Dispute Resolution Chamber
Texto da decisão
REF FPSD-580
Decision of the
Dispute Resolution Chamber
passed on 21 April 2021
regarding an employment-related dispute concerning the player Yi Chen
BY:
Pavel Pivovarov (Russia), DRC Judge
CLAIMANT:
Yi Chen, Chinese Taipei
Represented by Jan Schweele
RESPONDENT:
CD Cova de Piedade, Portugal
Represented by Luis Cassiano Neves / Matilde Costa Dias / Frederico
Bensimon / Gabriel Eguinoa
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I.
FACTS OF THE CASE
1.
On 29 January 2017, the Taiwanese player Yi Chen (hereinafter: Claimant), and the
Portuguese club, CD Cova de Piedade (hereinafter: Respondent) signed an employment
contract (hereinafter: Contract or Agreement) valid as from said date until 30 June 2021.
2.
In accordance with the employment contract, the Respondent undertook to pay the
Claimant’ salary as per the following terms:
3.
•
2016/2017 season: EUR 5,361.15 (five thousand three hundred and sixty-one euros
and fifteen cents) to be paid in five (5) monthly instalments of EUR 1,072.23 (one
thousand and seventy-two euros and twenty-three cents) each, the first of which
would become due on 5 March 2017 and the remaining ones on the 5th (fifth) day
of the following month to which it refers;
•
2017/2018 season: EUR 12,866.70 (twelve thousand eight hundred and sixty-six
euros and seventy cents) to be paid in twelve (12) monthly instalments of EUR
919.05 (nine hundred and nineteen euros and five cents) each, the first instalment
would be paid on 5 August 2017 and the remaining instalments on 5th (fifth) day of
the following month to which it refers;
•
2018/2019 season: EUR 12,866.70 (twelve thousand eight hundred and sixty-six
euros and seventy cents) to be paid in twelve (12) monthly instalments of EUR
919.05 (nine hundred and nineteen euros and five cents) each, the first of which
shall be due on 5 August 2018 and the others on 5th (fifth) day of following month
to which it refers;
•
2019/2020 season: EUR 12,866.70 (twelve thousand eight hundred and sixty-six
euros and seventy cents) to be paid in twelve (12) monthly instalments of EUR
919.05 (nine hundred and nineteen euros and five cents) each, the first of which
will be due on 5 August 2019 and the others on 5th (fifth) day of following month
to which it refers; and
•
2020/2021 season: EUR 12,866.70 (twelve thousand eight hundred and sixty-six
euros and seventy cents) to be paid in in twelve (12) monthly instalments of EUR
919.05 (nine hundred and nineteen euros and five cents) each, the first being due
on 5 August 2020 and the remaining 5 (five) in the following month to which it
refers.
Clause 12 of the Contract established that: “In order to settle all questions related to the
interpretation of this contract, regarding enforcement, validity or its legal force or related
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to any of its clauses, and for all other questions arising from it, legal force or related to any
of its clauses, are competent the Lisbon Courts, with express waiver of any other”.
4.
By correspondence dated 11 May 2020, the Respondent notified the Claimant of the
termination of the Contract due to the repeated abandonments of work by the latter.
Nevertheless, said termination was not registered at the Portuguese Football Federation
(PFF) and the Contract has been deemed as resumed by the Club.
5.
By correspondence dated 27 November 2020, the Claimant put the Respondent in default
of payment of EUR 15,682.83 (fifteen thousand, six hundred and eighty-two euros and
eighty-three cents) as outstanding salaries, setting a time limit expiring on 12 December
2020 in order to remedy the default.
6.
In the same correspondence, the Claimant requested also to be reintegrated in the
Respondent’s first team games and training sessions as part of the latter’s obligations
towards the Claimant.
7.
On 15 December 2020, the Claimant notified the Respondent of the termination of the
contract with just cause due to outstanding salaries and failure by the latter to remedy to
the Claimant’s reintegration to the training sessions and games of the first team.
8.
On the same date, the Respondent replied to the Claimant’s letter, arguing that the
termination of the Contract had already been realized by the former on 5 November 2020.
9.
On 14 January 2021, the Respondent notified once again the Claimant of the termination
of the Agreement due to breach of contract by the latter.
II.
PROCEEDINGS BEFORE FIFA
10.
On 5 January 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
11.
In regard to the primary issue concerning the DRC Jurisdiction, the Claimant stated that the
principle of “contra proferentem” should be applied against Clause 12 of the Contract, as
it would be corroborated by its unclear wording and by the “...Respondent’s abusive
conduct towards the Claimant, the lack of compliance with the FIFA Regulations and the
Employment Contract, and the lack of understanding by the Claimant of the Portuguese
language.”
