Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 21 September 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
John Bram hall (England), member
Johan v an Gaalen (S outh Africa), member
Pav el Piv ov arov (Rus s ia), member
Moham ed Al S aikhan (S audi Arabia), 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
1.
In 2016, the Player of Country B, Player A (hereinafter: the Claimant) and Club C,
concluded an employment contract (hereinafter: the contract), dated 2 January
2017 and valid as from 2 January 2017 until the end of the 2018-19 season.
2.
Pursuant to the contract, the Claimant was entitled to receive the following
remuneration:
2016-17 season: EUR 6,300 payable in six equal monthly instalments of EUR
1,050;
2017-18 season:
- EUR 24,000 payable in twelve monthly instalments of EUR 2,000 if the
club plays in I National Division;
- EUR 36,000 payable in in twelve monthly instalments of EUR 3,000 if the
club plays in First National Division;
2017-18 season:
- EUR 24,000 payable in twelve monthly instalments of EUR 2,000 if the
club plays in I National Division;
- EUR 36,000 payable in in twelve monthly instalments of EUR 3,000 if the
club plays in First National Division.
3.
Furthermore, clause 14 of the contract states that “[t]he cases and situations not
covered by this contract shall be governed by the CCT granted between the
National Union of Professional Footballers and the Football League of Country
D”.
4.
In addition, clause 15 of the contract stipulates that “[t]o resolve any disputes
arising from this contract, the parties agree to submit their solution to the Labour
Court of Municipality E”.
5.
On 22 December 2016, the Claimant addressed a correspondence to “Club C”
(hereinafter: the Respondent), requesting it to pay him EUR 64,300 as
compensation for breach of contract. In his correspondence, the Claimant
referred to an alleged statement of the Respondent, informing him that it would
not honour the contract.
6.
On 2 January 2017, the president of the Respondent declared that “[f]or legal
and valid reasons, it is stated that the [Claimant] (…) is a free player to find a club
to pursue his professional football player activity”.
7.
On 3 January 2017, the Respondent replied to the Claimant’s correspondence. In
particular, the Respondent stressed that the contract was concluded with Club C,
Player A, Country B / Club C, Country D
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which constitutes a sports company different from the Respondent. Furthermore,
the Respondent emphasised that the declaration dated 2 January 2017 is “a
simple statement of the [Respondent] made by it’s President, but wasn’t made by
Club C, and it isn’t stamped neither by the [Respondent] nor by the sports
company”. Besides, the Respondent explained that according to the information
in its possession, the Claimant and Club C, signed an employment contract in
2016; however, due to the Claimant’s failure to adapt to Country D’s Football, the
parties decided to mutually terminate the employment contract. The Respondent
further alleged in said letter that the declaration dated 2 January 2017 aimed at
confirming the free agent status of the Claimant in order for him to find a new
club. In this regard, the Respondent sustained that after receiving the declaration,
the Claimant left the country without signing the mutual termination. In view of
the above, the Respondent considered that the Claimant breached the contract.
8.
On 10 May 2017, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting EUR 64,300, plus 5% p.a. interest
as from 2 January 2017. Furthermore, the Claimant requests the Respondent to
be ordered to pay him EUR 5,000 as contribution to his legal fees.
9.
In his claim, the Claimant explains that despite being dated 2 January 2017, the
contract was allegedly concluded in September 2016 as confirmed by the
Respondent in its correspondence dated 3 January 2017.
10.
In its reply to the claim, the Respondent rejects the competence of FIFA to deal
with the matter, stressing that in accordance with clause 14 and 15 of the
contract, the matter should be referred to the competent bodies of the Football
Federation of Country D and Professional League, or to the Labour Court of
Municipality E.
11.
As to the substance, the Respondent reiterates the exact same argumentation as
in its correspondence dated 3 January 2017 (cf. point 7 above). In this regard, the
Respondent stresses that the Claimant’s behaviour constitutes a breach of
contract in accordance with the Collective Bargaining Agreement.
12.
In his replica, the Claimant insists on the competence of FIFA to deal with the
matter. In particular, the Claimant points out that the contract does not contain
an explicit arbitration clause in favour of sporting decision-making bodies of
Country D. In this respect, the Claimant argues that clause 15 of the contract
merely copies the general jurisdictional rule applicable in Country D for
employment-related matter. In support of his assertion, the Claimant highlights
that the Respondent also invokes the competence of the national sporting bodies,
thereby acknowledging that the jurisdiction of the ordinary courts is not
exclusive.
Player A, Country B / Club C, Country D
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13.
As to the substance, the Claimant outlines that the Respondent did not submit
any evidence, demonstrating that he would have breached the contract.
14.
Furthermore, the Claimant emphasises that the distinction between Club C, and
the Respondent is purely formal.
15.
After the expiry of the deadline granted to him to submit his replica, the Claimant
presented an additional submission.
16.
In its final comments, the Respondent reiterated its previous argumentation.
17.
Having been invited to do so, the Claimant informed FIFA that he did not sign
any new employment contract.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
In a first instance, the Dispute Resolution Chamber (hereinafter referred to as the
DRC or the Chamber) analysed whether it was competent to deal with the matter
at stake. In this respect, it took note that the present matter was submitted to
FIFA on 10 May 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(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 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer
of Players (edition 2016) 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 involving a Player of Country B and
a Club of Country D regarding an alleged breach of contract.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that disputes related to the employment relationship regulated by the
contract and the agreement should be referred to the Labour Court of
Municipality E in accordance with clause 15 of the contract.
Player A, Country B / Club C, Country D
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5.
The Chamber equally noted that the Claimant rejected such position and alleged
that FIFA had jurisdiction to deal with the present matter since the contract does
not contain an explicit arbitration clause in favour of sporting decision-making
bodies of Country D. In particular, the Claimant argues that clause 15 of the
contract merely copies the general jurisdictional rule applicable in Country D for
employment-related matter.
6.
At this stage, the members of the DRC recalled the content of the
aforementioned clause which provides that “[t]o resolve any disputes arising
from this contract, the parties agree to submit their solution to the Labour Court
of Municipality E”.
7.
In this respect, the Chamber first outlined that said clauses clearly and
unambiguously identified the Labour Court of Municipality E as exclusively
competent to deal with disputes arising out of the contract. Furthermore, the
DRC was eager to point out that said clause was freely included in the contract
and resulted from the common will of the parties.
8.
Having stated the foregoing, the Chamber deemed it of utmost importance to
emphasise that art. 22 of the Regulations expressly provides that FIFA’s
competence is without prejudice to the right of any player or club to seek redress
before a civil court for employment-related disputes.
9.
On account of all the above, and in particular considering the clear wording of
the above-mentioned clause granting exclusive jurisdiction to the Labour Court
of Municipality E to deal with any dispute arising out of the contract, the
Chamber had no other choice than to conclude that it lacked competence to
adjudicate on the matter at hand.
10.
In light of the above, the DRC decided that the claim of the Claimant is
inadmissible.
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 decision (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
Player A, Country B / Club C, Country D
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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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