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 24 November 2016
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 November 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Takuya Yamakazi (Japan), member
on the claim presented by the player,
Player A, Country B
as Claimant / Counter-Respondent
against the club,
Club C, Country D
as Respondent / Counter-Claimant
regarding an employment-related dispute between the parties
I. Facts of the case
1. On 29 January 2015, the Player of Country B, Player A (hereinafter; the player) and the Club of Country D, Club C (hereinafter; Club C) (hereinafter jointly referred to as, the parties) signed an employment contract valid as from 1 February 2015 until 30 June 2015.
2. Pursuant to clause 3.1 of the contract, the player was entitled to a total remuneration of EUR 20,000, broken down as follows:
- EUR 4,000 payable “until 20.02.2015”;
- EUR 16,000 payable in four installments of EUR 4,000 each “payable at 20.03.2015, 20.04.2015, 20.05.2015 and 20.06.2015”.
3. According to clause 3.2 of the contract, Club C was obliged to “pay 250 euro net in every month to the player” as housing expenses.
4. Moreover, clause 4.2.22 of the contract forbids the player to participate, inter alia, in bets.
5. For its part, clause 9.1 of the contract stipulates that in case of a dispute in connection with execution or non-execution of the contract’s obligations “the parties have the right to address to Football Federation E / FIFA / CAS jurisdictional bodies, according to the provisions of Football Federation E/FIFA/CAS Charter and Regulations, or to submit it to the courts of general jurisdiction.”
6. In addition, clause 9.2 of the contract reads as follows:
“In case sports Jurisdiction of Country D is chosen by any part, after the dispute is judged by National Dispute Resolution Chamber and Appeal Commission, the unsatisfied party may appeal the decision at TAS/CAS.”
7. Equally, clause 10.3 of the contract provides for the following:
“To the provisions of this Agreement the provisions of the Law no. 69/2000 with the further amendments and supplementings (sic) shall apply as well as the entire Law of Country D including Law no. 85/2006 of insolvency and Civil Code of Country D.”
8. According to clause 12 of the contract, in case of disputes regarding the applicable law, the Law of Country D shall prevail.
9. On 31 March 2015, Club C lodged a claim against the player in front of the National Dispute Resolution Chamber (NDRC) of the Football Federation of Country D (Football Federation E) requesting the termination of the contract with just cause by Club C, based on the breach by the player of clause 4.2.22 of the contract.
10. On 17 April 2015, the NDRC of the Football Federation E notified the parties that the claim lodged by Club C would be examined on 6 May 2015.
11. After having done so on 31 March 2015, on 20 April 2015, the player put Club C in default for a second time for not having paid his salaries of February and March 2015 and the housing expenses of February 2015, as a result of which the amount of EUR 8,250 was due.
12. On 21 April 2015, the player served Club C a notice of termination on the basis of the lack of payment of three monthly salaries as well as three months of housing expenses in the amount of EUR 12,750. The player further requested the remaining value of his contract in the amount of EUR 8,000.
13. On 16 April 2015, and amended on 5 May 2015, the player lodged a claim in front of FIFA against Club C requesting, inter alia, the total amount of EUR 20,750, which was detailed as follows:
- EUR 12,750 for outstanding salaries, broken down as follows:
EUR 4,000 for the salary “per 20 February 2015 plus 5% interest as of 30 March 2015”;
EUR 4,000 for the salary “per 20 March 2015 plus 5% interest as of 30 April 2015”;
EUR 4,000 for the salary “per 20 April 2015 plus 5% interest as of 30 April 2015”;
EUR 750 for the housing expenses of ”3 month’s rent” plus 5% interest as of 30 April 2015 ;
- EUR 8,000 as compensation for breach of contract plus 5% interest “as of the date of decision”.
14. On 5 May 2015, the player replied to Club C’s claim in front of the NDRC of the Football Federation E and within the same, lodged a counterclaim against Club C requesting the amount of EUR 20,750 comprised of the following:
Outstanding salaries for the months of February, March and April 2015;
“Rent for the period February – April 2015”;
EUR 8,000 as “damages”.
15. On 22 July 2015, the NDRC of the Football Federation E issued a decision whereby it accepted the claim of Club C, declared the termination of the contract between the parties due to the player’s fault and rejected the counterclaim of the player.
