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 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

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 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 1st Commercial Court of Country D. 6. Subsequently, on 1 August 2011, the Respondent lodged before the 1st 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. 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 1 st 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. 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. 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 (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 1 st 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 1st 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. 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: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl. CAS directives