Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 27 August 2009,
in the following composition:
Slim Aloulou, (Tunisia), Chairman
Theo van Seggelen, (Netherlands), member
Mario Gallavotti, (Italy), member
on the claim presented by the player,
A,
as Claimant
against the club,
S,
as Respondent
regarding a contractual dispute arisen between the parties
I.
Facts
1.
On 18 January 2006, the B player, A (hereinafter: the Claimant), and the J club, S
(hereinafter: the Respondent), concluded an employment contract (hereinafter:
the contract), valid from 1 February 2006 until 1 January 2007, for a total amount
of USD 383,800 (cf. clause 4 (1) of the contract).
2.
According to clause 4 (1) of the contract, the Claimant was entitled to receive a
monthly salary of USD 34,800 corresponding to the months from February 2006 to
November 2006 and USD 35,800 for December 2006.
3.
Clause 1 (3) of the contract provides that the Claimant must undertake efforts in
order not to negatively affect the prestige of J football, being aware of his
responsibility and representing a good example vis-à-vis the J football society as a
professional player in his public and private life.
4.
Clause 13 (1)(3) of the contract stipulates that the Respondent may immediately
rescind the contract in case the Claimant commits some act in violation of the
Criminal Law. According to clause 13 (2) of the contract, on rescinding the contract
based on the aforementioned condition, the Respondent will pay to the Claimant
on a pro rata basis the basic remuneration until the day of issuing the notification
of rescission.
5.
Clause 19 (2) of the contract establishes that in case of a dispute the matter shall
be submitted, as first judicial instance, to the Regional Court of H.
6.
On 5 October 2006, the Respondent sent a termination letter to the Claimant,
invoking clause 13 (1)(3) of the contract, since the Claimant had been detained by
the police for suspicion of assault on 28 September 2006.
7.
On 24 March 2008, the Claimant lodged a claim against the Respondent for breach
of contract without just cause, requesting USD 105,400 as outstanding salaries
corresponding to the salaries for the months of October, November and December
2006.
8.
The Claimant stated that the alleged assault was an excuse for the Respondent to
terminate the contract, being the reason behind it that the Respondent’s new
coach did not choose him to play in the first squad. According to the Claimant, by
invoking the episode of assault and terminating the contract, even before there
was any kind of investigation or a judgment, the Respondent violated art. 11 of
the Universal Declaration of Human Rights, which stipulates that everyone
charged with a penal offence has the right to be presumed innocent until proven
guilty. Moreover, the Claimant asserted not having been prosecuted neither by a
third party nor by the J authorities. In this respect, the Claimant explained that a
settlement (hereinafter: the settlement) with the other person involved in the
episode was reached, by means of which the Claimant was considered innocent
and his liability was limited to medical expenses.
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9.
In reply to the claim, the Respondent questioned the jurisdiction of the Dispute
Resolution Chamber (DRC), invoking art. 19 of the contract, by means of which the
Regional Court of H should be competent to hear the present dispute.
10.
Nevertheless, in case the DRC considers that it has jurisdiction to hear the case, the
Respondent submitted its position with regard to the substance of the matter.
11.
In this respect, first of all, the Respondent remarked that the Claimant accused its
coach without presenting any evidence to substantiate his claim. Furthermore, the
Respondent alleged that after an altercation produced in a restaurant in H on 27
September 2006, the Claimant was taken into custody by the police on charges of
assault. This incident attracted the media attention, causing a negative impact on
fans and sponsors. As a result of the episode, the Respondent itself was sanctioned
by the Professional Football League, and as a consequence had to issue a letter of
apology to the League, sponsors and stakeholders. In addition, 7 executives of the
Respondent were disciplined with pay cuts because of the incidents for which the
club was sanctioned by the League.
12.
