decision of the dispute resolution chamber -...
TRANSCRIPT
Decis ion of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 July 2017,
in the following composition:
Geoff Thompson (England), Chairman
Mario Gallavotti (Italy), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
Player A, Country B,
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute arisen between the parties
Player A, Country B / Club C, Country D Page 2 of 12
I. Facts of the case
1. On 15 June 2015, the Player of Country B, Player A (hereinafter: the Claimant),
and the Club of Country D, Club C (hereinafter: the Respondent), concluded a
“sport services agreement” (hereinafter: the contract), valid from 15 June 2015
until 30 June 2017.
2. Pursuant to art. 4.1.1 of the contract, the Claimant was entitled to receive the
following remuneration:
“Fee established for the benefit period 15.06.2015-30.06.2017 will be 14.000
euro net, as it follows:
- period 15.06.2015-30.06.2015 [sic] - 9.000 euro net/month
- 30.000 euro net – 30.12.2015.
- 30.000 euro net – 30.06.2016
- period 01.07.2016-30.06.2017 – 9.000 euro net/month
- 30.000 euro net – 30.12.2016.
- 30.000 euro net – 30.06.2017.
- 7.000 euro net to be paid until 15.07.2015, as salary for the period 15.06.2015 –
30.06.2015.
The salary will be paid on the 15th of the next month”.
3. In addition, the Claimant was entitled to receive match bonuses as follows:
- EUR 2,000 net per win payable as follows:
EUR 1,000 after the game;
EUR 1,000 by no later than 30 December or 30 June of the respective year;
- EUR 1,000 net per draw away payable as follows:
EUR 500 after the game;
EUR 500 by no later than 30 December or 30 June of the respective year.
4. In this respect, the contract specifies that “[t]he bonus for the official game will
be fully paid if the [Claimant] will pay minimum 45 minutes. If the [Claimant]
will play less than 45 minutes he will receive proportionally with the minutes he
play and with the proposal of the coach”.
5. Equally, art. 4.3 of the contract stipulates that “the [Respondent] will provide
accommodation and meals services, in the amount of 300 euro/month”.
6. Furthermore, art. 11 of the contract reads as follows:
“Any dispute arising between the parties out of or in connection with this
Agreement, including that relating to the validity, interpretation, execution or
termination, shall be settled amicably. If the parties fail to reach an amicable
settlement, the dispute shall be submitted for settlement either to the
jurisdictional organs of the Football Federation of Country D and the
Player A, Country B / Club C, Country D Page 3 of 12
Professional Football League, or to the competent ordinary courts at the
discretion of the parties”.
7. Art. 12.6 of the contract further stipulates that “[t]his enforcement law is the
Law of Country D”.
8. On 8 April 2016, the Respondent entered into insolvency proceedings.
9. On 25 May 2016, the judicial administrator of the Respondent terminated the
contract based on the Insolvency Law of Country D 85/2014.
10. On 14 June 2016, the Claimant lodged a claim in front of FIFA against the
Respondent for breach of contract, requesting the following:
- EUR 101,203.13, plus 5% interest p.a. as of each due date, as outstanding
salaries;
- EUR 220,000, plus 5% interest p.a. from 25 May 2016, as compensation for
breach of contract;
- EUR 4,236, plus 5% interest p.a. as from the date of the decision,
corresponding to the price of four round air tickets Country D – Country B;
- the imposition of sporting sanctions on the Respondent.
11. In his claim, the Claimant explains that art. 11 of the contract does not
constitute a valid jurisdiction clause and that, as a consequence, FIFA’s Dispute
Resolution Chamber is competent to deal with the matter in virtue of art. 22 lit.
b of the FIFA Regulations on the Status and Transfer of Players.
12. In continuation, the Claimant argues that the Respondent terminated the
contract without just cause on 25 May 2016; in particular, the Claimant outlines
that the termination occurred without any prior warning.
13. In addition, the Claimant outlines that until the date of termination, i.e. 25 May
2016, the following amounts had fallen due: (i) EUR 134,258 as salaries; (ii) EUR
3,550 as housing allowance; and EUR 16,000 as match bonuses. Considering the
above, the Claimant points out that the Respondent had paid him the amount
of EUR 52,604.87, resulting in an outstanding amount of EUR 101,203.13.
14. In its reply to the claim, the Respondent first requests the suspension of the
present procedure until the insolvency proceedings are finalised.
