Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 August 2012,
in the following composition:
Geoff Thompson (England), Chairman
Rinaldo Martorelli (Brazil), member
Jon Newman (USA), member
Zola Percival Majavu (South Africa), member
Theodoros Giannikos (Greece), member
on the claim presented by the player
J,
as Claimant
against the club
A,
as Respondent
regarding an employment-related dispute arisen between the parties.
I.
Facts of the case
1.
On 10 August 2007, the country B player, J (hereinafter referred to as the Claimant
or the player J), and the country C club, (hereinafter referred to as the Respondent
or the club A), concluded an employment contract (hereinafter: the contract) valid
from “the date that the [player J] is registered to the [club A]” until 31 May 2008.
2.
The contract, in its art. 3 a), provided for a total remuneration in the amount of
EUR 15,000 payable in ten equal instalments of EUR 1,500. The first salary was due
on 30 August 2007, and the next ones on the last day of the consecutive month.
3.
Art. 14 of the contract stipulates that “the [player J] agrees to adhere to the Rules,
Regulations and Bye-Laws of the Football Association C and/or of the Dispute
Resolution Committee of Football Association C in case of any grievance and/or
any dispute with the [club A]”.
4.
On 31 May 2010, after having allegedly fulfilled all his contractual obligations, the
player lodged a complaint before FIFA, claiming that the club A had failed to pay
him the last five instalments.
5.
The Claimant requested in particular outstanding salaries in the total amount of
EUR 7,500 corresponding to the salaries between January and May 2008.
6.
In its statement of defence, the Respondent rejected the player’s claim by alleging
that it had paid the salaries in full. Furthermore, the club A also contested the
competence of FIFA by referring to art. 14 of the contract according to which any
dispute arisen between the parties shall be submitted to the Dispute Resolution
Committee of the Football Association C (FAC).
7.
However, the Claimant insisted that, according to art. 22 and 24 of the FIFA
Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber
(DRC) would be the competent body to decide on the present matter, adding that
art. 22.11 of the Regulations of the Football Association C (cf. point I./8. a. below)
would neither exclude, nor preclude the jurisdiction of FIFA. In this sense,
“according to the hierarchy of international standards, the competence of the
[DRC] deviates the other entities of judgment”.
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8.
9.
Upon FIFA’s request to provide the pertinent regulations as well as the procedural
rules, the Football Association C provided a copy of the “Regulations for the
registration and transfer of football players” (edition 2005; hereinafter: the
Regulations of the Football Association C), which entered into force on 15 June
2005.
a)
With regard to the jurisdiction of the Dispute Resolution Committee
(hereinafter: the Committee):
According to art. 22.11 of the Regulations of the Football Association C, the
Committee is competent to “adjudicate and/or resolve any financial or other
disputes which may arise: a) between clubs and non-amateur players […]”.
b)
as to the composition:
Art. 22.1 par. 1 of the Regulations of the Football Association establishes
that the Committee consists of five members (Chairman, Vice-Chairman and
three members). The Chairman, Vice-Chairman and one of the three
members are elected by the Executive Committee of the Football Association
C, whereas the two remaining members are nominated by the Football
Players’ Association
c)
finally, with respect to the possibility of an appeal:
Concerning the possibility of an appeal against a decision taken by the
Committee, art. 22.10 stipulates that “any decision of the [Committee] may
be appealed to the Disciplinary Authority of the [Football Association C]. The
Disciplinary Authority shall finally decide on the appeals referred thereto”.
With regard to the current version of the Regulations of the Football Association
C, the latter Association informed that a new edition had come into force on 1
April 2012, which shall be applicable to procedures commencing after that date.
However, in this new version there is no substantial change compared to the 2005
edition. The only amendment was regarding the appeal body, which is now the
“Court of Appeal of the Association” (cf. art. 22.35 par. 1 of the current version of
the Regulations of the Football Association C). The composition of said appeal
body is still not stipulated in the Regulations.
