Labour Disputes
Texto da decisão
REF FPSD-6806
Decision of the
Players’ Status Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the coach Juan
Antonio Carrillo Milán
BY:
Jesus Arroyo (Spain)
CLAIMANT:
Juan Carrillo Milán, Spain
Represented by Kristóf Wenczel
RESPONDENT:
DVSC Futballszervezo, Hungary
Represented by Andor Léka
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I. Facts of the case
1. On 7 November 2021, the Spanish coach Juan Carrillo Milán (hereinafter: the Claimant or
the Coach) and the Hungarian club DVSC Futballszervezo (hereinafter: the Respondent or
the Club) concluded an employment contract (hereinafter: the contract), valid as from 8
November 2021 until 30 June 2023.
2. In accordance with article 2.2 of the contract, the Claimant was employed as head coach
of the first team of the Respondent.
3. In accordance with chapter IX of the contract, inter alia:
“IX TERMINATION, IMMEDIATE TERMINATION
With regard to the status of the Employee as a senior employee, the Employer may terminate
this contract with a unilateral legal declaration (termination), without any obligation to state
reasons, in spite of the specified period of time, as follows:
-before the 30th of June 2022, by paying to the Employee the amount of the basic salary until
the 30th of June 2022 and the end-of-season bonus corresponding to the placement at the time
of termination...”
4. In accordance with article 22 and 23 of the contract:
“22. the parties agree to seek an amicable settlement of any dispute through negotiation. In
the event of failure to do so, the Parties shall have the right to apply to the dispute settlement
procedure of the FIFA Dispute Resolution Chamber.
23. The Parties shall apply the rules and regulations of MLSZ, UEFA, FIFA and the rules of
Hungarian law to their legal relationship. In matters not regulated in this contract, the
Hungarian Civil Code, The Sports Act, the LC and other relevant law and regulation shall prevail”.
5. On 27 June 2022, the Respondent sent a termination notice to the Claimant. The document
also contained the following indication: “the Employee may submit a claim in 3 copies against
the present termination notice to the Debrecen Regional Court ( I. Perenyi utca, Debrecen, H4026) within 30 days of its receipt. There is no suspensory effect of bringing an action”.
6. By correspondence on 1 July 2022, the Claimant indicated the Respondent that dismissal
was not in accordance with the Hungarian Labour Code and proposed to amicably settle
the case, requesting the Respondent to pay 9 months’ salary and the bonus.
7. On 24 July 2022, the Claimant lodged the claim at hand before FIFA against the Respondent
for termination without just cause.
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8. On 26 July 2022, the Claimant lodged a claim before the Tribunal of Székesfehérvár in
Hungary against the Respondent, requesting the amount of HUF 72,924,912 as
compensation corresponding to 12 months salary, the default interests being due since 27
June 2022 and legal costs. The Claimant argued that: (1) the dismissal shall be invalid, as it
was not signed by a person exercising the employer’s rights and it falsely indicated the
possibilities for legal remedy; and (2) the dismissal shall be unlawful, as it did not have legal
basis and the Respondent refused to comply with the precondition of dismissal.
9. On 24 August 2022, the Claimant sent a letter to the Tribunal of Székesfehérvár (Hungary)
indicating that:
“the jurisdiction of the court, based on the claimant’s domestic residence according to
paragraph (2) of the Hungarian Act CXXX of 2016 on the Code of Civil Procedure as follows:
1.) I am attaching the claimant's certificate of tax liability from the Hungarian National Tax and
Customs Administration. The proof of residence clearly proves the claimant's place of
residence in Hungary.
2.) I am also attaching the payment notice sent by the Hungarian National Tax and Customs
Administration to the claimant at his place of residence in Hungary, to be fulfilled by the
25th of May 2022.
3.) I am attaching the employer's financial certificate for the calendar year 2021 dated on the
8th of March2022, received for the personal income tax return”.
10. On 6 September 2022, the Tribunal of Székesfehérvár (Hungary) requested the
Respondent to submit its position regarding the claim within 45 days.
II. Proceedings before FIFA
11. On 24 July 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
12. According to the Claimant, the termination of the contract was not valid considering that
(1) it was not executed by the person who was appointed by the contract; (2) the unilateral
termination option (i.e. chapter IX of the contract) by the Club is to be executed
simultaneously with the payment of the basic salary until 30th June 2022 and the end-ofseason bonus; and (3) the information provided in the termination notice, contained false
information regarding the appeal against the termination i.e. the termination notice
referred to a national court in case of a dispute whereas the contract referred to FIFA
Football Tribunal.
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13. The Claimant indicated that the contract was terminated without just cause “according to
the Hungarian Labour Code and the FIFA regulations and jurisprudence the definite period
employment agreements cannot be terminated without just cause”.
14. On the basis of the foregoing the Claimant requested compensation equivalent to the
residual value of his contract in the amount of HUF 50,805,544 and the payment of HUF
15,000,000 as bonus. He also requested interest of 9.75% p.a. as from 27 June 2022.
