Dispute Resolution Chamber
Texto da decisão
Decision of the Dispute Resolution Chamber
(DRC) Judge
passed on 28 July 2021
regarding an employment-related dispute concerning player A
BY:
Johan Van Gaalen (South Africa), DRC Judge
CLAIMANT:
Player A, Country A
Represented by
RESPONDENT:
Club B (now Club B), Country B
Represented by
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I.
FACTS OF THE CASE
1.
On 30 August 2019, the player from country A, Mr. Player A (hereinafter: the player or the
Claimant), and the futsal club from country B, Club B (now Club B) (hereinafter: the club or
the Respondent), signed an employment contract valid as from 1 September 2019 until 1
September 2020 (hereinafter: the employment contract).
2.
In accordance with clause 4 of the employment contract, the club undertook to pay the
player a monthly remuneration of EUR 2,043 net (i.e. EUR 2,149 gross), payable until the
10th working day of the following month.
3.
Additionally, clause 12 of the employment contract stipulated the following (freely
translated to English):
“Article 12. Disputes.
Any dispute relating to the execution of the present contract will be submitted to the
Football association B for conciliation, without prejudice to the rights of the co-contracting
parties to bring the matter before the competent judge.
The parties acknowledge that they have read and understood the above provisions, as well
as the Statutes and Regulations of the League B and the Football association B and consider
that all stipulations to the contrary are null and void”.
4.
On 12 May 2020, the club announced in its social media that the player was no longer part
of its squad.
5.
On 28 April 2020, the player sent the club a default notice requesting outstanding
remuneration in the amount of EUR 2,860.20 (i.e. 70% of the salary of April and the full
salary of May 2020) and compensation for breach of contract amounting to EUR 6,129.
The player granted the club a 10 days’ deadline to cure its breach, to no avail.
II.
PROCEEDINGS BEFORE FIFA
6.
On 10 May 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
7.
The claim of the player
In his claim, the player explained that due to the COVID pandemic, labour authority of
country B paid 70% of his salaries to the club as from April 2020. Nevertheless, the player
claimed that the club failed to forward him such resources and did not pay his salaries of
April and May 2020.
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8.
Furthermore, the player argued that the club terminated the employment contract without
just cause on 31 May 2020.
9.
Having stated the above, the player held that he is entitled to receive his outstanding
remuneration plus a compensation for breach of contract, as follows:
a. EUR 2,860.20 as outstanding remuneration plus interest as from the due dates, broken
down as follows:
(i)
EUR 1,430.10 net as the salary of April 2019; and
(ii)
EUR 1,430.10 net as the salary of May 2019.
b. EUR 6,129 as compensation for breach of contract, corresponding to the residual value
of the employment contract (i.e. the salaries from June until August 2020).
b.
Position of the club
10.
In its reply, the club challenged FIFA’s competence to hear the dispute based on the
allegation that “due to the public order of country B, jurisdiction of the labour court of
Country B is only able to hear claims / litigations relating to the execution or termination of
employment contracts”.
11.
In this respect, the club stressed that the labor courts of country B has exclusive competence
to hear the dispute at stake pursuant to the art. L.1411-4 of the labor code of country B.
12.
At the end, the club wrote that the claim should be ruled inadmissible and, specifically,
that: “Dispute Resolution Chamber (DRC) of FIFA will have to declare materially
incompetent for the benefit of the labour court of Country B”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
13.
Competence and applicable legal framework
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 10 May 2021 and submitted
for decision on 28 July 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
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14.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition February 2021) (hereinafter: the Regulations),
he is, in principle, competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
country A and a club from country B.
15.
At this point, the DRC Judge recalled that, in accordance with art. 22, caput, of the
Regulations, FIFA’s competence to deal with employment-related disputes 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.
16.
In relation to the above, the DRC Judge deemed vital to outline that one of the basic
conditions that needs to be met in order to establish that another deciding-body is
competent to settle said dispute is that the jurisdiction of the relevant national court derives
from a clear reference in the employment contract.
17.
Therefore, in order to analyse whether he was competent to adjudicate on this matter, the
DRC Judge considered that he should, first and foremost, analyse whether the contract at
the basis of the present dispute contained a clear and specific jurisdiction clause.
18.
As such, the DRC Judge turned his attention to the content of clause 12 of the employment
contract. In doing so, the DRC Judge acknowledged that said provision does not make any
reference to the ordinary courts of Country B, as claimed by the club. On the contrary, the
DRC Judge observed that clause 12 set forth that any dispute arising from the employment
contract should be referred to the Football association B for conciliation only. In addition,
said clause did not mention any specific deciding-body in case of a remaining controversy
between the parties.
19.
For the sake of completeness, the DRC Judge also wished to point out that the club did not
submit any convincing evidence capable of demonstrating the labour courts of country B
would have exclusive jurisdiction to hear the dispute at stake, thereby failing to successfully
carry the burden of proof in line with art. 12 par. 3 of the Procedural Rules.
20.
Along those lines, the DRC Judge was firm to determine that the club’s objection to the
competence of FIFA to deal with the present matter had to be rejected. Consequently, the
DRC Judge decided that he was competent to hear this dispute.
b.
21.
Burden of proof
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
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22.
In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
Merits of the dispute
23.
