Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 February 2008,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Philippe Piat (France), member
Carlos Soto (Chile), member
Philippe Diallo (France), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player
Player A, X,
as Claimant
against the club,
Club B, Y,
as Respondent
regarding an employment related contractual dispute arisen between the player
and the club.
I.
Facts of the case
1.
On 14 July 2003, the X player A (hereinafter: the player) and the Y club B
(hereinafter: the club) concluded an employment contract for the football
seasons 2003/04 and 2004/05, the contract being valid as from 7 July 2003 until
the end of the season 2004/05 (30 June 2005).
2.
The contract stipulates in its fourth clause that the player will be paid a net
remuneration of:
EUR 100,000 for the season 2003/04;
EUR 100,000 for the season 2004/05.
3.
On 29 June 2005, the player lodged a complaint before FIFA against the club
claiming that the latter had unilaterally terminated the employment contract
by correspondence of 28 December 2004 and of 4 February 2005 and that the
club had breached the contract without just cause. The player, confirming that
he had already received EUR 40,000 for the season 2004/05, claims an amount
of EUR 60,000 corresponding to the rest value of the contract until the end of
the season 2004/05.
4.
The club responded to the complaint lodged against it by alleging primarily
that the parties of the employment contract had convened to submit any
possible dispute to the Labour Court of Z, Y (clause 13) and that the Dispute
Resolution Chamber is therefore not competent to take a decision in the
matter at hand. The player did not pronounce himself on this issue of
competence.
5.
The thirteenth clause of the employment contract establishes the following :
“The contracting parties agree that in order to settle eventual disputes
resulting from the present contract the competent court is the [Labour Court
of Z], thus excluding any other Court.”
6.
Furthermore, the club claims that it had dismissed the player after having
taken a decision following an internal disciplinary procedure (final decision
rendered on 4 February 2005) against the latter and therefore the club claims
having terminated the contract with just cause. At the same time, the club
acknowledged owing the player his salaries for the months December 2004
and January 2005 in the amount of EUR 20,000.
7.
Following its solicitation, the club provided FIFA with the documentation in
connection with the internal disciplinary procedure. From the submitted
documentation can be noted that:
8.
On 28 December 2004, the club sent a letter of notification to the player
informing him about the charges made against him and that a disciplinary
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Player A, X / Club B, Y
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procedure had been opened against him and that the club had the intention
to dismiss him because of the reproached behaviour. The player had
acknowledged receipt of this letter by signature of 30 December 2004.
9.
The club reproaches the player:
that he did not follow the convocation to accompany the team to the
league game against Club C on 19 December 2004;
that he did not participate in the trainings of 20, 21, 22 and 23 December
2004;
that he did not justify his absence on these dates.
10.
Concerning these charges, the club considered that the player had violated :
the provisions of the club’s internal regulations;
the obligation to be present and to obey and other general obligations
provided for in the collective bargaining agreement concluded between
the Y Professional Football League and the Union of Professional Football
Players;
the obligation to be present according to the Y Labour Code.
11.
By correspondence of 6 January 2005 addressed to the club and by his
replication within the procedure before FIFA dated 20 October 2005, the
player communicated his position with regard to his claim and the charges
made against him. The player alleges:
that the facts cited were not correct and that the player did not violate
his contractual obligations towards the club;
that the player was injured and thus he was not called in for the match
against Club C on 19 December 2004, but that he solely figured on the list
of players invited to be present in the stadium during the match;
that the technical coach told the players that they were permitted to be
absent between 23 and 26 December 2004 and between 31 December
2004 and 2 January 2005;
that the player, injured at that moment and wanting to return back home
to X, had asked the coach to be dispensed for the period from 19 to 26
December 2004;
that the coach had allowed the player to part to X;
that the player had the right, after 19 December 2004, to spend a week of
vacation according to the above-mentioned collective bargaining
agreement, even without permission;
that it was incomprehensible that the absence of the player at the
training of 23 December 2004 had been considered to be unjustified since
the players were all free to go on the said date.
12.
During this disciplinary procedure, several written testimonies have been
solicited by the president of the club’s board. From these written confirmations
can be noted:
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Player A, X / Club B, Y
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that on the date of the player’s medical examination on 14 December
2004, the player was medically discharged from playing;
that the coach of the club had also called in the players who did not play
in order to support the team at the match against Club C on 19 December
2004, but that the player concerned was not present at the match.
13.
By letter dated 4 February 2005, the club notified the final decision of the
disciplinary procedure against the player taken by the club and signed, inter
alia, by the president of the club’s board, and, allegedly as a consequence of
this decision, the dismissal of the player from the club.
14.
The player did not add any further arguments to his initial claims.
15.
With its correspondence dated 9 November 2005, the club adhered to its
previous argumentation.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, also taking into account the Respondent’s denial of the competence
of FIFA’s Dispute Resolution Chamber (DRC), the Chamber analysed whether it
was competent to deal with the matter at stake. In this respect, it referred to
art. 18 of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition July 2005). The present matter
was submitted to FIFA on 29 June 2005, as a consequence the Chamber
concluded that the previous Procedural Rules (edition 2001) on matters
pending before the decision making bodies of FIFA are applicable to the
matter at hand.
2.
Subsequently, the members of the Chamber analyzed which Regulations
should be applicable as to the preliminary question of competence of the
Chamber in the present matter. In this respect, the Chamber referred, on the
one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer
of Players (edition 2008) as well as to art. 26 par. 1 of the 2005 edition of the
said Regulations and, on the other hand, to the fact that the relevant contract
at the basis of the present dispute was signed on 14 July 2003 and that the
claim was lodged at FIFA on 29 June 2005. In view of the aforementioned, the
Chamber concluded that the 2001 version of the FIFA Regulations for the
Status and Transfer of Players (hereinafter: the Regulations) is applicable, inter
alia, to the question of the Chamber’s competence.
3.
Furthermore, the Chamber indicated that in accordance with art. 42 par. 1 of
the Regulations, the competence of the Dispute Resolution Chamber is without
prejudice to the right of any player or club to seek redress before a civil court
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Player A, X / Club B, Y
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in disputes between clubs and players. In other words, art. 42 par. 1 of the
Regulations allows that a dispute between a player and a club is referred to
ordinary courts.
4.
In this respect, the Chamber acknowledged that the club contests the
Chamber’s competence claiming that the parties to the employment contract
had mutually convened to submit any possible dispute to the Labour Court of
Z, Y, and that the Dispute Resolution Chamber is therefore not competent to
take a decision in the matter at hand. The Chamber also took note of the
relevant thirteenth clause of the employment contract that establishes the
following : “The contracting parties agree that in order to settle eventual
disputes resulting from the present contract the competent court is the
[Labour Court of Z], thus excluding any other Court.”
5.
With regard to the thirteenth clause of the relevant employment contract, the
Chamber established that this clause was to be considered a choice of forum
that attributes exclusive jurisdiction to the Labour Court of Z in order to deal
with any possible dispute between the contractual parties. Moreover, the
Chamber wished to emphasise that the choice of jurisdiction contained in the
thirteenth clause of the relevant employment contract is in line with the
provision of art. 42 par. 1 of the Regulations.
6.
On account of all of the above, the Dispute Resolution Chamber decided that it
was not the competent body to decide on the present dispute between the
player and the club and that therefore, the player’s claim against the club was
not admissible.
* * * * *
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Player A, X / Club B, Y
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III.
Decision of the Dispute Resolution Chamber
1.
The claim submitted by the Claimant, Player A, is not admissible.
2.
According to art. 61 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
Enclosed: CAS directives
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Player A, X / Club B, Y
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