Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Alejandro Marón (Argentina), member
Guillermo Saltos Guale (Ecuador), 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 between the parties
I. Facts of the case
Facts relating to the preliminary issue of the competence of the Dispute
Resolution Chamber:
1.
On 1 July 2012 the player from country B, Player A (hereinafter: the Claimant) and the
player from country D, Club C (hereinafter: the Respondent), signed an employment
contract valid as from 1 July 2012 until 30 June 2015 (hereinafter: the contract). The
contract is signed by the Claimant and Mr E on behalf of the Respondent.
2.
Article 14 of the contract stipulates “In the event the club remains in default of its
obligations relating to the payment of salaries, the payment of social security or
income tax, the player may obtain his freedom by following the procedures
established by the Football Federation of country D”.
3.
Furthermore, article 23 of the contract stipulates that “the present contract falls
under the scope of the law regarding paid sportsmen of 24 February 1978, the law on
employment contracts of 3 July 1978, the National Collective Labour Agreements
agreed upon in conjunction with the National Joint Commission on sports as well as
work regulations”.
4.
The Respondent contested the competence of FIFA to deal with the present matter
referring to art. 22 lit. b) of the FIFA Regulations in favour of the national dispute
resolution system according to the aforementioned art. 14 and art. 23 of the
employment contract. In this regard, the Respondent submitted the following
documentation: a) an extract of country D’s law on employment contracts, b) an
extract of country D’s law relating to employment contracts of paid athletes of 24
February 1978, c) an extract of the Royal Decree of 13 July 2014 which fixes
remuneration for an athlete, d) an extract of the Collective bargaining agreement,
editions 2009 and 2013, relating to employment conditions of a paid footballer, and
e) art. 117 of the Football Association of country D’s (hereinafter: Football
Association of country D) Regulations of 1 March 2014.
5.
Article 13 of country D’s law on employment contracts (a) and Article 9 of the Law
relating to the employment contracts of paid athletes of 24 February 1978 (b) provide
that “employees and their employers cannot commit in advance to submit a dispute
arising from the employment contract to arbitration”.
6.
According to article 4 of the Collective bargaining agreement (d) a Conciliation
Committee is explicitly in charge of examining all problems relating to working
conditions and remuneration concerning football players. Its article 5 provides that
Player A, country B / Club C, country D
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the Committee is composed of at least four members, of which two are
representatives of players’ syndicates and two represent employers.
7.
Art. 117 of the Football Association of country D’s Regulations (e) states that “after
having exhausted all internal means available with regard to the present Regulations,
the Football Association of country D and, through their affiliation, the clubs and
their affiliates, commit to submit the all disputes via the arbitration procedure in
front of the Court of Arbitration for Sport of country D in conjunction with the
regulations of said Court. The Football Association of country D and, through their
affiliation, the clubs and their affiliates, equally commit to accept the voluntary
intervention of all other interested parties”.
8.
In this context, the Respondent argues that the Claimant should have submitted the
dispute to the Conciliation Committee, as provided for in the Collective bargaining
agreement and that the player did not respect the regulatory procedures as per the
Football Association of country D’s Regulations.
9.
The Claimant, for his part, insists that FIFA’s Dispute Resolution Chamber is competent
to deal with the present matter by inter alia stating that no clear reference to any
national arbitration tribunal is contained in the labour contract, referring to the
commentary of the Regulations on the Status and Transfer of Players.
Facts relating to the substance of the matter:
10.
In accordance with the contract (cf. point I.1. above), the Claimant was inter alia
entitled to receive the following remuneration:
a. EUR 1,800 net per month for the 2012/2013 season;
b. EUR 2,200 net per month for the 2013/2014 season;
c. EUR 2,500 net per month for the 2014/2015 season.
11.
Furthermore, the contract provided for match bonuses in accordance with the
Respondent’s Internal Regulations as well as being entitled to food and board.
12.
On 14 August 2012, the Respondent and the Club F from country G (hereinafter: Club
F) concluded a loan agreement for the player. In this context, the Claimant and Club F
signed an employment contract (hereinafter: Club F contract), valid from 14 August
2012 until 31 July 2013, the terms of which provide for monthly remuneration of
24,940, corresponding to approximately EUR 850, according to the player.
13.
The Claimant claims that a few days before, on 10 August 2012, the Claimant and the
Respondent (cf. point I.19. below) allegedly concluded an agreement (hereinafter: the
agreement), signed for by an alleged representative of the club, Mr E, which would
Player A, country B / Club C, country D
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entitle the player to receive remuneration in addition to that provided for by the
Club F contract (cf. point I.19. below) as the remuneration provided by Club F was
substantially lower than that offered by the Respondent, as follows:
a. EUR 2,500 before 30 October 2012;
b. EUR 2,500 before 30 January 2013;
c. EUR 3,400 before 30 May 2013.
