Labour Disputes
Texto da decisão
REF FPSD-5257
Decision of the
Dispute Resolution Chamber
passed on 09 June 2022
regarding an employment-related dispute concerning the player Andrei
Chindriş
COMPOSITION:
DE WEGER, Frans (The Netherlands), Chairperson
COLUCCI, Michele (Italy), Member
RIESTRA, Iñigo (Mexico), Member
CLAIMANT / COUNTER-RESPONDENT:
Andrei Chindriş, Romania
Represented by Wallace Joacir Alves de Oliveira & Antonio O. Amorim
RESPONDENT / COUNTER-CLAIMANT:
Santa Clara Açores, Portugal
Represented by Miguel Duarte
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I. Facts of the case
1.
On 31 August 2021, the Romanian player, Mr Andrei Chindriş (hereinafter: the player or
the Claimant / Counter-Respondent), and the Portuguese club, Santa Clara Açores
(hereinafter: the club or the Respondent / Counter-Claimant), concluded an employment
contract valid as from the date of signature until the end of the 2023/2024 season with
an extension option for the following season (hereinafter: the employment contract).
2.
In accordance with clause 2 of the employment contract, the club undertook to pay the
player inter alia the following remuneration:
a. Season 2021/2022: EUR 85,000 net as annual remuneration, payable in 10 monthly
instalments of EUR 8,500 net each, being the first one due by 5 October 2021 and
the following ones on the same day of the subsequent months;
b. Season 2022/2023: EUR 108,000 net as annual remuneration, payable in 12
monthly instalments of EUR 10,800 net each, being the first one due by 5 August
2022 and the following ones on the same day of the subsequent months;
c. Season 2023/2024: EUR 120,000 net as annual remuneration, payable in 12
monthly instalments of EUR 12,000 net each, being the first one due by 5 August
2023 and the following ones on the same day of the subsequent months;
d. Season 2024/2025 (in case of extension): EUR 144,000 net as annual remuneration,
payable in 12 monthly instalments of EUR 14,400 net each, being the first one due
by 5 August 2024 and the following ones on the same day of the subsequent
months; and
e. EUR 500 net per month as accommodation allowance for the duration of the
employment contract.
3.
Additionally, pursuant to clause 5 of the employment contract, the club also agreed to
pay the player inter alia EUR 15,000 net as sign-on fee, payable by 30 September 2021.
4.
Finally, clause 14 of the employment contract read as follows (freely translated to English):
“For the resolution of any dispute arising from this contract, the FIFA Arbitration Courts (FIFA
Resolution Chamber / Player Status Committee), or the Court of Arbitration for Sport, in
ordinary proceedings, if FIFA does not accept jurisdiction, with the express waiver of any others.
In case of discrepancy between Portuguese laws and FIFA Regulations, the latter shall prevail”.
5.
In October and November 2021, the player’s agent, Mr Andreas Hoffman, and the club’s
representative, Mr João Ferreira, exchanged messages via the electronic application
WhatsApp.
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6.
On 18 December 2021, the player put the club in default and granted it 15 days to perform
the payment of EUR 23,500 corresponding to the sign-on fee and the salary of November
2021.
7.
On 3 January 2022, the player notified the club the termination of the employment
contract due to overdue payables. In this opportunity, the player requested payment
within 24 hours of the outstanding amounts totalling EUR 22,500, as well as compensation
for breach of contract amounting to EUR 296,000 (i.e. the residual value of the
employment contract).
8.
The player remained unemployed after the termination of the employment contract.
II. Proceedings before FIFA
9.
On 23 February 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Claim of the player
10. In his claim, the player informed that the club was systematically late on paying of his
remuneration. In particular, the player pointed out that at the time of the termination the
club owed him far more than two monthly salaries as well as that it had failed to remedy
the breach within the deadline granted in his default notice dated 18 December 2021.
