Dispute Resolution Chamber
Texto da decisão
REF 20-01863
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021
regarding an employment-related dispute concerning the player Jaime Santos Colado
COMPOSITION:
Clifford J. Hendel (USA/France), Chairman
Stéphane Burchkalter (France), member
Muzammil bin Mohamed (Singapore), member
CLAIMANT:
Jaime Santos Colado, Spain
Represented by Asociación de Futbolistas Españoles
RESPONDENT:
Sporting Club East Bengal, India
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I.
FACTS OF THE CASE
1.
On 11 June 2019, the Spanish player, Jaime Santos Colado (hereinafter: the Claimant or the
Player), and the Indian club, Quess East Bengal FC (hereinafter: the Former Club) signed an
employment contract valid as from date of signature until 31 May 2021 (hereinafter: the
Contract).
2.
According to the information in the Transfer Matching System (TMS), the status of the Former
Club is “non-participating”, whereas the account of Indian club, Sporting Club East Bengal
(hereinafter: the Respondent or the Club) is “active and participating”.
3.
In accordance with the employment contract, the Former Club undertook to pay to the Claimant
inter alia “the net amount of USD 175,000 for the Term as consideration in lieu of the services
provided by the Player to the Club ("Consideration"). This Consideration would be paid to the
player as per details enlisted below:
a. For Season 2019 - 2020: NET USD 87,500
b. For Season 2020 - 2021: NET USD 87,500”
4.
Clause 12.2 of the Contract reads as follows (quoted verbatim):
“Force Majeure: No Party shall be liable to the other Party for delay or failure to perform caused
by an event or occurrence of Force Majeure. The Party whose performance is affected by an
event of Force Majeure shall promptly notify the other Parties of the existence and cessation of
such event. The Parties shall take all reasonable steps within their power to recommence
performance of the Agreement following an event of Force Majeure after it expires or is no
longer in effect. The period of time during which any Party is prevented or delayed in the
performance or fulfilling any obligation due to unavoidable delays caused by a Force Majeure
Event, compliance with any directive, order, or regulation of any governmental authority or
representative thereof acting under claim or colour of authority, or for any reason beyond such
Party's reasonable control, whether or not similar to the forgoing, shall be added to such Party's
time for* performance thereof; and such Party shall have no liability by reason thereof”.
5.
On 25 April 2020, the Former Club sent a notice to the player, which inter alia stated the
following:
“(…) we regret to intimate to you the premature cessation of your professional contract with
Quess East Bengal FC under the ‘Force Majeure Clause‘ of the agreement The Cessation will be
effective 30 April 2020 and this will imply that your the prorated monthly salary will be payable
till the effective date of cessation by Quess East Bengal FC. You are requested to consider this
email as an official communication for the stated matter”.
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6.
On 6 May 2020, the Former Club sent a proposed “Mutual Termination Agreement” to the
Claimant which was never signed by the latter.
7.
On 14 May 2020, the Former Club sent a letter to the player on inter alia the following terms:
” the football rights of East Bengal, which is currently residing with Quess East Bengal FC, will
be transferred back to East Bengal Club on or before 31st May 2020”
“Senior Football Team players with Contract for next football season (2020-21) or for
subsequent years, have the option of negotiating with the new Corporate Owner of the football
rights of East Bengal Club for the continuation of the signed contracts. Please note that the
onus of honouring the liabilities attached with any contracts for subsequent season will be the
onus of the new Corporate Sports Management entity which will manage the football rights of
East Bengal Club”
8.
On 19 May 2020, the Claimant sent an email correspondence informing the Former Club that
he did not agree to terminate his contract.
9.
On 28 May 2020, the Former Club sent an email correspondence to the Claimant stating that
“post 31 May 2020, the operations of Quess East Bengal FC will cease to exist in Kolkata”.
10.
On 27 October 2020, the Claimant sent default notice the Former Club requesting the
outstanding amount of USD 49,865.59 and granting 15 days to settle the requested amount,
making reference to art. 14bis RSTP.
11.
On 18 November 2020, the Claimant sent a final default notice the Former Club granting
additional 5 days to comply.
12.
On 26 November 2020, the Claimant sent a notice of termination to the Respondent adducing
just cause.
