Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 September 2015,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Carlos González Puche (Colombia), member
Guillermo Saltos Guale (Ecuador), member
Alejandro Marón (Argentina), member
on the claim presented by the player,
Player 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 case
1.
On 18 August 2010, Player A from country B (hereinafter: the Claimant), and Club
C from country D (hereinafter: the Respondent), concluded an employment
contract, valid as of the date of signature until 30 June 2013.
2.
According to the contract, the Claimant was entitled to receive the following net
remuneration:
2010-11 season: EUR 500,000, broken down as follows:
- EUR 23,000 as eleven monthly salaries payable from August 2010 to
June 2011;
- EUR 247,000 payable on 30 June 2011;
2011-12 season: EUR 500,000, broken down as follows:
- EUR 21,000 as twelve monthly salaries payable from July 2011 to June
2012;
- EUR 248,000 payable on 30 June “2011”;
2012-13 season: EUR 500,000, broken down as follows:
- EUR 21,000 as eleven monthly salaries payable from July 2012 to June
2013;
- EUR 248,000 payable on 30 June “2011”.
3.
In addition, art. 6 of the contract stipulated that “[The Clamaint] acepta y se
somete a la normative de la Federación de Fútbol del paìs D y la Liga de Fútbol
Profesional así como a cualquier otro organismo deportivo nacional e
internacional en todas aquellas materias de su competencia.” (free translation
form Spanish: “[The Clamaint] accepts and submits himself to the regulations of
the Football Federation of country D and the National Football League, as well as
any other national and international sporting bodies in all those matters within
their competence.”).
4.
The contract stipulated that: “…[el contrato] podrá extinguirse antes de la
expiración del tiempo convenido por cualquiera de las causas previstas en la
legislación aplicable“ (free translation from Spanish: “..[the contract] can be
extinguished before the agreed expiration date for any of the reasons provided in
the applicable legislation.”).
5.
On 5 July 2011, the Respondent was declared in voluntary bankruptcy by the 1 st
Commercial Court of Country D.
6.
Subsequently, on 1 August 2011, the Respondent lodged before the 1 st
Commercial Court of Country D, a request of authorization for the collective
termination of twenty employment contracts, which contemplated the contract
concluded by the Claimant and the Respondent.
Player A, country B / Club C, Country D
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7.
On 13 October 2011, the 1st Commercial Court of Country D passed a decision in
which it authorized the collective termination of the employment relations of
several employees with the Respondent, and in which the Claimant was included
amongst them.
8.
Moreover, the decision of the 1st Commercial Court of Country D dated 13
October 2011, stipulated that: “Se fija como indemnización a percibir…respecto
de los trabajadores del grupo C [Group which included the Claimant] la suma de
20 días por año de servicio trabajado, prorrateándose por meses los periodos de
tiempo inferior, con un máximo de 12 mensualidades” (free translation from
Spanish: “It is set as compensation to receive... in respect of the employees in
group C, the sum of 20 days per year of service worked, with a monthly pro rata
basis for the periods of time less than that, with a maximum of 12 month
instalments.”).
9.
On 23 January 2013, the 1st Commercial Court of Country D approved an
agreement with the creditors, in which there is a recognized debt towards the
Claimant amounting to EUR 331,174.92.
10.
On 27 August 2013, the Claimant lodged a claim in front of FIFA for outstanding
remuneration and breach of contract in connection thereto, requesting to be
awarded with the amount of EUR 1,117,000 broken down as follows:
EUR 383,000, plus 5% interest p.a. as from 29 August 2011, as outstanding
remuneration corresponding to his salaries for February, March, April, May,
June and July, all 2011, plus the amount of EUR 247,000 due on 30 June
2011.
EUR 734,000, as compensation corresponding, according to the player, to
the residual value of the contract and broken down as follows:
- EUR 479,000 corresponding to the remuneration from August 2011
to June 2012;
- EUR 500,000 corresponding to the remuneration from July 2012 to
June 2013;
- The Claimant deducted EUR 245,000 as according to him he earned
EUR 145,000 in the 2011-2012 season with the club from country E,
Club F, and EUR 100,000 in the 2012-2013 season with the club from
country G, Club H;
The Claimant also requested a non-specified amount for legal fees.
11.
In his claim, the Claimant explained that he terminated the contract on 29 August
2011 as, allegedly, he had remained unpaid since January 2011. In this regard, the
Claimant asserted that he had requested the payment from the Respondent
several times before terminating the contract. Moreover, the Claimant concluded
that he had just cause to terminate the contract since the Respondent failed to
pay him more than six monthly salaries.
Player A, country B / Club C, Country D
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12.
In its reply to the claim, the Respondent rejected the Claimant’s claim. The
Respondent contested the competence of FIFA, alleging that after having been
declared bankrupt on 5 July 2011, the Respondent started an ordinary proceeding
on 1 August 2011 in order to collectively terminate several contracts, including the
Claimant’s. This proceeding was finalized by means of a decision dated 13 October
2011 from the 1st Commercial Court of Country D which authorized the
termination of several contracts, including the Claimant’s. The Respondent further
argued that taking into account art. 22 of the FIFA Regulations on the Status and
Transfers of Players, it had the right to bring the Claimant’s case before a national
court.
13.
Furthermore, the Respondent stated that, in consequence of the above
mentioned, the matter at hand is res iudicata. The Respondent also argued that
the Claimant’s claim is time barred. In this respect, it explained that the Claimant’s
claim for outstanding remuneration is time barred, as the most recent salary
claimed by the Claimant is July 2011, and his claim was lodged in 27 August 2013,
therefore, more than two years have elapsed. The Respondent also argued that
the Claimant’s claim for compensation is prescribed, as two years have elapsed
since 1 August 2011, when it started an ordinary proceeding in order to terminate
the Claimant’s contract, and when the Claimant lodged his claim.
14.
In addition, the Respondent stressed that on 23 January 2013, an agreement with
the creditors, which includes the Respondent’s debt towards the Claimant, was
approved by the 1st Commercial Court of Country D. In this regard, the
Respondent explained that the salaries claimed by the Claimant were recognized
in the respective bankruptcy proceeding, and in consequence the mentioned
agreement set a date for the Claimant to collect his debt from the Respondent. In
consequence, the Respondent argued that the Claimant should not pretend to
collect his debt before the rest of the creditors, which would be in prejudice to
them and in breach to the principle of equal treatment amongst all creditors, and
in turn, he should wait to collect his debt in accordance with the agreement.
15.
Finally, the Respondent declared that it had opened a “disciplinary file” regarding
the Claimant after missing several trainings which caused a “disciplinary dismissal”
of the Claimant on 20 September 2011. In this respect, the Respondent explained
that on 5 July 2011, it informed the Claimant that due to the difficult financial
situation the Respondent was facing, it authorised him to talk to other clubs in
order to find a new team, and authorized him to be absent from the preseason
starting on 11 July 2011. However, the Respondent further explained that after
not reaching an agreement with the Claimant, on 28 July 2011, it informed the
Claimant that the authorization to miss trainings had been revoked, and that now
he had to return to trainings, which the Claimant never did and that in
consequence, a “disciplinary file” was opened regarding the Claimant and he was
subsequently dismissed.
Player A, country B / Club C, Country D
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16.
In his replica, the Claimant repeated his position and argued that FIFA’s Dispute
Resolution Chamber is competent to deal with the matter at hand as it is a
dispute of international dimension and there is no independent arbitration
tribunal within the framework of the Football Federation of country D.
17.
Moreover, the Claimant explained that his claim is not time-barred. In this respect,
the Claimant explained that it would be up to FIFA’s Dispute Resolution Chamber
to decide if his claim for outstanding remuneration is indeed time-barred.
