Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 3 October 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
S té pha ne B u rch k a lt e r (France) member,
To m i s lav Kas alo (Croatia) member,
Philippe Diallo (France) member,
Jérôm e Perlem uter (France) member,
on the matter between the player,
Danny (N guy en) v an Bakel, Netherlands & Vietnam
Represented by Mr Robert Postma
as Claimant
and the club,
FLC Thanh Hoa, Vietnam
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the c a s e
1.
On 11 December 2015, the Claimant concluded an employment contract (hereinafter:
the contract) with the Respondent, valid as from 11 December 2015 to 1 September
2018.
2.
The contract designated the Claimant as follows:
“Party B: Mr. Danny Van Bakel
(…)
Nationality: Neitherlands” (sic)
3.
On 29 January 2016, the parties concluded an annex to the contract (hereinafter: the
annex), according to which the player was entitled, inter alia, to a monthly salary in
the amount of USD 10,000.
4.
In addition, the player was also entitled to the following:
“Before the beginning of the 2017 V-League season, the Club shall pay the Player
75,000 USD (Seventy five thousand US Dollars.
[…]
Before the beginning of the 2018 V- League season, the Club shall pay the Player
75,000 USD (Seventy five thousand US Dollars).”
5.
Furthermore, in art. 2.2 lit. l) of the contract the parties stipulated that “in case for any
reason the Player does not maintain the level of playing skillfulness and/ or physical
conditions at the satisfaction of the Club, the Club on the sole basis of the opinion of
the Club’s Professional Council and Training Board has the right to unilaterally reduce
the salary, the bonus and other compliments or terminate this Contract without having
to compensate the Player for such early contract termination."
6.
In addition, the parties agreed in art. 2.1. lit. c that “during the time that the Club
donot [sic] play, the Player is only entitled to receive monthly salary at the level of 50%
the month salary stipulated at this Article”.
7.
Moreover, in accordance with art. 6 of the contract for “any dispute and/or difference
may arise between the Player and the Club during effectiveness of this Contract, will
be settled by discussion or mutual reconciliation. In the case of any failure to resolve
the dispute and/ or difference within 15 (fifteen) days, the Parties have the rights to put
forward the dispute to the VFF for settlement. In the case that VFF cannot settle the
dispute of the two Parties, the two Parties have the rights to put forward to FIFA, the
decision of the FIFA shall be the final and binding.”
Player Danny van Bakel, Netherlands & Vietnam / Club FLC Thanh Hoa, Vietnam
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8.
Finally, in art. 7 of the contract the parties agreed that “Labour issues and specific issues
of football sport in relations to the Club and the Player that are not specified under this
Contract shall be applied in the following order of priorities: legal regulation, rules of
VFF, rules of FIFA and Rules and Regulation of the Club.”
9.
On 2 March 2018, the player put the club in default for the outstanding remuneration
in the amount of USD 45,000, corresponding to the remainder of the salaries of August
and September 2016 in the amount of USD 7,500 and the sign on fee in the amount of
USD 37,500.
10.
On 26 April 2018, the player sent another default notice requesting again the payment
of USD 45,000.
11.
On 18 July 2018, the player sent a final default notice for the outstanding remuneration
in the amount of USD 15,000, corresponding to the remainder of the salary of
September 2016 in the amount of USD 4,000, the Salary of October 2016 in the amount
of USD 10,000 and a part of the salary of November in the amount of USD 1,000.
12.
On 7 August 2018, the player lodged a claim against the club in front of FIFA
requesting the club to pay USD 15,000, detailed as follows, plus 5% interest p.a.:
I. USD 4,000, for the remaining part of September 2016;
II. USD 10,000, for the entire month of October 2016;
III. USD 1,000, for the remaining part of November 2016.
13.
Furthermore, the player requested that “the Club will pay to the Player all additional
costs, such as costs of the proceedings and legal costs as made by the Player” and to
impose sporting sanctions against the club.
14.
In his claim, the player deemed that the club failed to pay part of his salary for
September and November 2016 and his full salary of October 2016.
15.
In its reply, the club preliminarily rejected FIFA’s competence to deal with this matter.
16.
In this regard, the club argued that in accordance with art. 6 of the contract the VFF is
competent to deal with this matter and that the “VFF has not proceed and accepted
any request or statement of claim yet related to the dispute arising out of the Labor
Contract between the Club and the Player. In consequence, FIFA DRC shall not have
jurisdiction on dispute resolution with respect to this case.”
17.
Furthermore, the club deemed that according to article 64 of the Vietnam Professional
Football Regulations “VFF receives and assigns its functional department on dispute
resolution; player status, coach status; dispute arising out of labor contract
Player Danny van Bakel, Netherlands & Vietnam / Club FLC Thanh Hoa, Vietnam
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between players or coaches and clubs which is a member of VFF; disputes between
players, affiliated club and representative of players.”
18.
In addition, the club argued that “the player is Vietnamese citizen with nationality of
Vietnam […], he plays as a professional football in Vietnam; therefore, his rights and
obligations shall be governed in accordance with the law of Vietnam and Vietnam
Professional Football Regulations.”
19.
Consequently, the club deemed that as “the player has nationality of Vietnam, the
dispute, thus, shall not be a dispute of international football.”
20.
As to the substance, the club rejected the arguments of the player and argued that in
accordance with art. 2.2 lit. l of the contract, the club was entitled to reduce the player’s
salary due to the player not meeting “the effectiveness and requirements of the
Training Board”.
21.
Furthermore, the club pointed out that “the club has not exercised and played during
the time from September 19, 2016 to October 21, 2016 […]. This Decision was issued
and disseminated to the whole team, the Training Board before implementation. In
consequence, during the time of from September 19, 2016 to October 21, 2016, the
Player shall be only entitled to receive a half of monthly salary and shall not be entitled
to receive fully payment of monthly salary in accordance with the Labor Contract.”
22.
In addition, according to the club “the player had discretely abandoned in the Club
during the period from October 22, 2016 to November 03, 2016 without any
notification to the Club and/ or any competent member or individual of the Club”.
23.
Finally, the club pointed out that “in order to support the Player, the Club has decided
not to pay only the wages in October 2016 (USD 10,000) and 03 days in November 2016
(i.e., November 01, 02 and 03, 2016, equivalent to USD 1,000). The Club still paid full
salary in November 2016 for the time where the Player has practically trained and
player in the Club (from November 04, 2016 to November 11, 2016, equivalent to USD
9,000)”.
24.
In his replica, the player first argued that “article 6 of the Employment Contract clearly
does not refer to a national dispute resolution chamber or any similar arbitration body
in the sense of Article 22 lt. b of the FIFA RSTP.”
25.
Furthermore, the player deemed that Article 64 of the Vietnam Professional Football
Regulations “clearly does not refer to a national dispute resolution chamber or any
similar arbitration body in the sense of Article 22 lt. b of the FIFA RSTP”.
Player Danny van Bakel, Netherlands & Vietnam / Club FLC Thanh Hoa, Vietnam
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26.
Moreover, the player did confirm to have a dual nationality, i.e. the Dutch and
Vietnamese nationality, however, “the moment to analyse the national or
international nature of the dispute, is the moment when the event occurs giving rise to
the dispute. […] In other words, the only relevant nationality of the Claimant is the one
at the moment the non-payment occurred in order to establish whether the FIFA DRC
is competent to hear this employment –related dispute of an international dimension
[…]. At that specific moment the Claimant only had the Dutch nationality.”
27.
As to the substance, the player rejected the club’s arguments regarding the deduction
of his salary based on article 2.2 of the contract. In particular, the player highlighted
that it “is incorrect as these kind of clauses, which have a potestative nature and are
fully to discretion of the club, limits the rights of the Player in an excessive manner and
lead to an unjustified disadvantage of the Club towards the Player.”
28.
Furthermore, the player emphasized “that it is not relevant whether the Labor Law in
Vietnam, speaks in favor of the Respondent. In fact, the well-established jurisprudence
explicitly shows that FIFA’s regulations prevail over any national law chosen by the
parties even if a party claims national law is applicable to the case.”
29.
Moreover, the player rejected the club’s claim that he “violated Respondent’s
discipline”. According to the player, “the (local) players were called 23th October 2016
not the 22th. It is incorrect that the Claimant had to train the 22th October. The
Claimant was allowed to return on the 25th October, but unfortunately the Claimant
has no proof of the agreement. It is common to agree this orally with the coaches. In
Vietnam Football, at Thanh Hoa, it is usual that foreign player return a bit later then
other ´local´ players. This was exactly the same in 2014 and 2015 seasons.”
30.
In addition, the player deemed that “the Respondent was well aware of the physical
conditions of the Claimant […] and concluded this also at the start of pre-season […].
During the period of 19 September till 3 November 2016 the Claimant used these days
to fly to Europe to visit a specialized sports doctor and thus to recover from his physical
pains and illness […]. The Claimant visited this doctor (and other physiotherapists)
several times, to examine and diagnose him.” In this respect, the player stressed that
he informed the club about this.
31.
Consequently, the player argued that the “Respondent was very aware of the physical
situation of the Claimant. The Claimant never discretely abandoned the club without
any notification, as he notified Respondent in detail about his illness, doctors’ visits,
diagnoses, treatment and recovery day by day.”
32.
In its duplica, the club repeated its arguments regarding the competence of FIFA. In
particular that “the Player had voluntarily agreed to participate in professional
Player Danny van Bakel, Netherlands & Vietnam / Club FLC Thanh Hoa, Vietnam
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football activities in Vietnam by entering into Labour Contract form December 01, 2015
and participating in professional football tournaments in the 2016 and 2017 seasons.
