F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 19 April 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 19 April 2018,

in the following composition:

Geoff Thompson (England), Chairman

Takuya Yamazaki (Japan), Member

Tomislav Kasalo (Croatia), Member

Daan de Jong (the Netherlands), Member

Abu Nayeem Shohag (Bangladesh), 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 21 July 2014, the Player of Country B, Player A (hereinafter: Claimant or player) and the Club of Country D, Club C (hereinafter: Respondent or club) concluded an employment contract valid as from 28 July 2014 until 1 July 2016 (hereinafter: contract).

2. According to the contract, the player was entitled to receive from the club, inter alia, a monthly salary of “a) the gross amount of …. (the equivalent of 2.000 Euro net)”, payable within the first 5 days of the following month.

3. Clause N of the contract provides that “The provisions of the present individual employment agreement are completed with the dispositions of the Law no. XXX-Code of Work and to the applicable collective employment agreement, concluded at the level of the employer/group of employers/professional branch/national level, registered under no. …../…….., to the Direction of Work of Capital E and the Ministry of Work and Social Solidarity”.

4. Moreover, according to clause O of the contract, “Disputes regarding the concluding, execution, amending, suspension or termination of the present individual employment agreement are solved before the Court of material and territory competence, as provided by the Law”.

5. On 5 March 2015, the player and the club allegedly concluded an agreement, by means of which, inter alia, the contract was terminated by mutual consent as of 10 March 2015.

6. According to the player, on 13 March 2015, the club submitted a written request to the National Dispute Resolution Chamber of the Football Federation of Country D (hereinafter: NDRC) asking it to establish that the employment relationship with the player is declared terminated by mutual agreement based on the document named “Termination Agreement” dated 5 March 2015.

7. On 18 March 2015, the NDRC decided to “Accept the request of Club C in contradictory with the respondent Player A. Establish the termination of the contract relationship between Club C and the player, Player A, under the conditions of the termination Agreement no. 222 dated 05.03.2015, starting with the date of 18.03.2015”.

8. In particular, the NDRC decision indicates that “Legally summoned, the [player] did not submit any statement of defence” and that it is made on the basis of the club’s request dated 13 March 2015.

9. On 17 June 2015, the player lodged a claim before FIFA against the club, requesting that it be established that the club terminated the contract without just cause and that he be awarded compensation for breach of contract in the amount of EUR 32,000, corresponding to the value of the contract as from March 2015 until 1 July 2016. The player further asked that sporting sanctions be imposed on the club.

10. According to the player, the club’s request to the NDRC was based on a forged termination agreement dated 5 March 2015.

11. Furthermore, although the decision of the NDRC indicates that he was summoned, the player affirmed that in fact he was not and that, thus, his right to defence was violated. In particular, the player stated having only become aware of the termination of the contract after the NDRC decision was taken and had become irrevocable, reason why he could not appeal such decision.

12. In this context, and considering that he could not challenge the validity of his alleged signature on the termination agreement, the player had undertaken an extrajudicial expertise to prove that the termination agreement does not bear his signature. The player added that the conclusion of the forensic expert was that the signature on the termination agreement is not his.

13. Therefore, the player held that there was no termination of the contract by mutual agreement and that the club unilaterally terminated the contract within the protected period without just cause.

14. In its reply to the player’s claim, the club stated that the “Syndic Judge of the Tribunal of Capital E” has jurisdiction over this matter, since the club has been in judicial reorganization as of 11 June 2014, based on a decision dated 11 June 2014 rendered by the “Syndic Judge of the Tribunal of Capital E”. In particular, the club stated that in accordance with Law XXX which regulates insolvency proceedings in Country D, “all proceedings provided in this law, fall under the jurisdiction of the tribunal in whose territorial jurisdiction the debtor has its registered office.”

15. In this respect, the club held that also according to the contract the ordinary court is competent to deal with the player’s claim relating to unilateral termination and compensation. With respect to its request to the NDRC, the club stated that it made such request in line with art. 18.6 of the Regulations on the Status and Transfer of Players of the Football Federation of Country D (Football Federation F).

16. The club further referred to clause N of the contract and the allegedly applicable Law of Country D, emphasizing that all legal issues regarding the present dispute shall be examined from the perspective of the Labour Code of Country D. In this context, the club held that according to the Labour Code of Country D, labour jurisdiction belongs exclusively to the competent courts of law according to legislation in force.

17. Furthermore, if the ordinary court of law is not considered competent, the club held that the Regulations on the Status and Transfer of Players of the Football Federation F “on which the Plaintiff’s claim is founded” establish the exclusive jurisdiction of the committees of the Football Federation F.

