Dispute Resolution Chamber
Texto da decisão
REF 20-01424
Decision of the
Dispute Resolution Chamber
passed on 28 April 2021,
regarding an employment-related dispute concerning the player Bobko Ivan
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
BOBKO Ivan, Ukraine
RESPONDENT:
FC Torpedo Kutaisi, Georgia
Represented by Mr Enrico Bella and Francesco Bella
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I. FACTS OF THE CASE
1.
On an unknown date, the Ukrainian player, Ivan Bobko (hereinafter: player or Claimant) and the
Georgian club, Torpedo Kutaisi (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from 21 February 2020 until 31 December 2020.
2.
According to the contract, the Respondent undertook to pay the player a monthly salary of USD
2,800.
3.
Art. VII.3. of the contract reads as follows: “In the event of disputes player and the club agree to
take any dispute to the Georgian Football Federation”.
4.
On 16 August 2020, the club concluded an agreement with several players regarding salary
deductions between March and July 2020. The Claimant did not sign such document.
5.
On 25 August 2020, the player put the club in default and requested payment of USD 6,440,
corresponding half of his salaries between March 2020 and June 2020 (4x USD 1,400) as well as
a partial salary of July 2020 (USD 840), until 10 September 2020.
6.
On 13 September 2020, the player put the club in default again and requested payment of USD
9,240 corresponding to the monies claimed on 25 August 2020 as well as the full salary of August
2020 (USD 2,800), until 17 September 2020.
7.
On 17 September 2020, the player sent a “notice of absence” to the club stating that due to the
unpaid salaries he is not participating in training anymore.
8.
On 18 September 2020, the player terminated the contract with the club due to the outstanding
remuneration.
9.
According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed until 31 December 2020.
10. On 2 October 2020, the Claimant lodged a claim for breach of contract against the Respondent
in front of FIFA and requested payment of the following monies:
- USD 10,920 as outstanding remuneration plus 5% interest p.a. as from the due dates;
- USD 9,520 as compensation for breach of contract, corresponding to the residual value
(3x USD 2,800 plus USD 1,120 as pro-rata for September 2020).
11. In his claim, the player held that he had just cause to terminate the contract since his outstanding
remuneration amounted to more than 2 monthly salaries.
12. According to the player, outstanding remuneration in the amount of USD 10,920, corresponding
to a part from May 2020 (USD 840), the full salaries of June 2020 until August 2020 (3xUSD
2,800) and the pro-rata salary of September 2020 (USD 1,680 for 18 days), remained outstanding
on 18 September 2020.
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13. In its reply to the claim, the Respondent rejected the player’s claim and contested FIFA’s
competence to adjucate the Claimant’s “request for compensation of 9.250” only, based on Art.
VII.3. of the contract.
14. The club argued that due to the COVID-19 pandemic, it negotiated salary reductions with its
players in March 2020. As a result thereof, the club maintained that the players were paid 50%
of their salaries between March and June 2020 and 70% in July 2020.
15. The Respondent alleged that the player agreed on said reductions like every other player.
16. According to the club, due to the lockdown it was not possible to sign a written agreement before
August 2020, which was when the player refused to sign the written agreement regarding the
deductions between March 2020 and July 2020.
17. In this regard, the club submitted witness statements of the club’s assistant coach and the club’s
executive director, which confirm that the whole team was informed about salary reductions in
March 2020 and “no one declined”.
18. The club further held that the player left the team for “family reasons” and not due to outstanding
remuneration. I this regard the Respondent referred to the above-mentioned witness statements
again, which confirm that the player requested to be given permission to leave the club.
19. On account of the above, and since the player initially agreed to the salary reductions, the club
deems that there is no outstanding remuneration. In this regard, the club enclosed an internal list
of payments to the player in the total amount of Georgian Lari (GEL) 34,029.43 (approx. USD
10,000), which are supposed to be the salary payments applying the above-mentioned salary
reductions. Furthermore, the Respondent submitted several untranslated payment receipts.
