Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 7 April 2011,
in the following composition:
Geoff Thompson (England), Chairman ad interim
Michele Colucci (Italy), member
Jon Newman (USA), member
Mario Gallavotti (Italy), member
Todd Durbin (USA), member
on a matter between the player,
M,
as Claimant / Counter-Respondent 1
against the club,
P,
as Respondent / Counter-Claimant
and involving the club,
X,
as Counter-Respondent 2
regarding an employment-related dispute between the parties
I.
Facts of the case
1.
On 11 July 2007, the country B and country T player, M (hereinafter: the player),
and the country T club, P (hereinafter: club P), signed a “protocol” valid “until 30
May 2009, for the seasons 2007/2008 and 2008/2009”.
2.
Art. 1 of the “protocol” mentions that club P has an option to renew the contract
for the second year, i.e. the season 2008/2009.
3.
According to art. 2 of the “protocol”, the player was to receive a “total” amount of
EUR 35,000.
4.
Art. 3 of the “protocol” stipulates that the payment would be made in the form of
a payment in the amount of EUR 820 net per match + the “minimum guaranteed
salary”.
5.
Art. 4 of the “protocol” mentions that the payment scheme for the payment per
match is the following:
- EUR 820 net per match effectively played,
- EUR 820 net per match if the player is fielded during the course of the match,
- EUR 410 net per match if the player is selected amongst the 18 players but is not
fielded during the course of the match,
- if the player is not selected amongst the 18 players, he will not receive any
monies.
6.
On 30 September 2008, the player lodged a claim in front of FIFA against club P for
outstanding salaries in the total amount of EUR 20,660, plus interest as from 1
October 2008, after having amended his claim on 22 December 2008.
7.
In this respect, the player alleged that the amount of EUR 820 per match was
determined as follows: EUR 35,000 – (EUR 2,760 + EUR 6,000, i.e. amounts paid by
club P on the contract’s signing date) = EUR 26,240.
8.
Furthermore, the player indicated that the sum of EUR 26,240 was to be divided
into 32 matches, which equals EUR 820 per match.
9.
In continuation, the player asserted that he had participated in 24 matches,
including 8 matches during which he was not fielded. Thus, the player stated that,
on the basis of the “protocol”, he should have received for these 24 matches the
amount of EUR 16,400 payable per month according to the number of matches
played. However, according to the player, out of the total EUR 35,000 payable to
him under the employment contract, he only received the amount of EUR 14,340.
Therefore, the player deems that the club owes him EUR 20,660 (EUR 35,000 – EUR
14,340) as outstanding salary.
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10.
On 6 March 2009, following the B Football-Association’s request dated 4 February
2009, the Single Judge of the Players’ Status Committee authorised the B Football
Association to provisionally register the player with its affiliated club,
X
(hereinafter: club X), as an amateur.
11.
In reply to the player’s claim for outstanding salaries, club P alleged that the player
had signed a contract which was due to expire on 31 May 2009. Furthermore, it
confirmed that the player was included into the squad in 24 official matches during
the 2007/2008 season, and thus that he was entitled to the amount of EUR 16,400,
calculated as follows:
- 16 matches (player was fielded): 16 x EUR 820 = EUR 13,120
- 8 matches (player included into the 18 players of the squad but not fielded): 8 x
EUR 410 = EUR 3,280
TOTAL: EUR 16,400
12.
However, according to club P, and in accordance with some payments receipts
which it submitted, the player received the following amounts, paid on the
following dates:
Payment date
11.07.2007
11.07.2007
13.11.2007
04.10.2007
14.12.2007
28.12.2007
11.02.2008
15.02.2008
01.04.2008
22.04.2008
TOTAL
Amount
4,840
(unknown)
500
10,244
5,000
3,000
560
2,000
3,000
1,000
Equivalent in Euros (EUR)
EUR 2,769
EUR 6,000
EUR 284
EUR 6,025
EUR 2,918
EUR 1,767
EUR 322
EUR 1,151
EUR 1,500
EUR 500
EUR 23,236
13.
Therefore, club P asserted that the player received EUR 6,836 more than he was
entitled to during the season 2007/2008.
14.
In addition, club P explained that on 11 October 2007, the player received a red
card and was consequently banned for 3 matches. In accordance with art. 2 of the
“disciplinary rules”, the player was fined in the amount of 750 x 3 = 2,250
(equivalent in Euros: EUR 1,285). Moreover, on 27 November 2007, due to the
team’s bad results and in accordance with art. 21 of the “disciplinary rules”, the
Board of Directors of club P allegedly fined each player 10,000 (equivalent in Euros:
EUR 5,714).
