Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 16 July 2009,
in the following composition:
Slim Aloulou (Tunisia), Chairman
Joaquim Evangelista (Portugal), member
Mario Gallavotti (Italy), member
on a matter between the player,
F from P
represented by Mr B, lawyer
as Claimant
and the club,
C from R
as Respondent
regarding a contractual dispute arisen between the parties.
I.
Facts of the case
1.
On 18 December 2006, the player F (hereinafter: the Claimant) signed a first
employment contract with the R club C (hereinafter: the Respondent) for the
period between 1 January 2007 and 30 June 2010.
2.
Under the employment contract, the Claimant was entitled to receive the total
sum of EUR 599,000 as salary, a sign on fee of EUR 119,000 and different
performance bonuses.
3.
The contract also contained a clause (par. 11.1) that stated that any disputes
between the two parties would be submitted to the R Football Federation and the
authorities of the national football league responsible for resolving similar
disputes.
4.
The two parties signed a second employment contract on 3 January 2008 for the
period up to 30 June 2010. Under this contract, the Claimant was entitled to
receive the net amount of EUR 372,000 as salary and different performance
bonuses.
5.
This contract also contained a clause (par. 12.1) that stated that any disputes
between the two parties would be submitted to the competent bodies of the R
Football Federation and the Professional Football League.
6.
The Claimant played for the Respondent on a regular basis in the 2007-08 season.
On 14 June 2008, the Claimant reported to the Respondent to begin pre-season
training for 2008-09. After being told that he would be playing for the
Respondent’s second team, he allegedly was given permission to start negotiations
with the G club S, but the negotiations were unsuccessful and the Claimant then
played ten matches for the Respondent’s second team.
7.
On 7 October 2008, the Claimant informed the Respondent that he was
terminating the employment contract, stating that he had not received all of his
salary and bonus payments.
8.
On 27 October 2008, the Respondent filed a claim against the Claimant with the
National Dispute Resolution Chamber of the R Football Federation (hereinafter:
the NDRC).
9.
On 29 October 2008, the Claimant submitted a claim to FIFA demanding that the
Respondent pay the sum of EUR 353,450, corresponding to outstanding salaries
and different performance bonuses.
10.
On 5 November 2008, FIFA acknowledged receipt of the Claimant’s claim and
notified the Respondent via the R Football Federation.
11.
The Claimant had asked the NDRC to suspend proceedings until a decision had
been passed by the FIFA Dispute Resolution Chamber (DRC). However, the NDRC
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had rejected this request and noted that there was no regulatory reason for such a
step and that the proceedings could not be influenced by any decision taken by
the DRC. The NDRC also stated that the judicial bodies of the R Football
Federation were the only bodies that were competent to pass a decision on the
matter at hand.
12.
The NDRC passed a decision on 15 January 2009, rejecting the request to suspend
proceedings until a decision had been passed by the DRC, and accepting the
Respondent’s claim. The NDRC stated that the Claimant had terminated his
contract unilaterally and without just cause.
13.
Consequently, the NDRC suspended the Claimant for 16 matches and ordered him
to pay EUR 390,000 (equal to the transfer compensation paid by the Respondent
to the Claimant’s former club), EUR 59,000 and N 416,770 (these two sums
corresponding to 50% of the sum already received by the Claimant in the form of
salary payments, the 50% representing the Respondent’s claim), as well as N 430 in
procedural costs.
14.
On 25 February 2009, the Claimant informed FIFA that he had signed an
employment contract with the U club A, but as the international transfer
certificate (ITC) stated that he was suspended for 16 matches, the U club had
cancelled the contract. The Claimant therefore asked FIFA to rule that the decision
passed by the NDRC was illegal and that he could play as he was not suspended.
15.
On 17 March 2009, the Respondent submitted a statement in relation to the
dispute. The Respondent stated that the DRC was not competent because the
NDRC had passed a decision, and as the Claimant had not appealed against this
decision, it had already come into force as a final decision.
16.
The Respondent confirmed that it had signed an employment contract with the
Claimant on 18 December 2006 for the period from 1 January 2007 to 30 June
2010, but a second contract had been signed on 3 January 2008 for the period
between 1 January 2008 and 30 June 2010. According to the Respondent, the first
contract had been cancelled as soon as the new contract had been signed.
17.
The Respondent stated that the Claimant’s unilateral termination had been
without just cause, and that it did not owe the Claimant any money. The
Respondent also made reference to the R Football Federation regulations, which
state that a player has just cause to terminate a contract if he does not receive his
salary for a period of 60 days after payability. Consequently, the Respondent
stated that, assuming that it had not paid part of the salary for August 2008, the
Claimant would have been able to terminate his contract on 5 November 2008.
18.
At this stage, FIFA informed the parties that the DRC, when taking a decision in
the present matter, would first decide upon its competence, and in case the said
body declares itself competent to decide the case, it would also decide on the
substance of the matter.
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19.
In his response to the statement of the Respondent, the Claimant manifested that
he believed that the NDRC had not met the demands stipulated in art. 22b) of the
Regulations on the Status and Transfer of Players (edition 2008; hereinafter: the
regulations) and that the NDRC did not guarantee fair proceedings. Furthermore,
the Claimant claimed that the contract signed on 16 January 2008 had only been
signed in R, and the Respondent had assured him that the contract was identical
to the previous contract.
20.
The Claimant stated that there had been two reasons to terminate the contract
with just cause:
- the fact that he had not received his salary and bonus payments;
- the fact that art. 15 of the Regulations provides for a player terminating a
contract prematurely with just cause.
21.
With regard to the alleged outstanding salary payments, the Claimant stressed
that he had never received these amounts, and stated that the Respondent had
not been able to prove that the payments had been made. He stated that the
salary payments had always been made too late, and that he had only received a
proportion of his salary for July 2008.
22.
With regard to these amounts, the Claimant also claimed that the Respondent had
not only had an obligation to pay his salary, but also the costs stipulated in
paragraphs 5.2 and 5.3 of the contract, notably accommodation, meals, plane
tickets and “cash bonuses”.
23.
On 30 April 2009, the Respondent submitted its response. With regard to the
competence of the NDRC, the Respondent stressed that art. 3 of the “Rules
Governing the Organizing and the Functioning of the National Dispute Resolution
Chamber” of the R Football Federation (hereinafter: the NDRC Regulations)
stipulated that the tribunal would be composed of three player representatives
proposed by the association of amateur and non-amateur players (AFAN), an
association affiliated to FIFPro, as well as three club representatives proposed by
the R Football Federation Executive Committee.
24.
Additionally, the Respondent manifested that art. 8 of the NDRC Regulations also
stipulated that the parties’ fundamental legal rights were guaranteed, particularly
in terms of their right to be treated equally, to support its position, to examine
the case files, to ask and participate in the gathering of evidence, and the right to
receive a motivated decision.
25.
The Respondent stated that the Claimant had accepted the jurisdiction of the
NDRC when he signed the contract and its clause governing jurisdiction, and also
when he allowed the AFAN to represent him in front of the NDRC.
26.
The Respondent also stated that the Claimant had not received a summons
because he had terminated his contract and returned to P. Nevertheless, he had
still given the AFAN permission to represent him at the NDRC on 26 November
2008.
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27.
In addition, the Respondent claimed that all of the documents had been in R
because it and the AFAN could communicate in R, and furthermore, it could not
be held responsible for communication problems between the Claimant and his
representative. The Respondent also claimed that the Claimant had been able to
exercise all of his rights through his legal representative.
28.
The Respondent also stated that the Claimant had signed the contract in R, and
that he had been able to understand the contract when he signed it. Furthermore,
the Respondent added that the Claimant, in claiming sporting just cause, had not
met the formal conditions laid down in art. 15 of the Regulations, most notably
because he had terminated his contract in writing on 7 October 2008.
