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 14 June 2019
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 14 June 2019, in the following composition:
Geoff Thompson (England), Chairman Tomislav Kasalo (Croatia), member Wouter Lambrecht (Belgium), member
on the matter between the player,
Lucas Emanuel Gómez, Argentina
Represented by Mr Alberto Ruiz de Aguiar Díaz-Obregón
as Claimant
and the club,
Club Neftçi PFC Bakı, Azerbaijan Represented by Mr Josep F. Vandellos
as Respondent
regarding an employment-related dispute arisen between the parties
I. Facts of the case
1. On 1 February 2018, the Argentinean player, Lucas Emanuel Gómez (hereinafter also referred to as the player or the Claimant) concluded an employment contract with the Azerbaijani club, Club Neftçi PFC Bakı (hereinafter referred to as the club or the Respondent) valid as from the date of signature until 31 December 2018.
2. Following art. 7.1 to the contract, the player was entitled to a total remuneration in the amount of USD 121,000, payable as follows:
- USD 16,500, upon signing the contract;
- USD 16,500, on 25 July 2018;
- USD 88,000, as monthly salaries from February 2018 until December (i.e. USD 8,000 per month).
3. Furthermore, art. 2.2. of the contract stipulated the following:
“2.2. The employee will carry out his duties in the work place determined by the Employer. The Parties agree that the Employer may change his place of work and the employee can be required to fulfil his duties in the country and/or abroad for any team of the club.”
4. In addition, the contract stipulated the following:
“3.1.25. Employee has the rights specified in legislative norms of Republic of Azerbaijan, deed, regulating documents of FIFA, UEFA, AFFA and PFL.
(…)
4.1.2. The employer will provide the employee with the necessary training and playing conditions in accordance with the legislation of the Republic of Azerbaijan, the regulating documents of FIFA, UEFA, AFFA and PFL.(…)
4.1.6. To provide the employee with relevant sportswear, sport equipment, inventory, other material-technical means meeting the requirements of FIFA, UEFA, AFFA and PFL necessary for fulfilment of activity.
(…)
4.1.11 The employer has the rights specified under legislative acts of Republic of Azerbaijan, as well as under the regulatory documents of FIFA, UEFA, and AFFA.
(…)
10.2. If the employee breaches any of the obligations undertaken according to this contract, in the FIFA/UEFA/AFFA/PFL regulations and/or in the internal regulations of the Club, the employer may apply some penalties according to these discipline rules depending on the level of the penalties.
(…)
11.2. [The temporary transfer to other employer] must be realized according to the regulation on Status and Transfers of Players of AFFA and FIFA.
(…)
14.1. The labor contract may be terminated on the basis of the articles set forth in the Labor Code of the Republic the Azerbaijan, or in light of the provisions contained in the FIFA and AFFA regulations.
14.2. The causes for termination mentioned in the Regulations on the Status and Transfer of Players of FIFA and AFFA are considered the valid causes for the termination of the labor contract.
14.3. The terms of transfer of the employee to other employer and payment of compensation are determined in the Regulations on the Status and Transfers of the players of FIFA and AFFA. (…)
5. According to the player, on 19 June 2018, the club offered him to amicably terminate the contract, offering him to pay him one salary as compensation. The player stated that he rejected said offer.
6. Subsequently, the player explained that, on 21 June 2018, the club offered him a new settlement agreement, with a payable compensation in the amount of USD 11,000. The player stated that he also rejected said offer.
7. In view of the above, the player stated that, on 23 June 2018, the club informed him that, as from 25 June 2018, he should train with the reserve team.
8. Thereafter, the player described that the club offered him another settlement agreement, with a payable compensation in the amount of USD 24,500. The player that he also rejected said offer, since he wanted to fully execute the contract.
9. In this regard, the player explained that, on 5 July 2018, he sent a default notice to the club, granting 7 days to the latter in order for him to join the club’s main squad while also requesting the payment of his salaries of May and June 2018 and rental costs for said period, by no later than 15 days.
