Labour Disputes
Texto da decisão
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 3 October 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Mick Mc Guire (England), member
Carlos Soto (Chile), member
Zola Majavu (South Africa), member
Ivan Gazidis (USA), member
on the claim presented by the club
A,
as Claimant
against the player
E,
as Respondent
regarding a contractual dispute
I.
Fact of the case
1.
On 15 January 2004, the Dispute Resolution Chamber (DRC) decided that the
player E (hereafter: the player) had to pay to the club S (hereafter: the S club) the
amount of USD 1,000,000. If the player fails to pay the said amount the club A
(hereafter: the A club) is considered jointly responsible for the payment.
2.
On 2 May 2005, the Court of Arbitration for Sport (CAS) decided that the player
had to pay to the S club the amount of USD 750,000. If the player fails to pay the
said amount the A club is considered jointly responsible for the payment.
3.
On 24 March 2006, the A club paid to the S club the amount of USD 733,000 as
well as on 11 April 2006 the amount of USD 47,744, i.e. the total amount of USD
750,000 plus the relevant interest in accordance with the above-mentioned
decision.
4.
On 5 September 2006, the A club contacted FIFA requesting that the player should
reimburse the amount of USD 390,372.03 (i.e. 50% of the total amount paid to the
A club) plus 5% interest as from 11 April 2006.
5.
On 27 November 2007, the player first of all pointed out that FIFA is not
competent to deal with the present matter due to the fact that both parties
belong to the same country.
6.
Moreover, the player explained that the FIFA Regulations for the Status and
Transfer of Players (hereafter: the Regulations) provide for that in case a player is
obliged to pay compensation for unilateral breach of contract, the new club will
be jointly and severally liable for this payment. However, the joint liability does
not allow a right of recourse. The Regulations intentionally did not provide for
such a recourse since it would be against the essential principles. This, since the
compensation for breach of contract is nothing more than the player’s transfer
compensation, for which the new club takes the risk to be held liable to pay such
amount. The compensation is the player’s market value. If FIFA would admit the
right of recourse, it would support the inducement of contractual breach.
7.
By the time the A club signed the employment contract with the player it took the
risk of a non-favourable decision of FIFA, with the consequence of being obliged
to pay the compensation for breach of contract to the player’s former club.
8.
Even if FIFA admits the existence of recourse, the obligation does not reach the
player because the partner of the A club, another club, X, declared its exclusive
liability for any compensation due. According to a liability contract dated 1 July
2003 signed between Sport Club X and the player, the aforementioned club
declared that if the player was sanctioned by the “Courts of FIFA” and obliged to
Club A, / Player E
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pay any kind of financial compensation to the A club it would try to solve the
matter with the club.
9.
Therefore, the player is of the opinion that Sport Club X would be obliged to pay
any amount and not he.
10.
Moreover and since only two months after the player and the A club having
signed the employment contract the player signed a new employment contract
with the club V, the player is of the opinion that also V is liable to pay any
amount, if FIFA accepts the present claim.
11.
On 10 March 2008, the A club emphasized that the present matter is filed in
accordance with the basic principles of jurisprudence that governs the private
international law, supported by international awards rendered by the DRC and
CAS.
12.
The international dimension is not limited to the nationality of the parties, but in
this specific case the international dimension relies upon many decisions
pronounced by the bodies of FIFA and CAS. Considering that the case is set upon
international awards rendered by international judicial bodies, upon the
negligence of the player to fulfil an international jointly obligation of payment, as
well as upon an international wired transfer proceeded by the jointly responsible
party (the A club), the international dimension is given.
13.
As a consequence, Swiss law shall apply, since FIFA and CAS are located in
Switzerland and the FIFA Statutes refer to the applicability of Swiss law.
14.
In case the DRC should deem that it is not competent to hear the present dispute,
the A club requests that the FIFA Executive Committee decides in accordance with
art. 27 of the Regulations.
15.
Moreover, the A club pointed out that, since the player had the opportunity to be
represented before the judicial bodies of FIFA and CAS by presenting statements
and appeals during the previous international proceedings, any arguments relying
upon any matter that have already been decided or should have been submitted
to the judicial bodies when the player had the opportunity shall not be taken into
account.
16.
Finally, the A club pointed out that the player’s arguments demonstrate all his
effort to push his own obligations towards third parties in order to have a shield
for his unjust enrichment.
17.
On 25 April 2008, the player contested the position of the A club and referred to
his previous position.
Club A, / Player E
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber 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 5 September 2006. Consequently, the previous version of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (edition 2005; hereinafter: Procedural Rules), is
applicable to the matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules;
edition 2008).
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 2008) 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 and respecting the principle of equal representation of players and
clubs has been established at national level within the framework of the
association and/or a collective bargaining agreement.
3.
In view of the above mentioned provisions, the Chamber was eager to emphasise
that in principle, and without prejudice to the right of any player or club to seek
redress before a civil court for employment-related disputes, it falls under its
competence to deal with international employment-related disputes between
players and clubs, unless an independent arbitration tribunal has been established
at national level.
4.
In this context, the Chamber underlined that, as a general rule, the international
dimension is represented by the fact that the player concerned is not a national of
the country to the association of which the relevant club is affiliated.
5.
However, the present dispute is between a club affiliated to the Y Football
Federation and a Y player.
6.
Furthermore, the Chamber emphasized that the present dispute has not arisen
from the rights and obligations agreed upon in an employment contract.
7.
As a result, and due to the lack of an international employment-related dimension
of the matter at hand, the Dispute Resolution Chamber decided that the present
claim is inadmissible.
Club A, / Player E
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is inadmissible.
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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 the grounds of the
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
Club A, / Player E
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