Labour Disputes
Texto da decisão
REF FPSD-4466
Decision of the Single Judge of the
DRC
passed on 23 February 2022
regarding an employment-related dispute concerning the player Edgar
Bernhardt
BY:
Johan van Gaalen (South Africa)
CLAIMANT:
Edgar Bernhardt, Kyrgyz Republic
Represented by Rustam Dzhanybaev
RESPONDENT:
Abahani Dhaka Football Club, Bangladesh
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REF FPSD-4466
I.
Facts of the case
1.
On 1 December 2019, the player from the Kyrgyz Republic, Edgar Bernhardt (hereinafter: the
Claimant or player), and the club from Bangladesh, Abahani Dhaka Football Club (hereinafter:
the Respondent or club) signed an employment contract (hereinafter: contract) valid as from
the date of signature until 31 August 2020.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
USD 7,000 net as monthly salary of, payable until the 7th day of the following
month;
USD 5,000 as “signing fee”.
3.
The contract further establishes: “The club shall provide 1 flight ticket to the Footballer and 1
flight ticket to the Footballer’s wife”.
4.
On 12 November 2019, the Respondent issued letter in which it invited the player’s wife to
join in Bangladesh and undertook “to bear all of her expenditure (Accommodation, Food,
Medical and Transportation” during her stay.
5.
On 1 May 2020, the player put the club in default and requested payment of USD 25,000,
corresponding to his salaries of January until March 2020 (USD 21,000) as well as a part of
his signing fee (USD 4,000), until 7 May 2020.
6.
On 2 May 2020, the player contacted the club again and requested reimbursement of his
wife’s medical costs in the amount of Bangladeshi Taka (BDT) 56,000 (approx. USD 640) until
7 May 2020.
7.
On 11 May 2020, the player reiterated the content of his letters and requested payment until
16 May 2020.
8.
Subsequently, the player acknowledged receipt of his salaries of January and February 2020
as well as half of the signing fee.
9.
On 29 May 2020, the player put the club in default and requested payment of USD 23,000,
corresponding to his salaries of March until May 2020 (USD 21,000) as well as a part of his
signing fee (USD 2,000), until 8 June 2020.
10. Subsequently, the player acknowledged receipt of his salary of March 2020 as well the
remaining signing fee.
11. On 25 June 2020, the player put the club in default and requested payment of USD 21,000,
corresponding to his salaries of April until June 2020 as well as the medical expenses of his
wife, until 2 July 2020.
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12. On 2 July 2020, the player terminated the contract with the club due to the unpaid
remuneration.
13. According to the player, after his termination, on 2 July 2020, the club paid the salaries of
April and May 2020 as well as a part of June 2020 (USD 4,000).
14. According to the information contained in the Transfer Matching System (TMS), on 21 July
2020, the player signed an employment contract with the club FC Dordoi Bishkek in the
Kyrgyz Republic, valid as from 21 July 2020 until 30 November 2021, including a monthly
salary of Kyrgyzstani Som (KGS) 25,000 (approx. USD 300).
II. Proceedings before FIFA
15. On 3 December 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
16. In his claim, the Claimant requested the following monies:
USD 3,000 as residual part of the salary of June 2020 plus interest of 5% p.a. as of 1
July 2020;
BDT 56,000 as reimbursement of the medical costs of his wife, plus interest of 5% p.a.
as of 1 July 2020 (note: no receipts submitted);
USD 1,160 net as flight tickets (note: the player submitted two boarding passes dated
2 July 2020, without any price);
USD 14,000 as compensation for breach of contract, corresponding to the residual
value of the contract, plus interest of 5% p.a. as of 2 July 2020.
17. Furthermore, the player held that he had just cause to terminate the contract on 2 July 2020,
in accordance with art. 14bis RSTP.
18. The Claimant alleged that the club’s payment made on 2 July 2020 was remitted after his
termination.
19. The player held that the club repeatedly paid his remuneration late and that he “lost
confidence in the proper compliance” of the club.
b. Position of the Respondent
20. In its reply, the Respondent rejected the claim.
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21. The club held that it already remitted the player’s full salary for June 2020. In this regard, the
Respondent submitted an undated cash receipt for the residual payment of USD 3,000,
including the player’s name and signature.
