F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 19 November 2020
Decision of the
Dispute Resolution Chamber
passed on 19 November 2020
regarding an employment-related dispute concerning the player Badaliy Dago
COMPOSITION:
Geoff Thompson (England), Chairman
Daan de Jong (Netherlands), member
Michele Colucci (Italy), member
CLAIMANT:
Badaliy Dago, France
Represented by Mr Serge Money
RESPONDENT:
Neftçi PFK, Azerbaijan
Represented by Mr Josep F. Vandellos
I. Facts
1. On 2 July 2018, the parties concluded an employment contract valid as from until 30 June 2020.
2. Art. 7 of the contract stipulated the following:
Labour payment
7.1. The total fixed remuneration due the employee during the season 2018/2019 will be of 205.000$ net to be split and paid as folowing:
-30.000$ (thirty thousand of US dollars) in July 2018;
-30.000$ (thirty thousand of US dollars) in December 2018
-30.000$ (thirty thousand of US dollars) in May 2019;
-and the rest amount (i.e. 115.000 USD net) will be paid in TEN (10) equal monthly installments of 11.500$ net as from August 2018 until May 2019.
7.2. The total fixed remuneration due the employee during the season 2019/2020 will be of205.000$ net to be split and paid as folowing: -30.000$ (thirty thousand of US dollars) in July 2019; -30.000$ (thirty thousand of US dollars) in December 2019 -30.000$ (thirty thousand of US dollars) in May 2020; -and the rest amount (i.e. 115.000 USD net) will be paid in TEN (10) equal monthly installments of 11.500$ net as from August 2019 untul May 2020.
7.4 All installments shall be made monthly in arrear, that is, until the 15th day of the next month for which the payment is due, and will be paid in local currency AZN, in this case at the exchange rate of the National Bank of Azerbaijan for the day of payment. Income tax and social insurance payments for employee will be paid in AZN in accordance with the legislation of the Republic of Azerbaijan.”
15.1. If the conflicts aren't solved by direct negotiations, the parties submit to the exclusive jurisdiction of the Tribunal of Baku (Rep. of Azerbaijan) to the exclusion of any other forum.
3. On 25 June 2020, the player sent a default notice to the club indicating the following:
“it appears that only 133.500 $ have been paid to Mr Dago, which means that the sum of 71.500 US Dollars remains due under the contract.
(…)
After the post of a litigious Instagram Story, for which my Client apologized, NEFTCHI PFK unilaterally decided on 17 June 2020, to withhold, as penalty, all payments to be paid in May 2020, that is to say, as per clause 7.2 of the contract, 30.000 $ and a monthly instalment of 11.500 $. NEFTCHI PFK also prohibited Mr Dago to train with the team. It appears that the disciplinary sanctions took place in a context where Mr Dago was not given the opportunity to explain or defend himself, in such a way that he even had to refuse to sign the minute of the disciplinary hearing.
It also appears that on 17 June 2020, Mr Dago has been deprived from a salary that would have been due to him long before the litigious sanction. Indeed, the amount of 41.500 $ should have been paid in May 2020, while the sanction was taken at the end of June 2020. Moreover, the amount of the withheld salary for a so-called sanction, equivalent to 41.500$, is completely out of proportion.
Therefore, and regarding the facts referred above, you are liable for the following amounts:
30.000$ due since December 2019 pursuant to article 7.2 of the contract;
41.500$ due since May 2020, as Mr Dago contests the grievances lodged against him in June. Mr Dago suffered great harm resulting from this wrongful deprivation of salary which constitutes a serious violation of his rights.
In these circumstances, I must formally give you notice, with effect from today's date, to pay to M' Dago the amount of 71.500$ (seventy-one thousand and five hundred US Dollars), within forty-eight hours after reception of this formal notice.”
4. On 18 September 20202, the Claimant lodged a claim before FIFA against the Respondent for outstanding remuneration and requested the payment of the total amount of USD 71,500, as follows:
– USD 30,000 due in December 2019,
– USD 30,000 due in May 2020,
– USD 11,500 due as his monthly remuneration in May 2020
5. In it reply to the claim, the Respondent contested the competence of FIFA in accordance with art. 15 of the contract.
6. In particular, the Respondent argued that It is an established DRC jurisprudence that when an exclusive jurisdiction has been conferred on domestic courts or tribunals.
7. As to the substance, the Respondent explained that “on 15 June 2020, A Social Media Post By The Wife Of The PLAYER (with his personal endorsement) caused an outrage wherein the player was wearing the jersey of a rival club Qarabag FK that had also been published in mass media. “
8. According to the Respondent, said act “was a provocation that tarnished the brand and reputation of the club for which he was repeatedly asked to apologize”.
9. The Respondent argued that the player was asked to apologize, and attached a copy of a series of Whatsapp messages in support of its allegations.
10. According to the Respondent, “the player’s act of indiscipline and insubordination (publicly mocking the club) left the club with no choice but take necessary action. The unethical behavior of the player was indicated to the player by the club. The player failed to cooperate until his departure from the club.”
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
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 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 a French player and an Azerbaijani club.
3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 15 of the employment contract concluded agreement, stating that employment-related disputes between the parties fall within the exclusive jurisdiction of the Tribunal of Baku “to the exclusion of any other forum”.
4. With the aforementioned considerations in mind, and prior entering into the analysis of its competence, the Chamber wished to recall that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, 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.
5. 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 a deciding body other 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 derives from a clear reference in the employment contract.
6. 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 and exclusive jurisdiction clause in favour of the Tribunal of Baku
7. In this respect, the Chamber first of all referred to Art. 15.1 of the applicable contract, according to which “15.1. If the conflicts aren't solved by direct negotiations, the parties submit to the exclusive jurisdiction of the Tribunal of Baku (Rep. of Azerbaijan) to the exclusion of any other forum. “
8. In this regard, the members of the Chamber placed particular emphasis on the fact that the reference to the Tribunal of Baku is clear and unequivocal.
9. As such, the DRC concluded that, by means of Art. 15 of the contract, and taking into the principle of free will of the parties, the preference of the parties in favor of the Tribunal of Baku was clearly expressed.
10. Taking into account all the foregoing considerations, the Chamber concluded that it was not competent to deal with the claim lodged by the Claimant in front of FIFA.
11. As a consequence, the claim of the Claimant is inadmissible.
III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Badaliy Dago, is inadmissible.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).
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