Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 16 November 2012,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player M, from country I
as Claimant
against the club,
Club A, from country C
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the case
1.
On 6 June 2010, Player M, from country I (hereinafter: the Claimant), and Club A,
from country C (hereinafter: the Respondent), signed an employment contract
(hereinafter: the contract) valid from 1 July 2010 until 30 May 2011.
2.
According to the contract, the Claimant was entitled to receive as remuneration,
EUR 75,000 payable in the following way:
- EUR 15,000 with the signing of the contract and;
- EUR 6,000 on the 30th day of each following month, for the duration of 10
months.
3.
Clause 15 of the contract stipulates: “The country C Football Association rules and
regulations apply as far as jurisdiction for the adjudication for any dispute
resolution between the parties and both parties agree that they will respect the
Rules of FIFA and UEFA”.
4.
On 26 July 2011, the Claimant lodged a claim in front of FIFA against the
Respondent by means of which he requested the payment of outstanding salaries
in the amount of EUR 12,000 “with the addition of interest and linkage
differentials in accordance with the law”. Equally, the Claimant requested “legal
expenses” and “lawyers’ fees”. The Claimant indicated he had not received the
salaries corresponding to April and May 2011 of EUR 6,000 each.
5.
The Respondent replied to the claim and firstly challenged FIFA’s competence to
deal with the matter on the basis of clause 15 of the contract. The Respondent
stressed that the Claimant should have submitted the dispute to the country C
Football Association’s Dispute Resolution Committee claiming that the latter was
agreed to be the only appointed body with jurisdiction.
6.
As regards the substance of the matter, the Respondent stated that the Claimant
had left the club on 5 May 2011 and did not return. As a result, on 10 May 2011 it
advised the Claimant not to leave the country as the Respondent had not given
him permission, and by means of the same letter, it asked the Claimant to attend a
meeting of the Respondent’s committee that would take place on 13 May 2011.
Accordingly, the committee met on the aforementioned date and passed a
decision in absence of the Claimant, acknowledging the termination of the
contract due to his absence in a training session on 9 May 2011 and due to his
decision to leave the country without the Respondent’s permission. Consequently,
the Respondent imposed the Claimant a penalty of one month’s salary.
7.
In its replica, the Claimant maintained that he played a match with the team on 7
May 2011, so he did not leave the club on 5 May 2011 as it stated. He added that
he left country C, for personal reasons, on 11 May 2011 with the consent of the
Player M, from country I / Club A, from country C
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coach and with the flight tickets having been previously bought by the
Respondent, arguing that if he was not authorized to leave the country the
Respondent would not have bought the relevant flight tickets.
8.
Furthermore, the Claimant rejected the decision of the Respondent’s committee
dated 13 May 2011, arguing that he was not present and not even informed about
that meeting – he holds that on 10 May 2011, the date of the letter of warning of
the Respondent, he was at home and did not receive any letters -, an so the
Respondent imposed a sanction on him without giving him “a fair chance to argue
his reasons to the ‘alleged infringement’”. In conclusion, the Claimant stated that
the Respondent had allowed him to travel home and outlined that the
Respondent contradicts itself by first stating that the Claimant left the country on
5 May 2011 but later on arguing they had served him a letter on 10 May 2011.
9.
Finally, the Claimant insisted on the competence of FIFA to deal with the matter,
arguing that clause 15 of the contract does not grant exclusivity to the country C
Football Association’s bodies and, therefore, such clause contains only a
suggestion of the existing jurisdictions for the parties to choose.
10.
Upon the request of FIFA to be provided with a copy of the relevant Regulations
of its national deciding body, the country C Football Association provided a copy
of the Regulations for the Registration and Transfer of Football Players of the
country C Football Association, which entered into force on 15 June 2005.
According to these Regulations, the Dispute Resolution Committee is composed of
five members: the Chairman, the Vice-Chairman and one member are appointed
by the Executive Committee of the country C Football Association and two
members are appointed by the country C Football Players’ Association (art. 22.1.1
and 22.2.3). Furthermore, according to said Regulations, the appeal body is the
“Disciplinary Authority of the country C Football Association”.
11.
Despite having been invited by FIFA to provide its final position, the Respondent
did not submit any final comments.
12.
In reply to FIFA’s request, the Claimant stated he entered into a new employment
relationship with an country I club only on 6 July 2011.
II.
Considerations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
case at hand. In this respect, he took note that the present matter was submitted
to FIFA on 26 July 2011. Consequently, the 2008 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand
(cf. art. 21 par. 2 and par. 3 of the Procedural Rules).
Player M, from country I / Club A, from country C
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2.
With regard to the competence of the DRC judge, the latter referred to art. 3 par.
2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24
par. 1 and par. 2 in conjunction with art. 22 lit. (b) of the Regulations on the
Status and Transfer of Players, edition 2010, he is, in principle, competent to
decide on the present litigation, which concerns an employment-related dispute
with an international dimension between an country I player and a country C club.
3.
In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the
Status and Transfer of Players, the DRC judge confirmed that, in principle, he may
adjudicate in the present dispute which value does not exceed currency of country
H 100,000.
4.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. 15 of the employment
contract highlighting that the country C Football Association has an independent
deciding body to deal with the matter, i.e. the Dispute Resolution Chamber of the
currency of country A and that this deciding body was appointed as the only one
having jurisdiction.
5.
In this regard, the DRC judge noted that the Claimant rejected such position and
insisted that FIFA has jurisdiction to deal with the present matter.
6.
Taking into account the above, the DRC judge emphasised that in accordance with
art. 22 lit. b) of the 2010 edition of the Regulations on the Status and Transfer of
Players he is competent to deal with a matter such as the one at hand, 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. With regard to the standards to be imposed on an
independent arbitration tribunal guaranteeing fair proceedings, the DRC judge
referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC
judge further referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
7.
For the sake of good order, the DRC judge first turned to art. 15 of the
employment contract, on the basis of which the Respondent contested FIFA’s
jurisdiction. According to said art. 15, “the country C Football Association rules
and regulations apply as far as jurisdiction for the adjudication for any dispute
resolution between the parties”. Hence, art. 15 of the employment contract clearly
does not refer to a specific national dispute resolution chamber or any similar
arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations.
What is more, the DRC judge stressed that the employment contract does not
Player M, from country I / Club A, from country C
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make explicit reference to any collective agreement or regulations that would
provide for an arbitration clause.
8.
In continuation, the DRC judge wished to stress that, even if the contract at the
basis of the present dispute would have included such arbitration clause in favour
of a national dispute resolution body, the Respondent was unable to prove that,
in fact, the country C Football Association “Dispute Resolution Chamber” meets
the minimum procedural standards for independent arbitration tribunals as laid
down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in
FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations.
9.
In this respect, the DRC judge referred to the principle of equal representation of
players and clubs and underlined that this principle was one of the very
fundamental elements to be fulfilled, in order for a national dispute resolution
chamber to be recognised as such. Indeed, this prerequisite is mentioned in the
Regulations on the Status and Transfer of Players, in the Circular no. 1010 as well
as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned
principle as follows: “The NDRC shall be composed of the following members, who
shall serve a four-year renewable mandate: a) a chairman and a deputy chairman
chosen by consensus by the player and club representatives (…); b) between three
and ten player representatives who are elected or appointed either on proposal of
the players’ associations affiliated to FIFPro, or, where no such associations exist,
on the basis of a selection process agreed by FIFA and FIFPro; c) between three
and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states
the following: “The parties must have equal influence over the appointment of
arbitrators. This means for example that every party shall have the right to
appoint an arbitrator and the two appointed arbitrators appoint the chairman of
the arbitration tribunal (…). Where arbitrators are to be selected from a
predetermined list, every interest group that is represented must be able to
exercise equal influence over the compilation of the arbitrator list.”
10.
The DRC judge, following the well-established jurisprudence of the Dispute
Resolution Chamber, considered that the “Regulations for the registration and
transfer of football players country C Football Association (2005)”, in accordance
with which, inter alia, the chairman, vice-chairman and one member are elected
by the Executive Committee of the country C Football Association and two
members are elected by the country C Football Players’ Association, do not meet
the aforementioned principles.
11.
In view of all the above, the DRC judge established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be
rejected and that the DRC judge is competent, on the basis of art. 22 lit. b) in
Player M, from country I / Club A, from country C
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conjunction with art. 24 par. 2 of the Regulations on the Status and Transfer of
Players, to consider the present matter as to the substance.
