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 28 April 2016, in the following composition: Geoff Thompson (England), Chairman Santiago Nebot (Spain), member Alejandro Marón (Argentina), member on the claim presented by the player, G, country P represented by Mr xxxxxx as Claimant against the club, P, country R represented by Mr xxxxxx as Respondent regarding an employment-related dispute arisen between the parties I.

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 28 April 2016, in the following composition: Geoff Thompson (England), Chairman Santiago Nebot (Spain), member Alejandro Marón (Argentina), member on the claim presented by the player, G, country P represented by Mr xxxxxx as Claimant against the club, P, country R represented by Mr xxxxxx as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 17 August 2012, the player from P, G (hereinafter: the player or Claimant) and the club from R, P (hereinafter: the club or Respondent), signed an employment contract valid as from 17 August 2012 until 30 June 2014 (hereinafter: the contract). 2. According to the contract, the player was entitled to receive, inter alia, the following amounts: In the period between 17 August 2012 until 31 August 2012: the amount of EUR 5,000 net, due on the 15th day of the following month; In the period between 1 September 2012 until 31 August 2013: a monthly payment of EUR 11,000 net, due on the 15th day of the following month; the amount of EUR 50,000, due on 25 September 2012; In the period between 1 July 2013 until 30 June 2014: a monthly payment of EUR 12,000 net, due on the 15th day of the following month. 3. Article 9.11 of the contract provides for the following: ‘The club agrees to pay to the player the amount of 600 Euros net per each point won in the official games of “Liga 1” in the season 2012-2013 as follows: a) The amount of 300 Euros net will be payed within 10 days after the end of the game; b) The amount of 300 Euros net will be payed within 10 days after the end of the championship, only if the team will achieved the objective specified in the clubs “Regulament Intern”.’ 4. Further, article 17.3 of the contract contains the following clause: ‘The Disputes arising from the performance of this contract shall be settled in the following procedural order: 17.3.1. Amicably. 17.3.2. By deferring the dispute to the legal body of the Football Federation of R (FFR), of the Professional Football League (PFL), of the County Association (AJF), as the case may be.’ 5. The player states that the contract between the parties expired by law on 30 June 2014, but that the club failed to pay him salaries in the amount of EUR 54,000, as well as bonuses in the amount of EUR 10,800. 6. On 6 January 2015, the player lodged a claim before FIFA against the club, claiming outstanding remuneration in the total amount of EUR 64,800, as follows: EUR 54,000 as 12 payments of EUR 4,500 each, corresponding to his partial monthly salary for ‘the last 12 months of the contract’; EUR 10,800 as outstanding part of the bonus payments for the club gaining 54 points in the 2013/2014 season (the player explains that this amount is calculated as follows: 54 x “EUR 700” = EUR 37,800, minus EUR 27,000 as allegedly paid amount). Further, the player requested 7% interest on the amount of EUR 54,000, corresponding to the outstanding salaries, as well as sporting sanctions to be imposed on the club. 7. In its reply, the club contested that FIFA is competent to deal with the case, stating that an independent arbitral tribunal, existing under the FFR (hereinafter: the R NDRC) is competent to deal with the case. The club asked FIFA to declare that the claim of the player is inadmissible. 8. Furthermore, the club stated that it was placed under judicial administration due to an insolvency/bankruptcy procedure started on 6 February 2015 before the P Tribunal. 9. In addition, the club stated that the player was informed about this insolvency/bankruptcy procedure and that he submitted ‘a request for the registration of his receivable in the insolvency estate of the Club’ before the P Tribunal. On 22 April 2015, the ‘Judicial Trustee’ partially accepted the registration of the player’s credit up to the amount of EUR 34,600. As a result, the club considers that the player accepted the exclusive jurisdiction of the R courts. 10. The club further holds that FIFA is not competent to deal with the case, because the matter at hand is exclusively governed by the R Insolvency Act, which provisions are mandatory and of public order. According to the club, this is also confirmed by the Swiss Federal Code on Private International Law (hereinafter: PILA). The club also argues that based on the PILA, R law is applicable. 11. In conclusion, the club argues that acceptance of the competence of ‘FIFA DRC’ would imply a ‘risk of potential contradictory decisions’. 12. Alternatively, the club argues that the claim of the player cannot be accepted, due to the player’s lack of interest, since the credit of the player has already been acknowledged by the Judicial Trustee of the club and is registered in the club’s insolvency estate. 