DRC Overdue Payables
Texto da decisão
REF FPSD-3381
Decision of the
Dispute Resolution Chamber
passed on 13 January 2022
regarding an employment-related dispute concerning the player Diallo
Bradley
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
GAUCI Sihon (Malta), member
VAURASI Laurel (Fiji), member
CLAIMANT:
Diallo Bradley, France
Represented by Anca Mituica
RESPONDENT:
AFC Chindia Targoviste, Romania
Represented by Mincu Paul Alexandru
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I.
Facts of the case
1.
On 21 January 2020, the French player Diallo Bradley (hereinafter: the Claimant) and the
Romanian club AFC Chindia Targoviste (hereinafter: the Respondent) entered into an
employment contract (hereinafter: the Contract) valid until 30 June 2020.
2.
On 19 June 2020, the parties agreed to extend the Contract until 15 August 2020.
3.
Art. 5 of the Contract states:
“Consideration of the sports activity is in the amount of 4000 euro (four thousand euro) net
monthly payable in lei at the BNR exchange rate, from the last working day of the month for
which the payment is made. (…)
“b) the financial rights due to the sportsman under this contract shall be paid by the latest on
15 of the following month for which the sports activity has been performed. (…)”
“f) If the club's senior football team will also evolve into Liga 1 in the season 2020 – 2021
competitive season, and the sportsman played at least 50% of the actual playing time of the
matches during the contractual period, the athlete will receive a net bonus of 5000 euro (five
thousand) euro. If he played less than 50% of the actual playing time, he will receive
percentage bonus of 5000 euro (five thousand) euro for the minutes played.”
4.
Article 6 of the Contract states:
”1. Force majeure, as it is defined by the law, exonerates parties in entire or in part of the
liability in case of total or partial non-performance, or the unfit execution, or the delayed
execution of the obligations assumed by the present sport activity contract.
2. The party that invokes force majeure is obliged to notify the other Part in 5 (five) days from
the date on which force majeure occurred and to take all the possible measures in order to
limit its consequences, otherwise not benefiting from the exonerating effects of its liability.”
5.
Article 9 of the Contract reads as follows:
"The disputes regarding the conclusion, execution, modification, suspension or termination
of this contract are resolved as amicably as possible and in case the consensus has not been
reached, by the bodies with jurisdictional attributions of the Romanian Football Federation /
L.P.F. according to the RFF / LPF regulations and statutes or the court of jurisdiction, with
material and territorial competence, in accordance with the law."
6.
On 17 March 2020, the Emergency Committee of Romanian Football Federation passed a
decision according to which all the football competitions were suspended until the date of
termination of the state of emergency at national level.
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7.
On 18 March 2020, the General Assembly of the Respondent decided to suspend all sports
activity contracts and individual employment contracts during the state of emergency.
8.
On 20 March 2020, the Respondent sent a notice to the Claimant informing him about the
suspension of the Contract during the state of emergency.
9.
On 13 June 2020, the play-out phase of the National Championship Liga I started and took
place until 5 August 2020.
10. On 2 February 2021, the Claimant sent a default notice to the Respondent requesting
outstanding salaries in the amount of EUR 6,879 and the bonus amount of EUR 5,000 net.
II. Proceedings before FIFA
11. On 23 August 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. According to the Claimant, the Respondent unilaterally decided to suspend the Contract on
16 March 2020, invoking a force majeure situation based on art. 6 of the Contract.
13. The Claimant states that “the decision of the club to suspend the contract was not preceded
by prior discussion with the player or by an agreement with him”.
14. The Claimant states that from 16 March 2020 until 14 May 2020, the Respondent paid to
him the following amounts:
- 1466 lei, equivalent of 302,7 euro (exchange rate 1 euro = 4,843 lei);
- 2884 lei, equivalent of 596 euro (exchange rate 1 euro = 4,838 lei);
- 1075 lei, equivalent of 222,3 euro (exchange rate 1 euro = 4,835 lei);
Total paid 1,121 euro, from the total due of 8,000 euro net
15. In the view of the Claimant, the Respondent did not prove the incidence of a force majeure
situation and has the obligation to pay the amount of EUR 6,879 net plus 5% interest per
annum from 15 June 2020.
