Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 7 July 2015,
by Theo van Seggelen (the Netherlands), DRC judge,
on the claim presented by the player,
Player 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 case
Facts relating to the preliminary issue of competence
1.
The club from country D, Club C (hereinafter: the Respondent), contested FIFA’s
competence to deal with the claim lodged by the player in front of FIFA, on 7 July
2014, maintaining that the National Dispute Resolution Chamber (NDRC) of the
Football Federation of country D is competent based on the Professional Football
League of country D’s statement dated 3 February 2014 and the addendum dated
1 February 2014 mentioned in points 7 and 8, respectively, below.
2.
The player from country B, Player A (hereinafter: the Claimant), insists that FIFA has
competence to decide on the present matter as to the substance. In this regard, the
Claimant highlights, inter alia, that the NDRC of the Football Federation of country
D does not meet the requirements of art. 22 lit. b of the FIFA Regulations on the
Status and Transfer of Players and that the Respondent failed to prove that the
NDRC of the Football Federation of country D is recognized by FIFA. Furthermore,
the Claimant argued that the employment contract does not contain a valid
arbitration clause. In continuation, the Claimant argued that the NDRC of the
Football Federation of country D did not exist at the moment that the employment
contract was signed. Finally, the Claimant held that, in the event the arbitration
clause is considered valid, it only contains the option but no obligation to submit
disputes to the NDRC of the Football Federation of country D.
3.
As regards jurisdiction, clause 12.1 of the pertinent employment contract, signed
on 21 April 2011 and valid until 31 May 2016, stipulates that “Any dispute between
the Parties arising from or in connection with this Agreement, …, shall be settled
amicably. Unless the Parties shall reach an amiable resolution then any dispute shall
be submitted to the competent bodies of the Football Association of country D and
the Professional Football League with respect of country D’s legislation.”
4.
According to the Respondent, by stipulating that the judicial bodies of the Football
Federation of country D and the Professional Football League of country D are
competent in the event of a dispute between the parties, the parties, e contrario,
expressly excluded any other judicial bodies.
5.
The Respondent further considers that the validity of the parties’ agreement on the
choice of forum is independent of the question as to whether the chosen deciding
bodies meet the requirements of art. 22 lit. b of the FIFA Regulations on the Status
and Transfer of Players.
6.
As a result, the Respondent holds the view that the Claimant should have presented
his claim in front of the NDRC of the Football Federation of country D.
Player A, country B / Club C, country D
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7.
In support of its position, the Respondent presented a statement issued by the
Professional Football League of country D, dated 3 February 2014, in which the
latter informs the clubs that according to its decision of 20 January 2014 and the
decision of the Executive Committee of the Football Federation of country D of 1
February 2014, the activities of the judicial bodies within the Professional Football
League of country D ceased as of 1 February 2014 in accordance with the addendum
to the Football Federation of country D/Professional Football League of country D
convention (dated 21 June 2013 and valid between 1 July 2013 and 30 June 2014).
8.
According to said addendum, signed between the Football Federation of country
D and Professional Football League of country D on 1 February 2014 and
“concluded for the 2013/2014 season”, as of 2 February 2014, disputes involving
exclusively clubs participating in the first League and “their senior players” fall
under the authority of jurisdictional bodies within the Football Federation of
country D.
9.
The Respondent further asserts that the DRC of the Football Federation of country
D meets all the requirements set forth in art. 22 lit. b) of the FIFA Regulations on
the Status and Transfer of Players.
10.
In support of such position, the Respondent presented the following documents:
a. Letter from the Professional Football League of country D dated 25 August
2014 in which it explains the constitution of the country D’s NDRC and
concludes that said deciding body meets the requirements;
b. Extract of the 2014 edition of the Football Federation of country D
Regulations on the status and transfer of football players, which contains
the following particulars regarding the jurisdictional body:
i. According to the Football Federation of country D Statutes any
dispute arising from or in connection with football activity in
country D involving inter alia clubs and players shall be settled
exclusively by the Football Federation of country D jurisdictional
committees with the exclusion of ordinary courts of law for labour
disputes between clubs and players. If the employment contract
does not have any clause regarding jurisdiction of ordinary courts,
the “competence lies with the jurisdictional body/court approached
by the claimant”.
