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
Carlos González Puche (Colombia), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player A, country B and/or country C,
as Claimant
against the club,
Club D, country B
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 31 January 2011, the Player A (hereinafter: the Claimant), and the club from country B,
Club D (hereinafter: the Respondent), signed an employment contract (hereinafter: the
contract) valid as from 1 March 2011 until 30 June 2014.
2.
In accordance with the contract, the Claimant was inter alia entitled to receive:
a. EUR 17,000 net as monthly remuneration of payable on 30 th of each month;
b. “accommodation in form of: House with 4 bedrooms is already equipped with
furniture. The Player has the right to decide whether or not to accept the
housing offered as suitable. Until suitable housing as here defined has been
found. The club will give accommodation in a hotel suite”;
c. two round trips between country C and country B in economy per year.
3.
According to the Football Association of country B the “Player A was registered as citizen
of country B while he was playing in Club D (known as Club D)”.
4.
In addition, the Football Association of country B provided the “Minutes of Oath” and the
“the Decree of the President of country B”, according to which the player has been a
national of country B since 10 October 2011.
5.
On 2 May 2012, the Claimant informed the Respondent that he had not been paid
remuneration owed for the months of March and April 2012, and that he required a flight
ticket to country B. On 15 May 2012, the Claimant reaffirmed by e-mail that he had still
not received the unpaid salaries in the total amount of EUR 34,000 and requested EUR
3,000 in housing costs.
6.
On 25 May 2012, the Claimant put the Respondent in default by e-mail of the unpaid
salaries as well as the housing costs. On 5 June 2012, the Claimant reminded the
Respondent that it owed him three monthly salaries and EUR 4,000 in housing costs. He
notified the Respondent that he considered the non-payments of monies owed as breach
of contract without just cause of the Respondent and that in light of such a development,
he would “have to leave country B”.
7.
On 19 November 2012, the Claimant lodged a claim in front of FIFA against the
Respondent maintaining that it had breached the employment relation without just cause
and asking that he be paid a total of EUR 615,320 plus 5% interest p.a. as follows:
a. EUR 51,000 as outstanding remuneration deriving from the contract;
b. EUR 4,000 in outstanding housing costs;
c. EUR 425,000 as compensation for the residual amount of the contract for the
period beginning in June 2012 until June 2014;
d. EUR 33,320 due for agents’ fees, i.e. EUR 3,570 “due prior to the termination”
and EUR 29,750 as compensation for the residual value of the contract;
e. EUR 102,000 amounting to six months salary for damages specific to sport;
f. sporting sanctions.
8.
The Claimant claims that he had not been paid his salary for the months of March, April
and May 2012 amounting to EUR 51,000 and that the Respondent had not provided him
with a return flight from the country C to country B. In addition, the Claimant claims
housing costs amounting to EUR 4,000 which were never paid.
9.
In addition, the Claimant claims that all fees due to his agent under the terms of the
contract have not been paid (cf. point I.5.d. above).
Player A, country B and/or country C / Club D, country B
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10.
In spite of having been invited by FIFA to provide its position regarding the claim, the
Respondent did not respond to the claim or make any statement during the course of the
investigation.
11.
In reply to FIFA’s pertinent request, the player indicated that he has not signed a
professional contract since the termination of the employment contract with the club.
II. Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter: 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 19 November 2012. Consequently, the
Rules governing the procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (2008 edition; hereinafter: the 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 is competent to deal with employment related disputes with an
international dimension between a player and a club.
3.
In view of the aforementioned provisions the Chamber was eager to emphasise that in
principle, and without prejudice to the right of any player or club to seek redress before a
civil court for employment-related disputes, it falls under its competence to deal with
international employment-related disputes between players and clubs unless an
independent arbitration tribunal has been established at national level.
4.
The members of the Chamber then referred to the Introductory Provision of the
Regulations on the Status and Transfer of Players and particularly to its art. 2 and art. 3,
according to which some principles outlined in the Regulations are also binding at
national level and each association is obliged to draw up its internal regulations. The
associations are within the framework of their autonomy, free to adapt their internal
rules to the necessity and the particularity of the country concerned. The competence of
FIFA therefore is restricted to international transfers and disputes.
5.
