Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 June 2017,
in the following composition:
Thom as Grim m (Switzerland), Deputy Chairman
Mario Gallav otti (Italy), member
Guillerm o S . Guale (Ecuador), member
Johan v an Gaalen (South Africa), member
Joaquim Ev angelis ta (Portugal), 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
arisen between the parties
I.
Facts of the cas e
1.
On 1 December 2014, the Player of Country B, Player A (hereinafter; the Claimant
or the player) and the Club of Country D, Club C (hereinafter; the Respondent or
the club) (hereinafter jointly referred to as the parties) entered into an
employment contract (hereinafter; the first contract) valid as of the date of its
signature until 30 November 2015.
2.
According to the first contract, the Claimant was entitled to receive from the
Respondent USD 27,000 “per month to be paid in the following manner”:
a. USD 5,000 as “monthly salary”;
b. USD 54,000 as sign-on fee “to be paid upon signing the Contract”;
c. USD 264,000 as “advance payment (…) to be paid upon signing the
Contract for the whole contract period: 1) USD 132,000, 2) USD 132,000”
3.
Clause 3 of the first contract reads as follows: “In the case any dispute between
the parties (…) the player has the right to appeal his case to the Players’ Status
Committee of the Football Association of Country D or alternatively, if applicable
to any employment dispute resolution body set-up under laws of Country D…”.
4.
Also on 1 December 2014, the parties concluded another contract (hereinafter;
the second contract) with the same period of validity as the first contract and
which provided for a monthly salary of 16,250 of Currency of Country D.
5.
On 12 and 25 August 2015, the Claimant put the Respondent in default of
payment of his salaries for June and July 2015 in the amount of “USD 49,000”.
6.
On 27 July 2016, the Claimant lodged a claim against the Respondent in front of
FIFA requesting outstanding remuneration in the amount of USD 132,000 as “the
second advance” plus 5% interest as of “1 November 2014”.
7.
In its reply to the claim, the Respondent argued that, in view of clause 3 of the
first contract, the Players’ Status Committee of the Football Association of Country
D (hereinafter; PSC of the Football Association of Country D) is competent. In this
respect, according to the Respondent, “the matter had been brought up to the
committee and the discussion of the dispute is still on going”.
8.
As to the substance, the Respondent only explained that “to date the discussion”
between the parties is still “on going” and that “we are trying to dissolve the
problem prudently”. Equally, the Respondent pointed out the discrepancy of the
amount claimed by the Claimant in his default notices and that in his request in
front of FIFA.
Player A, Country B / Club C, Country D
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9.
In his replica, the Claimant argued that, irrespective of the content of clause 3,
only the second contract “has been sent to the Football Association of Country D”
and that the contract that is “being questioned before the FIFA is the [first
contract]”.
10.
As to the discrepancy between the amounts claimed in his default letters and his
claim, the Claimant argued that the “overdue payment subsists till the end of the
season and accumulated at the amount of USD 132,000”.
11.
The Claimant further denied the allegations of the Respondent regarding any
discussions.
12.
Despite having been asked to do so, the Respondent did not submit any further
comments.
13.
Upon FIFA’s request, the Football Association of Country D informed that “The
Football Association of Country D has yet to receive any complaint regarding
claim from the Player A [against] Club C”.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also 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 27 July 2016. Consequently, the 2015 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 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 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 considered that it would, in
principle, be competent to decide on the present employment-related litigation
involving a Player of Country B and a Club of Country D.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies as, according to the Respondent, the
Player A, Country B / Club C, Country D
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present matter shall be adjudicated by the PSC of the Football Association of
Country D, in accordance with clause 3 of the first contract. In this regard, the
Chamber took note that, according to the Respondent, “the matter had been
brought up to the committee and the discussion of the dispute is still on going”.
5.
Furthermore, the Chamber noted that, on his part, the Claimant rejected the
competence of the PSC of the Football Association of Country D since, irrespective
of the content of clause 3 of the first contract, only the second contract “has been
sent to the Football Association of Country D” and that the contract that is “being
questioned before the FIFA is the [first contract]”.
6.
