F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 23 March 2017

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 23 March 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Carlos González Puche (Colombia), member

Wouter Lambrecht (Belgium), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts

1. On 9 December 2011, the Club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the employment contract) with the Player of Country B, Player A (hereinafter: the Claimant), valid as from 3 January 2012 “until the end of the season 2016”.

2. In particular, the employment contract stipulated the following:

“DÉCIMO. Cesión temporales y/o definitivas: las partes acuerdan que durante la vigencia del contrato el club podrá ceder a otra entidad deportiva temporal o definitivamente los servicios del deportista profesional, conforme a lo previsto en el artículo 152 bis I del Código del Trabajo.”

"TENTH. Temporary and / or definitive transfer: the parties agree that during the term of the contract the [Respondent] may assign the services of the professional athlete to another sporting entity on a temporary or definitive basis, in accordance with the provisions of article 152 bis I of the Labor Code of Country D." (note: free translation from Spanish).

3. In addition, the employment contract stipulated the following:

“SÉPTIMO: Normativa aplicable:

El presente contrato se rige por las normas del Reglamento de la Asociación de Fútbol del País D, del Reglamento de Transferencia y Estatuto de Jugadores de FIFA y, en especial, el capítulo VI, Titulo II, del libro I del Código de Trabajo”

"SEVENTH: Applicable regulations:

This contract is governed by the rules of the Regulations of the Football Association of Country D, FIFA’s Regulations on the Status and Transfer of Player, in particular, Chapter VI, Title II, of Book I of the Labor Code "

“NOVENO: Domicilio: Para los efectos legales derivados de este contrato, las partes fijan su domicilio en la ciudad de ___________ y se someten a la competencia de sus Tribunales de Justicia.”

"NINTH: Domicile: For the legal effects derived from this contract, the parties set their domicile in the city of ___________ and are subject to the jurisdiction of its Courts of Justice." (note: free translation from Spanish)

4. On 5 July 2012, the Respondent and the Club of Country E, Club F, concluded an agreement (hereinafter: the transfer agreement), for the transfer of the Claimant to the latter.

5. According to the transfer agreement, the parties agreed upon a transfer compensation in the amount of EUR 3,186,000.

6. In addition, and according to the Respondent, on 8 December 2011, the Claimant, the Respondent and the companies “Company G.” and “Company H” concluded a “TPO contract” (hereinafter: TPO contract 1).

7. Following art. 4 of the TPO contract 1, the economic rights for the Claimant were divided as follows:

- 50% to the club;

- 40% to “Company G.”;

- 10% to “Company H”.

8. Furthermore, and also according to the Respondent, on 4 July 2012, the Claimant, the Respondent and the companies “Company G.” and “Company H” concluded a second “TPO contract” (hereinafter: TPO contract 2) in connection with the transfer of the Claimant from the Respondent to Club F.

9. In particular, art. 4 of the TPO contract 2 stipulated the following:

“Club C, Empresa G y Empresa H reconocen el derecho del Jugador establecido en la Ley 20.178 la cual (…) establece que al menos un diez por ciento del monto de [la] indemnización [por transferencia] le corresponderá al deportista profesional (Artículo 152 Bis I). Por medio del presente instrumento, Club C, Empresa G y Empresa H y EL JUGADOR, acuerdan que dicho pago correspondiente al diez por ciento del monto de esta indemnización será de cargo y pagada única y exclusivamente por Empresa G (…) Por lo tanto, Club C ni Empresa H no tienen responsabilidad ni obligación alguna en el pago o indemnización de dicha suma de dinero.”

“[The Respondent], Company G and Company H recognize the right of the [Claimant] established in Law 20.178 which ... stipulates that at least ten percent of the amount of the transfer compensation shall correspond to the professional athlete (Article 152 Bis I). By means of this legal act, [the Respondent], Company G and Company H and [the Claimant], agree that said payment corresponding to ten percent of the transfer compensation will be charged and paid solely and exclusively by Company G (...) Therefore, [the Respondent] and Company H have no responsibility or obligation whatsoever in the payment or compensation of said amount." (note: free translation from Spanish)

10. On 24 January 2014, the Claimant lodged a claim before FIFA against the Respondent, and requested the payment of a total amount of EUR 318,600, plus “interests as from 6 July 2012”.

11. In particular, the Claimant grounded his claim on the basis of art. 152 bis I of the Law of Country D 20.178, which reads as follows:

“Cesiones temporales y definitivas (…) Se entiende por indemnización por terminación anticipada del contrato de trabajo, el monto de dinero que una entidad deportiva paga a otra para que ésta acceda a terminar anticipadamente el contrato de trabajo que la vincula con un deportista profesional, y que, por tanto, pone fin a dicho contrato.

A lo menos un diez por ciento del monto de esta indemnización le corresponderá al deportista profesional.”

"Temporary and definitive transfer

(...) Compensation for early termination of the employment contract means the amount of money that a sports entity pays to another in order for it to agree to prematurely terminate the employment contract that bounds it with a professional athlete.

The professional athlete shall be entitled to at least ten percent of the amount of this compensation." (note: free translation from Spanish).

12. Consequently, the Claimant requested the payment by the Respondent of an amount equivalent to 10% of the transfer fee paid by Club F.

13. In its reply, the Respondent denied FIFA’s competence on the grounds that the employment contract concluded with the Claimant established the “judicial courts” as the competent body to deal with the case. In addition, the Respondent argued that the Labor Code of Country D does not allow to decide employment disputes outside of the State courts.

14. Moreover, the Respondent considered that the claim is not employment related, but related to a series of TPO contracts (cf. points I. 6 and I. 8 above).

15. As to the substance, the Respondent underlined that there is no specific clause in the employment contract providing for the payment of 10% of the transfer fee.

16. In his replica, the Claimant considered that the Labor Code of Country D does not prevent arbitration in labor matters, and that the parties did not contractually agree in granting the competence to a particular Court of Country D.

17. Moreover, the Claimant was of the opinion that art. 152 bis I of the Law of Country D 20.178 was incorporated into the employment contract via its art. X (cf. point I. 2 above).

18. In addition, the Claimant insisted that the claim was fully employment-related and that any other contracts concluded between himself, the Respondent and any third-party are irrelevant to the matter at stake.

19. As to the TPO contracts, the Claimant rejected the Respondent’s allegation, according to which the requested amount should be paid by a third-party, and insisted that the provided TPO contracts are forged.

20. As final comments, the Respondent confirmed its previous arguments, and insisted that FIFA is not competent in the matter at stake since, allegedly, the Labor Code of Country D does not allow the resolution of employment-related disputes outside the jurisdiction of State courts.

21. Notwithstanding the above, the Respondent highlighted that the claim is not employment-related and that it is based on a TPO contract. More specifically, the Respondent explained that the Claimant’s request would have only arisen when the Claimant was transferred to Club F, and not from an employment contract.

22. Moreover, the club considered that the Claimant contradicted himself by requesting a series of rights based on the Law of Country D, while ignoring at the same time Competence Rules of Country D.

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, it took note that the present matter was submitted to FIFA on 24 January 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 2012, 2014, 2015 and 2017 editions 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 2012) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension. In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 17 March 2017 by means of which the parties were informed of the composition of the Chamber, Member J and Member K refrained from participating in the deliberations in the case at hand, due to the fact that Member J has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also Member K refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of three members in accordance with art. 24 par. 2 of the Regulations.

3. Within this context, the Chamber understood that, in principle, it would be competent to decide on the present litigation which involves a Player of Country B and a Club of 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 grounds that the employment contract concluded with the Claimant established the “judicial courts” as the competent body to deal with the case. In addition, the Chamber also observed that the Respondent argued that the Labor Code of Country D does not allow to decide employment disputes outside of the State courts.

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. 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 contained a clear jurisdiction clause.

8. In this respect, the Chamber recalled that clause nine of the employment contract stipulates that: “For the legal effects derived from this contract, the parties set their domicile in the city of ___________ and are subject to the jurisdiction of its Courts of Justice."

9. Having examined the relevant provision, the Chamber came to the unanimous conclusion that clause nine of the employment contract does not constitute a clear jurisdiction clause in favour of one specific court, since it is drafted in a generic manner. Moreover, the Chamber also noted that, in fact, the parties decided to leave as a blank space the name of the city in which they would have, hypothetically, established the relevant jurisdiction for the contract. Consequently, the Chamber understood that the parties actually never agreed upon a specific jurisdiction.

10. Moreover, the Chamber also noted the Respondent’s allegation, according to which the Labor Code of Country D prevents from deciding employment disputes outside of the State courts.

11. In this regard, the DRC recalled the basic principle of burden of proof, as established 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.

12. Within this context, the Chamber noted that the Respondent did not provide sufficient evidence in order to support its allegation, according to which labor disputes arisen in Country D cannot be subject to arbitration.

13. Consequently, the Chamber decided to dismiss the aforementioned argument raised by the Respondent.

14. In addition, the Chamber also observed that, according to the Respondent, the claim of the Claimant is not employment-related.

15. However, in this regard, the Chamber noted that, essentially, the claim of the Claimant is grounded on the basis of his employment relationship with the Respondent, i.e. his request must be contextualized by taking into account the Claimant’s previous status as an employee of the Respondent, without prejudice of other aspects of said claim. Consequently, the Chamber unanimously understood that the matter at stake falls within the scope of art. 24 of the Regulations.

16. 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.

17. The competence of the Chamber having been established, 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, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (Players (editions 2012, 2014, 2015 and 2016), and considering that the present matter was submitted to FIFA on 24 January 2014, the 2012 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

18. Subsequently, the members of the Chamber took note that, on 9 December 2011, the Respondent concluded an employment contract with the Claimant, valid as from 3 January 2012 “until the end of the season 2016”.

19. Moreover, the Chamber also observed that the Claimant lodged a claim before FIFA against the Respondent, on the grounds that the latter failed to remit him the amount EUR 318,600, which, according to him, should be payable on the basis of art. 152 bis I of the Law of Country D 20.178, concerning the status of professional athletes.

20. Within this context, the Chamber wished to point out, as a principle, that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber emphasized that the main objective of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. In this respect, the DRC wished to point out that it is in the interest of football that a player’s remuneration is based on uniform criteria rather than on provisions of national law that may vary considerably from country to country. Therefore, the Chamber deemed that it is not appropriate to this case to apply specific aspects of a particular national law but rather the Regulations on the Status and Transfer of Players, general principles of law and, where existing, the Chamber’s well-established jurisprudence.

21. Consequently, the Chamber unanimously understood that it cannot render a decision on the basis of the aforementioned national law.

22. Notwithstanding the above, and for the sake of completeness, the Chamber deemed it relevant to observe if the Claimant’s request had any other basis.

23. In this regard, the members of the Chamber noted that, according to the Respondent, on 8 December 2011, the Claimant, the Respondent and the companies “Company G.” and “Company H” concluded a “TPO contract” (TPO contract 1) and that, on 4 July 2012, the aforementioned parties concluded a second “TPO contract” (TPO contract 2). In particular, the members of the Chamber observed that, apparently, the TPO contract 2 made reference to art. 152 bis I of the Law of Country D 20.178.

24. However, and prior to discussing the possible relevance of said contracts, the Chamber noted that the Claimant insisted that the provided TPO contracts are forged. Consequently, and on the basis of the principle of non venire contra factum proprium, the Chamber understood that, under any circumstance, the Claimant could not ground his claim on a series of documents that he considered as invalid.

25. In view of the above, the members of the Chamber unanimously agreed that they could not enter into the analysis of the relevant clauses contained in the aforementioned contracts and that, consequently, the Claimant’s request must be rejected in full.

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 (CAS)

Avenue de Beaumont 2

CH-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