29.
In a letter dated 24 June 2009, FIFA asked the Respondent – through the R
Football Federation – to present the legal, statutory and regulatory foundations of
the NDRC, as well as to explain why this judicial body met the conditions laid
down in art. 22 of the Regulations.
30.
The R Football Federation submitted a declaration to confirm that the NDRC was
acting in accordance with art. 56 and art. 57 of its Statutes, as well as in
accordance with the conditions laid down in the regulations in relation to the
organisation and scope of activity of the NDRC. The R Football Federation also
submitted a copy of the NDRC Regulations. In its declaration, the R Football
Federation gave a general assurance that the NDRC respected the fundamental
principles of independence and impartiality as laid down in FIFA’s regulations.
31.
Art. 3.1 of the NDRC Regulations stipulate that the NDRC shall consist of the
following members for a renewable term of four years:
- a chairman and a deputy chairman, appointed by agreement between
representatives of players and clubs, from a list containing at least five persons
and “prepared” by the R Football Federation Executive Committee;
- three player representatives proposed by the AFAN;
- three club representatives, proposed by the R Football Federation Executive
Committee.
32.
Art. 3.4 of the NDRC Regulations establishes that the panels are composed of at
least 3 members, the chairman or the vice-chairman having to participate in each
of the proceedings.
33.
Art. 5 of the NDRC Regulations provides for the venue, which is at the R Football
Federation headquarters.
34.
Art. 7 of the NDRC Regulations establishes incompatibility rules for the NDRC
members, such as that the NDRC members cannot be members of the R Football
Federation Executive Committee or employees of the R Football Federation or the
Professional Football League (PFL).
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35.
Art. 8 of the NDRC Regulations guarantees that the fundamental procedural rights
are respected, in particular the right to equal treatment and the right to support
one’s action, to examine the file, to solicit to and to participate in the
presentation of evidence and to obtain the grounds of the decision.
36.
Art. 22 of the NDRC Regulations treats the possibility of the parties to appeal the
decision. Such an appeal can be filed against the decisions of the NDRC before the
Court of Arbitration for Football, within 21 days upon communication of the
grounds of the decision.
37.
Art. 23 of the NDRC Regulations affirms that the said Regulations were approved
by the Executive Committee on 9 May 2008 and entered into force on 1 July 2008.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber analyzed whether it was competent
to deal with the matter at hand. 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: the
Procedural Rules). The present matter was submitted to FIFA on 29 October 2008,
thus after 1 July 2008. Therefore, the Dispute Resolution Chamber concluded that
the revised Procedural Rules (edition 2008) are applicable to the matter at hand.
2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1
of the Procedural Rules states that the Dispute Resolution Chamber shall examine
its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and
Transfer of Players (edition 2008; hereinafter: the Regulations). In accordance
with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the
aforementioned Regulations, the Dispute Resolution Chamber would, in
principle, be competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a P player
and a R club.
3.
However, the Chamber acknowledged that the Respondent, with reference to
the second part of art. 22 lit. b) of the Regulations, claimed that not FIFA but the
National Dispute Resolution Chamber of the R Football Federation (hereinafter:
the NDRC) was competent to deal with the present case. In particular, the
Chamber took note that the Respondent argued that an equitably represented,
independent, national arbitration tribunal such as that demanded by the FIFA
Regulations (art. 22 lit. b) of the Regulations) existed in R and that the parties
had agreed in par. 12.1 of the employment contract concluded between them on
3 January 2008 (par. 11.1 of the first employment contract concluded between
them on 18 December 2006) that, if a dispute arose, such dispute should be
submitted to the competent bodies of the R Football Federation and the
Professional Football Leagues (i.e. the NDRC).
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4.
In this regard, the Chamber observed that the Claimant argued that the
arbitration tribunal in question did not comply with the requirements established
in art. 22 lit. b) of the Regulations, i.e. that FIFA was competent to decide on the
present issue.
5.
As a consequence, the Chamber started by acknowledging that, despite being
entitled to seek redress before an ordinary national court of law, the parties did
not dispute that the matter at hand was brought to an alternative dispute
resolution process within football.
6.
Taking into account the above, the Chamber emphasized that it was necessary to
ascertain who is competent to decide on the issue within the football-related
dispute resolution system. In other words, the competence of a national deciding
body on the one side and FIFA on the other must be determined.
7.
In this regard, the Chamber referred to art. 22 b) of the Regulations, according to
which it 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 Chamber
referred to FIFA Circular no. 1010 dated 20 December 2005 and the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations which came into force on 1 January 2008.
8.
In view of the above, the Chamber went on to examine the documentary
evidence presented by the Respondent and the R Football Federation, i.e. the
copy of the “Rules Governing the Organizing and the Functioning of the National
Dispute Resolution Chamber” of the R Football Federation (hereinafter: the NDRC
Regulations).
9.
In this respect, the Chamber acknowledged that according to the relevant part of
art. 1 of the NDRC Regulations, the NDRC has the competence to “solve disputes
arising between clubs and players in relation to employment/ provision of services
and contractual stability, as well as disputes between clubs, as follows: a) disputes
regarding the interpretation, enforcement and performance of the contractual
clauses in the agreements executed between clubs and players, as well as
regarding the maintenance of contractual stability….”.
10.
Furthermore, and referring to the composition of the said R decision-making
body, the Chamber noted that in accordance with art. 3 of the NDRC Regulations
the NDRC is composed of an equal number of player and club representatives, as
follows:
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a) a chairman and a deputy chairman, chosen by consensus by the
representatives of players and of clubs from a list of minimum five
persons prepared by the R Football Federation Executive Committee;
b) three player representatives, on the proposal of the Association of
Amateur and Non-amateur Football Players;
c) three club representatives, on the proposal of the R Football Federation
Executive Committee.
In this respect, the Chamber acknowledged that the NDRC adjudicates in panels
made up of at least three members and that the panels shall always include an
equal number of members representing the clubs and the players (cf. art. 3 par. 4
of the NDRC Regulations) in obedience of the principle of perfect parity of the
contractual parties.
11.
Additionally, the Chamber noted that in proceedings before the NDRC, in
accordance with art. 8 of the NDRC Regulations: “the fundamental procedural
rights of the parties are guaranteed, especially the right to equal treatment and
the right to support one’s actions, to examine the file, to solicit to and to
participate in the presentation of evidence and to obtain the grounds of the
decision”.
12.
Furthermore, the Chamber established that in accordance with art. 22 of the
NDRC Regulations, appeals can be filed against the decisions of the NDRC before
the Court of Arbitration for Football.
13.
Consequently, and taking into consideration the entire structure and functioning
of the NDRC as set out in the NDRC Regulations, the Chamber deemed that the
Respondent was able to prove that, for the period comprehended between
October 2008 and January 2009, the NDRC met the minimum procedural
standards for independent arbitration tribunals as laid down in art. 22 b) of the
Regulations, FIFA Circular no. 1010 and also in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations which came into force on 1
January 2008.
14.
Finally, the Chamber was eager to emphasise that the employment contract at
the basis of the present dispute contains an arbitration clause in favour of
national arbitration. In particular, par. 12.1 of the said employment contract
states the following: “Any dispute between the Parties arising from or in
connection with this Agreement, including its validity, interpretation, execution
or termination, shall be settled amiably. Unless the Parties shall reach an amicable
resolution then any such dispute shall be submitted to the competent bodies of
the R Football Federation and the Professional Football League.
15.
In view of all the above, the Chamber established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be
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accepted and that the Dispute Resolution Chamber is not competent, on the basis
of art. 22 lit. b) of the Regulations, to consider the present matter as to the
substance.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, F, is not admissible.
***
Note relating to the motivated decision (legal remedy):
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:
Markus Kattner
Deputy Secretary General
Encl.
CAS directives
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