Labour Disputes
Texto da decisão
REF FPSD-4993
Decision of the
Dispute Resolution Chamber
passed on 5 May 2022
regarding an employment-related dispute concerning the player Mathew
Thomas Lam
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Khalid Awad Althebity (Saudi Arabia), member
Khadija Timera (Senegal), member
CLAIMANT:
Mathew Thomas Lam, Canada
Represented by Alejandro Pascual
RESPONDENT:
Guangzhou City FC, China PR
Represented by Salvatore Civale
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REF FPSD-4993
I.
Facts of the case
1.
On 1 July 2019, the Claimant and the club R&F HK Soccer Limited concluded an employment
contract (hereinafter: “the contract”) valid from 1 July 2019 until 30 June 2021.
2.
Pursuant to the terms of the contract, R&F HK Soccer Limited undertook to pay to the
Claimant as a basic salary HKD 90,000 per month for the period 1 July 2019 until 30 June
2020 and HKD 100,000 per month for the period 1 July 2020 until 30 June 2021.
3.
Clause 16.5 of the contract states the following: “If the club is no longer a member of any
league of the HKFA, this Agreement will terminate automatically with immediate effect, but
the Player will remain eligible to claim from the Club his salary under this Agreement for the
entire remaining Contract Period of the Agreement”.
4.
Clause 17.2 of the contract reads as follows: “Notwithstanding any provision in any HKFA
Regulations or Football Regulations but subject to applicable laws in Hong Kong, any dispute
(whether contractual or noncontractual, and including any disputes in relation to
interpretation of clauses of this Agreement) arising out of or in connection with this
Agreement shall be referred to and determined by the NDRC in accordance with the NDRC
Regulations. The Club and the Player that they shall be bound by any decisions or judgments
of the NDRC on such dispute (including any allocation of costs). If the NDRC determines that
it does not have jurisdiction (as set out in the NDRC Regulations) over such dispute, the dispute
shall be referred to the appropriate body(ies) specified in the Football Regulations. If no such
body(ies) is specified, the courts of Hong Kong shall have exclusive jurisdiction to settle such
dispute”.
5.
According to the Claimant, on 14 October 2020, R&F HK Soccer Limited issued a statement
informing the Claimant of the club´s withdrawal from the HK Premier League with immediate
effect.
6.
On 15 October 2020, the Claimant was informed by R&F HK Soccer Limited via WeChat of
the termination of the employment relationship between the Claimant and R&F HK Soccer
Limited.
7.
On 19 October 2020, the Claimant received a draft termination agreement from R&F HK
Soccer Limited, which inter alia, stipulated the following:
“Through fair negotiation and mutual agreement, Party A and Party B hereby terminate the
Employment Contract for Player signed by both Parties with contract commencement date of
1 July 2020, 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.
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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”
8.
The Claimant rejected the terms of the termination agreement and respectively, on 20 and
30 October 2020, sent correspondence to R&F HK Soccer Limited insisting on the confirmation
by R&F HK Soccer Limited of the employment status of the Claimant and his entitlement to
his outstanding and remaining salaries.
9.
On 24 November 2020, R&F HK Soccer Limited 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.
As a case file has seen 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”.
10. According to the Claimant, thereafter no further payments or correspondence were received
from R&F HK Soccer Limited.
II. Proceedings before FIFA
11. On 9 August 2021, 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. On 9 August 2021, the Claimant lodged a claim before FIFA against R&F HK Soccer Limited
and the Chinese club Guangzhou City FC (hereinafter: the Respondent), requesting, inter alia,
R&F HK Soccer Limited and the Respondent be ordered to pay to the Claimant:
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, relating to the living costs and
accommodation for the remaining period of the contract, plus 5% interest p.a. from 12
November 2020.
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REF FPSD-4993
13. The Claimant argues that, insofar as R&F HK Soccer Limited unilaterally decided to withdraw
from the competitions and failed to fulfil its obligations as per the contract, clause 16.5 was
activated and, consequently, the Claimant is entitled to receive his salary for the residual value
of the contract. Thus, claiming the application of the legal principle, pacta sunt servanda, the
Claimant requested R&F HK Soccer Limited and the Respondent be condemned to pay, jointly
and severally, the residual value of the contract as compensation for its breach.
i.
Concerning the claim against R&F HK Soccer Limited (FPSD-3263):
16. On 23 August 2021, the Hong Kong Football Association (“HKFA”) informed FIFA that 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.
