Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 November 2015,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
Leonardo Grosso (Italy), member
John Bramhall (England), member
on the matter between the player,
Player A, country B
as Claimant
and the club,
Club C, country D
as Respondent
regarding an employment-related dispute
arisen between the parties
I. Facts of the case
1. On 28 June 2012, the player from country B, Player A (hereinafter: the Claimant)
and the club from country D, Club C (hereinafter: the Respondent), signed an
“Offer for the Player” (hereinafter: the contract offer) for the season 2012/2013.
2. According to the contract offer, the Claimant would be entitled, inter alia, to the
following remuneration:
- A monthly salary in the amount of 17,500;
- The amount of 1,712 for “each earned point”;
- The amount of 30,000 for earning 16 points during the “autumn round”;
- The amount of 60,000 for staying in the highest league of country D;
- The amount of 53,100 for finishing the season in the 4th position.
3. Subsequently, on 1 July 2012, the Claimant and the Respondent concluded a
“Professional Contract for the Practice of Football” (hereinafter: the contract),
valid as from the date of signature until 30 June 2013.
4. In particular, the contract entitled the player to a monthly salary in the amount of
“ 19.159 gross, corresponding to 16.400 net”.
5. Furthermore, §7 of the contract established the following:
“(…) Para la participación en los partidos disputados en el torneo de la
temporada primero división de país D 2012/2013 el jugador tiene derecho a la
recompensa en la cantidad de 2.000 brutos siendo 1.712 netos por cada punto
conseguido por el primer equipo que se pagarán en las siguientes proporciones:
a) 100% del importe si el JUGADOR disputa por lo menos 75 minutos en un
partido (…)
b) El importe del 75% del importe si el jugador disputa entre 45 a 75 minutos en
un partido (…), que es 1.500 brutos (…) siendo 1.284 netos
c) 50% del importe si el JUGADOR disputa entre 15 y 45 minutos en un partido,
que es de 1.000 brutos (…) siendo 856 netos
d) La cantidad de 25% si el JUGADOR es reserva o disputa menos de 15 minutos
en un partido que es de 500 brutos (…), siendo 428 .”
" ( ... ) For the participation in the matches of the 2012/2013 highest league of
country D, the player is entitled to a reward in the amount of 2,000 gross ,
corresponding to 1,712 net per point earned by the first team to be paid, as
follows:
a) 100 % of the amount if the [Claimant] participated in at least 75 minutes of
each match ( ... )
b ) the amount of 75 % of the amount if the player participated between 45-75
minutes in each match ( ... ), that is, 1,500 gross ( ... ) corresponding to 1,284 net.
c ) 50 % of the amount if the [Claimant] participated between 15 and 45 minutes
in each match, that is 1,000 gross ( ... ) corresponding to 856 net
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Player A, country B / Club C, country D
d ) The amount of 25 % if the player stayed in the reserve team or participated
in less than 15 minutes in each match, that is, 500 gross ( ... ), corresponding to
428 net.” (free translation from Spanish).
6. In addition, § 20 of the contract stipulated the following:
“Todo lo no previsto en este Contrato estará sujeto a las disposiciones emitidas
por la asociación de fútbol de país D, la UEFA o la FIFA, seguido por el Código
Civil. Cualquier controversia que pudiera derivarse de este contrato las partes se
someten a la decisión de las autoridades competentes del asociación de fútbol de
país D.”
"All matters not provided for in this Agreement shall be subject to the provisions
issued by the Football Association of country D, UEFA or FIFA, followed by the
Civil Code. Any dispute arising from this contract shall be subject to the decision
of the competent authorities of the Football Association of country D" (free
translation from Spanish).
7. On 9 October 2013, the Claimant lodged a claim before FIFA against the
Respondent, and requested the payment of an overdue amount of 221,852,
“plus corresponding interests”, detailed as follows:
- 78,752 corresponding to the sum of the 46 points earned by the Respondent;
- 30,000 corresponding to the fact that the Respondent reached at least 16
points during the “autumn round”;
- 60,000 for staying in the same category during the 2012/2013 season;
- 53,100 for finishing the 2012/2013 season in the 4th position.
