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 June 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 15 June 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Mario Gallavotti (Italy), member

Guillermo S. Guale (Ecuador), member

Johan van Gaalen (South Africa), member

Joaquim Evangelista (Portugal), 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 an unspecified date, 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) (hereinafter jointly referred to as the parties) entered into a contract (hereinafter; the first contract) valid as of 1 December 2014 until 30 November 2015.

2. According to the first contract, the Claimant was entitled to receive from the Respondent USD 35,000 “per month to be paid in the following manner”:

a. USD 5,000 as “monthly salary”;

b. USD 360,000 as “advance payment (…) to be paid upon signing the Contract for the whole contract period: 1) USD 180,000, 2) USD 180,000”

3. Equally, clause 3 of the first contract reads as follows: “In the case of any dispute between the parties (…) the player has the right to appeal his case to the Players’ Status Committee of the Football Association of Country D or alternatively, if applicable to any employment dispute resolution body set-up under laws of Country D…”

4. On 1 December 2014, the parties concluded another contract (hereinafter; the second contract) with the same period of validity as the first contract and which provided for a monthly salary of 16,250 of Currency of Country D.

5. On 12 and 25 August 2015, the Claimant put the Respondent in default of payment of his salaries for June and July 2015 in the amount of “USD 65,000”.

6. On 27 July 2016, the Claimant lodged a claim against the Respondent in front of FIFA on the basis of the first contract, requesting outstanding remuneration in the amount of USD 180,000 as “the second advance” plus 5% interest as of “1 November 2014”.

7. In its reply to the claim, the Respondent argued that, in view of clause 3 of the first contract, the Players’ Status Committee of the Football Association of Country D is competent. In this respect, according to the Respondent, “the matter had been brought up to the committee and the discussion of the dispute is still on going”.

8. As to the substance, the Respondent only explained that “to date the discussion” between the parties is still “on going” and that “we are trying to dissolve the problem prudently”. Moreover, the Respondent pointed out that the claim of the player is “inaccurate”, considering the amount he claimed in his default notice.

9. In his replica, the Claimant argued that, irrespective of the content of clause 3, only the second contract “has been sent to the Football Association of Country D” and that the contract that is “being questioned before the FIFA is the [first contract]”.

10. As to the discrepancy between the amounts claimed in his default letter and his claim, the Claimant argued that the “overdue payment subsists till the end of the season and accumulated at the amount of USD 180,000”.

11. The Claimant further denied the allegations of the Respondent regarding any discussions.

12. Despite having been asked to do so, the Respondent did not submit any further comments.

13. Upon FIFA’s request, the Football Association of Country D informed the following:

a. On 11 November 2015, the player lodged a claim against the club in front of the Players’ Status Committee (PSC) of the Football Association of Country D on the basis of the second contract requesting the amount of XXX 32,500 for his salaries of September and October 2015;

b. On 14 December 2015, the PSC of the Football Association of Country D rendered a decision partially granting the player’s request and ordering the club to pay him XXX 16,250.

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 27 July 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) is applicable to the matter at hand (cf. art. 21 of the 2015 edition 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 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. Notwithstanding the above, the Chamber underlined that, as to its competence to entertain the present claim, it should consider the following facts which are at the basis of the specific litigation at hand.

4. In particular, the DRC recalled that the employment relation between the parties was governed by two contracts which contained the same period of validity, i.e. from 1 December 2014 until 30 November 2015.

5. Moreover, the members of the Chamber noted that according to clause 3 of the first contract, “In the case of any dispute between the parties (…) the player has the right to appeal his case to the Players’ Status Committee of Football Association of Country D or alternatively, if applicable to any employment dispute resolution body set-up under laws of Country D…”

6. In continuation, the Chamber pointed out that, according to the information provided by the Football Association of Country D, on 11 November 2015, the Claimant lodged a claim against the Respondent in front of the Players’ Status Committee of said national body, requesting the payment of his salaries of September and October 2015 as per the second contract; fact that was corroborated by the Claimant himself in his replica when he stated that only the second contract “has been sent to the Football Association of Country D” and that the contract that is “being questioned before the FIFA is the [first contract]”.

7. Furthermore, the Chamber emphasised that on 14 December 2015, the PSC of the Football Association of Country D rendered a decision on the player’s claim, partially upholding the latter.

8. With the aforementioned considerations in mind, the DRC wished to recall the principle electa una via non datur recursus ad alteram which establishes that any party who has chosen a forum in order to seek recourse cannot thereafter seek recourse in another. Equally, according to the principle venire contra factum proprium non valet, a party may not set himself in contradiction with his previous conduct.

9. In view of the above, the members of the Chamber were of the unanimous opinion that they were not in a position to entertain the claim of the Claimant. Indeed, as was previously mentioned, the Claimant sought recourse in front of the PSC of the Football Association of Country D in relation to his employment relationship with the Respondent, thereby recognising the latter deciding body’s jurisdiction. In this respect, the Chamber highlighted that, irrespective of the fact that the parties entered into two contracts, said documents clearly governed the same labour relationship between the parties, i.e. the player-club relationship for the period between 1 December 2015 and 30 November 2015. In this context, the members of the Chamber underlined that the conduct of the Claimant was, in fact, consistent with clause 3 of the first contract.

10. Along those lines, the Chamber deemed it important to underline that the practice to have a case heard by a decision-making body, with the aim to get the most favourable judgment, known as “forum shopping”, cannot be upheld by the Chamber. In other words, once a party has chosen a competent decision-making body to adjudicate its claims in relation to a specific employment relationship, said party is precluded to seek recourse from the DRC. Indeed, if a party chooses to pursue the defence of his rights at national level and, what is more, in accordance with contractual provisions, the said party should proceed that way.

11. Taking into account all the foregoing considerations, the Chamber decided that it is not competent to deal with the claim lodged by the Claimant.

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:

Omar Ongaro

Football Regulatory Director