Labour Disputes
Texto da decisão
REF FPSD-5883
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player Marcus
Danielson
COMPOSITION:
HENDEL Clifford J. (USA/France), Deputy Chairperson
DE MEDINILLA Gonzalo (Spain), member
FLORES CHEMOR Mario (Mexico), member
CLAIMANT:
Marcus Danielson, Sweden
Represented by Bichara e Motta Advogados
RESPONDENT:
Dalian Professional FC, China PR
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I.
Facts of the case
1.
On 27 February 2020, the Swedish player Marcus Danielson (hereinafter: the Claimant or the Player)
and the Chinese club Dalian Professional FC (hereinafter: the Respondent or the Club) concluded an
employment contract (hereinafter: the “Contract”), effective from 1 March 2020 and with expiry
date on 31 December 2022.
2.
Article 3 of the Contract reads inter alia as follows:
“7.5. Additional to the above mentioned, the salary of Season 2020 in the amount of Euro 1,500,000.00
(in words: ONE MILLION FIVE HUNDRED THOUSAND EUROS) (net of tax) (i.e. approximately Euro
2,682,000 before tax) shall be paid in 10 equal instalments before the end of each month from March
2020 to December 2020, i.e. the monthly salary of Party B shall be EURO 150,000.00 (in words: ONE
HUNDRED FIFTY THOUSAND EUROS (net of tax)”
3.
Article 9 of the Contract reads inter alia as follows:
“9.1. All amounts payable by Party A to Party B herein are and shall be considered in Euro and NET
including any retribution in kind of any applicable taxes in China, as said taxes may be in force from
time to time. For the avoidance of doubt, any changes in China’s tax rate shall be covered by Party A,
which shall in any case ultimately assure to Party B the Euro NET amounts referred above”
4.
On 3 July 2020, the Player put the Club in default for the payment of certain outstanding amounts,
including the April 2020 salary.
5.
On 7 July 2020, the Club answered via e-mail on the following terms:
“Due to the Covid-19, the league cannot start and the club has no revenue and has been in a big problem
on cash flow as all the football clubs in the world. To pass the difficult time, the club has followed the
instructions of FIFA (Attachment 1) and CFA (Attachment 2), communicated with all the players and coach
staffs to reduce one month salary (the salary for April 2020).
Now almost all the players and coach staffs have understood the situation and want to help the club to
pass the pandemic. Meantime, all the football clubs in China have reduced salary for players and coach
staff followed FIFA and CFA’s instructions.
Please understood that the reduction of salary is forced by the pandemic, the club is very sorry for this.
The club is really appreciated for your understanding”.
6.
On 28 July 2020, the Player replied to the previous letter stating inter alia that:
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“.. fully understands the seriousness of the situation as described in your e-mail and will fully support
the efforts of the Club to prevent the negative economic consequences caused by this pandemic, as long
as they are proportionate, reasonable and jointly reached.”
7.
On 2 and 3 July 2021, the Player requested the Club the payment of different amounts, including
the salary of April 2020.
8.
On 5 July 2021, the Club replied and, inter alia, referred that “As for the outstanding salary of April
2020, we have given the explanation to all coaches and players, including Mr. Danielson in previous
mail, I hope he could understand the tough situation caused by Covid-19 and agree to waive such
salary”.
9.
Between 4 August 2021 and 14 January 2022, the Claimant send several correspondences to the
Respondent.
II. Proceedings before FIFA
10. On 29 April 2022, 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
11. The Claimant states that the Respondent:
(i) applied a salary reduction unilaterally and retroactively;
(ii) has not attempted to reach an agreement in good-faith before applying such reduction;
12. The Claimant submits that “the unilateral reduction of salary applied by the Club is inapplicable
because imposed without the consent of the Player and in any case not compliant with the indications
given by FIFA in the FIFA CFRI as interpreted in the FIFA “Frequently Asked Questions”, published on 11
June 2020 (“FAQ”).”
13. The Claimant further submits that the Respondent “never started any type of negotiation aimed at
reaching an agreement in good-faith”. The Claimant underlines that the Respondent “simply informed
to the Player of the policy applied and that the salary of April 2020 would not be paid”.
