DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 19 April 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Takuy a Yam azaki (Japan), Member
Tom is lav Kas alo (Croatia), Member
Daan de Jong (the Netherlands ), Member
Abu Nay eem S hohag (Banglades h), Member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the cas e
1.
On 21 July 2014, the Player of Country B, Player A (hereinafter: Claimant or player)
and the Club of Country D, Club C (hereinafter: Respondent or club) concluded an
employment contract valid as from 28 July 2014 until 1 July 2016 (hereinafter:
contract).
2.
According to the contract, the player was entitled to receive from the club, inter
alia, a monthly salary of “a) the gross amount of …. (the equivalent of 2.000 Euro
net)”, payable within the first 5 days of the following month.
3.
Clause N of the contract provides that “The provisions of the present individual
employment agreement are completed with the dispositions of the Law no. XXXCode of Work and to the applicable collective employment agreement, concluded
at the level of the employer/group of employers/professional branch/national level,
registered under no. …../…….., to the Direction of Work of Capital E and the
Ministry of Work and Social Solidarity”.
4.
Moreover, according to clause O of the contract, “Disputes regarding the
concluding, execution, amending, suspension or termination of the present
individual employment agreement are solved before the Court of material and
territory competence, as provided by the Law”.
5.
On 5 March 2015, the player and the club allegedly concluded an agreement, by
means of which, inter alia, the contract was terminated by mutual consent as of 10
March 2015.
6.
According to the player, on 13 March 2015, the club submitted a written request
to the National Dispute Resolution Chamber of the Football Federation of Country
D (hereinafter: NDRC) asking it to establish that the employment relationship with
the player is declared terminated by mutual agreement based on the document
named “Termination Agreement” dated 5 March 2015.
7.
On 18 March 2015, the NDRC decided to “Accept the request of Club C in
contradictory with the respondent Player A. Establish the termination of the
contract relationship between Club C and the player, Player A, under the
conditions of the termination Agreement no. 222 dated 05.03.2015, starting with
the date of 18.03.2015”.
8.
In particular, the NDRC decision indicates that “Legally summoned, the [player] did
not submit any statement of defence” and that it is made on the basis of the club’s
request dated 13 March 2015.
Player A, Country B / Club C, Country D
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9.
On 17 June 2015, the player lodged a claim before FIFA against the club,
requesting that it be established that the club terminated the contract without just
cause and that he be awarded compensation for breach of contract in the amount
of EUR 32,000, corresponding to the value of the contract as from March 2015
until 1 July 2016. The player further asked that sporting sanctions be imposed on
the club.
10.
According to the player, the club’s request to the NDRC was based on a forged
termination agreement dated 5 March 2015.
11.
Furthermore, although the decision of the NDRC indicates that he was summoned,
the player affirmed that in fact he was not and that, thus, his right to defence was
violated. In particular, the player stated having only become aware of the
termination of the contract after the NDRC decision was taken and had become
irrevocable, reason why he could not appeal such decision.
12.
In this context, and considering that he could not challenge the validity of his
alleged signature on the termination agreement, the player had undertaken an
extrajudicial expertise to prove that the termination agreement does not bear his
signature. The player added that the conclusion of the forensic expert was that the
signature on the termination agreement is not his.
13.
Therefore, the player held that there was no termination of the contract by
mutual agreement and that the club unilaterally terminated the contract within
the protected period without just cause.
14.
In its reply to the player’s claim, the club stated that the “Syndic Judge of the
Tribunal of Capital E” has jurisdiction over this matter, since the club has been in
judicial reorganization as of 11 June 2014, based on a decision dated 11 June 2014
rendered by the “Syndic Judge of the Tribunal of Capital E”. In particular, the club
stated that in accordance with Law XXX which regulates insolvency proceedings in
Country D, “all proceedings provided in this law, fall under the jurisdiction of the
tribunal in whose territorial jurisdiction the debtor has its registered office.”
