Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 6 November 2014,
by Theo van Seggelen (Netherlands), DRC judge,
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 30 August 2011, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent) concluded an
employment contract (hereinafter: the contract) valid as of the date of the
signature until 30 June 2012. In accordance with the contract, the Claimant was
entitled to a monthly salary of EUR 839.
2.
On the same date, both parties entered into a private agreement according to
which the Claimant was entitled to receive EUR 35,000 as well as a bonus of EUR
5,000 in the event that the Respondent would be promoted to the Country D Super
League.
3.
On 21 May 2012, both parties signed a private contract (hereinafter: the agreement)
which stipulates the following:
“[The Respondent] recognizes that the rest amount for the football season 20112012 to be paid to [the Claimant] is 10.000,00 €. The above mentioned amount
regards the salary of the player. This amount will be paid to the player until the 30 th
August 2012.
Also [the Respondent] recognizes the amount of 5.000,00 € which concerns the
bonus of promoting to the Country D Super League. This amount will be paid to the
player until the 30th September 2012.
Both parties agree and declare that they will not have any other future financial
demand”.
4.
According to the translation provided by the Claimant, art. 10 of the contract states
that “Cada controversia entre las partes será resuelta por la Cámara de Primer
Grado de Resolución de Disputas Económicas y en Segundo grado por el Tribunal
Arbitral de la Federation de Futbol del paìs D” (free translation: Any dispute
between the parties will be settled by the Chamber for the Resolution of Financial
Disputes of first instance, and the Court of Arbitration of the Football Federation of
country D at second instance).
5.
On 25 March 2014, the Claimant lodged a claim before FIFA indicating that the
Respondent had not yet fulfilled all its obligations in connection with the
agreement and, in particular claimed the outstanding amount of EUR 7,000, plus
interest.
6.
In its reply to the Claimant’s claim, the Respondent solely argues that, according to
art. 10 of the employment contract, the Committee for the Resolution of Financial
Disputes has exclusive jurisdiction in all disputes between the Respondent and the
Claimant, in accordance with art. 22 of the FIFA Regulations. In this respect, the
Respondent provided a copy of the 2009 edition of the Statutes of the Football
Federation of country D as well as an extract of the 2008 edition of the Football
Federation of country D Regulations on the Status and Transfer of Players.
Therefore, the Respondent argues that the claim of the Claimant is inadmissible.
Player A, country B / Club C, country D
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7.
In his final comments, the Claimant rejects the jurisdiction of the Committee for the
Resolution of Financial Disputes. First of all, the Claimant contests the impartiality of
the Committee for the Resolution of Financial Disputes to decide on a matter
involving a foreign party. Subsequently, the Claimant sustains that the obligations
made to the claimant to pay the expenses and fees foreseen and to attend the
hearing are contrary to his right of free access to justice. In addition, the Claimant
asserts that the jurisdiction clause has to be deemed null and void as the latter
clause is imposed by one party and does not result from a negotiation between
both parties.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (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 25 March 2014. Consequently, the DRC
judge concluded that the 2012 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 2 and 3 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 2014) the DRC judge shall adjudicate on employment-related
disputes between a club and a player that have an international dimension.
3.
As a consequence, the DRC judge would, in principle, be the competent body to
decide on the present litigation involving a player from country B and a club from
country D regarding an outstanding amount based on a debt acknowledgment
derived from the employment contract and the private agreement concluded
between the aforementioned parties.
4.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause 10 of the employment
contract according to which the Committee for the Resolution of Financial Disputes
of the Football Federation of country D has exclusive jurisdiction to deal with
employment-related dispute between the Respondent and the Claimant.
5.
In this regard, the DRC judge noted that the Claimant rejected such position and
insisted on the fact 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 2012 edition of the Regulations on the Status and Transfer of
Players he is competent to deal with a matter such as the one in hand, unless an
independent arbitration tribunal, guaranteeing fair proceedings and respecting the
principle of equal representation of players and clubs, has been established at
Player A, country B / Club C, country D
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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 the FIFA Circular no. 1010 dated 20 December 2005. In this regard, he
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.