14. The Claimant points out that this measure “was applied retroactively and communicated to the Player
on 7 July 2020”.
15. The Claimant further submits that the Respondent has paid expensive transfer add signed several
players during the same period, engaging in an “expensive international transfer policy by applying
unilateral salary reductions to its current employees, which is manifestly unacceptable and
inadmissible”.
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16. The Claimant filed the following requests for relief:
the Player respectfully requests the FIFA DRC to:
a) Admit the present claim;
b) Order Dalian to pay the Player outstanding remuneration in the amount of EUR 150,000.00 net of
tax, plus legal interest at a rate of 5% p.a., counting from 30 April 2020 until the date of effective
payment;
c) Order that said amount shall be paid pursuant to Article 9.1 of the Employment Contract:
9.1. All amounts payable by Party A to Party B herein are and shall be considered in Euro and NET
including any retribution in kind of any applicable taxes in China, as said taxes may be in force from
time to time. For the avoidance of doubt, any changes in China’s tax rate shall be covered by Party A,
which shall in any case ultimately assure to Party B the Euro NET amounts referred above.
d) Order Dalian to bear any and all administrative and procedural costs, which have already been
incurred or may eventually be incurred in connection with these or future proceedings.
b. Position of the Respondent
17. Despite being invited to submit is position, the Respondent failed to reply to FIFA within the given
deadline.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 29 April 2022 and submitted for decision on 23 June
2022. Taking into account the wording of art. 34 of the June 2022 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.
19. 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 (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 Swedish player and a Chinese club.
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20. 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 29 April 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
21. 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.
c.
Merits of the dispute
22. 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 abovementioned 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
23. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the Respondent had failed to submit its position and therefore it shall be
understood that it renounces to its right of defense and accepts the Claimant’s allegations.
24. In this context, the Chamber acknowledged that its task was to determine, based on the evidence
on file, whether the claimed amounts had in fact remained unpaid by the Respondent and, if so,
whether the latter had a valid justification for not having complied with its financial obligations.
25. The Chamber first noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
26. In this context, the Chamber, first of all, wished to highlight that FIFA issued a set of guidelines, the
COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to
member associations and their stakeholders, to both mitigate the consequences of disruptions
caused by COVID-19 and ensure that any response is harmonised in the common interest.
Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19
FAQ, which provides clarifications on the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
27. The Chamber also wished to refer to the fact that said guidelines – as per the explicit wording of
FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only applicable to
“unilateral variations to existing employment agreements”. Therefore, except where a termination of
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a contract occurred following a unilateral variation made as a result of COVID-19 (in which case the
validity of the variation must first be assessed under the guidelines), said guidelines do not apply
to assess unilateral terminations of existing employment agreements. The Chamber further noted
that for the assessment of disputes that are presented before the FIFA judicial bodies concerning
the unilateral termination of a contract, the FIFA Regulations as well as the established
jurisprudence of the Chamber shall apply.
28. Following these general observations, the Chamber noted that, in the case at stake, the purported
unilateral contractual variation by the Respondent was made retroactively and that, based on the
evidence on file, without any attempt by the Respondent to engage in contractual discussion or
attempt to reach a mutual agreement. Moreover, the Chamber deemed that a reduction of 100%
of the player’s monthly salary was not a reasonable nor proportionate measure.
29. Thus, the Chamber found that the Respondent has not provided any proof of payment, and no
reasonable justification was presented by the Respondent for not having complied with the terms
of the contract.
30. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the Respondent
is held liable to pay the Claimant the outstanding amounts deriving from the contract concluded
between the parties, namely EUR 150,000.
31. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on
the outstanding amounts as from 1 May 2020 until the date of effective payment.
ii. Compliance with monetary decisions
32. 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.
33. 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.
34. 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
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registration periods shall become immediately effective on the Respondent in accordance with art.
24 par. 2, 4, and 7 of the Regulations.
35. 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.
36. 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
37. 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.
38. 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.
39. 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, Marcus Danielson, is accepted.
2.
The Respondent, Dalian Professional FC, has to pay to the Claimant, the following amount(s):
- EUR 150,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 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 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with art. 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
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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).
CONTACT INFORMATION
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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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