Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 30 September 2016,
in the following composition:
Geoff Thom ps on (England), Chairman
Theo v an S eggelen (Netherlands ), member
Jon New m an (US A), member
Mario Gallav otti (Italy ), member
Taku Nom iy a (Japan), member
on the matter between the club,
Club A, Country B
as Claimant
and the player,
Play er C, Country D,
as Respondent I
and the club,
Club E, Country B,
as Respondent II
and the club,
Club G, Country H
as Intervening party
regarding an employment-related dispute arisen between the parties
I.
Facts
1.
On 29 July 2011, the Player of Country D, Player C (hereinafter: the Respondent I or the
player), born on 16 March 1990, and the Club of Country B, Club A (hereinafter: the
Claimant or Club A), signed an employment contract (hereinafter: the contract) valid as
of 1 August 2011 until 30 June 2014.
2.
Pursuant to the contract, the player was entitled to receive a net monthly
remuneration of 10,757 for the first season, 11,735 for the second season and 13,039
for the third season. The contract also foresaw that the relevant monthly
remuneration was due the 30th of the following month.
3.
The contract further stipulated that in case of termination of the contract, solely a
decision from the arbitral body of the Football Union of Country B (Football Union F)
can put an end to the contract.
4.
As per art. X.2. of the contract, Club A agreed upon the possible transfer of the
player’s sporting rights to another club, subject to the payment of the minimum
amount of EUR 350,000.
5.
Art. XIII.2 of the contract foresaw that for the questions undealt by the contract, the
Football Union F Regulations and the Law of Country B are applicable.
6.
Art. XIII.3. of the contract provided that any dispute between the parties as to the
contract, its execution and its interpretation, shall be settled amicably by means of an
agreement. In the event that such an agreement was not found by the parties, the
dispute shall be solved in front of the arbitral body of the Football Union F.
7.
On 18 January 2012, the player terminated the contract with Club A in writing.
According to said termination notice, the termination was to be effective as from the
date of receipt of the notification by Club A. Moreover, in the said termination notice,
the player requested Club A his “basic salary for the months of December 2011 and
January 2012 (till the receipt of the present notification), additional remuneration
(bonuses) in the total amount of EURO 2500 (two thousand and five hundred euro)”.
8.
On 10 February 2012, the player lodged a claim in front of the District Court of City J
against Club A, requesting the payment of his outstanding salary for December 2011 in
the amount of 10,757, and for January 2012 in the amount of 6,141, as well as unpaid
“additional bonuses” amounting to 3,000, plus interest p.a. until the date of effective
payment.
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
2/16
9.
In reaction to the player’s claim, Club A lodged a counterclaim before the District
Court of City J against the player, requesting the payment of the amount of 3,167.28
corresponding to 1,102.28 as “excess of official talks using the provided official SIM
card from November 2011 to January 2012”, 1,215 as “expenses incurred in connection
with the use of the rented property” and 850 as “fines imposed on the [player] by the
Football Union of Country B”, plus legal interest. On 3 April 2012, the District Court of
City J decided to deal with the relevant counterclaim as a new claim.
10.
On 13 June 2012, the District Court of City J rendered a decision pertaining to the
claim of the player and dismissed his requests.
11.
On 28 November 2012, the District Court of City J rendered a decision as to the claim
of Club A, and ruled that the player shall pay the amount of 1,350 as well as “expenses
incurred in the case”.
12.
On 30 March 2012, Club A lodged a claim before FIFA against the player and the Club
of Country B, Club E (hereinafter: the Respondent II or Club E), requesting the
following:
EUR 350,000 as compensation for breach of contract, plus 5% interest p.a. to be
paid by the player and, severally and jointly, by Club E;
Sporting sanctions to be imposed on both the player and Club E.
13.
Club A further requested the payment of damages and disciplinary sanctions to be
imposed by FIFA on the player’s agent, Agent M, in accordance with art. 17 par. 5 of
FIFA Regulations (cf. point I.31. below).
14.
First of all, Club A alleged that FIFA had jurisdiction to rule the present matter. In this
respect, Club A referred to art. 22 lit. a) of FIFA Regulations in order to explain that
the relevant matter concerned a breach of contract together with an issue pertaining
to the player’s International Transfer Certificate (International Transfer Certificate; cf.
point I.30. below). Moreover, Club A alluded to art. 22 lit. b) of FIFA Regulations
insofar as the relevant dispute related to an employment contract between a club and
a player belonging to two different associations. According to Club A, the “Court
Arbitration of the Football Union of Country B” was thus not competent to deal with
the matter at stake.