14.
On 29 January 2013, the Respondent and Club F prematurely terminated their loan
agreement. On the uncontested termination document, Mr E appears under the
nomination of Administrator.
15.
On 27 February 2013, the Respondent and the Club H from country I (hereinafter:
Club H) as well as the player, signed a loan agreement for the player, who signed an
employment contract with Club H (hereinafter: Club H contract) valid as from 27
February 2013 until 30 June 2014. The Club H contract provided for monthly
remuneration of 600,000. The employment contract linking the player to Club H was
terminated on 16 January 2014.
16.
On 26 August 2013, the Claimant formally put the Respondent in default of the
amounts allegedly owed in relation to the agreement (cf. point I.13.), stating that if
he did not receive EUR 5,900 pertaining to the payments of EUR 2,500 due on 30
January 2013 and EUR 3,400 due on 30 May 2013 (cf. points I.13.b and I.13.c above),
he would have to terminate his employment relationship with the Respondent “with
immediate effect”.
17.
On 16 September 2013, the player unilaterally terminated the contract with the
Respondent for non-payment of remuneration under the terms of the agreement.
18.
On 10 December 2013, the player lodged a claim in front of FIFA against the
Respondent requesting the payment of the total amount of EUR 51,126 plus 5%
interest p.a. as from 16 September 2013, as follows:
- EUR 5,900 as outstanding remuneration in relation to the agreement (cf.
point I.16. above);
- EUR 45,226 as the residual value of the contract as from 16 September 2013
until 30 June 2015 (i.e. EUR 50,826 as per the player) minus the EUR 5,600
(EUR 800 x 7 months) of salaries allegedly owed by Club H.
- sporting sanctions on the Respondent.
19.
The player claims that after he was loaned to Club F, the Respondent sought to
negate the reduction of his salary by offering him EUR 8,400 in three instalments to
compensate his loss (cf. point I.13. above). He claims that only the first instalment was
Player A, country B / Club C, country D
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paid and he put the Respondent in default of said outstanding amounts on 26 August
2013 (cf. point I.16. above).
20.
The contract signed with Club F was terminated by the latter after 6 months on 29
January 2013 and the Claimant alleges he was compelled to leave Club F without
receiving his salaries of November and December 2012.
21.
After the default notice of 26 August 2013 and the notice of termination of 16
September 2013 were received by the Respondent (cf. points I.16. and I.17. above),
the Claimant alleges having received a Facebook message on 23 September 2013 in
which a representative of the Respondent asserted that the agreement could not be
invoked against it as it was not “an official document of Club C, just a convention
between [the player] and Mr E”. In this respect, the Claimant points out that the
letterhead used in the agreement was that of the Respondent, and that the person
who signed the contract on behalf of the Respondent was name as administrator on
the letterhead of the document, i.e. Mr E.
22.
The Claimant argues that the Respondent had denied him payment of salaries due
relating to the agreement for over 11 months, until the date of claim.
23.
In its reply to the claim, the Respondent asserts that it had no knowledge of the
existence of the agreement made 10 August 2012 (cf. point I.13. above) until it
received the claim, and ignores where the alleged payment of EUR 2,500 comes from
and who made it. In this regard, the Respondent has expressly and repeatedly
requested to know from the Claimant who made the aforementioned transaction.
24.
The Respondent asserts that it did everything in its power to redress the Claimant’s
situation after the contract with Club F was terminated (cf. point I.14. above), and
managed to organise a loan to Club H after the Claimant allegedly asked for it,
thereby avoiding financial loss for the Claimant.
25.
It adds that the loan transfer to Club H took place in February 2013, and by then the
Claimant could have claimed EUR 2,500 which allegedly became payable on 30
January 2013 in light of the agreement.
26.
The Respondent then seeks to establish what legal status the agreement may have if
it were deemed that said document engages the obligations of the club. It argues
that if the obligations in the agreement were to be considered a salary, the
Respondent would have had to pay taxes as well as social security contributions on
the amount, thing it did not do. Therefore, it must be considered to be compensation
for a prejudice, the default of payment of compensation cannot be qualified as “just
Player A, country B / Club C, country D
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cause” to terminate the contract and to seek the imposition of important financial
and sporting sanctions on the Respondent.
27.
The Respondent then states that, should the agreement be deemed part of this
particular contractual dispute, the compensation is disproportionate to the damages
occurred, i.e. EUR 5,900 compensated by EUR 51,126.
28.
For his part, the Claimant alleges that the termination of the loan agreement with
Club F (cf. point I.14. above) contains the name of Mr E on its letterhead and was
signed after the agreement of 10 August 2012 (cf. point I.10 above) which he argues
appears to indicate that Mr E does legally represent the Respondent, therefore that it
is unfeasible to believe the Respondent was not aware of such an agreement.
29.
Furthermore he claims that the loan agreements made by the Respondent have been
made on purpose to circumvent its obligations of paying the fully contractually
established salaries, which demonstrates clear bad faith and breach of contract by the
Respondent by not paying the sums agreed upon in the agreement.
30.
Finally, the Respondent reiterates that, notwithstanding the fact it was allegedly not
aware of the agreement until the claim was lodged, the sole partial execution of a
contractual obligation cannot be used as justification for the termination of a
contract.
31.
The Claimant informed FIFA that he has failed to find employment since the
termination of his employment contract with Club H on 16 January 2014.
II. Considerations of the Dispute Resolution Chamber
1.
First, 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 10 December
2013. Consequently, the Rules governing the procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2012; hereinafter:
Procedural Rules) are 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 in combination with art. 22
lit. b of the Regulations on the Status and Transfer of Players (2015 edition) 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 an player from country B and a player from country D.
Player A, country B / Club C, country D
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3.
The Chamber however acknowledged that the Respondent contested the competence
of FIFA’s deciding bodies on the basis that with regards to art. 22 lit. b) of the
Regulations, a national independent dispute resolution system guaranteeing fair
proceedings existed in country D and is mandatory in accordance with art. 14 and art.
23 of the employment contract (cf. points I.2. and I.3. above). The members noted
that the Respondent referred to two different deciding bodies: the Conciliation
Committee provided for in the Collective bargaining agreement and the Court of
Arbitration for Sport of country D.
4.
In this regard, the Chamber noted that the Claimant rejected such a position and
insisted that FIFA has jurisdiction to deal with the present matter, mainly because
there is no specific or clear jurisdiction clause contained in the contract.
5.
Taking all of the above into account, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2015 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.
In relation to the above, 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 Dispute Resolution Chamber 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.
7.
Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should first and foremost analyse
whether the employment contract at the basis of the present dispute contained a
clear jurisdiction clause.
8.
In this respect, the Chamber recalled that art. 23 of the employment contract
stipulates that: “the present contract falls under the scope of the law regarding paid
sportsmen of 24 February 1978, the law on employment contracts of 3 July 1978, the
National Collective Labour Agreements agreed upon in conjunction with the National
Joint Commission on sports as well as work regulations” (cf. point I.3. above). The
members of the Chamber also took note of the content of art. 14 of the employment
Player A, country B / Club C, country D
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contract which stipulates that: “In the event the club remains in default of its
obligations relating to the payment of salaries, the payment of social security or
income tax, the player may obtain his freedom by following the procedures
established by the Football Federation of country D” (cf. point I.2. above).
9.
Having examined the relevant provisions, the Chamber came to the unanimous
conclusion that art. 14 and art. 23 of the employment contract do not constitute a
jurisdiction clause in favour of one specific court or tribunal of arbitration in country
D since they do not refer to one deciding body per se for the jurisdiction of the
Respondent. The foregoing conclusion is even supported by the Respondent’s
statements which themselves do not refer to one specific deciding body, but rather to
articles of the Football Association of country D’s Regulations, notably its article 117,
and the Collective Bargaining Agreement which refer to the country D’s Court for
Arbitration of Sport as well as the Conciliation Committee.
10.
The members of the Chamber then took note that in its reply to the claim, the
Respondent initially sought to have the player’s claim rejected and in case it was not
then it “alternatively” and “subsidiarily” declared that FIFA should not be competent.
In this regard, in spite of the preliminary nature of the analysis regarding
competence, the members took due note that the Respondent accepts the possibility
that the DRC is competent to deal with the present dispute, as long as the Claimant’s
claim is rejected. Therefore the Chamber concluded that that under certain specific
circumstances the Respondent accepts the competence of FIFA.
11.
As a result and taking into consideration all of the aforementioned circumstances, the
Dispute Resolution Chamber concluded that the Respondent’s objection to the
competence of FIFA to hear the present dispute has to be rejected, and that the
Dispute Resolution Chamber is therefore competent on the basis of art. 22 lit b) of
the Regulations to consider the present matter as to the substance.
12.
Having established its competence, 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 (2015 edition) and considering that the present claim was lodged on 10
December 2013, the 2012 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
13.
The competence of the Chamber and the applicable regulations having been
established, the members of the Chamber entered into the substance of the matter.
In this respect, the Chamber started by acknowledging all the aforementioned facts
as well as the arguments and documentation submitted by the parties. The Chamber
however emphasised that in the following considerations it will refer only to the
Player A, country B / Club C, country D
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facts, arguments and documentary evidence which it considered pertinent for the
assessment of the matter at hand.
14.
In this respect, the DRC acknowledged that the parties had signed an employment
contract on 1 July 2012 valid until 30 June 2015, noting in particular that the
signatory on behalf of the Respondent was Mr E. It further acknowledged that the
Respondent and the Claimant had organised that the latter be temporarily loaned to
the Club F from country G (hereinafter: Club F) on 14 August 2012 until 31 July 2013
and that Club F and the Claimant had signed an employment contract valid for the
same duration.
15.
The members of the Chamber further noted that on 10 August 2012, the Claimant
and the Respondent, by means of the signature of Mr E, had concluded an agreement
entitling the player to receive remuneration in addition to that provided for in the
employment contract the Claimant had signed with Club F in light of reduced salary
the Claimant was set to receive. In this regard, the members of the Chamber noted
that said agreement stipulates that “it is hereby agreed: that the Player A should
receive the sum of EUR 8,400 for the difference in salary in consequence of the loan
between Club F and [the Respondent]”. The DRC took note that the Respondent
alleges that Mr E was not one of its authorised representatives, thereby making the
document unenforceable.
16.
In continuation, the DRC acknowledged that the loan with Club F ended by mutual
consent on 29 January 2013 and was signed by all three parties involved. At this
point, the members of the Chamber recalled that the agreement signed on 10 August
2012 provided for three payments due on 30 October 2012, 30 January 2013 and 30
May 2013 which were solely and directly conditioned by the loan agreement signed
with Club F. The DRC noted that the Claimant had formally put the Respondent in
default of its obligations pertaining to the agreement on 26 August 2013.
17.
Furthermore, the Chamber noted that the Respondent and the Claimant had
subsequently concluded a loan agreement with the Club H from country I valid from
27 February 2013 until 30 June 2014 which was terminated on 16 January 2014.
18.
The members of the Chamber noted that Mr E’s name appears on the letterhead of
the club on the tripartite termination document of the temporary transfer of the
Claimant to Club F, which was signed after the contested agreement, which was itself
signed for by Mr E and also contains said name on the letterhead.
19.
Consequently, with regard to the position of the Respondent according to which the
agreement of 10 August 2012 has no legal effect since it had been signed by an
unauthorised person, the members of the Chamber agreed that at the time of signing
the agreement, i.e. 10 August 2012, the Claimant had reason to believe in good faith
Player A, country B / Club C, country D
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that he was signing a legitimate convention with an authorised representative of the
Respondent. Equally, the Chamber outlined that the Respondent never provided
documentary evidence demonstrating that the Claimant was aware that the signatory
was not authorised to represent the Respondent at the moment of signing the
pertinent agreement. Furthermore, the DRC recalled that it is not competent to deal
with matters relating to the criminal activity.
20.
In continuation, the members of the DRC acknowledged that the agreement of 10
August 2012 was made with the sole purpose of complementing the Claimant’s
reduced salaries during his employment with Club F and took note that the
aforementioned termination of said contract took place on 29 January 2013. In this
regard, the DRC noted that the date of termination took place before the due date of
the second instalment, i.e. 30 January 2013, established in the agreement and as such
concluded that it can be inferred that said agreement had become obsolete and was
no longer in force once the loan with Club F had been terminated.
21.
The Chamber then established that no such agreement had been reached between
the parties in relation to the loan with Club H, and it could therefore be established
that Club H was paying the Claimant his remuneration and that the Respondent had
no contractual obligation to either pay any remuneration or complement any
reduced salary.
22.
From all of the above, the members of the Chamber concluded that the Claimant did
not have just cause to terminate the employment contract with the Respondent, in
particular as the obligations of the Respondent stemming from the agreement of 10
August 2012, notably the payments in instalments, were extinguished when the loan
with Club F ended. The Chamber recalled that the payments were no longer due as a
consequence of the termination of the loan agreement with Club F and the Claimant
did not have just cause to terminate the employment contract with the Respondent.
23.
The members of the Chamber decided that in light of all the aforementioned
considerations, in particular the fact that no amounts were outstanding at the time of
unilateral termination of the employment contract, the claim of the Claimant had to
be rejected in this regard.
24.
Finally, the Chamber decided to reject any further claim lodged by the Claimant.
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.
Player A, country B / Club C, country D
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*****
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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