11. Based on the above, the player referred to the jurisprudence of the Dispute Resolution
Chamber (DRC) and the Court of Arbitration for Sport (CAS) on the matter and concluded
that the employment contract was terminated with just cause in line with art. 14bis of the
FIFA Regulations on the Status and Transfer of Players (RSTP). Consequently, he claimed
to be entitled to the following amounts:
a. EUR 23,100 as outstanding remuneration, broken down as follows:
(i)
EUR 600 as the balance of the salary of September 2021;
(ii)
EUR 7,500 as the salary of December 2021; and
(iii)
EUR 15,000 as the sign-on fee.
b. EUR 294,000 as compensation for breach of contract, broken down as follows:
(i)
EUR 54,000 as the remaining remuneration for the 2021/2022 season;
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(ii)
EUR 114,000 as the entire remuneration for the 2022/2023 season; and
(iii)
EUR 126,000 as the entire remuneration for the 2023/2024 season.
c. In case of mitigation:
(i)
EUR 27,000 as additional compensation (i.e. three monthly salaries); and
(ii)
EUR 108,000 as “additional compensation under the specificity of sports”
bearing in mind that the breach occurred within the protected period.
12. Lastly, the player requested interest of 5% p.a. as from the respective due dates, as well
as sporting sanctions to be imposed on the club.
b. Reply and counterclaim of the club
13. On 28 March 2022, the club filed its reply and a counterclaim against the player.
14. In accordance with the club, right after the signature of the employment contract the
player asked to be released to return to Romania between the 1 and 5 September 2021 –
what was allegedly accepted by the club in good faith.
15. In addition, on 29 September 2021 the player would have once again asked to travel to
Romania on the following month (i.e. 6 and 7 October 2021). In spite of having rejected
such request for sporting reasons, the club argued that the player left the club without
any valid reason and only returned on 11 October 2021.
16. Against this background, the club informed that disciplinary proceedings were opened
against the player who was fined for an amount of EUR 1,250. What is more, the club
outlined that said sanction was never contested by the player.
17. After establishing the above, the club confirmed its default, attributable to the “manifest
momentary financial difficulties”. Nevertheless, it argued that the employment contract
was terminated without just cause because:
a. The sign-on fee payable to the player was not to be considered as a “salary” for
the purposes of the calculation, therefore the threshold set out in article 14bis
of the FIFA RSTP was not reached; and
b. In any event, the player did not fulfil the requirements of the Portuguese labour
law or the Collective Bargaining Agreement (CBA).
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18. As a consequence of the above, the club argued that it should be entitled to compensation
for breach of contract amounting to EUR 294,000 (i.e. the residual value of the
employment contract) plus 5% p.a. interest as from the due date.
c. Reply to the counterclaim by the player
19. On 12 April 2022, the player filed his reply to the counterclaim lodged by the club.
20. Firstly, the player challenged the club’s position as to the disciplinary proceedings. In
particular, he mentioned that it constituted “an unfortunate attempt to get rid of their
contractual obligations”, as well as that that club “did not produce satisfactory evidence
regarding the internal disciplinary procedure to substantiate the weak commitment of the
player in training and playing with the team”.
21. In continuation, the player also pointed out that the club did not advance any evidence
regarding the Portuguese law or the CBA. What is more, the player recalled the content
of clause 14 of the employment contract and concluded that FIFA regulations should be
the one applied to the case at hand. He also referred to FIFA’s jurisprudence in this regard.
22. Based on the above, the player reiterated his requests for relief as per his statement of
claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 February 2022 and
submitted for decision on 9 June 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.
24. 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, par.
1, lit. b) of the Regulations on the Status and Transfer of Players (March 2022 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
Romanian player and a Portuguese club.
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25. 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 (March 2022 edition), and
considering that the present claim was lodged on 23 February 2022, 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
26. 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 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
27. 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
28.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that the player terminated the employment contract on 3 January
2022 due to overdue payables, and the parties dispute whether he had just cause to do
so and the consequences that follow.
29.
In this context, the DRC acknowledged that, in accordance with the player, at the time
of the termination his sign-on fee and part of the salaries of September and December
2021 were outstanding, totalling EUR 23,100. On the other hand, the Chamber was also
mindful of the club’s position according to which such termination did not meet the
conditions set out neither in the Portuguese labour law and CBA; nor in art. 14bis of the
Regulations.
30.
In view of this dissent between the parties, the DRC turned to the documentation on file
and highlighted that clause 14 of the employment contract expressly establishes that
FIFA regulations should be applicable in case of conflict, moreover, should prevail over
the national law. The Chamber also outlined that its longstanding jurisprudence
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corroborates that the FIFA regulations prevail over another national law chosen by the
parties since the objective of the RSTP, and the FIFA regulations in general, is to create
a standard regulatory framework to which all actors within the football community are
subject to and can trust.