13. In response to the club’s statements on the jurisdiction, the player stated that ‘the insolvency of P does not (and should not) interfere in the present case and with the DRC competence and jurisdiction’. The player further argued that the ‘Arbitration Body of the FFR is not composed on a parity base’ and does not assure impartiality and independency. As a result, according to the player, FIFA is competent to deal with the matter at hand. 14. In its duplica, the club reiterated that – by submitting the request before the P Tribunal - the player acknowledged the exclusive jurisdiction of the national courts ‘to deal both with the recognition and the enforcement of any potential credit he may consider to have’. Further, the club states that the player is not entitled to the requested bonuses, since in the contract, only the 2012/2013 season match bonuses were agreed upon between the parties. 15. Finally, the club argued that the request for sporting sanctions cannot be granted, since the dispute between the parties is ‘strictly of economic nature as the contract between the parties expired naturally and not as a result of a unilateral termination’. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 6 January 2015. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2014; hereinafter: 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 would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from P and a club from R. 3. However, the Chamber acknowledged that the club contested the competence of FIFA’s deciding bodies on the basis of the alleged fact that the R NDRC is competent to deal with the matter at hand. The club further holds that the R NDRC meets all the requirements set forth in art. 22 lit. b) of the FIFA Regulations on the Status and Transfer of Players. 4. In this regard, the members of the Chamber noted that the player rejected such position and insisted that FIFA is competent to deal with the present matter highlighting, inter alia, that the R NDRC is not composed on a parity base and does not assure impartiality and independency. 5. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) 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 members of the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, 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. 6. In relation to the above, the members of the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC (or the DRC judge) can settle an employment-related dispute between a club and a player of an international dimension, is that said other organ needs to be composed in line with the principle of equal representation of players and clubs. 7. While analysing whether it was competent to decide on the matter, the Chamber first referred to art. 17.3 of the employment contract, on the basis of which the club contested FIFA’s jurisdiction. Said article stipulates that if the parties are not able to find an amicable agreement, the dispute should be submitted to the legal body of the FFR, of the PFL or of the ACJ. The members of the Chamber outlined that the content of art. 17.3 cannot be considered as a clear and exclusive jurisdiction clause as it is rather vague and does not explicitly refer to one specific national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. In view of the foregoing, the Chamber concluded that its jurisdiction could not be set aside on these grounds as, the jurisdiction of the R NDRC does not derive from a clear reference in the employment contract. 8. Notwithstanding the above, the Chamber went on to examine the documentation presented by the club in favour of the competence of the R NDRC, and noted that, instead of producing the complete set of rules and regulations governing the proceedings of this deciding body, the club only submitted a translation of an extract of the ‘FFR Regulations on the Status and Transfers of Players’. 9. Subsequently, the members of the Chamber examined the incomplete documentation provided by the club and, in particular, turned their attention to art. 41 par. 2 of the FFR Regulations, which stipulates that “These regulations come into full force and effect on 15 July 2014 and shall apply to all the claims on dock of the NDRC at that time”. 10. In view of the aforementioned clause, the members of the DRC noted that the translation of the incomplete version of the FFR regulations as provided by the club, allegedly only came into force on 15 July 2014, that is, after the end date of the contract concluded between the club and the player. As a result, the members of the Chamber deemed that the club also failed to provide substantial evidence that the R NDRC, during the contractual relation between the parties, consisted of an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. 