F.I.F.A. – Camera di Risoluzione delle Controversie (2012-2013) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2012-2013) – labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 16 November 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos Soto (Chile), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the player, Player P, from country A as Claimant against the club, Club M, from country P as Respondent regarding an employment-related dispute arisen between the parties

F.I.F.A. - Camera di Risoluzione delle Controversie (2012-2013) - controversie di lavoro - ---------- F.I.F.A. - Dispute Resolution Chamber (2012-2013) - labour disputes – official version by www.fifa.com – Decision of theDispute Resolution Chamber passed in Zurich, Switzerland, on 16 November 2012, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos Soto (Chile), member Ivan Gazidis (England), member Mohamed Mecherara (Algeria), member on the claim presented by the player, Player P, from country A as Claimant against the club, Club M, from country P as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 11 July 2006, Player P (hereinafter: the Claimant), and Club M, from country P (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract) valid from the date of its signature until 30 June 2008. 2. Clause 10 of the contract establishes that to any issue not envisaged by the contract, the collective bargaining agreement (Convenção Colectiva de Trabalho, hereinafter: the CCT) between the country P League of Professional Football and the Union of Professional Football Players will be applicable. 3. Clause 16 of the contract states that, if any dispute emerges from the contract, country P law shall be applicable and the “Foro de la Comarca de Funchal” shall be competent to decide over such dispute, expressly waiving to any other jurisdiction. 4. On 30 August 2007, the parties signed a termination agreement, according to which they concluded the following: (i) to terminate the contract as from 30 August 2007; (ii) the Respondent will pay EUR 27,500 to the Claimant as compensation, via cheque dated 30 August 2007 and, (iii) the parties had nothing else to claim to each other as per compensation or for any other concept. 5. On 11 January 2008, the Claimant lodged a complaint before FIFA against the Respondent claiming that the Respondent had not complied with its obligations as agreed upon in the termination agreement signed on 30 August 2007. 6. In this respect, the Claimant indicated that he was seriously injured in October 2006. According to the Claimant, the Respondent authorised him to be treated by Dr. C. After several operations, in July 2007, the Claimant allegedly returned to the Respondent in order to fulfil his contractual obligations since Dr. C declared that the Claimant was in condition to play football. However, the Respondent allegedly prohibited the return of the Claimant to the team, arguing that he was not yet fully recovered and, after a medical examination in the Respondent’s medical facility on 13 July 2007, the Respondent opened a disciplinary action on 31 July 2007 against the Claimant stating that (i) the Respondent had consented all the Claimant’s requirements concerning the surgery, treatment and recovery consequence of the Claimant’s injury; (ii) according to the Respondent’s medical coordinator, the Claimant should continue his recovery in order to be able to train again with the team and; (iii) therefore the Claimant should continue with the third phase of the treatment in country B. 7. In view of the above, the parties entered into negotiations, and as a consequence they agreed to terminate the contract on 30 August 2007. The Claimant indicates that on 1 September 2007, he went to the Respondent to receive the cheque and they informed him that, in order to receive it, he had to sign a further declaration by means of which the Claimant would confirm that only he was liable for all the costs owed to the clinic of Dr. C, due until 30 August 2007. The Claimant did not sign the abovementioned declaration and states he did not receive the relevant cheque. 8. As a consequence of the previous, the Claimant requests the following: - to be awarded with EUR 27,500 as concluded in the termination agreement; - the payment of the medical expenses derived from the injury he suffered up to the total amount of EUR 23,230; - to be awarded with the 5% interest rate as from 31 August 2007; - the payment by the Respondent of the costs of the procedure. 9. In its statement of defence, the Respondent firstly challenges FIFA’s competence to deal with the claim, referring to the existence of the CCT and stating that the Paritary Arbitration Commission in country P should be competent to decide on the present matter, which fulfils all the requirements of art. 22 b) of the FIFA Regulations on the Status and Transfer of Players. 10. In this respect, the Respondent submitted a statement signed by the director of the country P Professional Football League declaring that, under the CCT concluded between the country P Professional Football League and the Syndicate of the Professional Football Players, an Arbitration Tribunal (i.e. the Paritary Arbitration Commission) existed composed of six members, three appointed by the League and three by the Syndicate. 11. Notwithstanding the above, the Respondent acknowledged that according to the CCT and in order for the Paritary Arbitration Commission to be competent, there must be a specific arbitration clause which the contract does not include. The Respondent, however, argued that this does not lead to a “negative competence conflict” and continued by stating that “country P procedural labour laws establish that country P labour courts are competent when the relevant facts that compose ‘cause of action’ have taken place in the country P territory”. The Respondent asserts that the employment relationship had the closest connection with the country P jurisdiction, since it was concluded and terminated in country P, and that, therefore, in accordance with clause 16 of the contract the claim should be dealt with by country P labour courts, emphasizing that such clause substitutes the one that would establish the competence of the Paritary Arbitration Commission. 12. With regards to the merits of the case, the Respondent declares that the amount claimed by the Claimant is not owed, since they have already paid the Claimant. Furthermore, in accordance with country P law, the claim is prescribed. Finally, the Respondent states that as to the medical costs, the DRC is not competent to deal with such matters. 13. In his rejoinder, the Claimant repeated that he had not received the amount agreed upon in the termination agreement as alleged by the Respondent. Furthermore, the Claimant referred to several articles of the CCT and indicated that the case could not be submitted to the Arbitration Paritary Commission in country P, since the contract did not include a relevant clause in this respect and since he has neither a contract in force in country P nor lives in country P currently. Therefore, the Claimant insisted on the competence of FIFA to deal with the case. 14. With regards to the competence of the national labour courts, the Claimant stated that such competence would not affect FIFA’s competence, since art. 22 of the FIFA Regulations on the Status and Transfer of Players explicitly stipulates that FIFA’s competence is without prejudice to the right of any player or club to seek redress before a civil court for employment related disputes. Therefore, according to the Claimant, both parties had the right to lodge a claim either before a national court or before the DRC. Finally, the Claimant added that FIFA is also competent to decide about the medical costs, since, as he states, “the duty to pay the medical costs derived of an injury of a player is a financial dispute”. 15. In its duplica, the Respondent reiterated its previous arguments. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter 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 11 January 2008. Consequently, the previous edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2005; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, edition 2008). 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 (edition 2010) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. 3. As a consequence, the Dispute Resolution Chamber would, in principle, be the competent body to decide on the present litigation involving an country A player and a country P club regarding an outstanding amount based on a termination agreement derived from the employment contract concluded between the aforementioned parties. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 10 of the employment contract according to which the collective bargaining agreement concluded between the country P League of Professional Football and the Union of Professional Footbal Players will be applicable to any issue not envisaged by the employment contract. 5. Equally, the Chamber took note that the Respondent invoked the competence of the country P labour courts to deal with the present matter, on the basis of clause 16 of the employment contract, according to which for any dispute that emerges from the contract, country P law shall be applicable and the “Foro de la Comarca de Funchal” shall be competent to decide over such dispute, expressly waiving to any other jurisdiction. 6. In this regard, the Chamber noted that the Claimant rejected such position and insisted on the fact that FIFA has jurisdiction to deal with the present matter. 7. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2010 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one in hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 8. Furthermore, the members of the Chamber directly recalled the first sentence of art. 22 of the Regulations on the Status and Transfer of Players, which stipulates that FIFA’s competence is without prejudice to the right of any player or club to seek redress before a civil court for employment related disputes. 9. In this context, and while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber deemed it of utmost importance to highlight that the present dispute pertains to the execution of a termination agreement. 10. Having said this, the members of the Chamber turned to the contents of the termination agreement, which is the basis of the present dispute between the Claimant and the Respondent. In this respect, the Chamber noted that the termination agreement, which is the result of a foregoing employment contract, does not include any exclusive jurisdiction clause or any reference to a national arbitration body in case of a dispute between the parties. 11. Hence, the termination agreement clearly does not refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations nor to the exclusive competence of a civil court in country P. Therefore, the members of the Chamber deemed that there is no existence of an exclusive jurisdiction clause in the termination agreement which would preclude the Chamber from adjudicating on the present dispute. 12. In view of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber 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. 13. Furthermore and in relation to the Respondent’s argument that the claim of the Claimant was time-barred, the Chamber referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case. 14. In this respect, the Chamber concurred that the Claimant’s claim against the Respondent was lodged in front of FIFA on 11 January 2008 and that the event giving rise to the dispute arose on 31 August 2007. Consequently, the Chamber concluded that the Claimant had brought his claim against the Respondent within the aforementioned two-year period of time. 15. In continuation, the Chamber analysed which edition of the FIFA Regulations should be applicable as to the substance of the matter. In this respect, it referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2008, 2009 and 2010), and, on the other hand, to the fact that the present claim was lodged in front of FIFA on 11 January 2008. The DRC concluded that the 2005 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations), is applicable to the matter at hand as to the substance. 16. The competence of the Chamber and the applicable regulations having been established, the members of the Chamber entered into the substance of the matter. They started by acknowledging that the parties to the dispute had signed a termination agreement on 30 August 2007. 17. Equally, the Chamber observed that the parties had agreed, by means of the aforementioned termination agreement, a total compensation of EUR 27,500 payable to the player via cheque dated 30 August 2007. 18. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent requesting the payment of the amount of EUR 27,500 plus interest, corresponding to the amount agreed upon in the termination agreement, as well as the amount of EUR 23,230 corresponding to unpaid medical expenses. Additionally, the Claimant also requested that the Respondent would pay the “costs of the procedures”. 19. The Chamber took note that the Respondent alleged that it had paid the agreed compensation. However, the Chamber recalled that according to the legal principle of the burden of proof, any party claiming a right on the basis of an alleged fact shall carry the burden of proof (cf. art. 12 par. 3 of the Procedural Rules). 20. In view of the above, the Chamber concluded that the Respondent shall carry the burden of proof that the relevant amount as agreed upon in the termination agreement had indeed been paid. 21. In this respect, the Chamber observed that the Respondent was not able to corroborate that it had already paid the relevant amount. In particular, the Chamber established that the Respondent did not present any documentary evidence at all for the payment of the amount of EUR 27,500. 22. On account of the aforementioned considerations, the Chamber established that the Respondent failed to fulfill its obligations towards the Claimant in relation to the termination agreement concluded between the parties. 23. As a consequence, the Chamber decided that the Respondent, in accordance with the general legal principle of pacta sunt servanda, is liable to pay to the Claimant the total amount of EUR 27,500. 24. Moreover, the Chamber noted that the Claimant requested a further amount concerning the medical expenses allegedly incurred by him during the time period between October 2006 and July 2007. 25. In this respect, the Chamber acknowledged that the Claimant was injured in October 2006 and that consequently, he received surgery and medical treatment in a clinic in country B. Furthermore, the Chamber observed that the Respondent held that it had not approved to pay the medical costs derived from the Claimant’s injury, whereas the Claimant held that the Respondent had approved it and was obliged to pay the relevant medical expenses. 26. Subsequently, the members of the Chamber acknowledged that the termination agreement signed by both the Claimant and the Respondent on 30 August 2007 specifically expressed that the signing parties had nothing else to claim to each other as per compensation or for any other concept, besides the agreed upon amount of EUR 27,500. 27. Equally, the Chamber reiterated its previous statement about the fact that the present dispute is based on the termination agreement signed by both parties, and not on the prior employment contract. To this end, the Chamber noted that such termination agreement did not contain any sort of reference to any further payments and/or claims attributable to any of the parties. 28. In view of the foregoing, the members of the Chamber concluded that the Claimant is not entitled to receive amounts for any other concept than those established in the termination agreement. 29. Furthermore, the Chamber decided that the Claimant’s claim for the “costs of the procedure” is rejected in accordance with art. 15 par. 3 of the Procedural Rules which stipulates that no procedural compensation shall be awarded in proceedings of the DRC. 30. Taking into account all the above, the DRC decided to partially accept the Claimant’s claim. Consequently, the Respondent has to pay to the Claimant the amount of EUR 27,500 plus 5% interest per annum on said amount as from 31 August 2007 until the date of effective payment. 31. The Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player P, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club M, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 27,500 plus 5% interest p.a. on said amount as of 31 August 2007 until the date of effective payment. 4. If the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 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: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Deputy Secretary General Encl. CAS directives