Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 May 2006,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Gerardo Movilla (Spain), member
John Didulica (Australia), member
Paulo Rogerio Amoretty Souza (Brazil), member
Ivan E. Gazidis (USA), member
on the claim presented by the player
A, X,
represented by S, Licensed Players’ Agent, Z
as Claimant
against the club
Club B, Y
as Respondent
regarding the jurisdiction in a contractual dispute on outstanding salaries between the
player and the club
I.
Facts of the case
1.
The player A was on an employment contract with the X club, C, and was
transferred to the Y club, B, for one season, on the basis of a loan agreement,
concluded between the two aforementioned clubs. The employment contract with
B was signed on 31 August 2005 and was to be valid until 31 May 2006. The
employment contract provided for a basic wage of YYY 1’000 per week.
2.
On 24 January 2006, the player lodged a formal complaint at FIFA against the club
B claiming that he had not received his salary since 1 October 2005 and that the
club had prematurely terminated the employment contract with him by means of
a written communication dated 29 October 2005, with immediate effect. (Note:
The termination letter, which is only signed by the club, is attached to the file.)
The player asserts that C did not want to take him back early and claims payment
of outstanding salaries for one year plus 50% of the total value of the relevant
employment contract as compensation.
3.
In its response, The Y Football Association (hereafter: Y-FA) asserts that the
present affair is already being dealt with by the competent body of The Y Football
League (hereafter: Y-FL) since it would fall under its jurisdiction. Therefore, the YFA argues that FIFA does not have to intervene. According to it, the player had
already submitted a claim at Y-FL and a hearing of the Football Disciplinary
Committee (FDC) had already been planned. According to the Y-FA, a copy of the
directions for the setting up of a FDC panel had been sent to the player on 31
January 2006. In these directions, which are enclosed to the file, the player was
asked to submit his statement of claim and the parties to name their nominees to
sit in the FDC.
4.
In response to the position of the Y-FA respectively the position of Y-FL, the player
underlines that he had lodged a formal complaint exclusively before FIFA and that
he wants FIFA to adjudicate on the present affair.
5.
Upon the invitation of FIFA to submit more detailed information on the alleged
claim of the player before Y-FL, the latter provided FIFA with a letter of the player
dated 11 January 2006, which was addressed to Y-FL and by means of which he
requested that his case would be submitted to the next meeting of the legal
commission of Y-FL. Y-FL asserts that subsequently, the player had been invited by
Y-FA to lodge a statement of claim but that the player had failed to do so. Y-FA
asserts that since the player had started proceedings before it, it was competent to
hear the present affair.
6.
Being asked by FIFA to submit their final positions on the question of the
competence, both the player and Y-FL adhered to their positions.
____________________________________________________________________________________________________________
A / Club B
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7.
Upon request, Y-FL also provided FIFA with its regulations and in particular refers
to Clause 5 of the employment contract concluded between the parties concerned
which states that the parties are subject to the Regulations of Y-FL. Furthermore,
Y-FL refers to Regulation 65 according to which any dispute between a club and a
player shall be referred in writing to the FDC in accordance with Regulation 72.
The latter Regulation provides that the FDC consists of a chairperson and two side
members one of whom shall be selected by the complainant and the other by the
respondent. Y-FL underlines the fact that the FDC has established an impartial
tribunal with equal representation by the consent of the player’s union.
8.
In his final position, the player confirms having requested Y-FL to submit the
present matter to its competent commission but he claims not having been aware
of the following consequences: He would have to go to Y to attend the hearing of
the Y-FL but does not have the means to travel there since he has been without
salary since October 2005. Secondly he would have to bear all the costs of the
proceeding in the event that his claim would get dismissed. Furthermore, the
player refers to the letter dated 23 February 2006 from Y-FL, addressed to the
representative of the player which states: “Y-FL is competent to hear this matter
but cannot do so unless and until your client lodges a formal claim for the club to
answer.” According to the player this statement proofs that he had not lodged a
formal claim at Y-FL but only at FIFA. The player adds that Y-FL would in his
opinion not render an impartial award. Therefore he insists that the case should
be heard by the competent body of FIFA.
9.
On 25 April 2006, FIFA informed the parties that the matter will be submitted to
the Dispute Resolution Chamber (DRC) for a formal decision regarding the
preliminary question of the competence.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Chamber took note that in the present case, a decision had to be
rendered with respect to the question of the jurisdiction given the fact that Y-FA
respectively Y-FL had disputed the competence of FIFA claiming that the matter was
already pending with Y-FL and that the Football Disciplinary Committee (FDC) of YFL was the only competent body to render a decision in the present case. It hereby
referred to Clause 5 of the employment contract concluded between the two
parties involved. The Chamber stated that at this stage, a decision will only be
rendered with respect to the contested jurisdiction but not with respect to the
substance of the matter.
