DRC - Preliminary Decisions
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed on 21 October 2022
regarding an employment-related dispute concerning the player A
BY:
Frans de Weger (The Netherlands)
CLAIMANT:
Player A, Country A and Country B
Represented by
RESPONDENT:
Club B, Country B
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I. Facts of the case
1.
On 2 February 2022, the Country A and Country B player, Mr Player A (hereinafter: the
player or the Claimant), and the Country B club, Club B (hereinafter: the club or the
Respondent) entered into an employment contract valid as from 1 February 2022 until 31
December 2023 (hereinafter: the employment contract).
2.
Pursuant to the employment contract, the player was hired as a Country B national.
3.
In addition, under article 3 the employment contract, the Respondent undertook to pay
to the Claimant inter alia a total remuneration of Currency B 1,048,163.60 for the first
contractual year and Currency B 1,249,236.48 for the second contractual year.
4.
Finally, article 10 of the employment contract read as follows, quoted verbatim:
“1. Any disputes arising from the fulfilment of, or in connection with this Contract shall be
settled, on a first attempt, through friendly negotiation between the Parties within the ten (10)
days after the dispute arises.
2. If the dispute between the Parties cannot be resolved by negotiation within the abovementioned time limit, the Parties expressly waive the right to bring the dispute before the
domestic courts of any country and agree to submit the dispute to the competent dispute
resolution body of FIFA. Any party dissatisfied with a decision made by the competent dispute
resolution body of FIFA has the right to appeal to the Court of Arbitration for Sport (CAS) in
Lausanne, Switzerland.
3. This Contract shall be governed by the FIFA Regulations”.
5.
On 21 July 2022, the player and the club’s agent, Mr Agent D (hereinafter: Mr Agent D,
exchanged messages via the electronic application WeChat. In short, Mr Agent D informed
that the club did not intend to register the player in the following season due to the
foreigner’s quota.
6.
On 22 July 2022, the player put the club in default for overdue salaries and bonuses setting
a time limit of 15 days in order to remedy the default. The payer also requested to be
reintegrated to the club’s first team.
7.
On 9 August 2022, the player notified the club of the termination of the employment
contract due to the overdue payables, the deregistration, and the separate trainings.
8.
Following the termination and between 11 and 16 August 2022, the player returned to
Country A at his own expenses.
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9.
On 18 August 2022, the club paid Currency B 209,454.54 to the player.
10. On 7 September 2022, the club replied to the player’s letter of 22 July and 9 August 2022
and disputed his narrative on the termination. In this opportunity, the club challenged
the quantum claimed by the player as outstanding remuneration, as well as argued that
he was the one to leave the squad without previous notice. Furthermore, it requested the
player to return to Country B and resume his services by 10 September 2022.
11. On 9 September 2022, the player insisted that the employment contract was terminated
with just cause and inter alia informed that he would not re-join the club.
12. On 13 September 2022, the club also reiterated its position as to the unjustified
termination and explained that it “is always with good faith to try to settle the current
situation”. The club once again requested the player to return to the team as soon as
possible.
13. On 16 September 2022, the player sent the club a settlement proposal. He requested the
club a payment of a total of Currency B 1,320,707.94, corresponding to outstanding
salaries, bonuses, and compensation for breach of contract.
14. On 19 September 2022, the club rejected the player’s proposal and warned him against
the consequences of his breach of contract. At the end, the club requested the player “to
return to fulfill his contractual obligation instead of starting a fight and bearing a negative
consequence”.
II. Proceedings before FIFA
15. On 22 September 2022, the player filed the claim at hand before FIFA. In his claim, he
referred to the several correspondences exchanged between the parties and argued
having terminated the employment contract with just cause in line with article 14bis of
the FIFA Regulations on the Status and Transfer of Players (RSTP).
16. In light of the above, he requested to be awarded the following amounts:
a. Currency B 38,400 net as outstanding victory bonuses;
b. Currency B 37,217 net as reimbursement of flight tickets; and
c. Currency B 1,245,090.94 as compensation cf. article 17 of the FIFA RSTP.
17. The player furthermore claimed to be entitled to 5% interest p.a. over the
abovementioned amounts as from the respective due dates until the date of effective
payment. Likewise, he requested sporting sanctions to be imposed on the club.
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18. On 26 September 2022, the FIFA general secretariat informed the player that the Football
Tribunal did not appear to be competent to deal with the case at stake, as the dispute
does not appear to have an international dimension (i.e. the parties’ shared nationality).
19. On 10 October 2022, the player reiterated his position as to the admissibility of the claim,
arguing that the parties to this case in fact belong to different associations and have
different sporting nationalities (i.e. Region E as opposed to Country B). Likewise, the player
recalled the wording of the jurisdiction clause included in the employment contract and
concluded that the parties had also agreed to refer any dispute to FIFA.