13.
On 6 January 2021, the Claimant and the Bolivian club, Club Atletico Palmaflor (hereinafter: CA
Palmaflor) signed an employment contract valid as from date of signature until 31 December
2022.
II.
PROCEEDINGS BEFORE FIFA
14.
On 21 December 2020, the Claimant filed the claim at hand against the Respondent before
FIFA. A brief summary of the position of the parties is detailed in continuation.
A.
15.
The claim of the Claimant
The Claimant argued that despite the notices and communications from the Former Club on
April and May 2020, it continued its operations, hiring players and a new coach. Albeit,
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completely ignoring the Claimant and its rightful dues. Hence, according to the Claimant, he
had no other option but to file the claim at hand.
16.
In order to justify that the Respondent is the sporting successor of the Former Club, the Claimant
deems appropriate to highlight the following essential elements:
a.
b.
c.
d.
e.
The similarity of both clubs’ logos;
The name of the clubs itself;
The use of the same colours and similar kit;
The new club has at least 3 players whom the previous season competed for the old club;
The new club arrogates the sporting achievements and history as the previous old club.
17.
In support of this view, the Claimant quotes FIFA and CAS jurisprudence and refers to the FIFA
circular no. 1681 which inter alia states: “FIFA shall take the measures against sporting successor
of debtors, as reaction of the practice which regretfully has become more usual in the last few
years, consisting on the attempt to escape financial responsibilities with other clubs, players,
coaches via the sporting succession (art. 15 FDC)”.
18.
Furthermore, the Claimant requests moral damages because “the club’s action has affected the
player’s image negatively for new employment opportunities”.
19.
The Claimant states that he has not received his salary since March 2020. Therefore, according
to the Claimant, he was owed at the time of termination the total amount of USD 57,361.14,
itemised as follows:
a.
b.
c.
d.
e.
f.
g.
h.
20.
April 2020: USD 7,291.67
May 2020: USD 7,291.67
June 2020: USD 7,291.67
July 2020: USD 7,291.67
August 2020: USD 7,291.67
September 2020: USD 7,291.67
October 2020: USD 7,291.67
November 2020 (26 days): USD 6,319.45
In addition to the outstanding salaries, the Claimant requested compensation in the amount of
USD 44,722.24, calculated as follows:
a. 4 days in November 2020: USD 972.22
b. Salaries from December 2020 to May 2021: 43,750.02 USD
21.
The requests for relief of the Claimant, were the following:
a. “To condemn the club to pay the residual value of the contract until date of expiration (31
May 2021) in the amount of USD 44,722.24 net
b. To condemn the Club to pay USD 7,291.67 net as moral damages
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c. To condemn the club to pay the outstanding salaries in the amount of USD 57,361.14 net
d. To award 5% interest on the previous amounts
e. To impose sporting sanctions on the club”
b.
22.
Position of the Respondent
Despite being invited to do so, the Respondent failed to provide its position to FIFA in a timely
manner.
c. Position of the All India Football Federation
23.
The All India Football Federation (“AIFF”) was contacted in order to provide its position
regarding the alleged sporting succession.
24.
In this regard, the AIFF sent a correspondence on the following terms:
“we would like to inform you that SC East Bengal is the sporting successor of Quess East Bengal
FC and Kingfisher East Bengal FC. SC East Bengal is affiliated with the AIFF through its state
association, i.e., Indian Football Association, and participates in competitions organized under
the auspices of the All India Football Federation.
Further, please note that all correspondences addressed to Quess East Bengal Fc or Kingfisher
East Bengal FC are to be forwarded to SC East Bengal.”
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
25.
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 21 December 2020 and submitted for decision
on 22 April 2021. Taking into account the wording of art. 21 of the January 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.
26.
Subsequently, the members of the Chamber 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 February 2021), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Spanish player and
an Indian club.
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27.
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 (edition February 2021), and considering that
the present claim was lodged on 21 December 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
28.
The Chamber 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, the DRC stressed the wording of art. 12
par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the
parties.
29.
In this respect, the Chamber 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.
30.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the DRC
entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
DRC 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
31.
