Decision of the Dispute Resolution Chamber

Transcription

1 Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 28 January 2016, in the following composition: Geoff Thompson (England), Chairman Theodore Giannikos (Greece), member Theo van Seggelen (Netherlands), member on the claim presented by the club, Club A, Country B as Claimant / Counter-Respondent against the player, Player C, Country D as Respondent 1 / Counter-Claimant and the club, Club E, Country F as Respondent 2 and the club, Club G, Country D as Respondent 3 and the club, Club H, Country I as Intervening Party regarding an employment-related dispute arisen between the parties

2 I. Facts of the case 1. On 7 July 2011, the player from country D, Player C (hereinafter: the player or the Respondent 1 / Counter-Claimant), born on 29 December 1991, and the Club A from Country B, (hereinafter: Club A or the Claimant / Counter-Respondent), signed an employment contract as well as an annex (hereinafter: the contract) valid as from the date of signature until 30 June According to the contract, the player was entitled, for each season, to the following annual remuneration: - EUR 65,000 gross as salary payable in twelve equal instalments; - EUR 25,000 as annual bonus; - EUR 10,000 as incentive payment if the player was fielded in at least 15 official matches and played for at least 45 minutes of such matches; - EUR 10,000 as additional incentive payment if the player was fielded in at least 30 official matches and played for at least 45 minutes of such matches. 3. The contract also establishes that the salary payments were due at the end of each month, while the bonus and incentive payments were due at the end of each season. 4. Furthermore, clause six of the contract establishes that For anything else not stipulated in the present contract, reference shall be made to the Royal Decree 1006/1985 of 26 June, which regulates the special labour relation of the professional athletes, the Collective Agreement and other applicable rules (original text: En lo no previsto en el presente contrato, se estará a lo dispuesto en el Decreto del país B 1006/1985 de 26 de junio, por el que se regula la relación laboral especial de los Deportistas Profesionales, Convenio Colectivo vigente y demás normas de aplicación ). 5. In addition, the contract contains the following compensation clause: In case of an unilateral termination of the contract by [the player], prior to its expiry and in accordance with article 16 of the Decreto del país B 1006/85 of 26 June 1985 and the FIFA Regulations on the Status of Players, it is established a compensation of three million euros (3,000,000 ) if Club A plays in the Second Division A and 50% more if the First Team of Club A plays in the First Division (original text: En caso de resolución unilateral, por parte de jugador C, del presente contrato antes de la finalización del mismo, se establece por aplicación del artículo 16 del Decreto del país B 1006/85 de 26 de junio de 1985 y del Reglamento FIFA sobre el Estatuto de Jugadores, una indemnización de tres millones de euros ( ), si el Club A milita en la categoría de Segunda División A y el 50% más, si el Primer Equipo del Club A milita en la Categoría de Primera División ). Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 2/12

3 6. On 30 December 2011, Club A entered into an insolvency procedure. 7. On 7 February and 9 March 2012, the player sent default notices to Club A requesting the unpaid salaries up to each respective date. 8. On 15 March 2012, the player terminated the contract by means of a registered letter sent to Club A, in view of the outstanding remuneration for the months of December 2011, January and February On 21 March 2012, Club A replied to the termination letter and stated that the unilateral termination of the contract by the player was without just cause (cf. points 12, 13 and 14 below). 10. On 14 March 2014, Club A lodged a claim in front of FIFA against the player for breach of contract, requesting the following: - EUR 3,000,000 as compensation for breach of contract; - EUR 1,500,000 for the loss of the value of the services of the player ; - interest at a rate of 5% p.a. on the above-mentioned amounts as from the date of termination of the contract; - the joint and several liability of the clubs Club E (hereinafter: Club E1) and Club G (hereinafter: Club G), for the payment of the above-mentioned amounts plus interest; - sporting sanctions to be imposed on the player; - legal costs. 11. In this regard, Club A firstly explained that it imposed two sanctions on the player in the following terms: a) On 2 February 2012, a fine of EUR 6, due to the fact that the player received authorization for holiday leave as from 18 until 26 December 2011, however he was absent from Club A as from 11 December 2011 until 19 January In this context, Club A informed the player, in a letter dated 19 January 2012 which was signed by the player, about such infraction and the player replied to Club A apologizing and stating that it would not happen again. In consequence, Club A imposed a fine of EUR 6, by means of a letter also signed by the player. Moreover, Club A alleged that this fine was offset from his salary. In this regard, Club A provided a copy of the letter whereby it informed the player about the fine, which establishes that, in order to conceal the sanction with the player s needs, Club A would discount the amount from the bonus payment of the relevant season and he would receive the entire salary of January b) On 14 March 2012, a fine of EUR 3, as the player made several declarations to a local newspaper that put Club A in a complicated Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 3/12

