Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 November 2011,
in the following composition:
Geoff Thompson (England), Chairman
Carlos Soto (Chile), member
Takuya Yamazaki (Japan), member
Theodoros Giannikos (Greece), member
Guillermo Saltos Guale (Ecuador) member
on the claim presented by the club S,
as Claimant
against the player F,
as Respondent 1
and the club L,
as Respondent 2
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 10 September 2008, the club S (hereinafter “club” or “Claimant”) and the player
F (hereinafter “player” or “Respondent 1”), born on 30 August 1984, signed an
employment contract (hereinafter “contract”) valid as from the date of signature
until 30 June 2009.
2.
According to art. 3 of the contract, the player was to receive, inter alia, a basic gross
monthly remuneration in the amount of 1,995 and bonuses for results achieved to
be paid on the basis of the club’s internal regulations.
3.
Art. 4 par. 1 of the contract stipulates that besides the remuneration set out in art.
3, the player is entitled to receive an amount of money to be determined in an
annex to the contract.
4.
According to art. 5 par. 3 of the contract, the player “is obliged to respect the
Internal Regulations of the [club] and the internal normative acts of the FUB
(Football Union of country B)”.
5.
Art. 15 of the contract stipulates that the contract “may be (…) terminated (…) on a
ground provided for in the internal regulations of the union.”
6.
Art. 18 of the contract stipulates that “regarding the issues not covered by this
employment agreement the respective regulations and other acts of FIFA, UEFA and
Football Union of country B (FUB) for the status of football players as professionals
of specific nature and the provisions of the labour legislation of the land shall
apply.”
7.
On 22 August 2008, the parties signed an annex (hereinafter “annex”) stipulating,
inter alia, that the player would receive the following amounts:
EUR 10,000 net “for the signing of labour contract and annex payable on the
date of conclusion of this contract” (art. 2 par. 1);
EUR 10,000 net, payable until 30 days as from the signature of the annex (art. 2
par. 2);
EUR 40,000 gross, payable in 10 equal monthly instalments of EUR 4,000 as from
September 2008 until June 2009, to be paid until the 5th day of the month
following relevant months (art. 2 par. 3).
8.
Art. 12 of the annex stipulates that the annex is an integral part of the contract.
9.
Art. 13 of the annex mentions that “in case of non-fulfilment of the conditions in
the present annex, the provisions of the [Football Union of country B], UEFA, FIFA
and the legislation of country B shall be effective.”
10. In December 2008, the player lodged a claim against the club in front of the
Arbitration Commission (hereinafter: “AC”) of the Football Union of country B in
view of the termination of his contract with the club due to “objective reasons”
related to outstanding remuneration.
11. On 6 January 2009, the AC of the Football Union of country B (FUB) rendered a
decision. The version provided by the club reads: “Decision: The employment
agreement of [the player] with the [club] is terminated due to objective reasons
(fault of the club); Motives: non-performance of the alleged financial obligations
under the agreement and the annex thereto.”
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12. The version submitted by the player reads: “[the player]’s contract with [the club] is
terminated for just cause (the club’s fault); Justification: Failure to perform the
claimed financial obligations under the contract and the annex thereto.”
13. From the minutes of the meeting of the AC of the FUB dated 6 January 2009, which
were provided by the player, it can be noted that the club attended the meeting
and presented its position during the discussions. There is no mention in said
minutes that the club contested the jurisdiction of the AC of the FUB over the
matter at stake.
14. According to art. 44 of the 2003 edition of the FUB’s “Statute”, the AC of the FUB
was a standing committee of the FUB competent to deal with disputes between
union members, football players (…) and which are resulting from the relations
within the FUB system, unless said disputes are of the sole jurisdiction of the
Disciplinary Committee (art. 72) or the Appealing Committee (art. 73).
15. According to the “Regulations for the work of the AC of the FUB” (edition 2003),
the AC of the FUB is independent from the other bodies of the FUB (art. 3) and is
composed of nine members of whom at least five must be legal counsels with more
than ten years of experience, being precised that the AC of the FUB should also
include representatives of the National Football Players Trade union. Said
Regulations also establish, inter alia, that the AC’s members shall not be members of
other bodies of the FUB nor members of the football clubs’ management.
16. Art. 13 par. 1 of the aforementioned Regulations stipulates that the AC of the FUB
shall have jurisdiction concerning the (…) termination of contracts between players
and the clubs from the Senior Professional League and, according to art. 13 par. 2,
the AC of the FUB shall not consider disputes which are not of sport or competitions
nature and which are within the jurisdiction of courts or other jurisdictions.
17. Additionally, art. 26 of the aforementioned Regulations stipulates that the decisions
of the AC of the FUB may be appealed before the Appeal Committee of the FUB
and that such appeal, which has a suspensive effect, must be filed within seven days
of the notice to the parties of the decision of the AC of the FUB.
18. Finally, art. 29 of the aforementioned Regulations establishes that the decision of
the AC of the FUB shall be mandatory for the bodies of the FUB, the members of
the Union as well as the persons recognising the right of the FUB.
19. On 2 February 2009, the club lodged a claim in front of FIFA against the player and
his new club L (hereinafter: “Respondent 2”), as it considered that the Respondent 1
had no just cause to terminate the employment contract.
20. In addition, on 16 September 2009, the club S lodged a claim in front of the
Administrative Court of country B to obtain the cancellation of the decision of the
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AC of the FUB, then an appeal in front of the Supreme Administrative Court of
country B against the decision of the Administrative Court of country B. By two
decisions, respectively dated 1 February 2010 and 29 March 2010, both said
administrative courts rejected the Claimant’s actions without entering into the
substance, since they considered that the decision of the AC of the FUB is not an
individual administrative act that can be controlled by administrative courts.
21. In its statement of claim in front of FIFA, the Claimant asserted that the AC of the
FUB does not comply with the requirements of art. 22 of FIFA Regulations on the
Status and Transfer of Players, stressing that there was no contractual clause
establishing its jurisdiction, and, thus, the AC of the FUB had no jurisdiction to
decide that the contract was terminated at the club’s fault. In the Claimant’s
opinion, the decision is not a proper ruling but a statement confirming the contract
termination.
22. In this regard, the club explained that it only attended the sessions of the AC of the
FUB because it is obliged to by the Internal Regulations of the AC of the FUB and
stressed that its attending the meeting is not an acceptance of its jurisdiction.
Consequently, the club holds that the Dispute Resolution Chamber is competent to
pass a decision in this matter.
23. The Respondent 1, for his part, considers the Claimant’s claim in front of FIFA
inadmissible since the dispute has been validly decided upon by the AC of the FUB.
24. As to the substance, the Claimant explained that, on 8 December 2008, the
Respondent 1 returned to country P to spend the Christmas holidays with his family
and that he was to return to the club on 5 January 2009.
25. On 15 December 2008, the club received a notary notification by means of which
the Respondent 1 informed the Claimant of his termination of the contractual
relationship without prior notice on the grounds of art. 327 par. 2 of the Labour
Code of the country B and art. 28 par. 2 Section VIII of the FUB Regulations on the
Status and Transfer of Football Players.
26. In the notification, the player highlighted that the termination of the contractual
relationship was resulting from the Claimant’s failure to pay him his monthly
remuneration of November 2008 based on the contract and on the annex, as well as
the amount of EUR 10,000, which fell due on 10 October 2008 (cf. art. 2 par. 2 of the
annex).
27. According to art. 327 of the Labour Code of country B, “the [player] is entitled to
terminate the employment contract in writing, without providing a prior notice, in
the following cases : (par. 2) the [club] has delayed the payment of the employment
remuneration or compensation under this code or contributions for the social
security.”
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28. Art. 28 par. 2 Section VIII of the FUB Regulations on the Status and Transfer of
Football Players (hereinafter: Regulations) refers to contract termination between
clubs and players due “to reasonable sporting and other reasons”.
29. Art. 27 par. 1 of said Regulations mentions that “termination of the contracts is
done only and solely by decision of the AC in the FUB.”
30. The Claimant also explained that upon receipt of the player’s notary notification on
15 December 2008, it informed him via a letter dated 29 December 2008 that it
would pay the player’s outstanding salaries upon his return on 5 January 2009.
31. The Claimant then pointed out that, on 6 January 2009, the Respondent 1 did not
return to the club but was attending the meeting of the AC of the FUB related to
the termination of the contract.
32. However, in the Claimant’s opinion, the Respondent 1 had no just cause to
terminate the contract. The Claimant emphasised that there were no outstanding
payments based on the contract or the annex when the Respondent 1 terminated
the contract.
