Labour Disputes
Texto da decisão
REF FPSD-3979
Decision of the
Dispute Resolution Chamber
passed on 7 April 2022
regarding an employment-related dispute concerning the player Giedrius
Arlauskis
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Michele Colucci (Italy), member
Jerome Perlemuter (France), member
CLAIMANT:
Giedrius Arlauskis, Lithuania
Represented by Josep F. Vandellos Alamilla
RESPONDENT:
Club CFR Cluj, Romania
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REF FPSD-3979
I.
Facts of the case
1.
On 3 March 2021, the Lithuanian player, Giedrius Arlauskis (hereinafter: the Claimant), and
the Romanian club, CFR Cluj (hereinafter: the Respondent) signed an employment contract,
valid as from 3 March 2021 until 30 May 2021.
2.
On 1 June 2021, the Claimant and Respondent concluded an addendum (hereinafter: “the
addendum”), extending the contract from 1 June 2021 until 31 December 2021.
3.
On an unspecified date, the Claimant and the Respondent concluded a second employment
contract (hereinafter: “the contract”), valid from 1 January 2022 until 30 June 2024.
4.
On 5 September 2021, the Claimant and Respondent concluded a termination agreement
(hereinafter: “the termination agreement”), by means of which the parties mutually agreed
to terminate their employment relationship.
5.
Pursuant to clause 2 of the termination agreement the Respondent undertook to pay to the
Claimant the following:
“For all financial aspects related to the First Contract, as modified by the Addendum, as well
as for the early termination of the First Contract, as modified by the Addendum, the Parties
agree for the Club to pay to the Player a total compensation of EUR 55.000 NET (fifty-five
thousand euros). Also, for the termination of the Second Contract, the Club agrees to pay
to the Player a compensation formed by an amount of EUR 445.000 NET (four hundred
forty-five thousand euros) and an amount of RON 811.782 (eight hundred eleven thousand
seven hundred eighty-two).”
6.
Moreover, the Respondent agreed to make payment of the above amounts as follows:
a) EUR 100.000 NET on or before 1 October 2021;
b) EUR 100.000 NET on or before 1 February 2022;
c) EUR 300.000 NET on or before 1 July 2022;
d) RON 811.782 (eight hundred eleven thousand seven hundred eighty-two) to be paid
directly by the club to the Romanian tax authorities on behalf of the player.
7.
Additionally, clause 13 of the termination agreement stipulated the following:
“If any of the deadlines mentioned in Clause 2 of this Termination Agreement is not respected
by the Club i.e. any amount is not paid by the Club within the due dates the Club shall be
liable to immediately pay the due part of the Settled Amount to the Player at an interest rate
of 18% p.a. This clause is key to the Parties signing this Termination Agreement and both
Parties agree that without this clause they would not have entered into this Termination
Agreement.”
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8.
The Claimant argued that despite the clear deadlines established in the termination
agreement, the Respondent failed to fulfil its financial obligations towards the Claimant by
not paying the first instalment of EUR 100,000 net on the due date, i.e., 1 October 2021,
accordingly, being in breach of the termination agreement.
9.
The Claimant did not send a prior default notice to Respondent.
II. Proceedings before FIFA
10. On 13 October 2021, the Claimant filed the claim at hand before FIFA.
a.
Position of the Claimant
11. The requests for relief of the Claimant, were that the Respondent pay the amount of EUR
500,000 net plus interest of 18% p.a. from 2 October 2021 or alternatively from date of the
claim, i.e. 13 October 2021.
12. Furthermore, the Claimant indicated that in case the Respondent failed to pay the amount of
RON 811,782 net to the tax authorities on behalf of the Claimant, then the Respondent
should be ordered to pay this amount to the Claimant, plus 18% interest p.a. from 2 October
2021 or alternatively, on the date of the claim, i.e. 13 October 2021.
13. The Claimant argued that since the Respondent failed to comply with the terms of the
termination agreement, it is liable to pay the Claimant the total amount of EUR 500,000 net
as established in clause 13 the termination agreement.
b.
