F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2018-2019) – fifa.com – atto non ufficiale – Decision 4 October 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 October 2018,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Abu Nayeem Shohag (Bangladesh), member
Alexandra Gómez Bruinewoud (Uruguay), member
Stijn Boeykens (Belgium), 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 30 August 2017, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), signed an employment contract (hereinafter: the contract), valid as follows: “The player’s contract is valid for a period of two sports seasons with the possibility of renewal, starting from the beginning of the 2017-2018 local competitions”.
2. According to the contract, the Claimant was entitled inter alia, to the following:
- USD 1,200 as monthly salary; and
- USD 30,000 as a sign on fee.
3. In line with the above, clause 4 of the contract established that: “Le joueur reconnait avoir reçu la somme de treinte mille dollars américans, en guise de prime de signature correspondant à deux saison sportives”.
Freely translated into English as follows:
“The [Claimant] acknowledges having received the amount of [USD 30,000], as a signing bonus corresponding to two sports seasons”.
4. Clause 5 of the contract provides: ”La baisse du rendement prolongé, l'indiscipline ou la méconduite du joueur peuvent donner lieu à des sanctions allant jusqu'à la résiliation du présent contrat”.
Freely translated into English as follows:
“The constant decrease in the performance, indiscipline or misconduct of the [Claimant] may result in sanctions up to the termination of the contract”.
5. Furthermore, clause 11 of the contract established that: “Le jouer s'engage à ne jamais recourir aux juridictions de droit commun, en exécution des Statuts de la FIFA, de la CAF et de la ‘’Football Federation E’’. Les deux parties contractantes ne reconnaissent que le seul Tribunal Arbitral des Sports (TAS) installé à Lausanne, en Suisse“
Freely translated into English as follows:
“The [Claimant] agrees never to attend to ordinary courts, in accordance with the Statutes of FIFA, CAF and Football Federation E. The parties recognize only the Court of Arbitration for Sport (CAS) located in Lausanne, Switzerland”.
6. On 20 December 2017, the Respondent terminated the contract on the basis of clause 5 of the contract invoking alleged just cause.
7. On 7 March 2018, the Claimant lodged a claim against the Respondent in front of FIFA requesting the total amount of USD 59,000, plus interests:
- USD 30,000 as compensation for breach of contract, amount corresponding to the residual value of the contract;
- USD 9,000 as compensation for the termination of the contract during the protected period, which corresponds to the 30% of the residual value of the contract;
- USD 20,000 as outstanding payment corresponding to the allegedly partially paid sign on fee; and
- To impose sporting sanctions on the club.
8. On his claim, the Claimant deems that the Respondent terminated the contract without just cause on 20 December 2017, and therefore, he should be entitled to compensation for breach of contract.
9. Moreover, the Claimant referred to the sign on fee established in the contract and sustained that the Respondent did not fulfilled its obligation in this regard, as he only allegedly received USD 10,000.
10. On its reply to the claim, the Respondent firstly questioned the competence of FIFA to deal with the present matter. In particular, and based on Clause 11 of the contract (cf. point 5 above), the Respondent argued that the only competent body to decide upon a dispute involving the parties is the Court of Arbitration for Sport (CAS).
11. As to the substance, the Respondent rejected the claim and stated that the Claimant was paid the complete amount in relation to the sign on fee. In this context, the Respondent recalled clause 4 of the contract and sustained that according to said clause, the Claimant acknowledged receiving the payment of USD 30,000 corresponding to the sign on fee.
12. Subsequently, the Respondent held that after 4 matches in which the Claimant did not met the Respondent’s expectations and a constant decrease of his performance, it decided to terminate the contract on the grounds of clause 5 of the contract. Moreover, the Respondent sustained that it allegedly signed a termination agreement with the Claimant on 12 December 2017, and as a result, the Respondent issued a release letter.
13. In his replica, the Claimant insisted that FIFA is competent to deal with the matter at hand. In this respect, he argued that the clause does not expressively exclude FIFA to deal with the present matter.
14. On that basis, the Claimant stated that the contract is a “standard contract”, which is ready to be signed by the parties, leaving the Claimant no option to choose the competent body to deal with any dispute arisen from the contract.
15. As to the substance, the Claimant questioned the reply from the Respondent on the grounds that the Respondent did not provide any evidence whatsoever that it indeed paid the Claimant the remaining sign on fee or that the alleged termination agreement was signed.
16. In its duplica, the Respondent reiterated its position and argued that FIFA is not competent due to the arbitration clause in favour of CAS.