33. In this respect, the club presented various payment documents such as, inter alia,
two payment receipts apparently countersigned by the player and showing that it
paid twice 9,779.15 to the player, on 12 September 2008 and on 3 October 2008
respectively.
34. Additionally, the Claimant stated that the payment of the remuneration for the
month of November 2008 was not delayed based on the contract, as its art. 3 does
not contain any provision regarding the date nor how the payments have to be
remitted.
35. Also, the Claimant pointed out that the contract was terminated by the player on
the basis of Regulations of country B. However, if these rules are considered as
applicable, the club stressed that in accordance with art. 23 of the club’s “internal
regulations on the Rights Obligations Disciplinary Liability and the Personal
Expedient Awards of the Professional Football Players”, which the player was
familiar with and which are then also applicable, the club may postpone the
payments due to the player under any agreement until the 10 th day of the month
succeeding the relevant month.
36. Therefore, the Claimant insisted on the fact that at the time when the payment for
the salary of November 2008 became due, i.e. on 10 December 2008, the
Respondent 1 was on holidays and that it could not pay the player since it did not
have his bank details.
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37. Additionally, the Claimant explained that on the basis of art. 270 par. 1. of the
Labour Code, the payment by the employer to the employee has to be remitted
where the work is performed, to the employee in person (art. 270 par. 3) or, upon
his written request, his remuneration shall be deposited in a bank chosen by him.
38. On account of the above, the Claimant considered that in the absence of a
notification from the player informing the club how to transfer the due sums, it is
not possible to consider that the Claimant was in breach of the payment of the
player’s salary. The Claimant explained that, otherwise, it would be possible for any
player to leave on holidays when the payments fall due and to terminate the
contract for non-payment.
39. In continuation, the Claimant stated that it also did not breach the terms of the
annex related to the payment of the monthly remuneration, which falls due on the
5th day following the month of reference. In this regard, the club explained that the
amounts pertaining to the annex are a “separate amount”, which do not constitute
a remuneration properly, such remuneration being only what is stipulated in the
contract. Therefore, the non-payment of such amounts cannot serve as a ground for
the termination of the contract based on art. 327 par. 2 of the Labour code of
country B. The Claimant also stressed that the same reasoning applies to the
amounts of EUR 10,000 stipulated in the annex.
40. The Claimant added that the termination of the employment contract on the basis
of one month of outstanding remuneration is not justified in light of the
jurisprudence of the Dispute Resolution Chamber (DRC), which, according to the
Claimant, traditionally considers that one has just cause to terminate a contract as
from three months of outstanding salaries.
41. The Claimant concluded in this respect by stating that the player’s real ambition was
to find a formal reason for the termination of the contractual relation on the basis
of Regulations of country B, which are too strict in the club’s opinion, and which
should be set aside so as to have FIFA Regulations applied to the matter at hand.
42. Furthermore, the Claimant stressed that on 15 January 2009, it discovered that the
player had joined the Respondent 2, with whom he appeared to have signed an
employment contract.
43. On 26 January 2009, the Respondent 1 signed an employment contract with the
Respondent 2, which contract was afterwards terminated on 30 June 2009.
44. The Claimant therefore also lodged its claim against the Respondent 2, based on the
fact that it considered that the latter has induced the Respondent 1 to terminate his
contract with the Claimant.
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45. For these reasons, the Claimant asked that the Respondent be ordered to pay
compensation for breach of contract in the amount of EUR 150,000, which was
detailed as follows:
EUR 35,140 as the residual value of the contract and the annex;
EUR 11,534, corresponding to the payments it made to the player, in particular a
signing-on fee of EUR 10,000 and EUR 1,534 as bonus payments;
A compensation for not receiving a transfer compensation for the player, in line
with CAS award 2005/X/XXX, based on the market value of a similarly skilled
football player as well as on the fact that the player was still bound to the club
for seven months;
To receive a copy of the player’s contract signed with the club L so to assess the
possible difference of remuneration between the player’s two employment
contracts;
All other objective criteria to be considered, inter alia, the money, time and
efforts invested during the first two months of employment when the player was
not fit enough to play for the first team, and the fact that the player joined the
rival team of country B, a direct competitor in the Championship of country B.
46. In addition, the breach having occurred during the protected period, the Claimant
claims the imposition of a suspension on the Respondent 1.