20. In conclusion, the player insisted that the dispute sub judice has international dimension
and FIFA is competent. As such, he requested the Football Tribunal to issue a formal
decision on the matter.
III. Considerations of the Dispute Resolution Chamber
21. First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter: the
Chairperson) analysed whether he was competent to deal with the case at hand.
22. In this respect, he took note that the present matter was presented to FIFA on 22
September 2022 and submitted for a preliminary decision on 13 October 2022. Taking
into account the wording of art. 34 of the June 2022 edition of the Procedural Rules
Governing the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
23. The Chairperson then confirmed that, in accordance with art. 19 par. 1 and 2 of the
Procedural Rules, he is competent to decide, in an expedited manner, whether the case
at stake is affected by any preliminary procedural matter (i.e. if the Football Tribunal
obviously does not have jurisdiction or if the claim is obviously time-barred). Likewise, the
Chairperson highlighted that, in case the claim is not affected by any preliminary
procedural matters, the FIFA general secretariat would be ordered to continue the
procedure (cf. art. 19 par. 3 of the Procedural Rules).
24. Subsequently, the Chairperson referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of
the FIFA RSTP (July 2022 edition), the Dispute Resolution Chamber is competent to deal
with employment-related disputes between a club and a player of an international
dimension, unless an independent arbitration tribunal guaranteeing fair proceedings
exists at national level.
25. In light of the above, the Chairperson outlined that the wording of the cited article clearly
implies that the first condition that needs to be compulsorily fulfilled in order for FIFA to
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be competent to hear an employment-related dispute between a club and a player is that
said dispute has an international dimension. This means that FIFA is only competent to
hear an employment-related dispute of such kind when the parties have different
nationalities.
26. Entering the analysis of the present dispute, the Chairperson took due consideration from
the documentation on file that the player is both Country A and Country B national.
27. In this context, the Chairperson recalled that the jurisprudence of the Football Tribunal
shows that in cases where a player has dual citizenship, his registration is a determining
factor when assessing if the international dimension of the dispute is given, considering
that clubs may enjoy benefits in registering a player with a certain nationality, inter alia,
due to the specific limitations in the number of foreign players. The Chairperson felt
furthermore comforted with this reasoning by considering that the reflection of the
player’s status in the field of play is given by the status of his registration.
28. At this point, the Chairperson observed that in accordance with the employment contract,
the player was employed as a Country B national. The Chairperson also took due note of
the information contained in Transfer Matching System (TMS), according to which the
player was registered with the club under the Country B nationality, having his
International Transfer Certificate (ITC) confirmed by the Football Association E.
29. Bearing in mind the foregoing, the Chairperson confirmed that the fact that the player
was also from Country A was not conclusive to the assessment of this specific case.
30. In continuation, the Chairperson acknowledged that the dispute at hand involves two
parties that share the same nationality, i.e. the Country B nationality, for that the player
was registered within the Football Association E, whereas the club is affiliated to the
National Association of country B. In particular, the Chairperson highlighted that an
independent country, in the matter at hand the Republic B of Country B, may have more
than one member association of FIFA incorporated within its territory.
31. With the above in mind, the Chairperson made reference to the jurisprudence of the
Football Tribunal, which considers the nationality as the decisive element to be analysed,
when determining whether a contractual dispute enjoys international dimension. He
recalled, in this respect, that in case the player has the same nationality from the country
where the club that holds his registration is based, the relevant dispute has to be
considered a purely internal (national) matter to be decided by the competent authorities
in the respective country.
32. As opposed to the player’s argumentation to this extend, the Chairperson also deemed
essential to clarify that the abovementioned conclusion is without prejudice of the parties’
having agreed upon the jurisdiction of FIFA in the contract at the basis of the dispute.
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33. Taking all the above into consideration, the Chairperson decided that the claim of the
player towards the club lacks international dimension as required by article 22 par. 1 lit
b) of the Regulations. Hence, the Chairperson determined that the Football Tribunal does
not have jurisdiction to hear the dispute at stake.
34. For the sake of completeness, the Chairperson stressed that his findings in this case were
consistent with the recent jurisprudence of the Football Tribunal in similar matters e.g. in
cases ref. Player F, Player G, and Player H.
35. Lastly, the Chairperson referred to art. 25 par. 1 of the Procedural Rules, according to
which “Procedures are free of charge where at least one of the parties is a player, coach,
football agent, or match agent”. Accordingly, he decided that no procedural costs were to
be imposed on the player.
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IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Player
A.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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