Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber (DRC) judge
passed on 22 November 2019,
by
Pav el Piv ov arov (Russia),
on the claim presented by the player,
S ophie William s , England,
represented by Mr Hrvoje Raic
as Claimant
and the club,
US Fem m inile Latina Calcio, Italy
regarding an employment-related dispute
arisen between the parties
as Respondent
I.
Facts of the cas e
1.
On 20 December 2017, the English player, Sophie Williams (hereinafter: the
Claimant or the player) and the Italian club, US Femminile Latina Calcio (hereinafter:
the Respondent or the club) concluded an agreement titled “Agreement on
reimbursement of costs for amateur sports activity” (hereinafter: the agreement),
valid as from 1 January 2018 until 30 May 2018.
2.
According to art. 5 of the agreement, the club “undertakes to pay the football
player, for the sports activity under Art 2 of the present Agreement, an annual fixed
reimbursement fee amounting to EUR 1750,00 to be paid in 5 monthly instalments,
by the 5th day of the month succeeding the month in which the services required
from the football player were executed, starting from the 1 January 2018 until 30
May 2018.”
3.
Pursuant to art. 2 of the agreement, the player “undertakes, as an ‘amateur’ football
player, to participate in the Association’s [club] training and competitive activities”.
4.
In addition, art. 4 of the agreement stipulates that “the relationship between the
parties, having in mind the associating connection, type of function, modes of
execution and of explicit intention of the parties, expressly excludes any type of
dependent employment and does not intend payment of social security
contributions”.
5.
Furthermore, the parties agreed in art. 6 of the agreement that the “fixed
reimbursement fee excludes payment of premiums or fees for performed football
activities and expressly constitutes a reimbursement of costs borne by the football
player (including but not limited to: the use of football’s own car, gas, meals and
tolls)”.
6.
Moreover, art. 8 of the agreement stipulated that “during the period of stay, i.e.
from 1 January 2018 to 30 May 2018 the football player shall use suitable means of
transport on a case-by-case-basis agreed by the Company providing the football
player with accommodation, e.g. apartment […] equipped with WIFI, and the utility
bills shall be borne by the Association.”
7.
Finally, in art. 9 of the agreement the parties agreed that “all controversies which
might arise from the application, interpretation, validity, execution and/or
termination of the present agreement shall be resolve by the ordinary judge
competent to adjudicate cases of that value and in that territory.”
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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8.
On 30 November 2018, the Claimant lodged a claim for outstanding remuneration
and requested the payment of the total amount of EUR 1,750, corresponding to five
monthly “reimbursements”, plus 5% interest p.a. as from the due dates.
9.
The Claimant further requested the imposition of sporting sanctions against the
Respondent.
10.
In its reply, the club contested the competence of FIFA, as the club deemed that art.
22 lit. b of the FIFA RSTP is only applicable on employment related disputes and, in
casu, “the parties have never signed a labour – employment contract between
them”.
11.
Furthermore, the club referred to Italian law and highlighted that “amateur players
are those who play for a club belonging to the National Amateur League (Lega
Nazionale Dilettanti). They do not have an employment contract, but rather an
economic agreement concerning the reimbursement of their transfer and training
costs by the club. Such agreements can also allow for a lump sum which may be up
to EUR 25,822 (gross) on a yearly basis.”
12.
In this respect, the club argued that “amateurs do not receive amount which can be
considered as salaries but exclusively a refund of costs”.
13.
Moreover, the club stressed that “female players […] are also considered as
amateurs”.
14.
As a consequence, the club claimed that as “there is no employment relationship
between amateurs players and amateurs clubs, the CAE [Commissione Accordi
Economici] is the competent body which decides cases concerning travel allowances,
flat-rate expenses, ‘prize-giving items’ and other refund of costs-agreements”.
15.
Alternatively, the club deemed that “as per article 9 of the Agreement, the Parties
agreed that in the event of a dispute, it shall be resolved by the ordinary judge
competent to adjudicate cases of that value and in that territory”. In this regard,
the player referred to the “Ordinary Civil Tribunal of Latina, the city where the
Agreement has been signed” as the competent body to decide in this case.
16.
As reply to the club’s rejection of FIFA’s jurisprudence, the player argued that “the
Respondent’s submission about the alleged lack of FIFA DRC jurisdiction in the
present case are, simply put, just wrong”.
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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17.
Furthermore, the player deemed that it’s a “longstanding and well established
jurisprudence” that “provisions of the national law on the status of the player are
i.e. completely irrelevant for the case in hand.”
18.
In addition, the player argued that the “Respondent has failed to even try to
demonstrate that the expenses of the Claimant on monthly basis exceeds the
remuneration paid by the Respondent”.
19.
Moreover, the player stressed that the “designation of the Claimant in the
Agreement” and the “classification of the player made by the association” are not
relevant.
20.
In regards to the clause of art. 9 of the agreement, the player pointed out that “it’s
blatantly obvious that such provision is vague and obviously fails to make clear
reference to any specific court.”
21.
Finally, the player argued that “the analyzed tribunals obviously do not meet the
minimum requirements from the Circular 1010 of FIFA to be considered as
independent”.
22.
In her claim, the player deemed that on 30 August 2018, she has put the club in
default for the payment of EUR 1,750, however to no avail.
23.
In this regard, the player argued that the club failed to pay any “overdue payables”.
24.
In its reply to the claim, the club deemed that the player “acted in bad faith by
hiding the real facts of the case” and that the club has never received the default
notice.
25.
In addition, the club argued that “the Respondent did not refunded a part of the
amount of the expenses to the player because the Claimant, during a period of
rehabilitation entirely arranged and covered by the Respondent, left without any
reasons or inform the Respondent.”
26.
Consequently, the club stressed that the claim of the player shall be rejected.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge) analysed
whether he was competent to deal with the matter at stake. In this respect, he took
note that the present matter was submitted to FIFA on 30 November 2018.
Consequently, the 2018 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 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 (editions
June 2018 and 2019), the DRC judge shall, in principle, adjudicate on employmentrelated disputes between a club and a player, with an international dimension.
3.
However, the DRC judge acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the grounds that the agreement concluded
with the Claimant established the “Ordinary Civil Tribunal of Latina” as the
competent body to deal with the case.
4.
On the other hand, the DRC judge noted that the player rejected the competence
of the “Ordinary Civil Tribunal of Latina” over the present affair, alleging that the
jurisdiction clause included in the agreement was not clear and specific enough.
5.
In relation to the above, the DRC judge 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.
6.
Therefore, while analysing whether he was competent to hear the present matter,
the DRC judge considered that he should, first and foremost, analyse whether the
agreement at the basis of the present dispute contained a clear and specific
jurisdiction clause.
7.
In this respect, the DRC judge recalled that art. 9 of the agreement stipulates that
“all controversies which might arise from the application, interpretation, validity,
execution and/or termination of the present agreement shall be resolve by the
ordinary judge competent to adjudicate cases of that value and in that territory.”
8.
Having examined the relevant provision, the DRC judge came to the conclusion that
art. 9 of the agreement does not constitute a clear jurisdiction clause in favour of
one specific court in Italy, since it is drafted in a generic manner and even fails to
mention the relevant country. Consequently, the DRC judge understood that the
parties actually never clearly and undisputedly agreed upon a specific jurisdiction.
9.
Furthermore, the DRC judge observed that the player and the club have different
opinions as to whether this dispute is to be considered an employment related
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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dispute as the club deemed that the parties never signed a “labour – employment
contract”, whereas the player rejected the club’s arguments in its entirety.
10.
In this regard, the DRC judge duly noted that the agreement contained a provision
stipulating that the Claimant was entitled to receive from the Respondent a monthly
amount of EUR 350 as well to be provided with an accommodation by the
Respondent.
11.
In this context, the DRC judge referred to art. 2 par. 2 of the Regulations, which
stipulates that “A professional is a player who has a written contract with a club and
is paid more for his footballing activity than the expenses he effectively incurs. All
other players are considered to be amateurs”.
12.
Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations as
well as the amounts payable to the player on the basis of the agreement, the DRC
judge concluded that it was beyond a doubt that the player was in fact paid more
for her footballing activity than the expenses she effectively incurred. In this regard,
the DRC judge was eager to emphasize that a player’s remuneration as per the
criteria set out in art. 2 par. 2 of the Regulations constitutes the decisive factor in
the determination of the status of the player and that the legal nature or the
designation of the contract is of no relevance in this regard. This approach has been
confirmed by the Court of Arbitration for Sport (CAS) in its decision CAS
2006/A/1177, whereby the Panel also emphasized that the definition contained in
the mentioned provision is the only ground to establish a player’s status. For the
sake of completeness, the DRC judge pointed out that according to the said decision
the classification of a player made by the association of his club is not decisive to
determine the status of a player. And, finally, the remuneration in question may
well fall short of a living wage, but as long as it exceeds the expenses effectively
incurred by the player, the criterion of art. 2 of the Regulations is met.
