Labour Disputes
Texto da decisão
REF FPSD-4613
Decision of the
Dispute Resolution Chamber
passed on 23 February 2022
regarding an employment-related dispute concerning the player Hugo Felipe
da Costa Oliveira
BY:
Johan van Gaalen (South Africa), Single Judge of the DRC
CLAIMANT:
Hugo Felipe da Costa Oliveira, Portugal
RESPONDENT:
FC U Craiova 1948, Romania
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REF FPSD-4613
I.
Facts of the case
1.
On 14 July 2021, the Portuguese player, Hugo Felipe da Costa Oliveira (hereinafter: the player
or the Claimant) and the Romanian club, FC U Craiova 1948 (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from 15
July 2021 until 30 June 2022.
2.
In accordance with clause V.1.a).ii) of the contract, the club undertook to pay to the player a
monthly salary in the amount of EUR 10,000 net, payable by the 15th day of the following
month.
3.
Clause VII of the contract reads as follows: “Force majeure: 1. Force majeure, as it is defined
by the law, releases the parties from responsibility, in full or in part, in case of partial or full
non-fulfilment, faulty or delayed execution of the obligations under this sports activity
contract. The pandemic / epidemic declared by the authorities is also considered force
majeure. 2. The party relying on force majeure has the obligation to notify the other party
within 5 days from the occurrence of the force majeure and to take all steps necessary to limit
the consequences thereof, otherwise he shall not benefit from the effects releasing him from
the ensuing responsibility”.
4.
Clause XI of the contract states that the dispute arisen in connection with the contract “shall
be settled by the domestic sports commissions and / or the courts having substantive and
territorial competence, in accordance with the civil law provisions”.
5.
On 30 November 2021, the player sent a notice to the club, informing the latter, inter alia,
about the following:
That the club is treating him discriminatorily upon the player’s refusal to mutually
terminate the contract, harassing him to terminate the contract, a conduct that is
subject to the consequences foreseen by art. 14 of the FIFA RSTP;
To allow the player to train with the rest of the team and provide all necessary
training conditions and facilities.
6.
Thereafter, by means of its correspondence dated 2 December 2021, the club simply
requested the player to accept the mutual termination of the contract against payment of the
salary of December 2021.
7.
By means of his letter dated 6 December 2021, the player replied to the club stating that he
would only accept the mutual termination of the contract, provided that the club paid a
compensation for the early termination of the contract.
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8.
By means of his letter dated 8 December 2021, the player requested the club to reinstate him
into the “team’s program”, thereby granting the club a 10 days’ deadline to do so.
9.
By means of its letter dated 13 December 2021, the club unilaterally terminated the contract
on the basis of an alleged “force majeure”.
10. On 26 January 2022, the player signed a new contract with the Maltese club, Hibernians FC
(hereinafter: the new club), valid as from the date of its signature until 31 May 2022, in accordance
with which the new club undertook to pay to the player, inter alia, a monthly salary of EUR 3,000 net,
i.e. EUR 12,000 net as fixed income during the full term of the contract.
II. Proceedings before FIFA
a. Position of the Claimant
11. On 21 December 2021, the player lodged a claim against the club before FIFA, requesting to
be awarded outstanding remuneration and compensation for breach of contract in the
amount of EUR 90,000 net, plus 5% interest p.a. as from the date of claim until the date of
effective payment, broken down by the player as follows:
Outstanding remuneration: EUR 25,000 net, plus 5% interest p.a.
-
EUR 10,000 corresponding to the salary of October 2021;
-
EUR 10,000 corresponding to the salary of November 2021;
-
EUR 5,000 corresponding to the half of the salary of December 2021.
Compensation for breach of contract: EUR 65,000 net, plus 5% interest p.a.
-
EUR 65,000, corresponding to the residual value of the contract, as from 14 December
2021 until 30 June 2022, calculated by the player himself (6.5*10,000 = 65,500).
12. In his claim, the player explained that, since November 2021, the club requested him and
other 3 players to terminate their contracts, to which the player opposed. As a consequence
thereof, the player explained that the club started “a series of harassment […] consisting in
excluding the 4 players from the team’s activities and forcing them to train separately, without
medical assistance, sometimes without a coach and without ensuring all the appropriate
training conditions”.
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13. In particular, the player held that the club provided different training instructions to him in
comparison to the rest of team, forcing him to start training 5 hours before the rest of the
team and, what is more, on 19 November 2021 he was even expelled by the club from the
WhatsApp group whereby the club provided training information to the players.
14. In view of all of the above, the Claimant held that the Respondent terminated the contract
without just cause on 13 December 2021 and requested to be awarded the outstanding
remuneration due to him at the date of termination, as well as a compensation for breach of
contract in an amount equal to its residual value.
b. Position of the Respondent
15.
Despite having been invited to reply to the claim, the Respondent failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as the
Single 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 21 December 2021
and submitted for decision on 23 February 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.
17. Subsequently, the Single Judge 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,
in principle, competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Portuguese player and a Romanian
club.
18. However, the Single Judge referred to the wording of clause XI of the contract, which states
that disputes arisen in connection with the conclusion, performance, modification,
suspension or termination of the contract shall be settled by the domestic sports commissions
and or by the ordinary jurisdiction. In this respect, the Single Judge pointed out that the
wording of the aforementioned jurisdiction clause seems to foresee that contractual disputes
in connection with the contract are to be solved by the Romanian NDRC and or by the
Romanian ordinary jurisdiction.
