DRC - Preliminary Decisions
Texto da decisão
REF FPSD-3266
Decision of the
Dispute Resolution Chamber
passed on 3 March 2022
regarding an employment-related dispute concerning the player Lilley
Nunez Vasudeva Das
BY:
Frans de Weger (the Netherlands), Chairperson
CLAIMANT:
Lilley Nunez Vasudeva Das, China PR
Represented by Mr Alejandro Pascual
RESPONDENT 1:
R& F HK Soccer Limited, Hong Kong
RESPONDENT 2:
Guangzhou City FC, China PR
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REF FPSD-3266
I.
Facts of the case
1.
The relevant parties to the dispute are:
a. The player, Mr Lilley Nunez Vasudeva Das (hereinafter: the player or the
Claimant). The player is of Chinese nationality and bearer of the Chinese
passport no. Y464015(0);
b. The club R&F HK Soccer Limited (hereinafter: the club or the First Respondent),
affiliated to the Hong Kong FA;
c. The club Guangzhou City FC (hereinafter: the Second Respondent), affiliated to
the Chinese FA.
2.
On 1 February 2019, the Claimant and the First Respondent concluded an employment
contract (hereinafter: the contract), valid from 1 February until 31 May 2021.
3.
In accordance with the contract (cf. first page of the contract), the club undertook to pay to
the player, inter alia, a monthly salary of HKD 75,000 (approx.: USD 9,600).
4.
Clause 16.5 of the contract reads as follows: “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 this Agreement”.
5.
On 14 October 2020, the club sent a statement to all its players, informing them about the
club´s withdrawal from the HK Premier League with immediate effect.
6.
On 15 October 2020, the player received a message from the club referring to a “termination
plan” of the contract and suggesting the conclusion of a settlement agreement.
7.
By means of its correspondence dated 20 October 2020, the player replied thereto, not
agreeing with the termination of the contract and rejecting the proposal made by the club.
8.
By means of its letter dated 12 November 2020, the cub unilaterally terminated the contract.
9.
Thereafter, the player and the club exchanged correspondence, where the player requested
the club to comply with the contract and the club confirmed being disaffiliated from the Hong
Kong FA and having entered insolvency proceedings.
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REF FPSD-3266
II. Proceedings before FIFA
a. Position of the Claimant
10. On 9 August 2021, the Claimant lodged a claim against the First Respondent and Second
Respondent before FIFA, requesting to be awarded compensation for breach of contract in
the amount of HKD 525,000 net, plus 5% interest p.a. as from 12 November 2020.
11. As to the involvement of the Second Respondent, the player argued that the First Respondent
and the Second Respondent are the same entity and, therefore, both shall be jointly and
severally liable for the breach of the club. As evidence of the aforesaid, the Claimant explained
that the Asian Football Confederation (AFC) “also confirmed such contention when
forbidding both, the First and Second Respondent, to enter into the same AFC Champions
League since the AFC considered that both clubs had the same ownership” and that both
clubs belong to the same parent company (note: supporting documentation provided). In
addition, the player argued that both clubs have a similar logo, share the same website and
that they have been exchanging in the last years, “with special mention to the year 2016
where among his squad of 37 players, 23 players (!) were loaned from the Second
Respondent without any payment of transfer fees” (note: supporting documentation
provided). Furthermore, the player pointed out that both clubs share the same management
and provided the example of 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 Second Respondent right after the withdrawal of the First Respondent”.
12. The Claimant also tackled the issue of the international dimension of the dispute at stake,
stating that the player due to the fact that the Second Respondent is a club affiliated to a
different football association, i.e. the Chinese Football Association, whereas the player is from
Hong Kong.
13. In his claim the player argued that, since the club unilaterally terminated the contract on 12
November 2020, it is to be determined that it did so without just cause, which triggers the
obligation of the club to pay compensation to the player, in accordance with art. 17 RSTP. In
this respect, the player held that the amount due as compensation shall amount to HKD
525,000 net, i.e. the residual value of the contract (7 monthly salaries of HKD 75,000 each –
as from November 2020 until May 2021).
14. In addition, the player held that the amount of HKD 525,000 cannot be mitigated in any way
in view of the wording of clause 16.5 of the contract, which provides the player’s entitlement
to receive the residual value of the contract if the club is no longer a member of any league
of the HKFA.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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.
16. 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 any 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).
17. 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) (hereinafter: the Regulations), the
Dispute Resolution Chamber is competent to deal with disputes between clubs and players
with an international dimension.
18. The Chairperson emphasised, in other words, that this means that FIFA is only competent to
hear an employment-related dispute between a player and a club when the parties have
different nationalities, without which the international element of the dispute is not fulfilled.
19. In this respect, the Chairperson noted that the dispute at hand involves three parties that
share the same nationality, i.e. the Chinese nationality, on the basis that the Claimant and
the First Respondent were registered within the HKFA, whereas the Second Respondent is
affiliated to the CFA. In this regard, the Chairperson highlighted that an independent country,
in the matter at hand the People’s Republic of China, may have more than one member
association of FIFA incorporated within its territory. In this context, the Chairperson made
reference to the jurisprudence of the Football Tribunal, which considers the nationality as the
decisive element to be analysed, when determining whether a contractual dispute enjoys
international dimension. As a consequence, in case the player has the same nationality from
the country where the club that holds his registration is based, the relevant dispute has to be
considered a purely internal (national) matter to be decided by the competent authorities in
the respective country. The Chairperson recalled that the jurisprudence of the Football
Tribunal has adopted the position outlined above in similar matters.
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REF FPSD-3266
20. In this regard, the Chairperson observed that the claim of the Claimant towards both
Respondents lacked international dimension as required by art. 22 lit b) of the Regulations.
Hence, the Chairperson found that this alone would be sufficient to determine that the
Football Tribunal is not competent to hear the dispute.
21. Notwithstanding the above, the Chairperson wished to further remark that an important
second element insofar as the First Respondent is concerned also prevents the Football
Tribunal to entertain the claim. To this end, he observed that, upon a request from the FIFA
general secretariat, the HKFA informed, on 23 August 2021, that the First Respondent is
disaffiliated and no longer participates in the competitions organised by the HKFA. In this
context the Chairperson confirmed that additionally, FIFA is also not be competent to hear
the present dispute as a consequence of the affiliation status of the First Respondent on the
basis of art. 9.1 b) of the Procedural Rules, which states:
“Subject to the relevant FIFA regulations, only the following natural or legal persons may
be a party before a chamber:
a. clubs affiliated to a member association”.
22. Taking the above into account and pursuant to the longstanding jurisprudence of the Football
Tribunal, the Chairperson confirmed 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.
23. 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”.
24. Considering the above and having confirmed that the First 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.
25. 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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26. 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.
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Lilley Nunez
Vasudeva Das.
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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