10. Within this context, the player explained that the club did not try to find a remedy to his situation.
11. As a result, on 19 July 2018, the player explained that he sent a termination notice to the club.
12. Subsequently, the player declared that, on 15 August 2018, he concluded an employment contract with the Peruvian club, Juan Aurich, valid as from 23 August 2018 until 30 November 2018, for a monthly remuneration in the amount of PEN (Peruvian Nuevo Sol) 9,600, payable in “3 instalments and 7 days” (note: the total value of the aforementioned contract corresponds to i.e. PEN 31,108 [PEN 9,600*(3,23=7/30*100)], equivalent to approx. USD 9,500.
13. On 23 October 2018, the player lodged a claim before FIFA against the club.
14. In reference to the competence, the club contested the jurisdiction of FIFA on the basis of art. 15 par. 1 of the contract and referred to jurisprudence of the Swiss Federal Tribunal, according to which “the rules of the association in question (i.e. FIFA) cannot be employed or found to have precedence over a clause that includes the jurisdiction of state courts.”
15. In this respect, art. 15 par. of the contract stipulated the following:
“15.1. The conflicts arisen between the parties are solved by direct negotiations. If the conflicts aren‘t solved by direct negotiations the parties submit to the exclusive jurisdiction of the Tribunals of the Republic of Azerbaijan.”
16. In this respect, the club considered that, in accordance with the “principle of trust”, it is impossible to establish that the parties wanted to exclude their dispute from the state courts jurisdiction.
17. The club explained that, on 12 July 2018, it sent an email to the player reminding him that, in case of dispute, the parties agreed to “submit to the exclusive jurisdiction of the Tribunal of Baku (Republic of Azerbaijan) to the exclusion of any other forum.”, and underlined that the player did not object to said statement. In the opinion of the club, this lack of objection should be understood as a tacit acknowledgement of the jurisdiction of the Tribunal of Baku.
18. In reply to the club’s allegations, the player insisted in the competence of FIFA to deal with the matter.
19. In particular, the player considered that clause 15 par. 1 of the contract is not clear enough, since it does not specify to which Azerbaijani court the matter should be referred (i.e. it does not state with clarity whether it is a labour, civil or administrative court), and whether said courts are arbitral or ordinary courts. Thus, the player was of the opinion that the aforementioned clause does not provide him with sufficient legal certainty in order to defend his rights.
20. In addition, the player noted that the contract provides several references to FIFA, in particular, in clauses 3, 4, 10, 11 and 14 (cf. point 3 above) and underlined that, in accordance with the jurisprudence of the DRC, “a clear and specific jurisdiction clause (…) is one of the basic conditions that needs to be met in order to establish that another deciding body (…) is competent”.
21. As to the substantive aspects of the claim, the player lodged a claim against the club for breach of contract without just cause, and requested the payment of a total amount of USD 80,500, plus 5% interest p.a. as from the due dates, detailed as follows:
- USD 16,000 as outstanding remuneration, corresponding to his salaries for the months of May 2018 and June 2018 (i.e. USD 8,000*2);
- USD 64,500 as compensation for breach of contract without just cause calculated as follows:
- USD 48,000, corresponding to the remaining salaries of the contract, from July 2018 until December 2018 (i.e.8,000*6);
- USD 16,000 corresponding to the amount payable on 25 July 2018 and following art. 7.1 to the contract.
22. The player underlined that the club did not deny that it relegated the player to the reserve team, or forced him to train alone.
23. In this respect, the player argued that he terminated the contract on the basis of “an abusive conduct aimed at forcing [him] to terminate the contract”, and underlined that the specific provisions of art. 14 par. 2 of the Regulations are applicable to this matter.
24. In the opinion of the player, this new article simply reflects the constant jurisprudence of the DRC and CAS, according to which forcing player to train alone is used as a “pressure mechanism” in order to force a player to terminate a contract.
25. Within this context, the player acknowledged that managers are entitled to decide over the organization of its human resources, but that this capacity cannot be used in an unlimited manner. In this respect, the player explained that, following the jurisprudence of CAS, instructions regarding training alone should be reasonable.
26. In the matter at stake, the player underlined that the club never provided it with a reason, beyond the application of clause 2.2 of the contract, to justify why it forced him to train alone, and denied that the club had any sporting reason to do so.
27. Moreover, the player insisted that the club pressured him to terminate the contract.
In this respect, the player was of the opinion that the club acted in this manner in order to free several spots for new player.
28. The club requested “to declare the claim submitted by the Player inadmissible due to the manifest lack of jurisdiction of the FIFA legal bodies” and “alternatively, to reject the claim as being unfounded.”
29. The club considered that, in accordance with clause 2.2. of the contract (cf. point 3 above), the player never concluded an agreement to play with the first team, but that his contractual obligations were towards “any of the teams of the club” . In this respect, the club acknowledged that it is true that the player was not having much playing time with the first team, and that, per indications of the head coach, it reached the conclusion that it would have been advisable to terminate the contractual relationship with the player.
30. Within this context, the club acknowledged that it offered to player to sign a mutual termination agreement, but that, in light of his refusal to sign it, it “legitimately opted for maximizing the remaining period of contract (…) and the money that in any case would have to be invested in the player (…), in order to reinforce the second team (…) with [his] experience.”
31. Therefore, the club was of the opinion that the player’s demotion to the second team was a legitimate sporting decision and noted that the contract expressly allowed this option
32. Moreover, the club considered that “the conduct of the player is a sham”. In particular, the club explained that, on 20 June 2018, the club exempted him to train on 21 June 2018. In view of the possible conclusion of a settlement agreement but that he preferred to “show up in the club’s offices (not in the training facilities) and fabricate evidence in manifest bad faith in full awareness that the negotiations were almost closed and that he had been exempted from training on that day.”
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) 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 23 October 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 2018 edition of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3, pars. 2 and 3 of the Procedural Rules and confirmed that, in principle, 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 June 2018, hereinafter: the Regulations) the Dispute Resolution Chamber is competent to deal with employment-related disputes with an international dimension between a player and a club, “without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes”.
3. In this respect, the Chamber was eager to emphasize that, contrary to the information contained in FIFA’s letter dated 11 June 2019 by means of which the parties were informed of the composition of the Chamber, the member Johan van Gaalen and the member Stefano La Porta had to cancel their attendance to the relevant meeting and thus did not participate in the deliberations in the case at hand. Therefore, the Dispute Resolution Chamber observed the case in presence of three members in accordance with art. 24 par. 2 of the June 2018 edition of the Regulations on the Status and Transfer of Players.
4. In continuation, the members of the Chamber noted that, on 1 February 2018, the parties concluded an employment contract valid as from the date of signature until 31 December 2018.
5. In this regard, the Chamber took note that the Respondent contested the competence of FIFA, arguing that the matter shall be submitted to the exclusive competence of the Tribunals of the Republic of Azerbaijan on the basis of art. 15. 1 of said contract, which was drafted as follows:
“15.1. The conflicts arisen between the parties are solved by direct negotiations. If the conflicts aren‘t solved by direct negotiations the parties submit to the exclusive jurisdiction of the Tribunals of the Republic of Azerbaijan.”
6. In particular, the Chamber took note of the Respondent’s argument, according to which, following the “principle of trust”, it is impossible to establish that the parties wanted to exclude their dispute from the state courts jurisdiction.
7. Conversely, the Chamber observed that the Claimant insisted in the competence of FIFA, arguing that that clause 15 par. 1 of the contract is not clear enough, since it does not specify to which Azerbaijani court the matter should be referred (i.e. it does not state with clarity whether it is a labour, civil or administrative court), and whether said courts are arbitral or ordinary courts. Thus, the player was of the opinion that the aforementioned clause does not provide him with sufficient legal certainty in order to defend his rights.
8. In view of the dissent between the parties, the Chamber carefully examined the contents of the disputed clause, and outlined that the aforementioned clause clearly and unambiguously identified the ordinary Tribunals of the Republic of Azerbaijan as exclusively competent to deal with disputes arising out of the contract and the agreement respectively. Furthermore, the DRC was eager to point out that said clause was freely included in the contract and the agreement respectively and resulted from the common will of the parties.
9. Having stated the foregoing, the Chamber deemed it of utmost importance to emphasise that art. 22 of the FIFA Regulations on the Status and Transfer of Players expressly provides that FIFA’s competence is without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes.
10. Moreover, the DRC concurred that, in view of the contents of clause 15 par. 1 of the contract, insofar as there is a dispute resolution clause mentioning the jurisdiction of “State courts”, it is extremely difficult to establish, in accordance with the principle of trust, that the parties wanted to exclude their dispute from the State Courts’ jurisdiction and submit themselves to the jurisdiction of an alternative dispute resolution tribunal.
11. On account of all the above, and in particular considering the clear wording of the above- mentioned clause granting exclusive jurisdiction to the Azerbaijani ordinary courts to deal with any dispute arising out of the contract, the Chamber had no other choice than to conclude that it lacked competence to adjudicate on the matter at hand.
12. In light of the above, the DRC decided that the claim of the Claimant is inadmissible.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Lucas Emanuel Gómez, 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 (CAS) 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 www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal Officer
Tribunal Arbitral du Sport Court of Arbitration for Sport
DIRECTIONS WITH RESPECT TO THE APPEALS PROCEDURE BEFORE CAS
(Code of Sports-related Arbitration, 2019 edition)
The CAS appeals arbitration procedure is provided by articles R47 et seq. of the Code of Sports-related Arbitration (2019 edition, hereafter: the Code). This procedure can be summarised as follows:
1. Any party intending to challenge a final motivated decision issued by a FIFA legal body, in accordance with the FIFA Statutes, must file a statement of appeal with CAS within a twenty-one- day time limit starting from the receipt of the decision challenged (article 58 of the FIFA Statutes). In order to file an appeal at CAS, it is necessary to have first requested that a full decision with the grounds be issued by FIFA. An appeal against the operative part of a FIFA decision only is not admissible.
The exact address of the Court of Arbitration for Sport is:
Court of Arbitration for Sport Château de Béthusy
Avenue de Beaumont 2 CH-1012 Lausanne Tel. (41.21) 613 50 00
Fax (41.21) 613 50 01
procedures@tas-cas.org www.tas-cas.org
2. To be admissible, the statement of appeal shall be drafted in English or in French (article R29 of the Code) and contain the following elements :
- the name and full address of the Respondent(s);
- a copy of the decision appealed against;
- the Appellant's request for relief;
- the appointment of the arbitrator chosen by the Appellant from the CAS list, unless the Appellant requests the appointment of a sole arbitrator (clause 3 below); the list of CAS members is published on www.tas-cas.org;
- if applicable, an application to stay the execution of the decision appealed against, together with reasons (the statement of appeal filed with CAS does not stay automatically the execution of the decision challenged, save for decisions which are exclusively of a financial nature);
- a copy of the provisions of the statutes or regulations or the specific agreement providing for appeal to the CAS;
- the evidence of the payment of the Court Office fee of CHF 1’000 (Crédit Suisse, Rue du Lion d'Or 5-7, C.P. 2468, 1002 Lausanne; account n°: 0425-384033-71).
3. The arbitration procedure is allocated to a Panel composed of three arbitrators and constituted pursuant to the rules provided by article R54 of the Code. The Appellant may however request that a sole arbitrator be appointed by the President of the CAS Appeals Arbitration Division.
4. Within ten days following the expiry of the time limit for the filing of the statement of appeal, the Appellant shall file with the CAS an appeal brief stating the facts and legal arguments giving rise to the appeal, together with all exhibits and specifications of other evidence upon which it intends to rely, failing which the appeal shall be deemed withdrawn (article R51 of the Code). Furthermore, in its written submissions, the Appellant shall specify any witnesses, including a brief summary of
Tribunal Arbitral du Sport Court of Arbitration for Sport
their expected testimony, and experts, stating their area of expertise, whom it intends to call at the hearing and state any other evidentiary measure which it requests.
5. Within twenty days from the receipt of the appeal brief, the Respondent shall submit to the CAS an answer containing the following elements :
- a statement of defence;
- any defence of lack of jurisdiction;
- any exhibits or specification of other evidence upon which the Respondent intends to rely, including the names of the witnesses, including a brief summary of their expected testimony, and experts, stating their area of expertise, whom it intends to call at the hearing.