15.
In this respect, the club held that also according to the contract the ordinary court
is competent to deal with the player’s claim relating to unilateral termination and
compensation. With respect to its request to the NDRC, the club stated that it
made such request in line with art. 18.6 of the Regulations on the Status and
Transfer of Players of the Football Federation of Country D (Football Federation F).
16.
The club further referred to clause N of the contract and the allegedly applicable
Law of Country D, emphasizing that all legal issues regarding the present dispute
shall be examined from the perspective of the Labour Code of Country D. In this
context, the club held that according to the Labour Code of Country D, labour
Player A, Country B / Club C, Country D
3
jurisdiction belongs exclusively to the competent courts of law according to
legislation in force.
17.
Furthermore, if the ordinary court of law is not considered competent, the club
held that the Regulations on the Status and Transfer of Players of the Football
Federation F “on which the Plaintiff’s claim is founded” establish the exclusive
jurisdiction of the committees of the Football Federation F.
18.
As to the substance of the matter, the club stated that the parties mutually agreed
to terminate the contract on 5 March 2015. In particular, the club highlighted that
“the player does not claim that he failed to understand the clauses of the
termination agreement, he only submits that the signature is not his”.
19.
The club further stated that the player did not challenge the decision of the NDRC,
not even after the date he claimed to have been informed of its existence.
20.
Moreover, the club held that the player left the team based on this agreement and
even used the termination agreement to prove the termination of the contract in
order to sign an employment contract with the Club of Country B, Club G, and
request the International Transfer Certificate.
21.
Equally, the club wonders why the player would leave the club and sign a new
employment contract with another club if he did not recognise the termination
agreement and was allegedly not aware of its existence.
22.
Regarding the forensic expert report, the club challenges its admissibility, stating
the following:
The expert is known for always presenting the results desired by the party
requesting the report;
The club did not have an expert participating in the process;
The expert failed to show the relevance of differences between the
signature of the player on the contract, which was different on several
pages;
The review was performed on the basis of a scanned document, not the
original.
23.
Moreover, the club highlighted that, even after having allegedly become aware of
the termination agreement, which the player claims not having signed, no criminal
complaint of forgery was initiated by the player.
24.
In addition, the club stated that the decision of the NDRC is valid and that the
player was summoned to participate, as accepted by two NDRC members who
were appointed by the player’s representative. In particular, the club pointed out
that from the copy of the decision presented by the player it can be noted that the
Player A, Country B / Club C, Country D
4
decision was received by the player on 27 April 2015 and that the player only
lodged his claim before FIFA on 17 June 2015.
25.
Moreover, if he indeed had not been summoned, he could still appeal the decision,
regardless of the fact that it was final, in accordance with the Regulations of the
Football Federation F and Procedural Law of Country D.
26.
In his replica, the player insisted on the jurisdiction of FIFA, dismissing the club’s
argument regarding administration proceedings stating that the club was no
longer under insolvency proceedings.
27.
Moreover, the player held that the club intended to force him to terminate the
contract, since, for example, it delayed the payment of salaries during several
months.
28.
The player contested the club’s statement that the termination of the contract was
by mutual agreement, adding that it was based on a fake document.
29.
The player further insisted that he was not notified of the proceedings before the
NDRC.
30.
In addition, the player contested the club’s statement that he left the club on the
basis of the agreement, emphasizing that he left the team, since he was no longer
allowed to participate in club activities.
31.
Furthermore, the player stated that the forensic expert who produced the report is
an authorized forensic expert recognized by the Ministry of Justice of Country D.
32.
Although invited to do so, the club did not provide final comments on the present
matter.
33.
Upon FIFA’s request in accordance with its standard procedure in connection with
allegations of forgery, the club provided the original of the termination
agreement.
34.
The player informed having concluded an employment contract with the Club of
Country B, Club G, on 25 June 2015, valid until 30 June 2018, by means of which he
was entitled to receive, inter alia, a monthly salary of 1,095,065.
35.
The Football Federation F confirmed that the club is still affiliated to the Football
Federation F and no longer in insolvency.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA
on 17 June 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. article 21 of
the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018), the Dispute Resolution Chamber has competence to
adjudicate employment-related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present employment-related dispute between a Player
of Country B and a Club of Country D.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that the “Syndic Judge of the Tribunal of Capital E” shall have jurisdiction
over this case, since the club has been in insolvency proceedings. In addition, in
order to justify the alleged competence of the ordinary court, the Respondent
referred to article O of the employment contract which provides that “Disputes
regarding the concluding, execution, amending, suspension or termination of the
present individual employment agreement are solved before the Court of material
and territory competence, as provided by the Law”. In this respect, the Respondent
further referred to article N of the contract and held that jurisdiction in labour
disputes belongs exclusively to the competent courts of law according to
legislation in force.
5.
The Chamber equally noted that the Claimant rejected such position and insisted
that FIFA has jurisdiction to deal with the present matter.
6.
In relation to the above, the Chamber deemed it vital to outline that one of the
basic conditions that needs to be met in order to establish that another organ than
the DRC is competent to settle an employment-related dispute between a club and
a player of an international dimension, is that the jurisdiction of the relevant
national arbitration tribunal or national court derives from a clear reference in the
employment contract.
7.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
Player A, Country B / Club C, Country D
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analyse whether the employment contract at the basis of the present dispute
actually contains a clear jurisdiction clause.
8.
Having said this, the members of the Chamber recalled that art. O. of the contract
stipulates that: “Disputes regarding the concluding, execution, amending,
suspension or termination of the present individual employment agreement are
solved before the Court of material and territory competence, as provided by the
Law”.
9.
Having examined the relevant provision, the Chamber came to the conclusion that
art. O does not constitute a clear jurisdiction clause in favour of one specific court
in Country D, since it merely referred to a “Court of material and territory
competence, as provided by the Law”. Irrespective of such conclusion, the
Chamber further took into account that with respect to its position relating to
Labour Law of Country D as referred to in art. N of the contract, the Respondent
had merely presented a copy of a decision passed by the Appeal Committee of the
Football Federation F.
10.
Subsequently, the members of the Chamber recalled that the NDRC of Country D
passed a decision declaring the employment relation between the Claimant and
the Respondent terminated on the basis of a termination agreement dated 5
March 2015. In this regard, the Chamber noted that the Claimant, apart from
contesting his signature on such agreement, held that he was not informed of any
proceedings in front of said NDRC and that, therefore, his right to defence was
violated.
11.
From the documents on file, the Chamber noted that the NDRC of Country D
passed its decision on 18 March 2015 on the basis of the Respondent’s petition
dated 13 March 2015, in other words, said NDRC issued its award within 5 days of
receipt of the Respondent’s petition. Given this very short time frame, the
members of the Chamber concurred that, indeed, it was highly unlikely that the
Claimant was summoned and involved in the relevant proceedings in front of the
NDRC. Therefore, the Chamber agreed that it is not bound by the decision passed
by the NDRC on 18 March 2015.
12.
Moreover, with respect to the Respondent’s argument related to the alleged
competence of the “Syndic Judge of the Tribunal of Capital E”, without entering
into the question as to whether such argument could be considered valid, the
members of the Chamber took into account that, on 6 July 2017, the Football
Federation F confirmed that the Respondent no longer was in insolvency
proceedings.
13.
In view of all of the above, the Chamber established that the Respondent’s
objection to the competence of FIFA to deal with the present matter had to be
rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter
as to the substance.
Player A, Country B / Club C, Country D
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14.
Subsequently, the members of the Chamber analysed which edition of the
Regulations on the Status and Transfer of Players should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that, in
accordance with art. 26 par. 1 and 2 of said Regulations (edition 2018) and
considering that the claim was lodged in front of FIFA on 17 June 2015, the 2015
edition of the Regulations on the Status and Transfer of Players (hereinafter:
Regulations) is applicable to the present matter as to the substance.
15.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation submitted by the parties. 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.
16.
In this respect, the members of the Chamber acknowledged that it was undisputed
by the parties that they signed an employment contract with a duration as from 28
July 2014 until 1 July 2016.
17.
In continuation, the members of the Chamber noted that the Claimant lodged a
claim against the Respondent maintaining that the latter had terminated the
employment contract without just cause on 5 March 2015. Consequently, the
Claimant asked to be awarded payment of compensation for breach of contract as
well as that sporting sanctions be imposed on the Respondent.
18.
Subsequently, the members of the Chamber took note that the Respondent, for its
part, rejected the claim maintaining that, on 5 March 2015, the parties signed an
agreement by means of which the employment contract was terminated by mutual
consent.
19.
At this point, the Chamber took note of the contents of the aforementioned
termination agreement submitted by the parties, which reads as follows: “1. The
Individual Employment Agreement … is terminated by mutual agreement starting
with 10.03.2015 with the payment of outstanding financial rights ; 2. The club will
pay the player financial rights the equivalent of 2.000 EURO net for the month of
march 2015 until 15.03.2015 ; 3. The Player and the Club agree that they do not
have any financial claims whatsoever previous to the date 10.03.2015. The club will
not have any claims whatsoever towards the future club of the player.”
20.
In this regard, the Chamber recalled that the Claimant denied having signed such
termination agreement alleging that his signature on the relevant document is a
forgery. On the other hand, the Respondent insisted that the document in
question was signed by the Claimant.
21.
At this stage, the Chamber deemed it appropriate to recall the contents of art 12.
par. 3 of the Procedural Rules, according to which: “Any party claiming a right on
the basis of an alleged fact shall carry the burden of proof”.
Player A, Country B / Club C, Country D
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22.
In continuation, with respect to the handwriting expert report submitted by the
Claimant, the Chamber highlighted that, in principle, it cannot take into
consideration such expert reports, unless they are issued by experts mutually
agreed upon and compensated by the parties involved.
23.
Furthermore, the members of the Chamber considered it appropriate to remark
that, as a general rule, FIFA’s deciding bodies are not competent to decide upon
matters of criminal law, such as the ones of alleged falsified signatures or
documents, and that such affairs fall into the jurisdiction of the competent
national criminal authority.
24.
In this regard, the DRC noted that termination agreement dated 5 March 2015
bears the signature of the Respondent and the alleged signature of the Claimant.
In addition, the members of the DRC pointed out that, upon FIFA’s request in
accordance with its standard procedure in connection with allegations of
falsification, the Respondent provided the original of such agreement, currently
available for the analysis of the Chamber.
25.
In continuation, the DRC recalled that all documentation remitted shall be
considered with free discretion and, therefore, it focused its attention on the
original of the termination agreement as well as on other documents containing
the Claimant’s signature, provided by the parties in the context of the present
dispute.
26.
After a thorough analysis of the aforementioned documents, in particular,
comparing the relevant signatures of the Claimant in the various documents
provided in the present affair, the DRC had no other option but to conclude that,
for a layman, the signatures on such documents appear to be the same. Therefore,
the members of the Chamber agreed that they could not uphold the Claimant’s
position that the termination agreement dated 5 March 2015 was invalid.
27.
In view of the foregoing, the DRC concluded that, by signing the termination
agreement, the Claimant agreed to prematurely terminate the employment
contract with the Respondent.
28.
In view of the above, in particular, the fact that the parties amicably agreed upon
the premature termination of the employment contract, the members of the
Chamber decided to reject the Claimant’s claim, which was limited to
compensation for breach of contract, in its entirety.
Player A, Country B / Club C, Country D
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is rejected.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS, a
copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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