Labour Disputes
Texto da decisão
REF FPSD-4610
Decision of the
Dispute Resolution Chamber
passed on 23 February 2022
regarding an employment-related dispute concerning the player Gremsl
Armin
BY:
Johan van Gaalen (South Africa), Single Judge of the DRC
CLAIMANT:
Gremsl Armin, Austria
RESPONDENT:
FC U Craiova 1948, Romania
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REF FPSD-4610
I.
Facts of the case
1.
On 14 July 2021, the Austrian player, Gremsl Armin (hereinafter: the player or the Claimant)
and the Romanian club, FC U Craiova 1948 (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the contract), valid as from 1 July 2021 until
30 June 2022.
2.
In accordance with clause V.1.a).ii) of the contract, the club undertook to pay to the player a
monthly salary in the amount of EUR 5,000 net, payable by the 15th day of the following
month.
3.
Furthermore, according to clause V.2 of the contract, the club undertook to pay to the player
conditional payments as follows: EUR 500 net, if the player is in the starting 11 of a game
won by the club; EUR 250 net if the player enters the match as a reserve, regardless of the
minutes played, provided that the club wins the game at stake.
4.
Clause VII of the contract reads as follows: “Force majeure: 1. Force majeure, as it is defined
by the law, releases the parties from responsibility, in full or in part, in case of partial or full
non-fulfilment, faulty or delayed execution of the obligations under this sports activity
contract. The pandemic / epidemic declared by the authorities is also considered force
majeure. 2. The party relying on force majeure has the obligation to notify the other party
within 5 days from the occurrence of the force majeure and to take all steps necessary to limit
the consequences thereof, otherwise he shall not benefit from the effects releasing him from
the ensuing responsibility”.
5.
Clause XI of the contract states that the dispute arisen in connection with the contract “shall
be settled by the domestic sports commissions and / or the courts having substantive and
territorial competence, in accordance with the civil law provisions, and by CAS as a last court”.
6.
On 30 November 2021, the player sent a notice to the club, informing the latter, inter alia,
about the following:
- That the club is treating him discriminatorily upon the player’s refusal to mutually
terminate the contract, harassing him to terminate the contract, a conduct that is subject
to the consequences foreseen by art. 14 of the FIFA RSTP;
- To allow the player to train with the rest of the team and provide all necessary training
conditions and facilities.
7.
Thereafter, by means of its correspondence dated 2 December 2021, the club simply
requested the player to accept the mutual termination of the contract against payment of the
salary of December 2021.
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8.
By means of his letter dated 6 December 2021, the player replied to the club stating that he
would only accept the mutual termination of the contract, provided that the club paid a
compensation for the early termination of the contract.
9.
By means of his letter dated 8 December 2021, the player requested the club to reinstate him
into the “team’s program”, thereby granting the club a 10 days’ deadline to do so.
10. By means of its letter dated 13 December 2021, the club unilaterally terminated the contract
on the basis of an alleged “force majeure”.
11. On 6 February 2022, the Claimant signed a new contract with the Austrian club, SCR Altach
(hereinafter: the new club), valid as from 7 February 2022 until 31 May 2022, whereby the
new club undertook to pay to the player, inter alia, a monthly salary of EUR 4,500, plus an
extra payment of EUR 2,800, payable in May 2022. Thus, during the full term of the contract,
the player would receive a fixed income of EUR 19,836 (considering that the contract starts
on 7 February – total fixed amount of EUR 19,836 also indicated in TMS).
II. Proceedings before FIFA
a. Position of the Claimant
12. On 21 December 2021, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the
amount of EUR 45,500 net, plus 5% interest p.a. as from the date of claim until the date of
effective payment, broken down by the player as follows:
Outstanding remuneration: EUR 13,000 net, plus 5% interest p.a.
-
EUR 5,000 corresponding to the salary of October 2021;
EUR 5,000 corresponding to the salary of November 2021;
EUR 2,500 corresponding to the half of the salary of December 2021;
EUR 500 as match bonus “for the game Academica Clinceni – U Craiova of August 07,
2021, score 1-2”.
Compensation for breach of contract: EUR 32,500 net, plus 5% interest p.a.
-
EUR 32,500, corresponding to the residual value of the contract, as from 14 December
2021 until 30 June 2022, calculated by the player himself (6.5*5,000 = 32,500).
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13. In his claim, the player explained that, since November 2021, the club requested him and
other 3 players to terminate their contracts, to which the player opposed. As a consequence
thereof, the player explained that the club started “a series of harassment […] consisting in
excluding the 4 players from the team’s activities and forcing them to train separately, without
medical assistance, sometimes without a coach and without ensuring all the appropriate
training conditions”.
14. In particular, the player held that the club provided different training instructions to him in
comparison to the rest of team, forcing him to start training 5 hours before the rest of the
team and, what is more, on 19 November 2021 he was even expelled by the club from the
WhatsApp group whereby the club provided training information to the players.
15. In view of all of the above, the Claimant held that the Respondent terminated the contract
without just cause on 13 December 2021 and requested to be awarded the outstanding
remuneration due to him at the date of termination, as well as a compensation for breach of
contract in an amount equal to its residual value.
b. Position of the Respondent
16. Despite having been invited to reply to the claim, the Respondent failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as the Single 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 21 December
2021 and submitted for decision on 23 February 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.
17. 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 (August 2021 edition), the Dispute Resolution Chamber is,
in principle, competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Austrian player and a Romanian
club.
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18. However, the Single Judge noted, ex officio, that clause XI of the contract states that disputes
arisen in connection with the conclusion, performance, modification, suspension or
termination of the contract shall be settled by the domestic sports commissions and or by the
ordinary jurisdiction.
