Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 10 July 2013,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player P, from country B
as Claimant
against the club,
Club A, from country C
as Respondent
regarding an employment-related contractual dispute
arisen between the parties
I.
Facts of the case
1.
On 1 January 2011, Player P, from country B (hereinafter: the Claimant), and Club
A, from country C (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract) valid as from 1 June 2011 until 30 May 2012.
2.
Clause 1 lit. a) of the contract provided for a total remuneration of EUR 80,000,
payable in monthly instalments of EUR 8,000 each, of which the first instalment
shall be paid on 31 June 2011 and the following “on the 30th of each following
working month”.
3.
On 18 July 2011, the parties signed a termination agreement, according to which
the Claimant was entitled to receive the amount of EUR 15,000 as compensation
for the termination of the contract and “as a full and final settlement of all his
claims emanating from the contract of employment dated 1/01/2011”. According
to its art. 2, the parties agreed that the Respondent shall give three post-dated
cheques for the amount of EUR 5,000 each to the Claimant.
4.
Clause 4 of the termination agreement establishes that “this agreement shall be
governed and construed by the country C Football Association rules and
regulations”.
5.
On 11 January 2012, the Claimant lodged a complaint before FIFA against the
Respondent requesting from the latter the total outstanding amount of EUR
20,000 plus interest and additional costs, made up as follows:
- EUR 5,000 as partial salary of June 2011;
- EUR 15,000 as compensation agreed in the termination agreement.
6.
In particular, the Claimant explained that the Respondent had paid him only the
amount of EUR 3,000 instead of EUR 8,000 for the salary of June 2011 and with
delay. In July 2011, the Respondent had allegedly informed the Claimant that it
would no longer pay his salary and that he was not part of the team anymore.
Therefore, the parties agreed on the termination of the contract. According to
the Claimant, he had received three cheques of EUR 5,000 each with the due
dates 15 October 2011, 15 December 2011 and 15 February 2012. However, the
cheques could not be honoured, but he still had to pay charges amounting to
currency of country H 194.50. Finally, the Claimant stated having tried to reach
the president of the Respondent several times, however, without success.
7.
In its reply to the claim, the Respondent contested FIFA’s competence referring to
clause 4 of the termination agreement (cf. point I. 4. above) stating that the DRC
of the country C Football Association is competent.
Player P, from country B / Club A, from country C
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8.
In this regard, the Respondent provided a copy of the “Regulations for the
registration and transfer of football players” of the country C Football Association
(edition 2005; hereinafter: the Regulations of the country C Football Association).
According to the country C Regulations, the Dispute Resolution Committee
(hereinafter: NDRC) is composed of five members, namely the Chairman, the ViceChairman and one member, all appointed by the Executive Committee of the
country C Football Association and two members appointed by the country C
Football Players’ Association (art. 22.1.1 and art. 22.1.3).
9.
The decisions are taken by simple majority (art. 22.8.1), subsequent to a summary
and written procedure (art. 22.13.1 and art. 22.13.3). Clubs affiliated to the
country C Football Association, football players and other interested persons are
entitled to lodge a claim before the NDRC (art. 22.13.5). Any decision of the NDRC
may be appealed to the Disciplinary Authority of the country C Football
Association, which shall reach a final decision (art. 22.10).
10.
With regard to the substance of the matter, the Respondent alleged having fully
and finally settled all disputes and therefore the Claimant cannot claim any other
amount from the Respondent.
11.
In this respect, the Respondent alleged that it provided the player with three
cheques for the fulfilment of the termination agreement, of which the first
cheque had allegedly been paid in cash due to some problems with the bank “and
a receipt has been issued while the remaining of the cheques have been
presented and have been honoured by the club”.
12.
Finally, the Respondent asked to condemn the Claimant to pay to the Respondent
the legal expenses incurred as well as any procedural costs.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether he was
competent to deal with the case at hand. In this respect, the DRC judge took note
that the present matter was submitted to FIFA on 11 January 2012. Consequently,
the DRC judge concluded that 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
par. 2 and 3 of the Procedural Rules).
