Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 18 December 2012,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player S, from country R
as Claimant
against the club,
Club L, from country C
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 29 January 2009, Player S, from country R (hereinafter: the Claimant), and Club
L, from country C (hereinafter: the Respondent), concluded an employment
contract (hereinafter: the contract), valid as from the date of signature until 31
May 2009.
2.
The contract provided that the Claimant was entitled to a total remuneration of
EUR 20,000 net, payable in 4 equal instalments of EUR 5,000 each. In addition, the
Claimant was entitled to accommodation “up to a price of EUR 500 per month”.
3.
Art. 14 of the contract provided that the Claimant agreed “to adhere to the Rules,
Regulations and Bye-Laws of the country C Football Association and/or of the
Dispute Resolution Committee of the country C Football Association in case of any
grievance or dispute with the club”.
4.
On 28 December 2009, the Claimant lodged a claim against the Respondent in
front of FIFA indicating that the Respondent only paid the first instalment of
EUR 5,000 as well as EUR 500 regarding the first rent payment. Consequently, the
Claimant, after amending his claim, requested to be awarded with EUR 15,000,
corresponding to the salaries of March, April and May 2009.
5.
The Claimant added that during the month of March 2009, he received a cheque
for EUR 1,000, however, it was not covered by any funds.
6.
In its reply, the Respondent firstly disputed the jurisdiction of FIFA, referring to
art. 14 of the contract, stressing that the Dispute Resolution Committee of the
country C Football Association is the competent body to decide on the present
matter.
7.
As to the substance of the matter, the Respondent stated that it honoured the
contract and that there are no outstanding amounts payable to the Claimant.
8.
Upon request, the country C Football Association provided FIFA with its
Regulations for the Registration and Transfer of Football Players of the country C
Football Association (hereinafter: the country C Regulations; that came into force
on 15 June 2005). According to the country C Regulations, the Dispute Resolution
Committee (hereinafter: NDRC) is composed of five members, namely the
Chairman, the Vice-Chairman and one member, all appointed by the Executive
Committee of the country C Football Association and two members appointed by
the country C Football Players’ Association (art. 22.1.1 and art. 22.1.3).
Player S, from country R / Club L, from country C
Page 2 of 7
9.
The decisions are taken by simple majority (art. 22.8.1), subsequent to a summary
and written procedure (art. 22.13.1 and art. 22.13.3). Clubs affiliated to the
country C Football Association, football players and other interested persons are
entitled to lodge a claim before the NDRC (art. 22.13.5). Any decision of the NDRC
may be appealed to the Disciplinary Authority of the country C Football
Association, which shall reach a final decision (art. 22.10).
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, the DRC judge referred
to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2008; hereinafter:
Procedural Rules) and took note that the present matter was submitted to FIFA on
28 December 2009, thus after 1 July 2008. Consequently, the DRC judge concluded
that the 2008 edition of the Procedural Rules is applicable to the matter at hand.
2.
With regard to the competence of the DRC judge, art. 3 par. 1 and par. 2 of the
Procedural Rules state that the DRC judge shall examine his jurisdiction in the
light of art. 22 to 24 of the Regulations on the Status and Transfer of Players
(edition 2012). In accordance with art. 24 par. 1 and par. 2 lit. i. in combination
with art. 22 lit. b) of the aforementioned Regulations, the DRC judge would, in
principle, be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a country
R player and a country C club.
3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. 14 of the employment
contract highlighting that the parties to the contract had agreed to submit any
dispute to the Dispute Resolution Committee of the country C Football
Association.
4.
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 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
judge 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
Player S, from country R / Club L, from country C
Page 3 of 7
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force
on 1 January 2008.
5.
In this context, the DRC judge wished to stress that the Respondent was unable to
prove that, in fact, the country C Football Association “Dispute Resolution
Committee” meets the minimum procedural standards for independent
arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations.
6.
