Decision of the Dispute Resolution Chamber - FIFA.comresources.fifa.com/mm/document/affederation/administration/02/92/... · Decision of the Dispute Resolution Chamber ... the Claimant

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


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


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

[…]


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


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


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:


“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.


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.


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.


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).


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

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