19. In this respect, the Single Judge underscored that the wording of the aforementioned
jurisdiction clause seems to foresee that contractual disputes in connection with the contract
are to be solved by the Romanian National Dispute Resolution Chamber (NDRC) and or by
the Romanian ordinary jurisdiction.
20. Nevertheless, the Single Judge wished to point out that: 1.) the said clause does not state
that the jurisdiction recognized to the above-mentioned deciding bodies is exclusive; 2.) the
competence of an NDRC must be analysed by the FIFA general secretariat in casu, upon
receipt of the documentation pertaining to the composition of the NDRC, which is not on
file; 3.) the club failed to reply to the claim and, hence, the club did not object to the
jurisdiction of FIFA to entertain the present matter; 4.) in addition to not being exclusive,
clause XI of the contract is not specific enough when referring to the ordinary jurisdiction,
only stating that would be competent “the courts having substantive and territorial
competence”.
21. In view of all of the above and considering especially the lack of objection of the Respondent
to the competence of FIFA as a consequence of its lack of reply to the claim -in view of the
usual practice of the DRC, which confers FIFA a broad scope of action to decide upon matters
which fall under the framework provided by art. 22 RSTP-, the Single Judge decided that the
DRC is competent to adjudicate on the present dispute.
22. Subsequently, the Single Judge 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 21 December 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
23. 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 he 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
24. His 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
25. The foregoing having been established, the Single Judge moved to the substance of the
matter, and stressed that, since the claim of the Claimant remained uncontested, the latter
will be entitled to the amounts claimed, provided that they have a contractual basis and the
player has proved his entitlement thereto.
26. First of all, the Single Judge observed that it remained uncontested that the Respondent
unilaterally terminated the contract alleging force majeure, which was already foreseen by
the parties in clause VII of the contract. In this respect, the wording of the said clause shall be
highlighted, insofar as it states that the Covid-19 pandemic is an event of force majeure,
which can prevent the club from complying in full or in part with its obligations.
27. After a careful analysis of clause VII, the Single Judge determined that, considering the
potestative nature of the said clause, it shall be deemed null and void, also taking into account
that, at the time when the contractual relationship was entered into between the parties, the
Covid-19 pandemic was a reality with which players and club had to coexist, not being
reasonable that the club, in casu, simply decides to rely on the said clause to unilaterally
terminate the contract without any further grounds.
28. In addition, the Single Judge wished to point out, once again, that the Respondent failed to
reply to the claim, missing its procedural opportunity to eventually support the termination
of the contract with grounds that would allow the Single Judge to determine an eventual
termination of the contract with just cause, but he failed to do so.
29. Thus, in view of the aforementioned, the Single Judge decided that the unilateral termination
of the contract by the club was potestative and based on a clause that was abusive and that
must be considered null and void.
30. Thus, the Single Judge concluded that the club terminated the contract without just cause on
13 December 2021.
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ii. Consequences
31. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
32. The Single Judge observed that it remained undisputed that the club failed to pay to the
player the salaries of October, November and half of December 2021 by the date on which
the contract was unilaterally terminated by the club. In addition, the Single Judge noted that
it remained uncontested that the club failed to pay to the player the bonus for having
participated in the match played against Academica Clinceni on 7 August 2021, which was
won by the club and evidence of which was provided by the Claimant.
33. Thus, on the basis of the legal principle, pacta sunt servanda, the Single Judge determined
that the Claimant is entitled to the outstanding remuneration requested in the amount of
EUR 13,000 net (cf. point 12 supra).
34. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the DRC in this regard, the Single Judge decided to award the Claimant interest at the rate
of 5% interest p.a. as from the date of claim, i.e. 21 December 2021, as requested by the
Claimant and in line with the jurisprudence of the DRC.
35. 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.
36. In application of the relevant provision, the Single Judge held that it 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.
37. 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.
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38. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date.
39. Consequently, the Single Judge concluded that the amount of EUR 32,500 net (i.e. the
salaries due as from 14 December 2021 until 30 June 2022,) serves as the basis for the
determination of the amount of compensation for breach of contract.
40. 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
DRC 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.
41. Indeed, the player found employment with the Austrian club, SCR Altach. In accordance with
the pertinent employment contract, the player was entitled to a total remuneration of EUR
19,836 net during the overlapping period between the contract at stake and the new contract
concluded between the player and SCR Altach.
42. Thus and in accordance with art. 17 para. 1 lit. ii) of the Regulations, the Single Judge
determined that the player is entitled to a mitigated compensation of EUR 12,664 net (32,500
– 19,836 = 12,664).
43. Subsequently, the Single Judge wished to underscore that the player cannot be entitled to
the additional compensation established in art. 17 para. 1 lit ii) of the Regulations, insofar as
the said additional compensation can only be awarded if the termination of the employment
contract at stake was made by the player due to overdue payables.
44. In the case at hand, the Single Judge confirmed that the contract was terminated by the club,
not by the player, and, consequently, no additional compensation can be granted to the
player.
45. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of EUR
12,664 net to the player, which is considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
46. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 21 December 2021, i.e. the date on which the claim was lodged
before FIFA, until the date of effective payment.
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iii. Compliance with monetary decisions
47. 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 concerned
party to pay the relevant amounts of outstanding remuneration and/or compensation in due
time.
48. 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.
49. 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.
50. 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.
51. 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
52. 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.
53. 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.
54. Lastly, the Single 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
1.
The claim of the Claimant, Gremsl Armin, is accepted.
2.
The Respondent, FC U Craiova 1948, has to pay to the Claimant, the following amount(s):
- EUR 13,000 net as outstanding remuneration plus 5% interest p.a. as from 21 December
2021 until the date of effective payment;
- EUR 12,664 net as compensation for breach of contract without just cause plus 5% interest
p.a. as from 21 December 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.
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6. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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