18. As to the substance of the matter, the club stated that the parties mutually agreed to terminate the contract on 5 March 2015. In particular, the club highlighted that “the player does not claim that he failed to understand the clauses of the termination agreement, he only submits that the signature is not his”.

19. The club further stated that the player did not challenge the decision of the NDRC, not even after the date he claimed to have been informed of its existence.

20. Moreover, the club held that the player left the team based on this agreement and even used the termination agreement to prove the termination of the contract in order to sign an employment contract with the Club of Country B, Club G, and request the International Transfer Certificate.

21. Equally, the club wonders why the player would leave the club and sign a new employment contract with another club if he did not recognise the termination agreement and was allegedly not aware of its existence.

22. Regarding the forensic expert report, the club challenges its admissibility, stating the following:

- The expert is known for always presenting the results desired by the party requesting the report;

- The club did not have an expert participating in the process;

- The expert failed to show the relevance of differences between the signature of the player on the contract, which was different on several pages;

- The review was performed on the basis of a scanned document, not the original.

23. Moreover, the club highlighted that, even after having allegedly become aware of the termination agreement, which the player claims not having signed, no criminal complaint of forgery was initiated by the player.

24. In addition, the club stated that the decision of the NDRC is valid and that the player was summoned to participate, as accepted by two NDRC members who were appointed by the player’s representative. In particular, the club pointed out that from the copy of the decision presented by the player it can be noted that the decision was received by the player on 27 April 2015 and that the player only lodged his claim before FIFA on 17 June 2015.

25. Moreover, if he indeed had not been summoned, he could still appeal the decision, regardless of the fact that it was final, in accordance with the Regulations of the Football Federation F and Procedural Law of Country D.

26. In his replica, the player insisted on the jurisdiction of FIFA, dismissing the club’s argument regarding administration proceedings stating that the club was no longer under insolvency proceedings.

27. Moreover, the player held that the club intended to force him to terminate the contract, since, for example, it delayed the payment of salaries during several months.

28. The player contested the club’s statement that the termination of the contract was by mutual agreement, adding that it was based on a fake document.

29. The player further insisted that he was not notified of the proceedings before the NDRC.

30. In addition, the player contested the club’s statement that he left the club on the basis of the agreement, emphasizing that he left the team, since he was no longer allowed to participate in club activities.

31. Furthermore, the player stated that the forensic expert who produced the report is an authorized forensic expert recognized by the Ministry of Justice of Country D.

32. Although invited to do so, the club did not provide final comments on the present matter.

33. Upon FIFA’s request in accordance with its standard procedure in connection with allegations of forgery, the club provided the original of the termination agreement.

34. The player informed having concluded an employment contract with the Club of Country B, Club G, on 25 June 2015, valid until 30 June 2018, by means of which he was entitled to receive, inter alia, a monthly salary of 1,095,065.

35. The Football Federation F confirmed that the club is still affiliated to the Football Federation F and no longer in insolvency.

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 case at hand. In this respect, it took note that the present matter was submitted to FIFA on 17 June 2015. Consequently, the 2015 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 hand (cf. article 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2018), the Dispute Resolution Chamber has competence to adjudicate 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 employment-related dispute between a Player of Country B and a Club of Country D.

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 the “Syndic Judge of the Tribunal of Capital E” shall have jurisdiction over this case, since the club has been in insolvency proceedings. In addition, in order to justify the alleged competence of the ordinary court, the Respondent referred to article O of the employment contract which provides that “Disputes regarding the concluding, execution, amending, suspension or termination of the present individual employment agreement are solved before the Court of material and territory competence, as provided by the Law”. In this respect, the Respondent further referred to article N of the contract and held that jurisdiction in labour disputes belongs exclusively to the competent courts of law according to legislation in force.

5. The Chamber equally noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter.

6. In relation to the above, the Chamber 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 is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

7. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contains a clear jurisdiction clause.

8. Having said this, the members of the Chamber recalled that art. O. of the contract stipulates that: “Disputes regarding the concluding, execution, amending, suspension or termination of the present individual employment agreement are solved before the Court of material and territory competence, as provided by the Law”.

9. Having examined the relevant provision, the Chamber came to the conclusion that art. O does not constitute a clear jurisdiction clause in favour of one specific court in Country D, since it merely referred to a “Court of material and territory competence, as provided by the Law”. Irrespective of such conclusion, the Chamber further took into account that with respect to its position relating to Labour Law of Country D as referred to in art. N of the contract, the Respondent had merely presented a copy of a decision passed by the Appeal Committee of the Football Federation F.

10. Subsequently, the members of the Chamber recalled that the NDRC of Country D passed a decision declaring the employment relation between the Claimant and the Respondent terminated on the basis of a termination agreement dated 5 March 2015. In this regard, the Chamber noted that the Claimant, apart from contesting his signature on such agreement, held that he was not informed of any proceedings in front of said NDRC and that, therefore, his right to defence was violated.

11. From the documents on file, the Chamber noted that the NDRC of Country D passed its decision on 18 March 2015 on the basis of the Respondent’s petition dated 13 March 2015, in other words, said NDRC issued its award within 5 days of receipt of the Respondent’s petition. Given this very short time frame, the members of the Chamber concurred that, indeed, it was highly unlikely that the Claimant was summoned and involved in the relevant proceedings in front of the NDRC. Therefore, the Chamber agreed that it is not bound by the decision passed by the NDRC on 18 March 2015.

12. Moreover, with respect to the Respondent’s argument related to the alleged competence of the “Syndic Judge of the Tribunal of Capital E”, without entering into the question as to whether such argument could be considered valid, the members of the Chamber took into account that, on 6 July 2017, the Football Federation F confirmed that the Respondent no longer was in insolvency proceedings.

13. In view of all of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC 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.

14. Subsequently, the members of the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of said Regulations (edition 2018) and considering that the claim was lodged in front of FIFA on 17 June 2015, the 2015 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the present matter as to the substance.

15. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. 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.

16. In this respect, the members of the Chamber acknowledged that it was undisputed by the parties that they signed an employment contract with a duration as from 28 July 2014 until 1 July 2016.

17. In continuation, the members of the Chamber noted that the Claimant lodged a claim against the Respondent maintaining that the latter had terminated the employment contract without just cause on 5 March 2015. Consequently, the Claimant asked to be awarded payment of compensation for breach of contract as well as that sporting sanctions be imposed on the Respondent.

18. Subsequently, the members of the Chamber took note that the Respondent, for its part, rejected the claim maintaining that, on 5 March 2015, the parties signed an agreement by means of which the employment contract was terminated by mutual consent.

19. At this point, the Chamber took note of the contents of the aforementioned termination agreement submitted by the parties, which reads as follows: “1. The Individual Employment Agreement … is terminated by mutual agreement starting with 10.03.2015 with the payment of outstanding financial rights ; 2. The club will pay the player financial rights the equivalent of 2.000 EURO net for the month of march 2015 until 15.03.2015 ; 3. The Player and the Club agree that they do not have any financial claims whatsoever previous to the date 10.03.2015. The club will not have any claims whatsoever towards the future club of the player.”

20. In this regard, the Chamber recalled that the Claimant denied having signed such termination agreement alleging that his signature on the relevant document is a forgery. On the other hand, the Respondent insisted that the document in question was signed by the Claimant.

21. At this stage, the Chamber deemed it appropriate to recall the contents of art 12. par. 3 of the Procedural Rules, according to which: “Any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

22. In continuation, with respect to the handwriting expert report submitted by the Claimant, the Chamber highlighted that, in principle, it cannot take into consideration such expert reports, unless they are issued by experts mutually agreed upon and compensated by the parties involved.

23. Furthermore, the members of the Chamber considered it appropriate to remark that, as a general rule, FIFA’s deciding bodies are not competent to decide upon matters of criminal law, such as the ones of alleged falsified signatures or documents, and that such affairs fall into the jurisdiction of the competent national criminal authority.

24. In this regard, the DRC noted that termination agreement dated 5 March 2015 bears the signature of the Respondent and the alleged signature of the Claimant. In addition, the members of the DRC pointed out that, upon FIFA’s request in accordance with its standard procedure in connection with allegations of falsification, the Respondent provided the original of such agreement, currently available for the analysis of the Chamber.

25. In continuation, the DRC recalled that all documentation remitted shall be considered with free discretion and, therefore, it focused its attention on the original of the termination agreement as well as on other documents containing the Claimant’s signature, provided by the parties in the context of the present dispute.

26. After a thorough analysis of the aforementioned documents, in particular, comparing the relevant signatures of the Claimant in the various documents provided in the present affair, the DRC had no other option but to conclude that, for a layman, the signatures on such documents appear to be the same. Therefore, the members of the Chamber agreed that they could not uphold the Claimant’s position that the termination agreement dated 5 March 2015 was invalid.

27. In view of the foregoing, the DRC concluded that, by signing the termination agreement, the Claimant agreed to prematurely terminate the employment contract with the Respondent.

28. In view of the above, in particular, the fact that the parties amicably agreed upon the premature termination of the employment contract, the members of the Chamber decided to reject the Claimant’s claim, which was limited to compensation for breach of contract, in its entirety.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is admissible.

2. The claim of the Claimant is rejected.

*****

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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives