Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 6 December 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Eirik Mons en (Norw ay ), Member
Jérôm e Perlem uter (France), Member
on the claim presented by the player,
Play er 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 cas e
Facts relating to the preliminary issue concerning the competence of the DRC
1.
On 16 January 2017, the Player of Country B, Player A (hereinafter: Claimant), and
the Club of Country D, Club C (hereinafter: Respondent), signed an employment
contract valid as from 15 January 2017 until 30 June 2017.
2.
On an unspecified date, the Claimant and the Respondent signed a settlement
agreement (hereinafter: agreement), which refers to the employment contract as
already having expired on 30 June 2017.
3.
Art. 8 of the agreement provides that:
“8.1 This SETTLEMENT AGREEMENT shall be governed by and interpreted in
accordance with its provisions, as well as the FIFA Regulations, and the laws of
Country D.
8.2 Any dispute arising from or related to this SETTLEMENT AGREEMENT will be
submitted to the Court of Arbitration for Sport (TAS-CAS). “
4.
Art. 9.1 of the agreement stipulates that “If any provision of this SETTLEMENT
AGREEMENT shall be held by any competent body (including, without limitation,
FIFA, the Court of Arbitration for Sport (TAS-CAS) and/or any court of competent
jurisdiction to be illegal, invalid or enforceable, the remaining provisions shall
remain in full force and effect.” “…”.
5.
On 9 March 2018, the Claimant lodged a claim against the Respondent before FIFA
on the basis of the agreement.
6.
The Respondent rejected the competence of FIFA to deal with the present matter.
In particular, based on art. 8 of the agreement the Respondent argued that the
only competent body to decide upon a dispute between the parties on the basis of
the settlement agreement is the Court of Arbitration for Sport (CAS).
7.
The Claimant insisted that FIFA is competent to deal with the matter at hand
arguing that despite the CAS jurisdiction clause, nothing prevents him from
lodging a claim against the Respondent in front of the FIFA Dispute Resolution
Chamber.
8.
In this regard, the Claimant referred to art. 22 lit. b of the FIFA Regulations on the
Status and Transfer of Players (hereinafter: RSTP). According to the Claimant, the
criteria of the international dimension and the employment-related dispute are
fulfilled.
Player A, Country B / Club C, Country D
2
9.
However, the Claimant underlined that the exception to FIFA’s competence is not
applicable in this matter, since CAS has not been established at national level or
within the framework of a national football association and/or a collective
bargaining agreement and does not respect the principle of equal representation
between players and clubs.
10.
In this respect, the Claimant presented a CAS award (XXX) in which CAS considered
that “Since CAS is not such national arbitration tribunal, the Panel finds that the
precondition for this exception (i.e. art 22 lit. b of RSTP) is not applicable and that
the FIFA DRC, based on the FIFA Regulations, rightly accepted the jurisdiction.”
As to the substance of the matter:
11.
According to art. 3 of the agreement, the Claimant was entitled to receive, “as full,
complete and final settlement under the [employment contract]”, the total
amount of EUR 330,000 payable in four instalments as follows:
- EUR 50,000 on 7 September 2017;
- EUR 60,000 on 17 September 2017;
- EUR 110,000 on 15 October 2017;
- EUR 110,000 on 15 November 2017.
12.
Art. 3 of the agreement includes a note, which establishes that “In the event the
[Respondent] fails to pay any of the instalments herein agreed within the agreed
due dates, the overdue instalment shall be immediately considered payable and
the [Respondent] shall immediately accomplish with the payment of the total
remuneration of the due instalment only in such occasion (for example if the
second instalment is not paid on the 17th of September 2017 then a penalty of
6,000 EUR will be applied and a monthly interest of 1% from the 60,000 which is
equal to six hundred EUR only till the date of the second instalment payment is
done). In such case, a fine of 10% plus interest will accrue on the full amount
outstanding at the rate of 12% annual rate from the due date until the date of
payment.” i.e. 10% penalty and a monthly interest of 1% from the date of
payment till the date of the actual instalment payment with a maximum of 12%
annually.”
13.
On 16 December 2017, the Claimant sent a default notice to the Respondent
asking it to proceed with the payment of second, third and fourth instalments set
out in the agreement.
14.
In his claim, the Claimant requested to be awarded:
- EUR 110,000 corresponding to the third instalment of the agreement, plus
interest of 1% per month as of 16 October 2017 until the date of effective
payment;
Player A, Country B / Club C, Country D
3
- EUR 110,000 corresponding to the fourth instalment of the agreement, plus
interest of 1% per month as of 16 November 2017 until the date of effective
payment;
- EUR 22,000 as penalty, plus interest of 5% p.a. “as from the date in which a
decision is rendered regarding the matter at hand.”
The Claimant further asked that sporting sanctions be imposed on the Respondent.
15.
The Claimant acknowledged having received the first instalment of EUR 50,000 of
the agreement in a timely manner and that a few days after having sent the
default notice, the Respondent proceeded with the payment of the second
instalment of EUR 60,000.
16.
As to the substance, the Respondent pointed out that it could not execute the
payment of the third and fourth instalments due to “a deteriorated financial
situation.”
17.
In addition, the Respondent held that it does not owe the amount requested by
the Claimant in relation with the penalty clause, considering that the application
of the penalty plus the high interest rate of 12% per year established in the
agreement will result in an overcompensation for the Claimant, which according
to the Respondent is against Swiss law.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, 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 9 March 2018. Consequently, the 2018 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. article 21 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and highlighted that in accordance with art. 24 par. 1 and par. 2
in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018; hereinafter: Regulations), the Dispute Resolution Chamber
has competence to adjudicate 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 employment-related dispute between a Player
of Country B and a Club of Country D.
Player A, Country B / Club C, Country D
4
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that disputes related to the agreement should be only referred to the
Court of Arbitration for Sport (CAS) in accordance with article 8.2 of the
agreement.
5.
The Chamber equally noted that the Claimant rejected such position and alleged
that FIFA had jurisdiction to deal with the present matter, referring to art. 22 lit. b
of the Regulations and considering that the criteria of the international dimension
and the employment-related dispute are fulfilled.
6.
In addition, the DRC noted that the Claimant underlined that the Court of
Arbitration for Sport does not fall under the exception of art. 22 lit. b of the
Regulations, arguing that it has not been established at national level or within
the framework of a national football association and/or a collective bargaining
agreement and that it would not respect the principle of equal representation
between players and clubs.
7.
Having said that, first and foremost, the members of the DRC established that the
claim of the Claimant for allegedly outstanding remuneration is solely based on
the agreement, which was apparently signed after the date of expiry of the
employment contract.
8.
At this stage, the members of the DRC recalled the content of the aforementioned
art. 8.2 of the agreement, which provides that “Any dispute arising from or related
to this SETTLEMENT AGREEMENT will be submitted to the Court of Arbitration for
Sport (TAS-CAS).”
9.
In this respect, the Chamber first outlined that said clause unambiguously
identifies the Court of Arbitration for Sport as exclusively competent to deal with
disputes arising out of the agreement. Furthermore, the DRC was eager to point
out that the relevant clause was freely included in the agreement and resulted
from the common will of the parties.
10.
As regards art. 9 par. 1 of the agreement, which indicates other deciding bodies,
the members of the Chamber highlighted that such clause cannot be considered to
be related to the parties’ choice of jurisdiction, but rather seems to serve the
purpose of a general severability/illegality clause.
11.
Having stated the foregoing, the members of the Chamber highlighted that the
choice of forum is a fundamental right of the parties to a contract which, as a
matter of principle, needs to be respected. In this context, the members of the DRC
referred to the first sentence of art. 22 of the Regulations, which establishes that
“Without prejudice to the right of any player or club to seek redress before a civil
court for employment related disputes, …”. The Chamber underlined that a player
and a club thus have the right to refer a labour dispute to a court other than FIFA.
The only limit to the parties’ above-mentioned freedom is that the chosen forum
Player A, Country B / Club C, Country D
5
respects fundamental principles of due process, which an ordinary court is
presumed to do.
12.
Along those lines, the Chamber wished to emphasize that it is undisputed that CAS
guarantees the respect of the fundamental procedural rights of the parties, i.e. the
principle of parity when constituting the tribunal, the right to an independent and
impartial tribunal, the principle of a fair hearing, the right to contentious
proceedings and the principle of equal treatment.
13.
In fact, the members of the DRC were eager to point out that the Swiss Federal
Tribunal has recognised CAS as a true arbitral tribunal, the decisions of which have
the same effect as those of an ordinary court judgement.
14.
With those considerations in mind, the DRC took into account that, as stated
above, according to the first sentence of art. 22 of the Regulations, as a general
rule, any player or a club can seek redress before a civil court for employmentrelated disputes and, in this respect, determined to follow the criteria established
by the Swiss Federal Tribunal according to which CAS is considered to have the
same level of independence and impartiality as an ordinary court and that an
arbitral award of the former produces the exact same legal effects as a judgement
of the latter. In other words, the DRC came to the conclusion that the main
objective of the first sentence of art. 22 is to give the parties the liberty to choose
a forum other than FIFA to resolve their employment-related disputes, the only
limit being, as established above, the respect of fundamental principles of
procedural law, which the CAS undoubtedly fulfils.
15.
Having established all of the above, the members of the DRC concluded that there
is no reason not to respect the choice of forum explicitly made by the parties in the
agreement and therefore that the Respondent’s objection to the competence of
FIFA to deal with the present matter is to be upheld. As a result, the DRC decided
that it is not competent, on the basis of art. 8.2 of the agreement, to consider the
present matter as to the substance.
16.
In light of the above, the DRC decided that the claim of the Claimant is
inadmissible.
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Player A, is inadmissible.
*****
Player A, Country B / Club C, Country D
6
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 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).
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:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
7