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19. However, the Single Judge noted that: 1.) the said clause does not state that the jurisdiction
recognized to the above-mentioned deciding bodies is exclusive; 2.) the competence of an
National Dispute Resolution Chamber (NDRC) must be analysed by the FIFA general
secretariat in casu, upon receipt of the documentation pertaining to the composition of the
NDRC, which is not on file; 3.) the club failed to reply to the claim and, hence, the club did
not object to the jurisdiction of FIFA to entertain the present matter; 4.) on top of not being
exclusive, clause XI of the contract is not specific enough when referring to the ordinary
jurisdiction, only stating that would be competent “the courts having substantive and
territorial competence”.
20. In view of all of the above and considering especially the lack of objection of the Respondent
to the competence of FIFA as a consequence of its lack of reply to the claim -in view of the
usual practice of the DRC, which confers FIFA a broad scope of action to decide upon matters
which fall under the framework provided by art. 22 RSTP-, the Single Judge determined that
the DRC is competent to adjudicate on the present dispute.
21. Subsequently, the Single 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 Players (August 2021 edition) and
considering that the present claim was lodged on 21 December 2021, 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
22. The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
23. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge 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.
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i. Main legal discussion and considerations
24. The foregoing having been established, the Single Judge moved to the substance of the
matter, and underscored that, since the claim of the Claimant remained uncontested, the
latter will be entitled to the amounts claimed, provided that they have a contractual basis.
25. First of all, the Single Judge noted that the Respondent unilaterally terminated the contract
alleging force majeure, which was already foreseen by the parties in clause VII of the contract.
In this respect, the wording of the said clause shall be highlighted, insofar as it states that the
Covid-19 pandemic is an event of force majeure, which can prevent the club from complying
in full or in part with its obligations.
26. Considering the discretional nature of the said clause, the Single Judge determined that clause
VII of the contract shall be considered null and void, also taking into account that, at the time
when the contractual relationship was entered into between the parties, the Covid-19
pandemic was a reality with which players and club had to coexist, not being reasonable that
the club, in casu, simply decides to rely on the said clause to unilaterally terminate the contract
without any further grounds.
27. In addition, the Single Judge highlighted that the Respondent failed to reply to the claim,
missing its procedural opportunity to eventually support the termination of the contract with
grounds that would allow the FIFA general secretariat to determine an eventual termination
of the contract with just cause. Thus, in view of the aforementioned, the Single Judge
concluded that the club terminated the contract without just cause on 13 December 2021.
ii. Consequences
28. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
29. In this context, the Single Judge recalled that it remained undisputed that the club failed to
pay to the player the salaries of October, November and half of December 2021 by the date
on which the contract was unilaterally terminated by the club. Thus, the Single Judge
determined that the Claimant is entitled to the outstanding remuneration requested in the
amount of EUR 25,000 net, in accordance with the legal principle: pacta sunt servanda.
30. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% p.a. on the outstanding amounts as from the date on which the claim was
lodged, i.e. 21 December 2021, until the date of effective payment, as requested by the
Claimant.
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31. Having stated the above, the Single Judge 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 Single
Judge 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.
32. In application of the relevant provision, the Single Judge held that he 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
33. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
34. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge
concluded that the amount of EUR 65,000 net serves as the basis for the determination of
the amount of compensation for breach of contract.
35. In continuation, the Single Judge 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.
36. Indeed, the player found employment with the Maltese club, Hibernians FC, valid as from the
date of its signature until 31 May 2022, in accordance with which the new club undertook
to pay to the player, inter alia, a monthly salary of EUR 3,000 net, i.e. EUR 12,000 net as fixed
income during the full term of the contract and during the overlapping period of the contract
and this new contract.
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37. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be due
to overdue payables. In the case at hand, the Single Judge noticed that such additional
compensation cannot be granted, insofar as the it can only be awarded in cases where the
termination has been made by the player on the grounds of overdue payables, which is not
the situation in the case at hand, considering that it was the club the party that unilaterally
terminated the contract.
38. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of EUR
53,000 to the player (i.e. EUR 65,000 minus EUR 12,000), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
39. 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 21 December 2021, i.e. as of the date on which the date was
lodged -in accordance with the claim of the Claimant and the jurisprudence of the Chamberuntil the date of effective payment.
iii. Compliance with monetary decisions
40. Finally, taking into account the applicable Regulations, the Single Judge 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.
41. In this regard, the Single 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.
42. The overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
43. Therefore, bearing in mind the above, the Single Judge 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. 24 par. 2, 4, and 7 of the Regulations.
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44. 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.
45. The Single Judge 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
46. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
47. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be awarded
in these proceedings.
48. Lastly, the Single Judge 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, Hugo Felipe da Costa Oliveira, is accepted.
2.
The Respondent, FC U Craiova 1948, has to pay to the Claimant, the following amount(s):
- EUR 25,000 net as outstanding remuneration plus 5% interest p.a. as from 21 December
2021 until the date of effective payment;
- EUR 53,000 net as compensation for breach of contract without just cause plus 5% interest
p.a. as from 21 December 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. 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:
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.
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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 article 24 par. 7 and 8 and art. 25 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
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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