ii. Possibility of appeal in front of Football Federation of country D or
Professional Football League of country D Appeal Committee,
decisions of which can be appealed in front of the Court of
Arbitration for Sport.
iii. Applicable to all claims received as of 15 July 2014.
iv. The NDRC of the Football Federation of country D is composed of 5
members with a four-year renewable term: a) a president elected by
the representatives of the players and clubs from a list of at least five
names drawn by the Football Federation of country D Executive
Committee, b) two player representatives nominated by “AFAN”
Player A, country B / Club C, country D
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v.
vi.
vii.
viii.
ix.
x.
(Association of Amateur and Non amateur Footballers allegedly
recognised by FIFPro), one of them acting as vice president of the
NDRC, c) two club representatives nominated by the Football
Federation of country D Executive Committee.
The NDRC of the Football Federation of country D adjudicates in
panels composed of at least three members, including the NDRC
president and vice president and shall always include an equal
number of player and club representatives.
The president, vice president and NDRC members shall be
“appointed” by the Football Federation of country D Executive
Committee.
NDRC members can be replaced during their term by the Football
Federation of country D Executive Committee upon motivated
proposal of the NDRC President.
The jurisdiction of the jurisdictional committees is the one valid on
the date of submission of the statement of claim.
Statement of claim shall be filed in writing in the language of
country D. Note: according to the letter of the Professional Football
League of country D (cf. point 10.a. above), in case of foreign
players, if they are not represented by the footballers union of
country D, procedures are conducted in one of the official FIFA
languages).
The party filing a claim before the NDRC shall bear the burden of
proof.
Facts relating to the substance of the matter
11.
On 21 April 2011, the Claimant and the Respondent signed an employment contract
valid as from 1 June 2011 until 31 May 2016.
12.
Art. 5 par. 1 lit. b of the contract reads as follows:
“During the period that the [Claimant] is in activity in the [Respondent], he will
benefit of result bonus, according to the prize regulations of the [Respondent]: the net amount of 50.000 euros to the qualification to UEFA Champions League
Groups – according to the minutes played.”
13.
On 7 July 2014, the Claimant lodged a claim in front of FIFA against the Respondent,
indicating that, in the 2011/2012 season, the Respondent played 34 matches after
which it assured the first place in the Championship of country D. After playing four
further qualifying matches in August 2012, the Respondent qualified for the UEFA
Champions League Groups Phase.
14.
The Claimant explained that, therefore, the Respondent played a total of 38
matches to qualify for the UEFA Champions League Groups Phase, which
corresponds to 3,420 minutes (38 x 90 minutes). In view of the foregoing, and since
Player A, country B / Club C, country D
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he himself had participated in a total of 1,100 minutes during matches played in
the country D’s championship season 2011/2012, the Claimant claims he is entitled
to the amount of EUR 16,085 (EUR 50,000 / 3,420 x 1,100), which according to him,
should have been paid on 30 June 2013.
15.
Equally, the Claimant requested 5% interest on said amount as from the respective
due date.
16.
In its reply to the claim, the Respondent argued that the employment contract
referred to by the Claimant (“convention no. 29 of 21 April 2011”) is the wrong
version. Instead, the Respondent stated that “convention no. 33 of 16 June 2011”
is the valid employment contract.
17.
Furthermore, the Respondent explained that, on 6 August 2012, it entered into a
loan agreement with the Claimant and the club from country E, Club F, for the
temporary transfer of the Claimant from the Respondent to Club F. The Respondent
explained that clause 8 of the loan agreement stipulated the following:
“The [Claimant], by signature of the contract, declares that he no longer has any
type of claims from [Respondent], financial or of another sort, except the salary
of 9.000 EUR net/month due according to the Civil Convention signed with his
Former Club (…). During the temporary transfer the [Claimant] will not receive
any other amounts from his Former Club except his monthly salaries.”
18.
