Labour Disputes
Texto da decisão
REF
Decision of the
Dispute Resolution Chamber
passed on 8 October 2021
regarding an employment-related dispute concerning the player A
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Tomislav Kasalo (Croatia), Member
Daan de Jong (the Netherlands), Member
CLAIMANT:
Player A, Country A
RESPONDENT:
Club B, Country B
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I.
Facts of the case
1.
On 9 August 2018, the player from country A, Player A (hereinafter: the player or the
Claimant), and the Country B club, Club B (hereinafter: the club or the Respondent), concluded
an employment contract valid as from 1 August 2018 until 30 June 2020 (hereinafter: the first
employment contract).
2.
In accordance with clause 4 of the first employment contract, the club undertook to pay the
player the following amounts:
a. Season 2018/2019: EUR 400,000 net on 31 August 2018 and 12 monthly instalments
of EUR 300,000 net each; and
b. Season 2019/2020: EUR 400,000 net on 31 August 2019 and 12 monthly instalments
of EUR 300,000 net each.
3.
On 17 December 2018, the player put the club in default and granted it a 15 days’ deadline
to proceed the payment of EUR 600,000 net, corresponding to his salaries of October and
November 2018.
4.
On 8 October 2019, the player put the club in default and granted it a 15 days’ deadline to
proceed the payment of EUR 700,000 net, corresponding to the advance payment due in July
2019 and his salary of September 2019.
5.
On 14 November 2019, the player and the club concluded another employment contract valid
for the additional period between 1 July 2020 and 30 June 2022 (hereinafter: the second
employment contract).
6.
Pursuant to the second employment contract, the club undertook to pay the player the
following amounts:
a. Season 2020/2021: EUR 500,000 net on 1 July 2020 and 12 monthly instalments of
EUR 366,666 net each; and
b. Season 2021/2022: EUR 500,000 net on 1 July 2021 and 12 monthly instalments of
EUR 366,666 net each.
7.
On 19 November 2019, the player put the club in default and granted it a 15 days’ deadline
to proceed the payment of EUR 600,000 net, corresponding to his salaries of September and
October 2019.
8.
On 19 April 2020, the club sent the player a “letter of notification” by means it referred to the
COVID pandemic and informed that its “reduction policy” would be, inter alia, as follows:
“20.000 Currency of Country B [fixed] amounts of monthly wage or less, no reduction shall
be applied,
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whatever amount above that of monthly wage, 50% reduction shall [be] applied. The
reduction policy period shall start from 15-03-2020 until the resumption of sport activities,
club training, and the disappearance of the Corona Virus Pandemic”.
9.
On 27 April 2020, the player replied to the abovementioned correspondence and expressly
informed that the he did not agree with the unilateral variation of the second employment
contract. In addition, the player reiterated that he had outstanding remuneration that fell due
before the suspension of the championship, and required copy of several financial
documents.
10. On the same date, i.e. 27 April 2020, the player put the club in default and granted it a 15
days’ deadline to proceed the payment of EUR 600,000 net, corresponding to his salaries of
February and March 2020.
11. On 7 June 2020, the player notified the club the termination of the second employment
contract due to outstanding remuneration. In this opportunity, the player referred to his
previous default notices sent to the club and informed that it had overdue payments towards
him for EUR 1,200,000, corresponding to his salaries from February to May 2020.
12. On 11 June 2020, the parties concluded a settlement agreement by means of which the club
acknowledged its breach of contract and the parties formalized a “positive solution of the
dispute” that should “integrate the content of the [second] employment contract”
(hereinafter: the settlement agreement).
13. Clauses 1, 2, 3 and 4 of the settlement agreement stipulated the following:
“1. The Club pays the full amount of the salaries of February (300,000 euros) and an
advance part of salary of March 2020 (225,000) for the total sum of 525,000 euros within
24 hours from the signature of this agreement and deliver receipts upon signatures.
2. The Club will pay remaining dues and salaries of April and May 2020 within 30 days from
the signature of this agreement with agreement of the players and club;
3. Moreover, the Club agrees to pay the commission due to the agent of the player for the
renewal of the contract as for the separate agreement signed on 11 June 2020. In case of
failure to pay the commission to the Agent of the player, this agreement will be considered
null and void.
4. Upon fulfilment of the abovementioned conditions (points 1, 2 and 3), the player will
waive his termination notice and any claim related. In case the payments mentioned above
will not be completed this agreement will not have any value and the employment contract
will be considered as terminated by the player with just cause with the club’s acceptance”.