Therefore, the football dispute arising out of in the professional football sport aspect
to which the Player and the Club associated must be settled in compliance with the
Professional Football Regulation of Vietnam.”
33.
As to the substance, the club pointed out that “the player’s arguments disacknowleges
agreement on salary as agreed by the parties under the Labour Contract and is not
valid.” In particular “the laws always have the tasks of protecting the legal rights and
interest of individual and organizations whom are a side of a civil relation, as well as
the laws also maintain the fairness, so, unless agreed otherwise under Labour Contract,
due to the status of non-training, non-maintaining physical condition, non-playing
skillfulness and do anything, the Player cannot require the Club to pay in full his salary
under the Labour Contract.”
34.
Furthermore, the club argued that it is not true that foreign players are allowed to join
up with the team later than local players, as the club “does not have any unfair
treatment, inequality between local players and foreign player.”
35.
In addition, the club stressed that it “did not receive any documents and dossiers as
presented by the Player” and that “such dossiers and documents are signed by
individual, the Player and they are not certified or proved as being legal documents in
the civil dispute resolution proceedings and moreover it is hard to determine the date
of signing of those documents.”
36.
Consequently, the club requested FIFA to “reject whole requests of the Player pursuant
to his statement of claims”.
37.
Upon FIFA’s request, the Vietnamese Football Federation confirmed that, on the date
of his claim, the player was registered with the Respondent under the Vietnamese
nationality.
II.
Cons iderations of the Dis pute R e s o lu tio n Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the matter at stake. In this
respect, it took note that the present matter was submitted to FIFA on 7 August 2018.
Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
Player Danny van Bakel, Netherlands & Vietnam / Club FLC Thanh Hoa, Vietnam
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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 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (editions 2018 and 2019),
the Dispute Resolution Chamber is competent to deal with matters which concern
employment-related disputes with an international dimension between players and
clubs.
3.
In continuation, the Chamber analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable to the present matter. In this respect, the
Chamber 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 7 August 2018, the June 2018 edition of the
aforementioned regulations (hereinafter; the Regulations) is applicable to the matter
at hand.
4.
However, before entering the substance of the matter, the Chamber noted that the club
objected to the admissibility of the player’s claim, based on clause 6 of the contract
and the fact that the player had the Vietnamese nationality, thus the dispute being of
a national dimension. The Chamber further noted that the player insists on FIFA’s
competence to decide on the matter, due to the fact that clause 6 of the contract is not
an exclusive arbitration clause and that he had the Dutch nationality when the breach
occurred, i.e. when the amounts requested fell due.
5.
Having considered the argumentation of the player and of the club, the DRC first
deemed it appropriate to remind the parties of the exact wording of art. 22 lit. b) of
the Regulations: “Art. 22 Without prejudice to the right of any player or club to seek
redress before a civil court for employment-related disputes, FIFA is competent to hear:
[…] b) employment-related disputes between a club and a player of an international
dimension; the aforementioned parties may, however, explicitly opt in writing for such
disputes to be decided by an independent arbitration tribunal that has been established
at national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract
or in a collective bargaining agreement applicable on the parties. The independent
national arbitration tribunal must guarantee fair proceedings and respect the principle
of equal representation of players and clubs […]”. (emphasis added).
6.
Bearing in mind the wording of the previous article, the DRC emphasised that the scope
of its competence is given by the Regulations and only disputes of an international
dimension can be heard by the Chamber, unless the parties explicitly stipulate
otherwise in writing and a NDRC filling all the necessary specific pre- requisites is in
place. In accordance with the aforementioned article, the analysis of the different
nationalities of the parties comes before the analysis of the presence or
Player Danny van Bakel, Netherlands & Vietnam / Club FLC Thanh Hoa, Vietnam
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not of a clear and exclusive jurisdiction clause in the contract and of the existence of
an established NDRC.
7.
After a thorough analysis of the documentation on file, the Chamber noted that the
player requests outstanding remuneration for the period comprised between
September 2016 and November 2016. Furthermore, the DRC noted that the Vietnamese
FA confirmed that the player was registered with the club from 2016 to 2018 as
Vietnamese.
8.
Furthermore, the Chamber noted that at the moment the claim was lodged in front of
FIFA – 7 August 2018 –, which is the moment the player sought legal redress of his
contractual claims, he was registered with the Vietnamese FA as Vietnamese.
9.
Based on the foregoing, and bearing in mind the content of art. 22 lit. b) of the
Regulations, the Chamber concluded that there is no international dimension to the
present matter and therefore the claim of the player is inadmissible.
***
Player Danny van Bakel, Netherlands & Vietnam / Club FLC Thanh Hoa, Vietnam
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III.
Decis ion of the Dis pute R e s o lu tion Cham be r
1.
The claim of the Claimant, Danny (Nguyen) van Bakel, is inadmissible.
*****
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).
No te re la ted to the ap pea l p ro c e d u re :
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 Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Danny van Bakel, Netherlands & Vietnam / Club FLC Thanh Hoa, Vietnam
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