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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 7 March 2018. Consequently, the 2018 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 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 2018), the Dispute Resolution Chamber is 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. As a consequence, the DRC would, in principle, be competent to decide on the present litigation involving a Player of Country B and a Club of Country D regarding an employment related dispute.
4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that the only competent body to decide upon an employment related dispute involving the parties is the Court of Arbitration for Sport (CAS) in accordance with clause 11 of the contract.
5. On the other hand, the members of the DRC equally noted that the Claimant rejected such position and alleged that clause 11 of the contract does not expressively exclude FIFA to deal with the present matter, apart from the alleged fact that the contract is a “standard contract” which was ready to sign, leaving no option to the player to choose another competent body to deal with any dispute that would arise from the contract.
6. At this stage, the Chamber recalled the content of clause 11 of the contract which provided that: “Le jouer s'engage à ne jamais recourir aux juridictions de droit commun, en exécution des Statuts de la FIFA, de la CAF et de la ‘’Football Federation E’’. Les deux parties contractantes ne reconnaissent que le seul Tribunal Arbitral des Sports (TAS) installé à Lausanne, en Suisse“
Freely translated into English as follows:
“The [Claimant] agrees never to attend to ordinary courts, in accordance with the Statutes of FIFA, CAF and Football Federation E. The parties recognize only the Court of Arbitration for Sport (CAS) located in Lausanne, Switzerland”.
7. In this respect, the DRC first outlined that clause 11 of the contract clearly and unambiguously identified CAS as exclusively competent to deal with disputes arising out of the contract. Furthermore, the members of the DRC referred to the argument of the Claimant in which he held that the contract is a “standard contract” which left him with no option to choose another competent body to deal with any dispute in relation to said contract and in this regard, the Chamber recalled art. 12. Par. 3 of the Procedural Rules, according to which any party deriving a right from an alleged fact shall carry the respective burden of proof and concurred that the argumentation of the Claimant cannot be followed as the Claimant failed to provided conclusive evidence that could prove that, he was in fact prevented from choosing another competent body to deal with any dispute in connection with the contract, in conjunction with the fact that the contract was distinctly signed by him on 30 August 2017, and as a result of the aforementioned, the members of the Chamber pointed out that clause 11 of the contract was freely included and resulted from the common will of the parties
8. Having stated the foregoing, the members of the Chamber highlighted that the choice of forum is a fundamental right of the parties to a contract which, as a matter of principle, needs to be respected. In this context, the members of the DRC referred to the first sentence of art. 22 of the Regulations, which establishes that “Without prejudice to the right of any player or club to seek redress before a civil court for employment related disputes …”. The Chamber underlined that a player and a club thus have the right to refer a labour dispute to a court other than FIFA. The only limit to the parties’ above-mentioned freedom is that the chosen forum respects fundamental principles of due process, which an ordinary court is presumed to do.
9. Along those lines, the Chamber wished to emphasize that it is undisputed that CAS guarantees the respect of the fundamental procedural rights of the parties, i.e. the principle of parity when constituting the tribunal, the right to an independent and impartial tribunal, the principle of a fair hearing, the right to contentious proceedings and the principle of equal treatment.
10. In fact, the members of the DRC were eager to point out that the Swiss Federal Tribunal has recognised CAS as a true arbitral tribunal, the decisions of which have the same effect as those of an ordinary court judgement.
11. With those considerations in mind, the DRC took into account that, as stated above, according to the first sentence of art. 22 of the Regulations, as a general rule, any player or a club can seek redress before a civil court for employment-related disputes and, in this respect, determined to follow the criteria established by the Swiss Federal Tribunal according to which CAS is considered to have the same level of independence and impartiality as an ordinary court and that an arbitral award of the former produces the exact same legal effects as a judgement of the latter. In other words, the DRC came to the conclusion that the main objective of the first sentence of art. 22 is to give the parties the liberty to choose a forum other than FIFA to resolve their employment-related disputes, the only limit being, as established above, the respect of fundamental principles of procedural law, which the CAS undoubtedly fulfils.
12. Having established all of the above, the members of the DRC concluded that there is no reason not to respect the choice of forum explicitly made by the parties in the agreement and therefore that the Respondent’s objection to the competence of FIFA to deal with the present matter is to be upheld. As a result, the DRC decided that it is not competent, on the basis of clause 11 of the contract, to consider the present matter as to the substance.
13. In light of the above, the DRC decided that the claim of the Claimant is inadmissible.
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III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is inadmissible.
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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
CH-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:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives