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
1.
On 6 February 2013, an insolvency procedure was opened against the club from
country D, Club C (hereinafter: the club or the Respondent) in compliance with
“decree 362 delivered by the Country D Specialized Court (…) and a provisional
official receiver was appointed, Global Money Recovery IPURL, the club’s right to
self-administration being cancelled.”
2.
The decision of the Country D Specialized Court is provided by the club and sets
the following deadlines:
- 20 March 2013:
- 29 March 2013:
- 10 April 2013:
deadline to file requests for the admission of debts;
deadline for checking the debts/receivables;
deadline for the settlement of possible claims.
3.
On 29 May 2013, the Country D Specialized Court confirmed the reorganisation
plan of the club, inter alia, establishing “the debtor to continue its activity under
the management of the official receiver and subject to the surveillance of the
official receiver” and to “set up a court day for the examination of the stage of
the reorganization procedure for September 25, 2013 and one for the
confirmation of creditors for June 26, 2013.”
4.
On 23 October 2013, the Country D High Court of Cassation and Justice moved the
“file” regarding the club’s insolvency to the National Court of Country D.
5.
On 19 January 2015, the player from country B, Player A (hereinafter: the player
or the Claimant), and the club entered into an employment contract valid as from
19 January 2015 until 30 June 2015.
6.
The preamble of the contract stipulates that the club is in “judicial reorganization
(…) monitored by A&A Consultants IPURL – judicial administrator, through Mr X special administrator (“The Club/The Beneficiary”).” The contract is also signed by
the special administrator.
7.
According to the contract, the club undertook to pay the player the net amount
of EUR 18,000 in 6 installments of EUR 3,000, payable on 1 February 2015, 20
February 2015, 20 March 2015, 20 April 2015, 20 May 2015 and 20 June 2015.
8.
Art. 9 par. 1 of the contract stipulates: “Any disputes regarding the improper
execution or non-execution of the obligations undertaken by the Parties by this
Agreement shall be solved amicably. If such a solving is not possible, the parties
have the right to address to Football Federation of country D/FIFA/CAS
Player A, country B / Club C, country D
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jurisdictional bodies, according to the provisions of Football Federation of country
D/FIFA/CAS Charter and Regulations, or to submit it to the courts of general
jurisdiction.”
9.
Art. 10 the contract stipulates the following:
“10.1 Football regulations applicable to this agreement are the charters,
regulations and decisions of FIFA, UEFA, TAS/CAS, Football Federation of
country D or National Football League, as the case may be and the decisions of
club’s management.
10.2 The Club and the Player must comply with the charters, regulations and
decisions of FIFA, UEFA, Football Federation of country D/CAF/National Football
League, in this order, in force during the period of validity of this Convention,
regardless of the date of their adoption and which the parties by signing this
Convention accept as compulsory.
10.3 To the provisions of this Agreement the provisions of the Law no. 69/2000
with the further amendments and supplementing shall apply as well as the
entire the law in country D including Law no. 85/2006 of insolvency and Civil
Code.”
10.
Art. 12 par. 1 of the contract reads: “In case of a dispute as regards the applicable
law, the the law in country D shall prevail.”
11.
On 19 May 2015, the player lodged a claim against the club in front of FIFA,
requesting to be awarded the amount of EUR 9,000, concerning the instalments
due on 20 February, March and April 2015.
12.
In reply to the claim, the club explained that since 6 February 2013 it is in “judicial
reorganization for the time being” and that should the DRC decide that it is
competent, it is requested to order the suspension of the settlement of the case
pursuant to art. 36 of the law in country D 85/2006.
13.
In this respect, the club submitted a copy of Law no. 85/2006, art. 36 of which
reads: “From the date of opening the procedure is suspended of right all the
judicial actions, extrajudicial or the measures of forced enforcement for the
performance of the receivables on the debtor or his assets.”
14.
In continuation, and whilst referring to art. 12 par. 1 of the contract, the club
argued that the DRC is not competent since, according to “imperative national
legislation of country D”, the dispute falls under the exclusive jurisdiction of the
court of country D, which is, according to club, declared competent as a
consequence of the club being under insolvency proceedings.
Player A, country B / Club C, country D
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15.
Also, and with reference to art. 10 par. 3 of the contract, the club argued that by
signing the contract the player implicitly accepted the “exclusive subject matter of
the country D Tribunal over potential patrimonial actions brought against the
club.”
16.
The club further insisted that there is an express provision in the parties’
agreement regarding the competence acknowledgement of the national Country
D court, given that the player was aware of the reorganisation procedure under
the supervision of A&A Consultants IPURL, as clearly mentioned in the preamble
to the contract.
17.
As a result of all the above, the club requests to suspend proceedings on the basis
of art. 36 of Law 85/2006 and/or “to settle that according to the Country D
imperative national legislation (insolvency law) this dispute falls under the
jurisdiction of the Country D Tribunal.”
18.
In his replica dated 10 July 2015, the player stressed that:
The law in country D and the contract shall indeed be considered by the
DRC, but do not prevail over the FIFA Regulations on the Status and
Transfer of Player;
Both CAS as well as the DRC have made it clear that the fact that a club is
undergoing insolvency procedures should not prevent the DRC from
passing a decision as to the merits of the claim;
The club is not bankrupt but in reorganisation; according to the law in
country D “reorganisation aims to help an insolvent company to continue
business activities and repay its debts (…)”. In the present matter, the
Country D Court ordered the club to continue its activity stating that “the
remunerations of the persons employed (…) will be paid at the moment
established, depending on the case, by the law, with the exception of the
cases when the interested parties would accept, in writing other payment
terms”, which the player obviously did not accept.
When the player signed the contract, the club was already in
reorganisation and he was part of the club’s strategy to keep participating
in the various competitions.
The club acted in bad faith by spending money on a contract during the
reorganisation procedure and by later on claiming that it is not able to pay
such money, due to said reorganisation procedure.
19.
Finally, the player amended his claim to the amount of EUR 15,000, adding the
salaries of May and June 2015.
20.
Although having been invited to do so, the club did not provide any final
comments.
Player A, country B / Club C, country D
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
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 19 May 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 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
2015) 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 the present 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 requested for the
suspension of the procedure pending the club’s reorganisation procedure and, in
addition, contested the competence of the Chamber to adjudicate on the present
affair on the basis of art. 10 and art. 12 of the contract, alleging that the dispute
falls under the exclusive jurisdiction of the court of country D. According to the
club, the court of country D is declared competent as a consequence of the club
being under insolvency proceedings.
5.
On the other hand, the Chamber noted that the Claimant insisted on the
competence of the DRC to adjudicate on the claim lodged by him against the
Respondent.
6.
In analysing its competence, the Chamber acknowledged all of the abovementioned facts as well as all the arguments and 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 matter at hand.
Player A, country B / Club C, country D
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7.
In this respect, the members of the DRC first observed that the Respondent
primarily requested that the current procedure should be suspended pending the
club’s reorganisation procedure. However, the Chamber finds no reason to
suspend the current procedure in view of the fact that the Chamber is only
requested to address the recognition of the Claimant’s claim and not the
execution of a possible debt.
8.
Having stated the above, the Chamber turned its attention to the club’s argument
that not the FIFA DRC is competent to adjudicate on the present affair but rather
the court of country D. With reference to art. 22 of the Regulations, the Chamber
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 is competent to settle an
employment-related dispute between a club and a player of an international
dimension, is that the jurisdiction of the relevant national arbitration tribunal or
national court derives from a clear reference in the employment contract.
9.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should first analyse whether
the employment contract at the basis of the present dispute contained a clear and
exclusive jurisdiction clause in favour of the court of country D.
10.
Having examined the content of art. 10 and art. 12 of the contract, the Chamber
came to the unanimous conclusion that said provisions merely refer to the
regulations and law applicable to i) the contract and ii) a potential dispute. As
such, the Chamber finds it evident that art. 10 and art. 12 of the contract do not
constitute a clear and exclusive jurisdiction clause in favour of the court of country
D.
11.
Further, the Chamber emphasised that even more pertinent is the provision
contained in art. 9 of the contract which is named “Contractual Disputes” and
which makes a clear reference to FIFA. Indeed, art. 9 par. 1 of the contract
stipulates: “Any disputes regarding the improper execution or non-execution of
the obligations undertaken by the Parties by this Agreement shall be solved
amicably. If such a solving is not possible, the parties have the right to address to
Football Federation of country D/FIFA/CAS jurisdictional bodies, according to the
provisions of Football Federation of country D/FIFA/CAS Charter and Regulations,
or to submit it to the courts of general jurisdiction.” Therefore, the Chamber
wished to emphasise that by means of art. 9 par. 1 of the contract, the parties
explicitly granted competence to FIFA to deal with a dispute deriving from the
contract.
12.
As an additional remark, the Chamber wished to outline that the line of
argumentation of the club in combination with the facts of the present matter
are inconsistent. Indeed, at the moment the contract at the basis of the present
Player A, country B / Club C, country D
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dispute was signed, i.e. 19 January 2015, the club had already entered into the
insolvency proceedings long before. The Chamber finds that it therefore makes
little sense that the contract contained a reference to football dispute resolution
if indeed, as the Respondent claims, any potential dispute should have been
submitted to the court of country D in light of the insolvency proceedings.
13.
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.
14.
As to the substance, the members of the Chamber acknowledged that it remained
uncontested by the Respondent that it had failed to pay the Claimant the
instalments due on 20 February, March, April, May and June 2015.
15.
As a result, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract in accordance with the general
legal principle of “pacta sunt servanda”. Consequently, the Chamber decided that
the Respondent is liable to pay to the Claimant the remuneration that was
outstanding for February, March, April, May and June 2015, i.e. the total amount
of EUR 15,000.
*****
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.
3.
The Respondent, Club C, has to pay to the Claimant the amount of EUR 15,000,
within 30 days as from the date of notification of the present decision.
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,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned
Player A, country B / Club C, country D
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time limit and the present matter shall be submitted, upon request, to the FIFA
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:
Marco Villiger
Acting Deputy Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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