17. On 23 November 2021, FIFA informed the Claimant of the said correspondence received from
the HKFA, further indicating that since R&F HK Soccer Limited is no longer affiliated to one
of FIFA’s member associations, FIFA is not in a position to initiate proceedings against the R&F
HK Soccer Limited. In this context, the Claimant was requested to withdraw its claim against
R&F HK Soccer Limited.
18. 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”.
ii.
Concerning the claim against the Respondent
14. The Claimant argued that the Respondent shall be held jointly and severally liable to pay the
compensation requested due to the fact that both clubs (R&F HK Soccer Limited and the
Respondent) act as the same entity.
15. In this respect, the Claimant held that both clubs are part of the same holding, controlled by
their mother company, R&F Properties. The Claimant further explained that, within the said
holding, the mother company incorporated the company Pilot Star Investments, which has
no entrepreneurial activity and which sole object is to appear as owner of the club R&F HK
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Soccer Limited, so that “whenever the mother company decides to, for instance, withdraw
from competitions and dissolve, the only responsible would apparently be the mentioned Pilot
Star Investments, which has no assets nor cash and, therefore, no consequence of any type
is suffered by the mother company”.
16. Thus, acknowledging that the club R&F HK Soccer Limited is no longer participating in
organized football, the Claimant argued that the Respondent shall be subsidiary liable for the
debts incurred by R&F HK Soccer Limited, insofar as both companies are, in words of the
Claimant, the very same entity.
17. In order to demonstrate that the Respondent and R&F HK Soccer Limited are the same entity,
the Claimant brought forward, inter alia, the following arguments:
-
that the Asian Football Confederation (AFC) “did not to accept the registration of both
clubs at the same time in the AFC Champions League, as it was a violation of its
regulations”, which demonstrates that both clubs are, in essence, the very same.
“This has been confirmed in the public information, in a reliable source as it is Wikipedia,
making clear that R&F Properties is the owner and controller of both clubs (Annex 12)
and even confirming both Respondents as its subsidiary companies (Annexe 12bis)”.
-
That both clubs “included the name of the main shareholder R&F, being the First
Respondent´s name “R&F Hong Kong Soccer Limited” and the Second Respondent
“Guangzhou R&F FC). This was the case until the CFA prohibited the use of commercial
names and the Second Respondent was renamed on January 2021 to his actual name,
“Guangzhou City FC”. However, as said before, still R&F Real Estate Properties controls
both Respondents”.
-
That both clubs share or redirect to the website of the other club, share the same
domain, i.e. “@gzrffc.com” and have a similar logo and use matching equipment (same
colours).
-
That both clubs “have been as well interchanging players between them in the past
years, with special mention to the year in which [R&F HK Soccer] was born in 2016
where among his squad of 37 players, 23 players (!) were loaned from [the Respondent]
without any payment of transfer fees”.
-
that both clubs “share indistinctly the employees, especially the ones related to the
management level, as for instance, Mr. Guo Nengpei, who signed all the employment
contracts with the players on behalf of the First Respondent and was named as the
General Manager of [the Respondent] right after the withdrawal of the First
Respondent, as shown in the official publications of the Second Respondent in 25 and
26 January 2021”.
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REF FPSD-4993
18. In view of all of the above, the Claimant requested FIFA “to condemn the Respondent as joint
and severally liable for the payment of all the above amounts”.
b.
Bifurcation of the proceedings
19. Considering the affiliation status of R&F HK Soccer Limited and the nationalities of the parties
involved, the FIFA general secretariat decided to bifurcate the claim of the Claimant against
R&F HK Soccer and the Respondent. Consequently, the proceedings were bifurcated as
follows: the proceedings with ref. no. FPSD-3263 would involve the claim of the Claimant
and the club R&F HK Soccer Limited; whereas the present proceedings would involve the
claim of the Claimant and the club Guangzhou City FC (FPSD-4993)
c.
Position of the Respondent
20. In its reply, to the claim, the Respondent raised, inter alia, the following arguments and
conclusions:
-
That the claim of the Claimant shall be considered as “inadmissible”, insofar as the
Respondent “has never entered into an employment relationship with the Player neither
The Player has ever had any possible link with Guangzhou City Football Club”. In this
respect, the Respondent argues that “the only employment contract the Player signed is
this one mentioned in the claim and – obviously – was signed with a different identity
than [the Respondent], another club which actually was even registered with another
national association, Hong Kong Football Association”.
-
That, whereas the only contract on file was signed with a club that was affiliated to the
Hong Kong FA, the Respondent is affiliated to the Chinese Football Association (CFA)
only and “it is clear, therefore, that the First and the Second Respondent are two different
clubs, two separate entities, respectively past - registered and registered to two different
national association”.