In this respect, the DRC judge referred to the jurisprudence of the Dispute
Resolution Chamber, which already, on several occasions, established that the
country C Football Association “Dispute Resolution Committee” does not meet
the minimum procedural standards for independent arbitration tribunals as laid
down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players. In
this regard, the DRC judge, as previously done by the DRC, referred to the
principle of equal representation of players and clubs and underlined that this
principle was one of the very fundamental elements to be fulfilled, in order for a
national dispute resolution chamber to be recognised as such. Indeed, this
prerequisite is mentioned in the Regulations on the Status and Transfer of Players,
in the Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which
illustrates the aforementioned principle as follows: “The NDRC shall be composed
of the following members, who shall serve a four-year renewable mandate: a) a
chairman and a deputy chairman chosen by consensus by the player and club
representatives (…); b) between three and ten player representatives who are
elected or appointed either on proposal of the players’ associations affiliated to
FIFPro, or, where no such associations exist, on the basis of a selection process
agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In
this respect, the FIFA Circular no. 1010 states the following: “The parties must
have equal influence over the appointment of arbitrators. This means for example
that every party shall have the right to appoint an arbitrator and the two
appointed arbitrators appoint the chairman of the arbitration tribunal (…).
Where arbitrators are to be selected from a predetermined list, every interest
group that is represented must be able to exercise equal influence over the
compilation of the arbitrator list.”
7.
In conformity with the jurisprudence of the DRC, the DRC judge decided that the
“Regulations for the registration and transfer of football players country C
Football Association (2005)”, in accordance with which, inter alia, the chairman,
vice-chairman and one member are elected by the Executive Committee of the
country C Football Association and two members are elected by the country C
Football Players’ Association, do not meet the aforementioned principles.
Player S, from country R / Club L, from country C
Page 4 of 7
8.
In view of all the above, the DRC judge established that, in line with the constant
jurisprudence of the DRC, the Respondent’s objection to the competence of FIFA
to deal with the present matter has to be rejected and that the DRC judge 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.
9.
Subsequently, 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 on the Status and Transfer of Players (editions 2009, 2010 and
2012) and considering that the present claim was lodged in front of FIFA on
28 December 2009, the 2009 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.
10.
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.
11.
First of all, the DRC judge acknowledged that the Claimant and the Respondent
had concluded an employment contract valid as from 29 January 2009 until 31
May 2009. As to the financial terms of said employment contract, the DRC judge
took note that it had been agreed upon between the parties that the Respondent
would remunerate the Claimant with a salary of EUR 20,000 net, payable in 4
equal instalments of EUR 5,000 each. In addition, the DRC judge took due note
that the Claimant was entitled to accommodation “up to a price of EUR 500 per
month”.
12.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA
against the Respondent seeking payment of the amount of EUR 15,000,
corresponding to outstanding salary instalments of March, April and May 2009.
More specifically, the Claimant indicated that the Respondent had paid him only
EUR 5,000 as well as EUR 500 corresponding to the first rent payment.
13.
Subsequently, the DRC judge noted that the Respondent, in its defence,
maintained that it honoured the contract.
14.
In this context, the DRC judge first recalled the basic principle of the 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.
Player S, from country R / Club L, from country C
Page 5 of 7
15.
In this respect, the DRC judge noted that the Respondent did not substantiate its
defence, as it did not present any documentary evidence in respect of the
payments it sustained to have already paid to the Claimant. Therefore, the DRC
judge decided it could not take into consideration the argument of the
Respondent that it had already paid all the amounts due to the Claimant in
accordance with the contract.
16.
In view of the above, the DRC judge concluded that the Respondent had not
provided any documentary evidence in support of its defence and, therefore, the
DRC judge decided that it could be established that the Respondent had failed to
pay the Claimant the amount of EUR 15,000 as agreed upon between the parties
in the contract. As a consequence, and in accordance with the general legal
principle of pacta sunt servanda, the Respondent must fulfil its obligations
towards the Claimant and is to be held liable to pay the Claimant the outstanding
salaries in the amount of EUR 15,000.
17.
Finally, the DRC judge decided that the Claimant had to return the cheque of
EUR 1,000 to the Respondent, which was provided to the Claimant in March 2009.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player S, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Club L, has to pay to the Claimant the amount of
EUR 15,000, within 30 days as from the date of notification of this decision.
4.
In the event that the aforementioned sum is not paid by the Respondent within
the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the
aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
5.
The Claimant is ordered to return to the Respondent the cheque amounting to
EUR 1,000, within 30 days as from the date of notification of this decision.
Player S, from country R / Club L, from country C
Page 6 of 7
6.
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 S, from country R / Club L, from country C
Page 7 of 7