Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 November 2014,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Johan van Gaalen (South Africa), member
on the claim presented by the player,
Player A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 31 December 2011, the club from country D, Club C (hereinafter: the Respondent), and
the player from country B, Player A (hereinafter: the Claimant), concluded an employment
contract (hereinafter: the contract) valid as from 1 August 2012 until
31 May 2013.
2.
According to clause two of the contract, the Claimant was entitled to receive the total
amount of USD 200,000, payable as follows:
a. USD 18,000 as monthly remuneration;
b. USD 20,000 payable on 1 September 2012.
3.
Furthermore, the contract contained the following stipulations:
a) clause 2 c) stipulated that “provide the [Claimant] with a reasonable furnished
accommodation by [Respondent] among with paying electricity and water bill,
(300) monthly as maximum;
b) clause 2 d) stipulated that “[the Claimant] shall deserve two way airway ticket
economy class for him and his wife, to his home land”;
c) clause 2 h) stipulated that “[the Respondent] has the right to terminate this
contract at any time; and he should pay to [the Claimant] two month salary only”;
d) clause 3 e) stipulated that the Claimant shall undertake “to exert his best efforts
in order to safeguard his good health, not to jeopardize it and not to practice any
other sporting activity, except by virtue of the [Respondent’s] written consent”;
e) clause 3 f) stipulated that the Claimant shall undertake “to always be a role model
in regard to conduct and represent the [Respondent] in the best manner possible,
whether through his participation in the matches, training sessions”;
f) clause 3 i) stipulated that the Claimant shall undertake “not to leave the country
without a written consent from the chairman of the [Respondent] or his Deputy
or the Secretary General or any official representative thereof”;
g) clause 9 further stipulated that “The Association or any entities constituted
thereby, shall settle all Litigation, which may arise between the [Claimant] and
the [Respondent]. The decision issued in this instance shall be binding to both
parties”.
4.
On 6 February 2014, the Claimant lodged a claim against the Respondent in front of FIFA,
requesting the payment of USD 213,086, plus 5% interest as from 8 August 2012, as set out
below:
a) USD 12,000 as monthly remuneration due in May 2012;
b) USD 1,086 corresponding to accommodation costs (cf. point I.3 a) above);
c) USD 200,000 corresponding to the total value of the contract (cf. point I.2 above).
5.
In his claim, the Claimant explained that the Respondent allegedly contacted him in midJuly 2012 in order to inform him that he no longer fits in the Respondent’s sporting
concept and that the Respondent is no longer interested in his services. Consequently, on
20 July 2012, the Claimant’s legal representative contacted the Respondent in order to
know the exact date when the Claimant is expected to be in country D as well as to request
his air ticket. Due to the Respondent’s alleged lack of answer, the Claimant booked his
own
air
ticket
and
travelled
to
country
D
where,
on
1 August 2012, he allegedly presented himself in order to participate in the team’s training
session.
6.
Thereupon, he was allegedly told that he was not allowed to take part in the training
session and that the Respondent was not interested in his services. As a consequence, the
Player A, country B / Club C, country D
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Claimant´s legal representative sent a letter to the Country D Football Association on 6
August 2012, informing it about the Claimant’s current situation and that he would take
legal actions before FIFA in case the Respondent would not allow him to train with the
team.
7.
At a later stage, the Respondent allegedly offered to pay the Claimant four monthly
salaries in the total amount of USD 72,000, the salary for May 2012 amounting to
USD 12,000, to cover his hotel bill of May 2012 amounting to USD 1,086, as well as to cover
the undisclosed costs for his air ticket and the hotel bill of his latest stay.
8.
In its response to the claim, the Respondent rejected the Claimant’s allegations and
questioned FIFA’s competence by referring to clause 9 of the contract (cf. point I.3 g)
above), i.e. the Respondent stated that “according to the above and pursuant to contract
conditions, the [Claimant] is not permissible to recourse to International Union to decide in
the dispute. The one who has the right to decide in the dispute is Country D Football
Union; and then the complaint will be not acceptable”.
9.
With regard to the substance of the matter, the Respondent stated that it terminated the
contract since the Claimant allegedly breached clauses 3 e), f), and i) of the contract
(cf. points I.3 d), e) and f) above), namely:
a) “uttered obscene and indecent words to assistant coach, which is disgraceful
misconduct; where he was punished, and 20% of salary of month May 2012 was
deducted”;
b) he allegedly was not committed during his exercises;
c) he allegedly left the country without a written permission and, hence, missed
14 days of training;
d) he “was with bad conduct where he was accused in a criminal case and he is jail
lodger”, i.e. he offended and damaged the Respondent’s reputation.
As a consequence, and referring to clause 2 h) of the contract (cf. point I.3 c) above), the
Respondent stated that “in implementation of the previous article, the dues of the
[Claimant] with the [Respondent] are two month’s salary”.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at stake. In this respect, the
Chamber referred to art. 21 par. 1 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules).
The present matter was submitted to FIFA on 6 February 2014. Therefore, the Chamber
concluded that the edition 2012 of the Procedural Rules was applicable to the matter at
hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that,
in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (editions 2010 and 2012), it is, in
principle, competent to decide on the present litigation, which concerns an employmentrelated dispute with an international dimension, between a player from country B and an
club from country D.
Player A, country B / Club C, country D
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3.
However, the Chamber acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the basis of clause 9 of the employment contract (cf. point I.3 g)
above), stating that “according to the above and pursuant to contract conditions, the
[Claimant] is not permissible to recourse to International Union to decide in the dispute.
The one who has the right to decide in the dispute is Country D Football Union; and then
the complaint will be not acceptable”.
4.
In this respect, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012
edition of the Regulations on the Status and Transfer of Players it 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
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.
5.
While analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber considered that it should, first and foremost, analyse whether the
employment contract at the basis of the present dispute actually contained a clear and
specific jurisdiction clause.
6.
At this point, the members of the Chamber observed that clause 9 of the employment
contract 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.
Therefore, the members of the Chamber deemed that said clause could not serve as the
basis on which the Country D Football Union should be declared the competent instance to
decide on the present dispute, since the relevant clause did not contain a clear reference
granting jurisdiction to any specific deciding body within the Country D Football Union.
7.
Furthermore, and for the sake of good order, the DRC deemed it appropriate to remind
the parties of the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Bearing in mind the aforementioned
principle, the DRC noted that in the present dispute, the Respondent bore the burden of
proof regarding the challenge of FIFA’s competence.
8.
In this respect, the Chamber noted that the Respondent, in spite of having been requested
to do so, failed to provide documentary evidence to prove that the present matter should
be dealt with by the deciding bodies under the Country D Football Association.
9.
In view of the above, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected. As a consequence,
the DRC is competent to consider the present matter as to the substance on the basis of
art. 22 lit. b) of the Regulations on the Status and Transfer of Players.
10.
Subsequently, the Chamber analysed which edition of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) should be applicable as to the substance
of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2
of the Regulations (editions 2012 and 2014), and considering that the present claim was
lodged on 6 February 2014, the 2012 edition of said regulations is applicable to the matter
at hand as to the substance.
Player A, country B / Club C, country D
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11.
The competence of the DRC and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, it started to acknowledge
the facts of the case as well as the documents contained in the file. However, the Chamber
emphasised that in the following considerations it will refer only to the facts, arguments
and documentary evidence which it considered pertinent for the assessment of the matter
at hand.
12.
In this respect, the DRC acknowledged that it is undisputed by the parties that, on
31 December 2011, they had signed an employment contract valid as from 1 August 2012
until 31 May 2013, in accordance with which the Claimant was entitled to receive the total
amount of USD 200,000.
13.
In continuation, the Chamber noted that, on the one hand, the Claimant stated that the
Respondent was to be held liable for the non-execution of the employment contract, for
not having provided him with a date on which he would be expected in country D or with
any air ticket in order for him to arrive on time to start training with the Respondent, as
well as for having denied him access to the training session. As a consequence, the DRC
took due note that the Claimant, despite having allegedly been told that the Respondent
was no longer interested in his services, booked his own air ticket and travelled to country
D where, on 1 August 2012, he allegedly presented himself in order to participate in the
team’s training session. In this regard, the Chamber further observed that the Claimant was
allegedly told by the Respondent that he was not allowed to take part in the training
session.