Position of the Respondent
14. According to the Respondent, article 13 is being erroneously interpreted by the Claimant,
according to the Respondent “article 13 states only that in the event of non-compliance with
the maturity, the Claimant is entitled to receive beside the payment of the PART of the Settled
amount that has become due (i.e. EUR 100.000) the interest of 18 % p.a. calculated to this
amount (part of the Settled amount), and not the fact that the entire amount has become
anticipated due. “
15. The Respondent argued that it did not agree with the Claimant on the payment deadline of
the amount of RON 811.782 to the Romanian tax authorities. Moreover, the Respondent
mentioned that on 18 November 2021, “it received another address setting up the seizure in
the execution file no. 7871201210017, in terms of which it had the obligation that any sum
that is matured and due to the claimant should be paid to the tax authorities”
16. The Respondent mentioned that as the parties did not specify the payment deadline of RON
811,782 due to the tax authorities, the submission of the payment of EUR 100,000 to the tax
authorities “led to a conventional extension of the deadline”.
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17. The Respondent indicated that it cannot proceed with the payment of the amount of EUR
100,000, as there is a new seizure from the Romanian tax authorities in relation to the
Claimant’s receivables in the amount of RON 625,654.43 (approximately EUR 126,568.707)
(note: see untranslated document on file)
18. The Respondent indicated that it shall pay the amount to the account of the tax authority
and not directly to the Claimant. In this context the Respondent referred to the provisions of
the Romanian Procedural Civil Code, which stipulates in “article 781, that receivables pursued
against the debtor by a third party, or which will be due to him in the future shall be seized“.
19. According to the Respondent, article 21 of the termination agreement stipulates:
“If any term or provision in this Termination Agreement shall be held to be illegal, invalid or
unenforceable, in whole or in part, under any enactment or rule of law in force, such term or
provision or part shall to that extent be deemed not to form part of this Termination
Agreement but the legality, validity and enforceability of the remainder of this Termination
Agreement shall not be affected.”
20. Lastly the Respondent mentioned that the Claimant “has breached the provisions of art. 5
point 2 and 3 of the Rules Governing the Procedures of the Player's Status Committee and
the Dispute Resolution Chamber, as he forgot to show to his representative, and implicitly to
FIFA jurisdictional bodies, the relevant factual background in a sincere way, intentionally
omitting some of the relevant facts for the case.”
21. The requests for relief of the Respondent, were that the FIFA Dispute Resolution Chamber:
reject all the claims of Claimant; and
to order the claimant to assume the entirety of the FIFA DRC administration and procedural
fees, if any.
c.
Additional Comments Claimant
22. On 25 January 2022, the Claimant was granted an opportunity to provide its comments on
the reply of the Respondent.
23. In this context, the Claimant firstly, indicated that the reply of the Respondent is inadmissible,
due to its late submission.
24. The Claimant further mentioned the following:
“The Claimant and Respondent agreed that the payment in the amount of RON 811,782
would be immediately paid to the tax authorities;
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Given that the payment under Clause 2(a) and 2(d) have not been made by the
Respondent, Clause 13 of the Agreement is triggered which is an acceleration clause:
Article 13 clearly suggests that if any deadline under Clause 2 is not met, then the Club
shall be liable to pay the due part of the Settled Amount to the Claimant at an interest rate
of 18%. Further, Article 4 clearly defines Settled Amount as amount of EUR 500.000 NET
plus LEI 811782 i.e., it covers all four payments under Clause 2;
Further, pursuant to Article 18 of the Termination Agreement, both Parties have agreed
that the FIFA Rules and Regulations shall be the applicable law to disputes arising from the
Termination Agreement. Hence, any reference by the Respondent to Romanian Procedural
Civil Code is unfounded as the same is not applicable in this case. This also dismisses the
mistaken interpretation of the Respondent of Article 21 of the Agreement mentioned in
para 2.5 of the response;
With regards to an alleged additional notices received by the Respondent from the tax
authorities, the Claimant maintains that it bears no relevance to the Termination
Agreement and the present case. Furthermore, its contents are unknown to the Claimant
who has never been informed in that regard by the Romanian tax authorities, but in any
event it would be part of a different dispute of which the Respondent is not part.”
25. In conclusion, the Claimant indicated that the Respondent has to comply with the payment
conditions as detailed in clause 2 and because it expresses unwillingness to comply with the
said payment, “the Claimant requests for the entire amount including the one mentioned in
Clause 2(d) so that it can immediately pay the same to the tax authorities.”
26. In the alternative, the Claimant would request that the Respondent is ordered to pay the
amounts under Clause 2(d) directly to the tax authorities as soon as possible and pay only
payments under Clause 2(a), (b) and (c) to the Claimant provided amounts in 2(d) are paid to
the tax authorities immediately.
27. Finally, all requests for relief as mentioned in the claim are maintained
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 7 April 2022. 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.
29. 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 (March edition), the Dispute Resolution
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Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Brazilian player and a Romanian
club.
