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 7 March 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 7 March 2019,

in the following composition:

Geoff Thompson (England), Chairman

Stijn Boeykens (Belgium), member

Tomislav Kasalo (Croatia), member

Daan de Jong (The Netherlands), member

Elvis Chetty (Seychelles), 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 February 2018, Player A from Country B (hereinafter: the Claimant) and the Club C from Country D (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid from the date of signature until 31 December 2018.

2. Clause 3 of the contract established that: “En cumplimiento de los dispuesto en el título XIII, Art. 59 del Estatuto de la [FIFA], las partes se obligan a someter toda diferencia o conflicto de orden laboral, deportivo o de cualquier otra índole, a conocimiento del Tribunal de Resolución de Disputas (T.R.D.).”

Freely translated into English as follows:

“In accordance with the provisions under title XIII, Art. 59 of the [FIFA] Statutes, the parties are obliged to submit any dispute or conflict related to sporting, labour or any other matter to the Dispute Resolution Tribunal (T.R.D)”.

3. According to clause 5 of the contract, the Claimant was entitled inter alia to receive from the Respondent the amount of USD 71,500 as salary for the duration of the contract, payable in 11 equal monthly instalments of USD 6,500, each.

4. Moreover, clause 5 of the contract provided that: “Para el Campeonato Clausura 2018; en caso de que el [Demandante] logre disputar de titular el 70% de los partidos de Campeonato Apertura 2018 y en base a respectivo informe o certificación escrita de la Comisión Técnica [del Demandado]; el [Demandado] incrementará el salario del [Demandante] en USD 1,000 en cada cuota salarial para el campeonato clausura 2018.”

Freely translated into English as follows:

“For the Clausura 2018 Tournament; in case the [Claimant] played 70% of the matches of the Apertura 2018 Tournament and based on a respective report or written certification from the Technical Commission [of the Respondent]; the [Respondent] will increase the [Claimant's] salary USD 1,000 in each monthly instalment for the Clausura 2018 Tournament”.

5. Furthermore, clause 12 of the contract stipulated that: “Será causal a favor del [Demandante] para poner término anticipado al presente contrato:

a) El incumplimiento o retraso del [Demandado] en la cancelación de sueldos y primas al [Demandante], por 90 días posteriores al plazo o día previsto para el pago.”

Freely translated into English as follows:

“It shall be a cause in favor of the [Claimant] to terminate the contract early:

a) Failure or delay of the [Respondent] in the payment of salaries and bonuses to the [Claimant], for 90 days after the deadline or day provided for payment.“.

6. On the same date i.e. 15 February 2018, the Claimant and the Respondent signed a document, with the logo and letterhead of the Football Federation of Country D, titled “Contrato Deportivo de Trabajo de Futbolistas Profesionales del Pays D” (hereinafter: the Football Federation of Country D contract), valid from the date of signature until 31 December 2018, which was registered in the Federation of Country D.

7. Clause 8 of the Football Federation of Country D contract established that: “En caso de controversias contractuales respecto al presente contrato, ambas partes aceptan someterse a lo que determine el Tribunal de Resolución de Disputas (TRD) en consecuencia; las partes, renuncian expresamente a trasladar la controversia a la jurisdicción que no sea la deportiva. Las Resoluciones de la T.R.D. pueden ser objeto, en última instancia, de un recurso de Apelación o Casación ante la instancia superior de arbitraje reconocida por la Federación de Fútbol del país D, en ausencia de tal instancia y durante una fase transitoria, ante cualquier instancia de arbitraje reconocida por la FIFA y de acuerdo con FIFpro.”

Freely translated into English as follows:

“In the event of contractual disputes with respect to this contract, both parties agree to submit to whatever the Dispute Resolution Tribunal (TRD) determines accordingly; the parties expressly waive the possibility of transferring the dispute to any jurisdiction other than the sports jurisdiction. The decisions of the T.R.D. may, in the final instance, be the subject of an Appeal or Cassation before the higher arbitration instance recognised by the Football Federation of Country D, in the absence of such an instance and during a transitional phase, before any arbitration instance recognised by FIFA and in accordance with FIFpro.”.

8. On 19 February 2018, the Claimant and the Respondent signed a document titled “Adendum a Contrato de Trabajo Jugador A” (hereinafter: the annexe to the contract), according to which the Claimant was entitled inter alia to receive 1 international flight ticket for him and 1 for his wife.

9. On 15 May 2018, the Claimant put the Respondent in default in writing, requesting the partially paid outstanding salary of February 2018, and the complete outstanding salaries of March, April and May 2018, as well as the reimbursement of a flight ticket, establishing a deadline to the Respondent of 10 days for payment, stating that otherwise he would terminate the contract.