31.
It followed from the above – in the opinion of the Chamber and conversely to the club’s
position – that the content of the Portuguese law and CBA are not relevant to the
dispute at stake. Accordingly, the DRC established that the termination of the
employment contract and the alleged just cause of the player had to be entertained visà-vis the Regulations and the jurisprudence of the Football Tribunal on the matter.
32.
Having established the above, the Chamber referred to the wording of art. 14bis par. 1
of the Regulations, in accordance with which, if a club unlawfully fails to pay a player at
least two monthly salaries on their due dates, the player will be deemed to have a just
cause to terminate his contract, provided that he has put the debtor club in default in
writing and has granted a deadline of at least 15 days for the debtor club to fully comply
with its financial obligation(s).
33.
With the above in mind, the Chamber moved to the analysis of the quantum due by the
time of the termination and noted that the club did not dispute the player’s position as
to the unpaid remuneration, rather referred to “manifest momentary financial
difficulties”, and to a disciplinary fine supposedly imposed on him.
34.
In this respect, the DRC unanimously decided that the club’s argumentation should be
rejected. In particular and based on the wording of art. 13, par. 5 of the Procedural
Rules, the Chamber considered that:
•
the club did not substantiate its argumentation as to the alleged financial
difficulties, which are not per se deemed as a valid reason not to comply with
contractual obligations in light of the well-established jurisprudence of the
Football Tribunal;
•
as to the disciplinary sanction, the club did only submit a copy of the player’s
defence in the alleged disciplinary proceedings, which was not sufficient neither
to confirm the quantum nor the grounds of the sanction, let alone to
demonstrate that the respective decision was properly notified to the player and
that the disciplinary proceedings were held in compliance with his procedural
rights; and
•
the club’s argumentation regarding the player’s absences was also not
accompanied by any documentary evidence. As such, the club did not prove that:
(i) the player was indeed absent without authorization; nor (ii) it put the player in
default for breach of contract.
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35.
Consequently, the members of the DRC unanimously concluded that the remuneration
of the player should have been paid as described in the employment contract. As such,
the following amounts were outstanding at the time of the termination:
a.
EUR 15,000 as the sign-on fee, payable by 30 September 2021;
b.
EUR 600 as the balance of the salary of September 2021, payable on 5 October
2021; and
c.
EUR 7,500 as the balance of the salary of October 2021, payable on 5 November
2021.
36.
At this point, the DRC once again recalled the wording of art. 14bis of the Regulations
and highlighted that said provision refers strictly to the concept of “salaries” therefore
does not include the contingent payments, such as the sign-on fee. In doing so, the
Chamber pointed out that the threshold set out in the cited provision was not reached
in the case at stake, insofar as two monthly salaries of the player amounted to EUR
17,000 out of which only EUR 8,100 were overdue (i.e. the balances of the salaries of
September and October 2021).
37.
Notwithstanding the above, the Chamber recalled that its jurisprudence, as detailed by
the Commentary on the Regulations on the Status and Transfer of Players – Edition 2021
(hereinafter: the Commentary), pp. 123, establishes the following:
“Article 14bis makes clear that if a club unlawfully fails to pay a player two monthly
salary payments, the player will be deemed to have just cause to terminate their contract
provided certain formal conditions are met.
Article 14bis refers to unpaid and outstanding salaries. However, this certainly does not
imply that delayed payment of other forms of (frequent, non-conditional) remuneration
cannot constitute a just cause for a player to terminate their contract prematurely. A
player invoking other outstanding remuneration as just cause to terminate their contract
may still have a strong case. The pertinent circumstances will have to be assessed against
the general definition of what constitutes a just cause in accordance with the terms of
article 14, along with the relevant general criteria set out in jurisprudence and described
above. Particular attention should be paid factors such as whether the outstanding
amount is significant (i.e. that it is neither negligible nor totally subordinated), the extent
of the delay, the general attitude of the parties in the specific case, and other relevant
factors” (emphasis added).
38.