In his replica, the Claimant argued that the loan agreement referred to by the
Respondent is irrelevant, as its clause 8 does not exonerate the Respondent from
the debt claimed by the Claimant in the present proceeding. Furthermore, the
Claimant stated that the loan agreement was concluded prior to the “bonus object”
of the present claim, which was on 29 August 2012 when the Respondent played
against Club G.
19.
In its duplica, the Respondent referred to the request of the insolvency
administrators which requested that proceedings in which the Respondent is
involved are suspended in the light of the insolvency procedure that has been
opened against the Respondent on 4 February 2015 as well as country D’s national
law.
II.
Considerations of the DRC judge
Player A, country B / Club C, country D
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1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred
to as DRC judge) analysed whether he was competent to deal with the matter at
stake. In this respect, he took note that the present matter was submitted to FIFA
on 7 July 2014. Consequently, the 2012 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 2012, 2014 and 2015 editions of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 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 2015), the
DRC judge would, in principle, be competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a player from country B and a club from country D.
3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of the Professional Football
League of country D’s statement dated 3 February 2014 and the addendum, dated
1 February 2014, to the Football Federation of country D/Professional Football
League of country D convention of 21 June 2013. The Respondent further holds
that the relevant national deciding body meets all the requirements set forth in art.
22 lit. b) of the FIFA Regulations on the Status and Transfer of Players.
4.
The DRC judge noted that the Claimant rejected such position and insisted that FIFA
is competent to deal with the present matter highlighting, inter alia, that the NDRC
of the Football Federation of country D did not exist at the moment that the
employment contract was signed as well as that the arbitration clause contained in
the contract is not valid.
5.
Taking into account all the above, the DRC judge emphasised that in accordance
with art. 22 lit. b) 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 the FIFA Circular no. 1010
dated 20 December 2005. Equally, the DRC judge 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 relation to the above, the DRC judge 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 or the DRC judge can settle an employment-related dispute between
Player A, country B / Club C, country D
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a club and a player of an international dimension, is that the jurisdiction of the
relevant arbitration tribunal derives from a clear reference in the employment
contract.
7.
Therefore, while analysing whether he was competent to hear the present matter,
the DRC judge considered that he should, first and foremost, analyse whether the
employment contract at the basis of the present dispute actually contained a clear
arbitration clause in favour of the country D’s NDRC.
8.
In this respect, the DRC judge noted that the Respondent argued that the
employment contract referred to by the Claimant (“convention no. 29 of 21 April
2011”) is the wrong version. Instead, the Respondent stated that “convention no.
33 of 16 June 2011” is the valid employment contract. However, the DRC judge
noted that the Respondent provided a copy of “convention no. 33 of 16 June 2011”
in country E’s and country D’s language, without providing a translation into one
of the official FIFA languages. Therefore, with reference to art. 9 par. 1 lit. e) of the
Procedural Rules, the DRC judge concluded that he could only rely on the
employment contract submitted by the Claimant
9.
Having said this, the DRC judge turned his attention to clause 12 of the employment
contract on the basis of which the Respondent contested FIFA’s competence. Said
article stipulates that “Any dispute between the Parties arising from or in
connection with this Agreement, …, shall be settled amicably. Unless the Parties
shall reach an amiable resolution then any dispute shall be submitted to the
competent bodies of the Football Association of country D and the Professional
Football League with respect of country D’s legislation”.
10.
In this respect, and regardless of the fact that the relevant employment contract
contains a reference to dispute resolution at national level, the DRC judge pointed
out that such wording was unclear in the sense that it merely refers to “the
competent bodies of the Football Association of country D and the Professional
League with respect of the country D’s legislation” and not to a specific deciding
body in the sense of art. 22 lit. b) of the aforementioned Regulations.
11.
In view of the foregoing and in accordance with the well-established jurisprudence,
the DRC judge held that clause 12 of the employment contract cannot be
considered as a clear and exclusive arbitration clause in favour of a specific national
body within the framework of the Football Federation of country D or the
Professional Football League of country D.
12.
In addition, the DRC judge took note of the further documentation presented by
the Respondent in support of its position, in particular of the addendum to the
Football Federation of country D/Professional Football League of country D
convention, which was signed between the Football Federation of country D and
Player A, country B / Club C, country D
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Professional Football League of country D on 1 February 2014 and “concluded for
the 2013/2014 season”. In accordance with said addendum, as of 2 February 2014,
disputes involving exclusively clubs participating in the first League and “their
senior players” fall under the authority of jurisdictional bodies within the Football
Federation of country D.
