Labour Disputes
Texto da decisão
REF FPSD-3975
Decision of the
Dispute Resolution Chamber
passed on 9 December 2021
regarding an employment-related dispute concerning the player Ante
Aralica
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Khadija Timera (Senegal), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Ante Aralica, Croatia
Represented by Hrvoje Raić, Ivan Ostojić and Bruno Skelin
RESPONDENT:
AFC Hermannstadt, Romania
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REF FPSD-3975
I.
Facts of the case
1.
On 1 January 2021, the Croatian player, Ante Aralica (hereinafter: the Claimant), and the
Romanian club, AFC Hermannstadt (hereinafter: the Respondent) signed an employment
contract valid as from as from the date of signature until 30 June 2023.
2.
Art. XII of the employment contract reads as follows: “Disputes concerning the conclusion,
execution, amendment, suspension or termination of this contract shall be settled by the
jurisdictional commissions of the FRF/LPF or by the courts materially or territorially competent,
when the above-mentioned jurisdictional commissions do not have jurisdiction to settle the
dispute. Specifically, any disputes arising from the performance of this contract shall be settled
by the National Dispute Resolution Chamber within the FRF, its decision may be appealed to
the Appeal Commission within the FRF.”
3.
Furthermore, art. XIII lit c. of the employment contract states: ”This contract shall be
interpreted in accordance with Romanian law.”
4.
On 21 June 2021, the parties concluded a termination agreement.
5.
Said termination agreement established: “AFC Hermannstadt undertakes to pay in full the
amount of 17.500 euro net until 15.07.2021, otherwise being additionally obliged to pay late
payment penalties amounting to 0.1% per day of the amount unpaid with dated
16.07.2021”.
6.
Art. 5 of the termination agreement states: “Any dispute arising from the execution and
performance of this Payment Agreement shall be submitted before FIFA, as per the relevant
FIFA statutes and regulations”.
7.
On 13 September 2021, the Claimant put the Respondent in default and requested payment
of EUR 17,500 net plus interest resulting from the termination agreement, within the next 10
days.
8.
On 15 September 2021, the Respondent requested to open bankruptcy proceedings in
Romania.
9.
On 30 September 2021, a local court in Romania confirmed the request of the Respondent
and opened bankruptcy proceedings.
10. On 13 November 2021, the Romanian Football Federation informed our services upon
request, that the Respondent is still affiliated and currently participating in the Romanian
Second League.
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II. Proceedings before FIFA
11. On 13 October 2021, 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 Claimant
12. The Claimant requested payment of EUR 17,250 net resulting from the termination
agreement, along with interest of 18% p.a. as of 15 July 2021.
13. In his claim, the Claimant held that the amount agreed in the termination agreement
remained unpaid, even after his default notice.
14. Furthermore, the Claimant argued that he is entitled to 18% interest p.a. as the parties
agreed upon a rate of 0.1% per day, which is excessive in view of FIFA’s jurisprudence and
shall be reduced by the DRC.
b. Position of the Respondent
15. In its reply, the Respondent held that FIFA is not competent to decide the present matter.
16. In this regard, the Respondent held primarily that due to the bankruptcy proceedings, the
local court in Romania is competent to deal with the player’s claim in accordance with
Romanian law.
17. Moreover, the Respondent maintained that “there was express choice of jurisdiction included
in article XII of the Contract in favour of the Common Law Courts (Sibiu Tribunal)”.
18. Subsidiary, the Respondent brought forward that NDRC of the Romanian Football Federation
would be competent to deal with the matter at hand and not FIFA, due to art. XII of the
employment contract.
19. In this framework, the Respondent argued that the NDRC of the Romanian Football
Federation does comply “the FIFA requirements”.
20. In accordance with Romanian Law, the Respondent requested to “suspend the player’s claim”
due to art. 71, par. 1, Law 85 / 2014, which reads as follows:
“If the debtor's request corresponds to the conditions provided in art. 66 , the syndic judge
will issue a decision to open the general procedure, and if by the declaration made according
to the provisions of art.67 para. (1) lit. g) the debtor shows his intention to enter the simplified
procedure or falls into one of the categories provided in art. 38 para. (2) , the judge will issue
a decision to open the simplified procedure. The minute of the conclusion regarding the
opening of the insolvency procedure shall be communicated, immediately, to the provisional
judicial administrator / provisional judicial liquidator appointed by the syndic judge.”
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REF FPSD-3975
21. Moreover, the Respondent also referred to art. 75 of Law 85 / 2014:
“As of the date of the procedure opening, all judicial, extrajudicial actions or enforcement
measures for the achievement of the claims on the debtor's property shall be de jure
suspended. The capitalization of their entitlements can be done only within the insolvency
procedure, by submitting the applications for the admission of claims. Their reinstatement is
possible only in case of annulment of the order for relief, of the revocation of the said order
or in cases of the procedure closure under the terms of art. 178. If the order for relief is
annulled or, as the case may be, revoked, the judicial or extrajudicial actions for the
achievement of the claims on the debtor's property may be reinstated and the enforcement
measures may be resumed. On the date on which the order for relief becomes final, both the
judicial or extrajudicial action and the suspended enforcements shall cease.”
22. The Respondent also held that the exception in art. 24 point 3 b) RSTP shall apply due to the
insolvency proceedings opened in Romania.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 13 October 2021 and submitted for decision
on 9 December 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.
24. 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 would, in principle, be competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a Croatian
player and a Romanian club.
25. However, the Chamber further noted that the Respondent contested FIFA’s competence to
deal with the matter at hand and held that
a) Due to the bankruptcy proceedings in Romania the local court was competent;
b) Due to art. XII of the employment contract the local court was competent;
c) Due XII of the employment contract the NDRC of the Romanian Football
Federation was competent.
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26. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such dispute
to be decided by an independent arbitration tribunal that has been established at national
level within the framework of the association and/or a collective bargaining agreement. Any
such arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent national arbitration tribunal
must guarantee fair proceedings and respect the principle of equal representation of players
and clubs. Equally, the Chamber referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
27. In this regard, ,the Chamber noted that although bankruptcy proceedings appear to have
been opened in Romania against the Respondent, the Romanian Football Federation
confirmed that the club is still affiliated and competes in the second League. Therefore, the
DRC decided to reject said argument.
28. Moreover, the Chamber established that the claim was based on the termination agreement
and not the employment contract. In addition, the DRC noted that the termination agreement
does not contain a clear and exclusive jurisdiction clause in favour of the NDRC of Romania
or a local court. Furthermore, the Chamber wished to emphasize that the termination
agreement in its art. 5 in fact refers to FIFA as judicial body in case of a dispute.
29. On account of the above, the Respondent’s arguments have to be rejected and the Chamber
declared itself competent.
30. 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 Players (August 2021 edition), and
considering that the present claim was lodged on 13 October 2021, the August 2021 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
31. 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).
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c. Merits of the dispute
32. 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
33. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant requested payment of an amount agreed upon
in a termination agreement.
34. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
35. The Chamber first noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties.
36. Nonetheless, the Chamber noted that the outstanding amount resulting from the termination
agreement remained uncontested by the Respondent.
ii. Consequences
37. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to EUR 17,250, in accordance with termination agreement.
38. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the contract, in total EUR 17,250, as detailed above.
39. In addition, taking into consideration the Claimant’s request, the agreed interest rate in the
termination agreement as well as the constant practice of the Chamber in this regard, the
latter decided to award the Claimant interest at the rate of 18% p.a. on the outstanding
amounts as from 15 July 2020 until the date of effective payment.
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iii. Compliance with monetary decisions
40. Finally, taking into account the applicable Regulations, the Chamber referred to 24 par. 3 lit.
b) RSTP, and decided to exclude the consequences of Art. 24 RSTP due to the Respondent’s
bankruptcy proceedings in Romania.
d. Costs
41. 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.
42. 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.
43. 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, Ante Aralica, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, AFC Hermannstadt, has to pay to the Claimant within 30 days as from the
date of notification of this decision, the following amount(s):
- EUR 17,250 as outstanding remuneration plus 18% interest p.a. as from 15 July 2021 until
the date of effective payment.
4.
Any further claim of the Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
In the event that the aforementioned sum plus interest is not paid within the stated time limit,
the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
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).
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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