F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 13 August 2015, in the following composition: Geoff Thompson (Engand), Chairman Mario Gallavotti (Italy), member Jon Newman (USA), 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

F.I.F.A. - Camera di Risoluzione delle Controversie (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 13 August 2015, in the following composition: Geoff Thompson (Engand), Chairman Mario Gallavotti (Italy), member Jon Newman (USA), 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 Facts related to the competence 1. On 9 February 2014, the player from country B, Player A (hereinafter: the player or the Claimant), and the club from country D, Club C (hereinafter: the club or the Respondent), entered into a “NSL Fixed Term Contract of Employment for Professional Footballers” (hereinafter: the contract) valid from the date of signature until 30 June 2014. 2. Art. 19 of the contract reads as follows: 1) “All disputes arising out of or relating to this contract, including disputes as to the meaning or interpretation of any provision of this contract or as to the carrying into effect of any such provision or as to the termination or consequences of termination shall be referred to Dispute Resolution in accordance with the NSL rules from time to time.” 2)“The parties warrant that, in accordance with the football rules, any and all disputes of whatsoever shall be determined in accordance with the NSL rules and in the Dispute Resolution Tribunals of the NSL rather than before any court or other tribunal insofar as it is a requirement of FIFA and other footballing rules that the internal dispute resolution mechanisms available in football should be utilised by participants in the game save where the football rules do not provide an appropriate tribunal to determine the dispute.” 3. In its claim, the player states that neither the National Soccer League of country D Dispute Resolution Chamber (NSL DRC), nor the Football Association of country D Appeals Board nor the Football Association of country D Arbitration Tribunal are independent arbitrational tribunals guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, for the following reasons: i) The NSL DRC • The Chairperson of the NSL DRC is appointed by the NSL Executive Committee and/or the CEO of the NSL. The NSL is a special member of Football Association of country D and its members are clubs. The NSL Executive Committee consists of candidates appointed by the clubs and a nominee to the NSL Executive Committee must be a registered official of a club. Hence, the NSL Executive Committee effectively consists out of club owners. • The NSL Chairperson, who has the casting vote, is not subject to a rotation process, therefore the same person presides over all matters. • The NSL prohibits that a player may approach any administrative forum or court of law, as can be derived from art. 19 par. 2 of the contract. • The NSL Constitution stipulates that all disputes must be referred to the NSL DRC within 30 days of dismissal, which is unreasonable and unfair. • A party wishing to refer a dispute to the NSL DRC needs to pay 1,000 in addition to the legal fees incurred. ii) Football Association of country D Appeals Board • The costs to appeal a case to the Appeals Board is 23,000. • The Appeals Board consists of a chairperson and two or more additional members. The Appeals Board is appointed by the Executive Committee of Football Association of country D and does not have any player representatives. • The Appeals Board is rather a review procedure since the “record before the Appeal Board shall be confined to the evidence which was presented to the Disciplinary Committee and/or DRC of country D.” iii) Football Association of country D Arbitration Tribunal • Thereafter, cases may be appealed to the Football Association of country D Tribunal, which is a body established by Football Association of country D and which does not provide equal representation of players and clubs. If an award of the Appeals Board is appealed against, Football Association of country D appoints a Single Arbitrator. • The costs to appeal a case to the Football Association of country D Tribunal is 30,000. 4. In its objection to the competence of the DRC, the club first referred to art. 19 par. 2 of the contract and requests that the player’s claim must be dismissed “and the player directed to litigate in a proper domestic forum.” The club stressed that the player is not stating that the domestic footballing rules do not provide an appropriate tribunal, but he is merely trying to avoid the available tribunals by pointing to what he considers to be shortcoming in the current system. 5. The club further holds that: • The 30 day time-limit serves a legitimate purpose in that it requires players to refer their disputes when they “are still fresh and evidence is easily attainable”. Also, if a player is late, he can still request for condonation which will be granted if he can provide reasons why he could not refer the dispute on time. • The allegation that the costs of 1,000, 23,000 and 30,000 are unfair is denied. In particular, the club stresses that the amount of 1,000 is not a huge financial burden because the players’ union can provide assistance. As to the 23,000 and 30,000, the club holds that if the player has a strong prima facie case it is the club that ends up paying the costs. • The NSL DRC is rotated in instances of a rehearing. • The club holds that it does not have any control over the process regarding who falls under the jurisdiction of the NSL DRC nor regarding the appointment process. If the player finds that such process is unfairly limiting his rights, then a challenge to the validity and the constitutionally of the process should be brought before a domestic court of country D. • There is compliance with the FIFA Regulations, and the player has the onus to detail exactly what is not in compliance. Even if there is no compliance, the club is the incorrect party to demand that compliance from. The player should use a different mechanism to raise such issues. 