Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 19 April 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Takuy a Yam azaki (Japan), member
Tom is lav Kas alo (Croatia), member
Daan de Jong (The Netherlands), member
Abu Nay eem S hohag (Bangladesh), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 6 January 2015, the player of Country B, Player A (hereinafter: the Claimant)
and the club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract (hereinafter: contract), valid from 1 January 2015 until 30
June 2017.
2.
According to clause 5 of the contract, the Claimant was entitled to receive the
following salary:
a)
“For the period 1 January 2015 – 30 June 2015 the gross amount of EUR 2,050
monthly”;
b)
“For the period 1 July 2015 – 30 June 2017 the gross amount of EUR 2,700
monthly”.
3.
Clause 12 of the contract stipulates that disputes, “resulting from the execution of
the present [contract], are to be solved in the following order:
a)
Amiably;
b)
By bringing the dispute to the justice institutions of the Football Federation
of Country D and the Professional Football League”.
4.
A “Contract Termination Agreement” (hereinafter: the Termination Agreement),
dated 7 December 2015, was signed by the Respondent and the Claimant. The
Termination Agreement included the following two provisions:
a)
“The Parties hereby amiably agree to terminate the Civil Convention XXX, and
[the Claimant] is freely released from the club to join any club interested in
his services.
b)
Upon signing this document on 07.12.2015 [the Claimant] waives any financial
claims or litigations in which the two parties may be involved at the signing
date of the termination agreement.”
5.
On 8 December 2015, the Claimant travelled to Country B. The return flight to
Country D was fixed for 12 January 2016.
6.
On 11 January 2016, an employee of the Respondent contacted the Claimant via
WhatsApp. To the Claimant’s (alleged) surprise, the employee of the Respondent
told him not to return to Country D. According to the text messages, the team coach
did not require the Claimant anymore, and that “there is no sense” for him to
return to Country D. The Respondent further informed the Claimant that it will pay
the salary of December 2015, but that no further salary could be paid until the
summer. Moreover, the Claimant’s clothes would be sent to him. The Respondent
also told the Claimant that it will send him the signed Termination Agreement.
Player A, Country B / Club C, Country D
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7.
Further text messages were exchanged on 15 January 2016. The Claimant told the
Respondent that he only received EUR 1,500 as monthly salary for December 2015,
while his salary is EUR 2,000. In reply, the Respondent held that the Claimant
received his salary “divided by 2: Small salary as a foreigner received by you every
month and big salary received by you together with the players. For December small
salary you got it in November with the club employees”. As regards the Claimant’s
possessions, the Respondent told the Claimant that his luggage would be sent to
him “next week”.
8.
On 20 May 2016, the Claimant lodged a claim in front of FIFA, requesting EUR
48,600.
9.
In this context, the Claimant “believes that the club must pay all wages due until
the end of the contract. Whereas the anticipated breach of the contract took place
on the date of 11 January 2016, the total amount of wages due to the end date of
the contract (30 June 2017) corresponds to EUR 48.600”.
10.
Furthermore, as per the Claimant, “the [Respondent] should pay a penalty for the
[Claimant] because of the early termination of the contract and the unfair
dismissal”.
11.
As regards the signed contract termination agreement, the Claimant claims that he
signed this document when he was hired, “with blank spaces and no date”.
According to the Claimant, the Respondent simply used the pre-signed termination
agreement and filled in the dates at a moment which was most convenient for the
Respondent.
12.
The Respondent replied on 13 July 2016 and requested that FIFA:
a)
Dismisses the claim;
b)
Condemns the Claimant to the payment in the favour of the Respondent of
the legal expenses incurred.
13.
In particular, the Respondent primarily contested the competence of FIFA and
referred to Clause 12 of the contract (cf. I.3). According to the Respondent, the
Chamber of Dispute Resolution of Country D meets the minimum procedural
standards for independent arbitration, and as such considers that the claim should
have been submitted to the Chamber of Dispute Resolution of Country D.
14.
With regard to the substance of the claim, the Respondent argued that the contract
was terminated by mutual agreement on 7 December 2015, and that the Claimant
failed to provide any evidence to prove otherwise in this matter.
Player A, Country B / Club C, Country D
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15.
The Respondent further held that the WhatsApp text messages are “maliciously
translated from the language of Country D into English”, and that the Claimant
was aware of the termination agreement.
16.
After being requested to do so by FIFA, on 12 August 2016 the Respondent sent
further documentation in which it argued in favour of the competence of the
Chamber of Dispute Resolution of Country D, including a copy of the “Regulations
on the Status and Transfer of Players of Country D”.
17.
On 15 September 2016 the Claimant submitted his replica. In his replica, the
Claimant firstly insisted on FIFA’s competence, inter alia holding that “the Court of
Country D cannot respect the principle of equal representation once the Club is
from the Country and the player is foreign”.
18.
Moreover, the Claimant reiterated that the contract did not end by mutual
agreement. In particular, the Claimant referred to those parts of the text messages
in which he shows his surprise regarding the Respondent’s statement that he is no
longer needed.
19.
The Claimant further stated that he never knew about an eventual signature of the
Termination Agreement.
20.
In its duplica of 2 June 2017, the Respondent maintained that the Termination
Agreement was signed by mutual consent on 7 December 2015. Furthermore, the
Respondent held that the Claimant never contested the validity of his signature on
the Termination Agreement.
21.
The Respondent further added that a national court of Country D “ruled the
opening of the general insolvency proceedings against [the Respondent]. (…) (A)s
of the opening the insolvency proceedings, all court and out-of-court actions or
enforcement measures intended to monetize the receivables held against the
debtor or the assets of the latter are to be suspended.”
