Labour Disputes
Texto da decisão
REF FPSD-6548
Decision of the
Dispute Resolution Chamber
passed on 6 September 2022
regarding an employment-related dispute concerning the player Anthony Macdonald
BY:
Omar ONGARO (Italy), Deputy Chairperson
Stijn BOEYKENS (Belgium), member
Daan DE JONG (The Netherlands), member
CLAIMANT:
Anthony MacDonald, United Kingdom
Represented by Gunnercooke llp
RESPONDENT:
Córdoba CF, Spain
REF FPSD-6548
I. Facts of the case
1. The player, Anthony MacDonald and Córdoba FC concluded an employment contract. In this respect,
during the proceedings, the player provided an unsigned copy of a bilingual (English-Spanish contract).
Simultaneously, in its reply, the Respondent provided a federative contract (in Spanish only) which
includes the letterhead of the Royal Spanish Football Federation (RFEF), and includes the following
signatures:
2. According to clause 2 of the federative contract, the validity of the contract is from 3 October 2020
until 30 June 2022.
3. According to clause 3 of the federative contract, the player was entitled to a monthly salary of EUR
4,000, from October 2020 until June 2021.
4. The Respondent further provided an annex “A” to the federative contract (in Spanish only), which
stipulated the following conditions:
“TERCERA. – RETRIBUCIONES
(…)
Temporada 2021/2022:
• Retribución fija. Para la Temporada 2021-2022 el Jugador percibirá la cantidad total fija de CUARENTA Y
OCHO MIL EUROS (48.000,00€) brutos totales, distribuidos en doce (12) mensualidades iguales de Cuatro
Mil Euros {4.000,00€) brutos cada una de ellas.
• Ayuda vivienda. Adicionalmente al salario mensual el Jugador percibirá QUINIENTOS EUROS (500,00€)
brutos mensuales desde el mes de julio de 2021 hasta el mes de junio de 2022.
CUARTA. - OPCIÓN DE AMPLIACIÓN CONTRACTUAL
Las partes acuerdan una opción de ampliación de la relación contractual por una temporada más, es decir,
para la temporada 2022-2023, para que se produzca la ampliación el Club deberá comunicarlo al jugador
de manera fehaciente antes del 30 de junio de 2022, la intención de ampliar el contrato por una Temporada
más, esto es, hasta la finalización de la temporada 2022-2023.
Una vez se lleve a cabo la ampliación de la relación laboral, para la temporada 2022-2023, según lo
acordado en el párrafo anterior, el Jugador será inscrito en el en el Primer Equipo del Club y la retribución
anual fija total del Jugador será de OCHENTA MIL EUROS (80.000,00€) brutos en Segunda División A, de
CIENTO SESENTA MIL EUROS (160.000,00€) brutos anuales en Primera División, y de CUARENTA Y OCHO MIL
EUROS (48.000,00€) brutos anuales en Segunda División B y Segunda División Pro.
(…)
DECIMOQUINTA. - LEGISLACIÓN Y JURISDICCIÓN.
El presente contrato se interpretará y aplicará de acuerdo con lo dispuesto por la Legislación Española.
REF FPSD-6548
Para la resolución de cuántas cuestiones pudieran derivarse de la interpretación, ejecución y/o
cumplimiento del presente Contrato, las partes, con renuncia a su propio fuero o al que pudiera
corresponderles, se someten expresamente a los Tribunales de Córdoba.
Free translation into English:
"THIRD - REMUNERATION
(...)
Season 2021/2022:
- Fixed remuneration. For the 2021-2022 Season the Player shall receive the total fixed amount of FORTYEIGHT THOUSAND EUROS (€48,000.00) gross total, distributed in twelve (12) equal monthly payments of
Four Thousand Euros (€4,000.00) gross each.
- Housing allowance. In addition to the monthly salary the Player shall receive FIVE HUNDRED EUROS
(€500.00) gross per month from the month of July 2021 until the month of June 2022.
FOURTH - OPTION TO EXTEND THE CONTRACT
The parties agree to an option to extend the contractual relationship for one more season, i.e. for the 20222023 season. In order for the extension to take place, the Club must inform the player in a reliable manner
before 30 June 2022 of its intention to extend the contract for one more season, i.e. until the end of the
2022-2023 season.