6. Having been requested to provide all the documentary evidence that could prove that the present matter should be dealt with by the deciding bodies of Football Association of country D, the club forwarded a submission of the NSL confirming that the NSL DRC is an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. In this respect, the NSL enclosed affidavits of the secretary and prosecutor of the NSL. 7. In their submission, the NSL refers to art. 18 par. 1 of the NSL Constitution which apparently stipulates that the NSL DRC is “a tribunal comprising an independent chairperson, a panel of members appointed by the players or their elected representatives and a panel appointed by the Executive Committee. (…)” In this respect, and in addition to the arguments raised by the club, the NSL stressed that: • The dispute is not of an international dimension since the player has a Namibian passport and has held permanent residence in country D since 1990. In accordance with the Immigration act of 2002, the player has therefore all rights, privileges, duties and obligations of a citizen of country D. Also, the player concluded a contract with a club from country D, played in country D and the contract is governed by law of country D. • The player is registered with the NSL and therefore directly bound to the NSL Constitution, in particular referring to art. 18 which states that all participants in professional football are required to refer any and all disputes to the NSL DRC. • The player is a member of Player’s Union in country D and the NSL and Player’s Union in country D concluded a Collective Bargaining Agreement (CBA) which provides that all disputes be referred to the NSL DRC. • The NSL DRC has 4 panel members plus an independent chairperson; 2 members are appointed by Player’s Union in country D and 2 members are appointed by the Executive Committee of the NSL. • The independent chairperson is appointed by the Executive Committee of the NSL “on behalf of all registered players and club”, and is an advocate of the High Court of country D and has no affiliation to any member or player of the NSL. The NSL DRC always sits as a panel of 3 comprised of the independent chairperson, a member chosen by the players and a member chosen by the clubs. • As to the 1,000, it is common practice in country D for the parties to bear the costs thereof. In any event, 1,000 is a nominal amount. • The NSL DRC is in a far better position to properly determine the principles of the law of country D. 8. In his replica, the player reiterated his previous argumentation and pointed out that he is a citizen of country B, carrying a passport of country B, therefore the present matter has an international dimension. 9. In addition, the player held that any submission made in relation to the CBA is misleading. The player submitted a copy of the CBA signed on 29 March 2012 and referred to art. 16 par. 4 which reads as follows: “All parties support the idea to establish a Bargaining Council for football in country D. A Bargaining Council can be formed only with the concurrence of registered unions and employer organisations. The parties will seek to compile a business plan for the establishment of a football council within eight month from signature of this agreement and shall endeavour to establish such a Bargaining Council within twenty months from date of signature of this CBA. The Dispute Resolution Chamber which will form part of the Bargaining Council will be based on the principles and objectives of the Dispute Resolution Chamber of FIFA (with equal representatives between professional football clubs and professional footballers) and the law of country D.” The player stressed that the intention was to establish a Bargaining Council with a DRC in compliance with the FIFA DRC principles and objectives, however this has not been done and the parties failed to submit any business plan within the prescribed 8 months. The player questioned why the NSL would agree to the establishment of such tribunal if there is already a tribunal fully compliant with the FIFA minimum requirements. 10. In its final comments, the club reiterated its previous argumentation. Facts related to the substance of the case 11. According to the contract (valid from 9 February 2014 until 30 June 2014), the club undertook to pay the player the amount of 40,000 net per month. 12. Art. 12.3.2 of the contract provides: “A footballer may be given a written warning for repeated minor forms of misconduct or poor performance, or if misconduct of a more serious nature, on the first occurrence thereof.” 13. On 25 July 2014, the player lodged a claim against the club in front of FIFA, requesting: i) 40,000 as the salary of March 2014; ii) 120,000 as compensation for breach of contract; iii) 5% interest as from the due dates; iv) Sporting sanctions. 