F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision 21 September 2017
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 21 September 2017,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
John Bramhall (England), member
Johan van Gaalen (South Africa), member
Pavel Pivovarov (Russia), member
Mohamed Al Saikhan (Saudi Arabia), 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. In 2016, the Player of Country B, Player A (hereinafter: the Claimant) and Club C, concluded an employment contract (hereinafter: the contract), dated 2 January 2017 and valid as from 2 January 2017 until the end of the 2018-19 season.
2. Pursuant to the contract, the Claimant was entitled to receive the following remuneration:
2016-17 season: EUR 6,300 payable in six equal monthly instalments of EUR 1,050;
2017-18 season:
- EUR 24,000 payable in twelve monthly instalments of EUR 2,000 if the club plays in I National Division;
- EUR 36,000 payable in in twelve monthly instalments of EUR 3,000 if the club plays in First National Division;
2017-18 season:
- EUR 24,000 payable in twelve monthly instalments of EUR 2,000 if the club plays in I National Division;
- EUR 36,000 payable in in twelve monthly instalments of EUR 3,000 if the club plays in First National Division.
3. Furthermore, clause 14 of the contract states that “[t]he cases and situations not covered by this contract shall be governed by the CCT granted between the National Union of Professional Footballers and the Football League of Country D”.
4. In addition, clause 15 of the contract stipulates that “[t]o resolve any disputes arising from this contract, the parties agree to submit their solution to the Labour Court of Municipality E”.
5. On 22 December 2016, the Claimant addressed a correspondence to “Club C” (hereinafter: the Respondent), requesting it to pay him EUR 64,300 as compensation for breach of contract. In his correspondence, the Claimant referred to an alleged statement of the Respondent, informing him that it would not honour the contract.
6. On 2 January 2017, the president of the Respondent declared that “[f]or legal and valid reasons, it is stated that the [Claimant] (…) is a free player to find a club to pursue his professional football player activity”.
7. On 3 January 2017, the Respondent replied to the Claimant’s correspondence. In particular, the Respondent stressed that the contract was concluded with Club C, which constitutes a sports company different from the Respondent. Furthermore, the Respondent emphasised that the declaration dated 2 January 2017 is “a simple statement of the [Respondent] made by it’s President, but wasn’t made by Club C, and it isn’t stamped neither by the [Respondent] nor by the sports company”. Besides, the Respondent explained that according to the information in its possession, the Claimant and Club C, signed an employment contract in 2016; however, due to the Claimant’s failure to adapt to Country D’s Football, the parties decided to mutually terminate the employment contract. The Respondent further alleged in said letter that the declaration dated 2 January 2017 aimed at confirming the free agent status of the Claimant in order for him to find a new club. In this regard, the Respondent sustained that after receiving the declaration, the Claimant left the country without signing the mutual termination. In view of the above, the Respondent considered that the Claimant breached the contract.
8. On 10 May 2017, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract, requesting EUR 64,300, plus 5% p.a. interest as from 2 January 2017. Furthermore, the Claimant requests the Respondent to be ordered to pay him EUR 5,000 as contribution to his legal fees.
9. In his claim, the Claimant explains that despite being dated 2 January 2017, the contract was allegedly concluded in September 2016 as confirmed by the Respondent in its correspondence dated 3 January 2017.
10. In its reply to the claim, the Respondent rejects the competence of FIFA to deal with the matter, stressing that in accordance with clause 14 and 15 of the contract, the matter should be referred to the competent bodies of the Football Federation of Country D and Professional League, or to the Labour Court of Municipality E.
11. As to the substance, the Respondent reiterates the exact same argumentation as in its correspondence dated 3 January 2017 (cf. point 7 above). In this regard, the Respondent stresses that the Claimant’s behaviour constitutes a breach of contract in accordance with the Collective Bargaining Agreement.
12. In his replica, the Claimant insists on the competence of FIFA to deal with the matter. In particular, the Claimant points out that the contract does not contain an explicit arbitration clause in favour of sporting decision-making bodies of Country D. In this respect, the Claimant argues that clause 15 of the contract merely copies the general jurisdictional rule applicable in Country D for employment-related matter. In support of his assertion, the Claimant highlights that the Respondent also invokes the competence of the national sporting bodies, thereby acknowledging that the jurisdiction of the ordinary courts is not exclusive.
13. As to the substance, the Claimant outlines that the Respondent did not submit any evidence, demonstrating that he would have breached the contract.
14. Furthermore, the Claimant emphasises that the distinction between Club C, and the Respondent is purely formal.
15. After the expiry of the deadline granted to him to submit his replica, the Claimant presented an additional submission.
16. In its final comments, the Respondent reiterated its previous argumentation.
17. Having been invited to do so, the Claimant informed FIFA that he did not sign any new employment contract.
II. Considerations of the Dispute Resolution Chamber
1. In a first instance, the Dispute Resolution Chamber (hereinafter 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 10 May 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a club and a player that have an international dimension.
3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation involving a Player of Country B and a Club of Country D regarding an alleged breach of contract.
4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that disputes related to the employment relationship regulated by the contract and the agreement should be referred to the Labour Court of Municipality E in accordance with clause 15 of the contract.
5. The Chamber equally noted that the Claimant rejected such position and alleged that FIFA had jurisdiction to deal with the present matter since the contract does not contain an explicit arbitration clause in favour of sporting decision-making bodies of Country D. In particular, the Claimant argues that clause 15 of the contract merely copies the general jurisdictional rule applicable in Country D for employment-related matter.
6. At this stage, the members of the DRC recalled the content of the aforementioned clause which provides that “[t]o resolve any disputes arising from this contract, the parties agree to submit their solution to the Labour Court of Municipality E”.
7. In this respect, the Chamber first outlined that said clauses clearly and unambiguously identified the Labour Court of Municipality E as exclusively competent to deal with disputes arising out of the contract. Furthermore, the DRC was eager to point out that said clause was freely included in the contract and resulted from the common will of the parties.
8. Having stated the foregoing, the Chamber deemed it of utmost importance to emphasise that art. 22 of the Regulations expressly provides that FIFA’s competence is without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes.
9. On account of all the above, and in particular considering the clear wording of the above-mentioned clause granting exclusive jurisdiction to the Labour Court of Municipality E to deal with any dispute arising out of the contract, the Chamber had no other choice than to conclude that it lacked competence to adjudicate on the matter at hand.
10. In light of the above, the DRC decided that the claim of the Claimant is inadmissible.
III. Decision of the Dispute Resolution Chamber
The claim of the Claimant, Player A, is inadmissible.
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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
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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives