Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Johan v an Gaalen (S outh Africa), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
Marco Ros s i, Italy,
represented by PFA
as Claimant
against the club,
Wellington Phoenix FC, New Zealand
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 8 August 2016, the Italian player, Marco Rossi (hereinafter: Claimant) concluded an
employment contract (hereinafter: the contract) with the New Zealander club,
Wellington Phoenix FC (hereinafter: Respondent), valid as from 18 July 2016 until 31
May 2018.
2.
In accordance with clause 1.1 of the contract, the Claimant was entitled to a monthly
salary of New Zealand Dollar (NZD) 27,500 “Gross” (approx. USD 16,562).
3.
Clause 1.9.4 of contract stipulated that “should the [Claimant] start in 18 or more ALeague matches in the 2017/2018 Season, the parties agree that the End Date of the
Term […] shall be automatically be extended to 31 May 2019”.
4.
Pursuant to clause 2.2. of the contract, the “FFA, the [Respondent] and [the Claimant]
agree to be bound and comply with the [Collective Bargaining Agreement]”.
5.
On 12 March 2019, the Claimant lodged a claim against the Respondent for breach of
contract, requesting NZD 221,002 “as compensation for the [Respondent’s] unilateral
breach of the contract”, as well as interests on said amount “at the prevailing rate
awarded by the DRC”.
6.
The Claimant further requested the imposition of sporting sanctions on the
Respondent.
7.
In his claim, the Claimant referred to extension clause enshrined clause 1.9.4 of the
contract and explained that the Respondent did not extend the contract. In this
context, the Claimant deemed that the only reason why the contract extension option
was not triggered was because the Respondent did not want this to happen.
8.
As per the Claimant, despite him being an important member of the team, the
Respondent did not field him after having started 14 games prior to 2 February 2018.
According to the Claimant, the Respondent tried to have him sign a new employment
contract without the extension-clause. However, the Claimant stated that he refused
to sign such a contract. Furthermore, the Claimant argued that after his refusal to sign
a new contract, he made only one more appearance in the final game of the season.
9.
Consequently, the Claimant argued that the Respondent breached the contract, by
failing to act in good faith and the Respondent’s “abusive conduct towards the
[Claimant] which was aimed at forcing him to change the terms of the Contract”.
10.
In reply to the Claimant’s claim, the Respondent firstly rejected FIFA’s competence in
this matter and argued that the NDRC of Australia is competent. In this light, the
Respondent was of the firm opinion that due to the validity of the collective bargaining
agreement (CBA) and its reference to the Australian NDRC and due to the fact that an
Player Marco Rossi, Italy / Club Wellington Phoenix FC, New Zealand
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existing independent tribunal is “set up under the CBA”, the jurisdiction should be with
said NDRC.
11.
Moreover, the Respondent argued that the Claimant had already submitted that case
to the Australian NDRC providing several emails between the representative of the
Claimant and the NDRC Administrator, including one sent on 14 January 2019.
Furthermore, as per the Respondent, after the NDRC Administrator confirmed the
appointed Arbitrator on 25 February 2019, the Claimant withdrew the claim on 12
March 2019, due to the duration of the proceeding.
12.
Consequently, the Respondent argued that the Claimant acknowledged the
competence of the Australian NDRC, but decided to submit the case before FIFA after
being frustrated with the duration of the proceeding.
13.
Consequently, as per the Respondent, due to the fact that there is a valid CBA with a
jurisdiction in favor of the Australian NDRC, the fact that the Claimant initially accepted
the jurisdiction of the NDRC, and his failed attempt to “forum shopping”, the claim
shall be inadmissible.
14.
With regards to the substance of the matter, the Respondent rejected the Claimant’s
arguments and deemed that at no point did it breach the contract. Moreover, the
Respondent claimed that on 29 August 2017, the Claimant asked the Respondent’s
head coach to find a way for him to leave the club.
15.
In continuation, the Respondent maintained that it did not want to release the
Claimant, but realized that the Claimant was unhappy. Therefore, the Respondent
argued, it offered the Claimant a new contract without the automatic contract
extension, which the Claimant refused.
16.
Moreover, the Respondent argued that it did not exclude the Claimant from playing
due to the extension clause, but rather because the Claimant was injured for several
games. In particular, the Respondent held that the Claimant was injured as from 2
February 2018 returning to full training on 24 March 2018. Furthermore, according to
the Respondent, when he was fit to play, the coach did not field him due to form and
attitude.
17.
Consequently the Respondent concluded that the Claimant’s arguments that “he has
suffered loss because the [Respondent] abused its power in refusing to select him” are
not true.
18.
On 21 September 2018, the Claimant signed an employment contract with the Italian
club Robur Siena Football Club, valid as from 1 September 2018 to 30 June 2019.
According to the new employment contract the player was, inter alia, entitled to, inter
alia, the following:
Player Marco Rossi, Italy / Club Wellington Phoenix FC, New Zealand
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a)
b)
EUR 62,000 “Gross” for the 2018/2019 season;
EUR 7,000 “max as travel allowance”.
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 12 March 2019.
Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(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. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players the Dispute
Resolution Chamber would, in principle, be competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between an Italian player and a New Zealander club.
3.
In this respect, the Chamber was firstly eager to emphasize that the Deputy Chairman
Omar Ongaro refrained from participating in the deliberations in the case at hand, due
to the fact that Omar Ongaro has the same nationality as the Claimant and that, in
order to comply with the prerequisite of equal representation of club and player
representatives, the Dispute Resolution Chamber adjudicated the case in presence of
two members in accordance with art. 24 par. 2 of the Regulations.
4.
In continuation, the Chamber deemed it, however, of utmost importance to consider
the following chronological crucial facts which are at the basis of the specific litigation
at hand.
5.
In this regard, the members of the Chamber took note that, according to the
documentation on file, on 14 January 2019 the Claimant submitted the case to the
Australian NDRC.
6.
Thereafter, the Chamber observed that, on 12 March 2019, the Claimant withdrew
his claim in front of the Australian NDRC due to the duration of the proceeding.
7.
In this context, the Chamber wished to point out that if a party chooses to pursue
the defence of his/its rights at national level and in accordance with contractual
provisions, he/it should proceed that way until the end. Thus, the DRC highlighted
Player Marco Rossi, Italy / Club Wellington Phoenix FC, New Zealand
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that by lodging a claim at the Australian NDRC, the Claimant accepted the
competence of said NDRC.
8.
Therefore, the DRC was of the opinion that the Claimant should have proceeded
further with the relevant arbitral body of Australia as to its request for
compensation from the Respondent, insofar as it was given the opportunity to do
so by the NDRC of Australia. The Chamber equally established that, according to
the information on file, the Australian NDRC did provide the Claimant the
opportunity to request compensation from the Respondent.
9.
Finally, the Chamber deemed it important to underline that the practice consisting
in having a case heard by another decision-making body with the aim to get the
most favourable judgment, known as “forum shopping”, cannot be upheld by the
Chamber.
10.
Taking into account all the foregoing considerations, the Chamber concluded that
it was not competent to deal with the claim lodged by the Claimant in front of FIFA.
As a consequence, the claim of the Claimant is inadmissible.
Player Marco Rossi, Italy / Club Wellington Phoenix FC, New Zealand
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III.
Decision of the Dis pute Res olution Cham ber
The claim of the Claimant, Marco Rossi, is not admissible.
*****
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Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
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. 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.
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:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Marco Rossi, Italy / Club Wellington Phoenix FC, New Zealand
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