In continuation, club P asserted that on 20 July 2008, it verbally informed the player
that it would use its option to extend his employment contract to the season
15.
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2008/2009 and that he would get a EUR 15,000 salary raise, however the player left
country T without notice and without signing such contract extension.
16.
In view of the aforementioned, club P indicated that it considered the player’s
employment contract with it to be valid until 31 May 2009 and deemed that the
player had breached the said contract by signing another contract with another
club, i.e. club X, covering the same period. Therefore, club P concluded that the
player’s claim should be rejected and that he should reimburse club P the amount
of EUR 6,836 as extra-payments wrongfully made to him, and to pay the amount of
EUR 6,999 (i.e. EUR 1,285 + EUR 5,714) as fines imposed on him, as well as the
amount of EUR 35,000 which he should have received under the employment
contract for the season 2008/2009. Furthermore, club P asserted that club X, being
the player’s new club, should be held jointly and severally liable for such payment.
17.
Finally, club P requested sporting sanctions of 4 to 6 months suspension against the
player.
18.
In reply to club P’s position and subsequent counter-claim, the player, first and
foremost, underlined that some of club P’s documentary evidence was not
translated into one of the FIFA official languages and should thus be disregarded.
19.
Furthermore, the player stated that, contrary to club P’s allegation, the employment
contract was concluded for one year (season 2007/2008) with an option to renew
the contract for a second year (season 2008/2009). However, according to the
player, club P did not exercise such option.
20.
With regard to the club P’s allegations concerning the payment of his salaries, the
player emphasized that it is correct that he was entitled to EUR 16,400 in
accordance with the bonus scheme. However, he should allegedly also have
received the “minimum guaranteed salary” of EUR 35,000 on top of the
aforementioned bonuses.
21.
In addition, the player contested having received the total amount of EUR 23,236 as
alleged by club P. In this respect, he alleged that from the payment receipts
submitted by club P, on 11 July 2007 and 4 October 2007, two payments of EUR
6,000, respectively EUR 6,025, would have been made to him. However, according
to the player, on 11 July 2007, the club gave him a cheque in the amount of 10,244,
however said amount could not be cashed by him until 4 October 2007. Thus, the
club counted a payment of EUR 6,000 twice, whereas the player only received said
amount once. On account of the aforementioned, the player recognised having
received the total amount of EUR 14,340. Thus, the player maintained his initial
claim of EUR 20,660 for outstanding salaries plus interest.
22.
In reply to club P’s counter-claim, the player stressed that he considered the
“disciplinary rules” to be illegal as being contrary to the “essential principle of the
protection of remuneration” and that the FIFA Regulations do not provide for the
possibility to fine a player.
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23.
Finally, the player rejected club P’s allegation that it had verbally informed him on
20 July 2008 that the employment contract would be prolonged for one more
season. He added that club P could not provide evidence that it exercised the
option. In fact, according to the player, he returned to country T at the beginning
of July 2008 in order to claim his outstanding salaries, but club P allegedly told him
that he would get paid on the sole condition that he would extend his employment
contract to two more years, which he refused. Thereafter, the player returned to
country B free of contract.
24.
As a conclusion, the player stressed that he had not acted in breach of contract and
rejected club P’s counter-claim.
25.
In reply to the player’s replica, P, first of all, challenged the competence of FIFA to
decide on the present matter based on the fact that it should, in P’s opinion, be
considered as a purely internal matter. In this respect, P argued that the player is a
country T citizen and was registered as a country T player in country T. Furthermore,
P alleged that “it is not allowed for the second league players who are deemed as
foreigners to be registered”.
26.
Thus, P, referring to art. 22 of the Regulations on the Status and Transfer of Players,
deemed that the player had no right to bring a claim against it before the deciding
bodies of FIFA. In addition, P emphasized that a national dispute resolution
committee has been set up within the framework of the T Football Federation,
which is duly established and fully independent, in accordance with the FIFA circular
no. 1010.
27.
Thus, club P came to the conclusion that the present case should be decided
exclusively by the Dispute Resolution Committee of the T Football Federation.
28.
Notwithstanding the above, and as to the substance of the matter, P alleged that
pursuant to the employment contract signed with the player, the latter was
registered for P for two football seasons. Furthermore, P explained that according
to the records of the T Football Federation and in order for the player’s license to
be granted, the player and club P were bound for two consecutive seasons.
Therefore, P reiterated its counter-claim against the player, including sporting
sanctions.
