F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 25 September 2015, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos González Puche (Colombia), member Alejandro Marón (Argentina), member Guillermo Saltos Guale (Ecuador), 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 between the parties I.

F.I.F.A. - Camera di Risoluzione delle Controversie (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 25 September 2015, in the following composition: Geoff Thompson (England), Chairman Theo van Seggelen (Netherlands), member Carlos González Puche (Colombia), member Alejandro Marón (Argentina), member Guillermo Saltos Guale (Ecuador), 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 between the parties I. Facts of the case Facts relating to the preliminary issue of the competence of the Dispute Resolution Chamber: 1. On 1 July 2012 the player from country B, Player A (hereinafter: the Claimant) and the player from country D, Club C (hereinafter: the Respondent), signed an employment contract valid as from 1 July 2012 until 30 June 2015 (hereinafter: the contract). The contract is signed by the Claimant and Mr E on behalf of the Respondent. 2. Article 14 of the contract stipulates “In the event the club remains in default of its obligations relating to the payment of salaries, the payment of social security or income tax, the player may obtain his freedom by following the procedures established by the Football Federation of country D”. 3. Furthermore, article 23 of the contract stipulates that “the present contract falls under the scope of the law regarding paid sportsmen of 24 February 1978, the law on employment contracts of 3 July 1978, the National Collective Labour Agreements agreed upon in conjunction with the National Joint Commission on sports as well as work regulations”. 4. The Respondent contested the competence of FIFA to deal with the present matter referring to art. 22 lit. b) of the FIFA Regulations in favour of the national dispute resolution system according to the aforementioned art. 14 and art. 23 of the employment contract. In this regard, the Respondent submitted the following documentation: a) an extract of country D’s law on employment contracts, b) an extract of country D’s law relating to employment contracts of paid athletes of 24 February 1978, c) an extract of the Royal Decree of 13 July 2014 which fixes remuneration for an athlete, d) an extract of the Collective bargaining agreement, editions 2009 and 2013, relating to employment conditions of a paid footballer, and e) art. 117 of the Football Association of country D’s (hereinafter: Football Association of country D) Regulations of 1 March 2014. 5. Article 13 of country D’s law on employment contracts (a) and Article 9 of the Law relating to the employment contracts of paid athletes of 24 February 1978 (b) provide that “employees and their employers cannot commit in advance to submit a dispute arising from the employment contract to arbitration”. 6. According to article 4 of the Collective bargaining agreement (d) a Conciliation Committee is explicitly in charge of examining all problems relating to working conditions and remuneration concerning football players. Its article 5 provides that the Committee is composed of at least four members, of which two are representatives of players’ syndicates and two represent employers. 7. Art. 117 of the Football Association of country D’s Regulations (e) states that “after having exhausted all internal means available with regard to the present Regulations, the Football Association of country D and, through their affiliation, the clubs and their affiliates, commit to submit the all disputes via the arbitration procedure in front of the Court of Arbitration for Sport of country D in conjunction with the regulations of said Court. The Football Association of country D and, through their affiliation, the clubs and their affiliates, equally commit to accept the voluntary intervention of all other interested parties”. 8. In this context, the Respondent argues that the Claimant should have submitted the dispute to the Conciliation Committee, as provided for in the Collective bargaining agreement and that the player did not respect the regulatory procedures as per the Football Association of country D’s Regulations. 9. The Claimant, for his part, insists that FIFA’s Dispute Resolution Chamber is competent to deal with the present matter by inter alia stating that no clear reference to any national arbitration tribunal is contained in the labour contract, referring to the commentary of the Regulations on the Status and Transfer of Players. Facts relating to the substance of the matter: 10. In accordance with the contract (cf. point I.1. above), the Claimant was inter alia entitled to receive the following remuneration: a. EUR 1,800 net per month for the 2012/2013 season; b. EUR 2,200 net per month for the 2013/2014 season; c. EUR 2,500 net per month for the 2014/2015 season. 11. Furthermore, the contract provided for match bonuses in accordance with the Respondent’s Internal Regulations as well as being entitled to food and board. 12. On 14 August 2012, the Respondent and the Club F from country G (hereinafter: Club F) concluded a loan agreement for the player. In this context, the Claimant and Club F signed an employment contract (hereinafter: Club F contract), valid from 14 August 2012 until 31 July 2013, the terms of which provide for monthly remuneration of 24,940, corresponding to approximately EUR 850, according to the player. 