Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 24 November 2016,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Takuy a Yam akazi (Japan), member
on the claim presented by the player,
Play er A, Country B
as Claimant / Counter-Respondent
against the club,
Club C, Country D
as Respondent / Counter-Claimant
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 29 January 2015, the Player of Country B, Player A (hereinafter; the player)
and the Club of Country D, Club C (hereinafter; Club C) (hereinafter jointly
referred to as, the parties) signed an employment contract valid as from 1
February 2015 until 30 June 2015.
2.
Pursuant to clause 3.1 of the contract, the player was entitled to a total
remuneration of EUR 20,000, broken down as follows:
- EUR 4,000 payable “until 20.02.2015”;
- EUR 16,000 payable in four installments of EUR 4,000 each “payable at
20.03.2015, 20.04.2015, 20.05.2015 and 20.06.2015”.
3.
According to clause 3.2 of the contract, Club C was obliged to “pay 250 euro net
in every month to the player” as housing expenses.
4.
Moreover, clause 4.2.22 of the contract forbids the player to participate, inter alia,
in bets.
5.
For its part, clause 9.1 of the contract stipulates that in case of a dispute in
connection with execution or non-execution of the contract’s obligations “the
parties have the right to address to Football Federation E / FIFA / CAS jurisdictional
bodies, according to the provisions of Football Federation E/FIFA/CAS Charter and
Regulations, or to submit it to the courts of general jurisdiction.”
6.
In addition, clause 9.2 of the contract reads as follows:
“In case sports Jurisdiction of Country D is chosen by any part, after the dispute is
judged by National Dispute Resolution Chamber and Appeal Commission, the
unsatisfied party may appeal the decision at TAS/CAS.”
7.
Equally, clause 10.3 of the contract provides for the following:
“To the provisions of this Agreement the provisions of the Law no. 69/2000 with
the further amendments and supplementings (sic) shall apply as well as the entire
Law of Country D including Law no. 85/2006 of insolvency and Civil Code of
Country D.”
8.
According to clause 12 of the contract, in case of disputes regarding the
applicable law, the Law of Country D shall prevail.
9.
On 31 March 2015, Club C lodged a claim against the player in front of the
National Dispute Resolution Chamber (NDRC) of the Football Federation of
Country D (Football Federation E) requesting the termination of the contract with
Player A, Country B / Club C, Country D
Page 2 of 9
just cause by Club C, based on the breach by the player of clause 4.2.22 of the
contract.
On 17 April 2015, the NDRC of the Football Federation E notified the parties that
the claim lodged by Club C would be examined on 6 May 2015.
10.
11.
After having done so on 31 March 2015, on 20 April 2015, the player put Club C in
default for a second time for not having paid his salaries of February and March
2015 and the housing expenses of February 2015, as a result of which the amount
of EUR 8,250 was due.
12.
On 21 April 2015, the player served Club C a notice of termination on the basis of
the lack of payment of three monthly salaries as well as three months of housing
expenses in the amount of EUR 12,750. The player further requested the
remaining value of his contract in the amount of EUR 8,000.
13.
On 16 April 2015, and amended on 5 May 2015, the player lodged a claim in front
of FIFA against Club C requesting, inter alia, the total amount of EUR 20,750,
which was detailed as follows:
14.
-
EUR 12,750 for outstanding salaries, broken down as follows:
EUR 4,000 for the salary “per 20 February 2015 plus 5% interest as of 30
March 2015”;
EUR 4,000 for the salary “per 20 March 2015 plus 5% interest as of 30
April 2015”;
EUR 4,000 for the salary “per 20 April 2015 plus 5% interest as of 30 April
2015”;
EUR 750 for the housing expenses of ”3 month’s rent” plus 5% interest as
of 30 April 2015 ;
-
EUR 8,000 as compensation for breach of contract plus 5% interest “as of the
date of decision”.
On 5 May 2015, the player replied to Club C’s claim in front of the NDRC of the
Football Federation E and within the same, lodged a counterclaim against Club C
requesting the amount of EUR 20,750 comprised of the following:
Outstanding salaries for the months of February, March and April
2015;
“Rent for the period February – April 2015”;
EUR 8,000 as “damages”.
15.
On 22 July 2015, the NDRC of the Football Federation E issued a decision whereby
it accepted the claim of Club C, declared the termination of the contract between
the parties due to the player’s fault and rejected the counterclaim of the player.
Player A, Country B / Club C, Country D
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Preliminary issues of competence
16.