14. In his claim, the player explained that in March 2014 he sustained an injury and that, by the end of March 2014, the club indicated to him that due to his low performance the club had to review the contract. Following such news, the parties started negotiating an amicable settlement, the club offering 80,000, whereas the player requested 100,000. Subsequently, the player was allegedly told by the club’s management that they would communicate his offer to the owner and revert to him. 15. According to the player, the club’s CEO told him not to report to training anymore and, pending the resolution of the dispute, that he may leave. The player alleged that, despite having offered his services, the club demanded that he left and so he did on 28 March 2014. 16. Since the player did not receive any further news since 28 March 2014, he contacted the club on 15 May 2014 by phone, asking for his outstanding salaries. He was then allegedly told that the club’s offer of 80,000 had been withdrawn and that it was only willing to pay 1 month salary since he absconded. On the same date, the player’s wife confirmed the phone call in writing and demanded the payment of at least 2 monthly salaries. In this respect, the player submitted an email setting out the situation and making reference to the alleged statement of the club that it would only pay the player 1 monthly salary. 17. As a result, the player held that the club terminated the contract without just cause on 28 March 2014 and insisted that poor performance is not a valid reason to terminate a contractual relationship. 18. In its reply, the club stated that on 3 March 2014 it gave a written warning to the player for his behavior and poor performance, which was duly signed by the player. 19. On 25 March 2014, the player was given a 2nd written warning for his behavior and poor performance, which he refused to sign. It was in this meeting that the player indicated that he no longer wanted to represent the club and demanded a pay-out for the remainder of the contract. Officials of the club advised him that they were not in a position to accept such demand, but would revert to him after receiving instructions of the club’s management. The officials allegedly told the player to continue to report for duty until they would meet to finalize the discussion with the club’s chairman or owner, “who was out of the country at the time.” 20. According to the club, on 28 March 2014 the player left the club without the club’s permission, therewith breaching the contract. In this respect, the club submitted an affidavit of the club’s driver who confirmed that the player left the keys of his accommodation with him. 21. Finally, the club recognized that a phone call preceded the e-mail of 15 May 2014, however the chairman merely discussed the player’s “repudiation by absconding.” 22. In his unsolicited additional comments, the player stated that he signed the 1st warning under the impression that it was a document to monitor performance. He pointed out that his native language is Amharic and that the club did not allow him to consult with anyone before signing the document. In any case, termination of a contract for poor performance is not allowed under the FIFA Regulations and the player held that he was not “repeated warned about his performance” referring in this respect to art. 12.3.2 of the contract. 23. As to the 2nd warning, the player stated that this warning was fraudulently compiled; he was never called in to discuss this warning and never saw it before. 24. Finally, the player indicated that the way the club portrays the situation is implausible; the club wanted to review his contract due to the alleged lack of performance, he was offered two monthly salaries and was expressly told not to report for training. The player did not abscond and stressed that he never received a notice from the club asking him to report back for duty. Also, the player holds that the club did not deny the content of the email dated 15 May 2014. 25. In its duplica, the club indicated that it stood by its original reply. 26. Upon request of FIFA, the player indicated that he only signed a new contract with another club in August 2014. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 25 July 2014. Consequently, the 2012 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). 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 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2012) 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 competent to decide on a litigation which involves a player from country B and a club from country D regarding an employment-related dispute. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 19 par. 2 of the contract alleging that the Claimant should have addressed his claim to the NSL DRC in country D. Further, the Respondent alleged that the present dispute is not of an international dimension. 5. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent. 6. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at 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. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 7. In this respect, the DRC turned its attention to the principle of equal representation of players and clubs and underlined that this principle is one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list”. 8. On account of the above, the Chamber went on to examine the documentation presented by the Respondent and noted that the Respondent confirmed that the chairperson of the NSL DRC is appointed by the Executive Committee of the NSL. Equally, the Chamber noted that it can be established from the documentation provided by the parties that the NSL is an organisation consisting exclusively of clubs. As such, the members of the Chamber concluded that the chairperson of the NSL DRC is effectively appointed by the clubs and thus not by consensus by player and club representatives. What is more, the Chamber observed that the Respondent did not specifically object to the arguments raised by the Claimant in relation to the CBA. Therefore, the Chamber was unanimous in its conclusion that the NSL DRC does not respect the principle of equal representation of players and clubs. 