15. It is to be pointed that the Claimant mainly referred in the claim to Hungarian regulations
and not FIFA regulations.
b. Position of the Respondent
FIFA’s lack of jurisdiction
16. According to the Respondent, the Hungarian labour courts (Regional Courts) have
jurisdiction and competence to settle legal disputes based on Hungarian employment
contracts and employment relationships in Hungary which is proven by the Claimant who
refers exclusively to the provision of the Hungarian Labour code.
17. Moreover, the Claimant has further initiated an employment lawsuit against the
Respondent before the competent Regional Court in Hungary, which acts as a Hungarian
labour Court. Thus, “it is absolutely impossible for the two proceeding initiated by the claimant
to be in progress before two authorities at the same time, and the claimant's claim arising from
die same factual basis is judged on its merits by two authorities at the same time”.
If FIFA does not reject the claim on the above point
18. The Respondent contested the arguments of the Claimant regarding the invalidity of the
termination, according to the Respondent the termination was performed by the person
who was entitled to do so. Moreover, the Respondent contested the amounts claimed
alleging that:
a. The amount of HUF 457,708 from 27 June 2022 to 30 June 2022 was paid.
b. The Claimant cannot claim the amount of HUF 50,347.836 for the period from 01 July
2022 to 30 June 2023, considering that the contract was terminated and cannot claim
such amount.
c. As to the HUF 15,000,000 bonus based on the final result of the 2022/2023
championship season, it cannot be claimed considering that the contract was
terminated. This amount is based on the future championship and is based on
assumptions.
d. The interests were also contested as the Respondent paid all the amount related to
the termination of said contract.
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19. On the basis of the foregoing the Respondent requested to establish lack of
jurisdiction/competence and to reject the claimant’s claim without a substantive
investigation and to terminate the proceedings. Alternative, If FIFA does not reject the
claim, the Respondent requested to reject the claim as it is unfounded in its legal basis and
to oblige the claimant to pay the Respondent the costs arising from the procedure.
c. Rejoinder of the Claimant
20. The Claimant argued that FIFA has jurisdiction base on the following arguments:
-
The Hungarian Labour Code strictly allows 30 days for an employee to file a claim
against any employer’s resolution, including unilateral termination. The Claimant
stated that: “as the respondent referred falsely to the exclusive jurisdiction to the Debrecen
Regional court in the Termination Notice. The claimant prudent and careful act was to file
to file his claim to the Székesfehérvár labor Court”.
-
The Claimant mentioned in the claim to the regional court that there is an ongoing
dispute process at FIFA between the parties.
-
The Claimant further mentioned that the claim to the national court happened after
the claim was filed to FIFA, therefore, the claim before FIFA has priority even on a timing
basis. Moreover, according to the Claimant, the Football Tribunal should ignore the
case filed to the Székesfehérvár labor Court, as is a conditional (supplementary) claim.
-
The Claimant stated that “FIFA Chambers and Tribunals are not “arbitral tribunals'' but
only internal decision-making bodies. they are not “arbitral tribunals” vested with real
jurisdictional powers, but only internal decision-making bodies, whose decisions are mere
embodiments of the will of the federation concerned… Consequently a formal collision of
jurisdictions is excluded”.
-
Finally, the Claimant also stated that “the choice of the dispute resolution forum cannot
be derived from the acceptance of legally binding national labour law. The employment
agreement and the entire relationship is governed by Hungarian law. The applicable law
does not establish an exclusive jurisdiction of the Hungarian regular courts”.
21. As to the merits, the Claimant challenged the arguments of the Respondent and
concluded that the termination of contract was without just cause.
d. Final comments of the Respondent
22. The Respondent indicated the following:
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“the claimant tries to make it seem as if a formal conflict between the jurisdiction of the
Hungarian labour court and FIFA is excluded, i.e. both bodies are entitled to act in parallel with
each other and, where applicable, independently of each other, to make a binding decision in
the present case, which is an obviously wrong, unfounded and contradictory reference that goes
against all general legal principles and legal provisions. The importance of the decisions of the
Honourable FIFA and their binding force is shown by the fact that if a specific sports organization
does not comply with the provisions of FIF A's decisions, it has such serious legal consequences
that even its license to compete in the national championship may be revoked”.
23. Moreover, the Respondent stated that generally acknowledges that the jurisdiction of FIFA
exists; however, according to its position, the Regional Court acting as a Hungarian labour
court is entitled to conduct the proceedings in this case, which is also confirmed by the
following: (1) the employment contract is concluded in accordance with Hungarian law; (2)
employment relationship between Hungarian employer and employee working in
Hungary; (3) the Claimant refers exclusively to the provisions of the Hungarian Labour
code and the claimant has a permanent place to stay in Hungary; and (4) the Claimant
submitted his claim before the Hungarian labour court.
24. As to the merits, the Respondent’s indicated that the termination of the contract was valid.
III. Considerations of the Players’ Status Chamber
a. Competence and applicable legal framework
25. First of all, the Single Judge of the Players’ Status Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 24 July 2022 and
submitted for decision on 22 November 2022. Taking into account the wording of art. 34
of the October 2022 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
26. Having so determined, the Single Judge recalled the basic principle of burden of proof, as
stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a
right on the basis of an alleged fact shall carry the respective burden of proof. Likewise,
the Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to
which he may consider evidence not filed by the parties, including without limitation the
evidence generated by or within the Transfer Matching System (TMS).
27. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. c) of
the Regulations on the Status and Transfer of Players (October 2022 edition), the Single
Judge is, in principle, competent to deal with the matter at stake, which concerns an
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employment-related dispute with an international dimension between a Spanish coach
and a Hungarian club.
28. The Single Judge noted however that the competence of FIFA is disputed in the matter at
hand, since the Respondent argues that the claim is inadmissible as the relevant labour
courts in Hungary are in fact competent.
29. The Single Judge recalled that the competence shall be examined also ex officio, as there
seems to exist elements of Forum Shopping since the Claimant lodged two parallel claims
before FIFA and in Hungary.
30. In this respect, the Single Judge referred to the Commentary on the Regulations on the
Status and Transfer of Players (p. 372), which sheds the following light on the concept of
forum shopping:
“The final considerations concern the practice known as “forum shopping” – a party taking the
same matter to multiple fora in the hope of obtaining the result that suits its purposes. The
relevant jurisprudence is designed to prevent such behaviour, which is viewed as illegitimate. A
party should not be able to game the system by having multiple fora hear the same argument
in the hope one of them will hand down the judgment it wants. For example, a party should not
be allowed to ask a national body to confirm that a contract has been breached without just
cause, and then, having obtained a favourable decision at national level, ask the DRC to set the
compensation payable in the case. The principle that a party that has chosen to have a case
heard under one competent jurisdiction cannot then have recourse to another (known
colloquially as “forum shopping”) is consistently applied.”
31. While in the case at hand FIFA was seized first, it is also clear that the Claimant decided
two days later to file a claim to the Hungarian Civil tribunal. It is to be noted that both
claims had the same content, also similar amounts were requested.
32. The Claimant grounds his position on the admissibility on the fact that (1) due to the
Hungarian strict deadline, the Claimant prudent and careful act was to file to file; (2) FIFA
tribunals are not “arbitral tribunals” but only internal decision-making bodies and thus a
formal collision of jurisdictions is excluded.
33. On this note and as opposed to the Claimant’s argumentation, the Single Judge was firmly
of the opinion that the Claimant indeed engaged in a sophisticated form of forum shopping:
the Claimant filed the FIFA Claim first, admittedly hoping that this would create lis pendens
vis-à-vis the Hungarian Claim and its particularities. The Hungarian Claim however is, as
per the information on file, still ongoing.
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34. The Single Judge finds this behaviour pivotal in the matter at hand, given that the Claimant
deliberately acted in a manner to conduct two identical proceedings only to determine,
later and at his convenience, which proceedings he preferred to carry on with.
35. The Single Judge was comforted to rule that this attempt to manipulate the system at the
Claimant’s will cannot subsist for, the Claimant’s position is contradictory. If he wanted FIFA
to adjudicate on the FIFA Claim (and he was certain of FIFA’s jurisdiction per his statement
of claim), the Claimant should have abstained from filing the Hungarian Claim.
36. Moreover, the Single Judge highlighted that allowing the Claimant’s claim to be entertained
would be in sharp opposition with the jurisprudence of FIFA and CAS in the matter of forum
shopping (for reference, the cases Stancu, Simkovic and 0181141-FR ruled upon by the
Dispute Resolution Chamber, as well as the matter CAS 2007/A/1301 Ituano Sociedade de
Futebol Ltda v. Silvino João de Carvalho, Buyuksehir Belediyesi Ankaraspor & Fédération
Internationale de Football Association (FIFA), award of 10 March 2008, for instance). The Single
Judge particularly underlined the wording under Simkovic:
“The DRC observed that it therefore cannot condone the conduct of a player or a club who has
specifically chosen to submit a labour dispute to the aforementioned national body/court, and
then subsequently submits the identical or essentially identical dispute between the same
parties, based on the same legal framework i.e. the employment contract, to the FIFA Dispute
Resolution Chamber; the same is to be noted if the party submits a claim first before the
FIFA DRC and thereafter lodges the same claim in front of the national body.” (emphasis
added).
37. The Single Judge therefore concluded that once the player lodged the Hungarian Claim,
the Claimant de facto renounced to have his FIFA Claim heard by the Football Tribunal.
38. Based on the foregoing, the Single Judge confirmed that the Claimant’s claim is
inadmissible.
b. Costs
39. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were
to be imposed on the parties.
40. Likewise and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
41. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Players’ Status Chamber
1. The claim of the Claimant, Juan Antonio Carrillo Milan, is inadmissible.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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