Labour Disputes
Texto da decisão
REF. FPSD-13799
Decision of the
Dispute Resolution Chamber
passed on 2 May 2024
regarding an employment-related dispute concerning
the player Aymen BOUZIDI
BY:
Frans DE WEGER (The Netherlands), Chairperson
Oleg ZADUBROVSKIY (Russia), member
Tomislav KASALO (Croatia), member
CLAIMANT:
Marc-Olivier Kehi, France
RESPONDENT:
Rio Ave Futebol Clube, Portugal
pg. 2
REF. FPSD-13799
I. Facts of the case
1.
On 5 September 2022, the player and Rio Ave Futebol Clube concluded an employment
contract valid as from the date of signature until 30 June 2023.
2.
Accordingly, the player was entitled to EUR 8,225 for the entire season, payable in 10
instalments within the first 5 days of the following month.
3.
Art. 8 of the contract stipulated the following:
“To resolve any emerging conflicts between them, the parties agree to elect the Judicial Court of
Porto, renouncing any other judicial body, even if deemed more privileged, as the competent
body to resolve any doubts, divergences or controversies arising from this contract.”
(note: free translation into English – original in Portuguese. The player provided a
translation into French)
The original text is as follows:
4.
On 14 October 2022, the player sent a default notice, indicating that he did not receive his
salary of September and October 2022.
5.
On 14 November 2022, the club replied indicating that the salary was paid.
6.
On 14 November 2022, the player replied, requesting his salary that was due “by no later
than November 5th”.”
7.
On 5 October 2023, the player sent a default notice, requesting the payment of EUR 5,225.
II. Proceedings before FIFA
8.
On 24 February 2024, player lodged a claim before the FIFA Football Tribunal for
outstanding remuneration and requested the payment of EUR 5,225.
9.
In addition, the player requested EUR 10,000 as compensation for moral damages.
10. In its reply, the Respondent challenged the competence of FIFA on the basis of art. 8 of the
contract.
pg. 3
REF. FPSD-13799
11. The Respondent cited FIFA Regulations on the Status and Transfer of Players (FIFA RSTP)
and jurisprudence of the Court of Arbitration for Sport (CAS) to support its argument that
if the parties have agreed to submit employment-related disputes to a national civil court,
FIFA and CAS lack jurisdiction.
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REF. FPSD-13799
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 24 February 2024. Taking into
account the wording of art. 34 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.
13. Subsequently, the members of the Chamber 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 lit. b) of the
Regulations on the Status and Transfer of Players, 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 French player and a Portuguese
club.
14. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (May 2024 edition), and
considering that the present claim was lodged on 24 February 2024, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
15. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Jurisdiction
16. The Chamber acknowledged that the Respondent, on the one hand, contested the
competence of FIFA’s deciding bodies on the basis of clause 8 of the contract, alleging that
the competent body to deal with any dispute deriving from the relevant employment
contract are the Judicial Courts of Porto.
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REF. FPSD-13799
17. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 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”.
18. In the present matter, the Chamber duly noted that the Claimant and the Respondent had
unambiguously and exclusively decided that any dispute that would arise from the contract
would be submitted to the Judicial Courts of Porto.
19. The Chamber recalled that parties may freely agree to give jurisdiction to a civil court, and
that such choice shall always prevail. In fact, the Chamber, recalling its jurisprudence as
well as the 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 upon the jurisdiction of a
civil court. In addition, the Chamber emphasized that art. 22 par. 1 of the Regulations
provides a clear hierarchy in favour of contractual autonomy.
20. In view of all the above, the Chamber concluded that it was not competent to hear the
dispute between the Claimant and the Respondent, and consequently declared the claim
inadmissible.
d. Costs
21. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
22. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
23. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 6
REF. FPSD-13799
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the claimant MarcOlivier Kehi.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13799
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
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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