9. In addition, the Chamber noted that it is acknowledged by both parties that for proceedings conducted in front of the NSL DRC, Football Association of country D Appeals Board and the Football Association of country D Arbitration Tribunal, costs apply varying between 1,000 and 30,000. The Chamber finds that the imposition of these costs are not in accordance with art. 32 of the NDRC Regulations. 10. As a consequence of the above-mentioned elements, the Chamber concluded that it could not be concluded that the NSL DRC is indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. 11. Finally, and as to the argument of the Respondent that the present matter was not one of an international dimension, the Chamber underlined that the player is a citizen of country B holding a passport of country B. In absence of any further objective evidence that the player had a passport of country D and was registered as a national of country D, the international dimension is established by means of the player’s passport of country B. The fact that the player concluded a contract with a club from country D and played in country D does not change the conclusion of the Chamber. 12. On account 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. Having established the above, the members of the Chamber entered into the substance of the matter and acknowledged that, on 9 February 2014, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 30 June 2014 in accordance with which the player was entitled to a monthly salary of 40,000. 14. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the Respondent seeking payment of the amount of 160,000 plus interest. In particular, the Claimant alleged that the club terminated the contract without just cause on 28 March 2014 by informing him that due to his low performance he did not have to report for training anymore. 15. Furthermore, the Chamber observed that the Respondent, for its part, was of the opinion that it was in fact the player who had terminated the contract without just cause, by leaving the club on 28 March 2014 without permission. The Respondent explained that prior to his departure, the Claimant had indicated that he was no longer interested in representing the club and that therefore he had requested a pay-out for the remainder of the contract. As such, the Respondent rejected the claim of the Claimant in full. 16. Having duly taken note of both parties’ submissions, the DRC recalled the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of this principle leads the Chamber to conclude that, in the present matter, it is for the Claimant to prove that the Respondent terminated the contract without just cause. 17. Having duly analysed the relevant documentation submitted by the Claimant, the DRC is of the view that the Claimant has not provided conclusive evidence to corroborate his allegation that the Respondent had terminated the contract for low performance on 28 March 2014. In this respect, the Chamber pointed out that the only document provided by the Claimant is an email sent by his wife on 15 May 2014 recalling what allegedly had been discussed over the phone and what allegedly had taken place during the meeting held in the end of March 2014. Considering as well that the Respondent categorically denied the content of said correspondence, the Chamber finds that this correspondence does not suffice to prove the Claimant’s allegations. 18. In continuation, the Chamber referred to the affidavit provided by the Respondent and duly noted that the Claimant argued that said affidavit corroborated the submissions of the Claimant. However, having analysed the content of such affidavit, the Chamber was of the unanimous opinion that said affidavit merely indicates that the Claimant handed in his keys and left the club. Nothing in said affidavit mentions anything in relation to the reason of the Claimant’s departure. Therefore, the Chamber was satisfied that the affidavit did not support the allegations made by the Claimant in relation to the reasons for the termination of the contract. 19. As a result of all of the above, the Chamber decided that the Claimant failed to prove his allegations that the Respondent had terminated the contract without just cause on 28 March 2014. As a consequence, the Chamber finds that the Claimant is only entitled to his salary for the month of March 2014, as it remained undisputed that he had rendered his services to the club during said month. 20. Therefore, the Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time the Claimant left the club i.e. the amount of 40,000. Furthermore and considering the Claimant’s claim for interest, the Chamber decided that the Respondent must pay 5% interest on the amount of 40,000 as from 1 April 2014 until the date of effective payment. 21. The Dispute Resolution 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 A, is admissible. 2. The claim of the Claimant is partially accepted. 3. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of the present decision, outstanding remuneration in the amount of 40,000 plus 5% interest p.a. on said amount as from 1 April 2014 until the date of effective payment. 4. In the event that the amount due to the Claimant in accordance with the abovementioned number 3. is not paid by the Respondent 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 Acting Secretary General Encl. CAS directives