Labour Disputes
Texto da decisão
REF FPSD-3413
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Pablo Nicolas Caballero
Santos
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Stella Maris Juncos (Argentina), member
Alejandro Atilio Taraborrelli (Argentina), member
CLAIMANT:
Pablo Nicolas Caballero Santos, Argentina
Represented by Mr. Sergio Sanchez Fernandez & Mr. Tayba Jawad
RESPONDENT:
FC Messina, Italy
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I.
Facts of the case
1.
On 15 October 2020, the Argentinian player, Pablo Nicolas Caballero Santos (hereinafter: the
Claimant) and the Italian club, FC Messina (hereinafter: the Respondent) signed an employment
contract valid as from the date of signature until 30 June 2021.
2.
In accordance with annex 3 to the employment contract, the Respondent agreed to pay to the
Claimant, inter alia, the following amounts:
-
EUR 60,000 net for the 2020-21 season, whereas EUR 5,000 was to be paid on completion of
registration;
EUR 10,000 in the event that the club is promoted to a higher category at the end of the
2020-21 season;
EUR 500 for accommodation costs per month.
3.
Furthermore, in annexe 3 to the employment contract, the Claimant and the Respondent
(hereinafter: the Parties) stipulated that “[i]t is declared that in the event of promotion to Lega Pro
(hereinafter also referred to as: Serie C) the confirmation for season 2021-22 is automatic without
the need of agreement between the [P]arties”.
4.
By correspondence dated 5 August 2021, the Claimant put the Respondent in default of payment
of EUR 45,620, corresponding to the outstanding salaries (EUR 31,120), accommodation costs
(EUR 4,500) and a promotion bonus (EUR 10,000) setting a time limit expiring on 20 August 2021 in
order to remedy the default.
5.
On 18 August 2021, the Claimant sent another reminder reiterating his position in the previous
default notice.
6.
On 21 August 2021, the Claimant terminated the employment contract with the Respondent in
writing.
7.
On 15 November 2021, the Italian Football Federation (hereinafter: FIGC) confirmed to FIFA that
the Respondent “has not changed league in the last season”, i.e. that it did not get promoted to
Serie C at the end of the 2020-21 season.
II. Proceedings before FIFA
8.
On 25 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
9.
According to the Claimant, the Respondent failed to comply with its financial obligation.
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10. In this respect, the Claimant alleged that throughout the employment relationship, the Respondent
paid “random” amounts, without specifying the concept or following a pattern. The Claimant
alleged that those payments varied from month to month and did not tally with the schedule agreed
per employment contract.
11. Specifically, the Claimant submitted that he received from the Respondent the total amount of
EUR 28,880 as follows:
-
EUR 5,000 in November 2020;
EUR 2,000 in December 2020;
EUR 3,000 in February 2021;
EUR 5,000 in March 2021;
EUR 5,000 in April 2021;
EUR 1,000 in June 2021;
EUR 7,880 on 16 July 2021.
12. Nonetheless, the Claimant asserted that pursuant to the employment contract, he should have
received the total of EUR 64,500, corresponding to EUR 60,000 for salaries and EUR 4,500 for
accommodation costs.
13. Furthermore, the Claimant alleged that since the Respondent was promoted from Serie D to Serie
C at the end of the season 2020-2021, he was entitled to a bonus in the amount of EUR 10,000
pursuant to annexe 3 to the employment contract.
14. In view of the above, the Claimant submitted that at the beginning of August 2021, i.e. nine and
half months after commencement of the employment contract, the total amount of EUR 45,620
remained outstanding by the Respondent.
15. The Claimant added that despite two reminders being sent to the Respondent, the latter failed to
comply with its obligations and that as a result, the Claimant terminated his contract on
21 August 2021.
16. In conclusion, the Claimant submitted that he is entitled to outstanding remuneration and
compensation for breach of contract.
17. With regard to the calculation of the compensation the Claimant alleged that the Respondent was
allegedly promoted to the Lega Pro and as a result, the employment contract was automatically
extended for the 2021/22 season.
18. The requests for relief of the Claimant, were the following:
a. EUR 45,620 as outstanding remuneration for October 2020 to August 2021 plus 8% interest
p.a. as of the due dates until the effective date of payment.
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b. EUR 60,000 as compensation for breach of contract plus 8% interest p.a. as from the due
date until the effective date of payment;
c. EUR 5,000 as legal costs.
b. Position of the Respondent
19. In spite of being invited to do so, the Respondent did not reply to the claim.
c. Subsequent contractual situation of the Claimant
20. According to the information in Transfer Matching System (hereinafter: TMS), the Claimant
concluded a new employment contract on 26 July 2021 with the Spanish club, CD Tudelano, valid
as from 22 August 2021 until 31 May 2021.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber)
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 21 August 2021 and submitted for decision on
12 November 2021. 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.
22. Subsequently, the Chamber 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), it is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international dimension
between an Argentinian player and an Italian club.
23. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of
the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (August 2021 edition) and considering that the
present claim was lodged on 25 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
24. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4
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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 TMS.
c. Merits of the dispute
25. 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 abovementioned 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
26. The Chamber and took note of the fact that Claimant disputes the payment of certain financial
obligations by the Respondent as per the employment contract, namely EUR 45,620 corresponding
to outstanding salaries, accommodation costs as well as a promotion bonus for the relevant season
2020/2021.
27. Furthermore, the Chamber observed that the Claimant is of the opinion that as a result of the
outstanding payments, he had just cause to terminate the employment contract on 21 August 2021,
resulting in a further entitlement to compensation for the breach of contract.
28. In this context, the Chamber acknowledged that its task was to determine, based on the evidence
presented by the parties, whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the Claimant had just cause to terminate the employment contract.