The foregoing having been established, the Chamber moved to the substance of the matter,
the Chamber acknowledged that it its task was to ascertain the following points:
a. When was the Contract terminated?
b. Was the Contract terminated with or without just cause?
c. Should the Respondent be deemed the sporting successor of the Former Club?
32.
Furthermore, the DRC took note of the fact that no answer had been filed by the Respondent
before the investigation phase of the proceeding was closed, in spite of having been invited to
do so. In this way, the DRC considered that the Respondent renounced its right to defence and
thus accepted the allegations of the Claimant.
33.
As a consequence of the aforementioned consideration, the DRC concurred that in accordance
with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documents
already on file, in other words, upon the statements and documents presented by the Claimant.
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34.
In this context, the Chamber noted that the Former Club intended to terminate the Contract
initially on April 2020. However, thereafter on May 2020, it changed its approach and stated
that the “the onus of honouring the liabilities attached with any contracts for subsequent season
will be the onus of the new Corporate Sports Management entity which will manage the
football rights of East Bengal Club”.
35.
Notwithstanding the above, the Chamber duly noted that it was clear from the evidence
available on file that the player had contested the said intention and had refused to sign a
settlement agreement.
36.
Additionally, the Chamber was pointed to the fact that the Claimant himself terminated the
Contract sending a notice of termination effective as from 26 November 2020, when according
to the Claimant more than 6 monthly salaries were outstanding, having sent a default notice to
the Respondent, to no avail.
37.
On account of the above circumstances, the Chamber decided that the Claimant had just cause
to terminate the employment relationship on 26 November 2020 and that, consequently, the
Respondent is to be held liable for the early termination of the Contact.
38.
Bearing in mind the previous considerations, the Chamber went on to determine if the
Respondent shall bear the consequences of the early termination of the Contract with just cause
by the Claimant. Put differently, the DRC proceeded to analyse whether the Respondent is the
sporting successor of the Former Club.
39.
The DRC referred to previous decisions of FIFA’s decision-making bodies related to this particular
issue as well as to the CAS Award 2013/A/3425 which mutatis mutandis can be applied to the
present matter. Indeed, in said Award, CAS, while confirming a previous decision of FIFA,
established that a club is a sporting entity identifiable by itself, which is formed by a combined
set of elements that constitute its image.
40.
In particular, the DRC fully adopted the reasoning of the Sole Arbitrator in the aforementioned
Award that reads as follows: “The Sole Arbitrator highlights that the decisions that had dealt
with the question of the succession of a sporting club in front of the CAS (CAS 2007/A/1355;
TAS 2011/A/2614; TAS 2011/A/2646; TAS 2012/A/2778) and in front of FIFA’s decision-making
bodies (…), have established that, on the one side, a club is a sporting entity identifiable by
itself that, as a general rule, transcends the legal entities which operate it. Thus, the obligations
acquired by any of the entities in charge of its administration in relation with its activity must
be respected; and on the other side, that the identity of a club is constituted by elements such
as its name, colours, fans, history, sporting achievements, shield, trophies, stadium, roster of
players, historic figures, etc. that allow it to distinguish from all the other clubs. Hence, the
prevalence of the continuity and permanence in time of the sporting institution in front of the
entity that manages it has been recognised, even when dealing with the change of
management companies completely different from themselves” (original text in Spanish).
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41.
In this respect, the Chamber deemed it relevant to point out that the Respondent (i.e. the new
entity SC East Bengal), operates under very similar name than the Former Club, and also shares
a similar logo, a similar name, uses similar colours and both clubs appear to have the same
sporting achievements and history.
42.
What is more, the DRC noted that the All India Football Federation confirmed that “SC East
Bengal is the sporting successor of Quess East Bengal FC and Kingfisher East Bengal FC. SC East
Bengal is affiliated with the AIFF through its state association, i.e., Indian Football Association,
and participates in competitions organized under the auspices of the All India Football
Federation”.
43.
As a result of the foregoing, the Chamber decided that the Respondent is the sporting successor
of the Former Club. As such, the DRC confirmed that the Respondent is to held liable for the
payment of outstanding remuneration and compensation for breach of contract to the
Claimant.
ii. Consequences
44.
Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract.
45.
In this regard, the Chamber noted that the Claimant is requesting outstanding salaries from
April until November 2020.
46.
The Chamber deemed that as no response had been submitted by the Respondent, this part of
the claim remains undisputed and shall therefore be awarded.
47.
The Chamber noted that as no payment date is stated in the Contract, the salary of November
2020 should be considered as outstanding. Consequently, on the basis of the principle pacta
sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amount of USD 58,333.
48.
What is more, in line with its longstanding jurisprudence, the Chamber decided to award 5%
interest p.a. each salary as from the date in which each salary was due. In the absence of
payment date in the Contract, the DRC considered that interest should be calculated as from
the first day of the subsequent month.
49.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach
of contract in addition to any outstanding salaries on the basis of the relevant employment
contract.
50.
In this context, the Chamber outlined that, in accordance with said provision, 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
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specificity of sport and further objective criteria, including, in particular, the remuneration and
other benefits due to the Claimant under the existing contract and/or the new contract, the
time remaining on the existing contract up to a maximum of five years, and depending on
whether the contractual breach falls within the protected period.
51.
In application of the relevant provision, the Chamber held that it first of all had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a 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.
52.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same contract,
along with the professional situation of the Claimant after the early termination occurred.
53.
In this respect, the Chamber pointed out that at the time of the termination of the Contract on
26 November 2020, the contract would run for another 6 months, i.e. until 31 May 2021.
Consequently, taking into account the financial terms of the Contract, the Chamber concluded
that the Claimant would be entitled to receive from the Respondent salaries in the total amount
of USD 43,750.
54.
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 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.
55.
In the matter at hand, the DRC confirmed that the Claimant had found new employment with
CA Palmaflor from 6 January 2021 until 31 December 2022, with a monthly salary of USD 7,000
and a signing on fee of USD 18,000.
56.
Hence, the DRC observed that for the remaining term of the contract, the Claimant had been
able to secure an amount which was already higher than the compensation he was entitled to
in the claim at hand, mitigating all his damages.
57.
Subsequently, the DRC ruled that the case at hand fulfils the requirements of art. 17.1.ii) of the
Regulations in order to be awarded additional compensation under that precept.
58.
Thus, the DRC decided that the Claimant is entitled to additional compensation in the amount
of three monthly salaries at the value enjoyed by the Claimant at the time of termination. The
DRC confirmed that the monthly salary of the Claimant at the time of termination was USD
7,291.67 under the Contract.
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59.
Considering the above, the Chamber deemed that, in accordance with art. 17.1.ii) RSTP, the
Claimant shall be entitled to a compensation of USD 21,875 in application of the said provision.
60.
What is more, in line with its longstanding jurisprudence, the Chamber decided to award 5%
interest p.a. on the aforementioned compensation as from the date of claim until day of
effective payment.
iii. Compliance with monetary decisions
61.
Finally, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences
deriving from the failure of the concerned party to pay the relevant amounts of outstanding
remuneration and/or compensation in due time.
62.
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 and for the maximum duration
of three entire and consecutive registration periods.
63.
Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amounts due to the Claimant within 45 days as from the moment in which
the Claimant, communicates the relevant bank details to the Respondent, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
64.
The DRC 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.
65.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
d.
Costs
66.
The Chamber 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, the Chamber decided that no procedural costs were to
be imposed on the parties.
67.
Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 18 par.
4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Jaime Santos Colado, is partially accepted.
2.
The Respondent, Sporting Club East Bengal, has to pay to the Claimant, the following amounts:
- USD 58,333 as outstanding remuneration plus 5% interest p.a. as follows:
o
o
o
o
o
o
o
o
-
On USD 7,291.67 as from 1 May 2020 until the date of effective payment.
On USD 7,291.67 as from 1 June 2020 until the date of effective payment.
On USD 7,291.67 as from 1 July 2020 until the date of effective payment
On USD 7,291.67 as from 1 August 2020 until the date of effective payment
On USD 7,291.67 as from 1 September 2020 until the date of effective payment
On USD 7,291.67 as from 1 October 2020 until the date of effective payment
On USD 7,291.67 as from 1 November 2020 until the date of effective payment
On USD 7,291.67 as from 1 December 2020 until the date of effective payment
USD 21,875 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 21 December 2020 until date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
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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.
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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