20. The Respondent maintained that it correctly applied the FIFA Guidelines regarding COVID-19.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, the Chamber took note
that the present matter was submitted to FIFA on 2 October 2020. Consequently, the DRC
concluded that the June 2020 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable
to the matter at hand (cf. art. 21 of the Procedural Rules).
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2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition February 2021), the Dispute Resolution
Chamber is, in principle, competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player and a club.
3.
However, the DRC acknowledged that the Respondent contested the competence of FIFA’s
deciding bodies regarding the “request for compensation of 9.250” only, based on Art. VII.3. of
the contract.
4.
Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players it is competent to deal with a matter such
as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs, has been established at
national level within the framework of the Association and/or a collective bargaining agreement.
With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the Chamber referred to FIFA Circular no. 1010 dated 20 December 2005. In
this regard, the Chamber further referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
5.
In continuation, the DRC wished to stress that the club failed to submit any regulations of the
allegedly competent deciding bodies. In this respect, the members of the Chamber pointed out
that the Respondent was unable to prove that, in fact, the Georgian deciding bodies currently
meet the minimum procedural standards for independent arbitration tribunals as laid down in art.
22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA Circular no. 1010 as well
as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations.
6.
In view of all the above, the DRC established that the club’s objection to the competence of FIFA
to deal with the present matter has to be rejected and that the Dispute Resolution Chamber is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance.
7.
Furthermore, 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 Player (edition February 2021), and considering that the
present claim was lodged on 2 October 2020, the October 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
8.
The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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. In particular, the Chamber recalled that in accordance
with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
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pertaining to the application of the Regulations, any documentation or evidence generated or
contained in the Transfer Matching System (TMS).
9.
First of all, the members of the Chamber recalled that, the parties concluded a contract, valid as
of 21 February 2020 until 31 December 2020.
10. In continuation, the DRC noted that the Claimant lodged a claim against the Respondent
maintaining that he had terminated the contract with just cause on 18 September 2020 since the
club failed to remit remuneration in the total amount of USD 10,920, corresponding to a part of
his May 2020 salary (USD 840), the full salaries of June 2020 until August 2020 (3xUSD 2,800)
and the pro-rata salary of September 2020 (USD 1,680 for 18 days). Consequently, the Claimant
asks to be awarded his outstanding dues as well as the payment of compensation for breach of
the employment contract.
11. The Respondent, for its part, rejected the claim and held that the player terminated the contract
without just cause. In its argumentation it held that the salary was reduced due do the Covid-19
pandemic and therefore no remuneration remained outstanding.
12. Having said this, the DRC acknowledged that the central issue in the matter at stake was to
determine as to whether the contract was terminated by the Claimant with or without just cause
and to decide on the consequences thereof.
13. With the above in mind, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the documentation on file, bearing
in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right
on the basis of an alleged fact shall carry the burden of proof.
14. Subsequently, the DRC recalled that the Claimant put the Respondent in default twice, i.e. on 25
August 2020 and 13 September 2020, giving the Respondent 15 days to remedy its default,
before he terminated the contract on 18 September 2020 by means of a letter, referring to
outstanding remuneration.
15. In this context, the members of the Chamber established that the Respondent failed to proof that
it actually remitted the amounts claimed by the player. In this context, the DRC pointed out that
the Respondent failed to submit any evidence regarding the claimed payments and that it solely
relied on the argumentation that certain amounts were not due based on reductions allegedly
applied due to the COVID-19 pandemic.
16. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing
appropriate guidance and recommendations to member associations and their stakeholders, to
both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response
is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional
document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant
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questions in connection with the regulatory consequences of the COVID-19 outbreak and
identifies solutions for new regulatory matters.
17. For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as the FIFA
FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific
country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from
paying a player’s salary.
