DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 25 gennaio 2018 • Stagione sportiva: 2017/2018

F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2017-2018) – fifa.com – atto non ufficiale – Decision25 January 2018

Decision of the Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 January 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Tomislav Kasalo (Croatia), member

Pavel Pivovarov (Russia), member

Daan de Jong (The Netherlands), member

on the matter between the player,

Player A, Country B

as Claimant

and the club,

Club C, Country D

as Respondent

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 3 March 2016, the player of Country B, Player A (hereinafter: the Claimant) and the club of Country D, Club C (hereinafter: the Respondent) entered into an employment contract (hereinafter: the contract), valid from 1 July 2016 until 30 June 2017.

2. In accordance with clause 5 of the contract, the Claimant was entitled to a monthly salary in the amount of EUR 6,500, payable, following clause 6.1. of the contract, “until the 25th of next month, in currency of Country D at the official exchange rate of the National Bank of Country D on the day such payment is made”.

3. Moreover, clause 12.1 of the contract was drafted as follows:

“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.”

4. In addition, on 3 March 2016, the Claimant and the Respondent concluded an Addendum to the contract, according to which, inter alia, the Claimant would be entitled to the following:

“2 airline tickets/season for route Country D - Country B – Country D”.

5. According to the Claimant, on 14 June 2017 he signed and returned via email to the Respondent a copy of a “Termination Agreement”, by means of which the parties apparently agreed on the termination of the contract as from 31 May 2017.

6. In addition, the termination agreement included the following:

“2. Both parties have commonly agreed and certify through the signing of this addendum, that they do not have other obligations, financial or any other, for past, present or future, as a result from and in relation with the [contract].”

7. On 2 August 2017, the Claimant lodged a claim against the Respondent, and requested the payment of the following amounts:

- “In principal”: EUR 13,088.41, corresponding to the salaries for May 2017 and June 2017 as well as an air ticket for the amount of 800 in the currency of Country D (according to the Claimant, equivalent to EUR 175.9), plus 5% interest p.a. “as from 25 June 2017 and 25 July 2017 until the date of effective payment”;

- “In subsidiary and only for the case in which the Chamber deems that the Termination Agreement entered into force”: EUR 9,524, corresponding to “the pending salary for May 2017 and 14 days of June 2017, the air ticket” or alternatively, EUR 6,588.41 “representing the pending salary for May 2017 and the air ticket, in all cases plus interest of 5% p.a. as from 25 June 2017 until the date of effective payment.”

8. According to the Claimant, on 13 May 2017, the Respondent played its last match of the 2016/2017 season and the team went afterwards into summer vacation. In this regard, the Claimant explained that at that time he was also informed that he would not be continuing for the following season.

9. In this respect, the Claimant explained that the Respondent invited him to conclude a termination agreement. However, according to the Claimant, said agreement should not be deemed as valid since the Respondent never returned a countersigned copy. Notwithstanding the above, the Claimant confirmed that he signed the termination agreement.

10. Moreover, the Claimant considered that FIFA should be competent since, in his opinion, the clause as provided in the contract is unclear (cf. point I. 3 above).

11. In its reply, the Respondent contested FIFA’s competence, arguing that the matter should be referred “to the competent bodies of the Football Federation of Country D and / or the Professional Football League”.

12. As to the substance, the Respondent rejected the Claimant’s arguments, and considered that he was not sufficiently motivated and that, consequently, “he wanted to leave the country as soon as possible”. In view of the above, the Respondent explained that a termination agreement was concluded, by means of which the parties settled all their financial obligations. Consequently, the Respondent argued that it had no obligations towards the Claimant for the months of May 2017 and June 2017.

13. In addition, the Respondent considered that the Claimant should bear all the expenses and procedural costs.

14. In his replica, the Claimant insisted in FIFA’s competence on the grounds that the jurisdiction clause as provided in the contract is unclear and that it does not specifically exclude FIFA’s jurisdiction. In particular, the Claimant argued that “the mere fact that the clause in dispute does not exclude the jurisdiction of the FIFA legal bodies renders any further discussion on competence matters unnecessary.”

15. As to the facts, the Claimant insisted that the Respondent owed him the amount of EUR 13,088.41, whereas the total value of the contract was EUR 28,380.45 (22,500 as salaries, a bonus for EUR 5,000 and EUR 880.45 for flight tickets).

16. Despite being invited to do so, the Respondent failed to provide its final comments.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed whether it was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 2 August 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) is applicable to the matter at hand (cf. art. 21 of the 2017 and 2018 editions 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 2016 and 2018) the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a player and a club that have an international dimension.

3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation which involves a player of Country B and a club of Country D regarding an employment-related dispute.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 12.1 of the contract (cf. point I. 3 above) alleging that the matter should be referred “to the competent bodies of the Football Federation of Country D and / or the Professional Football League”.

5. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.

6. Taking into account all the above, the Chamber emphasized that in accordance with art. 22 lit. b) of the 2016 and 2018 editions 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.

7. 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 DRC 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.

8. 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.

9. In this respect, the Chamber recalled that clause 12.1 of the contract stipulated the following:

10. Having examined the relevant provision, the Chamber came to the unanimous conclusion that clause 12.1 of the contract does not constitute a clear jurisdiction clause in favour of one specific court or arbitration tribunal in Country D, since it only appears to be a generic reference to “the competent bodies of the Football Association of Country D and the Professional Football League with respect of the legislation of Country D”. In particular, the Chamber highlighted that it remains unclear from the aforementioned stipulation whether said bodies are part either of the Football Association of Country D and/or the [Country D] Professional Football League.

11. On account of all the above, the Chamber established that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber 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.

12. The competence having been established, the Chamber decided thereafter to analyze which edition of the Regulations on the Status and Transfer of Players 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 (editions 2016 and 2018), and considering that the present matter was submitted to FIFA on 2 August 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

13. Having established the foregoing, and entering into the substance of the matter, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber 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 Chamber acknowledged that, on 3 March 2016, the parties to the dispute had signed an employment contract valid as from 1 July 2016 until 30 June 2017.

15. Subsequently, the Chamber noted that the Claimant lodged a claim against the Respondent, maintaining that the latter had outstanding salaries towards him for the amount of EUR 13,088.41 and corresponding to the salaries for May 2017 and June 2017, in addition to the refund of certain air tickets (cf. point I.7 above).

16. In this respect, the members of the Chamber further observed that the Claimant acknowledged that, on 14 June 2017, he signed and returned via email to the Respondent a “termination agreement” (cf. points I. 5 and I.6 above).

17. In relation to the aforementioned agreement, the Chamber took note of the Claimant’s argument, according to which the termination agreement should not be deemed as valid since the Respondent never returned a countersigned copy.

18. As a preliminary remark, the members of the Chamber noted, however, that the Claimant acknowledged that he signed said termination agreement. Consequently, they unanimously understood that there are no doubts that the Claimant accepted, for his part, the terms and conditions of said agreement.

19. For the sake of completeness, the members of the Chamber further observed the documentation provided by the Respondent, and observed that the latter provided, during the course of the procedure, a countersigned copy of said termination agreement. In view of the above, the members of the Chamber unanimously agreed that the termination agreement was valid and binding between the parties.

20. Subsequently, the members of the Chamber observed the terms and conditions agreed between the parties. In particular, the Chamber noted the contents of art. 2 of said agreement, which stipulate the following:

21. In this respect, the members of the Chamber concluded that the contents of the aforementioned stipulation are clear and leave no room for interpretation, since it is clearly established that, by signing the termination agreement, the Claimant abdicated from all his rights arising from the contract, including his pending salaries and any other (financial) obligation.

22. In view of the above, the members of the Chamber unanimously agreed that the claim of the Claimant had to be rejected in full.

23. Moreover, the Dispute Resolution Chamber decided to reject the Respondent’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

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. 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 (CAS)

Avenue de Beaumont 2

CH-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

Chief Legal & Integrity Officer

Enclosed: CAS directives