47. Furthermore, the Claimant considers that the Respondent 2 shall be liable for the
payment of compensation in case the Respondent 1 does not pay it within one
month following the decision of the Dispute Resolution Chamber.
48. In continuation, the Claimant claims the imposition of a transfer ban for two
registration periods on the Respondent 2, which is to be considered liable for the
inducement of breach of contract by the Respondent 1 without just cause during
the protected period.
49. In his reply to the claim, the Respondent 1 firstly pointed out that a decision from
the DRC on the dispute would create the opportunity for parties to seek a new
consideration of their disputes before FIFA despite their explicit acknowledgement
of the jurisdiction of the AC of the FUB in the first place.
50. In continuation, the Respondent 1 confirmed that he applied to the AC of the FUB
to obtain a decision on the termination of the contract, which was rendered on 6
January 2009 in presence of the Claimant, who did not object the jurisdiction of the
AC of the FUB. In this regard, the player emphasised that on the same day, two
other players have obtained the termination of their respective contracts with the
Claimant and that, after an agreement was found, the club paid them the
outstanding monies it owed them further to the decision of the AC of the FUB.
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51. Furthermore, the player recalled that the Claimant has still not paid him the
outstanding amount, whereas it appeared to be willing to do so during the local
proceedings.
52. In light of the above, the Respondent 1 holds that the Claimant’s claim shall be
rejected as the matter has already been dealt with by the AC of the FUB.
53. In case the DRC would consider that the matter at hand has not yet been decided as
to the substance by the AC of the FUB, the Respondent 1 held that there shall be no
difference between the monies based on the contract and the annex. Therefore, the
Respondent 1 requested the DRC to reject the club’s claim as it is groundless and
unproven and to condemn it to pay the player’s legal costs in the amount of EUR
3,300.
54. The Respondent 2, for its part, rejected the DRC’s jurisdiction as the matter has
already been decided upon on 6 January 2009 by the AC of the FUB, who rendered
a valid and binding decision that was not appealed against in front of the Appeal
Committee of the FUB. Additionally, the Respondent 2 also stressed that club S did
not challenge the jurisdiction of the AC of the FUB in the local proceedings, in
which club L was not involved.
55. The Respondent 2 further held that the AC of the FUB lawfully decided on the
dispute between the Claimant and the Respondent 2 and clearly determined that
the contract between the player and the club was terminated for “objective reason,
which is the term in country B for “just cause””, due to the Claimant’s breach of
contract related to outstanding remuneration. On account of the above, and based
on the legal principle of res iudicata, the Claimant cannot bring the same matter in
front of the DRC on the basis that it considered that the AC of the FUB had no
jurisdiction to decide on the player’s claim.
56. The Respondent 2 continued by asserting that the club’s behaviour consists in
“forum shopping” since it also tried to obtain the cancellation of the decision of the
AC of the FUB in front of courts in country B. The Respondent 2 held that this shows
the Claimant’s will to avoid the consequences of a decision it knows it is valid, since
it has allegedly been a party in similar proceedings before the AC of the FUB, as
claimant as well as respondent.
57. However, and in case the DRC would declare itself competent to decide on the
matter, the Respondent 2 presented the following statements as to the substance of
the claim.
58. First of all, the Respondent 2 highlighted that it was not a party to the proceedings
in front of the AC of the FUB and that it was informed of the situation via the claim
lodged by the Claimant. Based on the statements and the documents submitted by
the Claimant, the Respondent 2 is of the opinion that the club did not pay to the
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player his salary and signing-on fee. It also pointed out that the payment receipts
presented by the Claimant with regard to the salaries of September and October
2008 are not dated and have no reference numbers. What is more, the Respondent
2 underlined that these payment receipts described as monthly salary payments are
not including any additional payments, which, however, are at the origin of the
player’s claim.
59. Furthermore, the Respondent 2 rejected that it would have induced a breach of
contract by the Respondent 1. The Respondent 2 explained that there is no evidence
of any inducement of breach of contract brought forward by the Claimant and that
the Respondent 1 had already decided to terminate the contract on 15 December
2008. The termination of said contract was decided on 6 January 2009 by the AC of
the FUB and its decision came into force as no appeal was lodged against it. The
Respondent 2 mentioned that it would not have signed any contract with the
Respondent 1 if it had any doubt regarding his contractual situation or regarding
existing financial claims against him.
