DRC - Preliminary Decisions
Texto da decisão
REF FPSD-3257
Decision of the
Dispute Resolution Chamber
passed on 3 March 2022
regarding an employment-related dispute concerning the player Jared
Christopher Lum
BY:
Frans de Weger (the Netherlands), Chairperson
CLAIMANT:
Jared Christopher Lum, Australia
Represented by Mr Alejandro Pascual
RESPONDENT:
R&F HK Soccer Limited, Hong Kong
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REF FPSD-3257
I.
Facts of the case
1.
On 1 July 2020, the Claimant and Respondent concluded an employment contract
(hereinafter: “the contract”) valid from the date of its signature until 30 June 2022.
2.
Pursuant to the terms of the contract, the Respondent undertook to pay to the Claimant as
a basic salary the amount of HKD 70,000 per month for the period 1 July 2020 until 30 June
2021 and HKD 85,000 per month for the period 1 July 2021 until 30 June 2022.
3.
According to the Claimant, on 14 October 2020, the Respondent issued a statement
informing the Claimant of the club´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 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.
2. Party A shall pay the following to Party B as payment in lieu of notice:
One-month salary------------------------------------------------------------------HKD 70,000.00
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 correspondence to the Respondent insisting on the confirmation by
the Respondent of the employment status of the Claimant and his entitlement to his
outstanding moneys and 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. 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”.
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REF FPSD-3257
8.
According to the Claimant, no further payments or correspondence were received from the
Respondent thereafter.
II. Proceedings before FIFA
a. Position of the Claimant
9.
On 9 August 2021, the Claimant lodged a claim before FIFA against the Respondent and the
Chinese club Guangzhou City FC, requesting, inter alia, the Respondent and the said Chinese
club be ordered to pay to the Claimant compensation for breach of contract in the amount
that was later on amended. The final amount requested by the Claimant amounts to of HKD
1,580,000, corresponding “to the monthly salary for the remaining period of the Employment
Contract, plus 5% interest from 12 November 2020” until the date of effective payment.
10. On 23 August 2021, the HKFA informed FIFA that the Respondent 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.
11. 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
member associations, FIFA is not in a position to initiate proceedings against the Respondent.
In this context the Claimant was requested to withdraw its claim against R&F HK Soccer
Limited.
12. By means of a letter dated 25 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”.
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REF FPSD-3257
b. Note as to the bifurcation of the proceedings made by the FIFA general
secretariat
13. Considering the affiliation status of the Respondent and the nationalities of the parties
involved, the FIFA general secretariat decided to bifurcate the claim of the Claimant against
the Respondents, which was communicated to the Claimant by means of a correspondence
sent by FIFA to the Claimant on 17 January 2022. Consequently, the proceedings were
bifurcated as follows: the present proceeding (FPSD-3257) would involve the claim of the
Claimant and the club R&F HK Soccer Limited; whereas a separate proceeding was initiated
involving the claim of the Claimant and the club Guangzhou City FC (FPSD-4806).
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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.
15. 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).
16. 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 an Australian player
and a club based in Hong Kong.
17. 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.
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REF FPSD-3257
18. 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.”
19. What is more, the Chairperson noted that the Claimant, for his part, insisted that FIFA has
jurisdiction to deal with the present matter.
20. 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”
21. 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.
22. 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”.
23. 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.
24. 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-3257
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jared Christopher Lum, is inadmissible.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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