Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 August 2015,
in the following composition:
Geoff Thompson (Engand), Chairman
Mario Gallavotti (Italy), member
Jon Newman (USA), 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
Facts related to the competence
1.
On 9 February 2014, the player from country B, Player A (hereinafter: the player
or the Claimant), and the club from country D, Club C (hereinafter: the club or the
Respondent), entered into a “NSL Fixed Term Contract of Employment for
Professional Footballers” (hereinafter: the contract) valid from the date of
signature until 30 June 2014.
2.
Art. 19 of the contract reads as follows:
1) “All disputes arising out of or relating to this contract, including disputes as to
the meaning or interpretation of any provision of this contract or as to the
carrying into effect of any such provision or as to the termination or consequences
of termination shall be referred to Dispute Resolution in accordance with the NSL
rules from time to time.”
2)“The parties warrant that, in accordance with the football rules, any and all
disputes of whatsoever shall be determined in accordance with the NSL rules and
in the Dispute Resolution Tribunals of the NSL rather than before any court or
other tribunal insofar as it is a requirement of FIFA and other footballing rules
that the internal dispute resolution mechanisms available in football should be
utilised by participants in the game save where the football rules do not provide
an appropriate tribunal to determine the dispute.”
3.
In its claim, the player states that neither the National Soccer League of country D
Dispute Resolution Chamber (NSL DRC), nor the Football Association of country D
Appeals Board nor the Football Association of country D Arbitration Tribunal are
independent arbitrational tribunals guaranteeing fair proceedings and respecting
the principle of equal representation of players and clubs, for the following
reasons:
i)
The NSL DRC
The Chairperson of the NSL DRC is appointed by the NSL Executive
Committee and/or the CEO of the NSL. The NSL is a special member
of Football Association of country D and its members are clubs. The
NSL Executive Committee consists of candidates appointed by the
clubs and a nominee to the NSL Executive Committee must be a
registered official of a club. Hence, the NSL Executive Committee
effectively consists out of club owners.
The NSL Chairperson, who has the casting vote, is not subject to a
rotation process, therefore the same person presides over all
matters.
Player A, country B / Club C, country D
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The NSL prohibits that a player may approach any administrative
forum or court of law, as can be derived from art. 19 par. 2 of the
contract.
The NSL Constitution stipulates that all disputes must be referred to
the NSL DRC within 30 days of dismissal, which is unreasonable and
unfair.
A party wishing to refer a dispute to the NSL DRC needs to pay 1,000
in addition to the legal fees incurred.
ii)
Football Association of country D Appeals Board
The costs to appeal a case to the Appeals Board is 23,000.
The Appeals Board consists of a chairperson and two or more
additional members. The Appeals Board is appointed by the
Executive Committee of Football Association of country D and does
not have any player representatives.
The Appeals Board is rather a review procedure since the “record
before the Appeal Board shall be confined to the evidence which
was presented to the Disciplinary Committee and/or DRC of country
D.”
iii)
Football Association of country D Arbitration Tribunal
Thereafter, cases may be appealed to the Football Association of
country D Tribunal, which is a body established by Football
Association of country D and which does not provide equal
representation of players and clubs. If an award of the Appeals
Board is appealed against, Football Association of country D
appoints a Single Arbitrator.
The costs to appeal a case to the Football Association of country D
Tribunal is 30,000.
4.
In its objection to the competence of the DRC, the club first referred to art. 19
par. 2 of the contract and requests that the player’s claim must be dismissed “and
the player directed to litigate in a proper domestic forum.” The club stressed that
the player is not stating that the domestic footballing rules do not provide an
appropriate tribunal, but he is merely trying to avoid the available tribunals by
pointing to what he considers to be shortcoming in the current system.
5.
The club further holds that:
The 30 day time-limit serves a legitimate purpose in that it requires players
to refer their disputes when they “are still fresh and evidence is easily
attainable”. Also, if a player is late, he can still request for condonation
which will be granted if he can provide reasons why he could not refer the
dispute on time.
The allegation that the costs of 1,000, 23,000 and 30,000 are unfair is
denied. In particular, the club stresses that the amount of 1,000 is not a
Player A, country B / Club C, country D
Page 3 of 12
huge financial burden because the players’ union can provide assistance. As
to the 23,000 and 30,000, the club holds that if the player has a strong
prima facie case it is the club that ends up paying the costs.
The NSL DRC is rotated in instances of a rehearing.
The club holds that it does not have any control over the process regarding
who falls under the jurisdiction of the NSL DRC nor regarding the
appointment process. If the player finds that such process is unfairly
limiting his rights, then a challenge to the validity and the constitutionally
of the process should be brought before a domestic court of country D.
