Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 26 November 2015, in the following composition: Geoff Thompson (England), Chairman Philippe Diallo (France), member Mohamed Mecherara (Algeria), member Leonardo Grosso (Italy), member John Bramhall (England), 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

2 I. Facts of the case 1. On 28 June 2012, the player from country B, Player A (hereinafter: the Claimant) and the club from country D, Club C (hereinafter: the Respondent), signed an Offer for the Player (hereinafter: the contract offer) for the season 2012/ According to the contract offer, the Claimant would be entitled, inter alia, to the following remuneration: - A monthly salary in the amount of 17,500; - The amount of 1,712 for each earned point ; - The amount of 30,000 for earning 16 points during the autumn round ; - The amount of 60,000 for staying in the highest league of country D; - The amount of 53,100 for finishing the season in the 4 th position. 3. Subsequently, on 1 July 2012, the Claimant and the Respondent concluded a Professional Contract for the Practice of Football (hereinafter: the contract), valid as from the date of signature until 30 June In particular, the contract entitled the player to a monthly salary in the amount of gross, corresponding to net. 5. Furthermore, 7 of the contract established the following: ( ) Para la participación en los partidos disputados en el torneo de la temporada primero división de país D 2012/2013 el jugador tiene derecho a la recompensa en la cantidad de brutos siendo netos por cada punto conseguido por el primer equipo que se pagarán en las siguientes proporciones: a) 100% del importe si el JUGADOR disputa por lo menos 75 minutos en un partido ( ) b) El importe del 75% del importe si el jugador disputa entre 45 a 75 minutos en un partido ( ), que es brutos ( ) siendo netos c) 50% del importe si el JUGADOR disputa entre 15 y 45 minutos en un partido, que es de brutos ( ) siendo 856 netos d) La cantidad de 25% si el JUGADOR es reserva o disputa menos de 15 minutos en un partido que es de 500 brutos ( ), siendo 428. " (... ) For the participation in the matches of the 2012/2013 highest league of country D, the player is entitled to a reward in the amount of 2,000 gross, corresponding to 1,712 net per point earned by the first team to be paid, as follows: a) 100 % of the amount if the [Claimant] participated in at least 75 minutes of each match (... ) b ) the amount of 75 % of the amount if the player participated between minutes in each match (... ), that is, 1,500 gross (... ) corresponding to 1,284 net. c ) 50 % of the amount if the [Claimant] participated between 15 and 45 minutes in each match, that is 1,000 gross (... ) corresponding to 856 net Player A, country B / Club C, country D 2

3 d ) The amount of 25 % if the player stayed in the reserve team or participated in less than 15 minutes in each match, that is, 500 gross (... ), corresponding to 428 net. (free translation from Spanish). 6. In addition, 20 of the contract stipulated the following: Todo lo no previsto en este Contrato estará sujeto a las disposiciones emitidas por la asociación de fútbol de país D, la UEFA o la FIFA, seguido por el Código Civil. Cualquier controversia que pudiera derivarse de este contrato las partes se someten a la decisión de las autoridades competentes del asociación de fútbol de país D. "All matters not provided for in this Agreement shall be subject to the provisions issued by the Football Association of country D, UEFA or FIFA, followed by the Civil Code. Any dispute arising from this contract shall be subject to the decision of the competent authorities of the Football Association of country D" (free translation from Spanish). 7. On 9 October 2013, the Claimant lodged a claim before FIFA against the Respondent, and requested the payment of an overdue amount of 221,852, plus corresponding interests, detailed as follows: - 78,752 corresponding to the sum of the 46 points earned by the Respondent; - 30,000 corresponding to the fact that the Respondent reached at least 16 points during the autumn round ; - 60,000 for staying in the same category during the 2012/2013 season; - 53,100 for finishing the 2012/2013 season in the 4 th position. 8. The Claimant stated that, after signing and accepting the contract offer, he went to country D, where the Respondent offered him to sign the contract in country D s language. According to the Claimant, he signed the contract in good faith, despite not understanding country D s language, without noticing that some of the amounts stated in the contract offer were removed. In particular, the Claimant explains that the payable bonuses as agreed upon in the contract offer, were missing. 9. Consequently, the Claimant argued that the amounts included in the contract offer are fully valid, as they have been agreed in writing and that he never declared that he resigned from them. According to the Claimant, the general principles of law do not allow a tacit resignation of rights. 10. In its reply, the Respondent denied FIFA s competence on the matter. Specifically, the Respondent considered that, according to 20 of the contract, the dispute should be considered by the Chamber for Solving Sports Disputes of the Football Association of country D (hereinafter: country D s NDRC). 11. After being requested by FIFA to provide additional evidence on the competence, the Respondent provided a copy of the Article 1 of the Resolution no.1/3 of the Management Board of the Football Association of country D on approving the Rules of the Chamber for Sports Dispute Resolutions. Player A, country B / Club C, country D 3

4 12. In relation to the payment of the bonuses, the Respondent recognized their existence in accordance with 7 of the contract. However, the club considered that, in accordance with 8 of the Regulations of the Respondent, such a bonus is divided by the Management Board of the Club at the request of the coach and team manager, and that therefore, they should only be awarded at their own discretion. 13. Regarding the payments related to the contract offer, the Respondent considered that this document is only an invitation to negotiation, and as such, is not a part of the contract. 14. In his replica, the Claimant argued that it is not proved that the Chamber for Solving Sports Disputes of the Football Association of country D respects the principle of equal representation of players and clubs, and that it is even unknown who are the arbitrators. 15. As to the substance, the Claimant insisted that the contract offer was fully valid and binding, since it was signed by both parties and that he never explicitly renounced to the terms of this document. 16. In its final comments, the Respondent insisted on the competence of the country D s NDRC. 17. In addition, the Respondent insisted that the payment of bonuses is of a discretionary nature, but that nevertheless, the Claimant was paid additional remuneration on 5 September 2012, 3 October 2012, 13 February 2013, April 2013 and 15 November Furthermore, the Respondent considered that the contract offer does not constitute a binding contract, and that only the contract should be valid. The Respondent argued that it was the Claimant s responsibility to verify the contents and stipulations of the contract, including the issues related to the language. II. Considerations of the Dispute Resolution Chamber 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 9 October Consequently, the 2012 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 2012, 2014 and 2015 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 Player A, country B / Club C, country D 4

5 combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2015) 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 from country B and a club from 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 20 of the contract, alleging that the competent body to deal with any dispute deriving from the relevant employment contract is the Chamber for Solving Sports Disputes of the Football Association of country D (hereinafter: country D s NDRC). 5. In this regard, the Chamber acknowledged that the Claimant insisted on FIFA s jurisdiction to deal with the present matter, arguing that it is not proved that if the country D s NDRC would ensure a fair procedure respecting the principle of equal representation of players and clubs. 6. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 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 dated 20 December 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 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 competence 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 members of the Chamber recalled 20 of the contract, which reads as follows: Todo lo no previsto en este Contrato estará sujeto a las disposiciones emitidas por l asociación de fútbol de país D, la UEFA o la FIFA, Player A, country B / Club C, country D 5

6 seguido por el Código Civil. Cualquier controversia que pudiera derivarse de este contrato las partes se someten a la decisión de las autoridades competentes del asociación de fútbol de país D. (Free translation of the second sentence: Any dispute arising from this contract shall be subject to the decision of the competent authorities of the Football Association of country D"). 10. In this regard, the members of the Chamber observed that 20 of the employment contract does not refer to one specific national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the members of the Chamber deemed that said clause could not serve as the basis on which the country D s NDRC should be declared the arbitration tribunal competent to decide on the present dispute, since the relevant clause did not contain a clear reference granting jurisdiction to a specific arbitration tribunal. 11. As a result, and taking into consideration all of the above 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 b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance. 12. The competence of the Chamber having been established, the Chamber analysed 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 2012, 2014 and 2015), and considering that the present matter was submitted to FIFA on 9 October 2013, the 2012 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 Chamber 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 for the assessment of the matter at hand. 14. In continuation, the members of the Chamber observed, as acknowledged by the parties, that, on 28 June 2012, a contract offer was signed by the Claimant and the Respondent, for the season 2012/ Furthermore, the Chamber also noted that, subsequently, on 1 July 2012, the player and the club concluded a professional contract, valid as from the date of signature until 30 June In view of the above, the members of the Chamber understood that, on the basis of the principle of lex posterior derogat priori and unless otherwise Player A, country B / Club C, country D 6

7 stated, a professional contract is deemed to supersede all previous offers and understandings concluded between the parties. Consequently, the Chamber established that only the contract concluded by the parties on 1 July 2012 could serve as a basis for the dispute at stake. 17. Consequently, the Chamber decided that the claim of the Claimant for bonuses which were stipulated in the contract offer, but not in the contract, has to be rejected. 18. For the sake of completeness, the members of the Chamber also noted that, according to the Claimant, the aforementioned contract had not been translated to him, as a result of which he had no knowledge of the integrity it its contents. In this regard, the Chamber deemed it fit to emphasise that a party signing a document of legal importance without knowledge of its precise contents, as a general rule, does so on its own responsibility. Consequently, the Chamber concluded that such argument could not be upheld. 19. In continuation, the members of the Chamber noted that, according to 7 of the contract, the Claimant was entitled to a series of bonuses per point earned by the Respondent s first team during its participation during the 2012/2013 season of country D s highest league. 20. In this respect, the Chamber recalled the basic principle of the burden of proof, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. In particular, the members of the Chamber noted that the Claimant did not provide any evidence, in order to substantiate that said bonuses were effectively due by the Respondent in the light of its sporting results and the Claimant s participation in the relevant matches. Therefore, the Chamber decided to reject the Claimant s request relating to outstanding bonus payments. 21. In view of the above, the Dispute Resolution Chamber concluded its deliberations by noticing that the Claimant made no further requests and that, consequently, the claim must be rejected in full. Player A, country B / Club C, country D 7

8 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 (CAS) Avenue de Beaumont 2 CH-1012 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Enclosed: CAS directives Player A, country B / Club C, country D 8