12.
Subsequently, the DRC judge analysed which Regulations should be applicable as
to the substance of the matter. In this respect, he confirmed that in accordance
with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of
Players (edition 2010) and considering that the present claim was lodged on 26
July 2011, the 2010 edition of said Regulations is applicable to the present matter
as to the substance.
13.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In doing so,
he started by acknowledging the abovementioned facts of the case as well as the
documentation contained in the file.
14.
In this respect, the DRC judge acknowledged that the parties had signed a valid
employment contract on 6 June 2010 in accordance with which the Respondent
would pay the Claimant a sign-on fee of EUR 15,000 as well as a monthly salary of
EUR 6,000 for the period of ten months.
15.
In continuation, the judge noted that the Claimant lodged a claim against the
Respondent requesting the payment of the amount of EUR 12,000 plus interest,
corresponding to the unpaid monthly salaries of April and May 2011.
16.
Equally, the DRC judge took note of the reply of the Respondent, which alleged
that the Claimant had left the club and the country without the Respondent’s
permission and that, consequently, on 13 May 2011, the members of the
committee of the Respondent held a meeting in which, in absence of the
Claimant, it recognised the termination of the contract. Accordingly, the DRC
judge acknowledged that a letter from the Respondent dated 10 May 2011 asking
the Claimant to attend the meeting of the relevant committee was provided by
the Respondent, although it did not specify whether it was effectively received or
not by the Claimant. In this respect, the DRC judge observed that the Claimant did
not provide any evidence which could unambiguously establish that he was
indeed authorized by the Respondent to leave the Respondent before the
expiration of the contract.
17.
In connection with the above, the DRC judge referred to art. 12 par. 3 of the
Procedural Rules which stipulates that any party claiming a right on the basis of an
alleged fact shall carry the burden of proof and emphasised that there was also no
documentation on file which confirmed that the flight tickets were indeed bought
by the Respondent, as asserted by the Claimant. In view of the foregoing and
taking into account that it was undisputed between the parties that the Claimant
left country C in the beginning of May 2011, the DRC judge decided that the
Player M, from country I / Club A, from country C
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Claimant’s request in relation to his salary for the month of May 2011 should be
rejected.
18.
Moreover, the DRC judge noted that the Claimant contested and furthermore,
rejected, the process held by the Respondent by means of which the latter
declared the termination of the contract and imposed a fine on the Claimant.
19.
In this regard, the DRC judge considered that the internal process of the
Respondent was held in absence of the Claimant and that it could not be
established that the Claimant was indeed duly notified of said process. Therefore,
the DRC judge recalled that such process was not a fair and equal process as it did
not give the Claimant the opportunity to contend the accusations brought against
him by the Respondent. What is more, the DRC judge noted that the fine was
apparently imposed in accordance with the Respondent’s internal rules, however,
the Respondent failed to submit a copy of those internal rules. Consequently, the
DRC judge referred once more to art. 12 par. 3 of the Procedural Rules and
determined that he could not establish whether the proceedings held were
conducted in line with the internal rules. Hence, the DRC judge decided that the
fine imposed by the Respondent on the Claimant should be disregarded.
20.
On account of all the above, the DRC judge established that the Respondent failed
to remit the Claimant’s monthly remuneration in the total amount of EUR 6,000,
corresponding to April 2011.
21.
Consequently, the DRC judge decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant
outstanding remuneration in the total amount of EUR 6,000.
22.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the outstanding
monthly salary as from 26 July 2011 until the date of effective payment.
23.
The DRC judge further decided that the Claimant’s claim for legal expenses is
rejected in accordance with art. 18 par. 4 of the Procedural Rules and the
respective longstanding jurisprudence of the Dispute Resolution Chamber.
24.
The DRC judge concluded its deliberations in the present matter by establishing
that any further claims lodged by the Claimant are rejected.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player M, is admissible.
Player M, from country I / Club A, from country C
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2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club A, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 6,000 plus 5% interest p.a.
on said amount as of 26 July 2011 until the date of effective payment.
4.
If the aforementioned sum plus interest is not paid within the stated time limit,
the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for consideration and a formal decision.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the DRC
judge of every payment received.
*****
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 DRC Judge:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player M, from country I / Club A, from country C
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