Labour Disputes
Texto da decisão
REF FPSD-6515
Decision of the
Dispute Resolution Chamber
passed on 26 January 2023
regarding an employment-related dispute concerning
the player Matias Roskopf
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Mathias Roskopf, Argentina
RESPONDENT:
Valley United FC, USA
Represented by Berlin Sports Law
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REF FPSD-6515
I. Facts of the case
1.
On 31 January 2022, the Argentinian player Matias Roskopf (hereinafter the Claimant or
the Player) and the US club Valley United FC (hereinafter the Respondent or the Club)
concluded employment agreement (hereinafter the Employment Agreement), valid until
30 November 2023.
2.
In Addendum of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the Parties) agreed upon the following financial conditions:
−
−
3.
Season 2022: a bi-monthly salary of USD 2,400;
Season 2023: a bi-monthly salary of USD 2,640.
In Clause 16 of the Employment Agreement, the Parties agreed upon the following clause
titled “dispute resolution”:
“a.
The parties agree that all disputes relating to or arising out of this Contract of
Player’s relationship with Club or NISA, including, but not limited to, disputes related to
compensation in Section 1 and any other compensation or benefits listed on ADDENDUM B,
discipline, or the termination of this Contract pursuant to Section 14 or 15, shall be
presented to the Commissioner of the League for final decision.
b.
If either Player or Club is dissatisfied with the decision of NISA, then the dissatisfied
Party may serve notice of a demand for binding arbitration on the other Party within
fourteen (14) calendar days of the receipt of NISA decision (“Period of Notice of Arbitration).
The dissatisfied Party must provide a minimum of three (3) qualified arbitrators from which
the other Party will select an arbiter. NISA’s office must be copied on any decision to do so
within the Period for Notice of Arbitration. Arbitration shall consist of one arbitrator utilizing
the rules of the American Arbitration Association (AAA) and such arbitrator’s decision shall
be final and not subject to appeal in a court of law. Unless otherwise prohibited by
applicable law, the Party demanding the arbitration shall bear all reasonable costs related
to the arbitration proceeding, including but not limited to, the arbiter’s costs, and travel
expenses of all parties.
c.
Player and Club agree that if either of them brings and action in any court of law or
other forum to enforce rights hereunder without first exhausting their respective remedies
under paragraph 13.a, such action shall be barred as a result of the remedy provided in
Paragraph 16, a. above, and the prevailing Party in any such action shall be entitled to
recover its costs and expenses, including reasonable attorney’s fees incurred in connection
with such lawsuit or proceeding.
d.
Under no circumstances shall NISA be considered liable for any action taken by
either Party as a result of this dispute or NISA’s decision referenced in Paragraph 16 a.”
4.
In accordance with the Transfer Matching System (TMS), the Claimant was registered with
the Respondent on 25 March 2022, whereas the latter initiated the International Transfer
Certificate (ITC) procedure on 18 March 2022.
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5.
As of 17 May 2022, internal investigations have been initiated by the National
Independent Soccer Association (NISA) concerning alleged immigration and employment
activities by Messrs Adrian Gaitan and Yuval Reichman, resulting in their resignation and
suspension from any league activity.
6.
On 3 June 2022, the Claimant sent a default notice to the Respondent, requesting the
payment of four outstanding salaries in the amount of USD 19,200 due for the months of
February, March, April and May 2022, granting the latter 10 days to comply with its
financial obligations. What is more, the Claimant requested a visa and work permit.
7.
On 10 June 2022, the Claimant reiterated its request, granting the Respondent additional
5 days to comply with its contractual obligations, however, to no avail.
8.
On 15 June 2022, the Club took an operational pause for 30 days to address organizational
issues, ongoing investigation of alleged illegal immigration and employment activities.
9.
On 17 June 2022, the Claimant terminated the employment relationship.
10. On 1 September 2022. the Claimant was registered with the Uruguayan club Colon as an
amateur.
II. Proceedings before FIFA
11. On 27 June 2022, 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. The requests for relief of the Claimant were the following:
−
−
“USD 21,600 NET as outstanding salaries +5% interests as from the relevant payment dates
until the date of efective payment.
USD 89,280 NET as amount due as for compensation for breach of contract +5% interest as
from 18 June 2022 until date of affective payment.” (emphasis added)
13. The Claimant argued that he terminated the Employment Agreement with just cause
since 4,5 monthly salaries remained outstanding and the Respondent failed to provide
the Claimant with appropriate permit and visa which would allow him to legally render
his services, which in itself “amounts to an unjustified breach of contract”.
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14. Finally, the Claimant provided for the following break-down:
1) USD 21,600 as outstanding remuneration, corresponding to
− USD 4,800 as salary due on February 2022.
− USD 4,800 as salary due on March 2022.
− USD 4,800 as salary due on April 2022.
− USD 4,800 as salary due on May 2022.
− USD 2,400 as the salary of the first two weeks of June 2020.
2) USD 89,2800 as compensation, corresponding to
− 6.5 salaries of USD 4,800 for the 2022 season (2 weeks of June to December
2022) and 11 months of USD 5,280 for the 2023 season (January to
November 2023).