Preliminary issues of competence
16. In its reply to the claim of the player in front of FIFA, Club C firstly argued that, on 6 February 2013, it entered into an insolvency procedure and recalled the contents of clause 10.3 of the contract which establishes the applicability of the Law of Country D and the jurisdiction of the local courts in virtue of Law of Country D no. 85/2006 in connection with Law no. 69/2000.
17. According to Club C, by signing the contract “the player implicitly accepted […] the exclusive subject matter jurisdiction of the Tribunal of Municipality F” over any other court. Having said this, Club C outlined that this tribunal is exclusively competent regarding any patrimonial dispute it may have in accordance with article 36 of the Insolvency Law - Law 85/2006.
18. In continuation, Club C stressed that it lodged a claim against the player in front of the NDRC of the Football Federation E on 31 March 2015 “having as object the termination with just cause“ of the contract. Club C declared that the player infringed the provision contained in clause 4.2.22 and, therefore, requested the NDRC of the Football Federation E to declare the termination of the contract with just cause.
19. In this regard, Club C explained that, on 22 July 2015, the NDRC of the Football Federation E took a decision in which: (i) the motion presented by the player for lack of jurisdiction of the NDRC of the Football Federation E was dismissed, (ii) the motion presented by the player requesting the “joinder” was dismissed, (iii) the counterclaim of the player, lodged on 5 May 2015, requesting EUR 20,750 was dismissed and (iv) the Club C’s request for the contract’s termination with just cause as of 17 March 2015 was upheld.
20. Consequently, Club C argued that the claim presented by the player in front of FIFA should be disregarded since the contractual relationship has been already terminated by a competent court and is, therefore, res iudicata.
21. In his reply as to the competence issue, the player argued that clause 9.2 of the contract does not refer to a specific national dispute resolution chamber. Moreover, he emphasised that the NDRC of the Football Federation E does not guarantee fair proceedings nor equal representation of players and clubs and thus, insisted in FIFA’s competence.
22. The player further highlighted that he disputed the competence of the NDRC of the Football Federation E in the proceedings carried out in front of the latter tribunal. Furthermore, the player remarked that the decision of the NDRC of the Football Federation E is not final and binding since he was not properly notified of such decision.
23. As to the res iudicata claimed by Club C, the player asserted that:
The claims are not identical since (i) the case in front of the NDRC of the Football Federation E dealt with the participation of the player in betting activities and, subsequently, his breach of contract and (ii) the claim in front of FIFA is for the outstanding salaries owed to the player by Club C and the compensation for breach of contract against Club C after the termination on 21 April 2015;
The decision of the NDRC of the Football Federation E only declared the termination of the contract and therefore it did not entertain his counterclaim for the aforementioned outstanding salaries and compensation for breach of contract;
The decision passed by the NDRC of the Football Federation E “is not final and binding”.
Issues related to the substance of the matter:
24. In its response as to the substance of the player’s claim, Club C emphasised that the player violated the obligations contained in his contract, more specifically clause 4.2.22. In this regard, Club C explained that on 17 March 2015 the player was photographed in a house of bets which was reported in the media. Therefore, it decided to lodge a claim in front of the NDRC of the Football Federation E to terminate the contract.
25. As for the amount claimed by the player, Club C asserted that the violation of the contract by the player entitles it “to refuse the execution of its own obligation”, since it remained with a man less for the time the dispute lasted. Club C also states that it paid the player an amount of 4,400 on 18 February 2015.
26. On account of all of the above, Club C deemed that the player breached his contract and therefore lodged a counterclaim against the player, subsidiary to its main request regarding the lack of competence of the DRC, asking EUR 8,000 as compensation.
27. In his reply to the counterclaim lodged by Club C, the player firstly declared that, after Club C’s former coach was fired, Club C was not interested in his services anymore.
28. As for the allegations regarding his presence in a house of betting, the player admits his presence but underlines that the matter was not properly investigated.
29. In addition, the player asserted that Club C failed to prove that he had betted on football matches and that no investigation nor sanction has been started against him by the Football Federation E. Consequently, the player deems that the compensation claimed by Club C is unfounded.
30. Finally, the player acknowledged the payment of 4,440.
31. Upon request of FIFA, the player informed that that he did not sign a new employment contract with any other club after “he left [Club C]”.
