DRC - Preliminary Decisions
Texto da decisão
REF FPSD-3263
Decision of the
Dispute Resolution Chamber
passed on 3 March 2022
regarding an employment-related dispute concerning the player Mathew
Thomas Lam
BY:
Frans de Weger (Netherlands), Chairperson
CLAIMANT:
Mathew Thomas Lam, Canada
Represented by Alejandro Pascual
RESPONDENT:
R&F HK Soccer Limited, Hong Kong
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REF FPSD-3263
I.
Facts of the case
1.
On 1 July 2019, the Canadian player, Matthew Thomas Lam (hereinafter: the Claimant), and
the club, R&F HK Soccer Limited (hereinafter: the Respondent), based in Hong Kong, a special
administrative region of China PR, signed an employment contract valid as from 1 July 2019
until 30 June 2021.
2.
Pursuant to the terms of the contract, the Respondent undertook to pay to the Claimant a
basic salary of HKD 90,000 per month for the period 1 July 2019 until 30 June 2020 and a
basic salary of HKD 100,000 per month for the period 1 July 2020 until 30 June 2021.
3.
According to the Claimant on 14 October 2020, the Respondent issued a statement,
informing the Claimant of the Respondent´s withdrawal from the HK Premier League with
immediate effect.
4.
On 15 October 2020, the Claimant was informed by the Respondent via WeChat of the
termination of the employment relationship between the Claimant and Respondent.
5.
On 19 October 2020, the Claimant received a draft termination agreement from the
Respondent, which inter alia, stipulated the following:
“Through fair negotiation and mutual agreement, Party A [Respondent] and Party B [Claimant]
hereby terminate the Employment Contract for Player signed by both Parties with contract
commencement date of 1 July2019, and both Parties agree:
1. The Employment Contract for Player will be terminated with effective on 31 October 2020,
which employment/ employee relationship between both Parties will cease on this same
date.
2. Party A shall pay the following to Party B as payment in lieu of notice:
One-month salary------------------------------------------------------------------HKD 100,000.00
One-month housing allowance -----------------------------------------------HKD 30,000.00”
6.
The Claimant rejected the terms of the termination agreement and respectively on 20 and 30
October 2020 sent correspondences to the Respondent, insisting that the Respondent
confirm his employment status and his entitlement to his outstanding/remaining salaries.
7.
On 24 November 2020, the Respondent sent a letter to the Claimant which stipulated the
following:
“Regarding the letter sent from Hugill & Ip Solicitors on your behalf on 19 November 2020,
noted that appointments have been made with the Hong Kong's Labour Tribunal to file a
group action against R&F (HK) Soccer Limited related to disputes arising from the termination
of employment contracts.
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REF FPSD-3263
As a case file has been lodged, we would await further guidelines and feedback from the
Hong Kong Government on the above-mentioned dispute to assess further next actions. We
hereby notify you that we will unfortunately need to put a halt in any private negotiations
and until further notice, no monetary transactions will be made from today onwards.”
8.
According to the Claimant, thereafter no further payments or correspondence were received
from the Respondent.
II. Proceedings before FIFA
9.
On 9 August 2021, the Claimant filed the claim at hand before FIFA, against both the
Respondent and Guangzhou City FC, formerly known as Guangzhou R&F, a club based in
China PR in the city of Guangzhou.
a. Position of the Claimant
10. The requests for relief of the Claimant, were, inter alia, that the Respondent and Guangzhou
City FC pay to the Claimant the following amounts:
i.
ii.
HKD 800,000 net as compensation for breach of contract, corresponding to the monthly
salaries for the remaining period of the contract, plus 5% interest p.a. from 12 November
2020.
HKD 240,000 net as compensation for breach of contract, consisting of the living costs
and accommodation for the remaining period of the contract, plus 5% interest p.a. from
12 November 2020.
11. On that note, the Claimant deemed that Guangzhou City FC was the sporting successor of
the Respondent.
b. Additional information Hong Kong Football Association
12. On 23 August 2021, the Hong Kong Football Association (“HKFA”) informed FIFA that the
club R&F HK Soccer Limited ‘is no longer affiliated to the HKFA and that the said club had
ceased to participate in the competitions organised under the auspices of the HKFA since
October 2020’.
13. Additionally, the HKFA mentioned that “R&F Hong Kong Soccer Limited has failed to file the
annual return and pay the annual subscription this year and has thus been removed from the
HKFA membership. As a matter of fact, HKFA received from the appointed Joint and Several
Liquidators of R&F Hong Kong Soccer Limited on 21 July 2021 confirming the club's voluntary
liquidation is in progress.”
14. On 23 November 2021, FIFA informed the Claimant of the said correspondence received from
the HKFA, further indicating that since the Respondent is no longer affiliated to one of FIFA’s
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member associations, FIFA is not in a position to initiate proceedings against the Respondent.
As such, the FIFA general secretariat invited the Claimant to amend its statement of claim in
that the Respondent could not be a party to the proceedings
c. Additional comments Claimant
15. By means of a letter dated 29 November 2021, the Claimant insisted on a decision in the
matter. As such, the Claimant asked for the case to be submitted for a formal decision and
stipulated the following:
“We refer to the FIFA request to amend our claim withdrawing our claim against R&F HK
Soccer Limited and addressing it just to Guangzhou City FC. In this respect, the Claimant
modestly believes a formal decision is needed, even if it’s to determine that FIFA is not
competent to deal with any dispute against R&F HK Soccer Limited. This may, at least, protect
the Claimant in case the latter club reaffiliates again for any reason or to be able to apply for
instance to the FIFA Fund, in case the claim against Guangzhou City FC is as well rejected
from any legal perspective. Consequently, the Claimant requests to keep his claim against
R&F HK Soccer Limited and, alternatively for the case the said claim is not admissible due to
FIFA´s lack of competence as per R&F HK Soccer Limited disaffiliation, to condemn Guangzhou
City FC.”
16. Moreover, the Claimant, amended its request for relief as follows:
a. to declare this, claim admissible; and
b. to condemn the Respondent to pay in favour of the Claimant the following amounts:
i. HKD 800,000 net as compensation corresponding to the monthly salaries for the
remaining period of the contract, plus 5% interest per annum from 12 November
2020.
ii. HKD 240,000 net as compensation relating to the living costs and accommodation for
the remaining period of the contract, plus 5% interest per annum from 12 November
2020.
17. On 1 February 2022, the FIFA general secretariat informed the Claimant that exceptionally
and considering the particularities of the present matter, the proceedings would be bifurcated
into two separate proceedings, the first one against the Respondent and the second one
against Guangzhou City FC. The proceedings involving the Claimant and the Respondent
were filed under reference FPSD-3263, i.e., the matter at hand. The proceedings involving
Guangzhou City FC were filed under reference FPSD-4993.
18. On 25 February 2022, the FIFA general secretariat informed the Claimant that its claim raised
a preliminary procedural matter in accordance with art. 19 of the Procedural Rules Governing
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the Football Tribunal. Accordingly, the case was referred to the Chairperson of the Dispute
Resolution Chamber for an expedited decision.
III. Considerations of the Dispute Resolution Chamber
19. First of all, the Chairperson of the Dispute Resolution Chamber (hereinafter also referred to
as Chairperson) 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 9 August 2021 and
submitted for decision on 3 March 2022. Taking into account the wording of art. 34 of the
October 2021 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.
20. At the same time, the Chairperson confirmed that, in accordance with art. 19 par. 1 and 2 of
the Procedural Rules, he shall decide, in an expedited manner, whether the case at stake is
affected by a preliminary procedural matter (i.e. if the Football Tribunal obviously does not
have jurisdiction or if the claim is time-barred). Likewise, the Chairperson highlighted that, in
case the claim is not affected by any preliminary procedural matters, the FIFA general
secretariat would be ordered to continue the procedure (cf. art. 19 par. 3 of the Procedural
Rules).
21. Subsequently, the Chairperson 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 (August 2021 edition) (RSTP), the Dispute Resolution
Chamber is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Canadian player and
a club based in Hong Kong.
22. However, the Chairperson acknowledged that according to the information received from
the HKFA on 23 August 2021, the Respondent is no longer affiliated to the HKFA.
Additionally, from said information it follows that the said club had ceased to participate in
the competitions organised under the auspices of the HKFA since October 2020.
23. Moreover, the Chairperson further noted that the HKFA mentioned the following:
“R&F Hong Kong Soccer Limited has failed to file the annual return and pay the annual
subscription this year and has thus been removed from the HKFA membership. As a matter
of fact, HKFA received from the appointed Joint and Several Liquidators of R&F Hong Kong
Soccer Limited on 21 July 2021 confirming the club’s voluntary liquidation is in progress.”
24. What is more, the Chairperson noted that the Claimant, for his part, insisted that FIFA has
jurisdiction to deal with the present matter.
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REF FPSD-3263
25. At this point the the Chairperson referred to art. 9 par. 1 (b) of the Procedural Rules, which
stipulates the following:
“Subject to the relevant FIFA regulations, only the following natural or legal persons may be
a party before a chamber:
b. clubs affiliated to a member association”
26. Taking the above into account and pursuant to the longstanding jurisprudence of the Football
Tribunal, the Chairperson decided that the Football Tribunal does not have jurisdiction to deal
with cases of clubs which are not, or no longer, affiliated to the relevant member association
and/or actively participating in any competition organised under the auspices of a member
association.
27. The Chairperson clarified, in this respect, that the jurisdiction of the Football Tribunal stems
from the FIFA Statutes and the RSTP. He referred to the Commentary on the FIFA Regulations
on the Status and Transfer of Players (Edition 2021) (page 359) to this end and emphasized
that “[t]he jurisdiction of the [Football Tribunal] is strictly limited to direct and indirect
members of FIFA. It cannot simply be extended to third parties, even if these third parties
request it. Similarly, decisions passed by the DRC or PSC can only be securely enforced against
direct and indirect members of FIFA; they cannot be enforced against third parties.
Accordingly, FIFA has jurisdiction over a limited range of parties, specifically those exhaustively
enumerated in the Procedural Rules”.
28. Considering the above and having confirmed that the Respondent as per the information on
file cease to be an (indirect) member of FIFA, the Chairperson decided that the Claimant’s
claim is inadmissible.
29. Lastly, the Chairperson 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 Chairperson decided that no procedural costs were
to be imposed on the parties.
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REF FPSD-3263
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mathew Thomas Lam, 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
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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