3) In case of a mitigation, the Claimant requests additional compensation of
6 months.
b. Position of the Respondent
15. The Respondent submitted the following request for relief:
“PRELIMINARILY
a. That the Claimant’s claim be deemed inadmissible as FIFA has no jurisdiction to settle
disputes in relation to the present matter;
b. In case FIFA decides it has jurisdiction, that the present proceeding be suspended until
the ongoing legal investigations and procedures regarding the alleged irregular immigration
and payment practices by the ex-employees of the Club conclude.
ON THE MERITS
c. That the Claimant’s claim be rejected, as the Player did not formalize an employment
relationship with the Club.
FURTHER SUBSIDIARILY
d. In the unlikely event that FIFA rules that the employment relationship was formalized, that
the Claimant’s claim be rejected, as the Player din not have just cause to terminate the
employment relationship.
e. Subsidiarily to d., that it is rules that the Parties0 employment relationship was terminated
on 17 May 2022, with the Player’s deregistration, and thus that the maximum amount that
can be potentially due to the Player is Argentine Peso 12,232.
LASTLY SUBSIDIARILY
f. In the very unlikely event that FIFA rules that the Player had just cause to terminate the
alleged employment relationship, that any amount potentially deemed due to the Player be
not higher than Argentine Peso 87,804.90.
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g. That, in any case, it is ruled that the Claimant is not entitled to receive any addition
compensation as claimed.
h. That, most importantly, in any case, any amount deemed due to the Claimant shall be
paid in Argentine currency, as expressly agreed by the Parties.”
16. Before entering into the merits of the dispute, the Respondent requested a suspension
of the proceeding due to internal investigations by NISA. These investigations concern
alleged immigration and employment activities by members of the Club ongoing since
May 2022.
17. The Respondent argued that such investigation shall be “for the determination of FIFA
competence” as it concerns Respondent’s affiliation and alleged that it is currently not
participating in organized football.
18. Furthermore, the Respondent pointed to Clause 16 of the Employment Agreement and
asserted that it is a clear jurisdiction clause, pointing to the competence of NISA and
deemed that the claim in front of the DRC is “inadmissible”.
19. As to the merits, the Respondent firstly argued that the management of the Club was
“unaware of the signature of the contract” and that Messrs Adrian Gaitan (formal coach)
and Yuval Reichman (formal general manager) were supposed to present the potential
players to further members of the management before signing any contracts.
20. In this respect, the Respondent argued that the Employment Agreement in the present
dispute was signed without said approval and that, consequently, it “is invalid, it was never
performed or ratified by any of the parties and thus, the employment relationship never
materialized.”
21. Furthermore, the Respondent asserted that the Claimant’s registration was “irregular”,
the latter never receiving a work visa. In this respect, the Respondent explained that it is
difficult to obtain the respective “p1” visa and that without the relevant permit, the Player
cannot be registered with NISA club.
22. What is more, the Respondent added that the Claimant “never came to the United States
of America and never played organized football. Hence, the registration must be
considered invalid. In fact, the Player was then deregistered on May 17, 2022.”
23. In view of the above, the Respondent deemed that “there was never an employment
relationship formalized”.
24. Alternatively, the Respondent argued that in case the DRC deems that there was a valid
contractual relationship, it was of the opinion that the Claimant did not have just cause
to terminate the employment relationship as the Respondent did not receive the first
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default notice and in the second notice, the Claimant granted merely 5 days to remedy
the default. What is more, the Respondent highlighted that it “was in an operational pause
for 30 days to address organizational issues”, i.e. not authorized to make any payment to
the Claimant.
25. As to the amounts claimed, the Respondent asserted that the amounts shall be paid in
Argentinian pesos and according to the season dates of the NISA, as established in the
Addendum.
Outstanding amounts
Compensation
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c. Affiliation of the Respondent
26. FIFA General Secretariat has sent a letter to the U.S. Soccer Federation requesting an
update concerning the Respondent’s affiliation as well as participation in competitions
under the auspices of the federation.
27. In its reply, the U.S. Soccer Federation replied as follows:
“Thank you for inquiring about the club status of Valley United FC. We have reviewed the
club in question and can confirm that they are no longer an existing organization in any
form since July of 2022 and are not competing in any matches.”
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 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 27 June 2022 and submitted
for decision on 26 January 2022. Taking into account the wording of art. 34 of the October
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 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 October 2022 edition), the
Dispute Resolution Chamber is, in principle, competent to deal with a matter, which
concerns an employment-related dispute with an international dimension between an
Argentinian player and a US club.
3.
Nonetheless, the DRC draw its attention to the correspondence of the U.S. Soccer
Federation informing FIFA General Secretariat that the Respondent is “no longer an
existing organization in any form since July of 2022 and are not competing in any matches.”
4.
In this regard, the Chamber referred to art. 9 par. 1 lit. b of the Procedural Rules in
accordance with which only clubs affiliated to a member association may be a party
before the chamber, i.e. the DRC cannot deal with cases of clubs which are not, or no
longer, affiliated to the relevant member association and/or which are not, or no longer,
actively participating in any competition organized under the auspices of a member
association.
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5.
In view of the above, and in accordance with the above quoted art. 9 par. 1 lit. b) of the
Procedural Rules, the Chamber concluded that the Football Tribunal does not have
jurisdiction to hear the claim of the Claimant and, consequently, declared the claim
inadmissible.
b. Costs
6.
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.
7.
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.
8.
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, Matias Roskopf, is inadmissible.
2.
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
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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