15. In continuation, the Respondent alleges that the Tribunal E has exclusive
competence to deal with the matter for the following reasons: (i) as per Law
85/2014, as from the opening of the insolvency proceedings, all claims must be
Player A, Country B / Club C, Country D Page 4 of 12
dealt with the insolvency judge and (ii) the Claimant has already registered a
credit at the Tribunal E.
16. In its comments as to the substance, the Respondent sustains that the
termination was justified by the insolvency proceedings opened against it,
which constitutes a just cause.
17. Furthermore, the Respondent rejects the Claimant’s calculation as to the
amounts paid.
18. Besides, the Respondent emphasises that the Claimant did not prove that he
actually bought the flight tickets claimed.
19. On 14 July 2016, the Claimant and the Club of Country D, Club F, concluded an
employment contract, valid as from 14 July 2016 until 31 May 2017 and
according to which the Claimant is entitled to receive a basic monthly salary of
XXX 30,310 as well as a sign-on fee of EUR 20,000.
20. On 22 July 2016, the syndic judge of the Tribunal E rendered a decision,
annulling the measure taken by the judicial administrator on 25 May 2016 as
the latter did not comply with the notice provided for in art. 123 of Law
85/2014.
21. On 28 July 2016, the Claimant and the Respondent concluded an “extrajudicial
transaction contract” (hereinafter: the settlement agreement), which, inter alia,
provides for the following:
“ART. 1 – OBJECT OF THE CONTRACT
As a result of the Court’s Decision […] where the Court ruled the revocation of
the judicial administrator’s measure of the contract termination, The parties
agreed that [the Respondent] regains the federative and economic rights of the
[Claimant].
[The Respondent] undertakes to conclude the Transfer Contract of the
[Claimant] to Club F.
[The Respondent] and the [Claimant] […] announce that any contractual
relationship is terminated, jointly, starting when the present Contract is signed.
[The Claimant] declares that he waves any claims from the litigations on trial
against [the Respondent] regarding the [Respondent]’s compulsion for
compensations due to termination without just cause, the file […] pending
before the Specialized Court G, namely the file […] pending before the Court H
and file no. XXX pending before FIFA’s DRC
[The Claimant] does not waive the claim registered in the [Respondent]’s
statement of affairs
[…]
Player A, Country B / Club C, Country D Page 5 of 12
ART. 2 – ACKNOWLEDGEMENT OF DUE PAYMENT
[The Respondent] and [the Claimant] admit that [the Respondent] owes to [the
Claimant] EUR 15.000 representing contractual financial rights from April
08/2016 until the termination of the Contract and the [Respondent] undertakes
to pay the sum as follows: EUR 5.000 until August 05/2016, EUR 5.000 until the
end of the year and the rest of the money will be paid in 2017, in 10 equal
instalments, starting January
ART. 3 – PENALTY CLAUSE
The parties agreed that in case of not fulfilling the contractual obligations
stipulated at art. 2 [the Respondent] will additionally pay to the [Claimant] EUR
15.000 as penalties (penalty clause)
ART. 4 – OTHER CLAUSES
Subject to the payment of the mentioned sums of money, [the Claimant]
declares that by signing this present transaction he waives any other financial
claim from [the Respondent], arising from the Contract’s execution or as a result
of the Contract’s Termination Notification
[…]
ART. 6 – APPLICABLE LAW AND THE COMPETENCE OF SOLVING LITIGATIONS
In case of litigation, The Parties will try to settle amicably for any dispute. If The
Parties do not agree, The Parties will address to the Competent Court of
Country D. The applicable law is the Law of Country D”.
22. On 14 August 2016, the Respondent informed FIFA that the parties had reached
a settlement agreement.
23. Thereafter, the Claimant submitted his replica, first recalling that in accordance
with FIFA and CAS jurisprudence, the FIFA Dispute Resolution Chamber is
competent to hear disputes involving club under insolvency proceedings as far
as it concerns the recognition of a debt.
24. In continuation, the Claimant stresses on the invalidity of the settlement
agreement. In particular, the Claimant explains that after the termination of the
contractual relationship with the Respondent on 25 May 2016, he entered into
an employment contract with Club F. In this respect, the Claimant insists that
the decision of the syndic of the Tribunal E rendered on 22 July 2016 merely
ascertained the illegality of the notice of termination dated 25 May 2016 (cf.
point I.20 above), but in no way led to the Claimant’s reinstatement into the
Respondent. Nevertheless, the Claimant argues that as from 27 July 2016, the
Respondent started to request him to resume duties, threatening him as well as
his new club to take legal action against them should he be fielded.
Consequently, and afraid of the risks for his further career, the Claimant
maintains that he eventually signed the settlement agreement. In view of the
above, and referring to art. 30 of the Swiss Code of Obligations (SCO) as well as
Player A, Country B / Club C, Country D Page 6 of 12
the jurisprudence of the Swiss Federal Tribunal related thereto, the Claimant
argues that the settlement agreement was signed under duress and should
therefore be considered null and void.
25. Furthermore, the Claimant asserts that the Respondent took advantage of his
weakness to obtain an unfair advantage and that, therefore, in accordance with
art. 21 of the SCO, he can legally refuse to honour the settlement agreement.
The Claimant then alleges that pursuant to art. 341 par. 1 of the SCO as well as
art. 38 of the Labour Code of Country D, he could not have validly waived a
right resulting from a mandatory provision of law, such as his right to
outstanding remuneration and compensation, without receiving anything in
exchange therefor.
26. Notwithstanding the above, the Claimant acknowledges having registered his
credit in the Respondent’s statement of affairs and therefore withdraws his
claim for outstanding remuneration. Nevertheless, the Claimant explains that
the recognition of his credit by the syndic judge does not have any impact on
the admissibility of his claim for compensation, the object of the latter claim
being the recognition of the termination of the contract without just cause by
the Respondent, and not the insolvency of the latter.
27. In its final comments, the Respondent argues that in accordance with its art. 6,
the validity of the settlement agreement should be assessed by the Courts of
Country D and in the light of Law of Country D.
28. In continuation, the Respondent rejects the Claimant’s assertion that the
settlement agreement was signed under duress and was to the benefit of the
Respondent only. In particular, the Respondent points out that the latter
agreement provides for a payment of EUR 15,000 in favour of the Claimant.
29. Furthermore, the Respondent highlights that the Claimant has registered a
credit in its statement of affairs and can therefore not be considered as having
waived his rights resulting from a mandatory provision of law.
30. In view of the above, the Respondent argues that by means of the settlement
agreement, the Claimant validly waived his right to claim compensation.
II. Considerations of the Dispute Resolution Chamber
1. First, 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 14
Player A, Country B / Club C, Country D Page 7 of 12
June 2016. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the 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 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
employment-related dispute with an international dimension between a Player
of Country B and a Club of Country D.
3. The Chamber however noted that the Respondent is of the opinion that the
Dispute Resolution Chamber has no competence to deal with the claim
considering that it is currently under an insolvency procedure. In particular, the
Chamber noted that, according to the Respondent, the Tribunal E has exclusive
competence to deal with the present matter.
4. The Chamber equally noted that the Claimant rejected such position and
alleged that FIFA had jurisdiction to deal with the present matter due to the
international dimension of the latter.
5. Taking into account the above, the Chamber emphasised that in accordance
with art. 22 of the Regulations on the Status and Transfer of Players (edition
2016), FIFA’s competence to deal with employment-related dispute with an
international dimension is without prejudice to the right of any player or club
to seek redress before a civil court for employment-related disputes.
6. 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 court derives from a clear reference in the
employment contract.
7. 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 contract at the basis of the present dispute
contained a clear jurisdiction clause.
8. In this respect, the Chamber recalled the content of art. 11 of the contract
which reads as follows:
Player A, Country B / Club C, Country D Page 8 of 12
“Any dispute arising between the parties out of or in connection with this
Agreement, including that relating to the validity, interpretation, execution
or termination, shall be settled amicably. If the parties fail to reach an
amicable settlement, the dispute shall be submitted for settlement either to
the jurisdictional organs of the Football Federation of Country D and the
Professional Football League, or to the competent ordinary courts at the
discretion of the parties”.
9. Having examined the relevant provision, the Chamber outlined that art. 11 of
the contract far from indicating one specific body, refers to at least three
different bodies. Consequently, the members of the Chamber came to the
unanimous conclusion that said clause can by no means be considered as a
clear jurisdiction clause in favour of the Ordinary Courts of Country D, and,
therefore, cannot serve as the basis to exclude the competence of the DRC.
10. In continuation, the Chamber focused on the Respondent’s assertion that the
competence of the Tribunal E would arise from Law 85/2014. In this regard, the
Chamber deemed it important to recall the content of art. 12 par. 3 of the
Procedural Rules, according to which any party claiming a right on the basis of
an alleged fact shall carry the burden of proof. Having this in mind, the DRC
wished to point out that the Respondent did not submit the relevant
legislation, thereby failing to successfully carry the burden of proof that the
Tribunal E would be competent based on Law 85/2014.
