F.I.F.A. – Camera di Risoluzione delle Controversie (2014-2015) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2014-2015) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, 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

F.I.F.A. - Camera di Risoluzione delle Controversie (2014-2015) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2014-2015) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber (DRC) judge passed in Zurich, Switzerland, on 12 May 2015, by Theo van Seggelen (Netherlands), DRC judge, 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 31 January 2011, the player from country B, Player A (hereinafter: the Claimant) and the club from country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract), valid as of 1 February 2011 until 30 June 2014. 2. Pursuant to the contract, the Claimant was entitled to receive a total amount of EUR 972,000 net (i.e. EUR 1,157,143 gross), payable as follows: - EUR 75,000 net as sign-on fee payable within 10 working days of the signature of the contract; - From 1 February 2011 until 30 June 2012: EUR 357,000 net payable in 17 equal monthly installments of EUR 21,000 each; - From 1 July 2012 until 30 June 2013: EUR 264,000 net payable in 12 equal monthly installments of EUR 22,000 each; - From 1 July 2013 until 30 June 2014: EUR 276,000 net payable in 12 equal monthly installments of EUR 23,000 each. 3. Art. XII of the contract further stipulates that “any dispute between the Parties arising from or in connection with this Agreement including its validity, interpretation, execution or termination, shall be settled amiably. Unless the Parties shall reach an amiable resolution then any such dispute shall be submitted to the competent bodies of the Football Association of country D and the Professional Football League with respect of the legislation of country D and DRCFIFA”. 4. On 1 September 2013, the Respondent acknowledged that an amount of EUR 78,000 (hereinafter: the acknowledgment of debt) corresponding to several monthly installments, bonuses and other compensations due under the contract, would be paid to the Claimant until 30 October 2013. 5. On 2 September 2013, the Respondent, the Claimant and Club E (hereinafter: Club E) concluded an agreement for the definitive, free of charge, transfer of the Claimant. In particular, art. 3.1 lit. c of said agreement states that “[the Respondent] and [the Claimant] are aware that after the signing of this transfer agreement any mutual obligations cease (in the case of a permanent transfer), except any obligations provided herein”. 6. On 3 February 2014, the Claimant put the Respondent in default of paying him the amount of EUR 78,000 by 7 February 2014. 7. On 12 March 2014, the Claimant lodged a claim against the Respondent in front of FIFA, requesting to be awarded with the amount of EUR 78,000, plus 5% interest p.a. as of 31 October 2013, or alternatively, as of 8 February 2014. 8. In its reply to the Claimant’s claim, the Respondent first of all contestd the competence of FIFA, alleging that the DRC of the Football Federation of country D (hereinafter: the Football Federation of country D NDRC) should be the competent body to deal with the present matter. In support of its assertions, the Respondent first mentioned that until 1 February 2014, the disputes involving exclusively clubs and players participating in the “National Championship League I” fell under the jurisdiction of the DRC of the Professional Football League (hereinafter: the PFL DRC), while the other disputes were subject to the competence of the Football Federation of country D NDRC. However, the Respondent further explained that on 1 February 2014, the Football Federation of country D and the PFL agreed that as of 2 February 2014, the Football Federation of country D NDRC would be exclusively competent to deal with labour disputes, including the disputes involving clubs and players of the “National Championship League I”. In continuation, the Respondent mentioned that the Football Federation of country D NDRC is “an impartial and independent arbitration tribunal, set up according to the FIFA provisions” (art. 43 par. of the Football Federation of country D Statutes), which according to art. 26 par. 2 lit. a of the Regulations on the Status and Transfer of Players from country D (hereinafter: Regulations on the Status and Transfer of Players from country D), “has jurisdiction to settle disputes regarding: the conclusion, interpretation and performance of the contracts executed between clubs and players, as well as regarding the maintenance of contractual stability”. Regarding the principle of equal representation, the Respondent referred to the content of art. 26 par. 5 et seq. of the Regulations on the Status and Transfer of Players from country D which reads as follows: “26.5 Pursuant to the parity rules imposed by FIFA, the NDRC of the Football Federation of country D is composed of 5 members, with a four year renewable terms: a) A president elected by the representatives of the players and the clubs from a list of at least five names, drawn up by the Football Federation of country D Executive Committee; b) Two representatives of players, nominated by Football Association of country D, one of them acting as vice president of the NDRC; c) Two club representatives, nominated by the Football Federation of country D Executive Committee 26.6.1 The NDRC of the Football Federation of country D adjudicates in panels composed of at least three members, including the NDRC president and vice president, who conduct the proceedings. The panel shall always include an equal number of representatives of clubs and players”. In addition, the Respondent outlined that art. 27 et seq. of the Football Federation of country D NDRC guarantees the following rights: the right of defense, the right to heard, an equitable and fair lawsuit, the principle of equal treatment, independence and impartiality and the right to appeal. 