DRC - Preliminary Decisions
Texto da decisão
REF FPSD-3268
Decision of the
Dispute Resolution Chamber
passed on 3 March 2022
regarding an employment-related dispute concerning the player Chung Sing
Yuen
BY:
Frans de Weger (Netherlands), Chairperson
CLAIMANT:
Chung Sing Yuen, China PR
Represented by Alejandro Pascual
RESPONDENT 1:
R & F HK Soccer Limited, Hong Kong
RESPONDENT 2:
Guangzhou City FC, China PR
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REF FPSD-3268
I.
Facts of the case
1.
The relevant parties to the dispute are:
a. The player, Mr Chung Sing Yuen (hereinafter: the Claimant). The Claimant is of Chinese
nationality, and bearer of a passport/ID card nr. Y344395(5);
b. The club R&F HK Soccer Limited (hereinafter: the First Respondent) is a football club
based in Hong Kong which was affiliated to the Hong Kong Football Association (HKFA);
c. The club Guangzhou City FC (hereinafter: the Second Respondent), is a football club
based in the city of Guangzhou, China PR, and affiliated to the Chinese Football
Association (CFA).
2.
On 1 January 2019, the Claimant and the First Respondent concluded an employment
contract (hereinafter: the contract), valid from 1 July 2019 until 30 June 2021.
3.
In accordance with the contract the First Respondent undertook to pay to the Claimant,
inter alia:
-
a monthly salary of HKD 63,000 (approx.: USD 8075) from 1 July 2019 to 30 June
2020
a monthly salary of HKD 69,000 (approx.: USD 8844) from 1 July 2020 to 30 June
2021
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 First Respondent sent a statement to all its players, informing them
about the club’s withdrawal from the Hong Kong Premier League with immediate effect.
6.
On 15 October 2020, the Claimant received a message from the First Respondent 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 Claimant replied thereto, not
agreeing with the termination of the contract and rejecting the proposal made by the First
Respondent.
8.
By means of its letter dated 12 November 2020, the First Respondent unilaterally terminated
the contract.
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9.
Thereafter, the Claimant and the First Respondent exchanged correspondence, where the
former requested the latter to comply with the contract and the First Respondent confirmed
being disaffiliated from the HKFA and having entered insolvency proceedings.
10.
Upon a request from the FIFA general secretariat, the HKFA informed FIFA, on 23 August
2021, that the First Respondent was disaffiliated and no longer participates in the
competitions organised by the HKFA.
II. Proceedings before FIFA
11. On 9 August 2021, 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. According to the Claimant, 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 First
Respondent. 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.
13. In addition, the Claimant 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”. 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”.
14. The Claimant also tackled the issue of the international dimension of the dispute at stake, the
matter is of an international dimension due to the fact that the Second Respondent is a club
affiliated to a different football association, i.e. the CFA, whereas the Claimant is from Hong
Kong.
15. In his claim the Claimant argued that, since the First Respondent 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 First Respondent to pay compensation to the Claimant, in
accordance with art. 17 of the Regulations on the Status and Transfer of Players (RSTP). In
this respect, the Claimant held that the amount due as compensation shall amount to HKD
552,000 net, i.e. the residual value of the contract (8 monthly salaries of HKD 69,000 each –
as from November 2020 until June 2021).
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16. In addition, the Claimant held that the amount of HKD 552,000 cannot be mitigated in any
way in view of the wording of clause 16.5 of the contract, which provides the Claimant’s
entitlement to receive the residual value of the contract if the club is no longer a member of
any league of the HKFA.
17. The Claimant therefore 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 552,000 net, plus 5% interest p.a. as from 12 November 2020.
18. On 25 February 2022, the FIFA general secretariat informed the Claimant that the Football
Tribunal did not appear to be competent to decide over the matter and that the case was
going to be referred to the chairperson of the Dispute Resolution Chamber for an expedited
decision.
III. Considerations of the Dispute Resolution Chamber
19. 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.
20. 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.
21. 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).
22. 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.
23. 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.
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24. 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.
25. 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.
26. In this regard, the Chairperson observed that the claim of the Claimant towards both the
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.
27. 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”.
28. 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.
29. 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
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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”.
30. 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.
31. 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.
32. 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.
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REF FPSD-3268
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Chung Sing
Yuen.
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
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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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