10. On 25 May 2018, the Claimant put the Respondent in default in writing, requesting the partially paid outstanding salary of February 2018, and the complete outstanding salaries of March, April and May 2018, as well as the reimbursement of a flight ticket, setting a time limit to the club, expiring on 30 May 2018 in order to remedy the default, stating that otherwise he would terminate the contract.

11. Subsequently, by means of a letter dated 1 June 2018, the Claimant unilaterally terminated the employment relationship, stressing that he had just cause to terminate the contract since the Respondent failed to pay him the amounts requested in the default letters dated 15 May 2018 and 25 May 2018.

12. On 14 June 2018, the Claimant lodged a claim against the Respondent before FIFA, requesting the total amount of USD 122,436.66, plus interest. The Claimant broke down the amount as follows:

- USD 24,936.66 as outstanding remuneration:

i. USD 23,725 corresponding to the partially paid outstanding salary of February 2018, and the complete outstanding salaries of March, April and May 2018, plus interest of 5% p.a. as of the due dates; and

ii. USD 1,211.66 corresponding to the reimbursement of the flight ticket of his wife, plus interest as of the due date.

- USD 52,500 as compensation for breach of contract, plus interest as of the date the contract was terminated i.e. 1 June 2018, corresponding to the salaries for the time frame as from June 2018 until December 2018.

- USD 45,000 as additional compensation for specificity of the sport.

Additionally, the player requested the amount of EUR 5,000 corresponding to legal costs.

As to the competence of the Dispute Resolution Chamber

13. 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 3 of the contract as well as clause 8 of the Football Federation of Country D contract, the Respondent argued that the only competent body to decide upon a dispute involving the parties is the Dispute Resolution Tribunal (T.R.D.) of the Football Federation of Country D (hereinafter: the TRD of the Football Federation of Country D).

14. In this respect, the Respondent provided a copy of the Statutes of the Football Federation of Country D, as well as copy of the National Transfer Regulations (hereinafter: the Football Federation of Country D Regulations). In so doing, the club referred to art. 58 of the Football Federation of Country D Regulations. Said article reads as follows: Art. 58 “El Tribunal de Resolución de Disputas es la única instancia para considerar y resolver los conflictos derivados de la interpretación, aplicación y cumplimiento de los contratos deportivos suscritos entre un club y un jugador. No tiene competencia en hechos relacionados con faltas deportivas, técnicas, o infracciones a las reglas del juego.”

Freely translated into English as follows:

Art. 58 “The [TRD of the Football Federation of Country D] is the only instance to consider and resolve conflicts arising from the interpretation, implementation and enforcement of sports contracts signed between a club and a player. It does not have competence in facts related to sports fauls, techniques, or infractions to the rules of the game.”.

15. Art. 60 of the Football Federation of Country D Regulations provides that: “El Tribunal de Resolución de Disputas, está constituido por cinco miembros:

a) Dos miembros designados por el Comité Ejecutivo de la Federación de Fútbol del país D;

b) Dos miembros designados por la dirigencia de los jugadores de fútbol a nivel nacional, y designados por el Comité Ejecutivo de la Federación de Fútbol del país D;

c) Un Presidente designado por el Comité Ejecutivo de la Federación de Fútbol del país D, en consenso con la dirigencia de jugadores a nivel nacional, quien dirimirá las decisiones únicamente en casos de empate.”

Freely translated into English as follows:

“The [TRD of the Football Federation of Country D] is constituted by five members:

a) Two members appointed by the Executive Committee of the Football Federation of Country D;

b) Two members appointed by the national football players’ union and appointed by the Football Federation of Country D Executive Committee;

d) A President appointed by the Football Federation of Country D Executive Committee, in consensus with the national football players' union, who will decide on decisions only in cases of a tie.”.

16. On the other hand, the Claimant insisted on the competence of FIFA and held that the contract “clearly refers to the FIFA Dispute Resolution Chamber in its designation in Spanish and not to the on allegedly implemented by the [Football Federation of Country D]”. In addition to that, the Claimant argued that the Respondent failed to prove that the TRD of the Football Federation of Country D complies with the requirements established by FIFA, as it “not even filled the regulations of said tribunal allegedly in force”.

As to the substance

17. In his claim, the Claimant stated that the Respondent’s failure regarding its contractual obligations towards him began since the first month of the employment relationship, and continued until he terminated the contract. In this regard, the Claimant sustained that on March 2018, he was paid USD 975 out of USD 6,500, corresponding to February’s salary.

18. Subsequently, the Claimant held that in February 2018, the Respondent did not reimburse the amount of USD 1,211.66 corresponding to the costs he had to incur for the flight ticket of his wife, as it was contractually agreed in the annexe of the contract.

19. In this respect, the Claimant alleged that after the non-fulfillment of the Respondent’s obligations towards him continued during the months of March and April 2018, on 15 May 2018 he sent the club default notices.

20. In this context, according to the Claimant on 20 May 2018, the Respondent paid him the amount of USD 1,300 corresponding to the partially paid monthly instalment of February 2018. Nevertheless, the Claimant emphasized that at that moment he was still owed the following amounts:

- USD 4,225 corresponding to the partially paid outstanding salary of February 2018;

- USD 19,500 corresponding to the complete outstanding salaries of March, April and May 2018; and

- USD 1,211.66 corresponding to the reimbursement of the flight ticket of his wife.

21. Furthermore, the Claimant recalled clause 5 of the contract and sustained that he played in 9 out of the 12 matches that the Respondent played during the period between 15 February 2018 and mid-May 2018, therefore, according to the Claimant, the compensation shall be calculated taking into account the increase of USD 1,000 mentioned in the aforementioned clause. In this regard, the Claimant argued that he did not took into account for the calculation the match played on 17 February 2018, as he had just signed the contract two days earlier.

22. In spite of having been invited to do so, the Respondent did present comments as to the substance of the claim.

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 14 June 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 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; hereinafter; the Regulations), 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 from Coutnry D.

3. However, the Chamber acknowledged that the Respondent claimed that not FIFA but the TRD of the Football Federation of Country D was competent to deal with the present matter. In particular, the DRC took note that the Respondent argued that the parties voluntarily agreed on clause 3 of the contract and clause 8 of the Football Federation of Country D contract, respectively, that, for every employment-related dispute regarding the contracts are subject to the exclusive jurisdiction of the TRD of the Football Federation of Country D.

4. In this regard, the members of the DRC observed that the Claimant insisted that FIFA was competent to decide on the present issue as the Claimant held that the clause 3 of the contract “clearly refers to the FIFA [DRC] in its designation in Spanish and not to the one allegedly implemented by the [Football Federation of Country D]”.

5. Moreover, the DRC duly noted that the Claimant alleged that the Respondent did not prove that the TRD of the Football Federation of Country D does comply with the requirements established by FIFA as according to the Claimant, the Respondent failed to enclose the relevant regulations that could prove that. Moreover, the DRC noted that the Claimant did not made any comment regarding the Football Federation of Country D contract.

6. On that basis, the members of the Chamber started by acknowledging that, despite being entitled to seek redress before an ordinary national court of law, the parties did not dispute that the matter at hand was brought to an alternative dispute resolution process within football.

7. Taking into account the above, the DRC emphasised that it was necessary to ascertain who is competent to decide on the issue within the football related dispute resolution system. In other words, the competence of a national deciding body on the one side and FIFA on the other must be determined.

8. In view of the above, the Chamber proceeded with an analysis of the relevant documents on file.

9. After a careful examination of the contract and the Football Federation of Country D contract, the members of the DRC considered it of utmost importance to highlight that the contract and the Football Federation of Country D contract which are at the basis of the dispute at stake, contain an arbitration clause in the event of a dispute between the parties. In particular, clause 3 and clause 8 of the contract and the Football Federation of Country D contract, respectively, make reference to the relevant arbitration body that would be competent in the event of a dispute between the parties, i.e. “Cláusula 3: En cumplimiento de los dispuesto en el título XIII, Art. 59 del Estatuto de la [FIFA], las partes se obligan a someter toda diferencia o conflicto de orden laboral, deportivo o de cualquier otra índole, a conocimiento del Tribunal de Resolución de Disputas (T.R.D.).”

Freely translated into English as follows:

“Clause 3: In accordance with the provisions under title XIII, Art. 59 of the [FIFA] Statutes, the parties are obliged to submit any dispute or conflict related to sporting, labour or any other matter to the Dispute Resolution Tribunal (T.R.D)”; and

“Cláusula 8: En caso de controversias contractuales respecto al presente contrato, ambas partes aceptan someterse a lo que determine el Tribunal de Resolución de Disputas (TRD) en consecuencia; las partes, renuncian expresamente a trasladar la controversia a la jurisdicción que no sea la deportiva. Las Resoluciones de la T.R.D. pueden ser objeto, en última instancia, de un recurso de Apelación o Casación ante la instancia superior de arbitraje reconocida por la Federación de Fútbol del país D, en ausencia de tal instancia y durante una fase transitoria, ante cualquier instancia de arbitraje reconocida por la FIFA y de acuerdo con FIFpro.”

