Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 May 2014,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Philippe Piat (France), member
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
Player P, from country B
as Claimant
against the club,
Club V, from country G
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 24 September 2012, the country B player, Player P, born in August 1985
(hereinafter: the Claimant), and the country G club, Club V (hereinafter: the
Respondent), concluded an employment contract (hereinafter: the contract) valid
as from that date until 30 June 2014.
2.
On the same date, the parties concluded a private agreement which, according to
the Claimant, forms an integral part of the employment contract. The private
agreement stipulated, inter alia, the following: “10. The present agreement is
considered a part of the Player’s contract with the Club, to which it is annexed.”
3.
According to the contract, the Claimant was to be remunerated with a monthly
fee amounting to EUR 655, as well as a Christmas bonus in the amount of EUR
655 and an Easter bonus and holiday benefit in the total amount of EUR 655. In
addition to that, the Claimant was to be remunerated with an extra salary of EUR
13,100, payable in four installments as follows: EUR 3,250 on 30 October 2012,
EUR 3,250 on 30 December 2012, EUR 3,250 on 28 February 2013 and EUR 3,350
on 30 April 2013.
4.
According to the private agreement, the Claimant was to be remunerated with a
net amount of EUR 20,000, payable as follows: EUR 7,000 on 24 September 2012,
EUR 3,250 on 30 October 2012, EUR 3,250 on 30 December 2012, EUR 3,250 on 28
February 2013 and EUR 3,250 on 30 April 2013.
5.
Clause 10 of the contract states that “All disputes between the parties are settled
by the Appeals Committee for the Resolution of Financial Disputes (PEEOD) at
first instance, and the Court of Arbitration of the country G Football Federation
at second instance”.
6.
On 26 July 2013, the Claimant lodged a claim before FIFA, indicating that the
Respondent failed to pay a part of his total salary of EUR 40,305. As a
consequence, the Claimant is claiming a compensation for breach of contract
amounting to EUR 9,170, based on the remaining salary and bonuses for the
period of 5 July 2013 until 30 June 2014, plus 5% p.a. as of 6 July 2013, as well as
outstanding salary in the amount of EUR 20,065, based on the following:
- the amount of EUR 1,965 as basic salary for June 2013, Christmas bonus, Easter
bonus and holiday benefit plus 5% p.a. as of 1 July 2013;
- EUR 5,000 as extra salary due on 30 December 2012 plus 5% p.a. as of 31
December 2012;
- EUR 6,500 as extra salary due on 28 February 2013 plus 5% p.a. as of 1 March
2013;
- EUR 6,600 as extra salary due on 30 April 2013 plus 5% p.a. as of 1 May 2013.
Player P, from country B / Club V, from country G
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7.
The Claimant requested that the aforementioned amounts are paid as net
amounts (CAS 2009/O/1858 and CAS 2012/A/2874).
8.
The Claimant explained that he had made “a number of complaints” to the
Respondent regarding the persistent non-payment of his salary, however,
without result. Therefore, on 5 July 2013, the Claimant terminated the contract in
writing, invoking art. 14 of the Regulations on the Status and Transfer of Players.
9.
On 5 September 2013, the Respondent replied to the Claimant’s claim and argued
that, according to art. 10 of the employment contract, the PEEOD has exclusive
jurisdiction in all disputes between the Respondent and the Claimant, in
accordance with art. 22 of the Regulations on the Status and Transfer of Players.
In this respect, the Respondent provided FIFA with an extract of the 2011 edition
of the Statutes of the country G Football Federation as well as an extract of the
2008 edition of the country G Football Federation Regulations on the Status and
Transfer of Players. Therefore, the Respondent argued that the claim of the
Claimant is inadmissible.
10.
Furthermore, the Respondent stated that none of the amounts agreed upon in
the employment contract were net, as there was no such indication, contrary to
the amount agreed upon in the private agreement, which indicated that such
amount was a net amount. Furthermore, the Respondent explained that, upon
receipt of the termination letter of the Claimant on 5 July 2013, it had sent a
reply to the Claimant on 11 July 2013, trying to solve the matter amicably.
According to the Respondent, the Claimant refused to come to country G to
finalize the termination of the employment contract by mutual consent, or to
train with the team. Therefore, the Respondent sent the Claimant a letter on 26
July 2013 ordering him to present himself in the Respondent’s office. In reply, the
Claimant reminded the club with a letter dated 29 July 2013 that he had already
terminated the employment contract on 5 July 2013 and, moreover, that he had
accepted the Respondent’s offer to settle the matter amicably. Nevertheless, the
Respondent initiated proceedings before the Appeals Committee for the
Resolution of Financial Disputes of the country G Football Federation.
11.
With regard to the outstanding remuneration claimed by the Claimant, the
Respondent stated that the Claimant was entitled to a total net amount of EUR
36,115. Since the Claimant already received the net amount of EUR 20,340, the
outstanding net amount is EUR 15,775. With regard to the Claimant’s claim for
compensation, the Respondent argued that the net residual value of the
employment contract, after taxation, amounts to EUR 7,918. Moreover, the
Respondent argued that the compensation due to the Claimant should be
mitigated, since the Claimant could have found a new club during the next
transfer windows.
Player P, from country B / Club V, from country G
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12.
In an unsolicited correspondence dated 11 February 2014, the Claimant stated
that, in accordance with art. 24 par. 1 in combination with art. 22 lit. a) of the
Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is exclusively competent to adjudicate on disputes between clubs and
players in relation to the maintenance of contractual stability, if there has been
an International Transfer Certificate (ITC) request. In this respect, the Claimant
referred to CAS jurisprudence (2009/A/1881 Club H vs. FIFA & Club A). The
Claimant explained that a provisional ITC had been issued by FIFA in favor of the
country B Football Union on 14 October 2013.
13.
Upon request of FIFA, the Claimant indicated that, on 11 September 2013, he
signed an employment contract with the country B club, Club L, valid until 31
December 2013. According to this employment contract, the Claimant was to
receive currency of country B 2,069 per month. The Claimant indicated that he is
unemployed since 1 January 2014 and will not be able to find new employment
before 30 June 2014 due to an injury.
14.
On 22 July 2013, the Court of Arbitration for Sport (CAS) rendered an award
whereby it decided that the national arbitration bodies of the country G Football
Federation fulfil the requirements of equal representation and of an
independent chairman and guarantee fair proceedings.
II.
Considerations of the Dispute Resolution Chamber
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 26 July 2013. 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 par. 2 and par. 3
of the Procedural Rules).
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1
of the Procedural Rules states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of articles 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2012). In accordance with art. 24 par. 1 in combination
with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution
Chamber would, in principle, be competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a country B player and a country G club.
3.
However, the DRC acknowledged that the Respondent contested the competence
of FIFA’s deciding body on the basis of clause 10 of the employment contract,
asserting that the arbitration bodies of the country G Football Federation are
Player P, from country B / Club V, from country G
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independent arbitration tribunals guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs.
4.
The Chamber noted that the Claimant, for his part, rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
In this respect, first and foremost, the Chamber outlined that the standard
country G Super League employment contract signed by and between the
Claimant and the Respondent on 24 September 2012 contains a clause in
accordance with which all disputes between the parties are settled by the Appeals
Committee for the Resolution of Financial Disputes (PEEOD) at first instance and
the Court of Arbitration of the country G Football Federation at second instance.
Equally, the Chamber stressed that according to the Claimant himself, the private
agreement formed an integral part of the standard country G Super League
employment contract.
6.
In continuation, the Chamber emphasised that in accordance with art. 22 lit. b) of
the 2012 edition of the Regulations on the Status and Transfer of Players, it is
competent to hear a matter such as the one at hand, unless an independent
tribunal, guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs, has been established at national level within
the framework of the association and/or a collective bargaining agreement. With
regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the DRC referred to FIFA Circular no. 1010 dated
20 December 2005. In this regard, 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 this respect, the Chamber took into account that, on 22 July 2013, the Court of
Arbitration for Sport (CAS) issued an award, whereby it decided that the national
arbitration bodies of the country G Football Federation fulfill the requirements of
equal representation and of an independent chairman and guarantee fair
proceedings, in compliance with the aforementioned applicable standards.
8.
In this context, the Chamber took note that the country G deciding bodies at the
basis of the aforementioned CAS decision are the same deciding bodies as the one
included in the jurisdiction clause of the standard country G Super League
employment contract signed by and between the Claimant and the Respondent.
9.
On account of the above, the DRC referred to art. 22 lit. b) of the Regulations on
the Status and Transfer of Players and established that it is not competent to
adjudicate on the present matter since a) clause 10 of the employment contract
constitutes a clear and exclusive jurisdiction clause in favour of the PEEOD and the
Court of Arbitration of the country G Football Federation, and b) CAS confirmed
that the relevant country G deciding bodies fulfill the requirements of equal
Player P, from country B / Club V, from country G
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representation and of an independent chairman and guarantee fair proceedings,
i.e. the relevant country G deciding bodies are competent to adjudicate on
disputes between players and clubs like the matter at hand.
10.
In light of the above, the Chamber unanimously decided that the claim of the
Claimant is inadmissible.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player P, is inadmissible.
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:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player P, from country B / Club V, from country G
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