In its reply to the claim of the player in front of FIFA, Club C firstly argued that, on
6 February 2013, it entered into an insolvency procedure and recalled the contents
of clause 10.3 of the contract which establishes the applicability of the Law of
Country D and the jurisdiction of the local courts in virtue of Law of Country D no.
85/2006 in connection with Law no. 69/2000.
17.
According to Club C, by signing the contract “the player implicitly accepted […]
the exclusive subject matter jurisdiction of the Tribunal of Municipality F” over
any other court. Having said this, Club C outlined that this tribunal is exclusively
competent regarding any patrimonial dispute it may have in accordance with
article 36 of the Insolvency Law - Law 85/2006.
18.
In continuation, Club C stressed that it lodged a claim against the player in front
of the NDRC of the Football Federation E on 31 March 2015 “having as object the
termination with just cause“ of the contract. Club C declared that the player
infringed the provision contained in clause 4.2.22 and, therefore, requested the
NDRC of the Football Federation E to declare the termination of the contract with
just cause.
19.
In this regard, Club C explained that, on 22 July 2015, the NDRC of the Football
Federation E took a decision in which: (i) the motion presented by the player for
lack of jurisdiction of the NDRC of the Football Federation E was dismissed, (ii) the
motion presented by the player requesting the “joinder” was dismissed, (iii) the
counterclaim of the player, lodged on 5 May 2015, requesting EUR 20,750 was
dismissed and (iv) the Club C’s request for the contract’s termination with just
cause as of 17 March 2015 was upheld.
20.
Consequently, Club C argued that the claim presented by the player in front of
FIFA should be disregarded since the contractual relationship has been already
terminated by a competent court and is, therefore, res iudicata.
21.
In his reply as to the competence issue, the player argued that clause 9.2 of the
contract does not refer to a specific national dispute resolution chamber.
Moreover, he emphasised that the NDRC of the Football Federation E does not
guarantee fair proceedings nor equal representation of players and clubs and
thus, insisted in FIFA’s competence.
22.
The player further highlighted that he disputed the competence of the NDRC of
the Football Federation E in the proceedings carried out in front of the latter
tribunal. Furthermore, the player remarked that the decision of the NDRC of the
Football Federation E is not final and binding since he was not properly notified
of such decision.
Player A, Country B / Club C, Country D
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23.
As to the res iudicata claimed by Club C, the player asserted that:
The claims are not identical since (i) the case in front of the NDRC of the
Football Federation E dealt with the participation of the player in betting
activities and, subsequently, his breach of contract and (ii) the claim in
front of FIFA is for the outstanding salaries owed to the player by Club C
and the compensation for breach of contract against Club C after the
termination on 21 April 2015;
The decision of the NDRC of the Football Federation E only declared the
termination of the contract and therefore it did not entertain his
counterclaim for the aforementioned outstanding salaries and
compensation for breach of contract;
The decision passed by the NDRC of the Football Federation E “is not final
and binding”.
Issues related to the substance of the matter:
24.
In its response as to the substance of the player’s claim, Club C emphasised that
the player violated the obligations contained in his contract, more specifically
clause 4.2.22. In this regard, Club C explained that on 17 March 2015 the player
was photographed in a house of bets which was reported in the media.
Therefore, it decided to lodge a claim in front of the NDRC of the Football
Federation E to terminate the contract.
25.
As for the amount claimed by the player, Club C asserted that the violation of the
contract by the player entitles it “to refuse the execution of its own obligation”,
since it remained with a man less for the time the dispute lasted. Club C also
states that it paid the player an amount of 4,400 on 18 February 2015.
26.
On account of all of the above, Club C deemed that the player breached his
contract and therefore lodged a counterclaim against the player, subsidiary to its
main request regarding the lack of competence of the DRC, asking EUR 8,000 as
compensation.
27.
In his reply to the counterclaim lodged by Club C, the player firstly declared that,
after Club C’s former coach was fired, Club C was not interested in his services
anymore.
28.
As for the allegations regarding his presence in a house of betting, the player
admits his presence but underlines that the matter was not properly investigated.
29.
In addition, the player asserted that Club C failed to prove that he had betted on
football matches and that no investigation nor sanction has been started against
him by the Football Federation E. Consequently, the player deems that the
compensation claimed by Club C is unfounded.
Player A, Country B / Club C, Country D
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30.
Finally, the player acknowledged the payment of 4,440.
31.