8. The Claimant stated that, after signing and accepting the contract offer, he went
to country D, where the Respondent offered him to sign the contract in country
D’s language. According to the Claimant, he signed the contract in good faith,
despite not understanding country D’s language, without noticing that some of
the amounts stated in the contract offer were removed. In particular, the
Claimant explains that the payable bonuses as agreed upon in the contract offer,
were missing.
9. Consequently, the Claimant argued that the amounts included in the contract
offer are fully valid, as they have been agreed in writing and that he never
declared that he resigned from them. According to the Claimant, the general
principles of law do not allow a tacit resignation of rights.
10. In its reply, the Respondent denied FIFA’s competence on the matter.
Specifically, the Respondent considered that, according to § 20 of the contract,
the dispute should be considered by the Chamber for Solving Sports Disputes of
the Football Association of country D (hereinafter: country D’s NDRC).
11. After being requested by FIFA to provide additional evidence on the
competence, the Respondent provided a copy of the Article 1 of the “Resolution
no.1/3 of the Management Board of the Football Association of country D on
approving the Rules of the Chamber for Sports Dispute Resolutions”.
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Player A, country B / Club C, country D
12. In relation to the payment of the bonuses, the Respondent recognized their
existence in accordance with § 7 of the contract. However, the club considered
that, in accordance with §8 of the Regulations of the Respondent, such a bonus
is divided by “the Management Board of the Club at the request of the coach
and team manager”, and that therefore, they should only be awarded at their
own discretion.
13. Regarding the payments related to the contract offer, the Respondent
considered that this document is only an invitation to negotiation, and as such, is
not a part of the contract.
14. In his replica, the Claimant argued that it is not proved that the Chamber for
Solving Sports Disputes of the Football Association of country D respects the
principle of equal representation of players and clubs, and that it is even
unknown who are the arbitrators.
15. As to the substance, the Claimant insisted that the contract offer was fully valid
and binding, since it was signed by both parties and that he never explicitly
renounced to the terms of this document.
16. In its final comments, the Respondent insisted on the competence of the country
D’s NDRC.
17. In addition, the Respondent insisted that the payment of bonuses is of a
discretionary nature, but that nevertheless, the Claimant was paid additional
remuneration on 5 September 2012, 3 October 2012, 13 February 2013, “April”
2013 and 15 November 2013.
18. Furthermore, the Respondent considered that the contract offer does not
constitute a binding contract, and that only the contract should be valid. The
Respondent argued that it was the Claimant’s responsibility to verify the
contents and stipulations of the contract, including the issues related to the
language.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analysed whether it was competent to deal with the case at hand.
In this respect, it took note that the present matter was submitted to FIFA on 9
October 2013. Consequently, the 2012 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 of the 2012, 2014 and 2015 editions of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that, in accordance with art. 24 par. 1
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Player A, country B / Club C, country D
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players (edition 2015) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a player and a club that have an
international dimension.
3. As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves a player from
country B and a club from country D regarding an employment-related dispute.
4. However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of § 20 of the contract,
alleging that the competent body to deal with any dispute deriving from the
relevant employment contract is the Chamber for Solving Sports Disputes of the
Football Association of country D (hereinafter: country D’s NDRC).
5. In this regard, the Chamber acknowledged that the Claimant insisted on FIFA’s
jurisdiction to deal with the present matter, arguing that it is not proved that if
the country D’s NDRC would ensure a fair procedure respecting the principle of
equal representation of players and clubs.
6. Taking into account all the above, 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 Chamber
referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the
members of the Chamber 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 relation to the above, the Chamber also deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another
organ than the DRC is competence to settle an employment-related dispute
between a club and a player of an international dimension, is that the
jurisdiction of the relevant national arbitration tribunal or national court derives
from a clear reference in the employment contract.
8. Therefore, 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
contained a clear jurisdiction clause.
