Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 12 December 2013,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Todd Durbin (USA), member
Theodoros Giannikos (Greece), member
on the claim presented by the player,
Player D, from country S
as Claimant
against the club,
Club C, from country R
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the case
1.
On 9 October 2007, Player D, from country S (hereinafter: the player or Claimant),
concluded an employment contract (hereinafter: the contract) with Club C, from
country R (hereinafter: the club or Respondent), valid as from 1 January 2008 until 30
June 2011.
2.
The contract provided for a net remuneration of EUR 1,750,000 payable as follows:
EUR 400,000 as a signing-on fee, a monthly salary of EUR 25,000 payable the 5th of the
following month, three instalments of EUR 100,000 payable on 1 July 2008, 1 July 2009
and 1 July 2010. Equally, the contract provided for rent allowance of EUR 600 and four
economy flight tickets every season.
3.
According to clause 12 of the contract any dispute in connection with the contract
including its validity, interpretation, execution or termination shall be submitted to
the competent bodies of the country R Football Association and the Professional
Football League.
4.
On 15 September 2009, the player contacted FIFA arguing that the club did not fulfil
its contractual obligations. In particular, the player asserts that he did not receive his
salaries for the months of June, July and August 2008, each in the amount of EUR
25,000 as well as the amount of EUR 100,000 due on 1 July 2008. As a result the player
claims the total amount of EUR 175,000 plus 5% default interest on the claimed
amounts.
5.
In its answer to the claim, the club informed FIFA that the player left the club without
any justification during the period of July and August 2008. Therefore, the club
sanctioned the player with a fine amounting to EUR 40,000. In this respect, the club
provided a copy of a decision taken by the club’s board on 28 August 2008. According
to said decision the penalty in the amount of EUR 40,000 corresponds to 10% of the
player’s salary for the year 2008 and the sanction is based on the internal Rules of the
club and the Disciplinary Rules of the country R Football Association. With regard to
the bonus the club emphasized that such bonus was related to the season 2008/2009,
however the player was transferred at the beginning of the relevant season to Club R,
from country N. As a result, the club deems that the bonus is not due to the player.
Finally the club deems that it does not owe any amount at all to the player.
6.
In his reply, the player contested the club’s position and emphasized that during
summer he was participating in the UEFA Euro 2008 and thus he was authorised to
join the club towards the end of July. Also the player explained that the club
authorized him to travel to country R in July for trials in connection with a potential
transfer. Yet, since he did not agree to be transferred to country R the club asked him
to train with the reserve team and even asked him to stop training at all with the club.
Player D, from country S / Club C, from country R
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Moreover, the player explains that in August 2008 the negotiations for his transfer to
country N started and that finally he was transferred on 28 August 2008. During this
time he was never contacted by the club and asked to return since the club was no
longer interested in his services. With regard to the fine of EUR 40,000 the player
pointed out that he was never aware of any proceeding and never had the
opportunity to defend himself.
7.
For its part, the club emphasized that FIFA had no jurisdiction to deal with the present
dispute since at national level in country R there is the National Dispute Resolution
Chamber of the country R Football Federation and the Dispute Resolution Committee
of the country R Professional Football League. The parties clearly agreed upon the
competence of said bodies according to clause 12 of the contract. Moreover, the club
provided a copy of a decision passed by Dispute Resolution Chamber (DRC) of FIFA on
16 July 2009 in the case Player T, from country P / Club C, country R, in which the DRC
concluded that the club was able to prove that, for the period comprehended
between October 2008 and January 2009, the arbitration body at national level in
country R met the minimum procedural standards for independent arbitration
tribunals as requested by FIFA. Also, the club submitted a copy of the 2009 Regulations
on the Status and Transfer of Players approved by the country R Football Federation
Executive Committee, which, inter alia, stipulates that cases involving clubs that
participate in the First League National Championship and their players shall be
determined exclusively by the judicial bodies of the country R Professional Football
League according to the annual agreement between the country R Football Federation
and the country R Professional Football League. Furthermore, it is stated that the
country R Professional Football League DRC and the country R Professional Football
League Review Commission are formed of five members, two of them acting as
chairman and deputy chairman, respectively. Moreover, the club submitted a letter of
the country R Football Federation outlining that its DRC complied with art. 22 b) of the
Regulations on the Status and Transfer of Players.