Upon request of FIFA, the player informed that that he did not sign a new
employment contract with any other club after “he left [Club C]”.
32.
On 3 October 2016, the Football Federation E informed FIFA that the decision of
the NDRC of the Football Federation E dated 22 July 2015 had not been properly
notified to the player.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, 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 16 April
2015. Consequently, the 2015 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 stake (cf. art. 21 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 and 2. in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016), the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Player of Country B
and a Club of Country D.
3.
Nevertheless, the Chamber was of the opinion that before entering into the
substance of the matter and while exercising its duty to analyse ex officio the
admissibility of every claim lodged in front of it, the question of res iudicata
needed to be addressed in view of the claim that Club C lodged against the
player and the counterclaim of the latter against the former in front of the
NDRC of the Football Federation E.
4.
Along those lines, the Chamber focused its attention on the content of the
decision rendered by the NDRC of the Football Federation E on 22 July 2015
from which it can be concluded the following:
a. On 31 March 2015, Club C lodged a claim against the player requesting a
declaration that its termination of the contract was with just cause in
view of some alleged disciplinary faults committed by the player;
b. On 5 May 2015, the player lodged its reply to said claim arguing that the
NDRC of the Football Federation E was not competent to deal with the
case. Nevertheless, he also lodged a counterclaim against Club C
Player A, Country B / Club C, Country D
Page 6 of 9
requesting the same amounts he is requesting in the proceedings in
front of this Chamber;
c. In its decision, the NDRC of the Football Federation E upheld the claim
of Club C and rejected the counterclaim of the player.
5.
With the above considerations in mind, the Chamber wished to 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 on it.
Indeed, the parties to the dispute as well as the deciding authority are bound by
the final and binding decision previously passed.
6.
Furthermore, the Chamber underlined that the principle of res iudicata is
applicable if, cumulatively and necessarily, the parties to the dispute as well as
the object and the cause of the matter in dispute are identical.
7.
In this context, the DRC pointed out that in the present case, indeed, all three
elements in order for the principle of res iudicata to configure are present. In
particular, the parties, i.e. the player and Club C, the object, i.e. the termination
of the contract by Club C together with the consequences thereof, and the
cause, i.e. the alleged disciplinary faults committed by the player in the
proceeding carried out in front of the NDRC of the Football Federation E and the
present one before the DRC, are identical. Moreover, the members of the
Chamber highlighted that neither of the parties argued having appealed the
aforementioned decision of the NDRC of the Football Federation E, which
therefore appears to be now final and binding.
8.
Furthermore, the members of the Chamber wished to emphasise that, even if
the player appeared to have objected the competence of the NDRC of the
Football Federation E, at the same time, he lodged a counterclaim against Club C
within said proceedings requesting the exact same amounts he is herein
requesting. In the Chamber’s view, these actions of the player are a violation of
the principle venire contra factum proprium. Indeed, it is inconsistent for a party
to claim that the deciding-body before which it lodged a claim, or as in the
present case a counterclaim, was not competent to adjudicate it as to the
substance. In this regard, it was neither argued by the player nor the
documentation on file appears to show that the player’s counterclaim in front of
the NDRC of the Football Federation E was somehow subsidiary to his objection
to the competence of said national deciding body. Along these lines, the
Chamber considered that the actions of the player amount to an attempt of
forum shopping which must not be permitted.
9.
The DRC then concluded that the same reasoning applies in relation to the
counterclaim lodged by Club C against the player in these proceedings.
Player A, Country B / Club C, Country D
Page 7 of 9
10.
Finally, the members of the Chamber wished to underline that FIFA’s DRC is not
an appeal body of decisions rendered by national decision-making bodies.
Therefore, the DRC is not in a position to review neither the proceedings nor the
decisions rendered at national level. Thus, in casu, any potential challenge to the
validity or rightfulness of the decision rendered by the NDRC of the Football
Federation E should have been taken to the competent appeals body.
11.
On account of all the aforementioned considerations, the DRC reiterated that, in
view of the principle of res iudicata, it was prevented from entering into the
substance of both the claim of the player against Club C and the counterclaim of
the latter against the former. Consequently, both are inadmissible.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Player A, is inadmissible.
2.
The counterclaim of the Respondent / Counter-Claimant, Club C, is inadmissible.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 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).
Player A, Country B / Club C, Country D
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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:
Marco Villiger
Deputy Secretary General
Encl. CAS Directives
Player A, Country B / Club C, Country D
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