15.
As to the substance of the matter, Club A underlined that it received the player’s
termination notice dated 18 January 2012 by DHL on 19 January 2012, which should be
considered as the effective date of termination of the contract by the player. Club A
also asserted that such termination notice did not evoke any sport-related reasons or
any other explanations as to the unilateral termination by the Respondent I.
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
3/16
16.
According to Club A, it complied with its financial obligations towards the Respondent
I as per the contract and provided payment slips in order to substantiate its
allegations.
17.
In this respect, Club A emphasised that, on 30 September 2011, it paid the player “his
first set of wages” amounting to 8,559.16. Afterwards, on 10 October 2011, the player
was apparently granted an advance payment of 1,000, the balance of which was paid
on 28 October 2011. As to his salary for October and November 2011, Club A sustained
having paid him the respective amount of 10,757 on 30 November 2011 and 27
December 2011. As regards his salary for December, Club A alleged that it was paid to
the player’s bank account on 27 January 2012.
18.
With regard to the player’s salary for January 2012, Club A deemed that it did not owe
the player any amounts for the relevant month insofar as, according to it, the player
did not provide his services to Club A as from early January and then terminated the
contract with it, without any valid reason, on 19 January 2012. In particular, Club A
highlighted that, as from 5 January 2012, the player had to be back to Club A after his
paid annual leave and resume training with Club A. However, on 6 January 2012, the
player’s agent apparently informed Club A that, due to outstanding payments, the
player would leave Club A.
19.
In this respect, Club A submitted training reports dated 26 January 2012, stating that,
on 6 and 9 January 2012, the player was absent from its training sessions. Club A also
submitted a letter of notification dated 9 January 2012 from the alleged hotel of the
player, informing of his non-registration in the hotel as from 8 January 2012.
20.
In view of the aforementioned, Club A deemed that the amount of compensation for
the player’s unilateral termination should be based on the buy-out clause contractually
foreseen. Consequently, Club A maintained that the amount of EUR 350,000 is the
minimum amount to be paid by Club E to Club A as compensation.
21.
Club A further highlighted that the contract also provided, in its art. X.23, for a
compensation clause to the benefit of Club A in the event of the player’s breach.
Therefore, Club A stressed that the DRC should take this clause into account for the
calculation of the compensation payable to Club A, which would consist of the player’s
gross salary until the end of the contractual term, amounting to EUR 209,514,
equivalent to 409,773.36.
22.
Subsequently, denying the statements of the player’s agent in the press on 11 January
2012 – according to which the player had left Club A because it “was unable to pay his
salary and did not perform its contractual obligations. (…) [The player] did not get his
salary for the first month. After that he started receiving only part of the agreed
amount of money. He received ¾ of his salary without any explanation” – Club A
informed the Football Union F in writing, on 17 January 2012, that the player was still
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
4/16
considered as part of Club A and had, so far, not undertaken any actions against Club
A as to the termination of the contract; therefore, his absence at training was a
violation of the “labour discipline”, based on which Club A would reserve its right to
impose him a penalty.
23.
In relation to Club E, Club A considered that Club E actively negotiated with the player
as from 11 January 2012 and thus contributed to the termination of the contract
insofar as the sole purpose of the termination was to gain the status of “free player”
so that the player could sign a new employment contract with Club E.
24.
In this regard, Club A provided a letter dated 17 January 2012 addressed by the
Respondent II to the Claimant, by means of which Club E informed Club A that the
player’s agent made an offer regarding an employment contract between the player
and the Respondent II. In this context, Club E asked Club A whether the player was
currently under contract with it and, in the affirmative, what would be the “transfer
price” determined by Club A.
25.
Thereafter, on 18 January 2012, Club A replied to Club E, informing the latter of the
ongoing contract between Club A and the player, set to run until 30 June 2014. Club A
also emphasised that the player had not taken any action with respect to the
termination of the contract or had not started proceedings in front of the Football
Union F, which Club A had been notified about. Club A also informed Club E that the
minimum “transfer price” for the “competitor rights” of the player, in case the latter
wished to sign a contract with Club E, amounted to EUR 350,000 as contractually
foreseen. However, Club A maintained that in the event Club E intended to sign a
contract with the player, Club A would consider that, given that Club E was aware of
the aforementioned information, Club E acted deliberately to the detriment of Club A
and would take further action.