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 (March 2022 edition), and
considering that the present claim was lodged on 13 October 2021, the August 2021 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).
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 parties strongly dispute the total amount that was
outstanding as per the termination agreement concluded between the parties.
34. In this context, the Chamber acknowledged that it its task was to whether the amounts
claimed by the Claimant had indeed already fallen due and were to be paid by the
Respondent.
35. In this respect, the members of the Chamber noted that it remained uncontested between
the parties that the first instalment in the amount of EUR 100,000 had fallen due and
remained unpaid by the Respondent.
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36. The Chamber noted that the Claimant requested to be awarded the full amount outstanding
as per the termination agreement of EUR 500,000 on the basis of the Respondent’s failure to
pay the first instalment of the agreed amount on the respective due date, hence triggering
the acceleration clause as per article 13 of the termination agreement
37. Moreover, the DRC observed that the Claimant requested that the Respondent’s reply to the
claim be disregarded. In this regard, the Chamber recalled that the FIFA administration sent
the claim to the Respondent for a second time as it could not be established that the first
correspondence from FIFA had duly reached the Respondent. As a result, the Chamber
therefore deemed that the Respondent’s reply to the claim was received within the deadline
provided.
38. Subsequently, with the above-mentioned considerations in mind, the DRC focused its
attention on the interpretation of article 13 of the termination agreement and took note of
the reply of the Respondent, arguing that the said provision is not an acceleration clause, on
the basis of which the late payment of one instalment would lead to the other instalments
immediately becoming due and payable to the Claimant.
39. In this respect, the DRC carefully analysed the content of article 13 of the termination
agreement and emphasised that the relevant provision appears to deal with the consequences
of late payment in the event that the Respondent fails to comply with its contractual
obligations. In particular, the members of the Chamber indicated that article 13 of the
termination agreement inter alia stipulated that if any amount is not paid by the Respondent
within the due dates as indicated, the Respondent shall be liable to immediately pay the due
part of the settled amount. In the interpretation of the members of the Chamber, the article
was aiming at establishing that the entire amount would be come due and payable upon the
late payment of one instalment by the Respondent. It follows therefrom that the Chamber
deemed that the intention of the parties, and in reference to the last sentence of article 13
of the termination agreement, was to establish the additional financial consequences in case
of non-payment of one of the agreed instalments.
40. In this context the DRC held that the argument of the Respondent cannot be upheld, as in
accordance with its interpretation of the said clause, the failure by the Respondent to comply
with its financial obligations, would trigger the immediate payment of all amounts due. As a
result, the members of Chamber came to the conclusion that article 13 of the termination
agreement is indeed an acceleration clause, entitling the Claimant to the full settled amount
in case of a delay in payment of one of the amounts. As a result, the Chamber concluded
that the Claimant is entitled to full value agreed to in the termination agreement.
41.
In continuation, the members of the Chamber further took into account the request of the
Claimant in relation to the amount of RON 811,782 net and remarked that the argument of
the Respondent cannot be upheld, as the said amount was at least due since 19 August 2021
on the basis of the content of the settlement agreement. Furthermore, the members of the
Chamber established that the settled amount as per the settlement agreement, included the
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amount of RON 811,782 net and that the Respondent had failed substantiate that it complied
with payment of the said amount to the Romanian tax authorities.
ii. Consequences
42. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
43. Consequently, and in accordance with the general legal principle of pacta sunt servanda, the
DRC decided that the Respondent is therefore liable to pay to the Claimant the following
amounts EUR 500,000 and RON 811,782 corresponding to the outstanding amount as per
the termination agreement.
44. Moreover, the DRC decided to award the Claimant interest at the rate of 18% p.a. on the
amounts detailed above as from 2 October 2021 until the date of effective payment.
iii. Compliance with monetary decisions
45. Finally, taking into account the applicable Regulations, the Chamber 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 concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
46. 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.
47. Therefore, bearing in mind the above, the DRC 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.
48. 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.
49. 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. 24 par. 8 of the
Regulations.
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d. Costs
50. 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.
51. 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.
52. 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, Giedrius Arlauskis, is accepted.
2.
The Respondent, CFR Cluj, has to pay to the Claimant, the following amount:
EUR 500,000 as outstanding amount, plus 18% interest p.a. as from 2 October 2021
until the date of effective payment;
RON 811,782 as outstanding amount, plus 18% interest p.a. as from 2 October 2021
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 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.
5. The consequences shall only be enforced at the request of the Claimant in accordance
with article 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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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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