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 (England), Chairman
Jon Newman (USA), member
Mario Gallavotti (Italy), 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 1 July 2012, the player from country B, Player A (hereinafter; the Claimant)
and the club from country D, Club C (hereinafter; the Respondent) concluded an
employment contract (hereinafter; the contract) valid as of the date of its
signature until 30 June 2013.
2.
According to the contract, the Claimant was entitled to receive from the
Respondent inter alia as follows:
a. EUR 15,000 on 15 July 2012;
b. EUR 7,000 as monthly salary “for August 2012 – May 2013” payable “on
the 9th of the next month”;
c. “Game bonus according to Internal Regulations of the club”.
3.
Moreover, the contract provided the following: “In case that the team, at the end
of the competitive season 2012-2013 shall be placed on a position that allows it to
participate in Europa League, the player shall receive EUR 15,000 if he played 22
games as a titular in that championship edition and EUR 15,000 in case that the
team is qualified in Europe League”.
4.
In addition, clause VII of the contract stipulated the following: “The parties
undertake not to refer to any law court for the settlement of the litigations until
after finishing all the methods of the court of jurisdiction of Football Federation
of country D, LPF (…) The litigation arising from the execution of the present
agreement shall be settled following the procedural order: a) Amiable way; b) by
bringing the litigation before the court of jurisdiction of Football Federation of
country D, LPF”.
5.
According to the Claimant, on 17 May 2013, the Respondent and the “captains of
the team” entered into a “Acta Adicional” (hereinafter; the bonus agreement)
whereby it was agreed that, in case the team qualifies to the Europa League at
the end of the season 2012/2013, the Respondent would pay all the team’s players
a bonus of EUR 1,000 per point earned, payable 50% “during the championship”
and 50% at the “end of the championship”.
6.
On 10 October 2014, the Claimant lodged a claim against the Respondent in front
of FIFA requesting the total amount of EUR 74,000 comprised of the following:
a. EUR 7,000 as outstanding salary of April 2013;
b. EUR 7,000 as outstanding salary of May 2013;
Player A, country B / Club C, country D
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c. EUR 15,000 as “bonus for finishing the club in a place that allowed it to
participate in the Europa League”;
d. EUR 15,000 as “bonus for qualifying to the Europa League”;
e. EUR 30,000 as “50% bonus per each point earned (EUR 1,000 x 60
points)”.
7.
In particular, the Claimant explained that in the season 2012/2013, the
Respondent finished 4th in the championship of country D, which allowed it to
participate in the play-off rounds of the Europa League 2013/2014, where it was
defeated by the club, Club E, failing thereby to qualify to the group stage.
Moreover, the Claimant stressed that during the season 2012/2013, out of 34
matches, he participated in 26.
8.
In addition, the Claimant stressed that the Respondent failed to pay him his
salaries of April and May 2013 as well as 50% of the bonus payable by the end of
the season in accordance with the bonus agreement.
9.
On account of the above, the Claimant stressed that the Respondent must pay
him the claimed amounts.
10.
In its reply to the claim, the Respondent firstly questioned the competence of FIFA
to adjudicate on the present matter. According to the Respondent, in view of
clause VII of the contract “there is no legal argument that can lead to an
interpretation according to which the FIFA jurisdictional bodies would have
competence in solving the present litigation”. In this respect, the Respondent
sustained that “within the Football Federation of country D (…) and the
Professional Football League (…) are functioning independent jurisdictional
commissions that, according to the regulations, have fully and exclusive
competence to hear any dispute or litigation arising between the clubs in country
D and the player under contract with them”.
11.
Having been requested by FIFA to provide documentary evidence that there exists
an independent arbitration tribunal on national level, the Respondent enclosed
partial copies of the “Statute of the Football Federation of country D” and of the
“Rules on Football Players’ Statute and Transfer” (editions 2011).
12.
As to the substance of the matter, the Respondent firstly stressed that “apart
from the contract signed on 1 July 2012 (…) no other agreement was signed
[between the parties]. The allegations according to which there was another
agreement that entitled the player to receive a bonus of EUR 1,000 for each point
won by the team in the 2012-2013 internal championship are untrue. We are not
aware of the existence of such agreement…”. The Respondent further argued
Player A, country B / Club C, country D
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that “should the player insist on the existence of such agreement, he is obliged to
prove its existence and contents, by presenting the original in front of the
Chamber and, of course, to our club, in order for us to be able to present our
point of view”.