22. Regarding the reimbursement of the player’s wife medical costs, the club held that the
contract does not contain such a clause and that it therefore has no obligation to pay said
money.
23. Furthermore, the club held that the player left the country “without prior notice”, therefore
did not follow the club’s rules and that it is therefore not liable to pay for such flight ticket.
Especially, since his return flight was already booked and paid for 10 August 2020.
24. Regarding the claimed compensation, the Respondent maintained that due to COVID-19 the
season was suspended as of March 2020 and that it therefore shall not be responsible for
salaries beyond June 2020.
c. Reaction of the Claimant to the alleged payment
25. The Claimant acknowledged receipt of the residual salary in the amount of USD 3,000, after
the termination.
III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
26. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as 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 3 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.
27. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (August 2021 edition),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension.
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28. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 3 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
29. 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 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
30. Its competence and the applicable regulations having been established, the Single Judge
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 Single Judge 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
31. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the alleged breach of
contract.
32. In this context, the Single Judge acknowledged that his task was to decide on the termination
of the player and the consequences arising thereof.
33. The Single Judge started to analyse the circumstances of the termination of the player and he
noted that according to the player, at the moment of the termination on 2 July 2020, the
salaries April, May and June 2020 remained unpaid and were paid after the termination.
34. The Respondent held that it fully paid those amounts but failed to define when it did so. In
this context the Single Judge wished to emphasize that, it is important to note that the club
did not contest the player’s allegation that it remitted the amounts after the player’s
termination.
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35. On account of the above, the Single Judge concluded that the salaries remained outstanding
at the moment the player terminated the contract.
36. The Single Judge decided that due to the repeated late payments of the club and the various
previous default notices as well as the two outstanding salaries due at the moment of the
termination, the player had just cause to terminate the contract on 2 July 2020.
ii. Consequences
37. Having stated the above, the members of the Single Judge turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
38. In this respect, the Single Judge took notice of the player’s acknowledgement the payment
of his outstanding salaries. However, the player claimed reimbursement of medical costs as
well as flight tickets.
39. Regarding the reimbursement of the medical costs, the Single Judge pointed out that the
club confirmed that such payments would be reimbursed and that the player, in principle,
would be entitled to this reimbursement. However, referring to art. 13 par. 5 of the
Procedural Rules, the Single Judge decided not to award the reimbursement of the medical
costs as the Claimant failed provide proof of payment of such costs.
40. However, in accordance with the contractual stipulation, the Single Judge decided to award
the reimbursement of the player’s flight costs in the amount of USD 1,160.
41. 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.
42. 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.
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43. 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.
44. 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. Consequently, the Single Judge
concluded that the amount of USD 14,000 (i.e. 2x USD 7,000) serves as the basis for the
determination of the amount of compensation for breach of contract.
45. 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.
46. Indeed, the player found employment. In accordance with the pertinent employment
contract, the player was entitled to a monthly salary of approx. USD 300. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of USD 300,
that is the monthly salary for August 2020.
47. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
48. In this respect, the DRC decided to award additional compensation, which in principal was
three times the monthly remuneration of the player. The Single Judge reminded the parties
that, as per the last sentence of 17 par. 1 lit. ii) of the Regulations, the overall compensation
may never exceed the rest value of the prematurely terminated contract.
49. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD 14,000
to the player (i.e. USD 14,000 minus USD 300 plus USD 300), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
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50. 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 3 December 2021 until the date of effective payment.
iii. Compliance with monetary decisions
51. 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.
52. 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.
53. 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.
54. 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.
55. 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.
d. Costs
56. 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.
57. 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.
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58. 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 Single Judge of the DRC
1.
The claim of the Claimant, Edgar Bernhardt, is partially accepted.
2.
The Respondent, Abahani Dhaka Football Club, has to pay to the Claimant, the following
amount(s):
- USD 1,160 as reimbursement;
- USD 14,000 as compensation for breach of contract plus 5% interest p.a. as from 03
December 2021 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. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), 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.
6.
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.
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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