Furthermore, in the context of labour disputes the Chamber underlined that as a general
rule the international dimension is represented by the fact that the player concerned is
not a national of the country of the association to which the relevant club is affiliated.
6.
When both parties have the same nationality however, the dispute shall be considered as
national or internal, with the consequence being that the rules and regulations of the
association concerned shall be applied to the matter and the deciding bodies in
accordance with the relevant provisions that are to be applied on the issue. If FIFA’s
deciding body would deal with such an internal matter, the internal competence of FIFA
member associations would be violated. These principles of delimitation between the
competence of FIFA and the competence of the associations are primordial for the
reciprocal recognition of the organisations and autonomy of FIFA and the member
associations.
Player A, country B and/or country C / Club D, country B
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7.
Having said this, the Chamber turned its attention to the circumstances surrounding the
double citizenship of a Claimant. The members of the Chamber observed that an
increasing number of players with two or more nationalities have appeared in the world
of football and that FIFA and its deciding bodies are confronted with an augmented
number of cases which concern double citizenship. In this respect, the members of the
Chamber emphasised that a player’s nationality is expressed by his passport(s) or
identification document(s), but that within the framework of numerous citizenships a
player could, under certain circumstances, possibly invoke a “sportive nationality”. The
“sportive nationality” is generally linked to the concrete situation of the registration of a
player with a club affiliated to the specific association in which it is domiciled in a country
of which the player is also a national, in compliance with the rules of registration and
eligibility for the club of the association concerned.
8.
In such situations, both the club and the player may reap advantages of the “sportive
nationality”. For example, the player being registered as a “local player” does not fill any
quota of foreign players and would have no difficulty in obtaining a visa or work permit,
if at all required. Furthermore, any possible restriction on the number of foreign persons
in the country would not be applicable in such a situation. Such circumstances are
obviously to the benefit of both the club and the player.
9.
In this context, the Chamber recalled the crucial fact that the Claimant holds both country
C’s and country B’s nationality. According to the Claimant, he was a citizen of country C
when he entered into the contract and notes that although the nationality mentioned in
the contract is from country B, this was simply a mistake. In addition, he asserts that the
passport number referenced in the contract is that of his passport of country C. He further
states that long after the contract was signed, he gained country B’s nationality and that
this is proven by the date of issue of his passport of country B, i.e. 4 November 2011.
10.
The members of the Chamber further noted that from the information provided by the
Football Association of country, the Claimant was registered as a citizen of country B with
the Respondent, and that from the documentation provided by the Football Association
of country B the Claimant had received his country B’s citizenship on 10 October 2011. The
DRC considered it important to note that the Claimant had knowingly signed the
employment contract at the basis of the dispute which clearly contained the mention
“nationality of country B”.
11.
In view of the allegations of the Claimant and the information and documentation
provided by the Football Association of country B, the Chamber deemed it important to
establish at which moment the analysis of the national or international nature of the
dispute should be made. The Chamber concluded that such an analysis should be made
when the event giving rise to the dispute occurs. In this particular case, the relevant events
are the alleged non-payment of housings costs – for which no specific amount or pay
dates are stipulated in the contract – and of the player’s salaries for March until May 2012.
12.
In this regard, the members of the Chamber took note that the Claimant was always
registered as a player from country B, despite only acquiring the country B’s nationality on
10 October 2011. Furthermore, the members of the Chamber took note that at the time of
the alleged non-payment of the player’s salaries of March, April and May 2012, he was
undoubtedly a national of country B.
13.
On account of all of the above considerations, in particular the fact that the Claimant
from country C/country B was registered as a player from country B with the Respondent
from the start of his contract, in addition to the fact that when the litigious event leading
to the present dispute arose the Claimant had already acquired the country B’s
nationality, the case of the Claimant in question comes under the jurisdiction of the
Player A, country B and/or country C / Club D, country B
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football association in the country concerned, i.e. country B; due to the lack of
international dimension of a dispute between a player from country B and an club from
country B as a result of which FIFA cannot intervene due to a lack of jurisdiction over the
matter.
14.
III.
Consequently, the Dispute Resolution Chamber decided that the present matter is not
admissible.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is inadmissible.
*****
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 and/or country C / Club D, country B
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