29.
P, however, stated that “in order to show good faith (…), we would like to accept
the assertion of the player side concerning the double mentioning of the amount of
6,025 Euros dated 11.07.2007 and 04.10.2007”.
30.
In response to club P’s argument that FIFA would not be competent to hear the
present dispute, the player referred to art. 22 a) and b) of the Regulations on the
Status and Transfer of Players in the sense that, on the one hand, the player
possesses country B nationality, and, on the other hand, that in any case the dispute
enters in the framework of an ITC request or a claim from an interested party in
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relation to said ITC request, in particular regarding the issue of the ITC, sporting
sanctions or compensation for breach of contract. Thus, the player deemed that
FIFA is competent to hear the matter.
31.
Upon FIFA’s request, on 9 June 2010, the T Football Federation provided FIFA with a
copy of its computer records concerning the player, which mentions that the
player’s nationality is country T nationality.
32.
Finally, club X provided FIFA with its position in relation to the present matter. In
this regard, club X indicated that it approached the player only after the latter had
unilaterally terminated his contract with club P. As to the substance of the dispute,
club X merely relied on the player’s position as presented by him in his claim and his
subsequent submissions.
33.
Moreover, according to club X, the joint liability of the player’s new club provided
for under art. 17 par. 2 of the Regulations on the Status and Transfer of Players
concerns only professionals. However, according to club X, the player was not a
professional in country B, and therefore, it could not be held jointly and severally
liable for the payment of compensation.
34.
Additionally, club X deemed that club P did not justify any of the amounts claimed
by it. In this regard, club X does not understand club P’s claim for EUR 13,835, nor
does club X understand club P’s claim for EUR 35,000 as compensation.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analysed which procedural rules are
applicable to the present matter. In this respect, the Chamber referred to art. 21
par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules).
The present matter was submitted to FIFA on 30 September 2008, thus after 1 July
2008. Consequently, the Chamber concluded that the 2008 edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber analysed their competence to hear the
present matter and, referring to the contents of art. 3 par. 1 of the Procedural Rules
as well as to art. 24 par. 1 in combination with art. 22 lit. a) and b) of the
Regulations on the Status and Transfer of Players (edition 2008; hereinafter: the
Regulations), emphasised that in principle, and without prejudice to the right of
any player or club to seek redress before a civil court for employment-related
disputes, the Dispute Resolution Chamber is competent to hear:
disputes between clubs and players in relation to the maintenance of
contractual stability where there has been an International Transfer
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Certificate (ITC) request and a claim from an interested party in relation to
said ITC request, in particular regarding the issue of the ITC, sporting
sanctions or compensation for breach of contract (art. 22 lit. a));
employment-related disputes between a club and a player of an
international dimension, 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 (art. 22 lit. b)).
3.
In continuation, the Chamber duly noted that P had, during the course of the
proceedings in the present matter, challenged the competence of FIFA to deal with
the present matter on the basis that it would be an internal matter, since it involves
a player of country T nationality and a club affiliated to the country T Football
Federation.
4.
In this regard, the Chamber also took note of the player’s arguments relating to the
competence issue. According to the player, FIFA should be competent to hear the
matter in view of the fact that, on the one hand, he also holds the country B
nationality, and, on the other hand, the matter falls under art. 22 lit. a) of the
Regulations, since the B Football Association made a request for his ITC following
the T Football Federation’s refusal to issue it.
5.
In view of the foregoing, the members of the Chamber established that it had to
determine whether the present matter indeed falls under either art. 22 lit. a) or b)
of the Regulations, and thus, whether the Chamber would be competent to hear
the present dispute.
6.
First of all, as to the applicability of art. 22 lit. a) of the Regulations, the Chamber
emphasised that in principle a claim brought by a player or a club in relation to the
maintenance of contractual stability must be in relation to an ITC request. This is
the employment-related dispute between the player and the club must lead to the
player signing with a new club affiliated to another association, and the latter
association requesting the player’s ITC. In this sense, it is irrelevant whether or not
the player has the nationality of the country where the former club is based.
7.
Reverting to the facts of the present matter, the Chamber recalled that the player’s
claim was lodged on 30 September 2008, while the B Football Association requested
FIFA’s assistance with regard to the registration of the player with its affiliated club,
X, only on 4 February 2009, following the T Football Federation’s refusal to issue
the player’s ITC. Furthermore, the Chamber underlined that the claim of the player
relates to unpaid salaries and was lodged after the completion of the season
2007/2008, that is, after the end date of the employment contract concluded
between the parties. Indeed, the Chamber analysed the terms of the contract and
found that the contract was valid for one season only, i.e. the season 2007/2008,
while for the season 2008/2009, art. 1 of the employment contract provided for an
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option for club P to unilaterally extend the contract for an additional season. In this
respect, the Chamber referred to its well-established jurisprudence according to
which, such clauses are to be considered potestative and as such cannot be
recognised.
8.
Therefore, the Chamber concluded that there can be no relation between the
player’s employment-related dispute with club P regarding the payment of some
outstanding salaries, and the ITC request, the latter having been made several
months after the employment-related dispute between the player and club P arose.
9.
Thus, the Chamber concluded that the matter does not fall under art. 22 lit. a) of
the Regulations.
10.
As to the applicability of art. 22 lit. b) of the Regulations, the Chamber underlined
that as a general rule, in the context of labour disputes, the international
dimension is represented by the fact that the player concerned is not a national of
the country of the association to which the relevant club is affiliated.
11.
However, when both parties have the same nationality, the dispute shall be
considered as national or internal, with the consequence that the rules and
regulations of the association concerned shall be applied to the matter and the
deciding bodies of such association, in accordance with their relevant provisions, are
to decide on the issue. If FIFA’s deciding bodies would deal with such internal
matter, the internal competence of FIFA Members would be violated. These
principles of delimitation between the competence of FIFA and the competence of
the associations are primordial for the reciprocal recognition of the organisations
and autonomy of FIFA and the member associations.
12.
Having said this, the Chamber turned its attention to the circumstances surrounding
the double citizenship of a player. The Chamber observed that more and more
players with two or more nationalities have appeared in the world of football and
that FIFA and its deciding bodies are confronted with an augmented number of
cases, which concern players with double citizenship. In this respect, the members of
the Chamber emphasised that a player’s nationality is expressed by his passport(s) or
identification documents, but that in the framework of plural citizenship a player
could, under certain circumstances, possibly invoke a “sportive nationality”. The
“sportive nationality” is generally linked to the concrete situation of the
registration of a player with a club affiliated to the specific association domiciled in
a country of which the player is also a national, in compliance with the rules of
registration and eligibility of the association concerned.
13.
In such situations, both the club and the player may reap advantages of the
“sportive nationality”. For example, the player being registered as a “local player”
does not count for the quota of foreign players and would have no difficulty in
obtaining a visa or work permit, if at all required. Furthermore, any possible
restriction on the number of foreign persons in the country would not be applicable
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in such situation. Obviously, such circumstances are to the benefit of both the club
and the player.
14.
In this context, the Chamber recalled the crucial fact that the player, who holds
both the country B and the country T nationality, was registered by the T Football
Federation with club P as a country T player and not as a country B player.
15.
On account of the above considerations, in particular of the fact that the country
T/B player was registered as a country T player with club P, the Dispute Resolution
Chamber determined that the claim of the player in question falls under the
jurisdiction of the football association in the country concerned (i.e. country T) and
thus does not fall under art. 22 lit. b) of the Regulations.
16.
Thus, the Chamber concluded that the claim of the player against club P does not
fall under FIFA’s competence, since on the one hand, the claim lodged by the player
was not lodged in relation to an ITC request, and, on the other hand, is to be
considered a purely internal matter between a country T club and a country T
player.
17.
Therefore, the Chamber decided that the claim of the player is inadmissible.
18.
The Chamber went on to consider the counter-claim lodged by club P against the
player and club X. In this respect, the deciding authority duly noted that after
initially lodging a claim against the player and its new club, X, for breach of
contract, the country T club had sought to argue that FIFA would not be competent
to hear the dispute at stake in view of the player holding the country T nationality.
The Chamber wished to stress that such reversal in club P’s position was somehow
contradictory; indeed, club P cannot at the same time invoke FIFA’s lack of
competence and, as to the substance of the matter, claim for compensation for
breach of contract before FIFA’s Dispute Resolution Chamber.
19.
In view of the aforesaid, the Chamber came to the unanimous conclusion that club
P’s claim against the player and club X must also be declared inadmissible due to
the country T club’s recognition that FIFA is not competent to hear the present
matter. Equally, the Chamber, while reiterating that the claim of the player is also
inadmissible, concluded its deliberations by stating that both claims, lodged by the
player and club P respectively, are inadmissible.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent 1, M, is inadmissible.
2.
The counter-claim of the Respondent / Counter-Claimant, Club P, is inadmissible.
*****
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
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