Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 13 July 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Mario Gallav otti (Italy ), member
Theo v an S eggelen (Netherlands ), 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 23 April 2014, the Futsal Player of Country B, Player A (hereinafter: the
Claimant), and the Futsal Club of Country D, Club C. (hereinafter: the
Respondent), signed an employment contract (hereinafter: the contract), valid
from 1 July 2014 until 30 June 2016.
2.
According to the contract, the Claimant was entitled to inter alia the following
remuneration:
-
EUR 26,000 for the “2013/2014” season, payable in 10 monthly
installments of EUR 2,600;
-
EUR 27,000 for the “2015/2016” season, payable in 10 monthly
installments of EUR 2,700.
3.
The contract stipulated that the remuneration is payable within the first 15 days
of each month, starting with the first payment on 1 August 2014 and ending on
1 May of each of the two seasons.
4.
Art. 7 of the contract defined as “SANCTIONS”, established the following:
1) If the Claimant is economically sanctioned by the competent organs of the
Respondent due to his behavior in accordance with the disciplinary
regulations, the Respondent could set off the sanctioned amount from
the payable remuneration;
2) In case that the Claimant repeats in a “gross” or “very gross”
infringement, the Respondent could terminate the contract unilaterally,
and the Claimant would not be able to receive compensation from the
Respondent;
3) Without prejudice to the above, the sanction schedule provided in the
internal regulations of the Respondent will be applicable.
5.
Furthermore, art. 11 of the contract established several scenarios in which the
contract could be terminated unilaterally, inter alia, the following:
a) Both parties can terminate the contract unilaterally, provided that the
termination notice is given three months in advance minimum;
b) If the Respondent terminates the contract unilaterally without just cause,
the Claimant will have the right to receive the totality of the agreed
remuneration pending to be paid;
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Player A, Country B / Club C, Country D
c)
6.
If the Claimant terminates the contract unilaterally without just cause, the
Claimant shall pay the Respondent as compensation EUR 10,000.
On 24 June 2014, the Respondent unilaterally terminated the contract with the
Claimant (hereinafter: the termination). In this respect, the Claimant provided a
document signed by the Respondent on that date that stated, inter alia, the
following:
Due to the “well-founded suspicion” regarding the Claimant’s lack of
discipline, a disciplinary process was initiated against the Claimant by the
Respondent, which concluded that the Claimant infringed on several
occasions the rules established in the “Behavior Regulations” and the
contract. As the Respondent considers this attitude “unacceptable”, the
Respondent has decided to fire the Claimant;
The Respondent confirms that the Claimant’s lifestyle is not appropriate
for an athlete and has damaged the Respondent’s good image;
The decision to terminate the contract is motivated by the findings of the
disciplinary process conducted by the Respondent;
The measure was imposed on the basis of the pictures of the Claimant and
electronic records in possession of the Respondent, which confirmed the
alleged lack of compliance with the disciplinary rules, in particular 11
times, between 10 March 2014 and 24 March of 2014;
The Claimant’s lifestyle caused damages on the hotel, “Hotel E”, and he
was considered a “persona non-grata by it”, which is supported by the
statement of the director of the hotel;
The Claimant has 30 days to submit a written complaint before the
competent Labour Court in case he considers this measure to be damaging.
7.
On 31 July 2014, the Claimant, via his legal representative, lodged a claim before
the City F Administrative and Labour Court (hereinafter: the Labour Court of
Country D) against the Respondent for compensation for breach of contract
requesting the payment of EUR 31,200. The Claimant further requested that the
Respondent bears the costs of the proceedings.
8.
In his claim before the Labour Court of Country D, the Claimant held that the
Respondent terminated the contract unlawfully with immediate effect and
requested compensation for the alleged unlawful termination.
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Player A, Country B / Club C, Country D
9.
By means of order XXX dated 5 September 2014, the Labour Court of Country D
notified the claim of the Claimant to the Respondent, providing it with a 15
days’ deadline to submit its position.
10.
By means of a letter dated 3 November 2014, the Claimant, via his legal
representative before the Labour Court of Country D, informed about his
withdrawal of the claim against the Respondent before said court, requesting
the finalization of the proceedings without further ado. In said document the
Claimant declared that the reason for the withdrawal of the claim is that “I do
not wish to exercise my claim against the respondent through the legal actions
lodged in the courts, but rather by other means” (free translation from Spanish:
Spanish text translated from Language of Country D of the mentioned letter
reads as follows: “Teniendo en cuenta que no deseo ejercer mi reclamación hacia
el Demandado a través de las acciones legales presentadas en el juzgado social
sino de otro modo…”). Furthermore, the Claimant stated that according to the
information he obtained from the Respondent, it would not request the
procedural costs, and he was on track to obtain said declaration from it.