13.
However, the DRC judge concurred that this additional documentation presented
by the Respondent in support of its position does not correspond in time with the
date on which the employment contract between the parties was signed, i.e. 21
April 2011. Indeed, the relevant set of rules contained in the documentation
referred to in the previous consideration only came into force long after the
Claimant had signed the employment contract with the Respondent and is,
therefore, not applicable to the contractual relationship between the parties.
Consequently, the DRC judge decided that said documentation does not alter his
aforementioned finding that the employment contract does not include a clear
arbitration clause in favour of one of the national deciding bodies, i.e. either of the
Football Federation of country D or of the Professional Football League of country
D.
14.
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 DRC
judge deemed it unnecessary to examine any further points which would need to
be assessed in relation to the composition of the NDRC of the Football Federation
of country D.
15.
In view of all the above-mentioned considerations, the DRC judge established that
the Respondent’s objection towards 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.
16.
In continuation, the DRC judge analysed which edition of the Regulations should be
applicable as to the substance of the matter. In this respect, he confirmed that in
accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and
Transfer of Players (editions 2012, 2014 and 2015) and considering that the present
claim was lodged on 7 July 2014, the 2012 edition of said Regulations is applicable
to the present matter as to the substance.
17.
The competence of the DRC judge and the applicable regulations having been
established and entering into the substance of the matter, the DRC judge continued
his acknowledgment of the above-mentioned facts as well as of the documentation
contained in the file. However, the DRC judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence
Player A, country B / Club C, country D
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which he considered pertinent for the assessment of the substance of the matter at
hand.
18.
In this context, the DRC judge took note that on 21 April 2011, the Claimant and
the Respondent concluded an employment contract valid as from 1 June 2011 until
31 May 2016.
19.
In continuation, the DRC judge acknowledged that on 6 August 2012, the parties
and the club from country E, Club F, entered into a loan agreement for the
temporary transfer of the player from the Respondent to Club F valid as of 6 August
2012 until 30 June 2013.
20.
Having said this, the DRC judge took note of the claim of the Claimant who sustains
that he was entitled to receive bonus payments from the Respondent in view of his
participation in several matches played in the country D’s championship season
2011/2012, based on clause 5 par. 1 lit. b of the employment contract. In this respect,
the DRC judge observed that the Claimant requests from the Respondent the
payment of EUR 16,085.
21.
Furthermore, the Chamber noticed that in relation to the aforementioned claim,
the Respondent referred to clause 8 of the loan agreement signed by the Claimant,
the Respondent and Club F, which stipulates that “The [Claimant], by signature of
the contract, declares that he no longer has any type of claims from [Respondent],
financial or of another sort, except the salary of 9.000 EUR net/month due according
to the Civil Convention signed with his Former Club (…). During the temporary
transfer the [Claimant] will not receive any other amounts from his Former Club
except his monthly salaries”.
22.
In this respect, the DRC judge concluded that the aforementioned clause inserted
in the loan agreement signed by both the Claimant and the Respondent, as well as
Club F, unambiguously stipulates that the Claimant has no more financial claims
towards the Respondent and that the Claimant will not receive any other amounts
from the Respondent except his monthly salaries. In addition, bearing in mind art.
12 par. 3 of the Procedural Rules, in accordance with which any party claiming a
right on the basis of an alleged fact shall carry the burden of proof, the DRC judge
deemed that the Claimant had not presented any documentation, which would
demonstrate that any payments in line with clause 5 par. 1 lit. b of the employment
contract would be excluded from the scope of clause 8 of the loan agreement.
23.
On account of the aforementioned clause 8 of the loan agreement, the DRC judge
concluded that he could not uphold the Claimant’s arguments and decided to reject
the claim of the Claimant in its entirety.
Player A, country B / Club C, country D
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III.
Decision of the DRC judge
1.
The claim of the Claimant, Player 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 DRC judge:
Marco Villiger
Acting Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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