2.
With regard to the competence of the DRC judge, art. 3 of the Procedural Rules
states that the DRC judge shall examine his jurisdiction in the light of art. 22 to 24
Player P, from country B / Club A, from country C
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of the Regulations on the Status and Transfer of Players (edition 2012). In
accordance with art. 24 par. 1 and par. 2 lit. i. in combination with art. 22 lit. b) of
the aforementioned Regulations, the DRC judge would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a country B player and a
country C club.
3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause 4 of the termination
agreement highlighting that the “Dispute Resolution Committee” of the country
C Football Federation is competent.
4.
In this respect, the DRC judge referred to the above-mentioned clause of the
termination agreement, on the basis of which the Respondent contested FIFA’s
jurisdiction. According to said clause, “this agreement shall be governed and
construed by the country C Football Association rules and regulations”. Hence, the
DRC judge outlined that said clause does not explicitly refer to the exclusive
competence of a national dispute resolution chamber or any similar arbitration
body in the sense of art. 22 lit. b) of the aforementioned Regulations in order to
settle disputes between the contracting parties regarding the execution of the
agreement.
5.
Notwithstanding the above, the DRC judge emphasised that in accordance with
art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of
Players he 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 judge
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.
In this context, the DRC judge wished to stress that the Respondent was unable to
prove that, in fact, the country C Football Association “Dispute Resolution
Committee” meets the minimum procedural standards for independent
arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations.
Player P, from country B / Club A, from country C
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7.
In this respect, the DRC judge referred to the jurisprudence of the Dispute
Resolution Chamber, which already, on several occasions, established that the
country C Football Association “Dispute Resolution Committee” does not meet
the minimum procedural standards for independent arbitration tribunals as laid
down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players. In
this regard, the DRC judge, as previously done by the DRC, referred to the
principle of equal representation of players and clubs and underlined that this
principle was one of the very fundamental elements to be fulfilled, in order for a
national dispute resolution chamber to be recognised as such. Indeed, this
prerequisite is mentioned in the Regulations on the Status and Transfer of Players,
in the Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which
illustrates the aforementioned principle as follows: “The NDRC shall be composed
of the following members, who shall serve a four-year renewable mandate: a) a
chairman and a deputy chairman chosen by consensus by the player and club
representatives (…); b) between three and ten player representatives who are
elected or appointed either on proposal of the players’ associations affiliated to
FIFPro, or, where no such associations exist, on the basis of a selection process
agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In
this respect, the FIFA Circular no. 1010 states the following: “The parties must
have equal influence over the appointment of arbitrators. This means for example
that every party shall have the right to appoint an arbitrator and the two
appointed arbitrators appoint the chairman of the arbitration tribunal (…).
Where arbitrators are to be selected from a predetermined list, every interest
group that is represented must be able to exercise equal influence over the
compilation of the arbitrator list.”
8.
In conformity with the jurisprudence of the DRC, the DRC judge decided that the
country C Football Associaion’s “Regulations for the Registration and Transfer of
Football Players”, in accordance with which, inter alia, the chairman, vicechairman and one member are elected by the Executive Committee of the country
C Football Association and two members are elected by the country C Football
Players’ Association, do not meet the aforementioned principles.
9.
In view of all the above, the DRC judge established that, in line with the constant
jurisprudence of the DRC, the Respondent’s objection to the competence of FIFA
to deal with the present matter has to be rejected and that the DRC judge 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.
10.
Subsequently, the DRC judge 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, he 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)
Player P, from country B / Club A, from country C
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and considering that the present claim was lodged in front of FIFA on 11 January
2012, the 2010 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
11.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. The DRC
judge started by acknowledging the above-mentioned facts of the case as well as
the documentation contained in the file.
13.