His competence and the applicable regulations having been established, the DRC Judge
started by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
24.
With the above in mind, the DRC Judge moved to the substance of the matter, and noted
that the player lodged a claim against the club seeking payment of outstanding
remuneration and compensation for breach of contract, claiming that the club terminated
the employment contract without just cause on 31 May 2021.
25.
In this context, the DRC Judge carefully analysed the documentation brought forward by
the parties and was mindful of the fact that the club failed to present any response as to
the substance of the player’s claim.
26.
As a consequence of the aforementioned consideration, the DRC Judge determined that,
in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the
basis of the documents already on file, in other words, upon the statements and documents
presented by the player. Likewise, the DRC Judge considered that the club renounced its
right to defence and thus accepted the allegations of the player as to the unlawful
termination of the employment contract, entailing that it should be liable to the
consequences that follow.
27.
In light of the above, the DRC Judge first of all sought to establish the remuneration that
had remained outstanding at the time of the termination. In this respect, the DRC Judge
noted that the player asserted that his salaries April and May 2019 were outstanding.
Accordingly, the DRC Judge stressed that said amounts: (i) have a solid contractual basis;
(ii) were sufficiently proved by the player; and (iii) remained uncontested by the club.
28.
As a consequence, and in accordance with the general principle of pacta sunt servanda, the
DRC Judge determined that the club must fulfil its obligations towards the player and is to
be held liable for the payment of outstanding remuneration as requested.
29.
With regard to the claimed interest, the DRC Judge, applying the constant practice of the
Chamber decided to award the player 5% interest p.a. on said amounts as from their due
dates (i.e. the following day upon the 10th working day of each relevant month – cf. clause
4 of the employment contract) until the date of effective payment.
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30.
In continuation, the DRC Judge went on to deal with the consequences of the early
termination of the contract without just cause by the club. In this context, the DRC Judge
decided that, taking art. 17 par. 1 of the Regulations into consideration, the player is
entitled to receive compensation for breach of contract from the club, in addition the
aforementioned outstanding remuneration and its respective interest.
31.
To this extent, the DRC Judge outlined that in accordance with the aforementioned
provision, 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 coach 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.
32.
In application of the relevant provision, the DRC Judge held that he first had to clarify
whether the employment contract contained any clause by means of which the parties had
previously agreed on compensation payable by the contractual parties in the event of
breach. In this regard, the DRC Judge established that no such compensation clause was
included in the employment contract at the basis of the matter at stake.
33.
Subsequently, and in order to evaluate the compensation to be paid by the club, the DRC
Judge took into account the remuneration due to the player in accordance with the
employment contract as well as the time remaining on the same contract, along with the
professional situation of the player after the early termination occurred.
34.
For the sake of clarity, the DRC Judge emphasized that in line with the player’s claim and
the evidence on file, there were still three months remaining to the expiry of the
employment contract at the time of termination (i.e. from June until August 2020).
35.
Consequently, the DRC Judge outlined that the remaining value of the employment
contract from the early termination until the regular expiry amounted to EUR 6,129 (i.e.
three times EUR 2,043) and that such an amount shall serve as the basis for the final
determination of the amount of compensation due for breach of contract.
36.
Subsequently, the DRC Judge verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. Accordingly, the DRC Judge acknowledged
that the player remained unemployed after the termination of the employment contract
and was not able to mitigate his damages.
37.
Furthermore, the DRC Judge confirmed for the sake of completeness that because the
termination had not taken place due to overdue payables, no additional compensation was
due to the player.
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38.
On account of all of the above-mentioned considerations and the specificities of the case
at hand, the DRC Judge decided that the club must pay the amount of EUR 6,129 to the
player for breach of contract in the present matter.
39.
With regard to the claimed interest, the DRC Judge, applying the constant practice of the
Chamber, decided to award the player 5% interest p.a. on the said amount as from the
date of the claim (i.e. 10 May 2021).
40.
Finally, the DRC Judge referred to par. 1 lit. and 2 of art. 24bis of the Regulations, which
stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant amounts
of outstanding remuneration and/or compensation in due time.
41.
In this regard, the DRC Judge highlighted that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
42.
Therefore, bearing in mind the above, the DRC Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become immediately effective on the club in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
43.
The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
44.
The DRC Judge recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 8 of the Regulations.
d.
45.
Costs
The foregoing having been established, the DRC Judge referred to article 18 par. 2 of the
Procedural Rules, according to which “DRC proceedings relating to disputes between clubs
and players in relation to the maintenance of contractual stability as well as international
employment related disputes between a club and a player are free of charge”. Accordingly,
the DRC Judge decided that no procedural costs were to be imposed on the parties.
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46.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
47.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club B (now Club B), has to pay to the Claimant, the following amounts:
- EUR 1,430,10 as outstanding remuneration plus 5% interest p.a. as from 15 May 2019
until the date of effective payment;
- EUR 1,430,10 as outstanding remuneration plus 5% interest p.a. as from 17 June 2019
until the date of effective payment; and
- EUR 6,129 as compensation for breach of contract plus 5% interest p.a. as from 10 May
2021 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
6.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of three entire
and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
paid by the end of the of the three entire and consecutive registration periods.
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7.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
8.
This decision is rendered without costs.
For the Dispute Resolution Chamber Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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