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 3 October 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 3 October 2019, in the following composition:

Geoff Thompson (England), Chairman

Stéphane Burchkalter (France) member, Tomis lav Kas alo (Croatia) member,

Philippe Diallo (France) member,

Jérôme Perlemuter (France) member,

on the matter between the player,

Danny (Nguy en) v an Bakel, Netherlands & Vietnam Represented by Mr Robert Postma

as Claimant

and the club,

FLC Thanh Hoa, Vietnam

as Respondent

regarding an employment-related dispute arisen between the parties

I. Facts of the case

1. On 11 December 2015, the Claimant concluded an employment contract (hereinafter: the contract) with the Respondent, valid as from 11 December 2015 to 1 September 2018.

2. The contract designated the Claimant as follows:

“Party B: Mr. Danny Van Bakel (…)

Nationality: Neitherlands” (sic)

3. On 29 January 2016, the parties concluded an annex to the contract (hereinafter: the annex), according to which the player was entitled, inter alia, to a monthly salary in the amount of USD 10,000.

4. In addition, the player was also entitled to the following:

“Before the beginning of the 2017 V-League season, the Club shall pay the Player 75,000 USD (Seventy five thousand US Dollars.

[…]

Before the beginning of the 2018 V- League season, the Club shall pay the Player 75,000 USD (Seventy five thousand US Dollars).”

5. Furthermore, in art. 2.2 lit. l) of the contract the parties stipulated that “in case for any reason the Player does not maintain the level of playing skillfulness and/ or physical conditions at the satisfaction of the Club, the Club on the sole basis of the opinion of the Club’s Professional Council and Training Board has the right to unilaterally reduce the salary, the bonus and other compliments or terminate this Contract without having to compensate the Player for such early contract termination."

6. In addition, the parties agreed in art. 2.1. lit. c that “during the time that the Club donot [sic] play, the Player is only entitled to receive monthly salary at the level of 50% the month salary stipulated at this Article”.

7. Moreover, in accordance with art. 6 of the contract for “any dispute and/or difference may arise between the Player and the Club during effectiveness of this Contract, will be settled by discussion or mutual reconciliation. In the case of any failure to resolve the dispute and/ or difference within 15 (fifteen) days, the Parties have the rights to put forward the dispute to the VFF for settlement. In the case that VFF cannot settle the dispute of the two Parties, the two Parties have the rights to put forward to FIFA, the decision of the FIFA shall be the final and binding.”

8. Finally, in art. 7 of the contract the parties agreed that “Labour issues and specific issues of football sport in relations to the Club and the Player that are not specified under this Contract shall be applied in the following order of priorities: legal regulation, rules of VFF, rules of FIFA and Rules and Regulation of the Club.”

9. On 2 March 2018, the player put the club in default for the outstanding remuneration in the amount of USD 45,000, corresponding to the remainder of the salaries of August and September 2016 in the amount of USD 7,500 and the sign on fee in the amount of USD 37,500.

10. On 26 April 2018, the player sent another default notice requesting again the payment of USD 45,000.

11. On 18 July 2018, the player sent a final default notice for the outstanding remuneration in the amount of USD 15,000, corresponding to the remainder of the salary of September 2016 in the amount of USD 4,000, the Salary of October 2016 in the amount of USD 10,000 and a part of the salary of November in the amount of USD 1,000.

12. On 7 August 2018, the player lodged a claim against the club in front of FIFA requesting the club to pay USD 15,000, detailed as follows, plus 5% interest p.a.:

I. USD 4,000, for the remaining part of September 2016;

II. USD 10,000, for the entire month of October 2016;

III. USD 1,000, for the remaining part of November 2016.

13. Furthermore, the player requested that “the Club will pay to the Player all additional costs, such as costs of the proceedings and legal costs as made by the Player” and to impose sporting sanctions against the club.

14. In his claim, the player deemed that the club failed to pay part of his salary for September and November 2016 and his full salary of October 2016.

15. In its reply, the club preliminarily rejected FIFA’s competence to deal with this matter.

16. In this regard, the club argued that in accordance with art. 6 of the contract the VFF is competent to deal with this matter and that the “VFF has not proceed and accepted any request or statement of claim yet related to the dispute arising out of the Labor Contract between the Club and the Player. In consequence, FIFA DRC shall not have jurisdiction on dispute resolution with respect to this case.”

17. Furthermore, the club deemed that according to article 64 of the Vietnam Professional Football Regulations “VFF receives and assigns its functional department on dispute resolution; player status, coach status; dispute arising out of labor contract between players or coaches and clubs which is a member of VFF; disputes between players, affiliated club and representative of players.”

18. In addition, the club argued that “the player is Vietnamese citizen with nationality of Vietnam […], he plays as a professional football in Vietnam; therefore, his rights and obligations shall be governed in accordance with the law of Vietnam and Vietnam Professional Football Regulations.”

19. Consequently, the club deemed that as “the player has nationality of Vietnam, the dispute, thus, shall not be a dispute of international football.”

20. As to the substance, the club rejected the arguments of the player and argued that in accordance with art. 2.2 lit. l of the contract, the club was entitled to reduce the player’s salary due to the player not meeting “the effectiveness and requirements of the Training Board”.

21. Furthermore, the club pointed out that “the club has not exercised and played during the time from September 19, 2016 to October 21, 2016 […]. This Decision was issued and disseminated to the whole team, the Training Board before implementation. In consequence, during the time of from September 19, 2016 to October 21, 2016, the Player shall be only entitled to receive a half of monthly salary and shall not be entitled to receive fully payment of monthly salary in accordance with the Labor Contract.”

22. In addition, according to the club “the player had discretely abandoned in the Club during the period from October 22, 2016 to November 03, 2016 without any notification to the Club and/ or any competent member or individual of the Club”.

23. Finally, the club pointed out that “in order to support the Player, the Club has decided not to pay only the wages in October 2016 (USD 10,000) and 03 days in November 2016 (i.e., November 01, 02 and 03, 2016, equivalent to USD 1,000). The Club still paid full salary in November 2016 for the time where the Player has practically trained and player in the Club (from November 04, 2016 to November 11, 2016, equivalent to USD 9,000)”.

24. In his replica, the player first argued that “article 6 of the Employment Contract clearly does not refer to a national dispute resolution chamber or any similar arbitration body in the sense of Article 22 lt. b of the FIFA RSTP.”

25. Furthermore, the player deemed that Article 64 of the Vietnam Professional Football Regulations “clearly does not refer to a national dispute resolution chamber or any similar arbitration body in the sense of Article 22 lt. b of the FIFA RSTP”.

26. Moreover, the player did confirm to have a dual nationality, i.e. the Dutch and Vietnamese nationality, however, “the moment to analyse the national or international nature of the dispute, is the moment when the event occurs giving rise to the dispute. […] In other words, the only relevant nationality of the Claimant is the one at the moment the non-payment occurred in order to establish whether the FIFA DRC is competent to hear this employment –related dispute of an international dimension […]. At that specific moment the Claimant only had the Dutch nationality.”

27. As to the substance, the player rejected the club’s arguments regarding the deduction of his salary based on article 2.2 of the contract. In particular, the player highlighted that it “is incorrect as these kind of clauses, which have a potestative nature and are fully to discretion of the club, limits the rights of the Player in an excessive manner and lead to an unjustified disadvantage of the Club towards the Player.”

28. Furthermore, the player emphasized “that it is not relevant whether the Labor Law in Vietnam, speaks in favor of the Respondent. In fact, the well-established jurisprudence explicitly shows that FIFA’s regulations prevail over any national law chosen by the parties even if a party claims national law is applicable to the case.”

29. Moreover, the player rejected the club’s claim that he “violated Respondent’s discipline”. According to the player, “the (local) players were called 23th October 2016 not the 22th. It is incorrect that the Claimant had to train the 22th October. The Claimant was allowed to return on the 25th October, but unfortunately the Claimant has no proof of the agreement. It is common to agree this orally with the coaches. In Vietnam Football, at Thanh Hoa, it is usual that foreign player return a bit later then other ´local´ players. This was exactly the same in 2014 and 2015 seasons.”

30. In addition, the player deemed that “the Respondent was well aware of the physical conditions of the Claimant […] and concluded this also at the start of pre-season […]. During the period of 19 September till 3 November 2016 the Claimant used these days to fly to Europe to visit a specialized sports doctor and thus to recover from his physical pains and illness […]. The Claimant visited this doctor (and other physiotherapists) several times, to examine and diagnose him.” In this respect, the player stressed that he informed the club about this.

31. Consequently, the player argued that the “Respondent was very aware of the physical situation of the Claimant. The Claimant never discretely abandoned the club without any notification, as he notified Respondent in detail about his illness, doctors’ visits, diagnoses, treatment and recovery day by day.”

32. In its duplica, the club repeated its arguments regarding the competence of FIFA. In particular that “the Player had voluntarily agreed to participate in professional football activities in Vietnam by entering into Labour Contract form December 01, 2015 and participating in professional football tournaments in the 2016 and 2017 seasons. Therefore, the football dispute arising out of in the professional football sport aspect to which the Player and the Club associated must be settled in compliance with the Professional Football Regulation of Vietnam.”

33. As to the substance, the club pointed out that “the player’s arguments disacknowleges agreement on salary as agreed by the parties under the Labour Contract and is not valid.” In particular “the laws always have the tasks of protecting the legal rights and interest of individual and organizations whom are a side of a civil relation, as well as the laws also maintain the fairness, so, unless agreed otherwise under Labour Contract, due to the status of non-training, non-maintaining physical condition, non-playing skillfulness and do anything, the Player cannot require the Club to pay in full his salary under the Labour Contract.”

34. Furthermore, the club argued that it is not true that foreign players are allowed to join up with the team later than local players, as the club “does not have any unfair treatment, inequality between local players and foreign player.”

35. In addition, the club stressed that it “did not receive any documents and dossiers as presented by the Player” and that “such dossiers and documents are signed by individual, the Player and they are not certified or proved as being legal documents in the civil dispute resolution proceedings and moreover it is hard to determine the date of signing of those documents.”

36. Consequently, the club requested FIFA to “reject whole requests of the Player pursuant to his statement of claims”.

37. Upon FIFA’s request, the Vietnamese Football Federation confirmed that, on the date of his claim, the player was registered with the Respondent under the Vietnamese nationality.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed whether it was competent to deal with the matter at stake. In this respect, it took note that the present matter was submitted to FIFA on 7 August 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 (editions 2018 and 2019), the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs.

3. In continuation, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable to the present matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2018 and 2019), and considering that the Claimant’s claim was lodged on 7 August 2018, the June 2018 edition of the aforementioned regulations (hereinafter; the Regulations) is applicable to the matter at hand.

4. However, before entering the substance of the matter, the Chamber noted that the club objected to the admissibility of the player’s claim, based on clause 6 of the contract and the fact that the player had the Vietnamese nationality, thus the dispute being of a national dimension. The Chamber further noted that the player insists on FIFA’s competence to decide on the matter, due to the fact that clause 6 of the contract is not an exclusive arbitration clause and that he had the Dutch nationality when the breach occurred, i.e. when the amounts requested fell due.

5. Having considered the argumentation of the player and of the club, the DRC first deemed it appropriate to remind the parties of the exact wording of art. 22 lit. b) of the Regulations: “Art. 22 Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent to hear: […] b) employment-related disputes between a club and a player of an international dimension; the aforementioned parties may, however, explicitly opt in writing for such disputes to be decided by an independent arbitration tribunal that has been established at national level within the framework of the association and/or a collective bargaining agreement. Any such arbitration clause must be included either directly in the contract or in a collective bargaining agreement applicable on the parties. The independent national arbitration tribunal must guarantee fair proceedings and respect the principle of equal representation of players and clubs […]”. (emphasis added).

6. Bearing in mind the wording of the previous article, the DRC emphasised that the scope of its competence is given by the Regulations and only disputes of an international dimension can be heard by the Chamber, unless the parties explicitly stipulate otherwise in writing and a NDRC filling all the necessary specific pre- requisites is in place. In accordance with the aforementioned article, the analysis of the different nationalities of the parties comes before the analysis of the presence or not of a clear and exclusive jurisdiction clause in the contract and of the existence of an established NDRC.

7. After a thorough analysis of the documentation on file, the Chamber noted that the player requests outstanding remuneration for the period comprised between September 2016 and November 2016. Furthermore, the DRC noted that the Vietnamese FA confirmed that the player was registered with the club from 2016 to 2018 as Vietnamese.

8. Furthermore, the Chamber noted that at the moment the claim was lodged in front of FIFA – 7 August 2018 –, which is the moment the player sought legal redress of his contractual claims, he was registered with the Vietnamese FA as Vietnamese.

9. Based on the foregoing, and bearing in mind the content of art. 22 lit. b) of the Regulations, the Chamber concluded that there is no international dimension to the present matter and therefore the claim of the player is inadmissible.

***

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Danny (Nguyen) van Bakel, is inadmissible.

*****

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 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. 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:

Emilio García Silvero

Chief Legal & Compliance Officer