Labour Disputes
Texto da decisão
REF FPSD-2336
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Antoine
Conte
COMPOSITION:
Clifford J. Hendel (USA & France)
Stella Maris Juncos (Argentina)
Alejandro Atilio Taraborrelli (Argentina)
CLAIMANT:
Antoine Conte, France
Represented by Panagiota Konitsioti
RESPONDENT:
Beitar Jerusalem FC, Israel
Represented by Ronen Mozeson
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REF FPSD-2336
I.
Facts of the case
1.
On 15 June 2017, the French player, Antoine Conte (hereinafter: the Claimant or player), and
the Israeli club, Beitar Jerusalem FC (hereinafter: the Respondent or club) signed an
employment contract (hereinafter: contract) valid as from as from the date of signature until
31 May 2021.
2.
According to the contract, the Respondent undertook to pay the Claimant, inter alia, a total
salary of New Israeli Shekels (NIS) 1,303,660 for the season 2020/2021, payable in 10 monthly
instalments of NIS 130,366 starting in August 2020.
3.
The contract establishes that the payments fall due “on the 9th day of the month following
the month for which the payment is made”.
4.
Art. 1.8. of the contract reads as follows: “As the player is under court supervision by a
investigating French judge, as informed to the Club by the Player’s former club, Stade de
Reims FC, it is hereby agreed and clarified that in any case under which the Player shall be
obliged by court to be present in France for an extended period of time rather than only for
daily court appearances, which may be required from time to time (if at all), due to any
warrant or otherwise execute to the Player’s under such proceeding, the Team shall have the
right to early terminate this Agreement, by a 7 days prior notice, without having any
obligation to pay the player any compensation or any other remedy due to such early
termination, and/or, in the alternative, to withhold and not be obliged to pay the Player any
[salary] for the period of the Player’s absence only, as described above”.
5.
The contract establishes the following stipulations regarding the national insurance:
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6.
The club’s disciplinary regulations contain the following wording:
7.
On 4 January 2021, the player put the club in default and requested payment of NIS 198,440,
corresponding to salary deductions (NIS 156,440), outstanding pension allowances (NIS
35,000) and convalescence pay allowances (NIS 7,000), within 15 days.
8.
On 5 January 2021, the club replied to the player pointing out that the player did not inform
the club about his claim for a work disability allowance in connection with an injury where
he was awarded NIS 243,387, which entitles the club to deduct amounts from his salary.
9.
On 15 January 2021, the player sent a letter to the club disagreeing with the clubs view on
the deductions and reiterating his request.
10. On 19 January 2021, the club replied and reiterated the content of its previous letter.
11. On 8 February 2021, the club terminated the contract with the player due to his absence of
more than 3 weeks.
12. The player remained unemployed until 31 May 2021.
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13. On 23 June 2021, the player signed a new employment contract with the Romanian club,
Craiova.
II. Proceedings before FIFA
14. On 20 April 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
15. The Claimant requested payment of the following monies:
- NIS 44,105 as outstanding remuneration plus 5% interest p.a. as of 4 January 2021;
- NIS 571,830 corresponding to “my salaries due for the entire second half of the season”,
plus 5% interest p.a. as of date of claim;
- NIS 571,830 as compensation for breach of contract plus 5% interest p.a. as of date of
claim.
16. In his claim, the player held that the club deducted NIS 156,440 (4x NIS 39,110) from his
salaries without a reason and only paid NIS 112,335 on 7 January 2021, leaving an amount
of NIS 44, 105 unpaid.
17. Furthermore, the player held that he tried to get back to Israel “after some time off training”
on 30 January 2021, but that due to COVID-19 the airport in Israel was closed and he could
not travel.
18. After trying to arrange his travel, the club suddenly terminated his contract on 8 February
2021, which was without just cause and cause severe damages as the transfer window was
already closed.
b. Position of the Respondent
19. In its reply, the Respondent rejected the player’s claim and maintained having had just cause
to terminate the contract.
20. In this regard, the club argued that it had the right to terminate the contract since the player
was convicted of a “criminal offence amounting to a felony” in line with its disciplinary
regulations, which were signed by the player.
21. The club also argued that the player faced lengthy absences in January and February 2021
before his conviction in France, which led the player to participate in “only” 11 matches of
the club (50% of the matches).
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22. Due to those lengthy absences, the club pointed out that it had the right to terminate the
contract in line with art. 1.8 of the contract.
23. Furthermore, the club held that the player showed “derogatory behaviour” and “did whatever
he wanted”, which led to 3 red cards and 12 yellow cards during the season 20219/2020.
Allegedly, the player physically attacked the chairman of the club.
24. Moreover, the club brought forward that the player failed to inform it about a claim for
“disability allowance” in connection with an injury, where he was awarded the amount of NIS
243,387 from the insurance, which goes against art. 8.1 of the contract.
25. Alternatively, in case the DRC decides that the player is entitled to compensation, the club
held that the maximum compensation due to the player is NIS 571,830, which is the residual
value of the contract. No additional compensation would be due.
26. Additionally, the club pointed out that it reimbursed the player for the wrong deductions
made to the player’s salary (NIS 44,105). In this regard, the club submitted a payment receipt
relating to December 2020, where the player was paid NIS 156.440 instead of NIS 112,335.
c. Replica of the Claimant
27. In his replica, the player rejected the club’s argument that it had just cause due to the
conviction of the player.
28. In this regard, he submitted documents regarding his criminal procedure and pointed out that
he had to pay financial compensation and was not sent to prison as alleged by the club.
29. The player pointed out that the club was well aware of the incident when the contract was
signed.
30. Moreover, the club uses the incident as an excuse to terminate the contract with the player.
d. Duplica of the Respondent
31. In its duplica, the club held that the date of the incident was not decisive but the date of the
conviction.
32. In this context, it reiterated its stance that it had just cause to terminate the contract due to
the conviction.
33. Furthermore, the club held that the player did not submit all the documents regarding the
criminal case and that he failed to submit evidence of all his departures between June 2020
and March 2021.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
34. 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 20 April 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.
35. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a French player and
am Israeli club.
36. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition), and
considering that the present claim was lodged on 20 April 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
37. 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
38. 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.
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i. Main legal discussion and considerations
39. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute if the Respondent had just cause
to terminate the contract on 8 February 2021.
40. In this context, the Chamber acknowledged that it its task was to examine the circumstances
of such termination and decide on the consequences thereof.
41. Having established the above, the Chamber went on to analyse the allegation of the club –
disputed by the player – that the temporary absence of the latter for 3 weeks, without
authorisation or justification, consisted of a breach of contract on his part.
42. According to the club it had the right to terminate the contract as the player was convicted
of a crime in France and since the disciplinary regulations foresee a termination in such case.
43. In view of the foregoing, the Chamber referred to art. 13 par. 5 of the Procedural Rules
(October 2021 edition), according to which a party that asserts a fact has the burden of
proving it, and went on to analyse the documentation provided by the parties in support of
their allegations. In this respect, the Chamber noted that the termination notice refers to the
player’s absence, but not any alleged conviction. In this regard, the Chamber concluded that
the Respondent’s argumentation is contradicting as the termination refers to the player’s
absence while in its reply to the claim the club argues that the player was convicted and that
it had the possibility to terminate the contract in line with its disciplinary regulations.
44. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order for an employer to assure the employee’s fulfilment of his
contractual duties, such measures must be taken before terminating an employment contract.
A premature termination of an employment contract can only be an ultima ratio.
45. With the above in mind and after having carefully analysed the parties’ submissions, the
Chamber concluded that a short absence under the circumstances of the present case, namely
that the club knew about the court case of the player when the contract was signed, cannot
be deemed as a substantial breach of an employment contract, capable of triggering the
consequences of an unlawful termination.
46. Therefore, and also due to the lack of any request to the player to return, the Chamber
concluded that the Respondent did not have just cause to terminate the contract on 8
February 2021.
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ii. Consequences
47. 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 Respondent.
48. In doing so, the Chamber started addressing the issue of outstanding remuneration at the
time of the termination and noted that the salary deduction claimed by the player (NIS
44,105) appeared to have bee paid in the meantime as the club submitted a payment receipt
and the player did not dispute such payment in his replica.
49. Furthermore, the Chamber concluded that even though the player claimed the amount of
NIS 571,830 corresponding to “my salaries due for the entire second half of the season” as
salaries, this refers to the rest of the season and has to be considered as compensation.
50. Therefore, no outstanding remuneration shall be awarded.
51. Having stated the above, 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.
52. 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.
53. 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.
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54. 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 contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of NIS 571,830 (i.e. the residual value of the contract) serves as the basis for
the determination of the amount of compensation for breach of contract.
55. 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.
56. In this respect, the Chamber noted that the player remained unemployed since the unilateral
termination of the contract until 31 May 2021.
57. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
58. In this respect, the Chamber decided to award the player compensation for breach of contract
in the amount of NIS 571,830, as the residual value of the contract.
59. 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 claim until the date of effective payment.
iii. Compliance with monetary decisions
60. 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.
61. 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.
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62. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
63. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
64. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of
the Regulations.
d. Costs
65. 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.
66. 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.
67. 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, Antoine Conte, is partially accepted.
2.
The Respondent, Beitar Jerusalem FC, has to pay to the Claimant, the following amount:
- New Israeli Shekel (NIS) 571,830 as compensation for breach of contract plus 5%
interest p.a. as from 20 April 2021 until the date of effective payment.
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 if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of 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.
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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