Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2013,
in the following composition:
Geoff Thompson (England), Chairman
Ivan Gazidis (England), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player V, from country F
as Claimant
against the club,
Club P, from country G
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
Facts relating to the preliminary issue of competence:
1.
On 19 August 2010, Player V, from country F (hereinafter: player or Claimant)
and Club P, from country P (hereinafter: club or Respondent) signed a “precontract”.
2.
On 24 August 2010, the parties signed a standard country G Super League
employment contract, in accordance with which all disputes between the
parties are settled by the Appeals Committee for the Resolution of Financial
Disputes (PEEOD) at first instance and the Court of Arbitration of the country
G Football Federation at second instance.
3.
On 24 August 2010, the player signed another employment-related document,
which does not bear any signature of the club and which contains various
other remuneration as well as a clause indicating that the country G Football
Federation shall resolve any disputes that may arise between the parties.
4.
On 15 April 2011, the player lodged a claim against the club in front of FIFA
for breach of contract at the club’s fault.
5.
In reply to the claim, the club contested FIFA’s competence to deal with the
present matter invoking res iudicata. In this respect the club refers to the
aforementioned PEEOD and the fact that it had filed an application against
the player in front of such deciding body, which passed a decision in July 2011.
6.
From the country G decision dated 7 July 2011 presented by the club, it can be
noted that the club referred the matter to the PEEOD on 9 May 2011, that the
hearing took place on 30 May 2011, and that the deciding body declared the
contract terminated at the player’s fault as of 10 May 2011 due to his absence
as of 20 April 2011 without valid reason.
7.
The player denies having ever been informed of local proceedings against him
and insists that FIFA’s Dispute Resolution Chamber has competence to deal
with the present matter.
Player V, from country F / Club P, from country G
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Facts related to the substance of the matter:
8.
On 19 August 2010, the parties signed a “pre-contract” relating to a two years’
contractual duration against a total remuneration of EUR 550,000 net (EUR
275,000 per year) payable in 22 unspecified instalments starting on 30 August
2010. The pre-contract further contains various bonuses in addition to EUR
1,000 per month for accommodation as well as a car and air tickets (6 round
trip tickets country G – country F per year).
9.
On 24 August 2010, the parties signed a standard Super League contract valid
as from 24 August 2010 until 30 June 2012, in accordance with which the
player was entitled to receive a monthly gross salary of EUR 850.18 (x 12
months, plus 2 extra monthly salaries as Christmas, Easter and holiday bonuses)
as well as the total amount of EUR 80,000 net in 8 equal instalments of EUR
10,000 payable on 30 September 2010, 30 November 2010, 30 February 2011,
30 April 2011, 30 September 2011, 30 November 2011, 30 February 2012, 30
April 2012.
10.
The player further presented a document entitled “Agreement” and dated 24
August 2010, which solely bears the player’s signature and includes 30 June
2012 as date of expiry. According to this document, it shall apply in addition to
the standard employment contract and apart from various bonuses and fringe
benefits that are also set out in the “pre-contract”, the player was to receive
the total amount of EUR 450,000 net to be paid in 22 monthly consecutive
instalments as of 30 August 2010.
11.
On 24 February 2011, the player put the club in default of payment of the
total amount of EUR 91,735.42 including the amounts of EUR 81,800 for four
monthly instalments (October 2010 to January 2011), EUR 4,000 for rent since
September 2010, air tickets and bonuses, all in accordance with the
“Agreement”.
12.
On 23 March 2011, the player sent another default notice to the club adding
his February 2011 remuneration under the standard employment contract and
February instalment and rent according to the “Agreement”.
13.
On 15 April 2011, the player informed the club that he considered himself free
from any commitment to the club, given that, in addition, his March 2011
remuneration had remained unpaid.
14.
