DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 13 luglio 2017 • Stagione sportiva: 2017/2018

F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision13 July 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 13 July 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mario Gallavotti (Italy), member

Theo van Seggelen (Netherlands), 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 15 June 2015, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), concluded a “sport services agreement” (hereinafter: the contract), valid from 15 June 2015 until 30 June 2017.

2. Pursuant to art. 4.1.1 of the contract, the Claimant was entitled to receive the following remuneration:

“Fee established for the benefit period 15.06.2015-30.06.2017 will be 14.000 euro net, as it follows:

- period 15.06.2015-30.06.2015 [sic] - 9.000 euro net/month

- 30.000 euro net – 30.12.2015.

- 30.000 euro net – 30.06.2016

- period 01.07.2016-30.06.2017 – 9.000 euro net/month

- 30.000 euro net – 30.12.2016.

- 30.000 euro net – 30.06.2017.

- 7.000 euro net to be paid until 15.07.2015, as salary for the period 15.06.2015 – 30.06.2015.

The salary will be paid on the 15th of the next month”.

3. In addition, the Claimant was entitled to receive match bonuses as follows:

- EUR 2,000 net per win payable as follows:

 EUR 1,000 after the game;

 EUR 1,000 by no later than 30 December or 30 June of the respective year;

- EUR 1,000 net per draw away payable as follows:

 EUR 500 after the game;

 EUR 500 by no later than 30 December or 30 June of the respective year.

4. In this respect, the contract specifies that “[t]he bonus for the official game will be fully paid if the [Claimant] will pay minimum 45 minutes. If the [Claimant] will play less than 45 minutes he will receive proportionally with the minutes he play and with the proposal of the coach”.

5. Equally, art. 4.3 of the contract stipulates that “the [Respondent] will provide accommodation and meals services, in the amount of 300 euro/month”.

6. Furthermore, art. 11 of the contract reads as follows:

“Any dispute arising between the parties out of or in connection with this Agreement, including that relating to the validity, interpretation, execution or termination, shall be settled amicably. If the parties fail to reach an amicable settlement, the dispute shall be submitted for settlement either to the jurisdictional organs of the Football Federation of Country D and the Professional Football League, or to the competent ordinary courts at the discretion of the parties”.

7. Art. 12.6 of the contract further stipulates that “[t]his enforcement law is the Law of Country D”.

8. On 8 April 2016, the Respondent entered into insolvency proceedings.

9. On 25 May 2016, the judicial administrator of the Respondent terminated the contract based on the Insolvency Law of Country D 85/2014.

10. On 14 June 2016, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting the following:

- EUR 101,203.13, plus 5% interest p.a. as of each due date, as outstanding salaries;

- EUR 220,000, plus 5% interest p.a. from 25 May 2016, as compensation for breach of contract;

- EUR 4,236, plus 5% interest p.a. as from the date of the decision, corresponding to the price of four round air tickets Country D – Country B;

- the imposition of sporting sanctions on the Respondent.

11. In his claim, the Claimant explains that art. 11 of the contract does not constitute a valid jurisdiction clause and that, as a consequence, FIFA’s Dispute Resolution Chamber is competent to deal with the matter in virtue of art. 22 lit. b of the FIFA Regulations on the Status and Transfer of Players.

12. In continuation, the Claimant argues that the Respondent terminated the contract without just cause on 25 May 2016; in particular, the Claimant outlines that the termination occurred without any prior warning.

13. In addition, the Claimant outlines that until the date of termination, i.e. 25 May 2016, the following amounts had fallen due: (i) EUR 134,258 as salaries; (ii) EUR 3,550 as housing allowance; and EUR 16,000 as match bonuses. Considering the above, the Claimant points out that the Respondent had paid him the amount of EUR 52,604.87, resulting in an outstanding amount of EUR 101,203.13.

14. In its reply to the claim, the Respondent first requests the suspension of the present procedure until the insolvency proceedings are finalised.