Regarding his claim for compensation, the Claimant argued that it is not
prescribed as his “entitlement to receive compensation for breach of contract was
born on 29 August 2011” when he terminated the contract, and his claim was
lodged on 27 August 2013. Moreover, the Claimant sustained there is no res
iudicata concerning his claim for compensation for breach of contract.
18.
The Claimant stressed that the amount of EUR 331,174.92, recognized as
outstanding remuneration by the Respondent, is not correct, as, according to him,
EUR 51,825.08 should also be part of the calculation for outstanding
remuneration.
19.
Finally, the Claimant asserted that it was bad faith from the Respondent to order
him to return to trainings after not reaching an agreement, taking into account
that he had remained unpaid for more than 6 months. Additionally, the Claimant
stated that he had already terminated the contract on 29 August 2011, and
therefore, he had no obligation to attend trainings afterwards.
20.
In its final comments, the Respondent repeated its position and stressed that by
means of an agreement between the Football Players Association of country D
and the National Football League, the latter obliged itself to cover the recognized
debt of EUR 331,174.92 to the Claimant. In this respect, the Respondent argued
that the Claimant has already collected this amount.
II.
Considerations of the Dispute Resolution Chamber
1.
First, 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 27 August
2013. Consequently, the 2012 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 stake (cf. art. 21 of the 2012, 2014
and 2015 Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2. in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players
Player A, country B / Club C, Country D
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(edition 2015), the Dispute Resolution Chamber would, in principle, be
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from country
B and a club from country D.
3.
However, the Chamber noted that the Respondent is of the opinion that the
Dispute Resolution Chamber has no competence to deal with the claim while
arguing that the present claim is res iudicata, as, after having been declared
bankrupt, it started ordinary proceedings in front of the 1st Commercial Court of
Country D in order to terminate several contracts, including the contract of the
Claimant. Moreover, the Chamber noted that, according to the Respondent,
taking into account art. 22 of the FIFA Regulations on the Status and Transfer of
Players, it had the right to bring the Claimant’s case before a national court.
4.
In this respect, the members of the Chamber took note that the ordinary
proceedings started by the Respondent were finalized by means of a decision
dated 13 October 2011, passed by the aforementioned 1st Commercial Court of
Country D, and in which said court authorized the termination of several
contracts, including the contract at the basis of this claim. Furthermore, the DRC
noticed that on 23 January 2013, the same court in Country D approved an
agreement with the creditors, in which it is recognized that the Claimant is
entitled to receive outstanding remuneration. In view of the above, the DRC
held that a decision regarding the claim for outstanding remuneration had
already been rendered and, therefore, concluded that in accordance with the
principle of res iudicata, it had no competence to deal with this aspect of the
Claimant’s claim.
5.
At this point, the Chamber wished to refer to its jurisprudence, according to
which decisions of competent ordinary courts in bankruptcy proceedings have
been recognized, in particular with respect to outstanding amounts.
6.
In continuation, the Chamber deemed it of utmost importance to emphasize
that the question of the legality of this particular termination of the contract
and the consequences deriving therefrom had already been addressed by a
decision-making body, in this case, the 1st Commercial Court of Country D, in its
decision dated 13 October 2011, which finalized the ordinary proceedings
started by the Respondent. In this regard, the Chamber considered crucial to
point out that by authorizing the termination of the Claimant’s contract, the 1 st
Commercial Court of Country D decided about the Claimant’s future situation.
Moreover, it was noted by the DRC that the aforementioned decision recognized
that the Claimant was entitled to compensation. In consequence, the DRC
concluded that, in accordance with the principle of res iudicata, it had no
competence regarding the Claimant’s request for compensation for breach of
contract.
Player A, country B / Club C, Country D
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7.
In view of all the above, the Chamber established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be
accepted and that the Dispute Resolution Chamber is not competent, in
accordance with the principle of res iudicata, to consider the present matter as
to the substance.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is inadmissible.
*****
Note relating to the motivated decision (legal remedy):
According to article 67 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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, Country D
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