*****
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as the DRC or
the Chamber) analysed whether it was competent to deal with the matter at
stake. In this respect, the Chamber referred to art. 21 par. 1 of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber. The present matter was submitted to FIFA on 31 May 2010,
thus, after the aforementioned Rules entered into force on 1 July 2008. Therefore,
the Chamber concluded that the edition 2008 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(DRC) (hereinafter: the Procedural Rules) is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and 2 in
combination with art. 22 b) of the Regulations on the Status and Transfer of
Players (edition 2010; hereinafter: the FIFA Regulations), the Dispute Resolution
Chamber shall adjudicate on 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 the
competent body to decide on the present litigation involving a player and a club
regarding outstanding salaries based on an employment contract.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of the clause 14 of the
employment contract according to which any dispute arisen between the parties
shall be submitted to the Dispute Resolution Committee of the Football
Association C.
5.
In this regard, the Chamber noted that the Claimant rejected such position and
insisted on the fact that FIFA has jurisdiction to deal with the present matter.
6.
Taking into account the above, the Chamber emphasised that in accordance with
art. 22 lit. b) of the 2010 edition of the Regulations on the Status and Transfer of
Players it is competent to deal with a matter such as the one in 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 the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the
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members of the Chamber further referred to the principles contained in the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations, which came
into force on 1 January 2008.
7.
While analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber deemed first and foremost of utmost importance to highlight
that the present dispute pertains to the execution of an employment contract, and
that it is questionable if the latter agreement contains any jurisdiction clause.
8.
Having said this, for the sake of completeness, the members of the Chamber
turned to clause 14 of the employment contract, on the basis of which the
Respondent contested FIFA’s jurisdiction. According to said clause 14, “the
[Claimant] agrees to adhere to the Rules, Regulations and Bye-Laws of the
Football Association C and/or of the Dispute Resolution Committee of Football
Association C in case of any grievance and/or any dispute with the [Respondent]”.
9.
Hence, art. 14 of the employment contract clearly does not refer to a national
dispute resolution chamber or any similar arbitration body in the sense of art. 22
lit. b) of the aforementioned Regulations. Therefore, the members of the
Chamber deemed that said clause does rather not constitute an arbitration clause,
but rather a clause concerning a choice of law.
10.
However, the members of the Chamber wished to stress that, even if the contract
at the basis of the present dispute would have included such arbitration clause in
favour of national dispute resolution, the Respondent was unable to prove that, in
fact, the Dispute Resolution Committee of the Football Association C meets the
minimum procedural standards for independent arbitration tribunals as laid down
in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in the
FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations.
11.
In this respect, the DRC referred to the general principle of equal representation
of players as well as of clubs, and underlined that this principle was one of the
very fundamental elements to be fulfilled, in order for a national dispute
resolution chamber to be recognised as such.
12.
Indeed, this prerequisite is not only mentioned in the Regulations on the Status
and Transfer of Players, but also in the FIFA Circular no. 1010 as well as in art. 3
par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as
follows: “The NDRC shall be composed of the following members, who shall serve
a four-year renewable mandate: a) a chairman and a deputy chairman chosen by
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consensus by the player and club representatives […]; b) between three and ten
player representatives who are elected or appointed either on proposal of the
players’ associations affiliated to FIFPro, or, where no such associations exist, on
the basis of a selection process agreed by FIFA and FIFPro; c) between three and
ten club representatives […].” In this respect, the FIFA Circular no. 1010 states the
following: “The parties must have equal influence over the appointment of
arbitrators. This means for example that every party shall have the right to
appoint an arbitrator and the two appointed arbitrators appoint the chairman of
the arbitration tribunal […]. Where arbitrators are to be selected from a
predetermined list, every interest group that is represented must be able to
exercise equal influence over the compilation of the arbitrator list.”
13.
The members of the Chamber concurred that the country C “Regulations for the
registration and transfer of football players” (editions 2012 and 2005), in
accordance with which, inter alia, the chairman, vice-chairman as well as one
member are elected by the Executive Committee of the Football Association C,
and two members are elected by the Football Players’ Association, do not meet
the principle of equal representation as established by FIFA.
14.
In view of all the above, the Chamber established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be
rejected, and that the Dispute Resolution Chamber is competent, on the basis of
art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider
the present matter as to the substance.
15.
In continuation, the Chamber analysed which edition of the FIFA Regulations
should be applicable as to the substance of the matter. In this respect, it referred,
on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (edition 2010), and, on the other hand, to the fact that the
present claim was lodged in front of FIFA on 31 May 2010. The DRC concluded
that the previous version of the regulations; i.e. the 2009 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations), is
applicable to the matter at hand as to the substance.
16.
Subsequently, the Chamber duly noted that with regard to the fact that the
employment contract at the basis of the dispute was concluded on 10 August
2007, and that the player had lodged his claim on 31 May 2010, it should examine
if the present claim should be considered as time-barred.
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17.
In view of the above, the Chamber deemed fundamental to underline that in
order to determine whether it could hear the present matter, it should, first and
foremost, establish which is “the event giving rise to the dispute”, i.e. which is the
starting point of the time period of two years as set out under art. 25 par. 5 of the
Regulations. In this respect, the Chamber referred to the claim of the player,
according to which the latter requested outstanding salaries for the period
between January and May 2008.
18.
On account of the foregoing and in accordance with clause 3 a) of the
employment contract, which stipulates that the salaries were due on the last day
of the consecutive month, the Chamber unanimously decided that the event
giving rise to the dispute and hereby the starting point of the time period of two
years set out under art. 25 par. 5 of the Regulations regarding the salaries from
January until May 2008 occurred on 29 February, 31 March, 30 April, 31 May and
30 June 2008 respectively.
19.
Therefore, the DRC held that the time period of the two years had elapsed on
29 February, 31 March, 30 April, 31 May and 30 June 2010 respectively.
20.
As a consequence, recalling that the present claim was submitted to FIFA on
31 May 2010, the members of the Chamber decided that the time limit of two
years had elapsed for the salaries of January, February and March 2008. Therefore,
only part of the claim of the player can be heard by the Dispute Resolution
Chamber, i.e. the claim for the salaries of April and May 2010.
21.
In continuation, and entering into the substance of the matter, the members of
the Chamber reminded that the parties had signed, on 10 August 2007, an
employment contract, in accordance with which the Claimant was entitled to
receive a monthly salary of EUR 1,500.
22.
The DRC then turned to the complaint of the Claimant, who maintained that the
club A had failed to pay him the amount of EUR 7,500 corresponding to the
salaries from January until May 2010.
23.
Subsequently, the Chamber noted that the Respondent, in its statement of
defence, maintained that it had fully paid the player’s salaries without, however,
providing any supporting documentary evidence. In this context, the members of
the Chamber referred to the general legal principle of the burden of proof
contained in art. 12 par. 3 of the Procedural Rules, according to which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof.
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24.
Therefore, the DRC established that the Respondent failed to prove that it had
effectively paid the Claimant in full. Consequently, the Chamber concluded that it
had to reject the Respondent’s position.
25.
Hence, the Chamber decided that, in virtue of the general legal principle of “pacta
sunt servanda”, and in accordance with point II./20. above, the Respondent is
liable to pay the amount of EUR 3,000 to the Claimant, which is due to the latter
player on the basis of the employment contract concluded between the parties.
26.
In conclusion, the Dispute Resolution Chamber resumed that the claim is
admissible, that it is partially accepted, obliging the Respondent to pay the
amount of EUR 3,000 to the Claimant, and that any further requests filed by the
Claimant are rejected.
*****
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, J, is admissible.
2.
The claim of the Claimant, J, is partially accepted.
3.
The Respondent, Club A, has to pay to the Claimant, J, outstanding remuneration
in the amount of EUR 3,000 within 30 days as from the date of notification of
this decision.
4.
Any further requests filed by the Claimant, J, are rejected.
5.
If the aforementioned amount is not paid within the aforementioned deadline, an
interest rate of 5% per annum will apply as of expiry of the fixed time limit and
the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for its consideration and a formal decision.
6.
The Claimant, J, is directed to inform the Respondent, Club A, immediately and
directly of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
*****
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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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