14.
The DRC further noted that, on the other hand, the Respondent stated having
“terminated” the contract with the Claimant based on the Claimant’s alleged misconduct,
his lack of commitment, his absence without permission and his alleged involvement in a
criminal case (cf. point I.9 above).
15.
In this context, and again taking into consideration the aforementioned basic principle of
burden of proof, the Chamber noted that the Respondent was not able to provide any
type of documentary evidence proving any of the above-mentioned violations allegedly
committed by the Claimant (cf. point II.12 above), which it used to justify the nonexecution of the contract concluded between the parties on 31 December 2011.
16.
Furthermore, the DRC highlighted that it remained uncontested by the Respondent that it
failed to provide the Claimant with the relevant information as to the date of the start of
the trainings as well as with a flight ticket to enable the Claimant to join it at the start of
the contract and to fulfil his contractual obligations, in spite of having been reminded of
the foregoing by the Claimant by means of his letter dated 20 July 2012.
17.
On account of the above circumstances, the Chamber concluded that even though a valid
and binding contract had been duly concluded between the parties, the Respondent had
not complied with its obligation to provide the Claimant with the relevant information
and means to start executing such contract without any valid and proved reason.
18.
Based on the foregoing, the DRC came to the conclusion that the Respondent is to be held
liable for the non-execution of the employment contract at the basis of the present dispute
without just cause and that the Claimant is entitled to receive an amount of compensation
for the unjustified non-execution.
19.
In continuation, the Chamber focused its attention on the calculation of the amount of
compensation payable by the Respondent to the Claimant.
Player A, country B / Club C, country D
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20.
In doing so, the DRC took into account, inter alia, the remuneration due to the Claimant in
accordance with the employment contract, the time remaining of said contract as well as
the professional situation of the Claimant, after the impossibility to execute the contract
was ascertained.
21.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the employment contract due for its entire
validity. In this regard, the DRC observed that, according to art. 2 of the contract, the
Respondent undertook to pay the Claimant global remuneration in the amount of
USD 200,000.
22.
Furthermore, the DRC took into account that the Claimant had not signed any
employment contract with another club between 1 August 2012 and 31 May 2013,
i.e. during the entire validity of the contract with the Respondent.
23.
In view of the foregoing, the Chamber was of the opinion that, in case a valid and binding
contract does not come into force due to a failure which can be attributed to the
Respondent, the Claimant shall be entitled to receive compensation from the relevant club
in the amount of one forth to one third of the total value of the contract.
24.
In this respect, the DRC concluded that the amount USD 65,000 of compensation as well as
5% interest p.a. on said amount as from 6 February 2014 until the date of effective
payment, to be paid to the Claimant by the Respondent, was to be considered reasonable
and justified.
25.
Subsequently, the DRC analysed the Claimant’s request for the alleged remuneration due
in May 2012 (cf. point I.4 a) above). In this regard, the Chamber deemed it appropriate to
point out that the request for said remuneration amounting to USD 12,000 had no legal
basis or evidence that demonstrated that said amount was indeed due to the Claimant,
especially taking into consideration that the contract with the Respondent was supposed
to start at a later date, i.e. on 1 August 2012. On account of the aforementioned, the
Chamber decided that the request for the remuneration of May 2012 shall be rejected.
26.
Moreover, the Chamber analysed the request of the Claimant to be awarded
accommodation costs amounting to USD 1,086. In this regard, the DRC deemed it
appropriate to point out that the request for said amount had no legal basis, i.e. the
contract did not stipulate a specific amount for the Claimant’s accommodation. On account
of the aforementioned, the Chamber decided that the request for the accommodation
costs of USD 1,086 shall be rejected.
27.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the Claimant are rejected.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, is ordered to pay to the Claimant the amount of USD 65,000 plus
5% interest p.a. as from 6 February 2014 until the date of effective payment, within 30
days as from the date of notification of this decision.
Player A, country B / Club C, country D
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4.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. plus interest is not paid by the Respondent 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 claims lodged by the Claimant are rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of the account
number to which the remittances are to be made and to notify the Dispute Resolution
Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to article 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 A, country B / Club C, country D
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