Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 23 July 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
John Bramhall (England), member
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
1.
On 5 July 2009, the Player of Country B, Player A (hereinafter: the Claimant), and the
Club of Country D, Club C (hereinafter: the Respondent), signed an employment
contract (hereinafter: the contract) valid for the 2009/2010 and 2010/2011 seasons.
2.
According to art. 7 of the contract, the Respondent undertakes to pay the Claimant the
following amounts:
a) EUR 300,000 as total remuneration per season, payable as follows (art. 7.1):
i. 20% upon the signature of the contract (art.7.1 a));
ii. 20% at the end of the first half of the 2009/2010 season (art.7.1 b));
iii. 20% payable four matches before the end of the season, depending on the
player’s performance on the field and on his compliance with the contract
(art.7.1 c));
iv. 40% payable as basic salary “weekly and monthly” for the entire duration
of the contract “(season)” (art.7.2); the player’s weekly salary corresponds
to 1% of the of the total remuneration per season, considering that each
season consists of 40 weeks (art. 7.3.);
b) 20% of the amount mentioned in art. 7.1 c) in addition to the basic salary,
depending on the club’s evaluation of the player’s performance, of how many
times he has been part of the 25-, 18- or 11-players list and of the substitutions.
3.
Furthermore, art. 8 of the contract stipulates that, in case of a contractual dispute
between the parties, the latter should refer in first instance to the arbitration court of
the football league. The parties may appeal a decision of such body to the legal
committee of the Football Federation of Country D, which is the second and final
instance.
4.
On 19 April 2013, the Claimant lodged a claim in front of FIFA against the Respondent,
requesting, after amending his claim, the payment of outstanding remuneration in the
total amount of EUR 387,988, plus interest of 5% p.a. as from 1 July 2011, broken down
as follows:
EUR 87,988 as per art.7.1 b) (cf. point I.2.a.ii above);
EUR 120,000 as per art.7.1 c) for 2 seasons (cf. point I.2.a.iii above);
EUR 60,000 as per art.7.2 and 7.3, corresponding to remuneration for the second
half of the 2009/2010 season (cf. point I.2.a.iv above);
EUR 60,000 as per art.7.2 and 7.3, corresponding to remuneration for the first
half of the 2010/2011 season (cf. point I.2.a.iv above);
EUR 60,000 as per art.7.2 and 7.3, corresponding to remuneration for the second
half of the 2010/2011 season (cf. point I.2.a.iv above).
5.
In his arguments, the Claimant claims having always complied with the contract. The
Respondent, however, constantly failed to pay his entire remuneration, having made
several, unspecified and random payments. The Claimant maintains to have received
Player A, Country B / Club C, Country D
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from the Respondent, for the entire duration of the contract, the total amount of EUR
212,012, instead of EUR 600,000. Thus, the amount of EUR 387,988 remains outstanding.
6.
In the context of the present procedure FIFA received on 14 January 2012
correspondence from Ms E, allegedly the Claimant’s wife, informing that he had lodged
a claim in Country D against Club C, requesting the payment of outstanding
remuneration, consisting of EUR 114,000 as salaries, EUR 60,000 as the reimbursement
of a payment made to his counsellor, allegedly deducted from his salary, EUR 30,000 as
a fine allegedly imposed on the player for the team’s bad performance and for leaving
the club, as well as USD 15,000 as a bonus for winning the 2011 championship.
According to Ms E, the Claimant engaged a lawyer in Country D, who lodged a claim in
front of the Football Federation of Country D. This claim was allegedly accepted,
however, the Respondent refuses to pay him the due amounts. Thus, Ms E requested
FIFA to support the Claimant in the execution of that decision.
7.
Furthermore, documentation was provided that the Claimant, by means of his former
legal representative, Mr F, to which a power of attorney was provided, lodged on 18
July 2012 a “request for disciplinary action” against the club in front of FIFA, based on a
“written judgement issued by the Disciplinary Committee” of the Football Federation of
Country D, issued on 25 January 2012. The aforementioned decision states that: “Mr G
and Mr H, attorneys of Player A, filed a petition on Aug. 8, 2011, against Club C, and
declared that the amount of Euro 145,000 was due to the mentioned player as the
balance of the contract amount and 10% transfer fee, totally for Euro 207,000, and
demand for investigation and convicting the club pay this amount. […] The Committee
heard the statements of both parties […]” and “convicted Club C pay the amount of
Euro 109,237 to Player A […]”.
8.
When requested by FIFA to provide a copy of the statement of claim allegedly lodged in
front of the Football Federation of Country D, the Claimant claimed not to be aware of
a claim lodged in front of the Football Federation of Country D, let alone whether a
decision was passed in such matter. He further explains to have contacted Mr G after
the expiry of his contract, as per the recommendation of a fellow player, with a view to
claim from the Respondent the payment of his outstanding remuneration in front of
the relevant body of the Football Federation of Country D. However, the Claimant
claims that, since he left Country D, he is no longer able to contact Mr G. Furthermore,
the Claimant points out that the decision of the Football Federation of Country D
provided to FIFA is only a translation, and that the original probably does not exist or
cannot be executed. He claims not to have received the amount allegedly granted to
him by the decision of the Football Federation of Country D. Finally, the Claimant
deems that the DRC should be competent to deal with the present matter, in
accordance with art. 22 b) of the Regulations, as no independent arbitration tribunal is
established in Country D. Thus, the present matter is not affected by res judicata.
Player A, Country B / Club C, Country D
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9.
The Claimant rejected the content of the correspondence of both Mr F and of Ms E. In
particular, he pointed out that the correspondence of Ms E is dated 14 January 2012
and that the alleged decision was only taken by the Football Federation of Country D
on 25 January 2012. Independently of whether a decision was in fact reached by the
Football Federation of Country D or not, the Claimant claims that no res judicata affects
the present case, since Country D does not possess an independent deciding body
providing for equal representation and fair proceedings and such a decision was not
issued by a State court. Finally, the Claimant insisted on having a decision passed by the
DRC in the present matter.
10.
In spite of having been invited to do so, the Respondent did not reply to the Claimant’s
claim.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “Chamber”
or “DRC”) 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 19 April 2013.
Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is
applicable to the matter at hand (cf. article 21 of the Procedural Rules).
2.
In continuation, 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 2015;
hereinafter: Regulations), the Dispute Resolution Chamber 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 of Country B and a Club
of Country D.
3.
Before entering into the substance of the present matter and while exercising its
duty to analyse ex officio the admissibility of every claim lodged in front of it, the
Chamber noted that the question of res iudicata must be discussed in the context of
the present claim.
4.
In this respect, the Chamber pointed out that several documents provided in the
course of the investigation of the present matter appear to indicate that the
Claimant had lodged a claim, regarding inter alia the payment of his remuneration
which had remained outstanding after the expiry of the contract, before the
relevant deciding body of the Football Federation of Country D and that such claim
has in fact already been decided by said body on 25 January 2012. In particular, the
Chamber pointed out the existence of the following documentation on file:
Player A, Country B / Club C, Country D
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a. Correspondence of Ms E, dated 14 January 2012 (cf. point I.6. above),
allegedly the Claimant’s wife, informing that he had lodged a claim against
the Respondent in Country D, for outstanding remuneration. In spite of the
fact that the claim had been allegedly accepted, the Respondent refused to
pay the Claimant the due amounts therein established. Thus, Ms E
requested FIFA’s assistance to execute the content of that decision.
b. Correspondence dated 18 July 2012 of the Claimant himself, via his former
legal representative, Mr F, for which a power of attorney was provided (cf.
point I.7. above), requesting “disciplinary action” against the Respondent in
front of FIFA, based on a decision issued by the “Disciplinary Committee” of
the Football Federation of Country D, on 25 January 2012, a translation of
which was provided. According to such decision, the Claimant had filed a
claim in front of the relevant deciding body of the Football Federation of
Country D on 8 August 2011, requesting inter alia the payment of
remuneration which remained unpaid after the expiry of the contract. The
Claimant’s claim was allegedly partially accepted, but no payments were
made by the Respondent.
5.
Subsequently, the Chamber noted that the Claimant explained that he, indeed,
contacted a lawyer at the end of his contract to claim from the Respondent the
payment of his still outstanding remuneration in front of the Football Federation of
Country D. He further claims that, after he left Country D, he was no longer able to
contact such lawyer. Therefore, he was not aware of a decision eventually reached
by the Football Federation of Country D and claimed not to have received any
amounts from the Respondent. Finally, the Claimant explained that, in any case, his
claim before FIFA could not be affected by res iudicata, since the Football
Federation of Country D does not possess an independent deciding body,
guaranteeing for fair proceedings.
6.
In view of the foregoing, the Chamber first wished to highlight that the
correspondence dated 18 July 2012 (cf. point II.4.b. above), sent by Mr F on behalf
of the Claimant, was duly accompanied by the power of attorney granted by the
Claimant to his representative. Furthermore, the Chamber was also keen on
pointing out that the Claimant, when provided with a copy of the correspondence
of Ms E, dated 14 January 2012 (cf. point II.4.a. above), did not dispute his
relationship to the sender or the authenticity of such letter.
7.
Subsequently, the Chamber noted that both letters mention that the claim allegedly
decided by the Football Federation of Country D was in fact lodged by the Claimant
himself and that the latter then requested the assistance of FIFA in order to execute
such decision. In addition, the DRC took note of the Claimant’s allegations in point
II.5. above, according to which he confirms to have in fact engaged a lawyer in
Country D with a view to claiming the amounts which allegedly remained
outstanding after the expiry of his contract with the Respondent, but alleges to
Player A, Country B / Club C, Country D
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have lost contact with said lawyer and not to be aware of the further developments
of this claim.
8.
At this point, the DRC was eager to point out that the Claimant’s allegations in
point II.5. above clearly confirm the content of the correspondence provided by Mr
F and by Ms E.
9.
In view of the foregoing, the Chamber was keen on pointing out that the Claimant,
by lodging a claim before the Football Federation of Country D and, later on,
requesting its execution in front of FIFA, obviously recognised the competence of
such body to decide upon his claim for outstanding remuneration, inter alia, and
therefore his allegation of lack of independence of the deciding bodies of the
Football Federation of Country D, at this stage, has become obsolete and can by no
means be accepted. Thus, on account of the foregoing considerations, the Chamber
deemed it irrelevant to analyse the adequacy of such deciding body with the prerequisites of art. 22 b) of the Regulations. Indeed, the Claimant himself voluntarily
lodged a claim in front of the deciding bodies of the Football Federation of Country
D and, by doing so, recognized the competence of such bodies.
10.
In continuation, in light of the considerations made above, the Chamber deemed it
appropriate to further continue with the analysis of the incidence of res iudicata in
the case at hand. In this respect, the DRC wished to briefly recall that on the basis of
the principle of res iudicata, a decision-making body is not in a position to deal with
the substance of a case in the event that another deciding body has already dealt
with the same matter by passing a final and binding decision on it. Indeed, the
parties to the dispute as well as the deciding authority are bound by the final and
binding decision previously passed.
11.
Furthermore, the Chamber underlined that the principle of res iudicata is applicable
if, cumulatively and necessarily, the parties to the disputes and the object of the
matter in dispute are identical.
12.
In this respect, the Chamber recalled that the criterion of the identity of the parties
is given if the parties to the disputes are the same. Having said this, the Chamber
noted that both the Claimant and the Respondent were the parties in the claims
lodged at FIFA and at the Football Federation of Country D. As a consequence, as
the parties to both disputes are the same, the Chamber came to the conclusion that
the condition of the identity of parties is given.
13.
The Chamber then turned its attention to the criterion of the object of the matter
in dispute. In this respect, the members of the Chamber started by acknowledging
that the identity of the subject matter is given if the requests of the two claims are
similar. In view of the foregoing, the Chamber went on analysing and comparing
the requests made by the Claimant in front of FIFA and in front of the Football
Federation of Country D. In this regard, the DRC deemed it appropriate to point out
Player A, Country B / Club C, Country D
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that the contract signed between the parties on 5 July 2009 was valid until the end
of season 2010/2011, which, according to the information contained in TMS, ended
on 20 May 2011. Bearing that in mind, the DRC noted that both claims lodged in
front of the Football Federation of Country D and of FIFA, respectively, on 8 August
2011 and on 19 April 2013, were lodged after the contract had come to its natural
term.
14.
From the information and documentation on file, the Chamber could verify, on the
one hand, that the Claimant initiated legal proceedings in front of the Football
Federation of Country D against the Respondent in order to obtain inter alia the
payment of his remuneration which still remained outstanding after the expiry of
the contract (cf. points I.6., I.7. and I.8. above).
15.
This information is confirmed by means of the decision dated 25 January 2012
issued by the Football Federation of Country D, which was accepted and recognized
by the Claimant as he requested its execution in front of FIFA on 18 July 2012, via
his duly authorised legal representative (cf. point I.7. above). By means of the
aforementioned decision, the Football Federation of Country D stipulated the total
amount still due by the Respondent to the Claimant.
16.
In view of the aforementioned, the Dispute Resolution Chamber held that both
legal actions were based on the same employment contract and that both actions
were aimed at establishing the amount of remuneration remained outstanding
after the expiry of such contract. On account of the above, the Chamber
unanimously determined that the object of both disputes is identical and that,
therefore, the condition of identity of the object of the matter in dispute is also
given.
17.
Consequently, the Chamber concluded that, compared to the legal action in front of
the Football Federation of Country D, the matter at hand not only concerns
identical parties to the dispute but also identical objects of the matter in dispute
and has, therefore, to be considered as a res iudicata.
18.
In light of the above, the Chamber unanimously decided that in accordance with
the general legal principle of res iudicata it is not in a position to deal again with
the substance of the present matter.
19.
Finally, the Chamber wished to emphasise that it is not a body of appeal in front of
which matters that were already dealt with as to their substance by another
competent national deciding authority can be filed for revision.
*****
Player A, Country B / Club C, Country D
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is inadmissible.
*****
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:
_____________________________
Marco Villiger
Acting Deputy Secretary General
Encl.: CAS directives
Player A, Country B / Club C, Country D
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