18. As to the club’s arguments that the player agreed to the reductions in question, the DRC noted
that the only documents submitted in support of this allegations are witness statements of two
employees of the club, while the actual document was not signed by the Claimant. Further, the
members of the Chamber stated that it appears not credible that the club was not able to sign
the actual agreements in relation to the deductions due to the lockdown.
19. On account of the above and taking into account that the player refused to sign the agreement
in August 2020, the club’s argument that the player agreed to the reduction was rejected by the
DRC.
20. Consequently, considering that the Respondent had thus repeatedly and for a significant period
of time been in breach of its contractual obligations towards the Claimant, the Chamber decided
that the Claimant had just cause to unilaterally terminate the employment contract on 18
September 2020 and that, as a result, the Respondent is to be held liable for the early termination
of the employment contact with just cause by the Claimant.
21. Subsequently, prior to establishing the consequences of the termination of the employment
contract with just cause by the Claimant in accordance with art. 17 par. 1 of the Regulations, the
Chamber held that it, in general, had to address the issue of unpaid remuneration at the moment
when the contract was terminated by the Claimant.
22. At this point, the Chamber first recalled that, in accordance with art. 9 par. 1 lit. e) of the
Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should
be presented in the original version and, if applicable, translated into one of the official FIFA
languages (English, French, Spanish and German). Bearing in mind the wording of the
aforementioned provision, the Chamber concluded that the untranslated payment receipts
submitted by the Respondent could not be taken into account. Furthermore, the Chamber
concluded that an internal list regarding payments does not proof actual payments to the
Claimant.
23. Bearing in mind the considerations above, and in accordance with the general legal principle of
pacta sunt servanda, the Chamber established that the Claimant is entitled to USD 12,040,
corresponding to a part of the player’s salary for May 2020 (USD 840) as well as the full salaries
of June 2020 until September 2020 (4xUSD 2,800).
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24. In addition, taking into consideration the player’s claim, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. as requested, as of the respective due dates.
25. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant is entitled to receive compensation for breach of contract from the Respondent.
26. In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of the
Chamber 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 Claimant 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.
27. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contains 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 Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
28. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective criteria may be taken
into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber
emphasised beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of
the respective matter.
29. The members of the Chamber then turned their attention to the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract, if any, in the calculation of the
amount of compensation.
30. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable
to the player under the terms of the employment contract as from the date of termination with
just cause by the Claimant until its natural expiration. Furthermore, the Chamber took into
account the amount claimed by the player and consequently, the Chamber concluded that the
amount of USD 8,400 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
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31. In continuation, the Chamber verified as to whether the Claimant 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, 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.
32. In this respect, the Chamber noted that the Claimant had not found new employment.
33. Consequently, on account of the above-mentioned considerations, the Chamber decided that the
Respondent must pay the amount of USD 8,400 as compensation for breach of contract to the
Claimant, which is considered by the Chamber to be a fair and reasonable amount.
34. Furthermore, taking into account the consideration under number II./7. above, the Chamber
referred to par. 1 and 2 of art. 24bis 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.
35. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the Respondent. More in particular, the DRC pointed out
that, against clubs, the sanction shall consist in a ban from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods.
36. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amount due to the Claimant within 45 days as from the moment in which the
Claimant, following the notification of the present decision, communicates the relevant bank
details to the Respondent, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
37. Finally, the Chamber recalled that the above-mentioned sanction will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 3 of the Regulations.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Ivan Bobko, is admissible.
2.
The claim of the Claimant, is accepted.
3.
The Respondent, FC Torpedo Kutaisi, has to pay to the Claimant, the following amount:
- USD 840 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until the
date of effective payment;
- USD 2,800 as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until the
date of effective payment;
- USD 2,800 as outstanding remuneration plus 5% interest p.a. as from 1 August 2020 until
the date of effective payment;
- USD 2,800 as outstanding remuneration plus 5% interest p.a. as from 1 September 2020
until the date of effective payment;
- USD 2,800 as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until
the date of effective payment;
- USD 8,400 as compensation for breach of contract.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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