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 T, from country B
as Claimant
against the club,
Club M, from country G
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
Preliminary issues as regards competence:
1.
On 16 January 2009, Player T, from country B (hereinafter: player or Claimant),
and the professional Club M, from country G (hereinafter: club or Respondent)
entered into an employment contract made out on a standard player contract
issued by the country G Football League (hereinafter: standard contract) valid
as from the date of its signature until 30 June 2010.
2.
In accordance with the standard contract, which is at the basis of the present
matter, all disputes between the parties are settled exclusively 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.
The parties also signed an “Agreement”, which contains a jurisdiction clause
assigning exclusive jurisdiction to the Court of Arbitration for Sport (CAS).
4.
On 28 December 2012, the country G Football Federation confirmed that the
professional club, Club M, is no longer affiliated to it due to its relegation to
the 1st amateur division.
5.
In addition, the country G Football Federation clarified that as this club was
relegated to the 1st amateur division following a decision of the FIFA
Disciplinary Committee, the professional club ceased its operation and its
founding sports association entered the amateur competition.
6.
The country G Football Federation confirmed that the amateur club Club M is a
different legal entity from the professional club Club M with different tax
registration numbers and only has amateur members.
7.
The country G Football Federation submitted a copy of country G law in
accordance with which, in the event of the professional club being relegated
(for any reason) to the amateur division, the amateur club does not undertake
any contractual or other obligations of the company that was “set under
liquidation”.
8.
The player, Player T, does not agree with this viewpoint and insists that a
formal decision be taken in this matter. The player points out that no tangible
evidence was presented to corroborate this conclusion and that it would lead
to the situation that any country G club can avoid paying its debts by merely
being relegated to the amateur level and installing a different legal entity.
Player T, from country B / Club M, from country G
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9.
Prior to its disaffiliation, the club held that FIFA’s Dispute Resolution Chamber
has no jurisdiction to decide on the present matter in the light of the
jurisdiction clause contained in the standard contract.
10.
The player points out that the Dispute Resolution Chamber has jurisdiction to
decide on the present matter given that the country G deciding body does not
meet the minimum requirements set by FIFA, as allegedly confirmed by the
CAS in February 2009.
Facts related to the substance of the matter:
11.
In accordance with the standard contract, the player was to receive a monthly
salary of EUR 783 payable at the end of each month during 12 months per
year. In addition, the player was entitled to receive a Christmas bonus
(equalling one monthly salary), an Easter bonus (corresponding to half of the
monthly salary), and holiday benefits (corresponding to half of the monthly
salary).
12.
On 16 January 2009, the parties entered into an “Agreement” with the same
duration as the standard contract (hereinafter: agreement).
13.
In addition to the aforementioned salary of EUR 783 per month, which
according to the agreement is the player’s “basic salary according to the …
[standard contract]” payable “until the 10th (tenth) day of each month for the
current month”, the agreement includes further payments due to the player.
14.
Art. 11 of the agreement sets forth the following procedure to be followed in
case of the termination of the agreement and of the standard contract by the
player: “In a case the Club fails to comply for the period of two consecutive
months with the terms and the conditions for the payment of the basic salary,
and amounts under this Agreement and/or other terms and conditions agreed
upon in this Agreement and/or in the Professional Player’s Contract, the Player
is entitled to send a 15 days notice, after the end of the second month, of
termination of the Agreement and of the Professional Player’s Contract.”.
15.
On 13 April 2009, the player put the club in default of payment of his basic
and extra remuneration falling due on 10 March and 10 April 2009, giving a 15
days’ time limit to pay. In this default notice, the player referred to the
procedure set out in art. 11 of the agreement.
16.
On 11 May 2009, after having extended the first time limit, the player sent a
reminder to the club in which he added his salary for May 2009 and, thus,
asked to be paid three monthly salaries.
Player T, from country B / Club M, from country G
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17.
On 15 May 2009, these default notices having remained unanswered, the
player terminated the standard contract and the agreement with immediate
effect.
18.
On 26 May 2009, the player lodged a claim against the club in front of CAS on
the basis of the termination of both the standard contract and the agreement.
19.
