Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 June 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theodore Giannikos (Greece), member
Carlos González Puche (Colombia), member
on the matter between the player,
C, from R
Represented by Mrs xxxxxx
as Claimant
and the club,
Z, from P
Represented by Ms xxxxx
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 11 January 2015, the player, p, from R (hereinafter: the Claimant), concluded an
employment agreement (hereinafter: the contract) with the club from P,Z,
(hereinafter: the Respondent), originally valid as from the date of signature until 30
June 2016.
2. According to article 7.1 of the contract, the Claimant was entitled to a monthly salary
in the amount of EUR 6,600.
3. In addition, art. 6.2 of the contract stipulated the following:
“If the [Respondent] shall be retrograded from xxxxx in the season 2014/2015, the
Agreement between the [Respondent] and the [Claimant] shall be terminated by
default upon 30.06.2015, with the parties’ agreement, without any mutual claims
whatsoever.”
4. Moreover, art. 10.3 of the contract stipulated the following:
“In the event of any infringement upon the competitive obligations, the
[Respondent] shall be entitled (…) to ask the [Claimant] for the payment of a penalty
in the quantum of 12500 xxx (…) for each such infringement. The latter penalty shall
be withheld from the basic remuneration and from the amounts which are owed to
the [Claimant] (…)”
5. Furthermore, the contract included the following provision in relation to the
competence:
“13. (…)
1. All litigations which may occur in connection with the present Agreement,
particularly those relating to the validity, existence or termination of the
Agreement, (…), shall be settled by the appropriate body within the [Football
Association of P]: namely the Chamber for Litigations Settlement, and as a second
court, there shall be the Football Unions Tribunal, which operates based upon
special provisions.
2. All patrimonial litigations resulting out of the present Agreement shall be
submitted for settlement purposes to the football arbitrage court with [the
Football Association of P] (FAP)”
6. On 11 November 2015, the Claimant lodged a claim before FIFA against the
Respondent, and requested the payment of a total amount of “USD” 13,200, plus 5%
interest “on the amounts claimed”, corresponding to outstanding salaries for the
period comprised between 1 May 2015 until 30 June 2015.
7. In addition, the Claimant requested the payment of legal costs, as well as the
imposition of sporting sanctions against the Respondent.
8. According to the Claimant, the contract was terminated on 30 June 2015, in
accordance with clause 6.2 of the contract (cf. point 3 above), due to the
Respondent’s relegation from the xxxxxxx.
9. In this respect, the Claimant explained that the Respondent failed to pay him his
salaries for the months of May and June 2015, for a total amount of “EUR” 13,200.
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Player P, country R / Club Z, country P
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10. Following the Claimant’s description of the facts, the Respondent released him from
disputing the last two matches of the season in order to attend his wedding on 7
June 2015. In particular, the Claimant explained that the above-mentioned matches
were to be disputed on 2 June 2015 and on 5 June 2015 and that, afterwards, he
went on vacation.
11. In this regard, the Claimant considered that the Respondent misled him by granting
said release, since he believed it would correspond to two match days, instead of two
calendar days, as the Respondent argued.
12. In view of the above, the Claimant explained that the Respondent took advantage of
this situation, in order to fine him for his absence with a series of amounts to a “sum
close to the salaries owed”. More specifically, the Claimant stated that he initially
refused the application of said fines, since they were applied in an abusive manner
and without prior notice.
13. Consequently, the Claimant explained that he decided to act before the FAP as
initially regulated in the contract, but that he previously tried to assess if the relevant
decision-making bodies of the FAP would be independent and impartial, by
contacting directly this association. In this regard, the Claimant stated that the FAP
remained silent in relation to his query, but that the Association of Players of P (APP)
confirmed that the dispute-resolution bodies of the FAP are not independent in
relation to financial disputes.
14. Moreover, the Claimant explained that he granted a deadline until 15 June 2015 to
the Respondent in order to find an amicable settlement before lodging a claim
before FIFA.
15. In its reply to the claim, the Respondent contested FIFA’s competence on the grounds
of section 13 of the contract. According to the Respondent, the “Football Arbitration
Court” of the FAP (hereinafter “P NDRC”) should be the only authority with
competence to hear the case.
