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 9 February 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 February 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Eirik Monsen (Norway), member

Todd Durbin (USA), 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 December 2011, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country B, Club E, concluded an employment contract, valid as from 2 February 2012 until 30 December 2016.

2. On 11 July 2013, the Claimant, Club E and the Club of Country D, Club C (hereinafter: the Respondent), concluded an agreement (hereinafter: the loan agreement) for the loan of the Claimant from Club E to the Respondent until 30 June 2014.

3. Art. 2.2 of the loan agreement states that “[o]nce this temporary transfer ends, the employment sports contract concluded between Club E and the [Claimant] will come back in force and the [Player] committed himself to be presented at Club E headquarters in 72 hours unless directed asked differently by Club E and [the Respondent] is obliged to perform all acts necessary for the return of the PLAYER ITC to Club E via the FIFA TMS”.

4. Moreover, art. 7 of the loan agreement provides that “[a]ny change to this contract shall take the form of written document signed by all the parties”.

5. On the same date, i.e. 11 July 2013, the Claimant and the Respondent concluded an employment contract (hereinafter: the contract), valid as of the date of signature until 30 June 2014.

6. According to the translation of the contract provided by the Claimant, the latter was entitled to receive a monthly remuneration of EUR 90,390 payable “until the day five (5) of the month following worked”.

7. On 10 January 2014, the Claimant and the Respondent concluded a termination agreement with retroactive effect until 31 December 2013. In particular, Clause Third stipulates that “[o]n that date the parties expressly and irrevocably state that already settle their accounts, whether the result of the sports contract of employment or those resulting from its revocation by this date and have nothing to demand or claim between themselves”.

8. On 29 January 2016, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the amount of “EUR 271,117”, plus 5% interest as from “January 2014”, corresponding to his salaries for January, February and March 2014.

9. In his claim, the Claimant explains that in accordance with art. 7 of the loan agreement, in order to validly terminate the contract, the Respondent would have needed the written consent of Club E, quod non. Notwithstanding the above, the Claimant alleges that the Respondent acted as if it had obtained said consent from Club E, which is the reason why he accepted to sign the termination agreement. The Claimant asserts that he subsequently reported to Club E but the latter club informed him that it did not agree to the termination of the loan and that therefore he was still bound to the Respondent. Furthermore, the Claimant outlines that the Respondent did not return the International Transfer Certificate, thereby breaching art. 2.2 of the loan agreement. In continuation, and since both clubs shifted the responsibility on the other, the Claimant asserts that he remained unpaid and unable to train for three months until Club E eventually re-registered him and loaned him to another Club of Country B. As a consequence, and considering that the situation resulted from the Respondent’s misbehaviour, the Claimant claims three monthly salaries, i.e. January, February and March 2014, as compensation. In this respect, the Claimant insists that the prescription must be calculated as of the respective due date of each salary claimed.

10. In its reply, the Respondent first argues that the Claimant’s claim is time-barred. In this respect, the Respondent points out that the event giving rise to the dispute is the signature of the termination agreement on 10 January 2014.

11. As to the substance, the Respondent emphasises that the Claimant explicitly acknowledged in the termination agreement that he had no claim towards the Respondent. Furthermore, the Respondent alleges that on 10 January 2014, it drafted and signed a document titled “agreement for rescission of temporary transfer agreement”. In this regard, the Respondent explains that said document was remitted to the Claimant for him to sign it and forward it via his agent to Club E. the Respondent states however that in spite of several reminders, Club E has never sent back a signed copy of the aforesaid document.

12. Moreover, the Respondent insists that the obligation to initiate the instruction for the return of the Claimant in the Transfer Matching System (TMS) falls to the club of origin, i.e. Club E. Having said this, the Respondent maintains that Club E only started the procedure on 1 April 2014, which is the reason why the Claimant remained unpaid and unable to play for three months.

13. Subsequently, the Respondent sustains that Club E was interested in transferring the Claimant back, which is the reason why it accepted, in good faith, to terminate the contractual relationship.

14. In his replica, the Claimant reiterates that his claim is not time barred since it was received by FIFA on “1 February 2016”, that is, within the two-year time-limit considering that the events giving rise to the disputes occurred on 5 February 2014, 5 March 2014 and 5 April 2014 respectively (cf. point 6 above).

15. In continuation, the Claimant outlines that Club E has never been contacted by the Respondent in order to terminate the loan agreement. In this respect, the Claimant emphasises that the “agreement for rescission of temporary transfer agreement” does not bear Club E’s signature. The Claimant then reverted to his previous argument that the employment contract was subisidiary to the loan agreement and that consequently any major change to the employment contract, such as its termination, would have required the consent of all the signing parties to the loan agreement, quod non.

16. In its final comments, the Respondent reiterates its previous argumentation.

II. Considerations of the Dispute Resolution Chamber

1. In a first instance, the Dispute Resolution Chamber (hereinafter referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 29 January 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the 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 2016) the Dispute Resolution Chamber shall adjudicate on 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 litigation involving a Player of Country B and a Club of Country D regarding a claim for compensation.

4. In this respect, the Chamber was eager to emphasise that contrary to the information contained in FIFA’s letter dated 3 February 2017 by means of which the parties were informed of the composition of the Chamber, the member Mr F and the member Mr G refrained from participating in the deliberations in the case at hand, due to the fact that the member Mr F has the same nationality as the Respondent and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Mr G 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.

5. Nevertheless, the Chamber acknowledged that the Respondent contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that the Claimant’s claim is time-barred.

6. Having this in mind, the members of the DRC stressed on the content of art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition 2017), which reads as follows:

“The Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge (as the case may be) shall not hear any case subject to these regulations if more than two years have elapsed since the event giving rise to the dispute. Application of this time limit shall be examined ex officio in each individual case”.

7. In view of the above, the Chamber had to determine which is the event giving rise to the present dispute. In doing so, the DRC deemed it important to emphasise that the three monthly salaries claimed by the Claimant are not claimed as outstanding remuneration, but as compensation. In this regard, the Chamber pointed out that the Claimant explicitly states that his alleged right to receive compensation arises from the conclusion of the termination agreement that he allegedly signed due to the Respondent’s bad faith. In view of the above, the Chamber held that the event giving rise to the dispute is the conclusion of the termination agreement, which occurred on 10 January 2014. The Chamber felt comforted in its conclusion considering that the Claimant is even requesting interest as of January 2014. Indeed, in the Chamber’s view, by requesting interest as of that date, the Claimant is de facto acknowledging that the requested compensation was due at the moment of the signature of the termination agreement.

8. Having said this, the Chamber recalled that the claim was lodged on 29 January 2016.

9. On account of all the above, and considering that more than two years have elapsed between the event giving rise to the dispute, i.e. the conclusion of the termination agreement on 10 January 2014, and the date when the claim was lodged, i.e. on 29 January 2015, the Chamber concluded that the Claimant’s claim must be considered barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.

10. In light of the above, the DRC decided that the claim of the Claimant is inadmissible.

III. Decision of the Dispute Resolution Chamber

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

*****

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