12.
As per what concerns the substance of the dispute, according to the Claimant, during the
season 2018/2019, the Respondent only paid EUR 1,957.46 out of the EUR 12,866.70
agreed upon the employment contract.
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13.
Furthermore, the Claimant argues that the Respondent failed to comply with its contractual
obligations also during the season of 2019/2020, paying only EUR 6,865.68 out of EUR
12,866.70 agreed on the Contract, which were still related to the previous season’s
outstanding salaries.
14.
Moreover, the Claimant accuses the Respondent of having failed once again with regard to
the payments due in relation to the season 2020/2021, as it only paid EUR1,712.50 out of
EUR 12,866.70 agreed on the Contract, which were once again still related to the previous
seasons’ outstanding salaries.
15.
Therefore, the Claimant argued that out of a total amount of EUR 29,409.60 that he should
have received from the Respondent as salaries, namely from August 2018 until November
2020, he has only received the total amount of EUR 10,535.64, which would cover the
salaries that were supposed to be paid only until June 2019 fully and partially the salary of
July 2019. Hence, the total amount of outstanding salaries owed to the Claimant by the
Respondent, in the present date, would be EUR 18,873.96.
16.
Additionally, the Claimant remarked that the Respondent not only failed to comply with its
paying obligations, but also with its obligation to allow the Claimant to fulfil his working
capacity in accordance with the Contract signed by the Parties.
17.
In this respect, the Claimant alleged to have been excluded from the Respondent’s first
team training sessions and games.
18.
The requests for relief of the Claimant, were the following:
b.
19.
•
To order the Respondent to pay the amount of EUR 18,873.96 as outstanding
salaries;
•
To order the Respondent to pay the residual value of the employment contract as
compensation for the breach of contract, in the amount of EUR 8,271.45;
•
To apply a 5% interest p.a. over the above amounts, as of the respective due dates.
•
To order the Respondent to pay the full costs of the present procedure, if any.
Position of the Respondent
As a primary issue, the Respondent raised an objection concerning the competence of FIFA’s
deciding bodies, alleging that the competent bodies to deal with any dispute deriving from
the relevant employment contract are the Lisbon Courts.
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20.
According to the Respondent, indeed both the parties expressly agreed for any dispute
arising in connection with the contract to be decided by said judicial body.
21.
In this respect, the Respondent invoked Clause 12 of the Contract, which reads as follows:
“In order to settle all questions related to the interpretation of this contract, regarding
enforcement, validity or its legal force or related to any of its clauses, and for all other
questions arising from it, legal force or related to any of its clauses, are competent the
Lisbon Courts, with express waiver of any other”.
22.
In support of its position, the Respondent highlighted the fact that the parties also agreed
to establish that the employment agreement would be governed by the national
(Portuguese) laws, with especial attention to the collective bargaining agreement (CBA)
issued between the national professional football players’ union and the Portuguese
professional football league, such choice of law enhancing even more the domestic
component of the agreement, and the constant will of the parties to refer every dispute
arising out of said agreement to the national (Portuguese) jurisdiction.
23.
Furthermore, the Respondent rejects the allegations made by the claimant according to
which, clause 12 would be constituting an abusive and unlawful conduct by the respondent.
24.
In fact, according to the Respondent: “this clause, besides being a valid and totally
acceptable clause included with the consent of both parties, served to prevent the player
and the club to choose whatever forum would work better for them, hence admitting the
exclusive jurisdiction of the courts of Lisbon and expressly renouncing to all other forums”.
25.
Moreover, the Respondent argued that said clause would simply reflect the content of art.
22 of FIFA RSTP, according to which it shall be safeguarded the right of any player, coach,
association, or club to seek redress before a civil court for employment-related disputes.
26.
In a subsidiary way to the raised objection concerning the lack of FIFA DRC jurisprudence
over the current matter, the Respondent rejected the allegations made by the Claimant
according to which the club would have breached the employment contract.
27.
In this context, the Respondent firstly highlighted that it was indeed the Claimant to
repeatedly ignore his obligations towards the Respondent.
28.
In fact, according to the Respondent, “..in four different occasions, the player abandoned
his duties and responsibilities without providing the club with any information or
justification that could validate his unlawful actions”.
29.
In support of the above, the Respondent alleged that “the Player’s first abandonment
occurred within the period from 7 October 2018 until 12 March 2019, in which the
Claimant simply disappeared…”
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30.
Furthermore, the Respondent observed that “after the Player’s return from his first 5months abandonment on 12 March 2019, the latter rendered his services to the Club for
only three months before abandoning his work for the second time on 11 June 2019. Once
again, the Player, without any feasible notice or justification, stopped providing his services
to the Club during one whole month, only regretting his actions and resuming his services
on 20 July 2019.”