32. On 3 October 2016, the Football Federation E informed FIFA that the decision of the NDRC of the Football Federation E dated 22 July 2015 had not been properly notified to the player.
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 16 April 2015. Consequently, the 2015 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 stake (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 2. in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), 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 of Country B and a Club of Country D.
3. Nevertheless, the Chamber was of the opinion that before entering into the substance of the matter and while exercising its duty to analyse ex officio the admissibility of every claim lodged in front of it, the question of res iudicata needed to be addressed in view of the claim that Club C lodged against the player and the counterclaim of the latter against the former in front of the NDRC of the Football Federation E.
4. Along those lines, the Chamber focused its attention on the content of the decision rendered by the NDRC of the Football Federation E on 22 July 2015 from which it can be concluded the following:
a. On 31 March 2015, Club C lodged a claim against the player requesting a declaration that its termination of the contract was with just cause in view of some alleged disciplinary faults committed by the player;
b. On 5 May 2015, the player lodged its reply to said claim arguing that the NDRC of the Football Federation E was not competent to deal with the case. Nevertheless, he also lodged a counterclaim against Club C requesting the same amounts he is requesting in the proceedings in front of this Chamber;
c. In its decision, the NDRC of the Football Federation E upheld the claim of Club C and rejected the counterclaim of the player.
5. With the above considerations in mind, the Chamber wished to recall that on the basis of the principle of res iudicata, a decision-making body is not in a position to deal with the substance of a case in the event that another deciding body has already dealt with the same matter by passing a final and binding decision on it. Indeed, the parties to the dispute as well as the deciding authority are bound by the final and binding decision previously passed.
6. Furthermore, the Chamber underlined that the principle of res iudicata is applicable if, cumulatively and necessarily, the parties to the dispute as well as the object and the cause of the matter in dispute are identical.
7. In this context, the DRC pointed out that in the present case, indeed, all three elements in order for the principle of res iudicata to configure are present. In particular, the parties, i.e. the player and Club C, the object, i.e. the termination of the contract by Club C together with the consequences thereof, and the cause, i.e. the alleged disciplinary faults committed by the player in the proceeding carried out in front of the NDRC of the Football Federation E and the present one before the DRC, are identical. Moreover, the members of the Chamber highlighted that neither of the parties argued having appealed the aforementioned decision of the NDRC of the Football Federation E, which therefore appears to be now final and binding.
8. Furthermore, the members of the Chamber wished to emphasise that, even if the player appeared to have objected the competence of the NDRC of the Football Federation E, at the same time, he lodged a counterclaim against Club C within said proceedings requesting the exact same amounts he is herein requesting. In the Chamber’s view, these actions of the player are a violation of the principle venire contra factum proprium. Indeed, it is inconsistent for a party to claim that the deciding-body before which it lodged a claim, or as in the present case a counterclaim, was not competent to adjudicate it as to the substance. In this regard, it was neither argued by the player nor the documentation on file appears to show that the player’s counterclaim in front of the NDRC of the Football Federation E was somehow subsidiary to his objection to the competence of said national deciding body. Along these lines, the Chamber considered that the actions of the player amount to an attempt of forum shopping which must not be permitted.
9. The DRC then concluded that the same reasoning applies in relation to the counterclaim lodged by Club C against the player in these proceedings.
10. Finally, the members of the Chamber wished to underline that FIFA’s DRC is not an appeal body of decisions rendered by national decision-making bodies. Therefore, the DRC is not in a position to review neither the proceedings nor the decisions rendered at national level. Thus, in casu, any potential challenge to the validity or rightfulness of the decision rendered by the NDRC of the Football Federation E should have been taken to the competent appeals body.
11. On account of all the aforementioned considerations, the DRC reiterated that, in view of the principle of res iudicata, it was prevented from entering into the substance of both the claim of the player against Club C and the counterclaim of the latter against the former. Consequently, both are inadmissible.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant / Counter-Respondent, Player A, is inadmissible.
2. The counterclaim of the Respondent / Counter-Claimant, Club C, is inadmissible.
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Note relating to the motivated decision (legal remedy):
According to article 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:
Marco Villiger
Deputy Secretary General
Encl. CAS Directives