9. In this respect, the members of the Chamber recalled § 20 of the contract, which
reads as follows: “Todo lo no previsto en este Contrato estará sujeto a las
disposiciones emitidas por l’asociación de fútbol de país D, la UEFA o la FIFA,
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Player A, country B / Club C, country D
seguido por el Código Civil. Cualquier controversia que pudiera derivarse de este
contrato las partes se someten a la decisión de las autoridades competentes del
asociación de fútbol de país D.” (Free translation of the second sentence: “Any
dispute arising from this contract shall be subject to the decision of the
competent authorities of the Football Association of country D").
10. In this regard, the members of the Chamber observed that § 20 of the
employment contract does not refer to one 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’s NDRC
should be declared the arbitration tribunal competent to decide on the present
dispute, since the relevant clause did not contain a clear reference granting
jurisdiction to a specific arbitration tribunal.
11. As a result, and taking into consideration all of the above circumstances, the
Dispute Resolution Chamber concluded that the Respondent’s objection to the
competence of FIFA to hear the present dispute has to be rejected, and that the
Dispute Resolution Chamber is therefore competent, on the basis of art. 22 b) of
the Regulations on the Status and Transfer of Players, to consider the present
matter as to the substance.
12. The competence of the Chamber having been established, the Chamber 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, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2012, 2014 and 2015), and considering that the
present matter was submitted to FIFA on 9 October 2013, the 2012 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
13. Having established the foregoing, and entering into the substance of the
matter, the Chamber continued by acknowledging the above-mentioned facts as
well as the documentation contained in the file in relation to the substance of
the matter. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
evidence which it considered for the assessment of the matter at hand.
14. In continuation, the members of the Chamber observed, as acknowledged by the
parties, that, on 28 June 2012, a contract offer was signed by the Claimant and
the Respondent, for the season 2012/2013.
15. Furthermore, the Chamber also noted that, subsequently, on 1 July 2012, the
player and the club concluded a professional contract, valid as from the date of
signature until 30 June 2013.
16. In view of the above, the members of the Chamber understood that, on the
basis of the principle of “lex posterior derogat priori” and unless otherwise
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Player A, country B / Club C, country D
stated, a professional contract is deemed to supersede all previous offers and
understandings concluded between the parties. Consequently, the Chamber
established that only the contract concluded by the parties on 1 July 2012 could
serve as a basis for the dispute at stake.
17. Consequently, the Chamber decided that the claim of the Claimant for bonuses
which were stipulated in the contract offer, but not in the contract, has to be
rejected.
18. For the sake of completeness, the members of the Chamber also noted that,
according to the Claimant, the aforementioned contract had not been translated
to him, as a result of which he had no knowledge of the integrity it its contents.
In this regard, the Chamber deemed it fit to emphasise that a party signing a
document of legal importance without knowledge of its precise contents, as a
general rule, does so on its own responsibility. Consequently, the Chamber
concluded that such argument could not be upheld.
19. In continuation, the members of the Chamber noted that, according to §7 of the
contract, the Claimant was entitled to a series of bonuses per point earned by
the Respondent’s first team during its participation during the 2012/2013 season
of country D’s highest league.
20. In this respect, the Chamber recalled the basic principle of the burden of proof,
according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. In particular, the members of the Chamber
noted that the Claimant did not provide any evidence, in order to substantiate
that said bonuses were effectively due by the Respondent in the light of its
sporting results and the Claimant’s participation in the relevant matches.
Therefore, the Chamber decided to reject the Claimant’s request relating to
outstanding bonus payments.
21. In view of the above, the Dispute Resolution Chamber concluded its
deliberations by noticing that the Claimant made no further requests and that,
consequently, the claim must be rejected in full.
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Player A, country B / Club C, country D
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Player A, is admissible.
2. The claim of the Claimant is rejected.
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 (CAS)
Avenue de Beaumont 2
CH-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:
Markus Kattner
Acting Secretary General
Enclosed: CAS directives
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Player A, country B / Club C, country D