9. As to the substance, the Respondent explained that at the beginning of the 2013- 14 season, it faced some difficulties and therefore, on 1 September 2013, it decided to inform the Claimant when his remaining dues would be paid (cf. point 4 above). In this regard, the Respondent insisted that the document is not an acknowledgement of debt but rather an information letter. In continuation, the Respondent emphasised that on 2 September 2013, Club E informed it of its intention to transfer the Claimant in order to have a competitive team to participate in the UEFA Champions League, the list of eligible players having to be submitted to UEFA on the same day. However, the Respondent maintained that due to Club E’s incapacity to afford the payment of a transfer compensation, it was agreed by means of art 3.1 lit. c of the transfer agreement that the absence of transfer compensation would be compensated by the Claimant’s waiver of his rights towards the Respondent. In particular, the Respondent stressed that the clause stipulated that “any mutual obligations cease (…) except any obligations provided herein”, and that therefore a mention of the debt would have been made in the transfer contract if the Claimant had wanted to preserve his right. Finally, the Respondent underlined that considering the Claimant’s market value, i.e. approx. EUR 2,000,000, it would have been incoherent to transfer him without receiving any advantage in exchange therefor. 10. In his replica, the Claimant asserted that the parties agreed in the contract that any dispute concerning an issue of law from country D would be submitted to NDRC of country D, while disputes related to the FIFA Regulations on the Status and Transfer of Players should be dealt with by the FIFA Dispute Resolution Chamber, both bodies being exclusively competent in their scope of jurisdiction. In this regard, the Claimant referred to a FIFA decision in which the DRC considered itself competent in the presence of a jurisdiction clause, even less “powerful” in its favour. Regarding the transfer of competence to the Football Federation of country D, the Claimant called into question the independence of the referred body. In support of his assertion, the Claimant outlined that the agreement concluded between the PFL and the Football Federation of country D states that “for these cases, the judgment activity will develop at the headquarters of the Professional Football League” and “the secretarial services of the committees will be provided by persons designated by the PFL”. 11. As far as the substance is concerned, the Claimant sustained that after the Respondent and Club E agreed on his transfer, i.e. at the end of August 2013 according to him, he requested the Respondent to prepare a document by means of which the latter would acknowledge its debt towards him. In continuation, the Claimant pointed out that the transfer contract was drafted in the language of country D, a language he barely understands, and that he was told that no provision in the contract would have an influence on his situation. Moreover, the Claimant explained that he considered that his rights were preserved by the Respondent’s letter dated 1 September 2013. 12. In addition, the Claimant alleged that by means of art. 3.1 lit. c of the transfer contract, the parties intended to be released from the employment link binding them, but did not want to waive all their rights. Moreover, the Claimant outlined that a waiver must be explicit, clear and unequivocal in order to be valid, which is not the case in the present matter. 13. Furthermore, the Claimant asserted that the Respondent wanted to get rid of his contract and that is the reason why it accepted to transfer him free of charge. 14. In its duplica, the Respondent asserted that the Claimant misinterprets the jurisdiction clause, creating an illusory distinction. In addition, the Respondent sustained that the DRC’s decision referred to in the Claimant’s submission is irrelevant. Indeed, according to the Respondent, the DRC decision to declare itself competent was based on the fact that the PFL DRC did not comply with the conditions set in art. 22 lit. b of FIFA RSTP, whereas in this case, and since the PFL DRC no longer exists, the Football Federation of country D NDRC would be the competent body. 15. As to the substance, the Respondent explained that the Claimant waived all his rights because he knew that he would sign a two-year lucrative contract with Club E. Furthermore, the Respondent asserted that the Claimant has to bear the legal consequences of signing a document without understanding its content. Finally, the Respondent alleged that the letter dated 1 September 2013 constitutes a debt acknowledgment of declaratory nature, i.e. an acknowledgment of debt which merely confirms an existing debt and whose existence depends on the existence of said debt. The Respondent opposed such kind of acknowledgement of debt to the constitutive ones, which give birth to a new debt that might be claimed regardless the existence of the connected contractual obligation. In light of the foregoing, the Respondent concluded that any and all obligations under and related to the contract, including the acknowledgment of debt, ceased to exist upon the transfer contract’s conclusion on 2 September 2013. II. Considerations of the DRC judge 1. First the DRC judge analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 12 March 2014. Consequently, the DRC judge concluded that the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules). 2. With regard to the competence of the DRC judge to decide on the present matter, the DRC judge referred to art. 3 par. 2 and par. 3 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 (edition 2015) the DRC judge 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 from country B and a club from country D. 3. However, the DRC judge acknowledged that the Respondent contested the competence of FIFA to deal with the present case, stating that any dispute arisen between the parties should be submitted to the deciding bodies of the Football Federation of country D. 4. The Chamber equally noted that the Claimant rejected such position and insisted on the fact that according to art. XII of the contract, FIFA had jurisdiction to deal with the disputes related to the FIFA Regulations on the Status and Transfer of Players. 5. Taking into account the above, the DRC judge emphasised that, in accordance with art. 22 lit. b) of the FIFA Regulations, he 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 Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC judge further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 6. While analysing whether he was competent to hear the present matter, the DRC judge considered that he should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a jurisdiction clause. 7. Having said this, the DRC judge turned his attention to art. XII of the contract, which stipulates that “any dispute between the Parties arising from or in connection with this Agreement including its validity, interpretation, execution or termination, shall be settled amiably. Unless the Parties shall reach an amiable resolution then any such dispute shall be submitted to the competent bodies of the Football Association of country D and the Professional Football League with respect of the legislation of country D and DRC-FIFA”. 8. In view of the aforementioned clause, the DRC judge was of the opinion that art. XII of the employment contract does not make clear reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations and even provides for the possibility of lodging a contractual dispute in front of FIFA. Therefore, the DRC judge deemed that said clause can by no means be considered as a clear arbitration clause in favour of the national deciding bodies, and, therefore, cannot be applicable. 9. Having established that the first criteria for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the DRC judge deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body. 10. In view of the above, the DRC judge established that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that he is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 11. In particular, and in accordance with art. 24 par. 2 lit. i) of the Regulations on the Status and Transfer of Players, the DRC judge confirmed that he may adjudicate in the present dispute which value does not exceed CHF 100,000. 12. Subsequently, the DRC judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2015) and considering that the claim in front of FIFA was lodged on 12 March 2014, the 2012 edition of said Regulations (hereinafter: the Regulations) is applicable to the present matter as to the substance. 13. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. However, the DRC judge emphasised that in the following considerations he will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 14. In this respect, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid as from 1 February 2011 until 30 June 2014 and that, on 2 September 2013, the Claimant, the Respondent and Club E concluded an agreement for the transfer of the Claimant. 15. The DRC judge then reviewed the claim of the Claimant, who maintains that he is entitled to receive EUR 78,000 based on the Respondent’s acknowledgment of debt dated 1 September 2013. 16. In this regard, the DRC judge noted that, according to the Claimant, the legal basis of the claim at stake is the acknowledgment of debt. In this respect, the Chamber noted that one day after the Respondent acknowledged its debt, the Claimant, the Respondent and Club E concluded a transfer agreement and included in it the following clause: “the [Respondent] and [the Claimant] are aware that after the signing of this transfer agreement any mutual obligations cease (in the case of a permanent transfer), except any obligations provided herein”. The DRC judge further observed that the transfer agreement does not contain any clause by means of which the Claimant would have reserved his rights. 17. In view of the foregoing, the DRC judge pointed out that the aforementioned clause inserted in the transfer agreement, signed by both the Claimant and the Respondent, unambiguously stipulates that the Claimant did not have any claim against the Respondent. In addition, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the DRC judge deemed that the Claimant had not presented any documentation, which would demonstrate that the debt specified in the acknowledgement of debt would be excluded from the release and waiver of actions contained in the relevant clause of the transfer agreement. 18. As to the alleged Claimant’s lack of comprehension of the transfer agreement for language reasons, the DRC judge deemed it appropriate to emphasise that a party signing a document of legal importance without knowledge of its precise content, as a general rule, does so on its own responsibility and is consequently liable to bear the possible consequences arising from the execution of such document. 19. Based on the aforementioned, in particular on art. 3.1 lit. c of the loan agreement, the DRC judge deemed that he could not uphold the Claimant arguments as to being entitled to the amount of EUR 78,000 as outstanding remuneration as per the acknowledgment of debt. 20. On account of the above, the DRC judge decided to reject the claim of the Claimant in its entirety. ***** III. Decision of the DRC judge 1. The claim of the Claimant, Player A, is admissible. 2. The claim of the Claimant is rejected. ***** Note relating to the motivated decision (legal remedy): According to art. 67 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 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 DRC judge: Markus Kattner Acting Secretary General Encl. CAS directives