11. As a consequence of the above-mentioned elements (cf. point II.6 to II.10 above), the Chamber concluded that – based on the documents on file – the contract did not contain a clear and specific arbitration clause, supporting the alleged competence of the R NDRC to deal with the present dispute. Furthermore, it could not be concluded that the R NDRC, during the contractual relation between the parties, was indeed an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, as the applicable version of the NDRC Regulations was not provided by the club. 12. Furthermore, the members of the Chamber noted that the club equally contested FIFA’s competence to deal with the matter at hand, because of the existence of insolvency proceedings involving the club before the P Tribunal. The club holds that as a result of these proceedings, the matter at hand should be exclusively governed by the R Insolvency Act. 13. In this respect, the members of the Chamber stressed that in accordance with the jurisprudence of both the DRC and the Court of Arbitration for Sport, bankruptcy/insolvency procedures in principle do not affect procedures in front of the DRC as long as the relevant club remains affiliated to its respective association. What is more, the members of the Chamber noted that in accordance with the information provided by the FFR the club is still affiliated to it. Consequently, the Chamber decided that the club’s objections in this respect have to be dismissed. 14. Moreover, the members of the Chamber noted that the club was also of the opinion that the Dispute Resolution Chamber has no competence to deal with the claim at stake, because of the fact that the player already lodged a claim regarding ‘his receivables’ before a local insolvency court, i.e. the P Tribunal. In this respect, the club pointed out that the player’s claim should be exclusively dealt with on the basis of the R Insolvency Act and that acceptance of the competence of the Dispute Resolution Chamber, would imply a risk of contradictory decisions. 15. First and foremost, the Chamber wished to highlight that from the documents provided by the club, in particular, a decision of the P Country Court dated 6 February 2015, according to which ‘the opening of general insolvency procedure towards the club’ was ordered, a notification of the P Tribunal dated 9 February 2015, communicating that creditors should register their credits until 1 April 2015 and a preliminary table of credits dated 22 April 2015, which indicates that the amount of EUR 34,600 (from EUR 61,600 requested) was registered as the player’s credit, it can be noted, inter alia, that the player was indeed informed on 9 February 2015 about the opening of the insolvency procedure of the club before the P Tribunal, as well as that the player subsequently submitted a request for registration of his receivables in front of said insolvency court. Additionally, it can be noted that the jurisdiction of the P Tribunal to deal with the dispute between the club and the player was not contested by the player at any time during the procedure in R. 16. In continuation, from the documents on file, the members of the Chamber noted that the request lodged by the player himself in front of the P Tribunal was already partially acknowledged by the Judicial Trustee of said Tribunal and registered on a preliminary basis in the ‘table of creditors’ and the insolvency estate of the club. This is also not contested by the player in front of the DRC. Based on the aforementioned considerations, the DRC held that – seen the ongoing procedures before the P Tribunal in R - it had to establish whether, considering the general legal principle of lis pendens, it could enter into the substance of the matter – in part or at all - and pass a decision. 17. Accordingly, the Chamber deemed it appropriate to briefly recall that on the basis of the principle of lis pendens, a decision-making body is not in a position to deal with the substance of a case, which has already been brought before and is still pending at another deciding body. 18. In continuation, the Chamber noted that the principle of lis pendens is applicable if cumulatively and necessarily the parties to the disputes and the object of the matter in dispute are identical. 19. In this respect, the Chamber recalled that the criterion of the identity of the parties is given if the parties to the disputes are the same. Having said this, the Chamber noted that both the club and the player were the parties in the R proceedings as well as in the dispute at stake in front of the DRC. 20. As a consequence, the Chamber came to the conclusion that the condition of the identity of parties is given. The Chamber then turned its attention to the criterion of the object of the matter in dispute. 21. In this respect, the members of the Chamber started by acknowledging that the identity of the subject matter is given if the requests of the two claims are similar. In view of the foregoing, the Chamber went on analysing and comparing the request made by the player against the club in front of the P Tribunal and the player’s claim against the club before the Dispute Resolution Chamber of FIFA. 22. From the information and documentation on file, the Chamber could verify, on the one hand, that the player was informed in writing on 9 February 2015 by the P Tribunal that - in an insolvency proceeding in front of that court - he could submit a request until 1 April 2015 to receive his ‘receivables’ from the club. Further, it can be noted from the information provided by the club, that the request of the player in front of the P Tribunal involved an amount (i.e. EUR 61,600) lower than the total amount claimed in the proceeding before the Dispute Resolution Chamber of FIFA (i.e. EUR 64,800), but higher than the amount requested as partially outstanding salaries before the DRC (i.e. EUR 54,000). Further, it can be noted that the player’s request at the P Tribunal was partially accepted up to an amount of EUR 34,600 by the Judicial Trustee and put on a list of registered creditors. 