In casu, the DRC gave particular weight to the fact that the sign-on fee was outstanding
for more three months and corresponded to almost two salaries of the player. The
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members of the Chamber did not fail to notice either that the player provided written
evidence of having put the club in default on 18 December 2021.
39.
On the other hand, the DRC observed that the club did not reply to the player’s letter
and only paid EUR 1,500 on 23 December 2021 out of a debt of EUR 23,100. What is
more, the payment of EUR 9,000 was only made on 9 January 2022 i.e. after the
employment contract had already been terminated. Therefore, the Chamber took due
consideration that the club did not cure its default within the deadline given by the
player and failed to provide any type of justification to this extent, entailing that by the
time of the termination a considerable part of player’s remuneration was still
outstanding.
40.
In view of the foregoing and based on the factual and contractual situation, the DRC
decided that such persistent and substantial non-compliance of the contractual
obligations by the club could justify the unilateral termination of the contract as well as
it could hold the club liable for breach of contract. As per its solid jurisprudence, the
Chamber therefore concluded that the player had had a just cause to unilaterally
terminate the employment contract based on art. 14 of the Regulations.
41.
As a consequence, the DRC determined that the club should endure the consequences
that follow, and its counterclaim should be rejected accordingly.
ii. Consequences
42. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
club.
43. Initially, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the club should be liable to pay to the player the amounts which
were outstanding under the employment contract at the moment of the termination i.e.
the sign-on fee plus the balance of the salaries of September and December 2021.
44. In addition, taking into consideration the player’s request as well as its constant practice
in this regard, the DRC decided to award the player interest at the rate of 5% p.a. on the
outstanding amounts as from the respective due dates until the date of effective
payment, as follows:
a.
EUR 15,000 as the sign-on fee, plus 5% interest p.a. as from 1 October 2021;
b.
EUR 600 as the balance of the salary of September 2021, plus 5% interest p.a. as
from 6 October 2021; and
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c.
EUR 7,500 as the balance of the salary of December 2021, plus 5% interest p.a. as
from 5 January 2022.
45. Thereafter, the Chamber 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 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 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.
46. In application of the relevant provision, the Chamber 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 Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
47. As a consequence, the members of the Chamber 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 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.
48. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the
employment contract from the date of its unilateral termination until its end date. In
doing so, the Chamber concluded that the amount of EUR 294,000 serves as the basis for
the determination of the amount of compensation for breach of contract, broken down
as follows:
a.
EUR 54,000 as the remaining remuneration for the 2021/2022 season;
b.
EUR 114,000 as the entire remuneration for the 2022/2023 season; and
c.
EUR 126,000 as the entire remuneration for the 2023/2024 season.
49. In continuation, the Chamber 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
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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.
50. Indeed, the player remained unemployed after the termination of the employment
contract, hence was not able to mitigate his damages. As a consequence, the Chamber
referred to art. 17, par. 1 lit. i) of the Regulations together with its solid jurisprudence on
the matter, and decided it was not in a position to grant the player any additional
compensation and/or “additional compensation under the specificity of sports”.
51. 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 EUR 294,000 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
52. 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 the date of the claim (i.e. 24 February 2022) until
the date of effective payment.
iii. Compliance with monetary decisions
53. 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.
54. 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.
55. Therefore, bearing in mind the above, the DRC 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 player, 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. 24 par. 2, 4, and 7 of the Regulations.
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56. 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.
57. 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
58. 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.
59. 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.
60. 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 / Counter-Respondent, Andrei Chindriş, is partially
accepted.
2.
The Respondent / Counter-Claimant, Santa Clara Açores, has to pay to the Claimant /
Counter-Respondent, the following amount(s):
- EUR 15,000 as outstanding remuneration plus 5% interest p.a. as from 1 October
2021 until the date of effective payment;
- EUR 600 as outstanding remuneration plus 5% interest p.a. as from 6 October 2021
until the date of effective payment;
- EUR 7,500 as outstanding remuneration plus 5% interest p.a. as from 5 January 2022
until the date of effective payment; and
- EUR 294,000 as compensation for breach of contract plus 5% interest p.a. as from 23
February 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counter-Claimant is 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, if full
payment (including all applicable interest) is not made within 45 days of notification
of this decision, the following consequences shall apply:
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1.
The Respondent / Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant /
Counter-Respondent 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.
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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