Once the extension of the employment relationship is carried out, for the 2022-2023 season, as agreed in
the previous paragraph, the Player will be registered in the Club's First Team and the Player's total fixed
annual remuneration will be EIGHTY THOUSAND EUROS (€80,000.00) gross in the year 2022-2023. 000.00)
gross in Second Division A, ONE HUNDRED AND SIXTY THOUSAND EUROS (160.000,00€) gross per year in
First Division, and FORTY EIGHT THOUSAND EUROS (48.000,00€) gross per year in Second Division B and
Second Division Pro.
(...)
FIFTEENTH. - LEGISLATION AND JURISDICTION.
This contract shall be interpreted and applied in accordance with the provisions of Spanish Law.
For the resolution of any issues that may arise from the interpretation, execution and/or fulfilment of this
contract, the parties, waiving their own jurisdiction or any other that may correspond to them, expressly
submit to the Courts of Cordoba.”
5. On 5 November 2020, the club sent the following termination letter to the player:
“Estimado Sr.:
Por medio de la presente. y con efectos en el día de hoy 05 de noviembre de 2020, la Administración (..) le
comunica que ha adoptado la decisión de proceder a la resolución de su contrato de trabajo.
La presente decisión se encuentra motivada en chi incumplimiento de la condición pactada en la cláusula
SEGUNDA del Anexo del contrato firmado por las partes con fecha 3 de octubre de 2020. En concreto, la
mencionada cláusula supeditaba, la eficacia del contrato, al resultado positivo del examen médico llevado
a cabo por los servicios médicos designados por el Club En este sentido, y debido al desfavorable resultado
del mismo (se adjunta informe médico como Anexo 1), el Club debe prescindir de sus servicios.”
Free translation into English:
"Dear Sir:
Effective today 05 November 2020, the Administration (..) hereby informs you that it has taken the decision
to proceed with the termination of your employment contract.
This decision is motivated by the non-fulfilment of the condition agreed in the SECOND clause of the Annex
REF FPSD-6548
to the contract signed by the parties on 3 October 2020. Specifically, the aforementioned clause made the
effectiveness of the contract subject to the positive result of the medical examination carried out by the
medical services appointed by the Club. In this sense, and due to the unfavourable result of the examination
(medical report attached as Annex 1), the Club must dispense with his services".
6. On 8 February 2021, the player signed a contract with Inverness Caledonian Thistle Football, valid as
from the date of signature until 9 June 2021, for a weekly salary of GBP 450.
7. The club and Inverness further concluded a contract valid as from 28 April 2021 until 6 January 2022,
for a monthly salary of GBP 1,950.
8. On 7 January 2022, the player signed a contract with Edinburgh City, valid as from the date of
signature until 10 June 2022, for a weekly salary of GBP 175.
REF FPSD-6548
II. Proceedings before FIFA
9. On 28 June 2022, the player lodged a claim before for breach of contract without just cause and
requested the payment of the total amount of EUR 55,128, detailed as follows:
Contract with Cordoba Club de Futbol
Due:
Season 2020/2021 43,355
Season 2021/2022 48,000
Accommodation ( x 2months) 1,000
Less (mitigation): wages paid to player (2000)
Inverness Caledonian Thistle
Less: Wages paid (1st wage structure) (25,164)
Less wages paid (2nd wage Structure) (9,203)
Edinburgh City Football &Athletic Ltd
Less@ Wages paid (4,486)
Total wages paid (40,853)
Total mitigated compensation: EUR 51,502, plus 5% interest (2,575), leading to a total of EUR 54,077
10. According to the player, during his period of employment with the Club, he only received the
payment of EUR 2,000 (on 5 November 2020).
11. According to the player, the club pressured him to terminate the contract. However, in the opinion
of the player, the mutual termination is not valid due to the following circumstances:
The document was signed in a foreign language without translation,
It was signed under an abuse of power,
The terms the document terms per se do not (in any event) create sufficient basis for any
suggestion that the Player has terminated the contract.
12. In its reply, the club contested the competence of FIFA and referred to art. 15 of the contract as well
as to the Real Decreto 1006/1985, as it argued that the Courts of Córdoba (Spain) are competent.
13. As to the substance, the club explained that at all moments it assisted him with English-speaking
personnel.
14. According to the club, the player was perfectly aware about the jurisdiction clause included in the
contract.
15. In his replica, the player considered that “FIFA is urged to carefully consider the exact references in the
present contract, as it is submitted that these words in no way explicitly choose a national arbitration body
on behalf of a Player who does not read Spanish and has spent one day in Cordoba – he is simply signing a
contract which refers unclearly to the Courts of Cordoba and the Royal Decree.”
REF FPSD-6548
16. The player argued that throughout the terms of Article 22 of the Regulations, there is a distinction
drawn between civil courts and a national system of arbitration. In the opinion of the player, the
present contract should have explicitly explained the Royal Decree relevant terms and how a reference
to the Royal Decree means the player has chosen independent arbitration before the Spanish
Employment Tribunals
17. The player stated that he “would have no knowledge whatsoever of the terms of the Royal Decree and
therefore could not have agreed to its terms – this is not an argument that the Player was ignorant of the
law – the need for the Respondent is to show on balance that the contract proves the Player explicitly chose
arbitration before the Spanish Employment Tribunals and it does not.”
18. In its duplica, the Respondent insisted in the competence of FIFA as well as in its previous
considerations.
19. According to the Respondent, the player at all moments had the possibility to review the contents of
the contract before signing it.
20. The Respondent further underlined that the player was assisted by a Spanish lawyer during the
negotiations that led to the conclusion of the contract.
21. In the opinion of the Respondent, the player could have not signed the contract if he did not wish to
include a jurisdiction clause in favour of the Courts of Córdoba.
22. The Respondent underlined that the player “freely and voluntarily” accepted the jurisdiction of
Spanish ordinary courts.
23. The Respondent further explained that the Courts of Córdoba are part of the Spanish jurisdictional
organization, as established in the Organic Law 6/1985.
REF FPSD-6548
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber) 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 28 June 2022 and submitted for decision on 25 August 2022. Taking
into account the wording of art. 34 of the June 2022 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.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2022 edition), it is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international dimension
between a British player and a Spanish club.
3.
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 (June 2022 edition), and considering that the
present claim was lodged on 28 June 2022, the June 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
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.
5.
Admissibility
As a preliminary note, the Chamber wished to underline that the player submitted an unsigned copy
of the contract, and therefore established that said document cannot be taken into account as valid
evidence of a contractual relationship. On the other hand, the Respondent provided the federative
version of the contract and its annex, both of which are properly signed by all involved parties. As a
result, the Chamber considered that only said document could be taken into account.
6.
The Chamber then acknowledged that the Respondent, on the one hand, contested the competence
of FIFA’s deciding bodies on the basis of clause 15 of the Annexe “A” to the contract, alleging any
dispute deriving from the latter shall be expressly submitted to the Court of Córdoba, Spain. On the
REF FPSD-6548
other hand, the Chamber noted that the Claimant insisted on the competence of FIFA to adjudicate
the claim.
7.
In particular, the Claimant argued that he had no knowledge of the contents of said clause 15 since,
inter alia, he does not understand Spanish.
8.
However, as per the jurisprudence of the Football Tribunal, the Chamber underlined that a party
signing a document of legal importance without knowledge of its precise contents, as a general rule,
does so on its own responsibility. Therefore, the argument of the player in this regard cannot be
taken into account.
9.
Taking into account all the above, the Chamber 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”.
10. 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 Courts of Córdoba, Spain.
11. 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 of the Regulations provides a clear hierarchy in favour of contractual
autonomy.
12. In addition, and in this specific matter, the Chamber further wished to underline that the possible
application of the Spanish Royal Decree 1006/1985 is not relevant, since in this matter, the
jurisdiction clause is sufficient to determine the competence of the Courts of Córdoba.
13. 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
14. 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.
15. Furthermore, 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.
16. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-6548
IV Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Anthony MacDonald, is inadmissible.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-6548
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).
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