16. In this regard, and after being invited by FIFA to provide further information on the
competence, the Respondent provided additional documentation on the statutes of
the P NDRC. In particular, the Respondent considered that the competence of the P
NDRC is clearly derived from section 13 of the contract, which clearly states that only
the P NDRC should be competent.
17. In this respect, the Respondent attached a full copy in P language of the “Regulations
of the Football Arbitration Court of [the FAP] resolution No. xxxxx”, with a
translation in English of a few selected articles (in particular, arts. 4, 6 and 7)
18. As to the substance, the Respondent denied that it had any overdue payables with
the Claimant. In particular, the Respondent considered that, following art. 10.3 of the
contract (cf. point I.4 above), it was entitled to impose a series of fines to the
Claimant, for a total amount of xxx 107,500.
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Player P, country R / Club Z, country P
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19. In particular, the Respondent explained that the above-mentioned fines were
imposed as follows:
- Xxx 12,500, for the Claimant’s alleged absence in two matches, on 2 June 2015
and 5 June 2015;
- xxx 12,500, for the Claimant’s “unjustified absence” from the meeting arranged
by the coach on 9 June 2015;
- xxx 5,000, for each of the Claimant’s “unjustifiable absence” in training “on 3.4
and 6 June 2015”;
- xxx 12,500, for the Claimant’s absence to a meeting arranged by the coach on 22
June 2015;
- xxx 12,500, for the Claimant’s “unexcused absence during tests” on 23 June 2015;
- xxx 20,000 (i.e. 5,000*4), for the Claimant’s “unjustified absence” in trainings held
on 24 June 2015, 25 June 2015, 26 June 2015 and 27 June 2015.
20. More specifically, the Respondent considered that the Claimant did not deny that he
left P on 31 May 2015 and that he failed to attend the above-mentioned trainings,
meetings and matches and that he brought no evidence confirming that he had any
permission for his absences.
21. In reference to the fines, the Respondent explained that the Claimant refused their
payment and that, consequently, it proceeded to deduct an equivalent amount from
his salaries due in May 2015 and June 2015.
22. Consequently, the Respondent concluded that, in view of its unfavourable situation,
by being threatened to being relegated in a lower division, the Claimant “simply
abandoned [it]”.
23. In reply to the Respondent’s argument on the competence, the Claimant considered
that, even though there is a clause in the contract in favour of the P NDRC, such
jurisdiction cannot be followed due to its lack of independence. In this regard, the
Claimant also underlined that the documentation provided by the club is in P
language, and that consequently, it cannot be applied by FIFA.
24. As to the substance, the Claimant confirmed his previous arguments, and underlined
that he was never allowed to discuss the above-mentioned fines within a
contradictory disciplinary procedure, and that said fines were never confirmed by any
disciplinary body.
25. In addition, the Claimant attached two alleged statements from two other players of
the Respondent, by means of which they apparently declared that the last match of
the season was held on 5 June 2015, and that afterwards the players were granted
with vacation until the date of termination of the contract on 30 June 2015.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) 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 11 November
2015. Consequently, the 2015 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
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Player P, country R / Club Z, country P
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Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2015 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 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016)
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 R and a club from P
regarding an employment contract concluded between the aforementioned parties.
4. However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause 13 of the employment
contract and alleging that the FAP has established an arbitration tribunal composed
of members chosen in equal numbers by players and clubs with an independent
chairman.
5. In this respect, the Chamber emphasised that in accordance with art. 22 lit. b) of the
2016 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 DRC referred to FIFA Circular no. 1010 dated 20 December 2005.
In this regard, the DRC judge 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. Subsequently, the Chamber referred to art. 9 par. 1 lit. e) of the Procedural Rules
which stipulates that all documents of relevance to the dispute shall be submitted in
the original version as well as translated into one of the official FIFA languages.
However, the Chamber acknowledged that the documents provided by the
Respondent were not entirely translated, with the exception of a few articles. This is,
the members of the Chamber did not have at their disposal a comprehensive version
of the relevant documentation and, therefore, the Chamber could not with certainty
establish if the relevant dispute resolution bodies of the FAP comply with the
standards of an independent arbitration tribunal guaranteeing equal representation
and fair proceedings. The members of the Chamber emphasised that they cannot base
their decision on documentation that is incomplete and from which it is not possible
to infer if the relevant dispute resolution bodies of the FAP comply with the
aforementioned requirements.
7. As a result, the Dispute Resolution Chamber concluded that the Respondent’s
objection to the competence of FIFA to hear the present dispute has to be rejected,
and that the Dispute Resolution Chamber is therefore 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.
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Player P, country R / Club Z, country P
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8. The competence of the Chamber having been established, the Chamber analysed
which edition of the Regulations on the Status and Transfer of Players 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 and 2016), and considering that the present matter was
submitted to FIFA on 9 November 2015, the 2015 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
9. Having established the foregoing, and entering into the substance of the matter, the
Chamber continued by acknowledging the above-mentioned facts as well as the
documentation contained in the file in relation to the substance of the matter.
However, the Chamber emphasised that in the following considerations it will refer
only to the facts, arguments and documentary evidence which it considered for the
assessment of the matter at hand.
10. In this respect, the Chamber acknowledged that the parties to the dispute had signed
a valid employment contract on 11 January 2015, which expired on 30 June 2015 (cf.
point I. 3 above), in accordance with which the Respondent would pay the Claimant a
monthly salary in the amount of EUR 6,600.
11. Moreover, the DRC took into consideration that according to the Claimant, the
Respondent had failed to pay his remuneration in the total amount of EUR 13,200,
corresponding to unpaid salaries for the period comprised between 1 May 2015 until
30 June 2015.
12. In this regard, the Chamber took note of the Respondent’s argument, according to
which it had no overdue payables towards the Claimant since, following art. 10.3 of
the contract, it was entitled to impose a series of fines to the Claimant, for a total
amount of xxx 107,500.
13. Consequently, the Chamber analysed the fines imposed on the Claimant due to his
alleged absence from training sessions and two matches (cf. point I.19 above).
14. In this respect, the Chamber wished to highlight that, regardless of the existence or
not of said absences, the aforementioned fines, for the total amount of xxx 107,500
(equivalent to approx. EUR 23,400), which were imposed for allegedly missing two
matches and a few training sessions without authorization is manifestly excessive and
disproportionate and cannot be upheld. In particular, the members of the Chamber
highlighted that the total amount of said fines is significantly higher than the
Claimant’s monthly salary with the Respondent. Hence, the Chamber was unanimous
in its conclusion that the fines imposed on the Claimant by the Respondent must be
disregarded.
15. Furthermore, and in any case, the Chamber wished to point out that the imposition of
a fine, or any other available financial sanction in general, shall not be used by clubs
as a means to set off outstanding financial obligations towards players.
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Player P, country R / Club Z, country P
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16. In conclusion, the Chamber determined that the Respondent could not set-off its debt
towards the Claimant by means of the various fines imposed on him and that thus,
the amount of EUR 13,200 is due to the Claimant. Moreover, the Chamber
highlighted that the Respondent never proved that said debt was settled.
17. In addition, taking into consideration the Claimant’s claim, the Chamber decided to
award the Claimant, in accordance with its own well-established jurisprudence,
interest at the rate of 5% p.a. on each of the overdue instalments as of the day
following the day on which they fell due.
18. Finally, as regards the claimed legal expenses by the Claimant, the Chamber referred
to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural compensation
shall be awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the request relating to legal expenses.
19. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent 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 13,200,
plus interest as follows:
- 5% interest p.a. over the amount of EUR 6,600 as of 1 June 2015 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 6,600 as of 1 July 2015 until the date of
effective payment.
4.
In the event that the aforementioned sums plus interest are not paid within the
stated time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
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Player P, country R / Club Z, country P
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6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances under point 3. are 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. 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
For the Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Enclosed: CAS directives
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Player P, country R / Club Z, country P
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