15. In continuation, the Respondent alleges that the Tribunal E has exclusive competence to deal with the matter for the following reasons: (i) as per Law 85/2014, as from the opening of the insolvency proceedings, all claims must be dealt with the insolvency judge and (ii) the Claimant has already registered a credit at the Tribunal E.

16. In its comments as to the substance, the Respondent sustains that the termination was justified by the insolvency proceedings opened against it, which constitutes a just cause.

17. Furthermore, the Respondent rejects the Claimant’s calculation as to the amounts paid.

18. Besides, the Respondent emphasises that the Claimant did not prove that he actually bought the flight tickets claimed.

19. On 14 July 2016, the Claimant and the Club of Country D, Club F, concluded an employment contract, valid as from 14 July 2016 until 31 May 2017 and according to which the Claimant is entitled to receive a basic monthly salary of XXX 30,310 as well as a sign-on fee of EUR 20,000.

20. On 22 July 2016, the syndic judge of the Tribunal E rendered a decision, annulling the measure taken by the judicial administrator on 25 May 2016 as the latter did not comply with the notice provided for in art. 123 of Law 85/2014.

21. On 28 July 2016, the Claimant and the Respondent concluded an “extrajudicial transaction contract” (hereinafter: the settlement agreement), which, inter alia, provides for the following:

“ART. 1 – OBJECT OF THE CONTRACT

As a result of the Court’s Decision […] where the Court ruled the revocation of the judicial administrator’s measure of the contract termination, The parties agreed that [the Respondent] regains the federative and economic rights of the [Claimant].

[The Respondent] undertakes to conclude the Transfer Contract of the [Claimant] to Club F.

[The Respondent] and the [Claimant] […] announce that any contractual relationship is terminated, jointly, starting when the present Contract is signed.

[The Claimant] declares that he waves any claims from the litigations on trial against [the Respondent] regarding the [Respondent]’s compulsion for compensations due to termination without just cause, the file […] pending before the Specialized Court G, namely the file […] pending before the Court H and file no. XXX pending before FIFA’s DRC

[The Claimant] does not waive the claim registered in the [Respondent]’s statement of affairs

[…]

ART. 2 – ACKNOWLEDGEMENT OF DUE PAYMENT

[The Respondent] and [the Claimant] admit that [the Respondent] owes to [the Claimant] EUR 15.000 representing contractual financial rights from April 08/2016 until the termination of the Contract and the [Respondent] undertakes to pay the sum as follows: EUR 5.000 until August 05/2016, EUR 5.000 until the end of the year and the rest of the money will be paid in 2017, in 10 equal instalments, starting January

ART. 3 – PENALTY CLAUSE

The parties agreed that in case of not fulfilling the contractual obligations stipulated at art. 2 [the Respondent] will additionally pay to the [Claimant] EUR 15.000 as penalties (penalty clause)

ART. 4 – OTHER CLAUSES

Subject to the payment of the mentioned sums of money, [the Claimant] declares that by signing this present transaction he waives any other financial claim from [the Respondent], arising from the Contract’s execution or as a result of the Contract’s Termination Notification

[…]

ART. 6 – APPLICABLE LAW AND THE COMPETENCE OF SOLVING LITIGATIONS

In case of litigation, The Parties will try to settle amicably for any dispute. If The Parties do not agree, The Parties will address to the Competent Court of Country D. The applicable law is the Law of Country D”.

22. On 14 August 2016, the Respondent informed FIFA that the parties had reached a settlement agreement.

23. Thereafter, the Claimant submitted his replica, first recalling that in accordance with FIFA and CAS jurisprudence, the FIFA Dispute Resolution Chamber is competent to hear disputes involving club under insolvency proceedings as far as it concerns the recognition of a debt.