-
“Therefore, even the provision of article 24ter of the FIFA RSTP cannot find any kind of
application since there is no matter of sporting succession between the two clubs, the
two called Respondents, since the Second Respondent has never been registered with
the same national association of the First Respondent”.
-
That, according to clause 17.2 of the contract, the jurisdiction is in favour of the NDRC
of the Hong Kong FA and, only if the NDRC of the Hong Kong FA denies its jurisdiction,
then the dispute shall be referred to the appropriate body specified in the Football
Regulations.
21. In its request for relief, the Respondent requested the following:
-
To declare the claim as inadmissible;
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-
-
To rule –in any case– that the Dispute Resolution Chamber of the Football Tribunal has
no jurisdiction to decide the case brought by the Claimant which had to be filed before
the Ordinary Court of Hong Kong;
In any case, to reject on the merits in full the claim filed by the Player.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 9 August 2021 and submitted for decision
on 5 May 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.
23. 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 (March 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Canadian player and
a Chinese club.
24. However, the DRC noted that the Respondent challenges the competence of FIFA to
adjudicate on the present dispute arguing that clause 17.2 of the contract is a valid jurisdiction
clause in favour of the Hong Kong National Dispute Resolution Chamber (hereinafter:
“NDRC”) as first instance and of the ordinary courts in Hong Kong as second instance.
25. In this respect, the DRC emphasised that, although the said clause stipulates that the NDRC
incorporated with the association of Hong Kong shall be competent to adjudicate on disputes
arisen in connection with the contract, the Respondent failed to provide evidence as to the
composition of the said NDRC and its compliance with the requirements set by FIFA circular
no. 1010. Thus, in accordance with the jurisprudence of the DRC, FIFA would, in principle,
be competent to hear the present case.
26. The Respondent also held that it has no standing to be sued, insofar as there is no contractual
link between the Claimant and the Respondent.
27. In this respect, the DRC stressed that the question of standing (to sue or to be sued) concerns
the merits of the dispute, i.e. the DRC needs to enter into the substance of the dispute in
order to decide whether such an argument can be upheld. Thus, the Chamber decided that
the present matter is admissible, insofar as the prerequisites established in art. 22 b) of the
Regulations on the Status and Transfer of Players (March 2022 edition) are met.
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28. 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 (March 2022 edition) and
considering that the present claim was lodged on 9 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
29. 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. Merits of the dispute
30. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
31. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that, as alleged by the Respondent, no evidence on file reflects any
solid contractual link between the Claimant and the Respondent, the Claimant only arguing
the necessary involvement of the Chinese club as a consequence of the alleged belonging of
R&F HK Soccer Limited and the Respondent to the same parent company and the narrow
collaboration that allegedly existed between both clubs.
32. In this respect, the DRC stressed that, even though the Claimant provided substantial evidence
pertaining to the collaboration and integration of both entities within the same corporate
structure, the line of argumentation maintained by the Claimant cannot be followed, since
only the club R&F HK Soccer Limited was a party to the contract at stake, the Respondent not
being a party thereto and, hence, not being subject of rights or obligations undertaken
thereunder. The name of the Respondent club is neither explicitly nor implicitly included in
the contract nor in any further agreement on file.
33. What is more, the DRC highlighted that the argumentation of the Claimant concerning the
connection between both clubs (similar logo and colours, same website domain, recurrent
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transfer of players between both clubs taking place and coincidence of managing members
in both clubs) does not suffice to reach the conclusion that the rights and liabilities of R&F HK
Soccer Limited were transferred to the Respondent upon the dissolution of the former.
34. Furthermore, the Chamber noted that no transfer of liabilities can arise on the basis of art.
25 of the Regulations, since the Respondent is not the sporting successor of R&F HK Soccer
Limited. Both clubs used to co-exist until the dissolution of R&F HK Soccer Limited, the clubs
were affiliated to different associations and, moreover, there has been no perception in the
market of any such sporting succession. Thus, according to the jurisprudence of both, the
DRC and CAS, no sporting succession and, hence, no economic succession, can be
appreciated in the present case.
35. Thus, since the Respondent did not enter into any kind of agreement with the Claimant, the
DRC determined that the Respondent has no standing to be sued.
ii. Consequences
36. In view of all of the above, the DRC concluded that the claim is admissible and rejected.
d. Costs
37. 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.
38. 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.
39. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Mathew Thomas Lam, is admissible.
2.
The claim of the Claimant, Mathew Thomas Lam, is rejected
3. 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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