Decision of the. Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 17 June 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Carlos González Puche (Colombia), member on the claim presented by the player, I, from country M represented by Mr xxxxxx as Claimant against the club, B, from country I as Respondent regarding an employment-related dispute between the parties

2 I. Facts of the case 1. On 29 December 2014, the player from M, I (hereinafter: Claimant or player) and the club from I, B (hereinafter: Respondent or club) signed an employment contract, valid as from 29 December 2014 until 31 December 2015 (hereinafter: the contract). 2. According to article 4 of the contract, the player was entitled to inter alia receive the total amount of xxx (xxx) 950,000,000, as follows: a beginning income of xxx 190,000,000, due no later than 30 (thirty) days after the Contract Signature ; a remaining income of xxx 760,000,000, consisting of 12 monthly salaries of xxx 63,333,000, due on date of monthly salary payment ; Further, according to article 1.b.v. of the contract, the player is entitled to Consumption fund in the amount of xxx 2,000,000 per month. 3. Article 13 of the contract provides for the following: The parties agree to settle all disputes arisen from or in its relation with this Agreement or its application will be brought to NDRC or CAS relating with the regulations made by Football Federation of I and FIFA. 4. The player states that the 2015 season of the Super League only lasted three rounds, because of a conflict arisen between the FA and Ministry of Youth and Sport of I. According to the player, as a result of said conflict, on 2 May 2015 the Football Federation of I terminated the competition, basing its decision on the existence of a force majeure. 5. Further, the player holds that he did not receive any payment after 5 June 2015 and that on 6 June 2015, the club terminated his contract via a document referred to as termination of the cooperation agreement between the club B Club with soccer players. 6. According to the player, on 16 June 2015 he protested against the termination of his contract per an , sent to the club via the Football Federation of M. The player further holds that he did not receive a reply from the club (cf. point I.11 below). 7. On 18 August 2015, the player lodged a claim before FIFA against the club, claiming payment of monthly salaries and compensation funds in accordance with Professional Football Player Agreement, requesting the total amount of xxx 522,666,664, as follows: Player I, country M / Club B, country I 2/10

3 8 monthly payments of Consumption fund (allegedly for the period May 2015 until December 2015), in the total amount of xxx 16,000,000; 8 monthly salaries of xxx 63,333,333 (allegedly for the period May 2015 until December 2015), according to the player the total amount of xxx 506,666,668 ; The player further requested 5% interest p.a. on the abovementioned amounts as from 5 June 2015, as well as procedural costs to be paid by the club. 8. In this respect, the player states that the club failed to pay him 8 monthly salaries and 8 monthly payments of consumption fund and that the contract did not contain a force majeure clause. Therefore, the decision of the Football Federation of I to terminate the competition cannot be categorized as a force majeure, because the situation between Football Federation of I and the Government was not unpredictable. 9. In its reply, the club argued that FIFA is not competent to deal with the matter at hand, since the Football Federation of I Players Status Committee (hereinafter: the I NDRC) has competence in the present matter. 10. As to the substance, the club argued that it has no further responsibilities towards the starting salary and the down-payment fee. Furthermore, the club holds that all other players and officials, except for the player, accepted the dismissal of the contract, due to the uncertainties of national football competition. 11. In addition, the club argues that it never received the dated 16 June 2015, allegedly sent via the Football Federation of M. In this respect, the club holds that this was sent to the player s agent instead (cf. point I.6 above). 12. Finally, the club concludes that the termination of the I competition is a force majeure and that it is only obliged to pay the player the amounts due before a decision of force majeure situation occurred, plus 1-month salary. 13. In his reply as to the club s objection to the DRC s competence, the player holds that the I NDRC is not competent to deal with the matter at hand, because there is no established principle of equal representation between players and clubs, and therefore, no fair proceedings are guaranteed. The player concludes that FIFA is competent to deal with the matter. 14. After the termination of his contract, on 27 July 2015, the player was registered as an amateur player with the club M. Player I, country M / Club B, country I 3/10

4 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 matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 18 August Consequently, the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (edition 2015; 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 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 would, in principle, be competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from M and a club from I. 3. However, the Chamber acknowledged that the club contested the competence of FIFA s deciding bodies to deal with the present case, stating that any dispute arisen between the parties, should be submitted to the I NDRC, which has competence in the present matter. 4. In this regard, the Chamber noted that the player rejected such position and insisted that FIFA has jurisdiction to deal with the present matter, because the I NDRC does not respect the principle of equal representation of players and clubs and cannot provide for fair proceedings. 5. Taking into account the above, the Chamber emphasised that, in accordance with art. 22 lit. b) of the 2016 FIFA Regulations, 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 In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January While analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether Player I, country M / Club B, country I 4/10

5 the employment contract at the basis of the present dispute actually contained a clear and exclusive jurisdiction clause. 7. Having said this, the members of the Chamber turned their attention to article 13 of the contract, which stipulates that The parties agree to settle all disputes arisen from or in its relation with this Agreement or its application will be brought to NDRC or CAS relating with the regulations made by Football Federation of I and FIFA. 8. In view of the aforementioned clause, the members of the DRC were of the opinion that article 13 of the employment contract does not make clear and specific reference to one specific national dispute resolution chamber in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the members of the Chamber deem that said clause can by no means be considered as a clear and exclusive arbitration clause in favour either of the national deciding bodies, i.e. Football Federation of I Players Status Committee. 9. Notwithstanding the above, the members of the Chamber noted that the club did not present any documentation in favour of the competence of the I NDRC, as a result of which it deemed that the club also failed to provide substantial evidence that the I NDRC consisted of an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs. 10. As a consequence of the above-mentioned elements (cf. point II.8 and II.9 above), the Chamber concluded that based on the documents and statements on file the contract did not contain a clear and specific arbitration clause, supporting the alleged competence of the I NDRC to deal with the present dispute. As a result, the Chamber established that the club s objection to the competence of FIFA to deal with the present matter had to be rejected and that the DRC 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. 11. In continuation, 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 (edition 2016), and considering that the present claim was lodged on 18 August 2015, the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance. 12. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as Player I, country M / Club B, country I 5/10

6 the arguments and the documentation submitted by the parties. 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. 13. In this respect, the members of the DRC acknowledged that it was undisputed by the parties that, on 29 December 2014, they signed an employment contract, in accordance with which the player was entitled to receive, inter alia, xxx 190,000,000 as sign-on fee, payable 30 days after the signing of the contract, as well as 12 monthly salaries in the amount of xxx 63,333,000 each and a monthly payment of xxx 2,000,000 as consumption fund. 14. In continuation, the members of the Chamber noted that the player lodged a claim against the club, maintaining that on 6 June 2015, the club unilaterally terminated the contract, based on the results of the evaluation and the selection training of the club, as well as on the club s evaluation of the competition 2015 decision. Based on these circumstances, the player held that on 6 June 2015, the club had terminated the contract without just cause and consequently, asks to be awarded the payment of compensation for breach of the employment contract. 15. The Chamber noted that the club, on the other hand, rejected the claim put forward by the player. According to the club, it had terminated the contract on the basis of the decision of the Football Federation of I to cancel the national competition for the season 2015, which was according to the club a force majeure situation. Furthermore, the club holds that it is only obliged to pay the player the amounts he was entitled to before the force majeure situation occurred, plus one additional monthly salary. 16. The members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties and the fact that it remained undisputed between the parties that the club terminated the employment contract on 6 June 2015, was to determine as to whether the club had terminated the contract as per said date with or without just cause and subsequently, it would be necessary to determine the consequences of the early termination of the contractual relationship. 17. In this respect, the Chamber acknowledged that the player argued that on 6 June 2015, the club terminated the contract without just cause and holds that the cancellation of the I competition for the season 2015 by the Football Federation of I cannot qualify as a situation of force majeure. 18. Moreover, the members of the Chamber, in first place, clarified the concept of this legal institute and stated that, as a general rule, it is applicable to unpredictable situations, facts or circumstances that are extraordinary and unexpected. Player I, country M / Club B, country I 6/10

