Labour Disputes
Texto da decisão
REF. FPSD-13214
Decision of the
Dispute Resolution Chamber
passed on 20 March 2024
regarding an employment-related dispute concerning
the player Oswaldo Alanis Pantoja
BY:
Sihon Gauci (Malta), Single Judge
CLAIMANT/COUNTER-RESPONDENT:
Oswaldo Alanis Pantoja
Represented by Danilo Monti
RESPONDENT/COUNTERCLAIMANT:
Hyderabad FC, India
Represented by Hemant Raj Phalpher
pg. 2
REF. FPSD-13214
I. Facts of the case
1.
On 23 August 2023, the Mexican player Oswaldo Alanis Pantoja (hereinafter: the
Claimant/Counter-Respondent or the player) and the Indian club Hyderabad FC (hereinafter:
the Respondent/Counterclaimant or the club) concluded an employment contract
(hereinafter: the Contract), valid from the same date until 31 May 2024.
2.
In accordance with the Schedule I enclosed to the Contract, the club undertook to pay to
the player inter alia a monthly net salary of USD 15,500.
3.
Furthermore, under the said Schedule I, the club agreed to provide the player with four (4)
return economy class airplane tickets for the latter and his family, from Mexico City
(Mexico) to Hyderabad (India).
4.
By correspondence dated 10 November 2023, the player put the club in default of payment
of USD 31,000 granting a deadline of 15 days to remedy the breach.
5.
On 25 November 2023, the player posted a picture of his teammates which reads as
follows:
“Gracias universo por un partito más. ¡Nunca sabemos cuándo puede ser el último! ¡A disfrutar
todo los que nos presenta la vida!”
6.
A literal free translation of the said post from Spanish to English would be the following:
“Thank you, universe, for one more game! We never know when it might be the last! Let's enjoy
everything life has to offer!”
7.
On 26 November 2023, the club acknowledged receipt of the player’s letter dated 25
November 2023 and informed the latter that the relevant overdue salaries had been paid
on 24 November 2023, however in that context the club did not send any proof of payment
to the player.
8.
On 28 November 2023, the player sent another letter to the club, denying having received
the aforementioned salaries and requesting a proof of payment from the club.
9.
In the same date, the Senior Manager of the “Indian Oversea Bank” sent an email to the
club, confirming having received the relevant remittance instruction on the said day and
stated that due to technical issues the payment would have been processed with some
delay.
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REF. FPSD-13214
10. On 1 December 2023, the player notified the unilateral termination of the Contract to the
club.
11. Later on the same day, the player’s bank confirmed having received a payment of USD
30,970.00 from the club.
12. Contextually, the player received an email from the club affirming that the relevant
payment had been made in due time, but that there had been a processing error from the
bank, therefore it requested the player to withdraw his termination notice.
13. On 5 December 2023, the club sent a new letter to the player, alleging that the latter did
not have just cause to terminate the Contract.
14. On 6 December 2023, the player contested the club’s allegations in writing and confirmed
that the Contract had been terminated on 1 December 2023.
15. The player remained unemployed following the termination of the contract.
II. Proceedings before FIFA
16. On 3 January 2024 the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
17. According to the player, the club failed to comply in due time with its financial obligations,
executing the payment of the overdue amounts for which it had been put in default only
after the player’ notice of termination dated 1 December 2023.
18. Accordingly, the player held having had just cause to terminate the Contract on the said
date as he had already granted the club enough time to remedy the breach in line with FIFA
Regulations.
19. Furthermore, the player claimed the reimbursement of the flight ticket he previously
bought to travel back to his home country after the termination, plus the equivalent of
further 3 tickets of the same class based on Schedule I clause 2 of the Contract.
20. The requests for relief of the player, accordingly, were the following:
-
“USD 108,500 corresponding to the residual value of the Contract from 1 November 2023 to
31 May 24.
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REF. FPSD-13214
-
Benefits corresponding to the reimbursement of USD 1,096.88 related to the sum paid by
the player to buy a flight ticket…and the value of 3 economy return airplane from Mexico
City to Hyderabad tickets as calculated by FIFA Travel (…)”.
b. Position of the club
21. In its reply, the club objected to the player’s just cause to terminate the contract, holding
that it had complied with its financial obligations before the relevant termination notice on
1 December 2023.
22. In this context, the club sustained having instructed its bank to proceed with the payment
of the relevant outstanding salaries on 24 November 2023, thus within the 15 days granted
by the player in his default notice dated 10 November 2023.