22.
On 4 April 2018, the Football Federation of Country D informed FIFA that the
Respondent is still an affiliated member of the Football Federation of Country D.
The Federation further stated that the Respondent is currently participating in “the
League of Country D, organized by the Professional Football League in Country D”.
23.
According to the information contained in the Transfer Matching System (TMS), the
Claimant signed an employment contract with the club of Country B, Club E, on 15
July 2016. This contract, valid from 18 July 2016 until 5 December 2016, stipulates
that the player would obtain a monthly salary of 880 in the currency of Country B.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber or DRC) analysed whether it was competent to deal with the case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 20
May 2016. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2015; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. article 21 of the 2015,
2017 and 2018 Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
Within this context, the Chamber understood that, in principle, it would be
competent to decide on the present litigation which involves a player of Country B
and a club of Country D regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies and considered that the matter should have
been submitted to the Chamber of Dispute Resolution of Country D instead (cf.
I.13).
5.
In a similar vein, the DRC recalled that in his replica, the Claimant insisted on the
competence of FIFA, because, as per the Claimant, the Chamber of Dispute
Resolution of Country D does not respect the principle of equal representation
when the club and player do not share the same nationality (cf. I.17).
6.
Taking into account the above, the Chamber emphasised that, in accordance with
art. 22 lit. b) of the 2018 edition 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
Player A, Country B / Club C, Country D
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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.
7.
In relation to the above, the Chamber deemed it vital to outline that one of the
basic conditions that needs to be met in order to establish that another organ than
the DRC is competent to settle an employment-related dispute between a club and
a player of an international dimension is that the jurisdiction of the relevant
national arbitration tribunal or national court derives from a clear reference in the
employment contract.
8.
Therefore, 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 employment contract at the basis of the present dispute
contained a clear and specific jurisdiction clause.
9.
In this respect, the Chamber recalled that Clause 12 of the employment contract
stipulates that disputes “resulting from the execution of the [contract] are to be
solved (…) by bringing the dispute to the justice institutions of the Football
Federation of Country D and the Professional Football League”.
10.
In view of the above, the members of the DRC were of the unanimous opinion that
the employment contract did not make reference to one specific national dispute
resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations,
but, to the contrary, to two “justice institutions” of Country D. Therefore, the
members of the Chamber deemed that said clause can by no means be considered
as an exclusive arbitration clause in favour of the Chamber of Dispute Resolution
of Country D, as asserted by the Respondent.
11.
Thus, the Chamber 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 on the Status and Transfer of Players, to consider the present matter
as to the substance and that the claim of the Claimant is admissible.
12.
Next, 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 (editions
2015, 2016 and 2018) and considering that the present claim was lodged on 20 May
2016, the 2015 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
Player A, Country B / Club C, Country D
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13.
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.
14.
In this respect, the Chamber educed that, the Claimant and the Respondent signed
an employment contract valid as from 1 January 2015 until 30 June 2017. The DRC
further took into account the Termination Agreement. This Agreement, the
Chamber recalled, contains the signature of both Claimant and Respondent, and
appears to stipulate the date of 7 December 2015 as termination date of the
employment contract.
15.
In continuation, the Chamber took note of the Claimant’s arguments, who claimed
that he never provided his consent to terminating the contract on 7 December 2015.
Moreover, the Claimant argued that he had signed the Termination Agreement
when he was hired, and that the Respondent subsequently filled in the dates on
the Agreement at its own convenience.
16.
Similarly, the Chamber referred to the Respondent’s point of view, who held that
the employment contract was terminated by mutual agreement on 7 December
2015, in accordance with the Termination Agreement.
17.
In this context, the Chamber unanimously agreed that the primary issue at stake is
determining whether the Termination Agreement, which includes the parties’
signature, can be considered a valid and binding agreement.
18.
In continuation, the DRC firstly established that the Termination Agreement
contained the name of the parties. Secondly, the Chamber emphasized that the
Termination Agreement included the signature of both parties, and that Claimant
himself acknowledged signing the Termination Agreement (cf. I.11). Thirdly, the
Chamber determined that the Termination Agreement provided 7 December 2015
as the date of contract termination.
19.
In light of the above, the DRC was of the unanimous opinion that the Claimant had
not sufficiently demonstrated that he did not provide his consent for contract
termination, and/or that the date of 7 December 2015 was included by the
Respondent at its own convenience.
20.
Bearing in mind the basic principle of burden of proof, as stipulated in art. 12 par.
3 of the Procedural Rules, the DRC therefore concluded that the arguments raised
Player A, Country B / Club C, Country D
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by the Claimant regarding the alleged non-validity of the Termination Agreement
cannot be considered as valid, in accordance with the jurisprudence of the Dispute
Resolution Chamber and the legal principle of pacta sunt servanda.
21.
As a result, the Chamber established that, in accordance with the Termination
Agreement, both parties agreed to waive “any financial claims or litigations in
which the two parties may be involved at the signing date of the termination
agreement” (cf. I.4.b), including the alleged residual value of the contract
amounting to EUR 48,600, as requested by the Claimant (cf. I.9).
22.
In view of the above, the Chamber concluded that the Claimant’s claim must be
rejected in full.
III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Player A, is admissible.
2. The claim of the Claimant is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of
the time limit for filing the statement of appeal, the appellant shall file a brief stating
the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
Player A, Country B / Club C, Country D
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For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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