13.
Equally, the DRC judge highlighted that the second element contained in said art. 2
par. 2 of the Regulations, i.e. the existence of a written contract, is met.
14.
On account of all the above, the DRC judge concurred that the player was registered
as a professional with the club.
15.
Thus, the DRC judge established that the Respondent’s objection towards the
competence of FIFA to deal with the present matter has to be rejected, and that the
DRC judge 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
and that the claim of the Claimant is admissible.
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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16.
In continuation, the DRC judge 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 DRC judge confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (editions 2018 and 2019),
and considering that the Claimant’s claim was lodged on 30 November 2018, the
June 2018 edition of the aforementioned regulations (hereinafter; the Regulations)
is applicable to the matter at hand as to the substance.
17.
The competence of the DRC judge and the applicable regulations having been
established, and entering into the substance of the matter, the DRC judge started
by acknowledging the above-mentioned facts as well as the documentation
contained in the file. However, the DRC judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence
which he considered pertinent for the assessment of the matter at hand.
18.
In so doing, the DRC judge first noted that on 20 November 2017, the player and
the club effectively concluded an employment contract valid as from 1 January 2018
until 30 May 2018, by means of which the player was entitled to receive the
remuneration detailed in point I.2. above.
19.
Subsequently, the DRC judge acknowledged that, according to the Claimant, the
Respondent had failed to pay any amounts in accordance with the agreement, i.e.
EUR 1,750.
20.
In continuation, the DRC judge noted, that the Respondent did not contest that it
had failed to make any payments, but the club argued that it never received a
default notice from the player and deemed that the player left the club during “a
period of rehabilitation” without informing the Respondent.
21.
In this regard, the DRC judge emphasised that the Respondent failed to provide any
evidence for its arguments, in fact, the club failed provide any details of the alleged
circumstances. Moreover, the DRC judge considered that the arguments raised by
the Respondent, in particular, that it allegedly had not received any default notice,
cannot be considered a valid reason for the non-payment of the monies claimed by
the Claimant. In other words, the reasons brought forward by the Respondent in its
defence do no exempt the Respondent from its obligations to fulfil its contractual
obligations towards the Claimant.
22.
Consequently, the DRC judge decided to reject the argumentation put forward by
the Respondent in its defence.
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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23.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the player’s remuneration, in the total amounts of
EUR 1,750, corresponding to 5 monthly instalments.
24.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant
payments as of the day following the day on which the relevant payments fell due,
until the date of effective payment.
25.
Furthermore, taking into account the consideration under number II.14 above, the
DRC judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
26.
In this regard, the DRC judge pointed out that, against clubs, the consequence of
the failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
27.
Therefore, bearing in mind the above, the DRC judge decided that, in the event that
the club does not pay the amounts due to the player within 45 days as from the
moment in which the player, following the notification of the present decision,
communicates the relevant bank details to the club, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the club in
accordance with art. 24bis par. 2 and 4 of the Regulations.
28.
Finally, the DRC judge recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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III.
Decision of the DRC judge
1.
The claim of the Claimant, Sophie Williams, is admissible
2.
The claim of the Claimant is accepted.
3.
The Respondent, US Femminile Latina Calcio, has to pay to the Claimant the amount
of EUR 1,750, plus 5% interest p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
4.
5.
5% p.a. as from 6 February 2018 on the amount of EUR 350;
5% p.a. as from 6 March 2018 on the amount of EUR 350;
5% p.a. as from 6 April 2018 on the amount of EUR 350;
5% p.a. as from 6 May 2018 on the amount of EUR 350;
5% p.a. as from 6 June 2018 on the amount of EUR 350.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amount mentioned under point 3 above.
The Respondent shall provide evidence of payment of the due amount in accordance
with point 3 above to FIFA to the e-mail address [email protected], duly translated, if
need be, into one of the official FIFA languages (English, French, German, Spanish).
6.
In the event that the amount due plus interest in accordance with point 3 above is
not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
7.
The ban mentioned in point 6 above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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8.
In the event that the aforementioned sum plus interest is still not paid by the end
of the ban of three entire and consecutive registration periods, the present matter
shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration
and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 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 (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 DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Sophie William, England / Club US Femminile Latina Calcio, Italy
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