26.
Moreover, Club A alleged that, in spite of the aforementioned and in violation of FIFA
Regulations, the player and Club E concluded an employment contract on 20 January
2012. In this respect, Club A provided a CD-ROM as well as press articles relating to a
press conference held by Club E on 23 January 2012, in order to officially introduce the
player as part of Club E, and further confirming the date of 20 January 2012 as the
date of signature of the contract concluded between the player and Club E.
27.
Subsequently, Club A referred to a letter dated 1 February 2012 from the Football
Union F enclosing the “statement of opinion” released by the “Sports Technical
Committee” (STC) of the Football Union F on 31 January 2012, according to which the
termination of contract by the player was considered as without reasonable cause,
thus giving Club A the right to claim compensation from the player based on art. 44 of
the Football Union F Regulations, stating the following: “In the events where a
contract or competition rights are terminated prematurely by professional football
player without just cause, the professional football player is obliged to pay
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
5/16
compensation to the football club. When the parties have not determined or do not
reach agreement regarding the amount of the compensation, the dispute for
determination of its amount shall be resolved by the Football Union F”.
28.
The relevant body of the Football Union F also added in its “statement of opinion”
that sporting sanctions would be imposed on his first new club, as per art. 45.2 of the
Football Union F Regulations (cf. point I.36 below), given that the latter was presumed
having caused the player’s breach of contract. Finally, the relevant body stated that at
the time of the issuance of such statement, there was no submitted contract between
the player and another Club of Country B in the registry of the Football Union F.
29.
Thereafter, Club A sustained that following the relevant “statement of opinion”, Club
E decided not to register the player to the Football Union F, as explained in a press
article dated 6 March 2012 provided by Club A, thus resulting in Club E not delivering
the contract allegedly signed with the player and by not listing him to “participate in
representing the team”. The player apparently only took part in a “first control game
at the training camp in City K” according to a press article dated 1 February 2012
provided by Club A.
30.
Pursuant to a press article dated 1 March 2012 provided by Club A, in order to
overcome this issue, Club E decided to register the player with its “satellite team”,
Club L. Club A further held that Club E eventually decided to transfer the player to the
amateur Club of Country H, Club G – which apparently then loaned him as a
professional back to Club E –, and was thus awaiting the Confirmation of the Football
Union F as to the request of the player’s International Transfer Certificate by Club E.
31.
With regard to its claim against the player’s agent, Club A pointed to Agent M’s
behaviour, which allegedly prompted the Respondent I to put an end to the contract.
In this respect, Club A referred to an e-mail from Agent M sent to it on 5 October
2011, by means of which she also informed it that she knew a club that was “ready to
buy the [player]”.
32.
In his statement of defence, the player first of all disputed the jurisdiction of FIFA to
deal with the matter at stake. In this regard, the player held that this matter was not
an arbitrable dispute and referred, in this respect, to art. 360 par. 1 of the Labour Code
of Country B – which provided that “Labour disputes shall be reviewed by the courts.
They shall be reviewed pursuant to the rules of the Civil Procedure Code, unless
otherwise provided by this Code” – in combination with art. 19 par.1 of the Code of
Civil Procedure of Country B– according to which “The parties to a property dispute
may agree that the said dispute be settled by an arbitration court, unless the said
dispute has as its subject matter any (…) rights under an employment relationship”.
The player further emphasised that said rules were peremptory norms, engaging the
exclusive jurisdiction of state courts.
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
6/16
33.
Furthermore, the player held that a concurrent procedure between Club A and the
player regarding the same object and the same cause already took place in front of an
ordinary civil court in Country B. In this respect, the player pointed to the claim that he
lodged in front of the ordinary court in Country B on 10 February 2012 regarding
unpaid salaries (cf. points I.8. to I.11. above). The player also emphasised that Club A
never disputed the competence of the Ordinary Court of Country B in this matter and,
even more, took part in the procedure at the national level by lodging a counterclaim
against the player, thus acknowledging the exclusive jurisdiction of the Ordinary
Courts of Country B. Finally, the player referred to the decision rendered by the
Ordinary Court of Country B pertaining to the aforementioned respective claims in
order to emphasise that the DRC could not render a decision on a matter that was res
iudicata.
