Labour Disputes
Texto da decisão
REF 20-01526
Decision of the
Dispute Resolution Chamber (DRC) Judge
Passed on 13 January 2021,
regarding an employment-related dispute concerning the player Franco Nicolas Carella
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
FRANCO NICOLAS CARELLA, Argentina
Represented by Mr. Esteban Carlos Rodriguez
RESPONDENT:
MONS CALPE SC, Gibraltar
Represented by Mr. Jose A Reygadas
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I. FACTS OF THE CASE
1.
On 1 August 2020, the Argentinian player, Franco Nicolas Carella (hereinafter: the player or
the Claimant) and the Gibraltarian club (hereinafter: the club or the Respondent) signed an
employment contract (hereinafter: the contract), valid for one season, between 1 August
2019 and 31 May 2020. According to the contract, the player inter alia was entitled to a
monthly remuneration of Gibraltar Pounds (GIP) 1,200.
2.
On 8 January 2020, the player and the club signed a document according to which the
contract “has ceased as of the date of this letter as per your request” and that “Obligations
between [the club] and [the player] reflecting your football conditions are hereby void as from
the above mentioned date” (hereinafter: the termination agreement).
3.
On 17 September 2020, the player put the club in default of payment of EUR 4,800, awarding
it with a deadline of 15 days to pay the amounts due.
4.
On 15 October 2020, the player sent an email to the club stating that should the amount of
EUR 4,800 not be paid within 5 days, he would start proceedings before FIFA in accordance
with art. 12 bis par. 3 of the FIFA Regulations on the Status and Transfer of Players (RSTP).
5.
On 20 October 2020, the player filed the claim at hand against the club, requesting the
amount of EUR 4,800 referring to the salaries of September to December 2019 as well as EUR
3,600 as three salaries “corresponding to the fine under art. 24bis” of the RSTP.
6.
The player deems that FIFA is competent to hear the claim on account of the fact that he
signed a contract which could not be negotiated (“contrato de adesión”).
7.
The player explained that he had put the club in default and that, absent a response, he was
entitled to terminate the contract with just cause. Accordingly, the player is of the opinion
that by his correspondence of 15 October 2020, he can “adequately claim the compensation
established under art. 24bis” of the RSTP.
8.
In its reply to the claim, the Respondent first objected to the competence of FIFA, claiming
that the National Dispute Resolution Chamber of the Gibraltar Football Association
(hereinafter: GFA NDRC) is competent.
9.
As to the substance, the club argued as follows:
“It is true that there was a contract between the parties. However, it was terminated,
voluntarily, by both parties on January 8, 2020. The claimant himself has submitted the
documentation that proves the voluntary termination of the relationship between Player and
Club and the non-debt of my client towards the Claimant.
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The letter of January 8, 2020 and the report sent to the “Department of Employment” of
Gibraltar, which the claimant himself presents as evidence - which gives them full validity and
denotes that he agrees with their content - prove that the contract was voluntarily terminated
and that there is no payment to be made in respect of it.
The claimant says that "he terminated the contract”. This is legally impossible, if the player
himself voluntarily terminated it on January 8, 2020, so there is no compensation to pay and
regarding any pending payment, the aforementioned documents establish that it does not
exist”.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
Competence, admissibility and applicable legal framework
10.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
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 20 October 2020 and
submitted for decision on 13 January 2021. Taking into account the wording of art. 21 of
the 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
11.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
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 January 2021), he is in principle competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Argentinian player and a Gibraltarian club.
12.
Notwithstanding the above, the DRC Judge noted that the Respondent has objected to the
competence of FIFA in favour of the competence of the GFA NDRC.
13.
In this respect, the DRC Judge firstly outlined that the termination agreement, which is the
document at the center of the dispute, bears no jurisdiction clause. Hence, the DRC Judge
outlined that there is no contractual clause explicitly referring to a national dispute
resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the RSTP.
14.
Notwithstanding the above, the DRC Judge emphasised that in accordance with art. 22 lit.
b) of the January 2021 edition of the RSTP he 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 DRC Judge referred to FIFA Circular
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no. 1010 dated 20 December 2005. In this regard, the DRC Judge further referred to the
principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard
Regulations, which came into force on 1 January 2008.
15.
In this context, the DRC Judge wished to stress that the Respondent was unable to prove
that, in fact, GFA NDRC meets the minimum procedural standards for independent
arbitration tribunals as laid down in art. 22 lit. b) of the RSTP, in FIFA Circular no. 1010 as
well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
insofar as the Respondent filed no evidence in this respect.