11.
By way of a letter dated 3 November 2014, the Respondent “consented to the
termination of the lawsuit” and stated that it did not wish to enforce any
expenses against the Claimant.
12.
Moreover, by means of order XXX dated 6 November 2014 (hereinafter: Order
G), the Labour Court of Country D ordered the abandonment of the claim
lodged by the Claimant against the Respondent. In this respect, the Labour Court
of Country D confirmed that the Claimant abandoned the action by submitting
his statement to the court, received on 6 November 2014. The Labour Court of
Country D informed the parties that they were not expected to appear before
the court on 18 November 2014, date which was set for the hearing. Moreover,
in accordance with the document on file, an appeal may be lodged against this
order within 15 days following its reception.
13.
Furthermore, by virtue of order XXX dated 17 December 2014 (hereinafter:
Order H), the Labour of Country D established that Order G became binding and
enforceable on 9 December 2014.
14.
On 25 January 2016, the Claimant lodged a claim before FIFA against the
Respondent requesting compensation for breach of contract, claiming the total
amount of EUR 53,000 plus 5% interest as of the due dates. The Claimant
explained that his request corresponds to EUR 26,000 for the 2014-2015 season
and EUR 27,000 for the 2015-2016 season. Furthermore, the Claimant requested
the imposition of procedural costs on the Respondent.
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Player A, Country B / Club C, Country D
15.
According to the Claimant, the Respondent unilaterally terminated the contract
without just cause. In his claim before FIFA, the Claimant explained that during
the holiday period of August 2014, he received the termination of the contract
from the club (cf. point I.6 above), in which, according to the Claimant, the
Respondent based its termination on “fake facts” and “made up accusations” in
order to, unilaterally and without just cause, terminate the contract.
16.
The Claimant, on his part, contested the grounds of the termination of the
contract, as the Claimant sustained that his behavior during the time with the
club was “impeccable”. The Claimant maintained that the pictures of him that
the Respondent has in its possession were taken during his days off, days in
which the player and other teammates “went out to distract themselves”. In this
respect, the Claimant insisted that the Respondent was fully aware that he and
his teammates “went out” during their days off, but that he never performed
such leisure activities before trainings or games, and that in any case, his
recreational activities in his free time did not affect the image of the
Respondent, nor infringed the Respondent’s disciplinary regulations. The
Claimant further denied causing damages in the hotel properties.
17.
Furthermore, the Claimant questioned why the Respondent would decide to sign
a contract with him on 23 April 2014, knowing about the alleged incidents
between 10 March 2014 and 24 March 2014. According to the Claimant, this only
confirms that the alleged discipline infringements did not happen.
18.
The Claimant acknowledged that he lodged a claim before the Labour Court of
Country D prior to lodging his claim before FIFA (cf. point I.7 above). In this
respect, the player explained that he withdrew his claim against the Respondent
before the Labour Court of Country D after receiving advice from his Labour
Lawyer of Country D, as he understood that FIFA’s Dispute Resolution Chamber is
competent for this matter (cf. point I.10 above). The Claimant argued that the
proceedings never started before the Labour Court of Country D as he withdrew
his claim and that he never waived his rights. The Claimant enclosed a copy of
Order G (cf. point I.12 above) along with a Spanish language translation of it.
19.
Moreover, the Claimant argued that he tried to solve the case amicably before
lodging his claim before FIFA. In this regard, the Claimant held that he contacted
the club on 30 April 2015 and 15 June 2015, requesting the payment of EUR
53,000, providing the Respondent a 10 days’ time limit to proceed with the
payment. In this respect, the Claimant held that by means of a letter dated 28
October 2015, the Respondent rejected the possibility to settle the matter
amicably as the matter had already been archived after the Claimant’s
withdrawal of his claim before the Labour Court of Country D.
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Player A, Country B / Club C, Country D
20.
Finally, the Claimant explained that his request for compensation is based on art.
11 of the contract.
21.
In its reply, the Respondent rejected the player’s claim. In this regard, the
Respondent referred to the concept of res iudicata and expressed its
“incomprehension” of the claim lodged by the Claimant before FIFA since the
Claimant’s claim before the Labour Court of Country D has been terminated with
final and binding effect at his own request. In this regard, the Respondent also
provided a copy of Order G and Order H (cf. point I.13 above), along with an
English translation of the documents.
22.
According to the Respondent, the Claimant withdrew his claim as the parties
reached an amicable settlement in the matter at hand. In this respect, the
Respondent provided a written statement from its Club Secretary dated 20 April
2016 in order to support its argumentation.
23.
Furthermore, the Respondent held that as explained in the termination, the
Claimant’s behavior is unworthy of a professional athlete and caused
considerable loss of prestige and financial damage to the Respondent. The
Respondent declared that due to the Claimant’s behavior, along with one of his
teammates, it holds a 30,000,000 debt recorded against them. The Respondent
insisted that the evidence enclosed to the termination confirmed that the
Claimant materially breached the contract on several occasions. Moreover, the
Respondent insisted on the damages caused by the Claimant on the hotel’s
property and enclosed a written statement of the hotel’s director to support its
allegation.
24.
The Respondent sustained that the termination wrongly refers to incidents
between 10 March 2014 and 24 March 2014, as this last date should read 24 May
2014. The Respondent held that the error is the byproduct of an incorrect
translation.
25.
Alternatively, the Respondent sustained that, since the contract was only drafted
in Spanish and there is no Version in Language of Country D signed between
them, there is no valid employment between the parties.
26.
After being requested by the FIFA administration, the Respondent provided,
inter alia, the following documentation:
A copy of order XXX dated 5 September 2014, by means of which the
Respondent was notified of the claim of the Claimant by the Labour Court
of Country D;
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Player A, Country B / Club C, Country D
A copy of the Power of Attorney granted by the Claimant to Lawyer J
dated 22 July 2014, which refers to the dispute between the parties and
by means of which the Claimant grants Lawyer J power to represent him
before the courts and other competent authorities;
A copy of the Claimant’s claim against the Respondent before the Labour
Court of Country D for the “determination of the unlawful termination of
employment and its legal consequences”;
Its letter dated 3 November 2014 (cf. point I.11 above).
27.
The Claimant submitted his replica, wherein he insisted on his claim and main
arguments. The Claimant declared that he has not hidden the fact the he lodged
a claim against the Respondent before the Labour Court of Country D, but
insisted that the proceedings did not start, that a final and binding decision was
not taken, and that the parties did not reach a settlement, scenarios that would
have ended the dispute amongst the parties. The Claimant held that Orders G
and H of the Labour Court of Country D are not formal decisions but that they
rather merely finalize the proceedings.
28.
In this regard, the Claimant enclosed a statement from Lawyer J, by means of
which Lawyer J, inter alia, stated that the claim before the Labour Court of
Country D was withdrawn following the Claimant’s own instructions and that in
his opinion there is no res iudicata.
29.
Furthermore, the Claimant denied that a settlement was reached with the
Respondent in the matter at hand and contested the probative value of the
statements presented by the Respondent with its reply.
30.
Moreover, the Claimant insisted that the evidence enclosed to the termination
and the Respondent’s reply, namely the pictures and records of the hotel, are
not valid proof that would justify the termination of the contract.
31.
Furthermore, the Claimant argued that the Respondent did not comply with
what was agreed by the parties in the contract, in particular art. 11 of it, as the
Respondent did not respect the three-month notice agreed therein.
32.
The Claimant insisted on the validity of the contract and the employment
relationship between the parties rejecting the Respondent’s argumentation that
the lack of a copy signed in Language of Country D renders the employment
relationship null.
33.
The Respondent submitted its duplica, reiterating its arguments and confirming
its position in respect to the claim.
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Player A, Country B / Club C, Country D
II.
Cons iderations of the Dis pute Res olution Cham ber
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 25 January 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 2015 and 2017 editions of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 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) and art. 11 of Annexe 7 of the latter 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 Futsal Player of Country B and a Futsal Club of Country D.
3.
However, the DRC noted that the Respondent alleged the lack of competence of
FIFA's decision-making bodies due to the concept of res iudicata, as it sustained
that the Claimant had already lodged a claim before the Labour Court of
Country D, prior to lodging his claim before FIFA.
4.
In this regard, the members of the Chamber duly noted that the Claimant
acknowledged that before initiating proceedings before FIFA, he had lodged a
claim before the Labour Court of Country D.
5.
Along this line, it was duly observed by the DRC that notwithstanding the
Claimant’s recognition in respect to his previously filed claim, the Claimant
insisted on the competence of FIFA’s DRC to deal with the matter at hand. In this
respect, the Claimant held that the concept of res iudicata has not been
configured since, according to him, a) the proceedings before the Labour Court
of Country D did not start, b) there was no final and binding decision passed by
said court, c) a settlement was not reached by the parties, and d) he did not
waive his rights.
6.
With the above considerations in mind, the members of the Chamber
unanimously deemed that, in a preliminary manner, it was necessary to analyze
whether the Chamber is competent or not to enter into the substance of the
present matter.
7.
In this respect, the Chamber recalled that, on 31 July 2014, the Claimant, via his
legal representative, lodged a claim before the Labour Court of Country D
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Player A, Country B / Club C, Country D
against the Respondent. In said claim, the Claimant held that the Respondent
terminated the contract signed by the parties on 23 April 2014 unlawfully with
immediate effect and requested, inter alia, compensation for breach of contract
in respect to the alleged unlawful termination in the amount of EUR 31,200.
8.
Subsequently, the DRC highlighted that, on 25 January 2016, the Claimant
lodged a claim before FIFA against the Respondent, in which the Claimant
sustained that the Respondent unilaterally terminated the contract signed by the
parties on 23 April 2014 without just cause and requested, inter alia,
compensation for breach of contract in the amount of EUR 53,000.
9.
At this point, the Chamber noted that the two claims, that is, the claim before
the Labour Court of Country D and the claim before FIFA, were filed by the
Claimant against the Respondent for compensation for breach of contract, as the
Claimant held in both claims that the Respondent, allegedly, terminated the
contract signed by the parties on 23 April 2014 unilaterally without a just cause.
10.
In light of the above, the members of the Chamber emphasized that the claim
brought before the Labour Court of Country D and the claim before FIFA,
involve the same subject matter or relief, the same legal grounds and the same
parties, i.e. the so-called “triple-identity” criteria.
11.
Having established the above, the DRC focused on the Claimant’s allegation that
res iudicata has not been configured in the present matter, considering that,
allegedly, the proceedings before the Labour Court of Country D did not start
since he withdrew his claim before the commencement of said proceedings.
12.
In this sense, taking into account the proceedings before the Labour Court of
Country D, the Chamber duly noted that by means of order XXX dated 5
September 2014, the Labour Court of Country D notified the claim of the
Claimant to the Respondent, providing it with a 15 days’ deadline to submit its
position. The members highlighted that this fact remained undisputed by the
Claimant.
13.
Furthermore, in accordance with the documentation on file, documentation that
has not been contested by the Claimant, the Chamber noted that the Claimant
withdrew his claim before the Labour Court of Country D by means of his letter
dated 3 November 2014. Moreover, the members of the Chamber observed that
the Labour Court of Country D confirmed the withdrawal of the respective claim
by means of order number of 6 dated 6 November 2014, and established that the
withdrawal became binding and enforceable by means of Order H dated 17
December 2014.
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Player A, Country B / Club C, Country D
14.
As a result of the aforementioned considerations, the DRC found it important to
analyse the consequences of such withdrawal before the Labour Court of
Country D.
15.
In this context, the members of the DRC referred to the well-established
procedural principle according to which, once a claim has been sent to the
Respondent but is subsequently withdrawn by the Claimant, such withdrawal has
the same legal effect as a rejection of the claim.
16.
In this regard, the Chamber emphasized that, in accordance with Swiss
Procedural law, once a claim has been served on the Respondent, the Claimant's
withdrawal from the claim implies a renunciation to the right itself.
17.
In view of all of the above, and taking into account that the claim before the
Labour Court of Country D was notified to the Respondent on 5 September 2014,
the DRC concluded that the Claimant clearly withdrew its claim after the
Respondent was notified of the claim and that, afterwards, he filed his claim
against the same Respondent and on the same subject before FIFA. Therefore,
the members of the Chamber concluded that the claim of the Claimant is
inadmissible.
18.
Moreover, the DRC considered that, for the sake of preserving legal certainty, it
was not competent to decide on the present matter in the light of the principle
of res iudicata.
19.
Furthermore, in addition to the above, the members of the Chamber considered
appropriate to highlight that, in line with the spirit of the relevant regulations,
FIFA cannot upheld the practice of any party, whether player or club, that
chooses to submit an employment related dispute to another decision-making
body, and afterwards decides to lodge a claim before FIFA’s DRC, with the aim to
get the most favourable judgment.
20.
In this regard, the Chamber pointed out that only more than one year after the
respective withdrawal of the claim before the Labour Court of Country D, the
Claimant lodged his claim before FIFA’s DRC, an act that demonstrates his
intention to select a more convenient forum (better known as "forum
shopping"), since the Claimant filed two similar claims against the same party
and with the same object and cause before two different jurisdictional instances,
the Labour Court of Country D and FIFA’s DRC. In the Chamber's opinion, the
Claimant’s actions constitute a violation of the principle electa una via, non
datur recursus ad alteram, which prohibits a party that has exercised an action
before a certain decision-making body to repent in order to go to another more
favorable jurisdiction.
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Player A, Country B / Club C, Country D
21.
Taking into account all the foregoing considerations, the Chamber decided that
it is not competent to deal with the claim lodged by the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is inadmissible.
*****
Note relating to the m otiv ated decis ion (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:
Omar Ongaro
Football Regulatory Director
Enclosed: CAS directives
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Player A, Country B / Club C, Country D