13.
Moreover, the Respondent asserted that it had paid to the Claimant all his
salaries, including April and May 2013 as well as the bonus of EUR 15,000 for the
team having finished the 2012/2013 championship of country D in a position
which allowed it to participate in the Europa League. In this respect, the
Respondent provided the following payment breakdown along with the
respective payment receipts:
Date
06.08.2012
11.09.2012
24.09.2012
06.11.2012
09.11.2012
23.11.2012
29.11.2012
06.12.2012
07.12.2012
14.12.2012
25.01.2013
28.01.2013
19.02.2013
05.03.2013
29.03.2013
16.04.2013
29.04.2013
20.05.2013
21.05.2013
14.10.2013
TOTAL
Doc. No.
M.O. 614bis
M.O. 660
M.O. 720
M.O. 828
M.O. 78
M.O. 109
M.O. 147
M.O. 865
M.O. 885
M.O. 915
M.O. 32
M.O. 67
P. order
M.O. 87
M.O. 193
M.O. 104
M.O. 140
M.O. 173
M.O. 198
M.O. 99
Amount
EUR 10,000
EUR 900
EUR 7,000
EUR 8,700
EUR 2,850
EUR 4,800
EUR 2,350
EUR 7,000
EUR 7,000
EUR 3,800
EUR 7,000
EUR 7,000
EUR 500
EUR 7,000
EUR 1,850
EUR 3,600
EUR 1,900
EUR 7,000
EUR 7,000
EUR 2,750
EUR 100,000
14.
As to the bonus for qualifying to the Europa League, the Respondent highlighted
that “the player himself asserts the team was eliminated in the play-offs”.
Therefore, according to the Respondent, the condition in order for the Claimant
to be entitled to said bonus was not met.
15.
In his replica and as to the alleged lack of competence of FIFA’s DRC to entertain
his claim, the Claimant argued that the Respondent’s position must be rejected in
Player A, country B / Club C, country D
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view of two reasons, i) clause VII of the contract does not refer to a specific
national body but merely to the “court of jurisdiction of Football Federation of
country D, LPF” and ii) in any case, from the documentation enclosed by the
Respondent, it can be noted that the Dispute Resolution Bodies of the Football
Federation of country D and of the Professional Football League of country D do
not comply with the requirements established neither in art. 22 b) of the
Regulations on the Status and Transfer of Players nor in the FIFA circulars 1010
and 1129.
16.
As to the bonus agreement, the Claimant argued that the contract provided that
he would be entitled to “Game bonus according to Internal Regulations of the
club”. In this respect, the Claimant asserted that the bonus of EUR 1,000 per each
point earned was, initially, only verbally agreed, however, thereafter the bonus
agreement was signed.
17.
Furthermore, the Claimant stressed that he does not have an original copy of the
bonus agreement since it was concluded by the captains of the team.
Nevertheless, the Claimant argued that from the documentation provided by the
Respondent, it can be noted that it made payments related to said document, in
particular, the following:
Date
29.11.2012
06.11.2012
Amount
“EUR 500”
“EUR 3,700”. In this respect, the
Claimant stressed that the remaining
EUR 5,000 corresponded to “the
outstanding amount of the payment
due on 15 July 2012” (cf. point 13,
table row 4)
EUR 2,850
EUR 4,800
EUR 2,350
EUR 3,800
EUR 500
EUR 1,850
EUR 3,600
EUR 1,900
EUR 2,750
EUR 28,600
09.11.2012
23.11.2012
29.11.2012
14.12.2012
19.02.2013
29.03.2013
16.04.2013
29.04.2013
14.10.2013
Total
18.
In this respect, the Claimant sustained that the above-mentioned amounts sum up
“EUR 29,000” corresponding to 50% of the agreed bonuses. According to the
Player A, country B / Club C, country D
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Claimant, in view of the fact that the Respondent finished the championship with
60 points, the remaining 50% is outstanding, i.e. “EUR 31,000”.
19.