4 situation. In this regard, Club A sent a letter to the player on 24 February 2012, which was signed by the latter, informing him about the internal disciplinary procedures opened against him. According to Club A, as the player did not object the particular facts, it finally imposed a fine of EUR 3, on the player. In this context, Club A provided a copy of the letter whereby it informed the player about the fine, which was not signed by the player. Such letter also establishes that, in order to conceal the sanction with the player s needs, Club A would discount the amount from the bonus payment of the relevant season and he would receive the entire salary of March Furthermore, Club A explained in its statement of claim that the salary payable to the player for December 2011 was EUR 2,794 made of EUR 3,906 which is the net amount minus EUR 1,112 for the flight tickets paid on behalf of the player for his holidays. With regard to the salary of January 2012, Club A declared that the player was only entitled to receive his salary for eleven days as he only returned to Club A on 19 January Moreover, Club A explained that on 9 and 16 March 2012, it made two payments to the player of EUR 1, and EUR 720 respectively, in accordance with the Country B Insolvency Law. 13. In view of the above, Club A considered that for the months of December 2011, January and February 2012, the player was entitled to EUR 8,007 net while the sum of the aforementioned fines is EUR 10, and, therefore, Club A did not owe any amount to the player. Club A added that, due to the bankruptcy proceeding in which it is involved, it cannot make any payment without an express authorization from the Country B commercial court. 14. Moreover, Club A declared that it refused several offers from third clubs to buy the player. 15. Consequently and taking into account all the above, Club A determined that the player caused a huge damage to Club A by terminating the contract unilaterally without just cause and, thus, should be liable to pay EUR 3,000,000 in accordance with the compensation clause of the contract. Additionally, Club A requests the amount of EUR 1,500,000 as lucrum cessans as, the player, by terminating the contract prior to its expiry, denied Club A the opportunity to sell the player. 16. As to the liability of the new clubs of the player, Club A explained that, according to different articles published in the media, the player went to Club E1 right after leaving Club A but Club E1 dismissed him on 4 September Subsequently and basing itself on the information published in the media, Club A stated that Club G hired the player for a few months until Club G also dismissed him. In this regard, Club A considers that both aforementioned clubs shall bear responsibility in this matter, as they were both the new clubs of the player. Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 4/12

5 17. The player replied to the claim of Club A and lodged a counterclaim against it, however, firstly, he contested FIFA s competence to deal with the present matter. 18. As to the question of competence, the player referred to clause six of the contract (cf. point 4 above) in combination with article 19 of the relevant Decreto del país B 1006/1985, which establishes that conflicts between professionals and their clubs are of the competence of the national labour jurisdiction. In this regard, the player referred to the DRC jurisprudence and indicated that it is undisputed that the Country B courts are the only bodies entitled to hear the dispute at stake. 19. Furthermore, the player stated that Club A indeed accepted the competence of the Country B labour courts, as it lodged a claim against the player in front of such courts in June In this context, the player pointed to the fact that Club A, by lodging both claims, besides accepting the jurisdiction of the Country B labour courts, is acting under forum shopping. 20. As to the substance of the matter, the player firstly clarified that he arrived to Club A with 19 years old as a free agent. Secondly, the player explained that his monthly net salary was EUR 3,906 and that such monthly remuneration was systematically paid by Club A with delay. 21. As to the fines imposed by Club A (cf. point 12 above), the player pointed out that the first fine imposed on 2 February 2012 represented approximately 227% more than his monthly net salary, and the second fine imposed on 14 March 2012 represented 90,7% of his monthly net salary. In this regard, the player stated that such sanctions were completely disproportionate and had no legal basis whatsoever and as a consequence shall be ignored. 22. Moreover, the player indicated that on 24 February 2012, the head coach of Club A made certain statements to the media saying that he had requested Club A to dismiss the player because he was not cooperating with the insolvency procedure. 23. Concerning the payment of his salaries, the player highlighted that Club A acknowledged there were outstanding amounts in its correspondence dated 21 March However, the player acknowledged being fully paid for December 2011 by means of the payment made by Club A on 9 March Moreover, the player acknowledged having received part of the outstanding salary of January 2012 by means of the payments made by Club A during March 2012, thus, after the termination of the contract only. Additionally, the player stressed that Club A did not provide any explanation regarding the unpaid salary of February According to the player, the described situation left him with no other choice than to terminate the contract and that such termination was with just cause, Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 5/12

6 being thus entitled to receive compensation as well as the unpaid salaries. To this end and should FIFA declare itself competent to deal with the matter at hand, the player, on 26 January 2015, lodged a counterclaim against Club A for breach of contract requesting the following: - EUR 8,164 as outstanding salaries according to the following breakdown: EUR 2,436 for January 2012, composed of EUR 3,906 as the net due salary minus EUR 1,470 that the player acknowledges having received in March 2012; EUR 3,906 for February 2012; EUR 1,822 for 14 days of March 2012; - EUR 109,368 as compensation for breach of contract; - EUR 23,436 as losses and damages ; - sporting sanctions to be imposed on Club A. 25. Additionally and subsidiary to the above-mentioned requests, in case FIFA decided that the player terminated the employment contract without just cause, he requested FIFA to take into consideration: (i) the disproportionality of the compensation clause and, (ii) that the new employment contract signed by the player was only signed on 7 February 2014 for a much lower salary than with Club A. 26. For its part, Club E (hereinafter: Club E) replied to the claim and asserted that Club E1 and Club E are not the same club and that, therefore, Club E cannot be involved in the present proceedings as a party. In this regard, the Football Federation from country F informed FIFA, on 1 July 2014, that all assets of the sport club Club E1 spa in bankruptcy has been [sic.] transferred to the new club Club E srl and that Club E had been disaffiliated from the Football Federation from country F. 27. Should it however be considered as one club, Club E stated that the player was never registered with Club E or within the Football Federation from country F and, therefore, it cannot be considered as the player s new club in the terms of article 17 par. 2 of the FIFA Regulations. In this regard, Club E stated that it cannot be considered liable for the payment of any compensation potentially payable by the player. Moreover, Club E pointed out that it appeared from the file, that the player had just cause to terminate the contract with Club A as he had not received his salaries for three months and the fines imposed on him were disproportionate. In view of all the above, Club E requested FIFA to fully reject Club A s claim and to condemn Club A to pay all the legal costs incurred by Club E in this particular matter. 28. Club G provided as well its comments to Club A claim and explained that the player was not registered with it either. In this regard, Club G declared that it was contacted by the player s agent in September 2012, asking if it was interested in Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 6/12

7 hiring the player. According to Club G, later on it learned about the ongoing dispute between the player and Club A and, apparently, Club A and Club G held several meetings and negotiations about the possible resolution of the dispute, which were unsuccessful. Moreover, Club G stated that the relevant press article provided by Club A with its claim is completely fabricated", as the player was never registered with Club G. In this context, Club G concluded that Club A s claim is unfounded. 29. In its replica, Club A firstly insisted in FIFA s competence to deal with the present matter. In this context, it asserted that the player expressly accepted FIFA s jurisdiction in the letter of termination by stating I will present a claim to the competent FIFA s decision body. In this regard, Club A considered that the valid arbitration clause in favour of FIFA was established therein and accepted by Club A by lodging its claim in front of FIFA. 30. Additionally, as to the litis pendens or forum shopping claimed by the player, Club A pointed out that the proceedings initiated in the Country B labour courts were suspended several times due to the impossibility of locating the player. In this regard, Club A explained that, on 8 September 2014, it requested the definitive suspension of the proceedings in front of the Country B courts in view of the unsuccessful attempts to notify the player and that, therefore, the claim in front of FIFA should not be considered forum shopping, but seeking for only one effective and possible way to defend its interests. 31. As to the counterclaim lodged by the player, Club A pointed out that it is timebarred considering that the termination of the contract occurred on 15 March 2012 and the counterclaim was lodged on 26 January Regarding the substance of the matter at stake, Club A firstly recalled that the player accepted and admitted the facts that led to the fines imposed on him. In this respect, Club A reiterated that the player had been absent without justification for 31 days, thus, the relevant sanction was not disproportionate in accordance with the Collective Agreement. As to the second fine, Club A maintained that the player did not object to the facts and, again in line with the provisions of the above-mentioned Collective Agreement, Club A decided to apply the relevant sanction. In this regard, Club A concluded that, by the time of termination, the player owed Club A the amount of EUR 10, As to the salary of January 2012, Club A maintains that it only had to pay 11 days of the month and this, together with the payments acknowledged by the player for that month, resulted in no outstanding amount for January Club A further maintains that it paid the player more than what he was really entitled to, due to the fines, so Club A concludes that there were no outstanding amounts towards the player by the date of termination, i.e. 15 March Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 7/12

8 34. In addition, Club A insisted in the breach of the player by contravening [Club A] s discipline and by leaving Club A after putting an end to the contract. 35. Moreover, Club A insisted on its previous argumentation regarding the player being hired, first by Club E1 and then by Club G, according to several press articles and websites. 36. In view of the above, Club A repeated the petitions requested in its initial claim. 37. The player provided his duplica and insisted in FIFA s lack of jurisdiction to deal with the present case, adding that it is irrelevant the contents of the default notice and termination letter addressed to [Club A] since [the player], in fact, has never lodged a claim before the legal bodies of FIFA. 38. Furthermore, the player declared that his domicile and residence have always been known by Club A and, therefore, the relevant allegation to argue the suspension of the proceedings in front of the Country B labour courts is baseless and contradictory. 39. Additionally, the player repeats that the fines imposed on him are disproportionate in view of his monthly salary and in view of the fact that he only played 33 minutes with the team in the first quarter of the season, and that Club A tries to justify the failure to pay his remuneration by using outraged methods of calculation. 40. To this end, the player repeated his previous requests and maintained his counterclaim against Club A, should the DRC declare itself competent to deal with the present matter. 41. The player signed a new employment contract with the Club H from Country I, first on 30 August 2013 valid until 20 March 2015, according to which he was entitled to a monthly salary of 1,300. However, on 7 February 2014, the player and Club H signed a new employment contract valid as of the date of signature until 7 February According to such contract, the player was entitled to a monthly remuneration of 3, With regard to Club H, it provided a late correspondence asserting that, at the time it signed the employment contract with the player, it was not aware of the ongoing dispute between the parties at stake and that, therefore, it could not be considered as inducer to the breach. Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 8/12

9 II. Considerations of the Dispute Resolution Chamber 1. First of all, 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 14 March 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 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 b) of the Regulations on the Status and Transfer of Players (edition 2015; hereinafter: the Regulations), the Dispute Resolution Chamber shall, in principle, adjudicate on employment-related disputes between a club and a player, with an international dimension. 3. However, the Chamber acknowledged that the player contested the competence of the FIFA DRC to deal with the present case, alleging the exclusive competence of the Country B labour courts, based on article 19 of the Royal Decree 1006/1985, which regulates the labour relation of the professional athletes, the Collective Agreement and other applicable rules. 4. In particular, the Chamber took due note of the player s argument, according to whom the parties, by means of clause six of the contract (cf. point I.4. above), had voluntarily agreed upon the exclusive competence of the labour courts in Country B to deal with any employment-related dispute arising between them. 5. The Chamber also noted that Club A rejects the competence of the Country B labour courts over the present affair, alleging that the player expressly accepted FIFA s jurisdiction in his letter of termination, by stating that he would lodge a claim in front of FIFA. In this regard, the DRC noted that Club A considers such statement as a valid arbitration clause in favour of FIFA and that, therefore, the FIFA DRC should have jurisdiction over the present dispute. 6. Bearing in mind the foregoing, the members of the Chamber referred to clause six of the contract, according to which For anything else not stipulated in the present contract, reference shall be made to the Royal Decree 1006/1985 of 26 June, which regulates the special labour relation of the professional athletes, the Collective Agreement and other applicable rules. Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 9/12

10 7. In this context, the Chamber pointed out that the content of clause six of the contract was voluntarily agreed upon by the parties, when signing the contract on 7 July In this regard, the Chamber also referred to the wording of article 19 of the Royal Decree 1006/1985, which establishes that Any conflicts arising between a professional athlete and their club or sport entity, as a consequence of their employment contract, will fall under the jurisdiction of the labour justice. 9. At this point, the Chamber deemed it appropriate to emphasize that article 22 of the Regulations does not prohibit players and clubs from referring employmentrelated disputes possibly arisen between them to the local, national courts, should they have agreed upon the jurisdiction of said national courts. 10. In this context, the DRC wished to highlight that Club A, indeed, started judicial proceedings against the player in front of the Country B labour courts, which were notified to the player on 1 June 2012 and which were, later on and upon request of Club A, suspended by the same courts on 10 September 2014, i.e. after Club A had lodged the claim in front of FIFA. 11. Having stated the above, the Chamber concluded that, in the present case, the parties, when signing the contract on 7 July 2011, had voluntarily and beforehand agreed upon the content and the applicability of clause six of the contract, and accepted the exclusive jurisdiction of the Country B labour courts to decide upon any employment-related dispute arisen between them, in accordance with article 19 of the Royal Decree 1006/ Additionally, the Chamber determined that, by lodging a claim against the player in front of the Country B labour courts two years prior to lodging a claim in front of FIFA, Club A expressly accepted the jurisdiction of the Country B labour courts to decide upon the present dispute. The Chamber wished to emphasize that, by doing so, Club A had also clearly not accepted a new agreement on FIFA s jurisdiction, as argued in its replica. 13. Moreover, the members of the Chamber made reference to the arbitral award rendered by the Court of Arbitration for Sport (CAS) on 10 December 2015, by means of which said body ruled, in the scope of a dispute with similar merits and in relation to a clause with the exact same wording as clause six of the contract at stake, that FIFA s DRC was not competent to deal with such dispute because of the exclusive jurisdiction of the Country B labour courts and in accordance with the choice of forum contained in the relevant contract (CAS 2015/A/XXXX Player X v. Club O ). Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 10/12

11 14. In consideration of all the foregoing, the Chamber concluded that the claim lodged by Club A before the FIFA DRC was inadmissible. 15. Finally, the Chamber recalled the contents of the counterclaim of the player, lodged on 26 January 2015 only. In this regard, the members of the Chamber deemed that such claim relating to a breach of contract, being 15 March 2012 the date of termination of the relevant contract, must be considered barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant / Counter-Respondent, Club A, is inadmissible. 2. The counterclaim of the Respondent 1 / Counter-Claimant, Player C, is inadmissible. ***** Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 11/12

12 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: For the Dispute Resolution Chamber: Court of Arbitration for Sport Avenue de Beaumont Lausanne Switzerland Tel: Fax: info@tas-cas.org Markus Kattner Acting Secretary General Club A, Country B / Player C, Country D / Club E, Country F / Club G, Country D / Club H, Country I 12/12