____________________________________________________________________________________________________________
A / Club B
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2.
In continuation, the Chamber noted that the present matter was submitted to FIFA
on 23 January 2006 and concluded that therefore, the revised Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005) are applicable in the matter at hand.
3.
Subsequently, the members of the Chamber had to analyse which edition of the
Regulations for the Status and Transfer of Players (hereafter: The Regulations) is
applicable. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations for the Status and Transfer of Players (edition 2005) and,
on the other hand, to the fact that the relevant contract which is the basis of the
present dispute was signed on 31 August 2005 and the claim was lodged at FIFA on
23 January 2006. In view of the aforementioned, the Chamber concluded that the
current FIFA Regulations for the Status and Transfer of Players (edition 2005,
hereafter: the Regulations) are applicable on the case at hand.
4.
The Chamber underlined the fact that the Regulations provided for the possibility
of the Associations to install their own internal arbitration tribunals for mediation
and the rendering of decisions with respect to international disputes, subject to
certain required minimum standards.
5.
In this regard, the Chamber referred to Art. 22 b) of the Regulations according to
which, in general, in employment-related disputes between a club and a player that
have an international dimension, i.e. the parties do not belong to the same country,
both parties were entitled to refer the dispute to FIFA’s bodies, 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.
In this respect, the Chamber had first to examine whether the parties had agreed
on referring a potential dispute to the competent internal arbitration body of Y-FA
respectively Y-FL and in the affirmative, to examine whether an arbitration tribunal
had been set up which was in conformity with the FIFA regulations.
7.
In order to analyse whether the parties had agreed on referring a potential dispute
to an internal arbitrational body, the Chamber put its attention to Clause 5 of the
employment contract which stipulates: “The club and the player shall observe and
be subject to the Rules of Y-FA and either the Rules of the Y-FA first League or the
Regulations of Y-FL as appropriate”.
8.
The Chamber reasoned that with the aforementioned Clause 5 of the employment
contract, the parties had validly agreed that their contractual relationship would be
subject to the Regulations of Y-FA respectively Y-FL and that these regulations were
to be applied.
____________________________________________________________________________________________________________
A / Club B
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9.
Consequently, the Chamber drew its attention to the Regulations of Y-FL which
were submitted by the Respondent and, in particular, to their Clause 65.1. which
rules that “any dispute or difference not otherwise expressly provided for in these
Regulations between a Club or Clubs and any Player shall be referred in writing to
the FDC in accordance with Regulation 72 for consideration and adjudication” and
Clause 72.1. which states that “all complaints and charges made under these
Regulations shall be referred to the FDC”.
10.
Taking note of the fact that the aforementioned clauses clearly and expressly
stipulated the referral of the jurisdiction to the competent internal Y arbitration
body, namely the FDC, the Chamber concluded that it remained to examine
whether the FDC complied with the prerequisites stipulated in Art. 22b) of the
Regulations, namely if the principle of parity, i.e. equal representation of players
and clubs, was respected.
11.
In this regard, the Chamber drew its attention to Clause 72.2 of the Regulations of
Y-FL which states that “The FDC shall consist of a chairperson who shall be a
qualified Solicitor or Barrister with at least 5 years post-qualification experience and
two side members one of whom shall be selected by the Complainant and the other
by the Respondent”.
12.
In its deliberation, the Chamber drew the conclusion that Y-FL had established an
arbitration tribunal at national level which fulfilled the requirements of the
aforementioned Art. 22 b) of the FIFA Regulations, i.e. that the principle of equal
representation was respected as both parties had the right, without any restriction,
to appoint one representative.
13.
The members of the Chamber acknowledged that the Respondent had proved that
an independent arbitration tribunal in compliance with the requirements of the
FIFA regulations had been established by Y-FL and that the referral to the
Regulations of Y-FL in the employment contract was a binding consent of the
parties.
14.
Finally and for the sake of good order, the Chamber added that the player’s
argument that he had not lodged a formal claim before Y-FA or Y-FL was not
relevant as the lodging of a complaint is not a requirement of Art. 22b) of the FIFA
Regulations and as the player had already given his consent when signing the
employment contract and its Clause 5.
15.
In consequence, the Chamber decided that it is not competent to adjudicate on the
matter at hand.
____________________________________________________________________________________________________________
A / Club B
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the X player A is not admitted.
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:
Avenue de Beaumont 2
CH-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:
____________________________
Markus Kattner
Acting General Secretary
Enclosed: CAS directives
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A / Club B
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