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14. On 24 August 2020, the player put the club in default and granted it a 10 days’ deadline to
proceed the payment of EUR 955,000 net, broken down as follows:
a. EUR 300,000 net as his salary of May 2020;
b. EUR 300,000 net as his salary of June 2020; and
c. EUR 355,000 net as his salary of July 2020.
15. On 1 September 2020, the club replied to the player’s notice and claimed that the salaries
from April and May 2020 had already been made to the player “each subject to the same
deduction as for all other players of [the club] due to the crisis related to COVID-19”.
Additionally, the club wrote as follows: “I am also glad to confirm that as from the salary of
July, no such deductions will apply any longer, and this full salary will be paid tomorrow. The
only remaining salary will then be the salary of the month of June, to which the mentioned
standard deduction will still apply. However, also this payment will be made very shortly”.
16. On 2 September 2020, the player put the club in default and granted it a 5 days’ deadline to
proceed the payment of EUR 1,833,332 net, broken down as follows:
a.
b.
c.
d.
e.
EUR 300,000 net as his salary of May 2020;
EUR 300,000 net as his salary of June 2020;
EUR 366,666 net as his salary of July 2020;
EUR 366,666 net as his salary of August 2020; and
EUR 500,000 net as the sign-on fee due on 1 July 2020.
17. Also on 2 September 2020, the club replied to the player’s notice and informed, inter alia,
that: (i) the salary of July 2020 was immediately paid in full; (ii) the salaries of April, May and
June 2020 were paid with the pertinent reduction due to COVID (50%); (iii) the salary of
August 2020 would be paid soon; and (iv) the sign-on fee of July 2020 would only be due on
15 October 2020 in accordance with a circular issued by Football Association of Country B.
18. On 3 September 2020, the player provided his answer to the club’s notice and reiterated that
he has never agreed with the reduction of his salaries, nor with the postponement of the
payment of the sign-on fee from 1 July 2020 to 15 October 2020. As such, the player repeated
his claim to the club to proceed the payment of the following amounts until 7 September
2020:
a.
b.
c.
d.
e.
EUR 150,000 net as difference / balance of his salary of April 2020;
EUR 150,000 net as difference / balance of his salary of May 2020;
EUR 150,000 net as difference / balance of his salary of June 2020;
EUR 366,666 net as his salary of August 2020; and
EUR 500,000 net as the sign-on fee due on 1 July 2020.
19. On 3 November 2020, the player put the club in default and granted it a 10 days’ deadline
to proceed the payment of EUR 1,233,332 net, broken down as follows:
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a. EUR 366,666 net as his salary of September 2020;
b. EUR 366,666 net as his salary of October 2020; and
c. EUR 500,000 net as the sign-on fee due on 1 July 2020.
20. On 12 November 2020, the club answered to the player’s notice and informed that it would
proceed the payment until 30 November 2020.
21. On 20 January 2021, the player put the club in default and granted it a 10 days’ deadline to
proceed with the payment of EUR 450,000 net, corresponding to the difference / balance of
the salaries from March to June 2020, which were allegedly paid in a lower amount.
22. On 27 May 2021, the player referred to the wording of clause 4 of the settlement agreement,
put the club in default and granted it a 5 days’ deadline to proceed the payment of EUR
1,916,664 net, broken down as follows:
a.
b.
c.
d.
e.
EUR 450,000 net as the difference / balance of the salaries from March to June 2020;
EUR 366,666 net as his salary of January 2021;
EUR 366,666 net as his salary of February 2021
EUR 366,666 net as his salary of March 2021; and
EUR 366,666 net as his salary of April 2021.
23. On the same date, i.e. 27 May 2021, the club replied to the default notice and informed that
it had already paid all the amounts due as per the settlement agreement. Additionally, the
club held that the 5-day-deadline granted by the player was shorter than the one entailed in
the FIFA regulations.
24. On 28 May 2021, the player reiterated his last notice and requested payment within the deadline
previously granted.
25. On 1 June 2021, the club sent a letter to the player: (i) reiterating the salary reduction for the
months of March (25%), April (50%), May (50%) and June 2020 (50%); and (ii) informing that
the salaries from January to April 2021 had been paid.
26. On 3 June 2021, the player acknowledged receipt of the salaries from January to April 2021
and reiterated his request for the payment of EUR 450,000 net as the difference / balance of
the salaries from March to June 2020 within 15 days.
27. On 9 June 2021, the club replied to the player’s letter and once again referred to the reduction
of the salaries. Moreover, the club stressed that the amount charged did not reach the value
of two salaries, so that the player would not have the right to terminate the second
employment contract under art. 14bis of the FIFA Regulations on the Status and Transfer of
Players (RSTP).
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28. On 11 June 2021, the player wrote to the club, inter alia, the following: “In light of the Club’s
position, this matter will be shortly referred to the FIFA Dispute Resolution Chamber for a
decision”.
II. Proceedings before FIFA
29. On 30 June 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
30. In his claim, the player mentioned that the club unilaterally varied of the second employment
contract due to the COVID pandemic. In this respect, the player remarked that he had never
accepted such reduction, as well as he had never signed any agreement in this regard.
31. Subsequently, the player referred to the DRC jurisprudence and concluded that the reduction
of his salaries “was illegally adopted” by the club. As a consequence, he claimed that it should
pay him the following amounts, plus 5% interest p.a. as from the due dates:
a.
b.
c.
d.
EUR 75,000 corresponding to 25% of his salary from March 2020;
EUR 150,000 corresponding to 50% of his salary from April 2020;
EUR 150,000 corresponding to 50% of his salary from May 2020; and
EUR 150,000 corresponding to 50% of his salary from June 2020.
32. Finally, the player also requested sporting sanctions to be imposed on the club under art.
12bis of the FIFA RSTP.
b. Reply of the club
33. In its reply, the club opposed the player’s allegations and held that it “delayed some payments
but finally has fulfilled all its obligations toward the player and paid all his salaries during the
term of the contract”.
34. In support of its allegations, the club defended that the unilateral reduction of the player’s
salaries was made “in good faith, in a reasonable and proportionate manner”. In this respect,
the club pointed out that the total amount deducted represented less than 5% of the global
value of the player’s contract.
35. What is more, the club alleged that said variation of the contract respected all requirements
established in FIFA Guidelines. In this regard the club, inter alia, made the following remarks:
a. the club allegedly tried on several occasions to discuss “the issue of wage cuts” with
the player, without success;
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b.
the salary reduction was only applicable “during the cessation of football activities in
Country B, from March 15, 2020 to June 21, 2020”;
c. “the procedure of reduction of salaries to the level of 50% was undertaken with all
employees, in this case the players and the technical, medical and administrative staff”;
d. in accordance with the Country B national law, “the club could reduce the salaries of
the player for 6 months or the equivalent while the reduction was made for only 2
monthsand 11 days up to 50%”.
36. In light of the above, the club requested the player’s claim to be entirely rejected.
c. Rejoinder of the player
37. In his rejoinder, the player firstly underlined that no agreement was ever reached by the
parties in relation to the reduction of the salaries. In particular, the player referred to the
settlement agreements and mentioned that the club itself recognised that it was in breach of
its contractual obligations by not paying the player’s remuneration in the context of the
COVID pandemic. Consequently, the player is of the opinion that the settlement agreement
“represents a clear club’s acknowledgment of debt in favour of the player”.
38. Moreover, the player reiterated his statement of claim and maintained that “all the objections
made by the Respondent are untrue, incorrect and made with the only aim to mislead the
attention of the Chamber”. At the end, the player repeated his requests for relief.
d. Final comments of the club
39. Lastly, in its final comments, the club clarified that the settlement agreement cleared all
financial matters between the parties. In particular, the club mentioned that the player
unequivocally accepted the reduction regarding the salary of March 2020, as well as that the
player confirmed his acceptance during the exchange of notifications between the parties.
40. Bearing in mind the foregoing, the club echoed its request for the rejection of the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
41. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 30 June 2021 and submitted for decision
on 8 October 2021. Taking into account the wording of art. 34 of the October 2021 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
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42. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Country A player and
a Country B club.
43. Subsequently, 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 Player (August 2021 edition), and
considering that the present claim was lodged on 30 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
44. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 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 Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
45. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. 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.
i. Main legal discussion and considerations
46. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the case pertains a claim for outstanding remuneration only.
47. In this context, the Chamber acknowledged that the player pointed out that the club failed
to deliver part of his remuneration from March, April, May and June 2020. The DRC was also
mindful that the club, on the other hand, referred to the COVID pandemic and claimed that there
was a situation of force majeure in Country B and that the player’s entitlements were validly
reduced as follows:
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a.
b.
c.
d.
by 25% in March 2020;
by 50% in April 2020;
by 50% in May 2020; and
by 50% in June 2020.
48. With this in mind, the Chamber firstly recalled that FIFA issued a set of guidelines, the COVID19 Guidelines, which aim at providing appropriate guidance and recommendations to
member associations and their stakeholders, to both mitigate the consequences of
disruptions caused by COVID-19 and ensure that any response is harmonised in the common
interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as
FIFA COVID-19 FAQ, which provides clarifications on the most relevant questions in
connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
49. Said guidelines – as per the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the
FIFA COVID-19 Guidelines – are only applicable to “unilateral variations to existing
employment agreements”. Additionally, analysing the concept of a situation of force majeure,
based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did
not declare that the COVID-19 outbreak was a force majeure situation in any specific country
or territory, or that any specific employment or transfer agreement was impacted by the
concept of force majeure.
50. In other words, in any given dispute, it is for a party invoking force majeure to establish the
existence of said event under the applicable law/rules as well as the consequences that derive
in connection thereto. The analysis of whether a situation of force majeure existed has to be
considered on a case-by-case basis, taking into account all the relevant circumstances. What
is more, in application of said FIFA COVID 19 Guidelines, unilateral decisions to vary
agreements will only be recognised where they are made in accordance with national law or
are permissible within collective bargained agreements (CBA) structures or another collective
agreement mechanism.
51. Having recalled the contents of the FIFA COVID-19 guidelines, the DRC turned its attention to
the evidence on the file in respect of the club’s allegation of force majeure. In this respect,
after carefully analysing the parties’ submissions, the members of the Chamber deemed that
the documentation brought forward by the club was not sufficient to prove a legal situation
of force majeure entitling it to unilaterally vary the terms of the employment contract under
the national law. In particular, the DRC outlined that the documentation advanced by the club
did not appear to be specifically related to the COVID pandemic, but rather to force majeure
situations in general.
52. As such, the Chamber unanimously decided that the club’s argumentation on this matter
could not be upheld.
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53. In continuation, the DRC went on analysing whether the unilateral variation made by the club
was to be considered reasonable and proportionate in accordance with the FIFA COVID 19
Guidelines.
54. In doing so, the Chamber noted that the club delivered a “letter of notification” to the player
on 19 April 2020, regarding the reduction of his salaries. Within this context, the DRC further
acknowledged that the player expressly refused the aforementioned salary decrease in various
opportunities, however that the club subsequently reduced his salaries from March to June
2020, without further negotiations. In addition, the DRC also observed that the player
repetitively put the club in default regarding outstanding remuneration, being the club
constantly in breach of its financial duties.
55. Taking into consideration the overall developments of the case and the jurisprudence of the
Dispute Resolution Chamber, the latter determined that there was not a valid unilateral
variation of the employment contract in the case at stake.
56. In particular, the DRC found it pivotal to its conclusion the fact that the variation was applied
retroactively and without any proof of the club having tried to engage good faith negotiations
with the player. Furthermore, the Chamber also considered that the club did not timely pay
the player any remuneration for months of April and May 2020, which was not reasonablenor
proportionate in line with its well-established jurisprudence.
57. For the sake of completeness, the DRC was also of the opinion that the club adopted a
controversial conduct toward the player, due to the fact that the parties signed a settlement
agreement on 11 June 2020, establishing that the defaulted payments should be made in full
– including the salaries sub judice. In this respect, the DRC outlined that clauses 1 and 2 of the
settlement agreement established that a part of the March’s salary would be paid in advance,
whereas its remaining amount would be delivered together with the salaries of April and May
2020 – which were also delayed. Therefore, the Chamber was satisfied with theconclusion that
the player has never consented with the reduction of his entitlements for anyof the claimed
months.
58. In light of all the above, the members of the DRC unanimously concluded that the unilateral
variation of the employment contract could not be considered licit and should be disregarded.
59. Consequently, based on the general legal principle of pacta sunt servanda, the Chamber ruled
that the club should be liable to pay the player the remuneration sought, accrued by 5%
interest p.a. as from the due dates until the date of effective payment.
ii. Compliance with monetary decisions
60. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis par.
1 and 2 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
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party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
61. In this regard, the DRC 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.
62. Therefore, bearing in mind the above, the DRC 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.
63. 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.
64. The DRC 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. Costs
65. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
66. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
67. Lastly, the DRC 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
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, the following amounts:
-
EUR 75,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until
the date of effective payment;
EUR 150,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020
until the date of effective payment;
EUR 150,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020
until the date of effective payment; and
EUR 150,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2020
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made 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 the ban shall
be 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
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordancewith
art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
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