There is compliance with the FIFA Regulations, and the player has the onus
to detail exactly what is not in compliance. Even if there is no compliance,
the club is the incorrect party to demand that compliance from. The player
should use a different mechanism to raise such issues.
6.
Having been requested to provide all the documentary evidence that could prove
that the present matter should be dealt with by the deciding bodies of Football
Association of country D, the club forwarded a submission of the NSL confirming
that the NSL DRC is an independent arbitration tribunal guaranteeing fair
proceedings and respecting the principle of equal representation of players and
clubs. In this respect, the NSL enclosed affidavits of the secretary and prosecutor
of the NSL.
7.
In their submission, the NSL refers to art. 18 par. 1 of the NSL Constitution which
apparently stipulates that the NSL DRC is “a tribunal comprising an independent
chairperson, a panel of members appointed by the players or their elected
representatives and a panel appointed by the Executive Committee. (…)” In this
respect, and in addition to the arguments raised by the club, the NSL stressed
that:
The dispute is not of an international dimension since the player has a
Namibian passport and has held permanent residence in country D since
1990. In accordance with the Immigration act of 2002, the player has
therefore all rights, privileges, duties and obligations of a citizen of country
D. Also, the player concluded a contract with a club from country D, played
in country D and the contract is governed by law of country D.
The player is registered with the NSL and therefore directly bound to the
NSL Constitution, in particular referring to art. 18 which states that all
participants in professional football are required to refer any and all
disputes to the NSL DRC.
The player is a member of Player’s Union in country D and the NSL and
Player’s Union in country D concluded a Collective Bargaining Agreement
(CBA) which provides that all disputes be referred to the NSL DRC.
The NSL DRC has 4 panel members plus an independent chairperson; 2
members are appointed by Player’s Union in country D and 2 members are
appointed by the Executive Committee of the NSL.
Player A, country B / Club C, country D
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The independent chairperson is appointed by the Executive Committee of
the NSL “on behalf of all registered players and club”, and is an advocate
of the High Court of country D and has no affiliation to any member or
player of the NSL. The NSL DRC always sits as a panel of 3 comprised of the
independent chairperson, a member chosen by the players and a member
chosen by the clubs.
As to the 1,000, it is common practice in country D for the parties to bear
the costs thereof. In any event, 1,000 is a nominal amount.
The NSL DRC is in a far better position to properly determine the principles
of the law of country D.
8.
In his replica, the player reiterated his previous argumentation and pointed out
that he is a citizen of country B, carrying a passport of country B, therefore the
present matter has an international dimension.
9.
In addition, the player held that any submission made in relation to the CBA is
misleading. The player submitted a copy of the CBA signed on 29 March 2012 and
referred to art. 16 par. 4 which reads as follows: “All parties support the idea to
establish a Bargaining Council for football in country D. A Bargaining Council can
be formed only with the concurrence of registered unions and employer
organisations. The parties will seek to compile a business plan for the
establishment of a football council within eight month from signature of this
agreement and shall endeavour to establish such a Bargaining Council within
twenty months from date of signature of this CBA. The Dispute Resolution
Chamber which will form part of the Bargaining Council will be based on the
principles and objectives of the Dispute Resolution Chamber of FIFA (with equal
representatives between professional football clubs and professional footballers)
and the law of country D.”
The player stressed that the intention was to establish a Bargaining Council with a
DRC in compliance with the FIFA DRC principles and objectives, however this has
not been done and the parties failed to submit any business plan within the
prescribed 8 months. The player questioned why the NSL would agree to the
establishment of such tribunal if there is already a tribunal fully compliant with
the FIFA minimum requirements.
10.
In its final comments, the club reiterated its previous argumentation.
Facts related to the substance of the case
11.
According to the contract (valid from 9 February 2014 until 30 June 2014), the
club undertook to pay the player the amount of 40,000 net per month.
Player A, country B / Club C, country D
Page 5 of 12
12.
Art. 12.3.2 of the contract provides: “A footballer may be given a written warning
for repeated minor forms of misconduct or poor performance, or if misconduct of
a more serious nature, on the first occurrence thereof.”
13.
On 25 July 2014, the player lodged a claim against the club in front of FIFA,
requesting:
i)
ii)
iii)
iv)
40,000 as the salary of March 2014;
120,000 as compensation for breach of contract;
5% interest as from the due dates;
Sporting sanctions.
14.
In his claim, the player explained that in March 2014 he sustained an injury and
that, by the end of March 2014, the club indicated to him that due to his low
performance the club had to review the contract. Following such news, the parties
started negotiating an amicable settlement, the club offering 80,000, whereas the
player requested 100,000. Subsequently, the player was allegedly told by the
club’s management that they would communicate his offer to the owner and
revert to him.
15.
According to the player, the club’s CEO told him not to report to training
anymore and, pending the resolution of the dispute, that he may leave. The
player alleged that, despite having offered his services, the club demanded that
he left and so he did on 28 March 2014.
16.
Since the player did not receive any further news since 28 March 2014, he
contacted the club on 15 May 2014 by phone, asking for his outstanding salaries.
He was then allegedly told that the club’s offer of 80,000 had been withdrawn
and that it was only willing to pay 1 month salary since he absconded. On the
same date, the player’s wife confirmed the phone call in writing and demanded
the payment of at least 2 monthly salaries. In this respect, the player submitted an
email setting out the situation and making reference to the alleged statement of
the club that it would only pay the player 1 monthly salary.
17.
As a result, the player held that the club terminated the contract without just
cause on 28 March 2014 and insisted that poor performance is not a valid reason
to terminate a contractual relationship.
18.
In its reply, the club stated that on 3 March 2014 it gave a written warning to the
player for his behavior and poor performance, which was duly signed by the
player.
19.
On 25 March 2014, the player was given a 2nd written warning for his behavior
and poor performance, which he refused to sign. It was in this meeting that the
Player A, country B / Club C, country D
Page 6 of 12
player indicated that he no longer wanted to represent the club and demanded a
pay-out for the remainder of the contract. Officials of the club advised him that
they were not in a position to accept such demand, but would revert to him after
receiving instructions of the club’s management. The officials allegedly told the
player to continue to report for duty until they would meet to finalize the
discussion with the club’s chairman or owner, “who was out of the country at the
time.”
20.
According to the club, on 28 March 2014 the player left the club without the
club’s permission, therewith breaching the contract. In this respect, the club
submitted an affidavit of the club’s driver who confirmed that the player left the
keys of his accommodation with him.
21.
Finally, the club recognized that a phone call preceded the e-mail of 15 May 2014,
however the chairman merely discussed the player’s “repudiation by absconding.”
22.
In his unsolicited additional comments, the player stated that he signed the 1st
warning under the impression that it was a document to monitor performance.
He pointed out that his native language is Amharic and that the club did not
allow him to consult with anyone before signing the document. In any case,
termination of a contract for poor performance is not allowed under the FIFA
Regulations and the player held that he was not “repeated warned about his
performance” referring in this respect to art. 12.3.2 of the contract.
23.
As to the 2nd warning, the player stated that this warning was fraudulently
compiled; he was never called in to discuss this warning and never saw it before.
24.
Finally, the player indicated that the way the club portrays the situation is
implausible; the club wanted to review his contract due to the alleged lack of
performance, he was offered two monthly salaries and was expressly told not to
report for training. The player did not abscond and stressed that he never
received a notice from the club asking him to report back for duty. Also, the
player holds that the club did not deny the content of the email dated 15 May
2014.
25.
In its duplica, the club indicated that it stood by its original reply.
26.
Upon request of FIFA, the player indicated that he only signed a new contract
with another club in August 2014.
II.
Considerations of the Dispute Resolution Chamber
Player A, country B / Club C, country D
Page 7 of 12
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 took note that the present matter was submitted to
FIFA on 25 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 Procedural Rules).
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 and 2 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2012) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on a litigation which involves a player from country B and a
club from country D regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. 19 par. 2 of the contract
alleging that the Claimant should have addressed his claim to the NSL DRC in
country D. Further, the Respondent alleged that the present dispute is not of an
international dimension.
5.
On the other hand, the Chamber noted that the Claimant insisted on the
competence of the FIFA DRC to adjudicate on the claim lodged by him against the
Respondent.
6.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2012 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.
7.
In this respect, the DRC turned its attention to the principle of equal
representation of players and clubs and underlined that this principle is one of the
very fundamental elements to be fulfilled, in order for a national dispute
Player A, country B / Club C, country D
Page 8 of 12
resolution chamber to be recognised as such. Indeed, this prerequisite is
mentioned in the Regulations on the Status and Transfer of Players, in the FIFA
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 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.
On account of the above, the Chamber went on to examine the documentation
presented by the Respondent and noted that the Respondent confirmed that the
chairperson of the NSL DRC is appointed by the Executive Committee of the NSL.
Equally, the Chamber noted that it can be established from the documentation
provided by the parties that the NSL is an organisation consisting exclusively of
clubs. As such, the members of the Chamber concluded that the chairperson of
the NSL DRC is effectively appointed by the clubs and thus not by consensus by
player and club representatives. What is more, the Chamber observed that the
Respondent did not specifically object to the arguments raised by the Claimant in
relation to the CBA. Therefore, the Chamber was unanimous in its conclusion that
the NSL DRC does not respect the principle of equal representation of players and
clubs.
9.
In addition, the Chamber noted that it is acknowledged by both parties that for
proceedings conducted in front of the NSL DRC, Football Association of country D
Appeals Board and the Football Association of country D Arbitration Tribunal,
costs apply varying between 1,000 and 30,000. The Chamber finds that the
imposition of these costs are not in accordance with art. 32 of the NDRC
Regulations.
10.
As a consequence of the above-mentioned elements, the Chamber concluded that
it could not be concluded that the NSL DRC is indeed an independent arbitration
tribunal guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs.
11.
Finally, and as to the argument of the Respondent that the present matter was
not one of an international dimension, the Chamber underlined that the player is
Player A, country B / Club C, country D
Page 9 of 12
a citizen of country B holding a passport of country B. In absence of any further
objective evidence that the player had a passport of country D and was registered
as a national of country D, the international dimension is established by means of
the player’s passport of country B. The fact that the player concluded a contract
with a club from country D and played in country D does not change the
conclusion of the Chamber.
12.
On account of all the above, the Chamber established that the Respondent’s
objection towards 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.
13.
Having established the above, the members of the Chamber entered into the
substance of the matter and acknowledged that, on 9 February 2014, the
Claimant and the Respondent concluded an employment contract valid as from
the date of signature until 30 June 2014 in accordance with which the player was
entitled to a monthly salary of 40,000.
14.
The Chamber further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of 160,000 plus interest.
In particular, the Claimant alleged that the club terminated the contract without
just cause on 28 March 2014 by informing him that due to his low performance he
did not have to report for training anymore.
15.
Furthermore, the Chamber observed that the Respondent, for its part, was of the
opinion that it was in fact the player who had terminated the contract without
just cause, by leaving the club on 28 March 2014 without permission. The
Respondent explained that prior to his departure, the Claimant had indicated that
he was no longer interested in representing the club and that therefore he had
requested a pay-out for the remainder of the contract. As such, the Respondent
rejected the claim of the Claimant in full.
16.
Having duly taken note of both parties’ submissions, the DRC recalled the basic
principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural
Rules, according to which a party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof. The application of this principle leads
the Chamber to conclude that, in the present matter, it is for the Claimant to
prove that the Respondent terminated the contract without just cause.
17.
Having duly analysed the relevant documentation submitted by the Claimant, the
DRC is of the view that the Claimant has not provided conclusive evidence to
corroborate his allegation that the Respondent had terminated the contract for
low performance on 28 March 2014. In this respect, the Chamber pointed out that
the only document provided by the Claimant is an email sent by his wife on 15
Player A, country B / Club C, country D
Page 10 of 12
May 2014 recalling what allegedly had been discussed over the phone and what
allegedly had taken place during the meeting held in the end of March 2014.
Considering as well that the Respondent categorically denied the content of said
correspondence, the Chamber finds that this correspondence does not suffice to
prove the Claimant’s allegations.
18.
In continuation, the Chamber referred to the affidavit provided by the
Respondent and duly noted that the Claimant argued that said affidavit
corroborated the submissions of the Claimant. However, having analysed the
content of such affidavit, the Chamber was of the unanimous opinion that said
affidavit merely indicates that the Claimant handed in his keys and left the club.
Nothing in said affidavit mentions anything in relation to the reason of the
Claimant’s departure. Therefore, the Chamber was satisfied that the affidavit did
not support the allegations made by the Claimant in relation to the reasons for
the termination of the contract.
19.
As a result of all of the above, the Chamber decided that the Claimant failed to
prove his allegations that the Respondent had terminated the contract without
just cause on 28 March 2014. As a consequence, the Chamber finds that the
Claimant is only entitled to his salary for the month of March 2014, as it remained
undisputed that he had rendered his services to the club during said month.
20.
Therefore, the Chamber decided that the Respondent is liable to pay to the
Claimant the remuneration that was outstanding at the time the Claimant left the
club i.e. the amount of 40,000. Furthermore and considering the Claimant’s claim
for interest, the Chamber decided that the Respondent must pay 5% interest on
the amount of 40,000 as from 1 April 2014 until the date of effective payment.
21.
The Dispute Resolution Chamber concluded its deliberations in the present matter
by establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of the present decision, outstanding remuneration in the
amount of 40,000 plus 5% interest p.a. on said amount as from 1 April 2014 until
the date of effective payment.
Player A, country B / Club C, country D
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4.
In the event that the amount due to the Claimant in accordance with the abovementioned number 3. is not paid by the Respondent within the stated time limit,
the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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