In its decision of 19 April 2010, the CAS concluded that said contracts
complement each other, but that they are two separate and distinct contracts
with each its own jurisdiction clause. The CAS considered that it was not
competent to hear disputes between the parties arising out of the standard
contract and only decided on the basis of the agreement, which CAS
considered to have been breached by the club.
20.
On 11 May 2010, the player lodged a claim in front of FIFA against the club on
the basis of the standard contract, which, according to the player, he
terminated with just cause.
21.
Furthermore, the player stresses that there is no res iudicata in this case, given
that the CAS denied its jurisdiction to hear and decide on the player’s claim
based on the standard contract.
22.
As regards his termination of the employment contracts with the club on 15
May 2009, the player highlights that the club was in delay of his salary
payments for 3 months (March to May 2009). In this respect, the player submits
that the clauses relating to his basic monthly salary in the agreement amended
and completed the salary clause contained in the standard contract.
23.
The player further points out that the termination procedure contained in the
agreement stipulates the conditions for the termination of the standard
contract, to which he was, in fact, not bound as the relevant clause entitled
(emphasis added) him to follow such procedure.
24.
Therefore, the player submits that he terminated the standard contract with
just cause and asks to be awarded payment of outstanding remuneration and
compensation for breach of contract, which was detailed as follows:
a. EUR 2,349 outstanding remuneration (3 x EUR 783 for March to May
2009);
b. EUR 11,745 compensation relating to the residual contractual value in
accordance with art. 12 of the agreement (13 X EUR 783 as from June
2009 until 30 June 2010; Christmas bonus 2009; Easter bonus; Holiday
allowance);
c. 5% interest p.a. as of 16 May 2009.
Player T, from country B / Club M, from country G
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25.
In addition, the player asks that sporting sanctions be imposed on the club.
26.
The player further asks that no deductions be made from the residual
contractual value as compensation, in the light of the compensation clause
contained in the agreement.
27.
In spite of having been invited to do so prior to its relegation, Club M has not
presented its reply as to the substance of the matter. Apart from contesting
FIFA’s competence to deal with the present matter in connection with the
contractual jurisdiction clause, it merely indicated that the player’s present
petition was already included in his claim in front of the CAS, who reached a
decision and that, therefore, the player is not entitled to claim again in front
of FIFA.
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 11 May 2010. 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 B player
and a country G club.
3.
However, the DRC acknowledged that according to the information received
from the country G Football Federation on 28 December 2012, the professional
club Club M is no longer affiliated to the country G Football Federation due to
its relegation to the amateur division. In addition, the country G Football
Federation clarified that, as a result of its relegation, the professional club
ceased its operations and its founding sports association entered the amateur
competition.
Player T, from country B / Club M, from country G
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4.
The country G Football Federation further confirmed that the amateur club
Club M is a different legal entity from the professional club Club M with
different tax registration numbers and only has amateur members.
5.
The Chamber noted that the Claimant, for his part, rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
6.
Having said that, the members of the Chamber emphasised that according to
art. 6 of Annexe 3 of the Regulations on the Status and Transfer of Players
(edition 2012), within the scope of proceedings pertaining to the application
of these regulations, FIFA may use documentation generated by or contained
in the Transfer Matching System (TMS) in order to properly assess the issue at
stake.
7.
In this regard, the Chamber took into account that from the information
contained in TMS, which only includes professional clubs, it can be noted that
the club, Club M, has been inactive and not been participating since 2011. The
members of the Chamber concluded that the data contained in TMS confirm
the information provided by the country G Football Federation in connection
with the status of the Respondent, Club M, and that, thus, they had no reason
to doubt the accuracy of the respective statements made by the country G.
8.
On account of the above, the Chamber recognized that the Respondent, i.e.
the club with which the Claimant had signed the contract at the basis of the
present dispute, is no longer affiliated to the country G Football Federation.
9.
Consequently, bearing in mind art. 6 par. 1 of the Procedural Rules, in
accordance with which parties are members of FIFA, clubs, players, coaches or
licensed match agents and players’ agents, the Chamber decided that it has no
competence to enter into the substance of the present matter due to the fact
that the Respondent is not affiliated to its relevant member association.
*****
Player T, from country B / Club M, from country G
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III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player T, 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 T, from country B / Club M, from country G
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