8.
Finally, and in case FIFA would deem that it is competent to pass a decision, the club
deems that it has no debts towards the player since according to the national Transfer
Regulations approved by the country R Executive Committee in May 2008 and in force
since July 2010 any contractual obligation of the assignor club towards the definitively
transferred player ends at the date of the transfer, except for obligations provisioned
in the transfer agreement.
9.
As to the competence the player deems that FIFA is competence since it is an
international dispute.
****
Player D, from country S / Club C, from country R
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II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the matter at stake. In this
respect, it took note that the present matter was submitted to FIFA on 15 September
2009. Consequently, the 2008 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2008 and 2012
edition 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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) the
Dispute Resolution Chamber shall, in principle, adjudicate on employment-related
disputes between a club and a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be competent
to decide on the present litigation involving a country S player and a country R club
regarding an employment-related dispute in connection with the employment
contract concluded between the aforementioned parties.
4.
However, the Chamber acknowledged that the Respondent contested the competence
of FIFA’s deciding bodies on the basis of clause 12 of the employment contract and
alleging that at national level in country R there is the National Dispute Resolution
Chamber of the country R Football Federation and the Dispute Resolution Committee
of the country R Professional Football League.
5.
In this respect, the Chamber emphasised that in accordance with art. 22 lit. b) 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.
6.
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
jurisdiction clause.
7.
The members of the Chamber turned their attention to clause 12 of the contract,
which stipulates that “Any dispute between the Parties arising from or in connection
with this Agreement, including its validity, interpretation, execution or termination,
Player D, from country S / Club C, from country R
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shall be settled amicably. Unless the Parties reach an amicable resolution then any such
dispute shall be submitted to the competent bodies of the country R Football
Association and the Professional Football League”.
8.
In view of the aforementioned clause, the members of the DRC were of the opinion
that clause 12 of the employment contract does not make clear reference to one
specific national dispute resolution chamber in the sense of art. 22 lit. b) of the
aforementioned Regulations. Therefore, the members of the Chamber deem that said
clause can by no means be considered as a clear arbitration clause in favour either of
the national deciding bodies, i.e. of the country R Football Federation or the country R
Professional Football League. The members of the Chamber further outlined that the
content of clause 12 is rather vague, differs between different unspecified judicial
bodies and that it does not explicitly refer to a national dispute resolution chamber or
any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned
Regulations. In view of the foregoing, the Chamber held that the jurisdiction of the
National Dispute Resolution Chamber of the country R Football Federation does not
derive from a clear reference in the employment contract.
9.
Having established that the first criteria for the recognition of the competence of a
national decision-making body is not fulfilled in the present matter, the Chamber
deemed unnecessary to examine any further points which would need to be assessed
before concluding to the competence of another deciding body.
10.
In view of the above, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter had to be rejected and that the
DRC 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 continuation, the Chamber analysed which edition of 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 on the Status and Transfer
of Players (editions 2008 2009, 2010, 2012) and considering that the present claim was
lodged on 15 September 2009, the 2008 edition of said Regulations is applicable to the
present matter as to the substance.
12.
The competence of the Dispute Resolution Chamber and the applicable regulations
having been established, the Chamber entered into the substance of the matter. In
doing so, it started by acknowledging the above-mentioned facts as well as the
documentation 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.
10.
In this respect, the members of the Chamber acknowledged that the parties had
signed an employment contract valid as from 1 January 2008 until 30 June 2011 in
Player D, from country S / Club C, from country R
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accordance with which the Respondent would pay the Claimant, inter alia the amount
EUR 400,000 as a signing-on fee, a monthly salary of EUR 25,000 payable the 5th of the
following month, three instalments of EUR 100,000 payable on 1 July 2008, 1 July 2009
and 1 July 2010.
11.
In continuation, the Chamber noted that the Claimant alleged that the Respondent
had failed to fulfil its contractual obligations. In particular, the Claimant asserted that
he did not receive his salaries for the months of June, July and August 2008, each in
the amount of EUR 25,000 as well as the amount of EUR 100,000 due on 1 July 2008.