Furthermore, the Respondent asserted to have terminated the contract after the
alleged assault involving the Claimant had been investigated and the Claimant
was arrested by the police for assault. Moreover, the Respondent argues that in
the settlement the Claimant recognized being guilty and asked for apologies. On
the other hand, the Respondent recognized that the Claimant was not prosecuted
by the prosecutor, but esteems that the prosecutor chose not to indict the
Claimant since the crime was not a grave one, the damage was compensated and
the Claimant repented his actions. However, the Respondent insisted that the
Criminal Code was violated.
13.
Finally, the Respondent alleged that there are no outstanding salaries, since they
were paid to the Claimant in accordance with article 13 (2) of the contract. With
regard to the salaries of October, November and December 2006, the Respondent
asserted that they are not due since the contract was terminated with just cause.
II.
Considerations
1.
First of all, the Dispute Resolution Chamber analysed whether it was competent to
deal with the case at hand. In this respect, it took note that the present matter
was submitted to FIFA on 24 March 2008. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2005; hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. art. 18 par. 2 and 3 of the Procedural Rules).
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 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2008; hereinafter: the Regulations) the Dispute Resolution
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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 B player and a J club.
3.
However, the Chamber acknowledged that the Respondent, with reference to art.
22 of the Regulations, claimed that not FIFA but the Regional Court of H was
competent to deal with the present case. In particular, the Chamber took note
that the Respondent argued that the right of the Respondent to go to court for
the resolution of the present dispute is clearly recognized in the forecited
provision, which expressly provides “without prejudice to the right of any player
or club to seek redress before a civil court for employment-related disputes, FIFA is
competent to hear: […] employment-related disputes between a club and a player
of an international dimension […]”.
4.
In this regard, the Chamber equally observed that the Respondent also stated that
clause 19 (2) of the relevant employment contract provided that “in the event a
judicial decision should be required, the first judicial instance will be the Regional
Court of H”.
5.
In this context, the Chamber acknowledged that the Claimant, based on art. 22 b)
and on art. 24 of the Regulations, decided to seek redress for the matter at stake
before FIFA.
6.
Taking into account the above, the Chamber emphasised that it was necessary to
ascertain which deciding body is competent to decide on the issue within the
football-related dispute resolution system. In other words, the competence of a
national court on one side and FIFA on the other must be determined.
7.
As a consequence, the Chamber started by acknowledging that, in accordance
with art. 62 par. 2 of the FIFA Statues (edition 2007), recourse to ordinary courts of
law is prohibited unless specifically provided for in the FIFA regulations.
8.
Notwithstanding the above, the Chamber deemed it appropriate to emphasise
that since the legislation of many countries provides for the compulsory
jurisdiction of ordinary courts for employment-related disputes, players and clubs
are entitled to seek redress before a civil court, i.e. those courts in the country in
question that are competent to decide on labour disputes, as an exception to the
abovementioned statutory principles. In line with the above, parties can therefore
decide to bring a labour dispute in front of a competent ordinary court. In the
present context, the members of the Chamber underlined that the choice of judge
is a fundamental right that cannot be denied.
9.
As a consequence of the above, the Chamber referred to art. 22 of the
Regulations, according to which any player or club is entitled to seek redress
before a civil court for employment-related disputes.
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10.
Equally, the Chamber went on to examine the documentary evidence presented
by the Claimant, i.e. the copy of the employment contract.
11.
In this respect, the Chamber drew its attention to the fact that the employment
contract at the basis of the present dispute contains an arbitration clause in favour
of a national court. In particular, clause 19 (2) of the said employment contract
makes explicit reference to the Regional Court of H as first judicial instance in the
event a judicial decision should be required (cf. point I. 5. above). Consequently,
the members of the Chamber concluded that the parties expressly agreed to
submit any possible dispute emanating from their contractual relationship to the
Regional Court of H.
12.
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 accepted and
that the Dispute Resolution Chamber does not have jurisdiction to deal with the
present affair, reason for which the claim of the Claimant is not admissible.
III.
Decision of the Dispute Resolution Chamber
The claim of the Claimant, A, is not admissible.
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Note relating to the motivated decision (legal remedy):
According to article 63 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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