendered his services to Club F on a loan basis, until the 25th
day of the following month.
24.
Furthermore, the members of the Chamber noted that the Respondent has not
presented any documentation demonstrating that it has remitted any of the
claimed outstanding salary payments to the Claimant (cf. art. 12 par. 3 of the
Procedural Rules). Above all, the Respondent has not denied that the Claimant
has not received the claimed remuneration as from January 2014 until and
including June 2014.
25.
In this regard, the Chamber highlighted that the alleged delay in payment by Club
F of the loan compensation to the Respondent, which was indicated by the
Respondent as a reason for the delay in payment of the Claimant’s remuneration,
cannot possibly serve as a justification for non-compliance by the Respondent of
Player A, Country B / Club C, Country D
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its contractually agreed obligations with respect to the timely payment of the
Claimant’s salary.
26.
On account of the above, the Chamber decided that, in virtue of the general legal
principle pacta sunt servanda, the Respondent is liable to pay to the Claimant
outstanding remuneration in the amount of EUR 99,999.96.
27.
In addition, taking into consideration the Claimant’s petition, the Chamber
decided to award the Claimant interest at the rate of 5% p.a. on each of the
relevant salary payments as of the day following the day on which the respective
salary payments fell due.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, outstanding remuneration in the amount of
EUR 99,999.96 plus 5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of EUR 16,666.66 as from 26 February 2014;
b. 5% p.a. on the amount of EUR 16,666.66 as from 26 March 2014;
c. 5% p.a. on the amount of EUR 16,666.66 as from 26 April 2014;
d. 5% p.a. on the amount of EUR 16,666.66 as from 26 May 2014;
e. 5% p.a. on the amount of EUR 16,666.66 as from 26 June 2014;
f. 5% p.a. on the amount of EUR 16,666.66 as from 26 July 2014.
4.
In the event that the amount plus interest due to the Claimant is not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
Player A, Country B / Club C, Country D
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upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
5.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 67 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision and
shall contain all the elements in accordance with point 2 of the directives issued by the
CAS, a copy of which we enclose hereto. Within another 10 days following the expiry
of the time limit for filing the statement of appeal, the appellant shall file a brief
stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4
of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Markus Kattner
Player A, Country B / Club C, Country D
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Acting Secretary General
Encl.: CAS directives
Player A, Country B / Club C, Country D
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