Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 August 2014,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Guillermo Saltos Guale (Ecuador), member
Jon Newman (USA), member
Leonardo Grosso (Italy), member
on the claim presented by the player,
Player G, from country A
as Claimant
against the club,
Club X, from country G
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 5 January 2009, Player G, from country A (hereinafter: player or Claimant),
and Club X, from country G (hereinafter: club or Respondent), signed a
“professional player’s contract” (hereinafter: contract) valid as from the date of
signature until 31 December 2011. Furthermore, on the same date, the parties
signed a “contract annex” (hereinafter: annex) which makes reference to the
contract.
2.
On 2 January 2009, the parties signed a “private contract” (hereinafter: private
agreement) valid as from the date of signature until 31 December 2011.
3.
Both the private agreement and the annex stipulate that the player was entitled
to receive, inter alia, a bonus of EUR 10,000 if he participates in 50% of the
club’s official matches, an additional bonus of EUR 10,000 if he participates in
60% of the official matches and an additional bonus of EUR 20,000 if he
participates in 70% of the official matches.
4.
On 5 April 2012, the player lodged a complaint before FIFA against the club
claiming two outstanding bonus payments in the total amount of EUR 30,000
for the participation in official matches in the 2010/2011 season, as per the
annex to the contract. In particular, the player makes reference to the bonuses
due for taking part in 60% and 70% of the matches. The player stated that he
participated in all the relevant matches until 3 April 2011, date on which he got
injured. According to the player, in case of an injury his participation should be
considered as if he had not been injured.
5.
In its reply to the claim, the club stated that FIFA has no jurisdiction to decide on
the present dispute. The club referred to clause 10 of the contract, which states
that all disputes between the parties are settled by the Appeals Committee for
the Resolution of Financial Disputes (PEEOD) at first instance, and the Court of
Arbitration of the country G Football Federation at second instance.
Furthermore, the club argued that if the player had thought that the
aforementioned bodies do not respect the principle of equal representation of
players and clubs, he should have supported his allegation with evidence.
6.
As to the merits, the club alleged that on 10 May 2011, the player signed a
declaration by means of which he confirmed that he had received the
participation bonuses for the 2010/2011 season. In addition, the club pointed
out that the player had not participated in more than 70% of the official
matches. According to the club, the player missed a lot of matches. Moreover,
the club added that there were only two matches remaining as from the
Player G, from country A Club X, from country G
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moment the player stopped playing, 3 April 2011, until the end of the season. In
this regard, the club held that the claim should be rejected.
7.
On 16 July 2013, the player amended his claim. As regards FIFA’s competence,
the player argued that his claim was clearly based on the “private agreement”
of “25.01.2007”, which does not contain a jurisdiction clause. Finally, the player
held that a procedure in country G is not reasonable, since he has been living in
country U for over a year, and since country G arbitral deciding bodies only deal
with form contracts issued by the country G football league.
8.
Upon FIFA’s request to provide documentary evidence for the competence of
the PEEOD and the Court of Arbitration of the country G Football Federation,
the club sent a copy of the “Codified Statutes” of the country G Football
Federation (edition 2009; hereinafter: country G Football Federation Statues)
and referred in particular to art. 41 and appendix F concerning the composition
of the country G Football Federation organs and committees. The club also
provided certain extracts of the “country G Football Federation’s Regulations on
the Status and Transfer of Players” (no edition indicated; hereinafter: country G
Football Federation Regulations). The club referred in particular to art. 20, 22,
23 and 24 of the country G Football Federation Regulations concerning the
jurisdiction of the country G Football Federation committees. The club stated
that FIFA’s requirements for a national DRC are met, since fair proceedings are
guaranteed and the principle of equal representation of players and clubs are
respected. Finally, the club pointed out that the parties had agreed on a
jurisdiction clause, according to which the aforementioned country G deciding
bodies would be competent in case of a dispute. The club argued that,
consequently, the country G deciding bodies would even be competent if FIFA’s
requirements were not fulfilled.
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 matter at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 5 April 2012. Consequently, the Rules governing the procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2008;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21
par. 1 and par. 2 of the Procedural Rules).
Player G, from country A Club X, from country G
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2.
Subsequently, 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 2014) the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an country A player
and a country G club.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause 10 of the contract,
according to which all disputes between the parties are settled by the Appeals
Committee for the Resolution of Financial Disputes (PEEOD) at first instance,
and the Court of Arbitration of the country G Football Federation at second
instance (hereinafter: jurisdiction clause).
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. The Chamber
noted that the Claimant, by means of his submission dated 16 July 2013, argued
that his claim was based on the “private agreement” of “25.01.2007”, which
does not include a jurisdiction clause.
5.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2014 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 the FIFA Circular no. 1010 dated 20 December 2005.
Equally, the members of the Chamber referred to the principles contained in the
FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which
came into force on 1 January 2008.
6.
While analysing whether it was competent to decide on the matter, the
Chamber considered that it should, first and foremost, analyse whether the
contract at the basis of the present dispute actually contained a jurisdiction
clause. In this regard, the Chamber referred to the private agreement concluded
between the Claimant and the Respondent on 2 January 2009, the basis on
which the Claimant requests his claims. The Chamber established that the
private agreement did not include any jurisdiction clause in favour of a national
deciding body, which could potentially exclude FIFA’s jurisdiction.
Player G, from country A Club X, from country G
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7.
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
Chamber deemed unnecessary to examine any further points which would need
to be assessed before concluding that a national deciding body was competent.
8.
In view of the above, the Chamber established that the Respondent’s objection
to the competence of FIFA to deal with the present matter had to be rejected
and that the DRC 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.
9.
In continuation, the Chamber analysed which regulations should be applicable
as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2010, 2012 and 2014), and considering that the
present claim was lodged on 5 April 2012, the 2010 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
10. 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 started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
However, the Chamber emphasised that in the following considerations it will
refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
11. Having established the above, the Chamber unanimously stated that first and
foremost, it is crucial to clarify the date of the submission of the petition to
FIFA, in order to establish whether the claim was brought to FIFA in due time. In
this context, the Chamber referred to art. 25 par. 5 of the Regulations, which, in
completion to the general procedural terms outlined in the Procedural Rules,
clearly establishes that the decision-making bodies of FIFA shall not hear any
dispute if more than two years have elapsed since the event giving rise to the
dispute arose and that the application of this time limit shall be examined ex
officio in each individual case.
12. In this context, the DRC duly noted that the Claimant claims outstanding bonus
payments, as per the private agreement, for the participation in matches in the
2010/2011 season, in particular, until 3 April 2011, date on which he got injured.
The Chamber went on to analyse the content of the contract, the annex and the
Player G, from country A Club X, from country G
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private agreement and noted that, although the annex and the private
agreement acknowledge the entitlement of the Claimant to certain bonus
payments, none of them specify when the payments of such bonuses were due.
13. Thus, the DRC established that the payment of a bonus for the participation in a
certain percentage of matches would generally – in the absence of a relevant
contractual clause – be due upon the player’s last participation with a club or
upon the club’s last official match of the relevant season, at the latest. In this
respect, the Chamber noted that according to the Claimant, he played his last
match in the 2010/2011 season on 3 April 2011. Moreover, the DRC stated that
even if it deemed the bonus payment to fall due upon the last match of the club
in the relevant season, the bonus would have become due before 30 June 2011
in the case at hand, the date on which the 2010/2011 season in country G
expired.
14. In continuation, the DRC noted that the player’s initial claim, whose petitions
were based on the annex to the contract, was lodged in front of FIFA on 5 April
2012. Furthermore, the Chamber took note of the Claimant’s submission to FIFA
dated 16 July 2013, by means of which he amended his initial claim and
specified that he wished to base his petitions on the “private agreement”.
15. In this regard, the Chamber established that – in the light of the wording and
the grammatical interpretation of the submission dated 16 July 2013 – the
Claimant changed the contractual basis of his claim and, by means of such
aforementioned submission, founded his claim on the private agreement.
16. In conclusion, the Chamber concurred that the Claimant’s claim on the basis of
the private agreement was lodged in front of FIFA on 16 July 2013, while the
event giving rise to the dispute arose before 30 June 2011, i.e. the date on
which the 2010/2011 season in country G expired and the payment of match
bonuses would have become due at the latest. Consequently, the Chamber
concluded that the Claimant had brought his claim against the Respondent
after the aforementioned two-year period of time (cf. point II./11. above) had
elapsed.
17. In view of all the above, the Chamber found that the Claimant’s claim for the
payment of bonuses must be declared barred by the statute of limitations in
application of art. 25 par. 5 of the Regulations.
Player G, from country A Club X, from country G
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III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player G, 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:
Markus Kattner
Deputy Secretary General
Enclosed: CAS directives
Player G, from country A Club X, from country G
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