On 15 April 2011, the player lodged a claim against the club in front of FIFA
maintaining that the club acted in breach of contract and therefore, he asked
that he be awarded payment of the following monies:
Player V, from country F / Club P, from country G
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- On the basis of the standard employment contract:
EUR 850.18 for March 2011 as outstanding salary;
EUR 12,550.54 (3 x EUR 850.18 plus EUR 10,000) as remainder for the
2010-11 season (April to June 2011);
EUR 50,202.16 (12 x EUR 850.18 plus 4 x EUR 10,000) for the 2011-12
season;
- On the basis of the “Agreement”:
EUR 122,700 as outstanding remuneration as from October 2010 until
March 2011;
EUR 6,000 as outstanding accommodation payments (October until
March);
EUR 8,000 as winning bonus;
EUR 1,797 as outstanding air tickets;
EUR 61,350 as remuneration as from April 2011 until June 2011;
EUR 3,000 as accommodation as from April 2011 until June 2011;
EUR 225,000 as remuneration for the 2011-12 season;
EUR 12,000 as accommodation for the 2011-12 season.
- 5% interest p.a. on all of the above-mentioned amounts as of 11 April 2011.
15.
The player explains that he has always respected his contractual obligations,
whereas the club failed to comply with its obligations towards him.
16.
In this regard, the player points out that the “Agreement” completes the
standard employment contract, so as to reflect the terms agreed upon
between the parties in the “pre-contract”. He adds that he would never have
committed himself to the club on the sole basis of the terms of the standard
employment contract, especially in the light of his earnings with his previous
employer.
17.
Furthermore, the player highlights that in the context of the “Agreement” he
received EUR 10,500 from the club in September 2010 as a first part of his
August salary as well the amount of EUR 30,950, which allegedly consists of
EUR 10,000 as second part of his August salary, EUR 20,450 for the September
salary, and EUR 500 as accommodation allowance. In this regard, the player
presents various documents relating to payments in connection with the
standard contract as well as one bank statement regarding a credit of EUR
30,950, the payer of which is referred to as “XY Ltd”.
18.
According to the player, these payments demonstrate that the club started the
execution of the “Agreement”.
19.
He further maintains that after his default notice of March 2011, the club
started disciplinary proceedings against him.
Player V, from country F / Club P, from country G
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20.
On account of the above, in particular the outstanding remuneration, the
player holds that the club acted in breach of contract without just cause.
21.
As to the substance of the matter, the club rejects the player’s claim.
22.
The club points out that according to the standard employment contract, in
particular, its art. 2 par. 4, any existing additional or subsequent agreements
will be in writing and make reference to it and, in order to be valid, must be
sent to the competent bodies. The club presented a confirmation from the
country G Football Federation that no contract other than the standard
employment contract was registered in their records.
23.
As regards the “Agreement”, the club highlights that it only bears the
signature of the player and thus shall be disregarded. Should it be considered
valid, though, the club points out that, according to its art. 5, the official
contract to be filed at the country G Football Federation is null and void and
does not modify the “Agreement”. Consequently, the player would then not
have been entitled to the payments under the standard employment contract.
24.
As regards the payment documents presented by the player, the club holds
that these documents show that the player was regularly paid his monthly
remuneration under the standard employment contract. In addition, according
to these documents, the player received 3 cash deposits of EUR 10,000 each, on
13 December 2010, 25 January 2011, and on 1 April 2011.
25.
Furthermore, as regards the payment of the amount of EUR 30,950, the club
stresses that it does not know any company by the name of XY Ltd and has
thus no knowledge of the origin of this payment.
26.
Finally, the club confirmed that the player indeed offered his services until mid
April 2011 as stated by the player’s team mates, but that, since then, the player
abandoned the club, which is why it would seek the annulment of the
contractual relation and compensation in a separate application that it would
submit later on.
27.
Upon request, the player informed FIFA that, on 1 July 2011, he signed an
employment contract with Club D, from country F, for a period of two years
and he submitted a copy of the relevant employment contract.
Player V, from country F / Club P, from country G
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II.
Considerations of the Dispute Resolution Chamber
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 case at
hand. In this respect, it took note that the present matter was submitted to
FIFA on 15 April 2011. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition
2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf.
art. 21 par. 2 and par. 3 of the Procedural Rules).
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par.
1 of the Procedural Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of articles 22 to 24 of the Regulations on
the Status and Transfer of Players (edition 2012). In accordance with art. 24
par. 1 and par. 2 in combination with art. 22 lit. b) of the aforementioned
Regulations, the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a country F player
and a country G club.
3.
However, the DRC acknowledged that the Respondent contested the
competence of FIFA’s deciding body invoking res iudicata. In this respect, the
club refers to the Appeals Committee for the Resolution of Financial Disputes
(PEEOD) and the fact that it had filed an application against the player in front
of such deciding body, which passed a decision on 7 July 2011, in accordance
with which the contract was considered terminated at the player’s fault as of
10 May 2011 due to his absence as of 20 April 2011 without valid reason.
4.
The Chamber noted that the Claimant, for his part, rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
5.
Accordingly, the Chamber deemed it appropriate to briefly recall that on the
basis of the principle of res iudicata, a decision-making body is not in a
position to deal with the substance of a case in the event that another
deciding body has already dealt with the same matter by passing a final and
binding decision. Indeed, the parties to the dispute as well as the deciding
authority are bound by the final and binding decision previously passed.
6.
In this respect, first and foremost, the Chamber outlined that the standard
country G Super League employment contract signed by and between the
Claimant and the Respondent on 24 August 2010 contains a clause in
accordance with which all disputes between the parties are settled by the
Appeals Committee for the Resolution of Financial Disputes (PEEOD) at first
instance and the Court of Arbitration of the country G Football Federation at
second instance.
Player V, from country F / Club P, from country G
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7.
For the sake of completeness, the members of the Chamber highlighted that
said standard employment contract was signed by and between the parties
subsequent to the “pre-contract” and, consequently, shall be considered to be
the valid contract at the basis of the present matter. In addition, the document
referred to as “Agreement”, which bears the same date as the standard
employment contract and includes remuneration contained in the “precontract”, lacks the club’s signature and, therefore, cannot be considered a
legally binding contract. For these reasons, the Chamber concluded that when
analysing the preliminary question as to the competence of the Chamber, it
shall take into account the terms of the standard country G Super League
employment contract signed by and between the Claimant and the
Respondent on 24 August 2010.
8.
Having said that, the Chamber further took into account that, on 22 July 2013,
the Court of Arbitration for Sport (CAS) issued an award, whereby it decided
that the national arbitration bodies of the country G Football Federation fulfill
the requirements of equal representation and of an independent chairman
and guarantees fair proceedings. Furthermore, the CAS underlined in said
award that FIFA’s deciding body is not an appeal body.
9.
In this context, the Chamber took note that the country G deciding body at the
basis of the aforementioned CAS decision is the same deciding body as the one
included in the jurisdiction clause of the standard country G Super League
employment contract signed by and between the Claimant and the
Respondent.
10.
On account of the above, the DRC established that the present matter is a res
iudicata due to the facts that a) the employment contract contains a clear
jurisdiction clause in favour of the national arbitration body of the country G
Football Federation, b) the CAS confirmed that the relevant country G deciding
body fulfills the requirements of equal representation and of an independent
chairman and guarantees fair proceedings, i.e. the relevant country G deciding
body is competent to adjudicate disputes between players and clubs like the
matter at hand, and c) said competent national deciding body already passed a
decision as to the substance of the present matter.
11.
In light of the above, the Chamber unanimously decided that in accordance
with the general legal principle of res iudicata it is not in a position to deal
again with the substance of the present matter.
Player V, from country F / Club P, from country G
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player V, is not admissible.
*****
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:
Jérôme Valcke
Secretary General
Encl.: CAS directives
Player V, from country F / Club P, from country G
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