24. In continuation, the Claimant stresses on the invalidity of the settlement agreement. In particular, the Claimant explains that after the termination of the contractual relationship with the Respondent on 25 May 2016, he entered into an employment contract with Club F. In this respect, the Claimant insists that the decision of the syndic of the Tribunal E rendered on 22 July 2016 merely ascertained the illegality of the notice of termination dated 25 May 2016 (cf. point I.20 above), but in no way led to the Claimant’s reinstatement into the Respondent. Nevertheless, the Claimant argues that as from 27 July 2016, the Respondent started to request him to resume duties, threatening him as well as his new club to take legal action against them should he be fielded. Consequently, and afraid of the risks for his further career, the Claimant maintains that he eventually signed the settlement agreement. In view of the above, and referring to art. 30 of the Swiss Code of Obligations (SCO) as well as the jurisprudence of the Swiss Federal Tribunal related thereto, the Claimant argues that the settlement agreement was signed under duress and should therefore be considered null and void.

25. Furthermore, the Claimant asserts that the Respondent took advantage of his weakness to obtain an unfair advantage and that, therefore, in accordance with art. 21 of the SCO, he can legally refuse to honour the settlement agreement. The Claimant then alleges that pursuant to art. 341 par. 1 of the SCO as well as art. 38 of the Labour Code of Country D, he could not have validly waived a right resulting from a mandatory provision of law, such as his right to outstanding remuneration and compensation, without receiving anything in exchange therefor.

26. Notwithstanding the above, the Claimant acknowledges having registered his credit in the Respondent’s statement of affairs and therefore withdraws his claim for outstanding remuneration. Nevertheless, the Claimant explains that the recognition of his credit by the syndic judge does not have any impact on the admissibility of his claim for compensation, the object of the latter claim being the recognition of the termination of the contract without just cause by the Respondent, and not the insolvency of the latter.

27. In its final comments, the Respondent argues that in accordance with its art. 6, the validity of the settlement agreement should be assessed by the Courts of Country D and in the light of Law of Country D.

28. In continuation, the Respondent rejects the Claimant’s assertion that the settlement agreement was signed under duress and was to the benefit of the Respondent only. In particular, the Respondent points out that the latter agreement provides for a payment of EUR 15,000 in favour of the Claimant.

29. Furthermore, the Respondent highlights that the Claimant has registered a credit in its statement of affairs and can therefore not be considered as having waived his rights resulting from a mandatory provision of law.

30. In view of the above, the Respondent argues that by means of the settlement agreement, the Claimant validly waived his right to claim compensation.

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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 14 June 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 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. The Chamber however noted that the Respondent is of the opinion that the Dispute Resolution Chamber has no competence to deal with the claim considering that it is currently under an insolvency procedure. In particular, the Chamber noted that, according to the Respondent, the Tribunal E has exclusive competence to deal with the present matter.

4. The Chamber equally noted that the Claimant rejected such position and alleged that FIFA had jurisdiction to deal with the present matter due to the international dimension of the latter.

5. Taking into account the above, the Chamber emphasised that in accordance with art. 22 of the Regulations on the Status and Transfer of Players (edition 2016), FIFA’s competence to deal with employment-related dispute with an international dimension is without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes.

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 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 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 contract at the basis of the present dispute contained a clear jurisdiction clause.

8. In this respect, the Chamber recalled the content of art. 11 of the contract which reads as follows:

9. Having examined the relevant provision, the Chamber outlined that art. 11 of the contract far from indicating one specific body, refers to at least three different bodies. Consequently, the members of the Chamber came to the unanimous conclusion that said clause can by no means be considered as a clear jurisdiction clause in favour of the Ordinary Courts of Country D, and, therefore, cannot serve as the basis to exclude the competence of the DRC.

10. In continuation, the Chamber focused on the Respondent’s assertion that the competence of the Tribunal E would arise from Law 85/2014. In this regard, the Chamber deemed it important to recall the content of art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. Having this in mind, the DRC wished to point out that the Respondent did not submit the relevant legislation, thereby failing to successfully carry the burden of proof that the Tribunal E would be competent based on Law 85/2014.

11. Along those lines, the DRC recalled its jurisprudence according to which, no provision precludes it from ruling on questions validly brought before it in relation with the existence of a monetary claim, in case an insolvency procedure is opened at national level.

12. In view of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC 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.

13. Furthermore, the Chamber analysed which regulations 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 (edition 2016), and considering that the present claim was lodged on 14 June 2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

14. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

15. In this regard, the members of the Chamber acknowledged that the Claimant and the Respondent signed an employment contract valid as from 15 June 2015 until 30 June 2017. The DRC further observed that on 25 May 2016, the judicial administrator sent a notice of termination to the player, which was annulled by the syndic judge of the Tribunal E on 22 July 2016. Equally, the Chamber took note that in the meantime, the Claimant had entered into an employment contract with another Club of Country D. Furthermore, the Chamber noted that on 28 July 2016, the Claimant and the Respondent concluded a settlement agreement.

16. The Chamber then reviewed the claim of the Claimant, who argues that in accordance with art. 341 par. 1 of the SCO, he could not have validly waived a right resulting from a mandatory provision of law, such as his right to outstanding remuneration and compensation. Moreover, the Chamber observed that the Claimant asserts that he entered into the settlement agreement under duress. In view of the above, the Claimant considers that the settlement agreement should be null and void and that the Respondent should be held liable for the termination of the contract without just cause on 25 May 2016.

17. At this stage, the Chamber turned its attention to Claimant’s argument based on art. 341 par. 1 of the SCO. In doing so, the Chamber outlined that in accordance with said article, claims arising from mandatory provisions of law or the mandatory provisions of a collective employment contract cannot be waived for the period of the employment and for one month after its end. In this regard, the Chamber was eager to emphasise that according to the Claimant, the contractual relationship must be deemed as terminated on 25 May 2016 regardless of the decision of the syndic judge made on 22 July 2016. Having this in mind, the Chamber recalled that the settlement agreement was signed on 28 July 2016, i.e. more than two months after the date of termination of the contractual relationship according to the Claimant. Consequently, and considering the strict deadline of one month established in the art. 341 par. 1 of the SCO, the Chamber considered the latter article inapplicable and decided to disregard the Claimant’s argument in this regard.

18. Moreover, and notwithstanding the above, the members of the Chamber deemed it relevant to point out that contrary to his assertion, the Claimant did not waive his rights without receiving anything in exchange therefor. Indeed, according to arts. 2 and 3 of the settlement agreement, the Respondent committed to pay an amount of EUR 15,000 to the Claimant, as well as a penalty of EUR 15,000 in case of default.

19. In continuation, the Chamber focused on the Claimant’s argument that the Respondent took advantage of his weakness and that the settlement agreement was signed under duress. In particular, the DRC outlined that the Claimant asserts having been threatened. In this respect, the members of the Chamber were astonished that the Claimant had not substantiated such a serious allegation with any single concrete evidence. Therefore, and referring once again to the content of art. 12 par 3 of the Procedural Rules, the DRC came to the conclusion that the Respondent failed to satisfactorily carry the burden of proof in this regard.

20. Furthermore, and for the sake of completeness, the Chamber wished to point out that in any case, it lacked competence to assess the validity of the settlement agreement in view of the content of its art. 6 which grants exclusive competence to Courts of Country D for any dispute arising therefrom.

21. In view of the above, the Chamber deemed that the Claimant had not presented any argument or documentation which would demonstrate the nullity of the settlement agreement. Consequently, and after recalling its jurisprudence according to which a party signing a document of legal importance without knowledge of its precise content, as a general rule, does so on its own responsibility, the Chamber concluded that the settlement agreement constituted a valid and binding document by means of which the Claimant waived any claim arising from the employment contract he might have or have had against the Respondent. The Chamber felt comforted in its decision by the explicit reference made in the settlement reference to the present claim.

22. On account of the above, the Chamber decided to reject the claim of the Claimant in its entirety.

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 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

www.tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives