Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 May 2015,
in the following composition:
Geoff Thompson (England), Chairman
Damir Vrbanovic (Croatia), member
Alejando Marón (Argentina), member
Johan van Gaalen (South Africa), member
Rinaldo Martorelli (Brazil), member
on the claim presented by the player,
A, country B,
represented by Mr xxxx
as Claimant
against the club,
B, country R
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1.
The player from country B, A (hereinafter: the Claimant) and the club from country R,
club B (hereinafter: the Respondent) signed an undated employment contract
(hereinafter: the contract), valid as from 12 July 2012 until 30 June 2014.
2.
In addition, the parties signed an undated “Financial addendum to the individual
employment agreement” (hereinafter: the addendum), as well as an undated
“Annex to Individual Employment Agreement” (hereinafter: the annex).
3.
According to the contract, the addendum and the annex, the Respondent undertakes
to pay the Claimant, inter alia, the following monies:
a. EUR 11,000 as monthly salary payable until the 5th day of the following
month, for the period of 12 July 2012 until 30 June 2013;
b. EUR 12,000 as monthly salary, payable on the 5th day of the following
month, for the period of 1 July 2013 until 30 June 2014;
c. An apartment “from the club worth 500 Euro monthly”;
d. 2 flight tickets per season, X-Y;
e. Match bonuses, as follows:
i. EUR 900 per victory in home matches;
ii. EUR 400 per point in every away matches.
4.
Furthermore, the addendum stipulates that “the above mentioned bonus will be
granted in 50% if the Player performed as reserve field player” and “The bonuses for
sport performance will be paid monthly until 25th of next month”.
5.
Finally, the contract also stipulates that: “the period of warning in the case of
resignation is 20 working days (…) “ and that “Disputes regarding the concluding,
execution, amending, suspension or termination of the present individual
employment agreement are solved before the Court of material and territory
competence, as provided by the law, or to the organisms with jurisdictional duties of
Player A, country B / Club B, country R
2/11
the XY Football Federation, Professional Football League, F.I.F.A. and the Court of
Arbitration for Sport”.
6.
On 4 January 2013, after having sent the Respondent two reminders dated 1 and 15
November 2012, the Claimant terminated the employment contract in writing,
alleging that the Respondent had not paid part of his salary of August 2012 and his
salaries for the months of September to December 2012, for a total amount of EUR
46,000, as well as all bonuses and additional payments due, according to the
addendum.
7.
On 7 January 2013, the Claimant lodged a claim against the Respondent before FIFA
for breach of contract, requesting, after amending his claim, the payment of the
total amount of EUR 259,700, broken down as follow:
a. EUR 47,500 as outstanding salaries corresponding to the period of August
2012 to 3 January 2013 with 5% interest p.a. [i.e. EUR 11,000 x 4 + EUR
2,000];
b. EUR 3,700 as match participation and performance bonuses;
c. EUR 208,500 as compensation for breach of contract, corresponding to the
remaining salaries from 4 January 2013 to 30 June 2014;
d. Legal fees and procedural costs.
8.
According to the Claimant, the Respondent failed to pay him his salaries as of 5
September 2012 as well as some of his due bonuses. Therefore, on 1 November 2012,
the Claimant sent a first default notice to the Respondent, by means of which he
requested the payment of his outstanding remuneration for August and September
2012 as well as his bonuses, giving the club a deadline until 9 November 2012. After
receiving a letter dated also 9 November 2012, by means of which the Respondent
informed the Claimant that the due amount will be paid shortly, the Claimant sent a
second default notice on 15 November 2012, urging the Respondent to proceed with
the payment of the allegedly outstanding amounts by no later than 26 November
2012, otherwise he “would be forced to undertake the appropriate legal actions”.
Player A, country B / Club B, country R
3/11
9.
On 4 January 2013, the Claimant terminated the contract with the Respondent in
writing and with immediate effect, after having received only a partial payment of
the salary for August 2012 (EUR 9,000) but no other outstanding amounts. In
addition, the Claimant invited the Respondent a last time to pay its due within seven
days, without success.
10. In its reply, the Respondent firstly contested the competence of FIFA to deal with the
present matter. In this respect the Respondent submitted excerpts of the Statutes of
the XY Football Federation (2011 edition) as well as the Regulations of Application
of the XY Statute (2011 edition). In addition, it submits a letter from the XY
Professional Football League relating to the composition of the XY Dispute
Resolution Commission and Appeals Commission. They further submit a letter from
the XY Football Federation related to the composition of the National Dispute
Resolution Chamber. All the documents were provided by the Respondent in xx
language only.
11. As to the substance, the Respondent admits that there have been delays in the
payment of some amounts due to the Claimant, because of “the general economic
situation” of the Respondent. For this reason, and due to the fact that the Claimant
had some difficulties to adapt to “the team’s game”, the Respondent and the
Claimant agreed on 13 December 2012 to terminate the contract, with effect as from
20 December 2012. According to this termination agreement, the Claimant declares
having no other financial claims against the Respondent. Additionally, the
Respondent holds having paid part of the outstanding amounts, as well as “expenses
that the contract does not stipulate” to the Claimant. In return, the Claimant waived
any other claims against the Respondent and accepted to sign the agreement.
12. In his replica, the Claimant, first of all, insists that FIFA’s Dispute Resolution Chamber
is competent to deal with the present matter and denies the competence of the XY
NDRC, which, as per the Claimant, does not meet the minimum procedural standards
required by art. 22 lit. b) of the RSTP.
Player A, country B / Club B, country R
4/11
13. In continuation, the Claimant fully rejects the validity of the agreement dated 13
December 2012 (cf. point I.11. above), and denies having signed the document.
According to the Claimant, the Respondent presented a false document to avoid
having to execute its obligations towards him. Furthermore, he claims to have never
received any amounts allegedly paid by the Respondent and highlights that the
Respondent did not provide any evidence of payment. Finally, the Claimant
underlines that the Respondent admitted in its reply to have had delays in the
payment of its financial obligation.
14. In In its final position, the Respondent reaffirms its arguments and holds that FIFA
DRC is not competent to consider the case. Finally, the Respondent holds that the
agreement is valid and informed FIFA that it is ready to submit the document to an
expert to attest whether the signature of the Claimant has been forged or not.
15. Finally, the Claimant informed FIFA that, after the termination of the contract with
the Respondent, he found new employment with the following clubs:
e. xxxxx (xx), valid as from 7 January 2013 to 30 June 2014 for which he earned
a monthly salary of EUR 7,000;
f. xxxxxx (xx), valid as from 6 January 2014 to 30 June 2015 for which he
earned a monthly salary of xx (xx) 10,600.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the 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 7 January 2013.
Consequently, the 2012 edition of the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural
Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2 of the
Procedural Rules).
Player A, country B / Club B, country R
5/11
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 b) of the Regulations on the Status and Transfer of Players (editions 2012, 2014
and 2015; hereinafter: the Regulations), the Dispute Resolution Chamber shall
adjudicate on employment-related disputes between a club and a player, with an
international dimension.
3.
Having said that, the DRC stated that it would, in principle, be the competent body to
decide on the present litigation involving a player from country B and a club from
country R regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that any dispute arisen between the parties should be submitted to the
deciding bodies of the XY Football Federation (XXX) and of the XY Professional
Football League (XXX).
5.
The Chamber equally noted that the Claimant rejected such position and insisted on
the fact that FIFA had jurisdiction to deal with the present matter because the
deciding bodies of the XXX and the XXX do not respect the principle of equal
representation of players and clubs and cannot provide for fair proceedings in
accordance with the Regulations.
6.
Taking into account the above, the Chamber emphasised that, in accordance with art.
22 lit. b) of the 2012 FIFA 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
Player A, country B / Club B, country R
6/11
the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which
came into force on 1 January 2008.
7.
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 actually contained a
jurisdiction clause.
8.
Having said this, the members of the Chamber turned their attention to art. O. of the
contract (cf. point I.5. above), which stipulates that “Disputes regarding the
concluding, execution, amending, suspension or termination of the present
individual employment agreement are solved before the Court of material and
territory competence, as provided by the law, or to the organisms with jurisdictional
duties of the XY Football Federation, Professional Football League, F.I.F.A. and the
Court of Arbitration for Sport”.
9.
In view of the aforementioned clause, the members of the DRC were of the opinion
that art. O. of the employment contract does not make clear reference to one
specific national dispute resolution chamber in the sense of art. 22 lit. b) of the
aforementioned Regulations and even provides for the possibility of lodging a
contractual dispute in front of FIFA. Therefore, the members of the Chamber deem
that said clause can by no means be considered as a clear arbitration clause in favour
either of the national deciding bodies, i.e. of the XXX or the XXX, and, therefore,
cannot be applicable.
10. 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.
11. In view of the above, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that the
Player A, country B / Club B, country R
7/11
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.
12. Subsequently, the members of the Chamber analysed which edition of the
Regulations should be applicable as to the substance of the matter. In this respect,
the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations (editions 2012, 2014 and 2015) and considering that the claim in front of
FIFA was lodged on 7 January 2013, the 2012 edition of said Regulations is applicable
to the present matter as to the substance.
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 members of the Chamber acknowledged that it was undisputed by
the parties that they signed an employment contract valid as from 12 July 2012 until
30 June 2014, as well as an addendum and an annex to it, according to which the
Claimant was entitled to receive the monies described in point I.3. above.
15. In continuation, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that he had terminated the employment
contract with just cause on 4 January 2013, after previously having put the club in
default, since the Respondent allegedly failed to pay his remuneration as from
August 2012. Consequently, the Claimant asks to be awarded his outstanding dues,
corresponding to salaries and bonuses as from August 2012, as well as the payment
of compensation for breach of contract (cf. point I.7. above).
16. Subsequently, the members of the Chamber took due note of the allegations of the
Respondent, who claims that on 13 December 2012 the parties signed a document
Player A, country B / Club B, country R
8/11
(hereinafter: the termination agreement) containing a declaration in accordance
with which the employment contract was terminated by mutual consent with effects
as from 20 December 2012, and the player confirmed having no financial claims
against the club (cf. point I. 11 above).
17. The Chamber further noted that the Claimant on the one hand denies having signed
such document, the termination agreement provided by the Respondent being a
counterfeit. On the other hand, the Respondent insisted that the document in
question was signed by the player, provided FIFA with the original of such document
and, consequently, rejected the claim lodged of the Claimant.
18. In view of the foregoing, the DRC pointed out that the core document in the present
dispute, considering the claim of the Claimant and the allegations of the
Respondent, is the termination agreement apparently signed by both parties on 13
December 2012. In other words, the Chamber considered that the underlying issue in
the dispute at hand consists of establishing whether the Claimant’s argument
regarding the alleged counterfeit of the termination agreement could be upheld or,
in case not, whether the financial obligations of the Respondent towards the
Claimant could be considered as extinguished with the alleged signature of the
aforementioned document.
19. At this stage, the Chamber deemed it appropriate to remind the parties of the
content of 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”.
20. Furthermore, the members of the Chamber considered it appropriate to remark that,
as a general rule, FIFA’s deciding bodies are not competent to decide upon matters
of criminal law, such as the ones of alleged falsified signature or document, and that
such affairs fall into the jurisdiction of the competent national criminal authority.
21. In this regard, the DRC noted that termination agreement dated 13 December 2012
bears the signature of the Respondent and the alleged signature of the Claimant. In
addition, the members of the DRC pointed out that, upon FIFA’s request and in view
Player A, country B / Club B, country R
9/11
of the Claimant’s allegation of falsification, the Respondent was able to provide the
original of such agreement, currently available for the analysis of the Chamber.
22. In continuation, the DRC recalled that all documentation remitted shall be considered
with free discretion and, therefore, it focused its attention on the original of the
termination agreement as well as on other documents containing the Claimant’s
signature, provided by the parties in the context of the present dispute.
23. After a thorough analysis of the aforementioned documents, in particular, comparing
the relevant signatures of the Claimant in the various documents provided in the
present affair, the DRC had no other option but to conclude that, for a layman, the
signatures on such documents appear to be the same. Thus, the Claimant’s allegation
of counterfeit cannot be upheld.
24. In view of the foregoing, the DRC concluded that, by signing the termination
agreement, the Claimant agreed to terminate the employment contract with the
Respondent and declared not to have any pending financial claims towards the
Respondent.
25. In this context, the Chamber deemed it appropriate to emphasize that a party signing
a document of legal importance, as a general rule, does so on its own responsibility
and is consequently liable to bear the possible legal consequences arising from the
execution of such document.
26. In view of all of the above, and based on the documentation currently at their
disposal, the members of the Chamber came to the conclusion that, the present claim
of the Claimant pertaining to outstanding salaries and compensation for breach of
contract has to be rejected, since the relevant termination agreement seems to have
been duly signed by the Claimant and, therefore, the parties amicably agreed upon
the termination of their employment relationship and the Respondent does not have
any pending financial obligations towards the Claimant.
Player A, country B / Club B, country R
10/11
27. Based on all the foregoing, the members of the Chamber concluded their
deliberations by establishing that the claim of the Claimant is entirely rejected.
III.
Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, A, is admissible.
2. The claim of the Claimant is rejected.
*****
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
Acting Secretary General
Encl: CAS directives
Player A, country B / Club B, country R
11/11