On account of the above, the Claimant stressed that whereas he should have
received in the 2012/2013 season the amount of “EUR 160,000”, the Respondent
only proved payments for the amount of EUR 100,000. Therefore, the Claimant
amended his claim as follows:
a. EUR 14,000 as outstanding salaries of April and May 2013;
b. EUR 31,000 as bonuses in accordance with the bonus agreement;
c. EUR 15,000 “as bonus for finishing the club in a place that allowed it to
participate in the Europa League”.
20.
Despite having been asked to do so, the Respondent did not provide any further
comments.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or the 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 10 October 2014. Consequently, the 2014 edition of the Rules governing
the procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter; Procedural Rules) are applicable to the matter at hand (cf.
art. 21 par. 1 and par. 2 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 2015), 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 player from country
B and a club from country D.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that any dispute arisen between the parties should be submitted to the
deciding bodies of the Football Federation of country D and of the Professional
Football League of country D.
4.
The Chamber equally noted that the Claimant rejected such position and insisted
on the fact that FIFA had jurisdiction to deal with the present matter, firstly
Player A, country B / Club C, country D
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5.
because clause VII of the contract does not refer to a specific national body but
merely to the “court of jurisdiction of Football Federation of country D, LPF” and
secondly since the deciding bodies of the Football Federation of country D and
the Professional Football League of country D allegedly do not respect the
principle of equal representation of players and clubs and cannot provide for fair
proceedings.
Taking into account the above, the Chamber emphasised that, in accordance with
art. 22 lit. b) of the Regulations, 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. In this regard, the members of 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.
Along these lines, the Chamber also deemed it vital to outline that one of the
basic conditions that needs to be met in order to establish that another organ
than the DRC can settle an employment-related dispute between a club and a
player of an international dimension, is that the competence of the relevant
arbitration tribunal derives from a clear and exclusive arbitration clause in the
employment contract.
7.
Having said this, the members of the Chamber turned their attention to clause VII
of the contract, which stipulates that “The parties undertake not to refer to any
law court for the settlement of the litigations until after finishing all the methods
of the court of jurisdiction of Football Federation of country D, LPF (…) The
litigation arising from the execution of the present agreement shall be settled
following the procedural order: a) Amiable way; b) by bringing the litigation
before the court of jurisdiction of Football Federation of country D, LPF”. In this
respect, the members of the DRC observed that said clause does not make a clear
reference to one specific national dispute resolution chamber in the sense of art.
22 lit. b) of the Regulations, but merely refers to the “court of jurisdiction of
Football Federation of country D, LPF”.
8.
Consequently, the Chamber was of the unanimous opinion that clause VII of the
contract can by no means be considered as a clear and exclusive arbitration clause
in favour of any national-deciding body. In this regard, the Chamber pointed out
that this lack of clarity is also reflected in the Respondent’s argumentation since it
refers to the alleged competence of the deciding bodies of both the Football
Player A, country B / Club C, country D
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Federation of country D and Professional Football League of country D, without
further precision.
9.
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 accepting the competence of a national-deciding body.
10.
In view of all the above, the DRC concluded that, in line with its constant
jurisprudence, in particular in view of the absence of a clear and exclusive
arbitration clause in the contract, the Respondent's objection to the competence
of FIFA to deal with the present matter has 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.
11.
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
(edition 2015), and considering that the present claim was lodged on 10 October
2014, the 2014 edition of said regulations (hereinafter; the Regulations) is
applicable to the matter at hand as to the substance.
12.
The competence of the Chamber and the applicable regulations having been
established and entering into the substance of the matter, the Chamber
continued its acknowledgment of the above-mentioned facts as well as of the
documentation contained in the file. 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
substance of the matter at hand.
13.
First of all, the Chamber acknowledged that on 1 July 2012, the parties concluded
an employment contract valid until 30 June 2013 whereby the Respondent
undertook to pay to the Claimant inter alia EUR 15,000 on 15 July 2012, EUR 7,000
as monthly salary payable as of August 2012 until May 2013 as well as “Game
bonus according to Internal Regulations of the club”.
14.
Equally, the Chamber took note that the contract stipulated the following
payments to be made to the Claimant:
a. EUR 15,000 in case the Respondent finishes the 2012/2013 championship
of country D in a position which allows it to participate in the Europa
League and;
Player A, country B / Club C, country D
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b. EUR 15,000 in case the Respondent qualifies to the Europa League.
15.
Furthermore, the Chamber took note that, according to the Claimant, on 17 May
2013, the Respondent and the “captains of the team” entered into a bonus
agreement whereby it was agreed that, in case the team would qualify to the
Europa League at the end of the 2012/2013 season, the Respondent would pay to
the team’s players the amount of EUR 1,000 per point earned, payable 50%
“during the competition” and 50% “at the end of the competition”. The
Chamber further noted that the Claimant argued that such bonus payments were
initially only verbally agreed however, as the Respondent always delayed the
relevant payment, the bonus agreement had to be signed.
16.
Having said this, the Chamber focused its attention on the claim of the Claimant
who, after amending his initial claim, requested EUR 14,000 as outstanding
salaries of April and May 2013, EUR 31,000 in accordance with the bonus
agreement as well as EUR 15,000 since the Respondent finished the 2012/2013
championship of country D in a position which allowed it to participate in the
Europa League.
17.
With the aforementioned considerations in mind, the DRC wished to refer, in the
first place, to the bonus agreement. In this respect, it observed that, whereas the
Respondent disputed its existence, the Claimant insisted that the bonus payments
contained therein were initially verbally agreed and that thereafter the bonus
agreement was signed.
18.
At this point, the DRC deemed it appropriate to remind the parties of the legal
principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules,
according to which, a party claiming a right from an alleged fact shall carry the
respective burden of proof. In casu, this means that the Claimant bears the
burden of demonstrating the existence of the bonus agreement. Also, the DRC
wished to point out that, as a general rule, FIFA’s deciding bodies are not
competent to decide upon matters of criminal law, such as the ones of alleged
falsified signatures or documents, and that such affairs fall into the jurisdiction of
the competent national criminal authorities. Finally, the Chamber stressed that all
documentation remitted shall be considered with free discretion.
19.
Along these lines, the members of the Chamber emphasised that the Claimant
expressly admitted being unable to provide the relevant agreement in its original
form. Therefore, the Chamber held that the fact that the Claimant had only
submitted a copy of the disputed bonus agreement was insufficient to establish its
existence.
Player A, country B / Club C, country D
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20.
Nevertheless, the Chamber duly noted that in order to prove his allegations
concerning the existence of the bonus agreement, the Claimant argued that the
Respondent made several payments in accordance with said document, in
particular, the payments described in point I./17. ut supra.
21.
In this respect, the Chamber considered that the mere allegation that the relevant
payments were made based on the bonus agreement is insufficient in order to
proof its existence. Even more, taking into consideration the amounts of the
payments as well as the date on which they were made, which do not appear to
be consistent with the manner in which the bonuses were supposed to be paid.
Therefore, the Chamber was of the unanimous opinion that the evidence and
arguments presented by the Claimant were insufficient in order to prove with
certainty that the bonus agreement was, in fact, concluded and executed.
22.
In view of all the foregoing considerations, the members of the Chamber
unanimously decided not to take into account the bonus agreement and to reject
thus the claim of the Claimant based on said document.
23.
Having established the above and in relation to the remaining part of the
Claimant’s claim, the members of the Chamber proceeded to first establish the
total amount to which the Claimant was entitled according to the employment
contract. In this respect, the DRC observed that the Claimant was entitled to the
total amount of EUR 100,000 comprised of EUR 15,000 payable on 15 July 2012,
EUR 70,000 as salaries as well as EUR 15,000 as bonus for the Respondent having
finished in a position which allowed it to participate in the Europa League.
24.
With the above in mind, the members of the Chamber noted that the Respondent
submitted payment receipts for the total amount of EUR 100,000. What is more,
the Claimant expressly acknowledged having received from the Respondent EUR
100,000.
25.
On account of all the aforementioned considerations, the Chamber came to the
unanimous conclusion that the Respondent had effectively paid to the Claimant
all the amounts to which he was entitled in accordance with the contract and
decided thus to reject the claim of the Claimant in its entirety.
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 admissible.
2.
The claim of the Claimant is rejected.
*****
Note relating to the motivated decision (legal remedy):
According to article 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:
Player A, country B / Club C, country D
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Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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