In this context, and while analysing whether he was competent to hear the present
matter, the Dispute Resolution Chamber deemed it of utmost importance to
highlight that the present dispute pertains to the execution of the agreement
signed by the parties with the aim of settling an existing debt.
8.
Having said this, the DRC judge turned to the contents of the agreement, which is
the basis of the present dispute between the Claimant and the Respondent. In this
respect, he noted that the agreement, which is the result of a foregoing
employment contract, does not include any exclusive jurisdiction clause or any
reference to a national arbitration body in case of a dispute between the parties.
9.
Hence, the agreement clearly does not refer to a national dispute resolution
chamber or any similar arbitration body in the sense of art. 22 lit. b) of the
aforementioned Regulations. Therefore, the DRC judge deemed that there is no
existence of an exclusive jurisdiction clause in the agreement which would preclude
the Chamber from adjudicating on the present dispute.
10.
In view of all the above, the DRC judge established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected,
and that he is competent, on the basis of art. 22 lit. b) of the Regulations on the
Status and Transfer of Players, to consider the present matter as to the substance.
11.
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 he may adjudicate in
the present dispute which value does not exceed CHF 100,000.
12.
Furthermore, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations (editions 2012 and 2014) and considering that the present claim was
lodged in front of FIFA on 25 March 2014, the 2012 edition of the Regulations on
the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the
matter at hand 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. The DRC judge
started by acknowledging the above-mentioned facts of the case as well as the
documentation contained in the file. However, the DRC judge emphasised that in
Player A, country B / Club C, country D
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the following considerations he will refer only to facts, arguments and documentary
evidence which he considered pertinent for the assessment of the matter at hand.
14.
In this respect, he recalled that on 21 May 2012, both parties concluded an
agreement by means of which the Respondent acknowledged its debt towards the
Claimant and undertook to pay him EUR 15,000 in two instalments: EUR 10,000 by
30 August 2012 and EUR 5,000 by 30 September 2012.
15.
The DRC judge then turned to the claim of the Claimant, who maintained that the
Respondent failed to pay him EUR 7,000 out of the EUR 15,000. Consequently, the
Claimant asked that the Respondent be instructed to pay the amount of EUR 7,000
plus interest.
16.
On the other hand, the DRC judge noted that the Respondent, for its part, had
failed to submit its position as to the substance of the present matter, in spite of
having been invited to do so. In this way, the DRC judge deemed that the
Respondent renounced to its right to defence and thus, accepted the allegations of
the Claimant.
17.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take
a decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
18.
Taking into account the documentation presented by the Claimant in support of his
positions, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to outstanding salaries with sufficient documentary evidence.
19.
Hence, the Chamber established that the Respondent had failed to remit to the
Claimant part of the amounts that he undertook to pay him on 21 May 2012.
Consequently, the DRC judge decided that the Respondent, in virtue of the general
legal principle of “pacta sunt servanda”, is liable to pay the total amount of EUR
7,000 to the Claimant.
20.
Concerning the interests claimed by the Claimant, the DRC noted that the contract
did not provide for any specific interest rate in case of late payment. Consequently,
the DRC decided to award, in accordance with the constant practice of the Dispute
Resolution Chamber, default interest at a rate of 5% p.a. to the Claimant as from 25
March 2014, i.e. the date of the claim.
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is admissible
2.
The claim of the Claimant is accepted.
Player A, country B / Club C, country D
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3.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, the amount of EUR 7,000 plus 5% interest p.a.
on said amount as from 25 March 2014 until the date of effective payment.
4.
In the event that the amount plus interest due to the Claimant in accordance with
the above-mentioned point 3 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.
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 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 DRC judge:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player A, country B / Club C, country D
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