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 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), 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 5 November 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Mohamed Al-Saikhan (Saudi Arabia), member Rinaldo Martorelli (Brazil), 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 13 July 2009, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the first contract), valid as of the date of signature until 30 June 2012. 2. Pursuant to clause 7 of the first contract, the Claimant was entitled to receive a monthly salary of 87,000. 3. Clause 11 of the first contract further stipulates that “[i]n case of dispute arising from this Contract or if the dispute is within the scope of violation of contracted sports rights, the contracting parties fully accept the rules and regulations of the Football Federation of Country D or the procedures of the competent authorities of the Association. For disputes arising from work/labour the Labour Court in City in Country D will be the exclusive and competent authority”. 4. Moreover, clause 12 of the first contract states that “[i]n matters not regulated herein, the provisions of Act I of 2004 on Sports, Act XXII of 1992 on Labour Code and the relevant rules of the Football Federation of Country D shall be applied”. 5. On 13 July 2009, the parties also entered into an agreement (hereinafter: the agreement), valid for the same period as the contract. 6. According to clause 1 of the agreement, the Claimant is entitled to receive a monthly payment of EUR 2,500 net payable “each month for the previous month, not later than the 10th day of the month”. Nevertheless, clause 1 then specifies that “[i]n case the Football Player plays in the first team on less than 60% of the Premier League Championship matches, the above mentioned amount will change to 1500 Euros (one thousand and five hundred euros) from the next half year”. 7. In addition, clause 3 of the agreement provides that “[the Respondent] agrees to provide lunch 5 times a week for the Football Player (the meals with the team are included in this number)”. 8. Furthermore, clause 4 of the agreement states that “[the Respondent] herewith undertakes to give 50.000 to the [Claimant] as accommodation cost in case the [Claimant] is not satisfied with the accommodation provided by his club. In both cases, the maintenance and overhead costs of the rent are to be borne by the [Claimant]”. 9. Clause 13 of the agreement further stipulates that “[i]n case of dispute the contracting parties accept the authority of the Town Court in City in Country D”. 10. On 23 April 2012, the Claimant sent a correspondence to the Respondent via the Football Federation of Country D requesting the Respondent to comply with its financial obligations as per the contract and to provide him with professional training conditions within 10 days. 11. On 3 May 2012, the Claimant terminated the contract in writing for the aforementioned reasons. 12. On 2 September 2013, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract requesting to be awarded with the following amounts: - 783,000, plus 5% interest “for each salaries”, as outstanding salaries due in accordance with the first contract for the period as of August 2011 until April 2012; - EUR 22,500, plus 5% interest “for each salaries”, as outstanding monthly instalments due in accordance with the agreement for the period as of August 2011 until April 2012; - 500,000, plus 5% interest “for each months”, as outstanding housing costs for the period as of August 2011 until April 2012; - 174,000 as compensation corresponding to the residual value of the first contract; - EUR 5,000 as compensation corresponding to the residual value of the agreement. The Claimant further requests FIFA to consider disciplinary sanctions against the Respondent. 13. In his claim, the Claimant stresses that the Respondent failed to pay his remuneration and accommodation allowances for ten months, prevented him from training with the team and did not provide him with food. 14. In particular, the Claimant explains that for the season 2011-12, the Respondent only paid him the amount of EUR 2,400. In this respect, the Claimant outlines that in the first half of the season 2011-12, he took part in 10 out of 15 official games, i.e. more than 60% of the games and was therefore entitled to a monthly instalment of EUR 2,500 in accordance with the agreement. 15. In its reply to the Claimant’s claim, the Respondent first asserts that on 20 July 2009, the parties signed a new contract containing the exact same provisions as the one signed on 13 July 2009. The Respondent further sustains that the parties mutually agreed to increase the Claimant’s monthly salary established in the contract to 89,500 on 1 February 2010 and to 94,000 on 1 February 2011. 16. In continuation, the Respondent insists that the contractual relationship is subject to Law of Country D. In this respect, the Respondent points out that according to Section (4) of the Act I of 2004 on Sports (hereinafter: Sports Act), the agreement must be considered invalid since it provides for financial benefits “beyond those included in the employment contract”. The Respondent further asserts that the agreement is contrary to Section (1) §154 of the Labour Code of Country D which stipulates that the remuneration must be established in Currency of Country D in case the work is performed in Country D. 17. Having stated the above, the Respondent challenges the competence of FIFA to deal with the present matter, alleging that the Labour Courts of City in Country D are competent to deal with disputes related to the contract whereas the Town Court of City in Country D is the competent body for the disputes arising out of the agreement. 18. Finally, the Respondent explains that by terminating the contract on 3 May 2012, the Claimant did not comply with the Labour Code of Country D, which provides that the termination must be exercised within fifteen days of becoming aware of the cause serving as its basis. 19. In his replica, the Claimant first outlines that the Respondent does not contest its debt towards him. 20. In continuation, the Claimant points out that the Respondent misled him making him sign an agreement contrary to Law of Country D and asserts that the agreement’s violation of Law of Country D would then exclude the competence of Courts of Country D to deal with it. 21. In view of the above, the Claimant alleges FIFA is competent since the contract and the agreement are signed by a Player of Country B playing under the auspices of the Football Federation of Country D. 22. Furthermore, the Claimant questions why the Respondent complied with its obligations as per the agreement until July 2011 if it considers it invalid. 23. The Claimant also adds that he terminated the contract in accordance with the FIFA Regulations on the Status and Transfer of Players. 