29. Taking into account the fact that the Respondent failed to present its response to the claim of the
Claimant, the Chamber considered that the Respondent renounced its right to defence and thus
accepted the allegations of the Claimant.
30. In this respect, the Chamber firstly acknowledged that it was uncontested that the Claimant and the
Respondent had signed an employment contract valid as from 15 October 2020 until 30 June 2021.
31. At this point, the Chamber recalled that the employment contract contained an extension clause
upon promotion of the Respondent to higher category (par. I./3).
32. In this regard, the DRC referred to the confirmation of FIGC dated 15 November 2021 (par. I./7) that
a promotion of the Respondent to Serie C at the end of the 2020/21 season did not occur and that,
subsequently, the employment contract naturally expired on 30 June 2021.
33. As a consequence, the members of the Chamber determined that the alleged termination of the
employment contract on 21 August 2021 could not have occurred, as the contract expired naturally
on 30 June 2021.
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34. The Chamber then recalled that the Claimant lodged a claim against the Respondent in front of FIFA,
alleging that his salaries during the 2020/21 season have not been paid in their entirety. In
particular, the DRC turned its attention to the allegation that the Claimant merely received
EUR 28,880.
35. In continuation, the Chamber noted that it was uncontested that in accordance with the
employment contract, the Claimant was entitled, inter alia, to EUR 64,500 in remuneration, i.e.
EUR 60,000 as salaries for the 2020/21 season, and EUR 4,500 for accommodation costs.
36. What is more, the Chamber noted that the Claimant would be additionally entitled to EUR 10,000
in case that the Respondent is promoted to Lega Pro at the end of the 2020/2021 season, yet that
the relevant prerequisite for triggering said bonus, i.e. the effective promotion of the Respondent
to the Lega Pro, did not occur. In view of the foregoing, the Chamber concluded that said bonus
amount cannot be awarded to the Claimant.
ii. Consequences
37. The Chamber observed that the financial obligations deemed as outstanding in the present case
correspond to the outstanding salaries of EUR 31,120 and the accommodation costs of EUR 4,500.
38. 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 amounts which were
outstanding under the contract, in total EUR 35,620.
39. With regard to the applicable interest, the Chamber recalled that the Claimant requested 8%
interest p.a. on the outstanding amounts.
40. The Chamber observed that the there in no contractual basis for such request and therefore,
rejected the Claimant’s request to be awarded 8% interest p.a. but instead referred to its constant
practice and decided to award the Claimant interest at the rate of 5% p.a. on the outstanding
amounts until the date of effective payment as follows:
Outstanding salaries
- on the amount of EUR 1,120 as of 1 February 2021;
- on the amount of EUR 6,000 as of 1 March 2021;
- on the amount of EUR 6,000 as of 1 April 2021;
- on the amount of EUR 6,000 as of 1 May 2021;
- on the amount of EUR 6,000 as of 1 June 2021;
- on the amount of EUR 6,000 as of 1 July 2021.
Accommodation costs
- on the amount of EUR 500 as 1 November 2020;
- on the amount of EUR 500 as 1 December 2020;
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- on the amount of EUR 500 as 1 January 2021;
- on the amount of EUR 500 as 1 February 2021;
- on the amount of EUR 500 as 1 March 2021;
- on the amount of EUR 500 as 1 April 2021;
- on the amount of EUR 500 as 1 May 2021;
- on the amount of EUR 500 as 1 June 2021;
- on the amount of EUR 500 as 1 July 2021.
iii. Further requests of the Claimant
41.
The Chamber wished to note that since the employment contract expired naturally on
30 June 2021, no compensation for breach of contract can be due.
42.
With regard to Claimant’s request for legal fees, the Chamber pointed to art. 25 par. 8 Procedural
Rules, stipulating that “[n]o legal costs shall be awarded. Parties bear all their own costs in
connection with any procedure.”
iv. Compliance with monetary decisions
43.
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.
44.
In this regard, the Chamber 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.
45.
Therefore, bearing in mind the above, the Chamber decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of the
decision, failing which, at the request of the creditor, 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 club in accordance with art. 24bis
par. 2, 4, and 7 of the Regulations.
46.
The club shall make full payment (including all applicable interest) to the bank account provided
by the player in the Bank Account Registration Form, which is attached to the present decision.
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47.
The Chamber 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.
d. Costs
48.
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.
49.
Furthermore, 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.
50.
Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pablo Nicolas Caballero Santos, is partially accepted.
2.
The Respondent, FC Messina, has to pay to the Claimant, EUR 35,620 as outstanding
remuneration plus 5% interest p.a. as of the due dates until the date of effective payment as
follows:
Outstanding salaries
- on the amount of EUR 1,120 as of 1 February 2021
- on the amount of EUR 6,000 as of 1 March 2021;
- on the amount of EUR 6,000 as of 1 April 2021;
- on the amount of EUR 6,000 as of 1 May 2021;
- on the amount of EUR 6,000 as of 1 June 2021;
- on the amount of EUR 6,000 as of 1 July 2021;
Accommodation costs
- on the amount of EUR 500 as 1 November 2020;
- on the amount of EUR 500 as 1 December 2020;
- on the amount of EUR 500 as 1 January 2021;
- on the amount of EUR 500 as 1 February 2021;
- on the amount of EUR 500 as 1 March 2021;
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- on the amount of EUR 500 as 1 April 2021;
- on the amount of EUR 500 as 1 May 2021;
- on the amount of EUR 500 as 1 June 2021;
- on the amount of EUR 500 as 1 July 2021.
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. 24bis of the Regulations on the Status and Transfer of Players (February 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with
art. 24bis par. 7 and 8 and art. 24ter 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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