23. From the contents of the aforementioned documentation and considerations, the DRC assumed that the player had submitted a request to receive at least his outstanding remuneration in front of the P Tribunal. On the other hand, from the player’s statement of claim, the members of the Chamber duly noted that in the proceedings before the DRC, the player requested that the club be condemned to pay him outstanding remuneration as well as match bonuses, because in the player’s opinion, the club failed to pay him these amounts without valid reason. 24. In view of the aforementioned, the Chamber held that both legal actions were based on the same employment contract and that both actions – insofar it concerns at least the outstanding salaries - focused on establishing whether the club could be held liable to pay the player said outstanding amounts. 25. On account of the above, the Chamber unanimously determined that the object of the matter in both disputes - as far as it concerns the outstanding salaries - is identical and that, therefore, the condition of identity of the object of the matter in dispute is also given. 26. Consequently, the Chamber concluded that, compared to the legal action in front of the P Tribunal, the matter at hand not only concerns identical parties to the dispute but also in part an identical object, as far as it concerns the outstanding salaries. Therefore, on what concerns the claim for outstanding salaries, the present matter is considered as a situation of lis pendens. As a result of said general legal principle, the Chamber deemed that it is not in a position to deal with the matter at hand regarding the outstanding salaries, as this specific part of the claim of the player has already been brought before a local court, was already partially accepted on a preliminary basis and is apparently still pending at the P Tribunal. 27. Notwithstanding the foregoing, the members of the Chamber established that the club’s objection towards the competence of FIFA to deal with the present matter, regarding the allegedly outstanding bonus payments, has to be rejected and that the 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, as far as it concerns these bonus payments, which do not appear to be included in the claim at the P Tribunal. 28. In this respect, the DRC finally deemed it important to underline that in the spirit of the applicable regulations, a player – or a club – who actively decides to bring forward a dispute before the ordinary courts, rather than making use of the alternative dispute resolution process proposed within the legal framework of the football system, must demonstrate consistency in relation to the choice of jurisdiction made. The DRC therefore cannot condone the attitude of a player or a club who has specifically decided to submit a labour dispute to the ordinary courts, and has subsequently decided to submit the same dispute, based on the same facts and litigious events, to a football specific dispute resolution chamber; the same is to be noted if the party submits a claim before the football specific jurisdictions and thereafter seeks to lodge the same claim in front of the ordinary courts. The DRC’s contention is that a party who chooses a certain course of legal remedy may not then decide to change the legal forum of the dispute, as this would jeopardise the credibility of the sporting dispute resolution system. 29. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter, regarding the player’s claim related for the allegedly outstanding bonus payments, considered as admissible. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2015), and considering that the present claim was lodged on 6 January 2015, the 2014 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 30. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter, insofar as it concerns the allegedly outstanding bonus payments. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. 31. With regard to the player’s claim pertaining to the alleged outstanding bonus payments for the 2013/2014 season, the members of the Chamber acknowledged the club’s position that these bonuses were never agreed upon between the parties in the contract. 32. In fact, after examining the contents of the contract, the members of the Chamber noted that it only provided – in article 9.11 - for possible bonus payments in the 2012/2013 season, but not for the 2013/2014 season. As a result, the Chamber concluded that the claim of the player for bonus payments related to the 2013/2014 season is to be rejected, due to a lack of contractual basis. 33. In conclusion, the Chamber decided that, in view of all the above mentioned reasons, the claim of the player is rejected, insofar as it is admissible. III. Decision of the Dispute Resolution Chamber The claim of the Claimant, G, is rejected, insofar as it is admissible. ***** Note relating to the motivated decision (legal remedy): According to art. 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, 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: _____________________________ Marco Villiger Deputy Secretary General Encl: CAS directives