31.
According to the Respondent, after fulfilling his obligations towards the Club during the
period from 20 July 2019 until 15 March 2020, on 16 March 2020 the Player deliberately
abandoned his work for the third time.
32.
On 11 May 2020, the Respondent notified the termination of the employment contract due
to breach by the Player, however, it decided not to register said termination at the
Portuguese FA, “hoping that the Player would regret his actions and resumed his activities
with the Club.”
33.
In this respect, the Respondent acknowledged that on 19 August 2020, the Player resumed
his activities and duties, hence inducing the Club to resume the execution of the original
employment contract signed on 29 January 2017.
34.
However, according to the Respondent, as of 5 November 2020 the Player abandoned his
work for the fourth time, without informing the Club, hence inducing the Respondent to
deem the employment agreement definitely breached.
35.
Furthermore, the Respondent rejects the Claimant’s requests for payment of alleged
outstanding salaries, given that the former duly performed the payment of all remuneration
corresponding to the months in which the latter has duly performed his obligations under
the Employment Agreement before its termination on 5 November 2020.
36.
In this context, the Respondent objected the following:
37.
•
The outstanding salaries of November and December 2018 cannot be claimed as
more than 2 years have elapsed since the referred dates, hence the related demands
are time-barred;
•
The salaries due between November 2018 and March 2019, the one of July 2019,
as well as the amounts due from April 2020 to August 2020 and the remaining
outstanding due as of December 2020 have been purposely withheld by the
Respondent as countermeasure adopted in front of the repeated non-compliance
by the Player of his obligations towards the Club;
Therefore, according to the Respondent, all the salaries corresponding to the periods in
which the Claimant was absent and refused to perform his obligations stipulated under the
Employment Agreement shall be considered – “..as firmly confirmed by a well-established
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jurisprudence - a valid action when assessing the overall circumstances of the present case
and the Player’s repeated unprofessional behaviour”.
38.
Finally, and with regard to the compensation claimed for unilateral termination of the
contract by the club, the Respondent argued that said termination occurred due the
repeated violations conducted by the Claimant, who would have left the Respondent with
no other options but to unilaterally terminate the employment agreement, as validly
sustained also by the Collective Bargaining Agreement (CBA) issued between the National
Professional Football Players’ union and the Portuguese Professional Football League, by
which both the parties agreed to be bound.
39.
The requests for relief of the Respondent, were the following:
I.
II.
III.
Determine that the DRC is not competent to solve the present dispute
In a subsidiary manner, to declare that the Respondent Club is not liable for any of
the amounts claimed by the Claimant Player.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
40.
First of all, the DRC Judge (hereinafter also referred to as Judge) analysed whether he was
competent to deal with the case at hand. In this respect, the DRC judge took note that the
present matter was presented to FIFA on 5 January 2021 and submitted for decision on 21
April 2021. Taking into account the wording of art. 21 of the 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
41.
Subsequently, the Judge referred to art. 3 par. 1 of the Procedural Rules and observed that
in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations
on the Status and Transfer of Players (edition 2021), the Dispute Resolution Chamber is in
principle competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Taiwanese player and a
Portuguese club.
42.
However, the Judge acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the basis of Clause 12 of the Contract, alleging that the
competent bodies to deal with any dispute deriving from the relevant employment contract
are the Courts of Lisbon.
43.
On the other hand, the Judge noted that the Claimant insisted on the competence of the
FIFA DRC to adjudicate on the claim he lodged against the Respondent.
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44.
Taking into account all the above, the Judge emphasised that in accordance with art. 22 of
the Regulations, FIFA is competent to hear employment-related disputes between a player
and a club with an international dimension “without prejudice to the right of any player or
club to seek redress before a civil court for employment related disputes”.
45.
In the present matter, the Judge duly noted that the player and the club had unambiguously
and exclusively decided that any dispute that would arise from the contract would be
regulated by the “Courts of Lisbon”.
46.
The DRC Judge recalled that parties may freely agree to give jurisdiction to a civil court, and
that such choice shall always prevail. In fact, the Judge, recalling its jurisprudence as well as
CAS jurisprudence in this regard, highlighted that even if the choice of law does not specify
which courts are competent (e.g., a generic reference is made to a region/city), FIFA is not
competent when the parties have exclusively agreed to the jurisdiction of a civil court. In
addition, the Judge emphasized that art. 22 of the Regulations provides a clear hierarchy in
favour of contractual autonomy.
47.
In view of all the above, the Judge concluded that it was not competent to hear the dispute
between the player and club, and consequently declared the claim of the player
inadmissible.
*****
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Yi Chen, is inadmissible.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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