Consequently, the Claimant asked to be awarded with the payment of the total
amount of EUR 175,000 plus 5% default interest on the claimed amount.
12.
Equally, the Chamber took note of the reply of the Respondent, which asserted that
the Claimant left the club without any justification during the period of July and
August 2008 and therefore, the Claimant was sanctioned with a fine amounting to
EUR 40,000. In this respect, the Respondent provided a copy of a decision taken by the
club’s board on 28 August 2008. According to said decision the penalty of EUR 40,000
corresponds to 10% of the player’s salary for the year 2008 and the sanction is based
on the internal Rules of the club and the Disciplinary Rules of the country R Football
Association. With regard to the bonus the Respondent emphasized that such bonus
was related to the season 2008/2009, however the Claimant was transferred at the
beginning of the relevant season to the Club R, from country N.
13.
With due consideration to the above, the Chamber acknowledged that the
Respondent deemed that it does not owe any amount at all to the Claimant.
14.
At this point and for the sake of good order, the Chamber recalled 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 from an alleged fact shall carry the respective burden of
proof. In this context, the Chamber deemed that the Respondent bore the burden of
proof regarding either the fulfilment of all its financial obligations towards the
Claimant, as per the contract, or the justification for the non-payment based on
substantial documentary evidence.
15.
In this regard, the Chamber noted that the Claimant, on the one hand, emphasized
that during the summer he was participating in the UEFA 2008 and thus he was
authorised to join the club towards the end of July. Also the player explained that the
club authorized him to travel to country R in July for trials in connection with a
potential transfer. Yet, since he did not agree to be transferred to country R the club
asked him to train with the reserve team and even asked him to stop training at all
with the club. Moreover, the player explained that in August 2008 the negotiations
for his transfer to country N started and that finally he was transferred on 28 August
2008.
Player D, from country S / Club C, from country R
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16.
In this respect, the Chamber started by emphasizing, based on the documents and
statement on file, that it remains uncontested that during summer 2008 the Claimant
was participating in the UEFA Euro 2008 and was authorised to join the Respondent
towards the end of July 2008. Thereafter, he returned to the club and participated in
the Respondent’s trainings until his transfer to a third club on 28 August 2008.
17.
The Chamber also observed that the Respondent, on the other hand, was not able to
provide the DRC with any type of substantial evidence to justify the non-payment of
the contractual remuneration as of June 2008.
18.
The Chamber further wished to point out that, in any case, the fines imposed on the
Claimant for alleged wrongdoing in relation to his alleged unauthorized absence, not
supported by substantial evidence in this regard, and amounting to 10% of his
earnings for an entire season must be considered disproportionate and therefore not
applicable.
19.
In this context, and irrespective of the foregoing consideration, the Chamber was
eager to emphasize that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a means to set off outstanding
financial obligations towards players. Consequently, the Chamber decided to reject the
Respondent’s argument in this regard.
20.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the employment contract
concluded with the Claimant during the time the latter renders his services to the
Respondent. Consequently, the Claimant is entitled to receive the contractual
remuneration until the end of August 2008, in particular, the salaries for the months
of June, July and August as well as the instalment due on 1 July 2008.
21.
For all the above reasons, the member of the Chamber decided to accept the claim of
the Claimant and to hold the Respondent liable to pay the Claimant the amount of
EUR 175,000, plus 5% interest p.a. as from 15 September 2009 until the date of
effective payment, as outstanding remuneration.
****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player D, is admissible.
2.
The claim of the Claimant is accepted.
Player D, from country S / Club C, from country R
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3.
The Respondent, Club C, is ordered to pay to the Claimant the amount of EUR 175,000
within 30 days as from the date of notification of this decision, plus 5% interest p.a.
as from 15 September 2009 until the date of effective payment.
4.
If the aforementioned amount plus interest is not paid within the above-mentioned
time limit, the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for its 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 Dispute
Resolution Chamber 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 Dispute Resolution Chamber:
Jérôme Valcke
Secretary General
Encl. CAS Directives
Player D, from country S / Club C, from country R
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