24. Finally, the Claimant explains that he was not informed of the modifications of his contract. Nevertheless, and considering said modifications, he amended his claim, requesting the following: - 846,000, plus 5% interest “for each salaries”, as outstanding salaries due in accordance with the first contract for the period as of August 2011 until April 2012; - EUR 22,500, plus 5% interest “for each salaries”, as outstanding monthly instalments due in accordance with the agreement for the period as of August 2011 until April 2012; - 500,000, plus 5% interest “for each months”, as outstanding housing costs for the period as of August 2011 until April 2012; - 188,000 as compensation corresponding to the residual value of the first contract; - EUR 5,000 as compensation corresponding to the residual value of the agreement. 25. In its duplica, the Respondent reiterates that according to Law of Country D, labour disputes cannot be submitted to arbitration and must be referred to the labour courts of City in Country D. In support of its assertions, the Respondent outlines, inter alia, that following national rules: - Act LXXI of 1994 on Arbitration: “Section 4: The proceedings governed in Chapters XV – XXIII and XXV of Act III of 1952 on the Code of Civil Procedure (…) may not be settled by arbitration, or any cases where the settlement of a legal dispute within the framework if arbitration is not permitted by law.” - Act III of 1952 on the Code of Civil Procedure: “Section 22 (2): Administrative actions (Chapter XX) shall fall within the jurisdiction of courts of public administration and labor, as well as legal actions arising from employment and other similar relationships (Chapter XXIII).” “ Chapter XXIII: Actions relating to Contracts of Employment and Other Similar Legal Relationship” “ Section 349/B (2): With regard to labor disputes, only the court of public administration and labor competent, according to the location of the employer’s address, or according to the employer’s permanent establishment where the employee is or has been employed based on the contract of employment, shall have jurisdiction.” - Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards “ 2. Recognition and enforcement of an arbitral award may also be refused also be refused if the competent authority in the country where recognition and enforcement is sought fins that: (a) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (b) The recognition or enforcement of the award would be contrary to the public policy of that country.” 26. The Respondent further states that in accordance with sections 2, 3 and 5 of the Labour Code of Country D, said Code is the only regulation applying to the matter. 27. In continuation, the Respondent refers to section 24.2 of the Labour Code of Country D which stipulates that “[with] respect to any legal act that may be subject to court proceedings under this Act, a petition may be filed to challenge the presumption of service referred to in Subsection (2) simultaneously with filing for court action, within fifteen days from the time of receiving information concerning the presumption of service, or within six months from the actual date of service at the latest”. In view of this, the Respondent states that since the “denounced service” took place between September 2011 and June 2012, the Claimant’s right was time-barred in September 2013 and that is, therefore, the reason why he lodged his claim with FIFA. 28. In addition, the Respondent alleges that the Claimant failed to submit evidence regarding the method of calculation of participation in games and his actual participation in more than 60% of them. 29. The Respondent then recalls that according to clause 4 of the agreement, it undertook to cover the accommodation costs up to 50,000 in case the Claimant was not satisfied with the accommodation provided to him. In this regard, the Respondent stresses that the Claimant never expressed his lack of satisfaction. 30. In his final comments, the Claimant reiterates that in the first part of the 2011-12 season, he took part in more than 60% of the games and was therefore entitled to the amount of EUR 2,500. 31. In its final comments, the Respondent explains that in the 2010-11 and 2011-12 seasons, it played in the Championship of Country D, i.e. the second division, and not in the Premier League Championship and that therefore, the Claimant was not entitled to receive a monthly salary of EUR 2,500. In addition, the Respondent outlines that the Claimant did not provide evidence that he took part in more than 60% of the games during the 2009-10, 2010-11 and 2011-12 seasons. 32. Upon request, the Claimant informed FIFA that he did not enter into any new employment contract after the termination of his contract with the Respondent. II. Considerations of the Dispute Resolution Chamber 1. In a first instance, 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 2 September 2013. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) are 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 par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015) 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 the present litigation involving a Player of Country B and a Club of Country D regarding an alleged breach of contract. 4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that disputes related to the employment relationship regulated by the contract and the agreement should be referred to the Ordinary Courts of Country D in accordance with clause 11 of the contract and clause 13 of the agreement respectively. 5. The Chamber equally noted that the Claimant rejected such position and alleged that FIFA had jurisdiction to deal with the present matter due to the international dimension of the latter. 6. At this stage, the members of the DRC recalled the content of the aforementioned clauses which respectively provide that “[f]or disputes arising from work/labour the Labour Court in City in Country D will be the exclusive and competent authority” (clause 11 of the contract) and that “[i]n case of dispute the contracting parties accept the authority of the Town Court in City in Country D” (clause 13 of the agreement). 7. In this respect, the Chamber first outlined that said clauses clearly and unambiguously identified the ordinary courts in City in Country D as exclusively competent to deal with disputes arising out of the contract and the agreement respectively. Furthermore, the DRC was eager to point out that both clauses were freely included in the contract and the agreement respectively and resulted from the common will of the parties. 8. Having stated the foregoing, the Chamber deemed it of utmost importance to emphasise that art. 22 of the FIFA Regulations on the Status and Transfer of Players expressly provides 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. On account of all the above, and in particular considering the clear wording of the above-mentioned clauses granting exclusive jurisdiction to the Ordinary Courts of Country D to deal with any dispute arising out of the contract and/or the agreement, the Chamber had no other choice than to conclude that it lacked competence to adjudicate on the matter at hand. 10. In light of the above, the DRC decided that the claim of the Claimant is inadmissible. III. Decision of the Dispute Resolution Chamber The claim of the Claimant, Player A, is inadmissible. ***** 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