16.
Consequently, and on the basis of art. 12 par. 3 of the Procedural Rules, the DRC Judge
confirmed that he is competent to hear the claim at hand.
17.
Subsequently, the DRC 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 Player (edition January 2021), and
considering that the present claim was lodged on 20 October 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
18.
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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, he stressed the wording
of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not
filed by the parties.
19.
In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
20.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the DRC Judge entered into the merits of the dispute. In this respect, he started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, he 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
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21.
The DRC Judge moved to the substance of the matter, and took note of the fact that the
parties strongly dispute the consequences of the execution of the termination agreement.
To this end, the DRC Judge firstly established that it stood undisputed between the parties
had indeed executed the contract, since neither the Claimant nor the Respondent raised
any objection in this regard.
22.
At this point, the DRC Judge highlighted that he had to concur with the argumentation of
the Respondent to the extent that it was legally impossible that the Claimant terminated
the employment agreement after having put the Respondent in default on 17 September
and 15 October 2020.
23.
Notwithstanding the above, the DRC Judge referred to the contents of said termination
agreement, which clearly stated as follows: “Obligations between [the club] and [the player]
reflecting your football conditions are hereby void as from the above mentioned date”.
24.
In the DRC Judge’s opinion, said clause was clear and unequivocal to state that the effects
of the termination agreement, that is, the extinction of the labour relationship between the
parties, took place as from the date of its execution. Accordingly, the DRC Judge found that
no disposition of the termination agreement established that the player had relinquished
any remuneration prior to 8 January 2020.
25.
In other words, the DRC Judge deemed that the player did not waive any instalments due
during the year 2019, since the termination agreement only refers to entitlements due as
from January 2020 and the player is requesting, inter alia, the monthly salaries of
September, October, November, and December 2019, in the total amount of EUR 4,800.
26.
Subsequently, the DRC Judge noted that the club filed no evidence of having paid the
requested amounts, which led to the conclusion that the club failed to remit the player his
salaries of September, October, November, and December 2019
27.
Based on the foregoing consideration and in line with the principle pacta sund servanda,
the DRC Judge decided that the Respondent must fulfil its obligations towards the Claimant
and is to be held liable to pay the Claimant the outstanding salaries in the amount of EUR
4,800.
28.
In addition, taking into consideration the Claimant’s claim, the DRC Judge decided to award
the Claimant interest at the rate of 5% p.a. as of the day following the day on which the
payments fell due in accordance with the contract until the date of effective payment.
29.
In continuation, the DRC Judge turned to the EUR 3,600 requested by the player on the
grounds of article 24bis of the Regulations, and clarified that art. 24bis pertains to the
consequences imposed on a club or a player in case of failure to comply with decisions of
the FIFA deciding bodies pertaining to payment of outstanding amounts or compensation
for breach of contract, and give hence no respect to such additional compensation
requested.
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30.
Consequently, the DRC Judge found that such request by the Claimant lacks contractual or
regulatory basis and thus rejected it.
ii. Compliance with monetary decisions
31.
Finally, taking into account the applicable Regulations, the DRC Judge 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.
32.
In this regard, the DRC 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 and for the
maximum duration of three entire and consecutive registration periods.
33.
Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
club does not pay the amounts due to the player within 45 days as from the moment in
which the player communicates the relevant bank details to the club, provided that the
decision is final and binding, 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 club in accordance with art. 24bis par. 2 and 4 of the
Regulations.
34.
The DRC Judge recalled that the above-mentioned bans 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.
d.
Costs
35.
The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, he decided that no procedural
costs were to be imposed on the parties.
36.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
37.
Lastly, the DRC Judge concluded the deliberations by rejecting any other requests for relief
made by any of the parties.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, FRANCO NICOLAS CARELLA, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, MONS CALPE SC, has to pay to the Claimant the following amounts:
-
EUR 1,200 as outstanding remuneration plus 5% interest p.a. as from 1 October 2019
until the date of effective payment;
-
EUR 1,200 as outstanding remuneration plus 5% interest p.a. as from 1 November
2019 until the date of effective payment;
-
EUR 1,200 as outstanding remuneration plus 5% interest p.a. as from 1 December 2019
until the date of effective payment;
-
EUR 1,200 as outstanding remuneration plus 5% interest p.a. as from 1 January 2020
until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
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.
6.
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).
7.
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).
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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.
8. The decision is rendered free of 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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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