34.
In addition, the player sustained that, on 25 January 2012, Club A filed a complaint
against the him and Club E in front of the STC of the Football Union F, requesting the
imposition of sporting sanctions on the player, i.e. ban until 30 June 2014 which is the
ending date of the contract, and on Club E, i.e. ban of one registration period. From
said claim resulted the “statement of opinion” of the STC of the Football Union F by
means of which the STC considered the termination of the contract by the player
without just cause. Consequently, and with respect to the relevant “decision
rendered” by the STC, the player asserted having paid the amount of 36,630 to Club A,
representing three monthly salaries in accordance with art. 326 of the Labour Code of
Country B – according to which “(1) An employee may terminate a contract of
employment by giving the employer a notice in writing. (2) (…) The notice period for
termination of an employment contract of a fixed-term shall be 3 months, but not
more than the remaining period of the contract.” – in conjunction with art. 220 par. 1
of the Labour Code of Country B – according to which “The party entitled to terminate
the labour relationship with notice may terminate it before the expiration of the
notice period, in which case it shall owe the other party compensation equal to the
amount of the employee’s gross labour remuneration for the remainder of the notice
period”. In this regard, the player provided a bank statement in order to evidence the
payment of the aforementioned amount.
35.
In view of the aforementioned, the player requested FIFA to reject the Claim of Club A
insofar as FIFA is not competent to rule the present matter. Alternatively, the player
requested FIFA to reject such claim due to res iudicata.
36.
As to Club E, in its defence, it asserted that the claim of Club A was inadmissible since
the relevant matter had already been decided by the competent deciding bodies of
the Football Union F, to which Club A referred to, in the first instance, in order to seek
relief. In particular, Club E pointed to the complaint of Club A in front of the STC of
the Football Union F on 2 July 2012, apparently supplementing the petition lodged by
Club A to the Football Union F as explained in point I.34. above, by means of which
the latter claimed that the request of Club E to the Football Union F to register the
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
7/16
player breached art. 45 par. 2 of the Football Union F Regulations – according to which
“(2) unless the opposite is established, the football club, which concluded contract
with professional football player, who had terminated his contract (competition rights)
without just cause is the reason for the professional to commit violation of the
contract. To such football club a sports sanction is to be imposed – ban for registering
new football players for one transfer period. (3) The sports sanction under par. 2 is
imposed by way of decision of the STC of Football Union F. The decision is subject to
appeal before the Football Union F within (…) 7 days following the date of the
announcement of the decision”.
37.
In this context, on 3 August 2012, the STC of the Football Union F forwarded the claim
to the Disciplinary Committee of the Football Union F, which, on the same date,
apparently decided to impose a ban on Club E from registering new players for the
period as from 3 August 2012 to 31 August 2012, which Club E asserted having
completely served. In this regard, it provided an extract of a press article published on
a website relating to said decision of the Football Union F.
38.
In this respect, Club E underlined that instead of completing the procedure before the
Football Union F, Club A referred the whole matter again to FIFA, regardless whether
such request coincided or overlapped with the ones already granted by the Football
Union F. Even more, Club E added that Club A started labour proceedings against the
player in front of the District Court of City J and, therefore, could have requested
compensation for unilateral termination of the contract, but Club A failed to do so.
39.
Club E further highlighted that by referring to the Football Union F, requesting the
latter to apply the applicable Football Union F Regulations, Club A confirmed the
application of art. XIII.2 and XIII.3 of the contract.
40.
Consequently, Club E considered that by choosing the relevant deciding body of the
Football Union F to seek relief and after receiving such relief, Club A waived its right
to address the matter to FIFA with similar requests.
41.
In the event that FIFA deemed itself competent to determine the amount of
compensation only, Club E held that FIFA should apply the Football Union F
Regulations. In this event, Club E deemed that it should be entirely released from the
proceedings because the Football Union F Regulations do not provide for joint liability
of the new club with respect to the payment of the compensation. In addition, Club E
emphasised that it had already served its sanction for the alleged involvement in the
contractual breach and therefore cannot be sanctioned twice for the same conduct.
42.
