Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 August 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Mons en (Norw ay ), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er 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 cas e
Preliminary issues regarding the competence of the Dispute Resolution Chamber:
1.
On 29 November 2012, the Player of Country B, Player A (hereinafter: Claimant), and
the Club of Country D, Club C (hereinafter: Respondent), signed an employment
contract (hereinafter: contract) valid as from 1 December 2012 until 31 October 2013
in accordance with art. 1 of the contract.
2.
Art. 1 of the contract also establishes that “(…) the duration must be of a minimum
1 year and maximum 5 years, while for Player aged 18 years and below the maximum
contract duration allowed is 3 years (hereinafter referred as “initial Term”) unless the
Initial Term is terminated by a new agreement or in accordance with the provisions
of this agreement. Effective date and termination must be stated. If this contract is
signed during the second registration, the effective date has to be the date the
Contract is signed and expires 30 days after current season’s Country D Cup Final
Match and the Contract period must be a minimum of 6 months.”
3.
According to art. 8.1 of the contract, the contract “expires and ceases to have any
force after the date specified under Clause 1 unless renewed or extended for a further
period.”
4.
On 18 November 2015, the Claimant lodged a claim in front of FIFA against the
Respondent requesting to be awarded the total amount of USD 99,000.
5.
The Claimant held that the contract establishes a contractual duration of 1 year and
that, therefore, the contract was valid as from 29 November 2012 until 1 December
2013. The player further alleged that the regulations of the Football Association of
Country D (hereinafter: Football Association E) establish a minimum contractual
duration of 1 year.
6.
The Claimant further stated that he had made complaints via the Football Association
E in relation to his allegedly outstanding remuneration.
7.
Upon FIFA’s request, the Football Association E indicated that, on 12 November 2013,
the player lodged a claim against the club in front of its deciding body. In this regard,
the Football Association E submitted the following documents:
i.
The claim of the Claimant for the amount of 105,203, corresponding to the
remaining portion of his salaries due between June 2013 and October 2013. In
this claim, the Claimant raised that he was entitled to receive 47,460.74 as
monthly salary and that he only received the total amount of 131,259 during
said period;
Player A, Country B / Club C, Country D
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8.
ii.
Football Association E’s letter dated 19 February 2014, addressed to the
Respondent, requesting the Respondent to provide the Football Association E
with its comments pertaining to the player’s claim;
iii.
The Respondent’s reply dated 9 March 2014, whereby the Respondent raised
that it withheld the amount of 94,174, pending the decision of the Football
Association E pertaining to the claim lodged by an agent against the Claimant.
The Football Association E further explained that the Claimant’s claim is linked to
another proceeding pending in front of the Football Association E, since the former
agent of the Claimant lodged a claim against him and the Respondent is withholding
part of the Claimant’s salary “for purposes of payment of agent’s fee under the
Mediation contract.”
9. In its reply to the claim of the Claimant, the Respondent held that the contract was
valid as from 1 December 2012 until 31 October 2013 and that, consequently, the
Claimant’s claim is time-barred.
As to the substance of the matter:
10.
According to Schedule A of the contract, the Claimant was entitled to receive a
monthly salary of USD 15,000, payable on the 7th day of the following month. The
contract further specifies that incentive bonus payments are at the full discretion of
the Respondent.
11.
In his statement of claim submitted in front of FIFA, the Claimant asked to be awarded
the total amount of USD 99,000, which was detailed as follows:
i. USD 60,000 corresponding to the reimbursement of an agent commission;
ii. USD 30,000 corresponding to the remaining portion of the “net annual salary”
of USD 300,000 allegedly due by the Respondent;
iii. USD 9,000 corresponding to “10% of total interest rate”.
The Claimant further requested that disciplinary sanctions be imposed on the
Respondent.
12.
In his argumentation, the Claimant held that the amount of USD 30,000 remained
outstanding at the end of the contract. In addition, the Claimant maintained that he
had to pay his agent, who allegedly introduced him to the Respondent and
negotiated the contract, 20% commission in the amount of USD 60,000, which
payment, according to the Claimant, was due by the Respondent.
13.
In its reply as to the substance of the claim, the Respondent held that the Claimant’s
claim must be rejected. In this regard, the Respondent acknowledged the balance of
the Claimant’s salary, but held that it validly withheld its payment, in the amount of
94,174, pending the continuation of the claim lodged by the Claimant’s former agent
Player A, Country B / Club C, Country D
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against him, on 10 January 2013, in front of the Players’ Status Committee of the
Football Association E. In addition, the Respondent contested the Claimant’s
allegation that it had a contractual obligation to pay the claimed agent commission.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 18 November
2015. Consequently, the 2015 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 highlighted that in accordance with art. 24 paras 1 and 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2016) 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 Player of Country B and a Club of Country D.
3.
However, bearing in mind that the employment contract at the basis of the present
matter was concluded on 29 November 2012 with a duration ending in 2013 and that
the Claimant lodged his claim against the Respondent in front of FIFA on 18
November 2015, the members of the DRC considered that they should examine if the
present claim, or any part of it, is barred by the statute of limitations.
4.
Indeed, the members of the Chamber referred to art. 25 par. 5 of the Regulations on
the Status and Transfer of Players (edition 2016), which, in completion to the general
procedural terms outlined in the Procedural Rules, establishes that the Dispute
Resolution Chamber 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.
5.
Having said that, the members of the Chamber acknowledged that according to the
Claimant, the Respondent failed to remit USD 30,000 out of a total amount of USD
300,000 he allegedly was entitled to as annual remuneration. The Chamber noted
that the Claimant had not specified or provided a breakdown of the claimed amount
of USD 30,000. However, the Chamber took into account that according to the
financial terms of the employment contract, the Claimant was entitled to a monthly
salary of USD 15,000, which was payable on the 7th day of the following month.
6.
In continuation, the Chamber acknowledged that art. 1 of the employment contract
specifies that is is valid as from 1 December 2012 until 31 October 2013 and that
according to art. 8.1 of of the contract, it “expires and ceases to have any force after
the date specified under Clause 1 unless renewed or extended for a further period.”
Player A, Country B / Club C, Country D
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7.
In view of the clear date of expiry indicated in art. 1 of the employment contract, the
Chamber had to reject the Claimant’s argumentation that the contract was to run
until 29 November 2013.
8.
On account of the above, the members of the Chamber agreed that the last payment
owed by the Respondent to the Claimant in accordance with the employment
contract fell due on 7 November 2013 at the very latest.
9.
In continuation, while recalling that the present claim was submitted to FIFA on 18
November 2015, the Chamber concluded that the full amount claimed by the
Claimant as salary had fallen due more than two years prior to the date on which the
Claimant lodged his claim in front of FIFA.
10.
As a consequence, referring to art. 25 par. 5 of the Regulations on the Status and
Transfer of Players, the DRC concluded that the time limit of two years for the
Claimant to claim outstanding remuneration on the basis of the employment contract
had elapsed at the time he lodged his claim in front of FIFA.
11.
Therefore, the Chamber decided that the claim of the Claimant relating to his salary
is barred by the statute of limitations.
12.
In addition, the Chamber took into account that, on 12 November 2013, the Claimant
already lodged the claim relating to the allegedly outstanding salary against the
Respondent in front of the deciding body of the Football Association E. In this repect,
the Chamber wished to emphasise that it cannot accept that a party who lodged a
claim before jurisdictions other than FIFA thereafter seeks to lodge the same claim in
front of FIFA. The DRC’s contention is that a party who chooses a certain course of
legal remedy may not then decide to change the legal forum of the dispute, as this
would jeopardise the credibility of the sporting dispute resolution system.
13.
Having established the above, the Chamber turned its attention to the Claimant’s
claim relating to reimbursement of an agent commission in the amount of USD
60,000. The members of the Chamber noted that the Claimant had not specified nor
presented documentation demonstrating on which date such alleged payment would
have been due. However, bearing in mind that the Claimant alleged that he paid USD
60,000 as a commission to his agent who allegedly introduced him to the Respondent
and negotiated his contract, the Chamber was satisfied that payment of any such
alleged commission would have fallen due prior to the date of expiry of the related
employment contract, i.e. 31 October 2013, which is more than two years before the
date on which the Claimant lodged his claim in front of FIFA.
14.
On account of the above, the Chamber the Chamber decided that the claim of the
Claimant is fully barred by the statute of limitations and, consequently, inadmissible.
*****
Player A, Country B / Club C, Country D
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III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is inadmissible.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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