6. The statement of appeal and any other written submissions, printed or saved on digital medium, must be filed by courier delivery to the CAS Court Office by the parties in as many copies as there are other parties and arbitrators, together with one additional copy for the CAS itself, failing which the CAS shall not proceed. If they are transmitted in advance by facsimile or by electronic mail at the official CAS email address (procedures@tas-cas.org), the filing is valid upon receipt of the facsimile or of the electronic mail by the CAS Court Office provided that the written submission and its copies are also filed by courier within the first subsequent business day of the relevant time limit (article R31 of the Code).
The time limits fixed under the Code shall begin from the day after that on which notification by the CAS is received. Official holidays and non-working days are included in the calculation of time limits. The time limits fixed under the Code are respected if the communications by the parties are sent before midnight, time of the location of their own domicile or, if represented, of the domicile of their main legal representative, on the last day on which such time limits expire. If the last day of the time limit is an official holiday or a non-business day in the location from where the document is to be sent, the time limit shall expire at the end of the first subsequent business day (article R32 of the Code).
7. In accordance with articles R64 and R65 of the Code, the CAS determines the possible advance of costs that the parties must pay to the CAS within a certain time limit. In the absence of payment of such advance of costs, the appeal shall be deemed withdrawn and the CAS shall terminate the arbitration.
8. For individuals, the CAS has created a legal aid fund. The form and the legal aid guidelines are available on www.tas-cas.org. However, the payment of the Court Office fee of article R64.1 or R65.2 of the Code remains mandatory before any procedure may be initiated even though a request for legal aid has been filed.
9. At the end of the written proceedings, the CAS summons the parties to a hearing, without prejudice to article R57 §2 of the Code.
10. The CAS shall have full power to hear the case de novo. It may issue a new decision which replaces the decision challenged or annul the decision and/or refer the case back to the competent authority for a new decision.
11. The award, a summary and/or a press release setting forth the results of the proceedings shall be made public by the CAS, unless both parties agree that they should remain confidential. A copy of the award is notified to FIFA if the latter is not a party to the proceedings.
In case of discrepancy between the present document and the Code, the provisions of the Code shall prevail.
Tribunal Arbitral du Sport Court of Arbitration for Sport
Schedule of arbitration costs in force as of 1 January 2019 (extract)
Administrative costs
The CAS fixes the administrative costs for each case of arbitration subject to Article R64 of the Code in accordance with the table below, or at its discretion when the amount disputed is not declared or there is no value in dispute. The value in dispute taken into consideration is the one indicated in the statement of claim/appeal brief or in the counterclaim, if any, if it is higher. If the circumstances of a given case make this necessary, the CAS may fix administrative costs at an amount above or below that shown on the table below.
For a disputed sum
(in Swiss francs) Administrative costs
up to 50'000 CHF 100.- to CHF 2'000.-
From 50'001 to 100'000 CHF 2'000.- + 1.50% of amount in excess of 50'000.-
From 100'001 to 500'000 CHF 2'750.- + 1.00% of amount in excess of 100'000.-
From 500'001 to 1'000'000 CHF 6'750.- + 0.60% of amount in excess of 500'000.-
From 1'000'001 to 2'500'000 CHF 9'750.- + 0.30% of amount in excess of 1'000'000.-
From 2'500'001 to 5'000'000 CHF 14'250.- + 0.20% of amount in excess of 2'500'000.-
From 5'000'001 to 10'000'000 CHF 19'250.- + 0.10% of amount in excess of 5'000'000.-
Above 10'000'000 CHF 25'000.-
Arbitrators' costs and fees
The amount of fees to be paid to each arbitrator is fixed by the Secretary General of the CAS on the basis of the work provided by each arbitrator and on the basis of time reasonably devoted to their task by the members of each Panel. In principle, the following hourly fees are taken into account:
For a disputed sum
(in Swiss Francs) Fees
Up to 2'500'000 CHF 300.-
From 2'500'001 to 5'000'000 CHF 350.-
From 5'000'001 to 10'000'000 CHF 400.-
From 10'000'001 to 15'000'000 CHF 450.-
Above 15'000'000 CHF 500.-