11. Along those lines, the DRC recalled its jurisprudence according to which, no
provision precludes it from ruling on questions validly brought before it in
relation with the existence of a monetary claim, in case an insolvency
procedure is opened at national level.
12. In view of the above, the Chamber established that the Respondent’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.
13. Furthermore, 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 14 June
2016, the 2016 edition of said regulations (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
Player A, Country B / Club C, Country D Page 9 of 12
14. 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 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.
15. In this regard, the members of the Chamber acknowledged that the Claimant
and the Respondent signed an employment contract valid as from 15 June 2015
until 30 June 2017. The DRC further observed that on 25 May 2016, the judicial
administrator sent a notice of termination to the player, which was annulled by
the syndic judge of the Tribunal E on 22 July 2016. Equally, the Chamber took
note that in the meantime, the Claimant had entered into an employment
contract with another Club of Country D. Furthermore, the Chamber noted that
on 28 July 2016, the Claimant and the Respondent concluded a settlement
agreement.
16. The Chamber then reviewed the claim of the Claimant, who argues that in
accordance with art. 341 par. 1 of the SCO, he could not have validly waived a
right resulting from a mandatory provision of law, such as his right to
outstanding remuneration and compensation. Moreover, the Chamber observed
that the Claimant asserts that he entered into the settlement agreement under
duress. In view of the above, the Claimant considers that the settlement
agreement should be null and void and that the Respondent should be held
liable for the termination of the contract without just cause on 25 May 2016.
17. At this stage, the Chamber turned its attention to Claimant’s argument based
on art. 341 par. 1 of the SCO. In doing so, the Chamber outlined that in
accordance with said article, claims arising from mandatory provisions of law or
the mandatory provisions of a collective employment contract cannot be waived
for the period of the employment and for one month after its end. In this
regard, the Chamber was eager to emphasise that according to the Claimant,
the contractual relationship must be deemed as terminated on 25 May 2016
regardless of the decision of the syndic judge made on 22 July 2016. Having this
in mind, the Chamber recalled that the settlement agreement was signed on 28
July 2016, i.e. more than two months after the date of termination of the
contractual relationship according to the Claimant. Consequently, and
considering the strict deadline of one month established in the art. 341 par. 1 of
the SCO, the Chamber considered the latter article inapplicable and decided to
disregard the Claimant’s argument in this regard.
Player A, Country B / Club C, Country D Page 10 of 12
18. Moreover, and notwithstanding the above, the members of the Chamber
deemed it relevant to point out that contrary to his assertion, the Claimant did
not waive his rights without receiving anything in exchange therefor. Indeed,
according to arts. 2 and 3 of the settlement agreement, the Respondent
committed to pay an amount of EUR 15,000 to the Claimant, as well as a penalty
of EUR 15,000 in case of default.
19. In continuation, the Chamber focused on the Claimant’s argument that the
Respondent took advantage of his weakness and that the settlement agreement
was signed under duress. In particular, the DRC outlined that the Claimant
asserts having been threatened. In this respect, the members of the Chamber
were astonished that the Claimant had not substantiated such a serious
allegation with any single concrete evidence. Therefore, and referring once
again to the content of art. 12 par 3 of the Procedural Rules, the DRC came to
the conclusion that the Respondent failed to satisfactorily carry the burden of
proof in this regard.
20. Furthermore, and for the sake of completeness, the Chamber wished to point
out that in any case, it lacked competence to assess the validity of the
settlement agreement in view of the content of its art. 6 which grants exclusive
competence to Courts of Country D for any dispute arising therefrom.
21. In view of the above, the Chamber deemed that the Claimant had not
presented any argument or documentation which would demonstrate the
nullity of the settlement agreement. Consequently, and after recalling its
jurisprudence according to which a party signing a document of legal
importance without knowledge of its precise content, as a general rule, does so
on its own responsibility, the Chamber concluded that the settlement
agreement constituted a valid and binding document by means of which the
Claimant waived any claim arising from the employment contract he might have
or have had against the Respondent. The Chamber felt comforted in its decision
by the explicit reference made in the settlement reference to the present claim.
22. On account of the above, the Chamber decided to reject the claim of the
Claimant in its entirety.
Player A, Country B / Club C, Country D Page 11 of 12
III. Decis ion 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 decis ion (legal remedy):
According to article 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).
Player A, Country B / Club C, Country D Page 12 of 12
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives