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 15 July 2016

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 July 2016,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Theo van Seggelen (Netherlands), member

Takuya Yamazaki (Japan), member

Mario Gallavotti (Italy), member

Mohamed Al Saikhan (Saudi Arabia), 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 January 2012, the Player of Country B, Player A (hereinafter; the Claimant or the player) and the Club of Country D, Club C (hereinafter; the Respondent or the club) concluded an employment contract (hereinafter; the private contract) valid as of the date of its signature until 31 December 2013.

2. Clause III of the private contract reads as follows: “The annual price for the service object of the present contract is USD 800,000 (…) tax free, which equates to a total of USD 66,667 (…) monthly, of which USD 6,667 (…) will be recorded in working papers, and the other USD 60,000 (…) will be paid as image rights directly to the Company of Country D current account to be indicated by [the player]”.

3. Moreover, Clause XI of the private contract stipulates: “Of the Forum (…) Is elected the seat of the City E, State F, with the exclusion of any other, more privileged that is or may be, as single and competent to settle any doubt or question arising from this contract”.

4. On 1 February 2012, the parties entered into a “Special Sports Employment Agreement” (hereinafter; the standard contract) whereby it was agreed that the Claimant was entitled to a monthly salary of 15,793.

5. On 25 August 2015, the Claimant lodged a claim against the Respondent in front of FIFA on the basis of the private contract requesting the outstanding amount of “USD 200,000” corresponding to his salaries of October, November and December 2013.

6. In its reply to the claim, the Respondent raised an exception of lack of competence of FIFA to entertain the claim of the player in view of clause XI of the private contract. In this respect, the Respondent argued that the only competent authorities to deal with the present dispute are the Courts of City E.

7. Furthermore, the Respondent argued that the only instrument which governs the employment relationship between the parties is the standard contract which provided for a salary of 15,793 which in turn corresponds to USD 6,667. In this respect, the Respondent stressed that in the private contract it was clearly established that the salary of the player was of USD 6,667 and that the remaining USD 60,000 were payable as image rights. Therefore, the Respondent alleged that, in any case, FIFA lacks competence to deal with the player’s claim related to his image rights.

8. As a consequence, the Respondent emphasised that in case FIFA declares itself competent to deal with the Claimant’s claim, it must be determined that its debt towards the latter amounts to 47,379.

9. In his replica, the Claimant stressed that the standard contract does not contain any jurisdiction clause. Therefore, his claim is admissible. In this respect, the Claimant asserted that as the standard contract is the “official contract” and the latter does not provide for any jurisdiction clause in favour of any deciding body, he has the right to claim in front of FIFA any amount “related to any labour matter which affects him”.

10. The Claimant further argued that clause XI of the private contract is “invalid” as it is in conflict with the standard contract which was signed at a later stage. The Claimant argued that when two contracts which contradict themselves are signed, the one signed at a later date should prevail.

11. As to the substance of the matter, the Claimant stressed that the Respondent accepted not having paid his salaries of October, November and December 2013 and argued that he never designated any company to which the amount as image rights should be paid. In this regard, the Claimant underlined that the Respondent always paid directly to his bank account the amount of USD 60,000 as per his image rights. As a consequence, the Claimant stressed that this amount should be considered as salaries.

12. In view of the above, the player reaffirmed his claim.

13. In its rejoinder, the Respondent argued that the Claimant is “cherry-picking” the clauses of both the private and the standard contract which support his position. The Respondent stressed that whilst the Claimant uses the standard contract to try to prove that FIFA has jurisdiction in the present matter, he requests amounts which are only stipulated in the private contract.

14. Moreover, the Respondent argued that even if the standard contract was signed after the private contract, it does not establish that i) the former takes precedent over the latter and ii) the parties agreed to amend or to modify the private contract in order to exclude the jurisdiction of ordinary courts.

15. Finally, the club reiterated the arguments contained in its first submission.

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 25 August 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 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 of Country B and a Club of Country D.

3. However, the Chamber acknowledged that the Respondent, in view of clause XI of the private contract, contested the competence of FIFA’s deciding bodies as, according to the Respondent, the present matter shall be adjudicated by the Courts of City E.

4. The Chamber further noted that, conversely, the Claimant rejected the position of the Respondent as to FIFA’s lack of jurisdiction and argued that the standard contract does not contain any jurisdiction clause in favour of any deciding body. Consequently, in view of the international dimension of the dispute, it is evident that FIFA is competent. In this context, the Chamber took note that, according to the Claimant, Clause XI of the private contract is “invalid” as it is in conflict with the standard contract which was signed after the former. In this respect, the DRC observed that, according to the Claimant, when two contracts which contradict themselves are signed, the one signed at a later date should prevail.

5. With the aforementioned considerations in mind, and prior to entering into the analysis of its competence, the Chamber wished to recall that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, 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.

6. In relation to the above, 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 can settle an employment-related dispute between a club and a player of an international dimension, is that the competence of the relevant arbitration tribunal, respectively national court, derives from a clear reference in, inter alia, the employment contract at the basis of the dispute.

7. Therefore, while analysing whether it was competent to adjudicate 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 contained a clear and exclusive jurisdiction clause in favour of the Courts of City E.

8. In this context, first and foremost, the members of the Chamber wished to emphasise that it is undisputed that the claim of the player is based on the private contract. Indeed, the player is requesting the amount of USD 200,000 as outstanding salaries for the months of October, November and December 2013 (3x EUR 66,667 as per the monthly salary indicated in the private contract). Therefore, the Chamber was of the unanimous opinion that, based on the Claimant’s claim, the employment contract at the basis of the dispute, in the sense of art. 22 lit. b) of the Regulations, is the private contract.

9. At this point, the Chamber deemed it appropriate to recall that art. 22 of the Regulations does not prohibit players and clubs to refer any employment-related disputes possibly arisen between them to the local, national courts.

10. With the above-mentioned conclusions in mind, the DRC went to analyse clause XI of the private contract and, in this respect, it was of the unanimous opinion that said clause is a clear and exclusive jurisdiction clause in favour of the Courts of City E. Indeed, the relevant clause explicitly provides that the forum elected by the parties to “settle any doubt or question arising from this contract” is “the seat of City E, State F, with the exclusion of any other, more privileged that is or may be, as single and competent…”

11. Furthermore, the members of the Chamber were of the unanimous opinion that the argument of the Appellant that Clause XI of the private contract is invalid as it is allegedly in conflict with the contents of the standard contract, which was signed at a later stage, does not stand. Indeed, the Appellant cannot claim that only Clause XI of the private contract would be affected by the later conclusion of the standard contract without affecting the rest of the former’s clauses.

12. In this context, if the reasoning of the Claimant would be followed, it would entail that the private contract was entirely replaced by the standard contract and not just Clause XI. The Claimant would thus not be able to claim amounts which are only provided in the private contract.

13. On account of all the above, the Chamber was of the unanimous opinion that the only competent body to deal with the player’s claim against the Respondent on the basis of the private contract are the Courts of City E and therefore, it cannot hear the player’s claim as to the substance. Consequently, the claim of the player is inadmissible.

III. Decision of the Dispute Resolution Chamber

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

*****

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