23. Furthermore, the Club justified the bank’s delay in processing the payment stating that
during the following days, namely between 25 and 27 November 2023, the country in which
the club is based served official holidays. Consequently, the club affirmed that the payment
could be completed on 28 November 2023 only.
24. In continuation, the club stated that the player’s post on Instagram dated 25 November
2023 would instead clearly reflect the player’s predetermined plan to terminate the
Contract at any cost and without an actual just cause.
25. Accordingly, the club argued that the player terminated the Contract without just cause
and lodged a counterclaim for compensation as follows:
-
“The residual value of the Contract in the amount of USD 93,000 (…);
The additional supplement for matter of specificity of sport calculated at 50% of the above
compensation of USD 93,000 (…)
(…) The corresponding interest at the rate of five percent per annum (…)”
c. Player’s reply to the counterclaim
26. In response to the club’s counterclaim, the player argued that the club failed to instruct its
bank within the relevant deadline granted by means of default noticed dated 10 November
2023 nor it provided any proof of payment in spite of the player’s express requests, even
though the player had de facto granted additional time in good faith.
27. In this context, the player highlighted that all the evidence submitted by the club would
rather prove that the latter had indeed delayed instructing its bank to pay, thus failing to
comply with the relevant deadline.
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REF. FPSD-13214
28. Furthermore, the player argued having not received any proof of the relevant payment
until the termination notice dated 1 December 2023, while none of the documents filed by
the club would constitute contradicting evidence in this respect.
29. Accordingly, the player accused the club of having acted with gross negligence and upheld
his original requests for relief.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, she took note that the present matter was presented to FIFA on 3 January
2024 and submitted for decision on 20 March 2024. Taking into account the wording of art.
34 of the March 2023 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.
31. Subsequently, the Single Judge 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 (February 2024 edition), the Single Judge
of 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
Mexican player and an Indian club.
32. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition)
and considering that the present claim was lodged on 3 January 2024, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
33. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
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REF. FPSD-13214
34. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
35. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that on 23 August 2023, the player and the club concluded
an employment agreement valid until 31 May 2024.
36. Equally, the Single Judge noted that on 1 December 2023 the player unilaterally terminated
the Contract, allegedly because of the club’s failure to comply in due time with its financial
obligations under the abovementioned agreement.
37. In this this respect, the Single Judge noted that the club acknowledged the existence of
outstanding salaries in favour of the player at the time of the latter’s default notice while it
argued having executed the payment of the relevant amounts before the player’s letter of
termination on 1 December 2023, hence in the club’s view the player would have had no
just cause to terminate the Contract.
38. Conversely, the Single Judge observed that according to the player, the club’s failure to
execute the payment on time shall be nonetheless ascribable to the latter’s negligence, in
particular by instructing the relevant bank too late.
39. With the foregoing in mind, the Single Judge referred to the wording of art. 14bis par. 1 of
the Regulations, in accordance with which, if a club unlawfully fails to pay a player at least
two monthly salaries on their due dates, the player will be deemed to have a just cause to
terminate his contract, provided that he has put the debtor club in default in writing and
has granted a deadline of at least 15 days for the debtor club to fully comply with its
financial obligation(s).
40. In this context, the Single Judge noted that the player claims having not received his
remuneration corresponding to the salaries due for September 2023 and October 2023.
Furthermore, the Single Judge noted that the player provided written evidence of having
put the club in default on 10 November 2023, i.e., at least 15 days before unilaterally
terminating the Contract on 1 December 2023.
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REF. FPSD-13214
41. In this regard, the Single Judge wished to emphasise that pursuant to the Contract, the club
undertook to pay the player’ salaries on a fixed date, however this was not the case as the
club admittedly failed to pay in due time the player’ salaries for the months of September
and October 2023, hence the player put the club in default on 10 November 2023.
42. Furthermore, the Single Judge pointed out that the club is based and operates regularly in
India, thus it shall be assumed that it would be aware of the relevant banking holidays
taking place in the period between 25 November 2023 and 27 November 2023.
