Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2012,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
Player A, from country G
as Claimant
against the club,
Club F, from country C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 20 July 2009, Player A, from country G (hereinafter: the Claimant), and Club F,
from country C (hereinafter: the Respondent), concluded an employment contract
(hereinafter: the contract), which did not contain a specific starting and ending date.
2.
According to art. 2 of the contract, “As a reward for the services rendered from the
Player to the Club, the club shall pay the Player the following amounts:
a) For the football season 2009/2010, for 9 months the amount of 700 Euros per
month.
b) For every monthly payment the player gives the right of grace period to the Club
equal to 60 days in order to delay payment.
c) 2000 Euros will be paid to the Player as an signing bonus of the contract”
3.
Art. 23 of the contract provided that “The contracting parties accept explicitly that
their relations are governed by the present terms and the regulation of the Club as
well as the Statutes of the country C Football Association and the Regulations of FIFA /
UEFA etc.”
4.
Art. 24 of the contract provided that “Any dispute arising from the present agreement
shall be submitted to the Dispute Resolution Chamber of the country C Football
Association and in case one party fails to do so, the other one may terminate the
present agreement blaming the other.”
5.
On 6 May 2010, the Claimant lodged a claim in front of FIFA against the Respondent
for breach of contract. In this respect, the Claimant argued that, even though he had
offered his services as a player to the Respondent, the Respondent failed to pay him 4
monthly salaries (January, February, March and April 2010). Consequently, the
Claimant claimed the total net amount of EUR 2,800 from the Respondent.
6.
On 28 June 2011, the Respondent replied to the Claimant’s allegations by referring to
art. 24 of the contract and disputing the competence of the FIFA Dispute Resolution
Chamber to deal with the present matter, asserting that the only competent authority
to deal with the matter is the “Dispute Resolution Chamber of country C Football
Association”.
7.
With regard to the substance of the dispute, the Respondent argued that the
Claimant “surrendered his employment at the end of February 2010 and failed to
perform his contractual obligations as provided by the agreement”. Furthermore, the
Respondent admitted that it owed the Claimant the salaries for January and February,
however, it reiterated that the Claimant left the Respondent at the end of February
Player A, from country G / Club F, from country C
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2010 and, therefore, in accordance with art. 2 b) of the contract, no salary was due
“because of 60 days grace in each payment.” Equally, the Respondent indicated that
because of the Claimant’s breach, the Respondent decided to impose a fine of EUR
700 on the Claimant.
8.
Upon the request of FIFA, the country C Football Association provided a copy of the
Regulations for the Registration and Transfer of Football Players of the country C
Football Association (hereinafter: the country C Regulations), which entered into force
on 15 June 2005. According to these Regulations, the Dispute Resolution Committee
of the country C Football Association is composed of five members (the Chairman, the
Vice-Chairman and three members). The Chairman, the Vice-Chairman and one
member are appointed by the Executive Committee of the country C Football
Association and two members are appointed by the country P Football Players’
Association (art. 22.1.1 and 22.2.3).
9.
Furthermore, the Regulations stipulate that the decisions are taken by simple majority
based on written evidence (art. 22.8.1 and 22.13.3), subsequent to a summary and
written procedure (art. 22.13.1 and 22.13.2). Clubs affiliated to the country C
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. 22.10.1).
10.
On 9 November 2011, the Claimant pointed out that FIFA is the competent body to
resolve the case, since the FIFA Regulations on the Status and Transfer of Players are
accepted worldwide by all members of FIFA. As to the allegations of the Respondent
with regard to the substance of the matter, the Claimant asserted that none of the
allegations were true.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber referred to art. 21 par. 1 and 2 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2008; hereinafter: Procedural Rules). The present matter was submitted to
FIFA on 6 May 2010, thus after 1 July 2008. Consequently, the Chamber concluded that
the 2008 edition of the Procedural Rules is applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the
Procedural Rules states that the Dispute Resolution Chamber shall examine its
Player A, from country G / Club F, from country C
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jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer
of Players (edition 2010). In accordance with art. 24 par. 1 in combination with art. 22
lit. b) of the aforementioned 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 country G
player and a country C club.
3.
However, the Chamber acknowledged that the Respondent contested the competence
of FIFA’s deciding bodies on the basis of art. 24 of the employment contract
highlighting that the country C Football Association has an independent deciding
body to deal with the matter, i.e. the Dispute Resolution Chamber of the country C
Football Association.
4.
In this regard, the Chamber noted that the Claimant rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
Taking into account the above, the Chamber emphasised that in accordance with art.
22 lit. b) of the 2010 edition 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 FIFA Circular no. 1010 dated
20 December 2005. In this regard, the Chamber 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 continuation, the members of the Chamber wished to stress that the Respondent
was unable to prove that, in fact, the country C Football Association “Dispute
Resolution Chamber” 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.
7.
In this respect, 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
Player A, from country G / Club F, from country C
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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.
The members of the Chamber concurred that the “Regulations for the registration
and transfer of football players country C Football Association (2005)”, in accordance
with which, inter alia, the chairman, vice-chairman and one member are elected by
the Executive Committee of the country C Football Association and two members are
elected by the country P Football Players’ Association, do not meet the
aforementioned principles.
9.
In view of all the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter has to be rejected and that
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 consider the present matter as to
the substance.
10.
Subsequently, the Chamber 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, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2009 and 2010) and, on the
other hand, to the fact that the present claim was lodged on 6 May 2010. The Dispute
Resolution Chamber concluded that the 2009 version 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 Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, the
Chamber recalled that the Claimant and the Respondent signed an employment
contract, on 20 July 2009. According to the employment agreement, the Claimant was
entitled to receive ”For the football season 2009/2010, for 9 months the amount of
700 Euros per month”.
Player A, from country G / Club F, from country C
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12.
The members of the Chamber then turned to the claim of the Claimant, who
maintained that the Respondent failed to pay 4 monthly salaries in the amount of EUR
700 each, in the total amount of EUR 2,800. Consequently, the Claimant asked that
the Respondent be instructed to pay the amount of EUR 2,800.
13.
Subsequently, the Chamber noted that the Respondent, in its defence, admitted that
it owed the Claimant the salaries for January and February, however, it maintained
that the Claimant left the Respondent at the end of February 2010, and because of
the 60 days grace in each payment according to art. 2 b) in the contract, no salary was
due. Equally, the Chamber duly observed that the Respondent argued that, because of
the Claimant’s breach, it had imposed a fine of EUR 700 on the Claimant. Therefore,
the Respondent concluded that it did not owe any payment to the Claimant and that
the Claimant’s claim should be rejected.
14.
With due consideration to the above, the Chamber examined the documentation
submitted by the parties in the present proceedings and noted that the Respondent
had not provided any documentary evidence in order to prove the above-mentioned
allegations, in particular, it had not provided any documents in relation to the alleged
departure of the Claimant at the end of February 2010. Consequently, and bearing in
mind the general legal principle contained in art. 12 par. 3 of the Procedural Rules,
which stipulates that any party claiming a right on the basis of an alleged fact shall
carry the burden of proof, the DRC judge concluded that the argumentation of the
Respondent had to be rejected.
15.
On account of the aforementioned consideration, the Chamber established that the
Respondent had failed to pay to the Claimant his monthly salaries in the total amount
of EUR 2,800. Consequently, the Chamber concluded that, in accordance with the
general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the
Claimant the total amount of EUR 2,800.
****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is accepted.
Player A, from country G / Club F, from country C
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3.
Club F, has to pay to the Claimant the amount of EUR 2,800 within 30 days as from
the date of notification of this decision.
4.
In the event that the aforementioned amount is not paid within the stated time limit,
interest at the rate of 5% p.a. falls due as of expiry of the above-mentioned time limit
and the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
5.
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 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:
Jérôme Valcke
Secretary General
Player A, from country G / Club F, from country C
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Encl. CAS Directives
Player A, from country G / Club F, from country C
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