16. Regarding the bonus claimed, the Claimant states that he has played 826 minutes (50,98%)
from the total of 1,620 minutes, corresponding to the 18 matches.
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17. Thus, in the view of the Claimant both conditions that affected the right of the Claimant to
receive the bonus amounting EUR 5,000 were fulfilled, although the bonus remained unpaid.
18. The Claimant requests for relief are the following:
19. We request FIFA DRC to pass a decision through which:
“Order the Respondent to pay the total amount of euro 6879 net, representing monthly
financial rights due according to article V from the sports activity contract no. 10 from January
30, 2020;
Order the Respondent Club to pay the Claim the amount of euro 5000 net, representing
bonus due according to article V letter f) from the sports activity contract no. 10 from January
30, 2020;
Order the Respondent to pay interests of 5% /year for the above-mentioned amounts due to
the player, calculated as will be mentioned below;
Order the Respondent to pay to the Claimant the amount of euro 2000 representing costs
generated to the Claimant by the present procedure”.
b. Position of the Respondent
20. According to the Respondent, FIFA does not have jurisdiction to hear the present dispute,
and the claim must be rejected as inadmissible.
21. According to the Respondent, the “Romanian NDRC” is competent to hear the dispute based
on art. 9 of the Contract.
22. The Respondent states that the “jurisdictional bodies of the FRF/ LPF, their organization and
functioning are delimited by the Regulations of the Romanian Football Federation, which are
public and can be consulted on the F.R.F. website in both Romanian and English”.
23. Moreover, the Respondent states that the Claimant:
-
“has not challenged the organization and functionality of these jurisdictional bodies,
was aware of the existence and functioning of these commissions but chose not to resort
to the jurisdiction expressly provided for in the Contract.
has been represented since the pre-litigation stage by a lawyer from Romania, so he
cannot rely on the ignorance of the legislation”.
24. The Respondent submits that “there is an alternative, but at the same time, exclusive
jurisdiction”. According to the will of the parties, the parties have agreed the competence
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that either the sports jurisdictional bodies or courts on the territory of Romania, in particular
the Targovişte Court.
25. Furthermore, the Respondent submitted that on 20 March 2020, it informed the Claimant
about the suspension of the Contract during the state of emergency and about the Club's
efforts to obtain the financial aid offered by the government. The Respondent states that the
Claimant did not react to this notification.
26. The Respondent further states that on 21 March 2020, the Government of Romania adopted
"Emergency Ordinance no. 30/2020 for amending and supplementing certain normative acts,
as well as for establishing measures in the field of social protection in the context of the
epidemiological situation caused by the spread of SARS-CoV-2 coronavirus". According to
this act:
"(1) During the state of emergency (…), for the period of temporary suspension of the
individual employment contract, at the initiative of the employer, according to art. 52 para.
(1) lit. c) of Law no. 53/2003 - Labor Code, (…) as a result of the effects produced by SARSCoV-2 coronavirus, the allowances benefiting employees are set at 75% of the basic salary
corresponding to the job occupied and are borne from the unemployment insurance budget,
but not more than 75% of the average gross salary provided by the law on social insurance
budget (…).
(2) The provisions of para. (1) benefits the employees of employers who reduce or temporarily
interrupt the activity in whole or in part as a result of the effects of the SARS-CoV-2
coronavirus epidemic, during the decreed state of emergency, according to a declaration on
the employer's own responsibility”
27. The Respondent states that it “obtained the amounts provided for by this legislative act and
transferred them to the persons whose sports activity contracts were suspended. This fact
was not disputed by the Player in the Claim addressed to FIFA”.
28. The Respondent further argues that between 13 March 2020 and 22 May 2020, “the Player
could not perform his contractual obligation and the Respondent was entitled to suspend the
performance of its own obligations to remunerate this activity until it resumed. However,
given that the impossibility of execution on the part of the Player was an objective one, the
Club, in good faith, took all the steps to obtain and transfer to the Player the financial aid
granted by the Romanian authorities”.
29. Moreover, the Respondent states that the Claimant decided to leave the country without
authorisation for the period the competitions were suspended and “the Claimant's request
to be reimbursed at the level provided in the Contract for a period in which he was absent
from Romania, without the Club's consent, and implicitly did not perform any activity related
to football, denotes with evidence an attitude of bad faith”.
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30. In relation to the bonus claimed, the Respondent states that “at the end of the championship,
the 2019/2020 edition, the Club was in the last place of the League I Ranking (8th place out
of 8 in the play-out – 14th place out of 14 in the general ranking)– which is a relegation
place”.
31. Notwithstanding the above, the Respondent states that on 6 August 2020, “the Emergency
Committee of the Romanian Football Federation modified the competitive system of the First
League, starting with the 2020/2021 season, following that the number of participating
teams will increase from 14 to 16.” (note: Annex no. 12 RO and Annex no.12 EN). Hence,
“as a result of this administrative decision to modify the competition system, it was established
that the decisive game for maintaining in Liga I would be played between the team placed
last in the League I standings (14th place) and the team placed 3rd in Liga II”.
32. The Respondent further states that on 9 August 2021 and 12 August 2021, the play-off
games between the Respondent and CS Mioveni were played in a double leg and won by our
Respondent. However, the Respondent states that the Claimant “did not participate in these
matches, being suspended for receiving the red card on 5 August 2020”.
33. Furthermore, the Respondent argues that “the performance bonus provided for in that article
was assumed by the Club in view of the fact that the team will evolve in Liga I in the
2020/2021 season. At the time of signing the Contract, this meant that the team would be
ranked at least 12th in the play-offs. In our case, the team was ranked 14th in the play-outs
and remained in Liga I following an administrative decision of the RFF”.
34. The Respondent requests for relief are:
“Mainly
To reject the Player's Claim as inadmissible;
In the alternative
To reject the Player's Claim as unfounded.
In both cases
To oblige the Player to pay the costs generated by this procedure.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
35. 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 23 August 2021 and submitted for decision
on 13 January 2022. Taking into account the wording of art. 34 of the October 2021 edition
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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.
36. 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 is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a French player and a
Romanian club.
37. 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 Player (August 2021 edition) and
considering that the present claim was lodged on 23 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
38. 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.
c. Admissibility
39. The Chamber noted that the Respondent contested the competence of FIFA’s deciding bodies
in favour of “either the sports jurisdictional bodies or courts on the territory of Romania”,
alleging that both are competent to deal with any disputes deriving from the relevant
employment contract, in accordance with its clause 9 of the Contract.
40. In this regard, the Chamber emphasized that the referred clause is not clear nor exclusive, as
it failed to nominate the specific deciding body to the extent that not even the Respondent
could individualise the exclusive competent body.
41. 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
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Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
42. In this respect, the Chamber noted that the Respondent failed to provide any documentary
evidence which could prove that the national arbitration bodies of the Football Federation of
Romania meet the requirements established in art. 22 par. 1 lit. b) of the Regulations on the
Status and Transfer of Players, detailed in the FIFA Circular no. 1010 as well as in art. 3 par.
1 of the NDRC Regulations. On account of the above and referring to the principle of burden
of proof contained in art. 13 par. 5 of the Procedural Rules, the Chamber established that the
Respondent’s objection towards the competence of FIFA to deal with the present matter must
be rejected, and FIFA is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to
consider the present matter as to the substance.
d. Merits of the dispute
43. 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
44. 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 ion whether the salary reduction
carried out by the Respondent was valid and if the Claimant is entitled to the performance
bonus.
45. In this context, the Chamber acknowledged that it its task was to determine if the Claimant
is entitled to all the amounts claimed.
46. Turning to the issue of the salary reduction, the Chamber firstly wished to recall that 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 issued an additional
document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the most
relevant questions in connection with the regulatory consequences of the COVID-19 outbreak
and identifies solutions for new regulatory matters.
47. In particular, in accordance with pages 6 and 7 of said COVID 19 Guidelines, clubs and
employees were “strongly encouraged to work together to find appropriate collective
agreements to work together to find appropriate collective agreements on a club or a league
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basis regarding employment conditions for any period where the competition is suspended
due to the COVID-19 outbreak”. What is more, the document further referred to the
proposed guiding principal for the analysis of unilateral decisions to vary agreements, taking
into account their proportionality and reasonableness.
48. The DRC observed that the Claimant is requesting outstanding salaries in relation to a
reduction communicated by the Respondent for the salaries of March, April and May 2020.
The DRC further observed that the Respondent adduces having followed national legislation
49. In this regard the Chamber underlined that the Claimant did not challenge the application of
the salary reduction for several months after the Contract naturally expired. Furthermore, the
Chamber found that a reduction for 3 months does not seem per se to be disproportionate
nor excessive based on the particular circumstances of the case.
50. As a consequence, the Chamber was comforted in its decision that the Claimant had accepted
the reduction, albeit tacitly, of his salary and therefore, this request of the Claimant shall be
rejected.
51. Once the above had been established the DRC turned to the matter of performance bonus
claimed.
52. In this regard, the Chamber acknowledged that the situation is quite exceptional as the
Respondent finished in relegation positions although, based on changes in the regulations, it
participated in a play-off and was ultimately not relegated.
53. Firstly, the DRC turn to the literal wording of the relevant clause which reads as follows:
“f) If the club's senior football team will also evolve into Liga 1 in the season 2020 – 2021
competitive season, and the sportsman played at least 50% of the actual playing time of the
matches during the contractual period, the athlete will receive a net bonus of 5000 euro (five
thousand) euro. If he played less than 50% of the actual playing time, he will receive
percentage bonus of 5000 euro (five thousand) euro for the minutes played.”
54. In this regard, the Chamber underlined that the wording of the relevant clause does not aid
in the case at hand since the Respondent did finish in relegation position but due to a change
in the competition rules, it was not ultimately relegated. Hence, the DRC had to proceed to
interpret the clause considering the true intention of the parties when negotiating and
drafting such clause.
55. By interpreting the true intention of the parties as well as the common practice of the world
of football, the DRC recalled the principle behind payment of bonuses, especially pre-defined
and contractually agreed ones. As such, it observed that these are put in place by the parties
on the basis that a club, with the help of a player’s performance, may reach a pre-defined
goal, entitling such player to be remunerated for achieving such goal.
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56. In casu, the Chamber found that the intention of the parties was to reward the team
performance in the event the club was not relegated to a lower division at the end of the
season, which would have significantly harmed the Respondent’s financial interests. Thus,
since it is clear and undisputed that the Respondent remained in highest division for the
subsequent season, the DRC found that the Claimant shall be entitled to the agreed bonus.
57. 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 amount of EUR
5,000 which was outstanding under the contract at the moment of the termination.
58. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard and the contents of art. 5 lit. b of the Contract, the latter
decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts
as from 16 September 2021 until the date of effective payment.
ii. Consequences under art. 12bis of the Regulations
59. Lastly, the Chamber acknowledged that the Claimant put the Respondent in default for the
due amount, granting a deadline of 10 days to comply, to no avail. Hence, it confirmed that
the requisites for the application of the consequences of article 12bis of the Regulations had
been duly met. To this end, the DRC referred to art.12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days without
a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
60. Consequently, the Chamber concluded that the Claimant had duly proceeded in accordance
with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club)
must have put the debtor club in default in writing and have granted a deadline of at least
ten days for the debtor club to comply with its financial obligation(s).
61. On account of the aforementioned considerations and bearing in mind that that the
Respondent failed to pay the amount due to the Claimant, the Chamber established that the
Respondent had delayed a due payment for more than 30 days without a prima facie
contractual basis.
62. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, and considering that the
Respondent is not a repeated offender with regards to the cited provision, the Chamber
decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of
the Regulations.
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63. In this respect, the Single Judge wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
64. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
65. 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.
66. 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. 24bis par. 2, 4, and 7 of the Regulations.
67. 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.
68. 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. 24bis par. 8 of
the Regulations.
e. Costs
69. 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.
70. 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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71. 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, Diallo Bradley, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, AFC Chindia Targoviste, has to pay to the Claimant, the following amount:
- EUR 5,000 as outstanding remuneration plus 5% interest p.a. as from 16 September 2021
until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
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.
2.
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.
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.
7.
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.
8.
This decision is rendered without costs.
9.
A warning is imposed on the Respondent.
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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