F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 12 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 12 February 2020,

in the following composition:

Johan van Gaalen (South Africa), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Marco Rossi, Italy,

represented by PFA

as Claimant

against the club,

Wellington Phoenix FC, New Zealand

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 8 August 2016, the Italian player, Marco Rossi (hereinafter: Claimant) concluded an employment contract (hereinafter: the contract) with the New Zealander club, Wellington Phoenix FC (hereinafter: Respondent), valid as from 18 July 2016 until 31 May 2018.

2. In accordance with clause 1.1 of the contract, the Claimant was entitled to a monthly salary of New Zealand Dollar (NZD) 27,500 “Gross” (approx. USD 16,562).

3. Clause 1.9.4 of contract stipulated that “should the [Claimant] start in 18 or more A-League matches in the 2017/2018 Season, the parties agree that the End Date of the Term […] shall be automatically be extended to 31 May 2019”.

4. Pursuant to clause 2.2. of the contract, the “FFA, the [Respondent] and [the Claimant] agree to be bound and comply with the [Collective Bargaining Agreement]”.

5. On 12 March 2019, the Claimant lodged a claim against the Respondent for breach of contract, requesting NZD 221,002 “as compensation for the [Respondent’s] unilateral breach of the contract”, as well as interests on said amount “at the prevailing rate awarded by the DRC”.

6. The Claimant further requested the imposition of sporting sanctions on the Respondent.

7. In his claim, the Claimant referred to extension clause enshrined clause 1.9.4 of the contract and explained that the Respondent did not extend the contract. In this context, the Claimant deemed that the only reason why the contract extension option was not triggered was because the Respondent did not want this to happen.

8. As per the Claimant, despite him being an important member of the team, the Respondent did not field him after having started 14 games prior to 2 February 2018. According to the Claimant, the Respondent tried to have him sign a new employment contract without the extension-clause. However, the Claimant stated that he refused to sign such a contract. Furthermore, the Claimant argued that after his refusal to sign a new contract, he made only one more appearance in the final game of the season.

9. Consequently, the Claimant argued that the Respondent breached the contract, by failing to act in good faith and the Respondent’s “abusive conduct towards the [Claimant] which was aimed at forcing him to change the terms of the Contract”.

10. In reply to the Claimant’s claim, the Respondent firstly rejected FIFA’s competence in this matter and argued that the NDRC of Australia is competent. In this light, the Respondent was of the firm opinion that due to the validity of the collective bargaining agreement (CBA) and its reference to the Australian NDRC and due to the fact that an existing independent tribunal is “set up under the CBA”, the jurisdiction should be with said NDRC.

11. Moreover, the Respondent argued that the Claimant had already submitted that case to the Australian NDRC providing several emails between the representative of the Claimant and the NDRC Administrator, including one sent on 14 January 2019. Furthermore, as per the Respondent, after the NDRC Administrator confirmed the appointed Arbitrator on 25 February 2019, the Claimant withdrew the claim on 12 March 2019, due to the duration of the proceeding.

12. Consequently, the Respondent argued that the Claimant acknowledged the competence of the Australian NDRC, but decided to submit the case before FIFA after being frustrated with the duration of the proceeding.

13. Consequently, as per the Respondent, due to the fact that there is a valid CBA with a jurisdiction in favor of the Australian NDRC, the fact that the Claimant initially accepted the jurisdiction of the NDRC, and his failed attempt to “forum shopping”, the claim shall be inadmissible.

14. With regards to the substance of the matter, the Respondent rejected the Claimant’s arguments and deemed that at no point did it breach the contract. Moreover, the Respondent claimed that on 29 August 2017, the Claimant asked the Respondent’s head coach to find a way for him to leave the club.

15. In continuation, the Respondent maintained that it did not want to release the Claimant, but realized that the Claimant was unhappy. Therefore, the Respondent argued, it offered the Claimant a new contract without the automatic contract extension, which the Claimant refused.

16. Moreover, the Respondent argued that it did not exclude the Claimant from playing due to the extension clause, but rather because the Claimant was injured for several games. In particular, the Respondent held that the Claimant was injured as from 2 February 2018 returning to full training on 24 March 2018. Furthermore, according to the Respondent, when he was fit to play, the coach did not field him due to form and attitude.

17. Consequently the Respondent concluded that the Claimant’s arguments that “he has suffered loss because the [Respondent] abused its power in refusing to select him” are not true.

18. On 21 September 2018, the Claimant signed an employment contract with the Italian club Robur Siena Football Club, valid as from 1 September 2018 to 30 June 2019. According to the new employment contract the player was, inter alia, entitled to, inter alia, the following:

a) EUR 62,000 “Gross” for the 2018/2019 season;

b) EUR 7,000 “max as travel allowance”.

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 12 March 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

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 par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players 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 an Italian player and a New Zealander club.

3. In this respect, the Chamber was firstly eager to emphasize that the Deputy Chairman Omar Ongaro refrained from participating in the deliberations in the case at hand, due to the fact that Omar Ongaro has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, the Dispute Resolution Chamber adjudicated the case in presence of two members in accordance with art. 24 par. 2 of the Regulations.

4. In continuation, the Chamber deemed it, however, of utmost importance to consider the following chronological crucial facts which are at the basis of the specific litigation at hand.

5. In this regard, the members of the Chamber took note that, according to the documentation on file, on 14 January 2019 the Claimant submitted the case to the Australian NDRC.

6. Thereafter, the Chamber observed that, on 12 March 2019, the Claimant withdrew his claim in front of the Australian NDRC due to the duration of the proceeding.

7. In this context, the Chamber wished to point out that if a party chooses to pursue the defence of his/its rights at national level and in accordance with contractual provisions, he/it should proceed that way until the end. Thus, the DRC highlighted that by lodging a claim at the Australian NDRC, the Claimant accepted the competence of said NDRC.

8. Therefore, the DRC was of the opinion that the Claimant should have proceeded further with the relevant arbitral body of Australia as to its request for compensation from the Respondent, insofar as it was given the opportunity to do so by the NDRC of Australia. The Chamber equally established that, according to the information on file, the Australian NDRC did provide the Claimant the opportunity to request compensation from the Respondent.

9. Finally, the Chamber deemed it important to underline that the practice consisting in having a case heard by another decision-making body with the aim to get the most favourable judgment, known as “forum shopping”, cannot be upheld by the Chamber.

10. Taking into account all the foregoing considerations, the Chamber concluded that it was not competent to deal with the claim lodged by the Claimant in front of FIFA. As a consequence, the claim of the Claimant is inadmissible.

III. Decision of the Dispute Resolution Chamber

The claim of the Claimant, Marco Rossi, is not admissible.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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.

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:

Emilio García Silvero

Chief Legal & Compliance Officer