13. The Claimant claims that a few days before, on 10 August 2012, the Claimant and the Respondent (cf. point I.19. below) allegedly concluded an agreement (hereinafter: the agreement), signed for by an alleged representative of the club, Mr E, which would entitle the player to receive remuneration in addition to that provided for by the Club F contract (cf. point I.19. below) as the remuneration provided by Club F was substantially lower than that offered by the Respondent, as follows: a. EUR 2,500 before 30 October 2012; b. EUR 2,500 before 30 January 2013; c. EUR 3,400 before 30 May 2013. 14. On 29 January 2013, the Respondent and Club F prematurely terminated their loan agreement. On the uncontested termination document, Mr E appears under the nomination of Administrator. 15. On 27 February 2013, the Respondent and the Club H from country I (hereinafter: Club H) as well as the player, signed a loan agreement for the player, who signed an employment contract with Club H (hereinafter: Club H contract) valid as from 27 February 2013 until 30 June 2014. The Club H contract provided for monthly remuneration of 600,000. The employment contract linking the player to Club H was terminated on 16 January 2014. 16. On 26 August 2013, the Claimant formally put the Respondent in default of the amounts allegedly owed in relation to the agreement (cf. point I.13.), stating that if he did not receive EUR 5,900 pertaining to the payments of EUR 2,500 due on 30 January 2013 and EUR 3,400 due on 30 May 2013 (cf. points I.13.b and I.13.c above), he would have to terminate his employment relationship with the Respondent “with immediate effect”. 17. On 16 September 2013, the player unilaterally terminated the contract with the Respondent for non-payment of remuneration under the terms of the agreement. 18. On 10 December 2013, the player lodged a claim in front of FIFA against the Respondent requesting the payment of the total amount of EUR 51,126 plus 5% interest p.a. as from 16 September 2013, as follows: - EUR 5,900 as outstanding remuneration in relation to the agreement (cf. point I.16. above); - EUR 45,226 as the residual value of the contract as from 16 September 2013 until 30 June 2015 (i.e. EUR 50,826 as per the player) minus the EUR 5,600 (EUR 800 x 7 months) of salaries allegedly owed by Club H. - sporting sanctions on the Respondent. 19. The player claims that after he was loaned to Club F, the Respondent sought to negate the reduction of his salary by offering him EUR 8,400 in three instalments to compensate his loss (cf. point I.13. above). He claims that only the first instalment was paid and he put the Respondent in default of said outstanding amounts on 26 August 2013 (cf. point I.16. above). 20. The contract signed with Club F was terminated by the latter after 6 months on 29 January 2013 and the Claimant alleges he was compelled to leave Club F without receiving his salaries of November and December 2012. 21. After the default notice of 26 August 2013 and the notice of termination of 16 September 2013 were received by the Respondent (cf. points I.16. and I.17. above), the Claimant alleges having received a Facebook message on 23 September 2013 in which a representative of the Respondent asserted that the agreement could not be invoked against it as it was not “an official document of Club C, just a convention between [the player] and Mr E”. In this respect, the Claimant points out that the letterhead used in the agreement was that of the Respondent, and that the person who signed the contract on behalf of the Respondent was name as administrator on the letterhead of the document, i.e. Mr E. 22. The Claimant argues that the Respondent had denied him payment of salaries due relating to the agreement for over 11 months, until the date of claim. 23. In its reply to the claim, the Respondent asserts that it had no knowledge of the existence of the agreement made 10 August 2012 (cf. point I.13. above) until it received the claim, and ignores where the alleged payment of EUR 2,500 comes from and who made it. In this regard, the Respondent has expressly and repeatedly requested to know from the Claimant who made the aforementioned transaction. 24. The Respondent asserts that it did everything in its power to redress the Claimant’s situation after the contract with Club F was terminated (cf. point I.14. above), and managed to organise a loan to Club H after the Claimant allegedly asked for it, thereby avoiding financial loss for the Claimant. 25. It adds that the loan transfer to Club H took place in February 2013, and by then the Claimant could have claimed EUR 2,500 which allegedly became payable on 30 January 2013 in light of the agreement. 26. The Respondent then seeks to establish what legal status the agreement may have if it were deemed that said document engages the obligations of the club. It argues that if the obligations in the agreement were to be considered a salary, the Respondent would have had to pay taxes as well as social security contributions on the amount, thing it did not do. Therefore, it must be considered to be compensation for a prejudice, the default of payment of compensation cannot be qualified as “just cause” to terminate the contract and to seek the imposition of important financial and sporting sanctions on the Respondent. 27. The Respondent then states that, should the agreement be deemed part of this particular contractual dispute, the compensation is disproportionate to the damages occurred, i.e. EUR 5,900 compensated by EUR 51,126. 28. For his part, the Claimant alleges that the termination of the loan agreement with Club F (cf. point I.14. above) contains the name of Mr E on its letterhead and was signed after the agreement of 10 August 2012 (cf. point I.10 above) which he argues appears to indicate that Mr E does legally represent the Respondent, therefore that it is unfeasible to believe the Respondent was not aware of such an agreement. 29. Furthermore he claims that the loan agreements made by the Respondent have been made on purpose to circumvent its obligations of paying the fully contractually established salaries, which demonstrates clear bad faith and breach of contract by the Respondent by not paying the sums agreed upon in the agreement. 30. Finally, the Respondent reiterates that, notwithstanding the fact it was allegedly not aware of the agreement until the claim was lodged, the sole partial execution of a contractual obligation cannot be used as justification for the termination of a contract. 31. The Claimant informed FIFA that he has failed to find employment since the termination of his employment contract with Club H on 16 January 2014. II. Considerations of the Dispute Resolution Chamber 1. First, 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 10 December 2013. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: Procedural Rules) are 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 (2015 edition) 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 player from country B and a player from country D. 3. The Chamber however acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis that with regards to art. 22 lit. b) of the Regulations, a national independent dispute resolution system guaranteeing fair proceedings existed in country D and is mandatory in accordance with art. 14 and art. 23 of the employment contract (cf. points I.2. and I.3. above). The members noted that the Respondent referred to two different deciding bodies: the Conciliation Committee provided for in the Collective bargaining agreement and the Court of Arbitration for Sport of country D. 4. In this regard, the Chamber noted that the Claimant rejected such a position and insisted that FIFA has jurisdiction to deal with the present matter, mainly because there is no specific or clear jurisdiction clause contained in the contract. 5. Taking all of the above into account, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2015 edition of the Regulations on the Status and Transfer of Players 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 Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008. 6. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the Dispute Resolution Chamber is competent to settle an employment-related dispute between a club and a player of an international dimension is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract. 7. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should first and foremost analyse whether the employment contract at the basis of the present dispute contained a clear jurisdiction clause. 8. In this respect, the Chamber recalled that art. 23 of the employment contract stipulates that: “the present contract falls under the scope of the law regarding paid sportsmen of 24 February 1978, the law on employment contracts of 3 July 1978, the National Collective Labour Agreements agreed upon in conjunction with the National Joint Commission on sports as well as work regulations” (cf. point I.3. above). The members of the Chamber also took note of the content of art. 14 of the employment contract which stipulates that: “In the event the club remains in default of its obligations relating to the payment of salaries, the payment of social security or income tax, the player may obtain his freedom by following the procedures established by the Football Federation of country D” (cf. point I.2. above). 9. Having examined the relevant provisions, the Chamber came to the unanimous conclusion that art. 14 and art. 23 of the employment contract do not constitute a jurisdiction clause in favour of one specific court or tribunal of arbitration in country D since they do not refer to one deciding body per se for the jurisdiction of the Respondent. The foregoing conclusion is even supported by the Respondent’s statements which themselves do not refer to one specific deciding body, but rather to articles of the Football Association of country D’s Regulations, notably its article 117, and the Collective Bargaining Agreement which refer to the country D’s Court for Arbitration of Sport as well as the Conciliation Committee. 10. The members of the Chamber then took note that in its reply to the claim, the Respondent initially sought to have the player’s claim rejected and in case it was not then it “alternatively” and “subsidiarily” declared that FIFA should not be competent. In this regard, in spite of the preliminary nature of the analysis regarding competence, the members took due note that the Respondent accepts the possibility that the DRC is competent to deal with the present dispute, as long as the Claimant’s claim is rejected. Therefore the Chamber concluded that that under certain specific circumstances the Respondent accepts the competence of FIFA. 11. As a result and taking into consideration all of the aforementioned circumstances, the Dispute Resolution Chamber concluded that the Respondent’s objection to the competence of FIFA to hear the present dispute has to be rejected, and that the Dispute Resolution Chamber is therefore competent on the basis of art. 22 lit b) of the Regulations to consider the present matter as to the substance. 12. Having established its competence, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (2015 edition) and considering that the present claim was lodged on 10 December 2013, the 2012 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 13. The competence of the Chamber and the applicable regulations having been established, the members of the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the aforementioned facts as well as the arguments and documentation submitted by the parties. The Chamber however emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 14. In this respect, the DRC acknowledged that the parties had signed an employment contract on 1 July 2012 valid until 30 June 2015, noting in particular that the signatory on behalf of the Respondent was Mr E. It further acknowledged that the Respondent and the Claimant had organised that the latter be temporarily loaned to the Club F from country G (hereinafter: Club F) on 14 August 2012 until 31 July 2013 and that Club F and the Claimant had signed an employment contract valid for the same duration. 15. The members of the Chamber further noted that on 10 August 2012, the Claimant and the Respondent, by means of the signature of Mr E, had concluded an agreement entitling the player to receive remuneration in addition to that provided for in the employment contract the Claimant had signed with Club F in light of reduced salary the Claimant was set to receive. In this regard, the members of the Chamber noted that said agreement stipulates that “it is hereby agreed: that the Player A should receive the sum of EUR 8,400 for the difference in salary in consequence of the loan between Club F and [the Respondent]”. The DRC took note that the Respondent alleges that Mr E was not one of its authorised representatives, thereby making the document unenforceable. 16. In continuation, the DRC acknowledged that the loan with Club F ended by mutual consent on 29 January 2013 and was signed by all three parties involved. At this point, the members of the Chamber recalled that the agreement signed on 10 August 2012 provided for three payments due on 30 October 2012, 30 January 2013 and 30 May 2013 which were solely and directly conditioned by the loan agreement signed with Club F. The DRC noted that the Claimant had formally put the Respondent in default of its obligations pertaining to the agreement on 26 August 2013. 17. Furthermore, the Chamber noted that the Respondent and the Claimant had subsequently concluded a loan agreement with the Club H from country I valid from 27 February 2013 until 30 June 2014 which was terminated on 16 January 2014. 18. The members of the Chamber noted that Mr E’s name appears on the letterhead of the club on the tripartite termination document of the temporary transfer of the Claimant to Club F, which was signed after the contested agreement, which was itself signed for by Mr E and also contains said name on the letterhead. 19. Consequently, with regard to the position of the Respondent according to which the agreement of 10 August 2012 has no legal effect since it had been signed by an unauthorised person, the members of the Chamber agreed that at the time of signing the agreement, i.e. 10 August 2012, the Claimant had reason to believe in good faith that he was signing a legitimate convention with an authorised representative of the Respondent. Equally, the Chamber outlined that the Respondent never provided documentary evidence demonstrating that the Claimant was aware that the signatory was not authorised to represent the Respondent at the moment of signing the pertinent agreement. Furthermore, the DRC recalled that it is not competent to deal with matters relating to the criminal activity. 20. In continuation, the members of the DRC acknowledged that the agreement of 10 August 2012 was made with the sole purpose of complementing the Claimant’s reduced salaries during his employment with Club F and took note that the aforementioned termination of said contract took place on 29 January 2013. In this regard, the DRC noted that the date of termination took place before the due date of the second instalment, i.e. 30 January 2013, established in the agreement and as such concluded that it can be inferred that said agreement had become obsolete and was no longer in force once the loan with Club F had been terminated. 21. The Chamber then established that no such agreement had been reached between the parties in relation to the loan with Club H, and it could therefore be established that Club H was paying the Claimant his remuneration and that the Respondent had no contractual obligation to either pay any remuneration or complement any reduced salary. 22. From all of the above, the members of the Chamber concluded that the Claimant did not have just cause to terminate the employment contract with the Respondent, in particular as the obligations of the Respondent stemming from the agreement of 10 August 2012, notably the payments in instalments, were extinguished when the loan with Club F ended. The Chamber recalled that the payments were no longer due as a consequence of the termination of the loan agreement with Club F and the Claimant did not have just cause to terminate the employment contract with the Respondent. 23. The members of the Chamber decided that in light of all the aforementioned considerations, in particular the fact that no amounts were outstanding at the time of unilateral termination of the employment contract, the claim of the Claimant had to be rejected in this regard. 24. Finally, the Chamber decided to reject any further claim lodged by the Claimant. III. Decision of the Dispute Resolution Chamber 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 Dispute Resolution Chamber: Marco Villiger Acting Deputy Secretary General Encl. CAS directives