In the event that FIFA deemed itself competent to re-examine the matter de novo and
review the merits of the case, Club E considered that the unilateral termination of the
contract by the player was based on art. 326 par. 2 of the Labour Code of Country B
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
8/16
according to which a fixed-term employment contract can be terminated unilaterally
by the employee by granting a three-month notice to the employer.
43.
As regards the amount of EUR 350,000 requested by the Claimant as per art. X.2 of the
contract, Club E argued that Club A did not provide any conclusive evidence with
respect to the existence of an offer made by another club for the player, alleging that
Club A solely referred to speculations made in the press and by the player’s agent.
Therefore, Club E deemed that such amount should not be awarded to Club A.
44.
As to the compensation clause referred to in art. X.23 of the contract, Club E recalled
that such contractual compensation clause did not comply with the fundamental
principle of proportionality, especially in the view of its apparent purpose to
disadvantage the player and therefore should be reduced by FIFA.
45.
Finally, Club E requested FIFA that legal costs should be borne by Club A.
46.
Upon FIFA’s request, on 11 March 2015, the Football Union F asserted that “The
inspection performed at the Court of Arbitration to the [Football Union F] established
that there is no legal proceeding initiated by [Club A] against [the player] and [Club E].
[Club E] confirmed that there is no legal proceeding initiated by [Club A against their
club at the civil courts”.
47.
In its replica, the Claimant mainly reiterated its position, emphasising on FIFA’s
competence to deal with the matter at stake as per art. 22 par. a) and b) of the FIFA
Regulations.
48.
Regarding the Respondents’ allegations pertaining to res iudicata, Club A recalled that
the proceedings had begun on the statement of claim of the player, not of Club A, for
outstanding remuneration. Club A further emphasised that the case, which was lost by
the player, was initiated in order to have a pending legal dispute before a competent
court and to avoid settlement by the competent authorities of the Football Union F. In
addition, Club A pointed to the lack of evidence of a ruling on the requests for the
payment of compensation and imposition of sporting sanctions before another
institution than FIFA.
49.
Finally, Club A wished to stress out that the Football Union F’s statement of opinion
rendered on the case was solely directed to the possible consequences on the case for
any new club that would sign a contract with the player and, thus, shall not be
regarded as a decision.
50.
In his duplica, the player purely upheld his previous position, without adding any
further comments.
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
9/16
51.
Equally, Club E, in its last comments, primarily maintained its argumentation and, in
particular, added that FIFA had no jurisdiction to settle the present dispute, namely
because the parties agreed that the applicable law to the contract was the Law of
Country B along with the Regulations of the Football Union F. Club E further argued
that the parties agreed in the contract to establish an arbitration agreement for
settlement of all future disputes, according to which the arbitration court of the
Football Union F was the sole competent body to which the parties could lodge their
claims.
52.
Club E also emphasised upon the exclusive jurisdiction of State Courts of Country B. In
this respect, it referred to art. 19 par. 1 of the Code of Civil Procedure of Country B in
combination with art. 360 of the Labour Code of Country B in order to conclude that
the claim of Club A was non-arbitrable and could not be resolved by arbitration by
FIFA or any other arbitral body for that matter.
53.
Upon FIFA’s request, the Club G (hereinafter: the Intervening party or Club G) provided
its comments as to the present matter. In this respect, Club G entirely concurred with
the Respondents by stating that FIFA did not have jurisdiction over the dispute in
question and that, should FIFA declare itself competent, the issue of liability should be
decided under Law of Country B as agreed upon by the parties.
54.
As to the substance, Club G also met the Respondents’ allegations and especially
insisted on the termination of the contract being the result of the exercise of a
statutory right by the player, i.e. the right to put an end to the contract implying a
correlated obligation to pay an indemnity of three monthly salaries, based on the
choice of law. Therefore, Club G deemed that there was no breach of contract by the
player.
55.
Regarding the application of art. 17 par. 2 and 4 of the FIFA Regulations, Club G
underlined that it had no standing to be sued in the case at hand insofar as the
Claimant had no claim whatsoever against it. Club G also stressed that the FIFA
Regulations were silent as to whether FIFA can automatically apply the relevant article
in the absence of a specific claim from the player’s former club against the new club.
56.
In this respect, Club G emphasised that it was not the first new club of the Respondent
I in the sense of the definition n.4 and art. 7 par. 2 of the FIFA Regulations since the
player was never registered for Club G with the Football Federation of Country H
(Football Federation O). In this regard, Club G provided a statement of the Football
Federation O dated 1 August 2016, declaring that “Although (International Transfer
Certificate) of amateur player was received by Football Federation O from Football
Union F on 09-03-2012, we hereby confirm that player was never included in [Club G]’s
Player registration application for his registration in [Club G] and he did not take part
in a single match for [Club G]”.
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
10/16
57.
In particular, Club G explained that in early March 2012, the player’ agent “got in
touch”, enlightening that the player had “unresolved contractual issues” in Country B
as well as that he wished to “rest from professional football” and to play as an
amateur in Country H until the end of the season. Hence, Club G apparently decided to
acquire the player as amateur until the end of the season, underlying that no contract
was signed by and between the player and Club G.
58.
Club G also alleged that, on 5 March 2012, the Football Federation O requested by fax
the player’s International Transfer Certificate from the Football Union F. On 9 March
2012, the Football Union F issued by fax the Respondent I’s International Transfer
Certificate in favour of the Football Federation O. Club G further sustained that, on 13
March 2012, Club E asked Club G to release the International Transfer Certificate via
TMS without delay, albeit there was no valid International Transfer Certificate request
in TMS until July 2012, when the Football Federation O issued the International
Transfer Certificate in favour of the Football Union F via TMS. In this regard, Club G
submitted a letter from Club E dated 13 March 2012 addressed to the Intervening
party, inter alia stating that “Following the injury of our new player (…) during our
opening match for the second half of the season, we invited the [player] over for a tryout last week, which ended up successfully and the [player] was approved by our
coaching staff. Hence, on Monday 12 March 2012, [Club E] and the [player] entered
into an employment contract.
However, when [Club E] sought to register the [player] with Football Union F as a
professional, we were informed by the Football Union F that his paper International
Transfer Certificate has been already issued in favour of the Football Federation O on
Friday 9 March 2012 following the request from [Club G], which apparently is seeking
to register the [player] with Football Federation O as an amateur.
In light of the above, [Club E] hereby respectfully ask you (i) not to register the [player]
for your respected club with Football Federation O, if not registered already, and (ii) to
authorise the release of his e-International Transfer Certificate in TMS in favour of
[Club E] without delay, as an International Transfer Certificate request will be made
later today by [Club E] and Football Union F in this respect”.
59.
In reply, on 14 March 2012, Club G informed Club E that the paper International
Transfer Certificate was with the Football Federation O since it intended to register
the player as an amateur; however, as the Football Federation O was technically
registering amateurs only after 1 April 2012, i.e. after the beginning of the
championship, Club G had not yet registered the player with the Football Federation
O. In addition, Club G confirmed that it would grant the International Transfer
Certificate request via TMS once received. However, according to Club G, the player
never arrived in Country H to sign the mandatory registration form in person, without
which he could not be registered with the Football Federation O. In this context, Club
G decided to renounce the services of the player and, consequently, he was never
registered with the Football Federation O.
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
11/16
60.
In view of the aforementioned, Club G considered that it should not be held jointly
and severally liable with the player for the possible payment of compensation for
breach of contract to Club G.
61.
Pursuant to the information contained in the TMS, the player concluded a contract
with Club E on 12 March 2012, valid as from the date of signature until 31 May 2014.
According to said contract, the player was to receive the following net fixedremuneration:
EUR 15,000 upon signature of the contract;
EUR 7,400 as monthly salary for the season 2011-2012;
EUR 9,400 as monthly salary for the season 2012-2013.
62.
Upon enquiry by FIFA, the player asserted that, subsequently, in July 2013, he signed
an employment contract with the Club of Country B, Club N, valid as from 1 July 2013
until 30 June 2016, according to which he was entitled to a monthly net salary of
EUR 10,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: 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 30 March 2012.
Consequently, the 2008 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 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 (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 Clubs of Country B, a Player of
Country D and a Club of Country H.
3.
Thereafter, the Chamber deemed it, however, of utmost importance to consider the
following chronological crucial facts which are at the basis of the specific litigation
at hand.
4.
From the documentation submitted by the parties, the Chamber noted that, on 18
January 2012, the player terminated the contract with Club A in writing.
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
12/16
5.
Equally, as per the documentation provided by the parties, the Chamber observed
that, on 25 January 2012, Club A lodged a complaint before the relevant arbitral
body of the Football Union F in relation to the termination of the contract by the
player.
6.
Subsequently, the members of the Chamber took note that, on 1 February 2012,
Club A was informed by the Football Union F of the “statement of opinion” issued
on 31 January 2012 by the relevant arbitral body of the Football Union F, which
stated that the termination of contract by the player was without just cause, thus
confirming the right of Club A to request compensation based on art. 44 of the
Football Union F Regulations and evoking the possible sporting consequences for
the player’s first new club.
7.
Thereafter, the Chamber observed that, on 2 July 2012, Club A supplemented its
initial claim in front of the relevant arbitral body of the Football Union F
accordingly, thus requesting the imposition of sporting sanctions on Club E for
breaching art. 45.2 of the Football Union F Regulations, which resulted in Club E
being banned by the Football Union F on 3 August 2012.
8.
Notwithstanding the above, the DRC highlighted that, on 30 March 2012, Club A
lodged an additional petition in front of FIFA, requesting from both, the player and
Club E, payment of compensation for breach of contract and sporting sanctions for
the alleged termination of the contract without just cause.
9.
Having established the foregoing, the members of the Chamber first of all recalled
the content of art. XIII.3. of the contract, according to which any dispute between
the parties as to the contract, its execution and its interpretation, shall be settled
amicably by means of an agreement. In the event that such an agreement was not
found by the parties, the dispute shall be solved in front of the arbitral body of the
Football Union F.
10.
Taking into account the aforementioned contractual provision, the DRC considered
that Club A appeared to have followed the stipulations of the aforementioned art.
XIII.3 in order to seek redress for a dispute arising from the contract, by lodging its
claim in front of the Football Union F on 25 January 2012.
11.
Moreover, the members of the Chamber highlighted that, by way of a “statement
of opinion” issued on 31 January 2012, the STC of the Football Union F established
that the termination of the contract by the player was without just cause, however
without ruling on a clear financial outcome towards the player. In this regard, the
DRC emphasised that the STC of the Football Union F seemed to have provided, in
its “statement of opinion”, the legal ground (i.e. art. 44 of the Football Union F
Regulations) on which Club A could have further claimed compensation in front of
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
13/16
the competent deciding body of the Football Union F, i.e. “the Football Union F”,
based on the alleged breach of contract by the player (cf. point I.27 above).
12.
The Chamber further stressed that, by supplementing its initial claim on 2 July 2012
in front of the relevant deciding body of the Football Union F, Club A followed part
of the reasoning contained in the “statement of opinion” of the Football Union F
and sought for sporting sanctions to be applied on Club E as per art. 45.2 of the
Football Union F Regulations. In this respect, the DRC took due note that, based on
the aforementioned, Club E had already been imposed a ban from registering new
players by the Disciplinary Committee of the Football Union F on 3 August 2012 (cf.
point I.36 above).
13.
Bearing in mind the above, the Chamber wished to point out that FIFA Regulations
do not foresee the possibility that the DRC solely decides on the consequences of a
termination of an employment contract without having previously decided on
whether a contractual breach occurred, whether such breach was with or without
just cause, and which party is to be held liable. In other words, for jurisdictional
purposes, there cannot be a distinction between the “triggering elements” and the
“remedies” stages in relation to a particular claim.
14.
In this context, the Chamber wished to point out that if a party chooses to pursue
the defence of his/its rights at national level and in accordance with contractual
provisions, he/it should proceed that way until the end.
15.
Therefore, the DRC was of the opinion that Club A should have proceeded further
with the relevant arbitral body of the Football Union F as to its request for
compensation from the player, insofar as it was given the opportunity to do so by
the “statement of opinion” of the Football Union F. The Chamber equally took into
account the fact that Club A had already proceeded that way as to its request for
sporting sanctions to be imposed on Club E by the Football Union F on 2 July 2012.
16.
Finally, the Chamber deemed it important to underline that the practice consisting
in having a case heard by another decision-making body with the aim to get the
most favourable judgment, known as “forum shopping”, cannot be upheld by the
Chamber.
17.
Taking into account all the foregoing considerations, the Chamber concluded that it
was not competent to deal with the claim lodged by the Claimant in front of FIFA.
As a consequence, the claim of the Claimant is inadmissible.
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
14/16
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant is inadmissible.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Club A, Country B / Player C, Country D & Club E, Country B / Club G, Country H
15/16