With the above considerations in mind, the Chamber wished to recall that in
accordance with art. 22 lit. b) 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. Equally, the
members of the Chamber 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 also 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 can settle an employment-related dispute between a club and a
player of an international dimension, is that the competence of the relevant
arbitration tribunal derives from a clear reference in the contract at the basis of
the dispute.
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
actually contained a clear, specific and exclusive arbitration clause in favour of the
PSC of the Football Association of Country D.
9.
With the above-mentioned considerations in mind and after a thorough analysis
of the contract at the basis of the present dispute, in particular of clause 3 of the
first contract, the members of the Chamber concluded that said clause does not
constitute an exclusive arbitration clause in favour of the PSC of the Football
Association of Country D. Indeed, the relevant clause clearly establishes that the
player has “the right to appeal his case” to said national deciding body but by no
Player A, Country B / Club C, Country D
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means does it impose on the parties an exclusive obligation to resolve their
disputes arising from the first contract in the PSC of the Football Association of
Country D. Therefore, the members of the Chamber came to the unanimous
conclusion that, in the present matter, one of the indispensable requirements in
order to determine that another body than the DRC is competent to deal with an
international employment-related dispute is not met.
10.
On account of all the above, 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 thus 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
entertain the Claimant’s claim as to the substance.
11.
Finally and for the sake of completeness, the Chamber emphasised that the
Football Association of Country D confirmed that there is no pending dispute
between the parties in front of any of its deciding bodies. In particular, the
Football Association of Country D informed FIFA that “The Football Association of
Country D has yet to receive any complaint regarding claim from the Player A
[against] Club C”.
12.
Having established the above, the Chamber proceeded to analyse which edition
of the 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 par. 2 of the
Regulations on the Status and Transfer of Players (edition 2016) and considering
that the present claim was lodged on 27 July 2016, the 2016 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 and entering into the substance of the matter, the Chamber
continued its acknowledgment of the above-mentioned facts as well as of the
documentation contained in the file. 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
substance of the matter at hand.
14.
First, the Chamber underlined that the Claimant is basing his claim on the first
contract concluded between the parties which provided that the latter party was
entitled to receive from the Respondent, inter alia, two payments of USD 132,000
“to be paid upon signing the Contract”.
15.
Subsequently, the Chamber referred to the claim of the Claimant who argues that
one of those instalments remained unpaid and therefore, requested to be
awarded the amount of USD 132,000.
Player A, Country B / Club C, Country D
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16.
Furthermore, the DRC noted that the Respondent neither argued having paid said
amount nor denied owing it to the Claimant but rather limited its position to
stating that “to date the discussion” between the parties is still “on going” and
that “we are trying to dissolve the problem prudently”.
17.
On account of the above, the Chamber concluded that it was undisputed that the
Claimant is entitled to the requested amount and that the Respondent is the
party responsible for its payment. As such, and considering the principle of pacta
sunt servanda, the members of the Chamber decided that the Respondent should
pay to the Claimant the amount of USD 132,000.
18.
As to the request for interest, the Chamber noted that the Claimant asked to be
awarded interest on the due amount as of “1 November 2014”. Nevertheless, the
Chamber pointed out that in his default notices of 12 and 25 August 2015, the
Claimant only requested from the Respondent the amount of USD 49,000
allegedly due to the fact that the “overdue payment subsists till the end of the
season and accumulated at the amount of USD 132,000”.
19.
Consequently, the members of the Chamber were of the unanimous opinion that
the Claimant was of the understanding that the amount of USD 132,000 was
payable until the end of the contractual relationship. As such, the Chamber
decided to award interest of the due amount as of 1 December 2015.
20.
The Chamber concluded its deliberations by establishing that any further claim
lodged by the Claimant is rejected.
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 partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, the amount of USD 132,000 plus 5% interest
p.a. as from 1 December 2015 until the date of effective payment.
4.
In the event that the amount plus interest due to the Claimant in accordance with
the above-mentioned number 3. is not paid by the Respondent 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.
Player A, Country B / Club C, Country D
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6.
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 m otiv ated decis ion (legal remedy):
According to article 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
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:
Omar Ongaro
Football Regulatory Director
Player A, Country B / Club C, Country D
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