60. Finally, the Respondent 2 asserted that in case it was found that there was an
inducement of breach of contract by club L, quod non, the Respondent 2 asserted
that no sanctions can be imposed on it since the existence of a just cause was duly
certified by the national arbitration body, the competence of which was not
challenged by the parties.
61. The Respondent 2 concluded by asking the DRC to reject the Claimant’s claim as it
has already been dealt with by the AC of the FUB and to condemn the Claimant to
pay it all costs it incurred by the proceedings.
62. Alternatively, and in case the aforementioned request was not accepted, the
Respondent 2 requested that the Claimant’s claim has to be rejected as to the
substance as it is groundless and that any costs related thereto shall be borne by the
Claimant.
63. In its replica, the Claimant reiterated that the AC of the FUB was not constituted in
line with the principles of equal representation and that the DRC should not
consider the matter at hand as res iudicata.
64. The Claimant held that it did challenge the jurisdiction of the AC of the FUB and
that this element, “surprisingly (or intentionally?)” does not appear in the hearing
minutes. Hence, the club requested the DRC to order the FUB to produce the full
audio records of said meeting as well as its translation in English.
65. The Claimant also reiterated that the AC of the FUB had no jurisdiction to decide as
to who was liable for the breach of contract as such decision remains the exclusive
and compulsory jurisdiction of the civil court. Therefore, the club claimed that the
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decision is void and pointed out that the player’s lawyer adopted the same position
in another case pending in front of the DRC.
66. Furthermore, the Claimant highlighted the lack of motivation of the award
rendered by the AC. In this respect, it referred to a DRC decision in which the DRC
decided that “decisions taken by national sports arbitration tribunals which do not
fulfil all the aforementioned fundamental procedural principles cannot be
considered as binding for the Chamber and as a consequence, in such cases, the
Chamber can re-examine the entire affair”.
67. Additionally, the Claimant explained that it brought legal actions in front of the
administrative courts to obtain the nullity of the decision of the AC of the FUB on
the basis of the fact that in some precedents, it had been found that the decisions
from the FUB were individual administrative acts, which can be challenged in front
of administrative courts. By obtaining the nullity of the decision, the Claimant
explained that it wanted to eliminate all the issues related to the validity of the
decision and FIFA could have decided on the matter. However, the Claimant
acknowledged that the administrative courts rejected the its opinion, but stressed
that said courts did not enter into the substance of the case.
68. Besides, the Claimant rejected any analogy with the other cases that were decided
during the same session of the AC of the FUB and their submission shall not be
interpreted as a recognition of the jurisdiction of the AC of the FUB.
69. In light of the above, the Claimant maintained that the FIFA Regulations must
prevail over law of country B as well as FUB by-laws and must apply to the case at
hand.
70. Additionally, the Claimant pointed out that art. 15 of the contract cannot be
interpreted as a jurisdiction clause.
71. As regards the substance of the case at hand, the Claimant highlighted that the
Respondent 1 acted in bad faith as he never put the Claimant in default of the
payment of EUR 10,000 or the EUR 4,000 he claimed afterwards, and that he did not
refer to the basic remuneration, because he knew it was part of the amounts
stipulated in the annex. The Claimant hence held that by not having complained in
writing, whereas he had a lawyer at the time, he implicitly accepted the “slight”
delays in the payments by the Claimant. Also, the Claimant referred to Swiss law
and asserted that in case one does not immediately react with regard to a breach of
contract, he is deemed to have renounced to the termination (“123 III 86”).
72. What is more, the Claimant considered that these delays shall not be considered as a
just cause to terminate the contract without prior warning in view of the short
period of time that elapsed and the amounts at stake. The Claimant also pointed
out that the Claimant’s behaviour or the effects that a default notice could have
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had are also to be taken into account to assess the relevance of a termination of
contract.
73. With regard to the financial aspect, the Claimant pointed out that the Respondent 1
did not deny having received the first sign-on fee of EUR 10,000 and thus only did
not receive the second signing-on fee of EUR 10,000, which fell due, according to
the Claimant, in December 2008, and was to be amortised until Spring 2009.
Therefore, according to the Claimant, it has to be understood that the player
terminated the contract without prior notice “for late payment of one month only,
i.e. November 2008, and only after ten days delay of its payment.”
74. In light of the above, the Claimant considered that it did not breach the contract
and that the Respondent 1 had no valid reason to prematurely terminate the
contract. Therefore, the player’s arguments are to be rejected and the Claimant’s
claim has to be accepted.