First of all, the DRC judge acknowledged that the Claimant and the Respondent
had concluded an employment contract valid as from 1 June 2011 until 30 May
2012. Furthermore, the DRC judge noted that on 18 July 2011, the parties signed a
termination agreement, according to which the Claimant was entitled to receive
the amount of EUR 15,000 as compensation for the termination of the contract
and “as a full and final settlement of all his claims emanating from the contract of
employment dated 1/01/2011”. According to its art. 2, the parties agreed that the
Respondent shall give three post-dated cheques for the amount of EUR 5,000 each
to the player.
12.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of EUR 20,000 plus
interest, corresponding to the partial salary of June 2011 of EUR 5,000 and
compensation agreed in the termination agreement of EUR 15,000.
13.
Subsequently, the DRC judge noted that the Respondent, in its defence, stated
that it had paid the Claimant all amounts due, since it provided the latter with
three cheques of which the first cheque had been paid in cash, while the
remaining cheques have been honoured by the Claimant.
14.
In this context, the DRC judge first recalled the basic principle of the burden of
proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a
party claiming a right on the basis of an alleged fact shall carry the respective
burden of proof.
15.
In this respect, the DRC judge noted that the Respondent did not substantiate its
defence, as it did not present any documentary evidence in respect of the
payments it sustained to have already paid to the Claimant.
16.
In view of all the above and, in particular, taking into account the lack of
documentary evidence presented by the Respondent, the DRC judge concluded
that it could be established that the Respondent had failed to pay the Claimant
Player P, from country B / Club A, from country C
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the amount of EUR 15,000 as agreed upon between the parties in the termination
agreement.
17.
As a consequence, and in accordance with the general legal principle of pacta
sunt servanda, the DRC judge decided that the Respondent must fulfil its
obligations towards the Claimant and is to be held liable to pay the Claimant the
outstanding amount of EUR 15,000 plus 5% interest p.a. as of 11 January 2012.
Equally, the DRC judge decided that the Claimant has to return to the Respondent
the three cheques with the value dates of 15 October 2011, 15 December 2011
and 15 February 2012, respectively issued by Club A in the total amount of EUR
15’000 to the order of “Player P”.
18.
Finally, the DRC judge turned its attention to the request of the Claimant for the
partial salary of June 2011 in the amount of EUR 5,000. In this respect, the DRC
judge recalled that according to the termination agreement signed by the parties
on 18 July 2011, the amount of EUR 15,000 was agreed upon between the parties
as compensation for the termination of the contract and “as a full and final
settlement of all his claims emanating from the contract of employment dated
1/01/2011”.
19.
Therefore, the DRC judge concluded that the termination agreement clearly
specified that any other debt beyond EUR 15,000 of the Respondent towards the
Claimant is no longer claimable.
20.
In view of the above, the DRC judge decided that he must reject the Claimant’s
claim regarding the partial salary of June 2011.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player P, is admissible.
2.
The claim of the Claimant, Player P, is partially accepted.
3.
The Respondent, Club A, is ordered to pay to the Claimant, Player P, within 30
days as from the date of notification of this decision, the amount of EUR 15,000
plus 5% interest p.a. as of 11 January 2012 until the date of effective payment.
4.
If the aforementioned sum plus interest is not paid within the above-mentioned
time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its consideration and a formal decision.
Player P, from country B / Club A, from country C
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5.
Any further request filed by the Claimant is rejected.
6.
The Claimant, Player P, has to return to the Respondent, Club A, within 30 days as
from the date of notification of this decision the three cheques with the value
dates of 15 October 2011, 15 December 2011 and 15 February 2012, respectively
issued by Club A in the total amount of EUR 15’000 to the order of “Player P”.
7.
The Claimant, Player P, is directed to inform the Respondent, Club A, immediately
and directly of the account number to which the remittance is to be made and to
notify the DRC judge of every payment received.
Note relating to the motivated decision (legal remedy):
According to article 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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player P, from country B / Club A, from country C
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