43. With the foregoing in mind, the Single Judge remarked that, between the aforementioned
holidays and the relevant default notice there was a lapse of 15 days, hence it appears
evident that the club had enough time to anticipate the instruction of payment in order to
avoid the occurred delay. In this context, the Single Judge wished to remark that the
technical issue referred to by the club’s bank on 28 November 2023 appears irrelevant as
at any event the said error occurred outside of the relevant deadline granted by the player
to pay. In this context, the Single Judge also noticed that the player has de facto granted a
further deadline to the club waiting until 1 December 2023 before terminating the Contract.
44. Notwithstanding the above, the Single Judge noted that the club’s confirmation of the
payment was sent to the player only after the latter’s termination notice.
45. On account of the above, the Single Judge was of the opinion that the club negligently
delayed the payment of the player’s overdue salaries beyond the deadline formally
granted, hence it cannot be excused for the consequent breach.
46. With all the foregoing in mind, the Single Judge concluded that the player had a just cause
to unilaterally terminate the contract on 1 December 2023, based on art. 14bis of the
Regulations.
ii. Consequences
47. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the club.
48. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to two salaries
under the contract, amounting to USD 31,000.
49. However, the Single Judge noted that the player acknowledged having received the said
amount right after terminating the Contract, thus it is not outstanding any longer.
50. In this context, the Single Judge also observed that the player did not request any default
interest on the aforementioned amounts.
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REF. FPSD-13214
51. In continuation, the Single Judge took note of the player’s request regarding the
reimbursement of USD 1,096.88 as price of the flight ticket paid by the latter to fly from
India to Mexico on 4 December 2023, plus the equivalent of three additional flight tickets
for the same air route.
52. In this context, the Single Judge recalled that according to Schedule I of the Contract, the
club undertook to pay the player four return flight tickets from Mexico City to Hyderabad.
53. In this respect, the Single Judge wished to emphasize that based on the assessed duty by
the club to provide the player with the said benefits, any sum paid by the player in order
to access the same benefit contractually owed by the club must then be reimbursed by the
latter as outstanding amount in accordance with the general legal principle of pacta sunt
servanda,
54. As a consequence, the Single Judge decided that the club is liable to pay to the player the
amount of USD 1,096.88 as reimbursement of the flight expenses effectively incurred.
55. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single
Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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 player 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.
56. In application of the relevant provision, the Single Judge held that she first of all had to
clarify as to whether the pertinent employment contract contained a provision by means
of which the parties had beforehand agreed upon an amount of compensation payable by
the contractual parties in the event of breach of contract. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
57. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
58. In this context, the Single Judge recalled the content of Schedule I of the Contract and
observed that in addition to the reimbursement of the flight ticket previously purchased
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REF. FPSD-13214
by the player, the club should have provided the latter with three additional return flight
tickets from Mexico City to Hyderabad. Consequently, the Single Judge established that the
value of the mentioned benefits shall be computed in the amount of compensation that
the club shall pay to the player in accordance with art. 17 par. 1 of the Regulations.
59. In this respect, following the longstanding practice and in line with the player’s request, the
Single Judge reverted to FIFA Travel and ascertained that the value of 3 return flight tickets
from Mexico City (Mexico) to Hyderabad (India) would amount to USD 8,400.
60. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the total monies payable to the player under the terms of the
contract from the date of its unilateral termination until its end date. The Single Judge
therefore concluded that the amount of USD 116,900 (i.e. the residual value) serves as the
basis for the determination of the amount of compensation for breach of contract.
61. In continuation, the Single 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. According to the constant
practice of the Single Judge as well as art. 17 par. 1 lit. ii) of the Regulations, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
62. However, by the time this decision was passed, the Single Judge noted that the player
remained unemployed since the unilateral termination of the Contract.
63. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of USD
116,900 to the player, which was considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
64. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 1 December 2023 until the date of effective
payment.
65. The Single Judge equally confirmed that the amounts shall be awarded net in line with the
contents of the Contract.
iii. Compliance with monetary decisions
66. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
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
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REF. FPSD-13214
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
67. In this regard, the Single 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.
68. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
69. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
70. The Single 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. 24 par.
8 of the Regulations.
d. Costs
71. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
72. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
73. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-13214
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Oswaldo Alanis Pantoja, is accepted.
2.
The Respondent, Hyderabad FC, must pay to the Claimant the following amount(s):
USD 1,096.88 as outstanding amount;
USD 116,900 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 1 December 2023 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 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 of the ban shall
be of up to 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.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13214
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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