Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 June 2013,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
Johan van Gaalen (South Africa), member
Mario Gallavotti (Italy), member
Guillermo Saltos Guale (Ecuador), member
on the claim presented by the player,
Player G, from country M
as Claimant
against the club,
Club D, from country I
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
1.
On 15 August 2010, Player G from country M (hereinafter: the Claimant), and
Club D, from country I (hereinafter: the Respondent), concluded an
employment contract (hereinafter: the contract), valid “for one competitive
season (…) season 2010/11”.
2.
The contract provided that the Claimant was entitled to a total remuneration
of USD 150,000, payable as follows:
- “the amount of USD 30,000 will be paid after getting ITC;
- Another 10% of contract will be paid in 15NOV2010;
- Further to the down payment 10,500 USD will be paid on monthly (for the 10
months). (…)”
3.
Art. 5 of the contract provided that “(…) In case of any dispute the case shall
be sent to the Federation of country I. If any party is not satisfied with the
decision of the federation the issue shall be sent to FIFA”.
4.
On 9 February 2012, the Claimant lodged a claim against the Respondent in
front of FIFA indicating that the Respondent only paid him the amount of USD
110,000. Consequently, the Claimant requested to be awarded with the
amount of USD 40,000.
5.
In its reply to the claim, the Respondent disputed the jurisdiction of FIFA,
referring to art. 5 of the contract, stressing that the Claimant “has to bring the
case in country I Football Federation before going to FIFA”.
6.
Upon request to provide FIFA with the documentary evidence that the relevant
deciding body of country I Football Federation is competent to deal with the
matter, the Respondent sent an extract of art. 61 to 68 of the Statutes of the
country I Football Federation. Art. 68 of said Statutes stipulates the following:
“Country I Football Federation shall set up the NDRC, which deals with all
internal disputes between the Federation, its Members, players, officials,
coaches, provincial football associations and match and players’ agents that do
not fall under the jurisdiction of its judicial bodies or yet is the case of protest.
The regulations of NDRC will be approved by the executive committee in
accordance with FIFA regulations. The members of NDRC shall be appointed
based on the FIFA directives.”
7.
Furthermore, the country I Football Federation informed FIFA that it has
“Independent Judicial Bodies (Disciplinary Committee, Appeal Committee and
Legal Department)” and that such bodies will investigate claims “with fair trial
and independently”. The country I Football Federation further indicated that
“the [Claimant] did not refer to our Judicial Bodies (…) and we hereby,
Player G, from country M / Club D, from country I
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announce our Judicial Bodies readiness to receive the petition of the
[Claimant] for investigation.”
8.
Although having been invited to present its comments in relation to the
substance of the matter, the Respondent did not submit any further
comments.
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 9 February 2012. Consequently, the 2008 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the
matter at hand (cf. art. 21 of the 2008 and 2012 edition 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
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.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation involving a player from country
M and a club from country I regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. 5 of the contract,
stressing that the Claimant “has to bring the case in country I Football
Federation before going to FIFA”.
5.
Taking into account the above, 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 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.
Player G, from country M / Club D, from country I
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6.
In this framework, the Chamber first referred to art. 5 of the employment
contract on the basis of which the Respondent contested FIFA’s jurisdiction.
According to said article, “In case of any dispute the case shall be sent to
country I Football Federation. If any party is not satisfied with the decision of
the federation the issue shall be sent to FIFA.”
7.
Having duly considered the content of art. 5 of the employment contract, the
members of the Chamber stressed that said article did not explicitly refer to a
national dispute resolution chamber or any similar arbitration body in the
sense of art. 22 lit. b) of the Regulations on the Status and Transfer of Players.
In other words, the relevant article was rather vague and merely stipulated
that the case shall be sent to country I Football Federation, which, however is
not an arbitration tribunal. Therefore, the Chamber decided that art. 5 of the
employment contract could not be considered a valid arbitration clause.
8.
Furthermore, and while examining the content of art. 61 to 68 of the Statutes
of country I Football Federation, the Chamber noted that the documentation
provided by the Respondent did i) not contain any indication as to the
composition of the relevant arbitration tribunal mentioned in art. 68 of the
Statutes of country I Football Federation, and ii) did not contain any indication
as to the manner in which the proceedings in front of the relevant arbitration
tribunal are conducted. Therefore, and with reference to art. 12 par. 3 of the
Procedural Rules, the members of the Chamber were unanimous in their
conclusion that the Respondent had failed to prove that the relevant
arbitration tribunal of the country I Football Federation guaranteed fair
proceedings and respected the principle of equal representation of players and
clubs, as established in art. 22 lit. b) of the Regulations on the Status and
Transfer of Players.
9.
As a result, taking into consideration that the employment contract at the
basis of the present dispute did not contain a valid arbitration clause and that
the Respondent had not been able to prove that the relevant arbitration
tribunal in country I guaranteed fair proceedings and respected the principle
of equal representation of players and clubs, the Dispute Resolution Chamber
concluded that the Respondent’s objection to the competence of FIFA to hear
the present dispute had to be rejected. Therefore, the Dispute Resolution
Chamber is competent, on the basis of art. 22 b) of the Regulations on the
Status and Transfer of Players, to consider the present matter as to the
substance.
10.
In continuation, the Chamber analysed which 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 on the Status and
Transfer of Players (editions 2010 and 2012), and considering that the claim
was lodged in front of FIFA on 9 February 2012, the 2010 edition of the
Player G, from country M / Club D, from country I
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aforementioned regulations is applicable to the matter at hand as to the
substance.
11.
The competence of the Chamber and the applicable regulations having been
established, the Chamber continued by entering into the substance of the
matter.
12.
First of all, the members of the Chamber acknowledged that, on 15 August
2010, the Claimant and the Respondent had concluded an employment
contract valid “for one competitive season”, in accordance with which the
Respondent would pay the Claimant the total amount of USD 150,000.
13.
The Chamber further observed that the Claimant lodged a claim in front of
FIFA against the Respondent seeking payment of the total amount of USD
40,000, asserting that the Respondent had not fulfilled all its contractual
obligations towards him. More specifically, the Claimant indicated that the
Respondent had merely paid him the amount of USD 110,000, whereas the
contract stipulated that the Claimant was entitled to receive the total amount
of USD 150,000.
14.
Furthermore, the Chamber observed that the Respondent failed to present its
response as to the substance of the claim of the Claimant, despite having
explicitly been invited to do so. In this way, so the Chamber deemed, the
Respondent renounced to its right of defence in relation to the substance of
the present dispute and, thus, accepted the allegations of the Claimant.
15.
As a consequence of the preceding consideration, the Chamber established
that in accordance with art. 9 par. 3 of the Procedural Rules and in connection
with the substance of the matter it shall take a decision upon the basis of the
documents on file.
16.
On account of the above considerations, in particular taking into consideration
that the Respondent did not contest that the amount of USD 40,000 was still
outstanding, the Chamber decided that the Respondent must fulfil its
obligations as per employment contract in accordance with the general legal
principle of “pacta sunt servanda”. Consequently, the Chamber decided that
the Respondent is liable to pay to the Claimant the amount of USD 40,000 as
outstanding remuneration.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player G, is admissible.
2.
The claim of the Claimant is accepted.
Player G, from country M / Club D, from country I
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3.
The Respondent, Club D, has to pay to the Claimant the amount of USD
40,000, within 30 days as from the date of notification of this decision.
4.
In the event that the aforementioned sum is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned time limit and the present matter shall be
submitted, upon request, to FIFA’s 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 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 G, from country M / Club D, from country I
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