Freely translated into English as follows:

“Clause 8: In the event of contractual disputes with respect to this contract, both parties agree to submit to whatever the Dispute Resolution Tribunal (TRD) determines accordingly; the parties expressly waive the possibility of transferring the dispute to any jurisdiction other than the sports jurisdiction. The decisions of the T.R.D. may, in the final instance, be the subject of an Appeal or Cassation before the higher arbitration instance recognised by the Football Federation of Country D, in the absence of such an instance and during a transitional phase, before any arbitration instance recognised by FIFA and in accordance with FIFpro.”.

10. To that end, the members of the DRC considered that the contract and the Football Federation of Country D contract are complementary and, therefore, the fact that the Football Federation of Country D contract stipulated that “…the decisions of the T.R.D. may, in the final instance, be subject to of an Appeal or Cassation before the higher arbitration instance recognized by the Football Federation of Country D ….” made the DRC conclude that the dispute resolution body established on clause 3 of the contract and clause 8 of the Football Federation of Country D contract i.e. the TRD, referred to the dispute resolution body that is within the framework of the Football Federation of Country D i.e. the TRD of the Football Federation of Country D.

11. Furthermore, the members of the Chamber determined that the argumentation of the Claimant regarding the alleged designation in Spanish of the DRC i.e. “clearly refers to the FIFA [DRC] in its designation in Spanish and not to the one allegedly implemented by the [Football Federation of Country D]”, cannot be followed as it was concluded that the parties clearly agreed on the dispute resolution body under the Football Federation of Country D, apart from the facts that neither clause 3 of the contract, nor clause 8 of the Football Federation of Country D contract mention FIFA and the name of the DRC in Spanish is not “Tribunal de Resolución de Disputas”.

12. With those considerations in mind, the Chamber referred to art. 22 b) of the Regulations, according to which it is competent to deal with a matter such as the one at hand unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the Association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC recalled FIFA’s circular no. 1010 dated 20 December 2005, as well as the principles established in the National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

13. In this regard, the Chamber referred to the decisions passed by the Dispute Resolution Chamber on 15 May 2009 and 24 April 2015, respectively, by means of which the DRC concluded that the TRD of the Football Federation of Country D established within the scope of the Football Federation of Country D, complies with the requirements established in art. 22 b) lit. b) of the Regulations and in the aforementioned FIFA’s circular no. 1010.

14. In continuation, the DRC went on to examine the documentary evidence presented by the Respondent, i.e. a copy the Statutes of the Statutes of the Football Federation of Country D, as well as a copy of the Football Federation of Country D Regulations.

15. In this respect, the members of the Chamber recalled that according to the Football Federation of Country D Statutes “El Tribunal de Resolución de Disputas es la única instancia para considerar y resolver los conflictos derivados de la interpretación, aplicación y cumplimiento de los contratos deportivos suscritos entre un club y un jugador. No tiene competencia en hechos relacionados con faltas deportivas, técnicas, o infracciones a las reglas del juego.”

Freely translated into English as follows:

“The [TRD of the Football Federation of Country D] is the only instance to consider and resolve conflicts arising from the interpretation, implementation and enforcement of sports contracts signed between a club and a player. It does not have competence in facts related to sports fauls, techniques, or infractions to the rules of the game.”.

16. Furthermore, and referring to the composition of the TRD of the Football Federation of Country D, the DRC noted that in accordance with art. 60 of the Football Federation of Country D Regulations, the TRD of the Football Federation of Country D is composed by four members, which are nominated as follows: a) a President appointed by the Football Federation of Country D Executive Committee in consensus with the national football players’ union; b) two clubs’ representatives appointed by the Executive Committee of the Football Federation of Country D; and c) two players’ representatives designated by the national football players’ union, i.e. parity when constituting the arbitration tribunal.

17. Consequently, and taking into consideration the entire structure, the entire structure and functioning of the TRD of the Football Federation of Country D as set out in the Football Federation of Country D Statutes and the Football Federation of Country D Regulations, as well as considering the above-mentioned decisions passed by the DRC on 15 May 2009 and 24 April 2015, the Chamber deemed that the Respondent was able to prove that the TRD of the Football Federation of Country D meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 b) of the Regulations and in FIFA Circular no. 1010.

18. At the same time, the members of Chamber were eager to emphasise that the argumentation of the Claimant that the Respondent “not even filled the regulations of said tribunal, cannot be sustained since the Respondent provided the relevant documentation.

19. On account of the facts that a) the contracts at the basis of the matter at stake, i.e. the contract and the Football Federation of Country D contract, contain a clear jurisdiction clause; b) the relevant deciding body meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations and in FIFA Circular no. 1010; and c) the DRC took into consideration the decision dated 15 May 2009 and 24 April 2015, the Chamber concluded that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be accepted and that the DRC is not competent, on the basis of art. 22 lit. b) of the Regulation, to consider the present matter as to the substance.

*****

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

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