7 19. In addition, the Chamber considered that the reasons put forward by the club, i.e. that the I competition for the season 2015 was cancelled by the Football Federation of I by declaring force majeure on 2 May 2015, as a result of a conflict arisen with the Ministry of Youth and Sport of I, cannot be sustained. 20. Moreover, the club has not presented any documentation in this respect and in support of its allegations. What is more, in any case, the situation of the national association cannot possibly serve as a justification for non-compliance with respect to the timely payment of the player s remuneration under the present contract. 21. Furthermore, in the light of the fact that the player also holds the club based the termination of contract on an evaluation and selection training, the Chamber wished to emphasise that the alleged insufficient performance of a player, is a purely unilateral and subjective evaluation by the club. As a result, the Chamber emphasized that said unsatisfactory performance cannot, by any means, be considered as a valid reason to terminate the contract of a player, as it is the result of a purely subjective perception, not measurable in objective criteria. Thus, it cannot be considered as a just cause for the premature termination of an employment contract. 22. On account of all of the above, the members of the Chamber decided that the club terminated the contract as per 6 June 2015 without just cause. 23. Having established that the club is to be held liable for the termination of the employment contract without just cause, the Chamber focused its attention on the consequences of such unjustified failure. 24. In continuation, prior to establishing the consequences of the breach of contract without just cause by the club in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of any unpaid remuneration at the moment the contract was terminated by the club. 25. First of all, the members of the Chamber concurred that the club must fulfill its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of pacta sunt servanda. 26. Consequently, the Chamber decided that the club is liable to pay to the player the remuneration that was outstanding at the date of the termination (6 June 2015), i.e. the amount of xxx 65,333,000, corresponding to one monthly salary of xx 63,333,000 for May 2015 and xxx 2,000,000 as payment of consumption fund for the month May 2015, which amounts had fallen due on 1 June Player I, country M / Club B, country I 7/10

8 27. In addition, taking into account the player s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the club must pay to the player interest of 5% p.a. on the amount of outstanding remuneration as of 5 June 2015, until the date of effective payment. 28. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 29. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was agreed upon between the club and the player. 30. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract until 31 December 2015 and concluded that the player would have received in total xxx 457,331,000 as salaries, had the contract been executed until its expiry date. 31. The Chamber further noted that, according to the player s declaration, he had not been able to sign an employment contract with another professional club during the relevant period of time, but that on 27 July 2015, he was registered as an amateur for the club FK M. As a result, the Chamber held that no mitigation shall be applied. 32. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of xxx 457,331,000 as compensation for breach of contract in the case at hand, consisting of 7 monthly salaries and 7 payments of consumption fund. 33. In addition, taking into account the player s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the club must pay to the player interest of 5% p.a. on the amount of Player I, country M / Club B, country I 8/10

9 compensation as of the date of the claim, i.e. 18 August 2015 until the date of effective payment. 34. For all the above reasons, the DRC decided to partially accept the claim of the player and holds the club liable to pay the player the amount of xxx 65,333,000 as outstanding remuneration, plus 5% interest p.a. as of 5 June 2015 until the date of effective payment, as well as the amount of xxx 457,331,000 as compensation for breach of contract, plus interest of 5% p.a. as of 18 August 2015, until the date of effective payment. 35. Moreover, the Dispute Resolution Chamber decided to reject the player s claim pertaining to procedural costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber s respective longstanding jurisprudence in this regard. 36. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the player is rejected. ***** III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, I, is partially accepted. 2. The Respondent, B, has to pay to the Claimant, within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of xxx 65,333,000, plus 5% interest p.a. as from 5 June 2015 until the date of effective payment. 3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of contract in the amount of xxx 457,331,000, plus 5% interest p.a. as from 18 August 2015 until the date of effective payment. 4. In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2. and 3. are not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any further claim lodged by the Claimant is rejected. Player I, country M / Club B, country I 9/10

10 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ***** 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 Lausanne Switzerland Tel: Fax: info@tas-cas.org For the Dispute Resolution Chamber: Marco Villiger Deputy Secretary General Encl. CAS directives Player I, country M / Club B, country I 10/10