75. In his duplica, the Respondent 1 fully maintained his previous position with regard
to the Claimant’s claim. In particular, he maintained that the case at hand is an
employment related dispute which falls under the competence of the civil courts
and that the FIFA Regulations should not prevail over the application of laws in
country B and FUB by-laws. The player also asserted that the FIFA Regulations
stipulate that no arbitration can take place in the event of compulsory intervention
of the civil court.
76. The Respondent 1 pointed out that the parties agreed upon the application of rules
of country B to the contract and that the termination process, based on the club’s
serious breach of contract, was executed in accordance with the rules applicable at
the time and on the basis of art. 15 of the contract, which led to the submission of
the case to the AC of the FUB for arbitration. The player’s termination of the
contract is therefore valid.
77. Additionally, the Respondent 1 pointed out that if the Claimant was sure that the
civil court of country B had jurisdiction over the issue, it should have challenged the
jurisdiction of the AC of the FUB during its hearing of the case and/or not have
participated to such hearing. It also should have brought an action in front of the
relevant civil court, instead of lodging claims in front of FIFA and administrative
courts in country B. Furthermore, and after the decision was rendered, the club did
not challenge it by using the existing legal remedies (civil court or appeal), which
led to the fact that the decision has now a res iudicata effect.
78. In this respect, the Respondent 1 stated that he did not lodge any counterclaim for
the payments of his dues in front of the DRC because he knew that the DRC would
answer that the case has already been decided upon by the AC of the FUB.
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79. The Respondent 1 asserted that the absence of a default notice to the Claimant is
not a sign of bad faith and that this does not imply his consent to the belated
payments.
80. Finally, the Respondent 1 deemed that the Claimant’s reference to the other case
pending in front of FIFA is irrelevant.
81. In its duplica, the Respondent 2 maintained its position with regard to the
jurisdiction issue.
82. The Respondent 2 acknowledged that the current practice is now to have labour
disputes dealt with by the civil courts, but pointed out that at the time the dispute
arose, the practice was to have them submitted to the AC of the FUB and that this
cannot be challenged a posteriori due to the legal uncertainty this would create.
What is more, the Respondent 2 pointed out that in line with this new practice, and
in case the decision was considered as null and void, the case could only be
submitted to the civil court and not to the DRC.
83. With regard to the inducement of breach of contract, the Respondent reiterated
that at the time when it signed an employment contract with the Respondent 1,
there was no claim against him in front of FIFA nor in front of any civil court of
country B or Appeal Commission of the FUB. The Respondent 2 therefore considered
having complied with its duties regarding due diligence and acted in good faith.
84. The Respondent 2 deemed that it did not commit any error by entering into an
employment contract with the Respondent 1 and it shall not be found guilty of any
inducement to breach of contract. Finally, the Respondent 2 claimed the
reimbursement of its expenses in the amount of EUR 5,000 corresponding to legal
consultant’s fees.
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
2 February 2009. 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. article 21 par. 2 and 3 of
the Procedural Rules).
2.
In continuation, 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 2010) the Dispute Resolution Chamber would, in principle, be
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competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a club in country B, a player from
country P and another club from country B.
3.
However, the Chamber noted that the Respondent 1 and the Respondent 2 are of
the opinion that the Dispute Resolution Chamber has no competence to deal with
the claim at stake by virtue of the application of the legal principle of res iudicata.
4.
In this respect, both Respondents pointed out that the Claimant’s claim is aimed at
obtaining a decision from the Dispute Resolution Chamber ruling that the
Respondent 1 terminated the contractual relationship with the Claimant without
just cause, whereas the employment relationship between the Claimant and the
Respondent 1 has been already considered terminated at the Claimant’s fault by
means of the decision passed by the AC of the FUB on 6 January 2009.
5.
First and foremost, the Chamber wished to highlight that from the copy of the
minutes of the meeting of the AC of the FUB that was provided by the FUB along
with a translation, at FIFA’s request, it can be noted, inter alia, that the Claimant
actively took part in the relevant proceedings in front of said deciding body in
country B and that it presented its position with regard to the issue of outstanding
dues. Additionally, it can be noted that the jurisdiction of the AC of the FUB to deal
with the dispute between the Respondent 1 and the Claimant was not contested by
the Claimant at any time during said meeting. Consequently, the Chamber rejected
the Claimant’s position in this regard.
6.
On account of the fact that the Claimant, as demonstrated above, recognised the
competence of the AC of the FUB, the Chamber deemed it irrelevant to analyse the
constitution of said deciding body.
7.
In continuation, in light of the consideration under point II./4. above, the DRC held
that it had to establish whether, considering the general principle of res iudicata, it
could enter into the substance of the matter and pass a decision.
8.
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.
9.
In continuation, the Chamber noted that the Claimant acknowledged not having
lodged any appeal in front of the Appeal Committee of the FUB against said
decision of the AC of the FUB but pointed out that it brought successive legal
actions before the Administrative Court of country B and the Supreme
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Administrative Court of country B, which both dismissed the Claimant’s legal actions
lodged against the decision of the AC of the FUB without entering into its merits.
10. As a result thereof, the Chamber satisfied itself that the decision of the AC of the
FUB of 6 January 2009 was final and binding, which is one of the criteria in order to
establish as to whether the principle of res iudicata is applicable.
11. Furthermore, the Chamber underlined that the principle of res iudicata is applicable
if cumulatively and necessarily the parties to the disputes and the object of the
matter in dispute are identical.
12. In this respect, the Chamber recalled that the criterion of the identity of the parties
is given if the parties to the disputes are the same. Having said this, the Chamber
noted that both the Claimant and the Respondent 1 were the parties in the
proceedings in country B as well as in the dispute at stake.
13. In this context, and for the sake of good order, the Chamber wished to point out
that independently of the Claimant’s claim, the involvement of the Respondent 2 in
the proceedings before the DRC would have automatically resulted from the strict
application of art. 17 the FIFA Regulations on the Status and Transfer of Players.
Therefore, the involvement of the Respondent 2 in the proceedings at hand shall
not affect the aforementioned criterion of the identity of the parties.
14. As a consequence, as the parties to both disputes are the same, the Chamber came
to the conclusion that the condition of the identity of parties is given.
15. The Chamber then turned its attention to the criterion of the object of the matter
in dispute.
16. In this respect, the members of the Chamber started by acknowledging that the
identity of the subject matter is given if the requests of the two claims are similar.
17. In view of the foregoing, the Chamber went on analysing and comparing the
requests made, i.e., the claim of the Respondent 1 against the Claimant in front of
the AC of the FUB, and the Claimant’s claim against the Respondent 1 before the
Dispute Resolution Chamber.
18. From the information and documentation on file, the Chamber could verify, on the
one hand, that the player initiated legal proceedings in front of the AC of the FUB
against the Claimant in order to obtain the termination of the contractual
relationship. According to the Respondent 1, this legal action was based on the fact
that the Claimant was in breach of contract, as it had failed to comply with its
contractual obligations towards him.
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19. This opinion was shared by the AC of the FUB, which rendered the above-cited
decision and which reads, according to the version submitted by the FUB: “DECISION
[:] Termination of the labour contract between player F with club S with just cause
(fault of the club). GROUNDS [:] Breach of the claimed financial obligations in
accordance with the contract and the annexe to the contract.”
20. From the contents of the aforementioned decision, the DRC noted, in particular,
that the AC of the FUB not only ruled that the contract between the parties was
terminated, but also decided that it was the Claimant who was held responsible for
the early termination of the employment contract.
21. On the other hand, from the Claimant’s statement of claim, the members of the
Chamber duly noted that the Claimant requested that the player be sanctioned for
having terminated the contract without just cause since, in the Claimant’s opinion,
it did not breach any contractual obligation.
22. In view of the aforementioned, the Dispute Resolution Chamber held that both
legal actions were based on the same employment contract and that both actions
were aimed at establishing either party’s liability for the early termination of the
employment contract between the parties.
23. On account of the above, the Chamber unanimously determined that the object of
the matter in both disputes is identical and that, therefore, the condition of identity
of the object of the matter in dispute is also given.
24. Consequently, the Chamber concluded that, compared to the legal action in front of
the AC of the FUB, the matter at hand not only concerns identical parties to the
dispute but also identical objects of the matter in dispute and has, therefore, to be
considered as a res iudicata.
25. 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.
26. Finally, the Chamber wished to emphasise that it is not a body of appeal with which
matters that were already dealt with as to their substance by another competent
national deciding authority can be filed for revision.
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III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, club S, 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 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
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