Dispute Resolution Chamber
Texto da decisão
REF 20-01344
Decision of the Dispute Resolution Chamber
(DRC) Judge
passed on 16 June 2021
regarding an employment-related dispute concerning the player Jonathan Di Toro
BY:
Alexandra Gómez Bruinewoud (Uruguay & Netherlands), DRC Judge
CLAIMANT:
Jonathan Di Toro, Argentina
Represented by Mr. Esteban Carlos Rodriguez
RESPONDENT:
Mons Calpe SC, Gibraltar
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I.
FACTS OF THE CASE
1.
On 21 June 2018, the Argentinean player, Mr. Jonathan Di Toro (hereinafter: the player or
the Claimant) and the Gibraltarian club, Mons Calpe SC (hereinafter: the club or the
Respondent), signed an employment contract valid as from 15 July 2018 until 31 May 2019
(hereinafter: the employment contract).
2.
Clause 2.1 of the employment contract reads, inter alia, as follows: “In consideration for
his services, the club shall pay the player the compensation and other benefits set forth in
exhibit B herein. All such compensation shall be paid gross and subject to all applicable
taxes and contributions”.
3.
Additionally, clause 7.2 of the employment contract established the following: “7.2. The
parties agree in the case of any dispute between the parties arises out of this contract, the
parties shall first try to settle the dispute in an amicable manner. If such amicable solution
is nor found, then the aggrieved party shall file a complaint with the competent board of
the GFA to decide on such dispute, which shall have exclusive jurisdiction over the matter
unless the player is not a Gibraltar player, in which case the aggrieved party shall have the
right to submit the dispute to the competent bodies of FIFA”.
4.
Each of the parties to this dispute filed a different version of the exhibit B to the employment
contract. In accordance with clauses 1 and 3 of the exhibit B attached to the employment
contract submitted by the player, the club undertook to pay him, inter alia, EUR 2,500 as
monthly salary.
5.
On the other hand, in accordance with clauses 1 and 3 of the exhibit B attached to the
employment contract submitted by the club, it undertook to pay the player, inter alia, GIP
910 as monthly salary.
6.
On 15 July 2018, the same parties signed an Image Rights Agreement in accordance with
which the player engaged “the services of [the club] to act as [his] personal advisor and
counsellor and to attend to certain business details in connection with [the player’s]
professional career in, but not limited to the fields of sports, film, television, commercial
print, music, and advertising, as well as product licensing, merchandising, branding,
endorsement, and sponsorship business” (hereinafter: the image rights agreement).
7.
In accordance with clause 12, item (f) of the image rights agreement, it “shall be construed
and enforced in accordance with, and governed by, the laws of Gibraltar, without the
reference to the conflicts of laws principles. The parties agrees that venue for any action
brought hereunder shall be Gibraltar”.
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8.
On 26 July 2018, the player and the club concluded an official document issued by the
Department of Employment from the Government of Gibraltar. Accordingly, the player
would be entitled to a monthly remuneration of GIP 910.
9.
On 17 June 2020, the player put the club in default via e-mail and granted it with a 5 days’
deadline in order to proceed the payment of EUR 7,250, corresponding to his monthly
salaries from October 2018, April and May 2019.
10.
On 8 July 2020, the player sent the club another e-mail stating that it had not paid the
outstanding amounts and giving notice of (freely translated to English): “the beginning of
his proceedings before FIFA”.
11.
In accordance with the information provided by the Gibraltarian Football Association (GFA):
“There are two distinct contract for each player. The first one on each player’s name have
been submitted by the players themselves whilst the second contract are the ones the club
registered with the association. It is apparent that whilst the club signed contracts with the
players they then submitted a different contract to the association without the player’s
knowledge.
Both players were registered with the association for Mons Calpe SC. Their period of
registration were as follows: Jonathan Di Toro from 12/01/18 to 09/05/19 […]”.
II.
PROCEEDINGS BEFORE FIFA
12.
On 2 September 2020, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
13.
The claim of the player
In his claim, the player inter alia requested payment of the following amounts:
a. Outstanding remuneration in the total of EUR 7,500 “plus interest”, corresponding to
the salaries of October 2018, April and May 2019; and
b. Compensation for breach of contract of EUR 7,500 (i.e. three monthly salaries).
14.
The player explained that he started his employment relationship with the club in 2018,
however that the latter failed to pay his monthly entitlements of October 2018, and April
and May 2019. To this extent, the player referred to the notices sent to the club on 17 June
and 8 July 2020, as well as to the content of art. 14bis of FIFA Regulations on the Status
and Transfer of Players.
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15.
Accordingly, the player stressed that the club did not reply to his letters, nor provided him
with the relevant payment. Consequently, the player claimed that he terminated the
employment contract with just cause and, hence, that the club shall be liable to pay him
outstanding remuneration and compensation for the breach.
b.
The reply of the club
16.
First and foremost, the club challenged FIFA’s competence to hear the dispute based on the
wording of the employment contract and the image rights agreement.
17.
As to the substance, the club mentioned that it did not recognize the version of the
employment contract submitted by the player and clarified that the remuneration agreed
between the parties was different. In support of its allegations, the club filed its own version
of the document, according to which the club undertook to pay the player a monthly salary
of GIP 910 (instead of EUR 2,500).
18.
In addition, the club stated that all the amounts due to the player under the employment
contract were already paid.
19.
In light of the above, the requests for relief of the club were the following:
a. To order that FIFA is not competent to hear this demand;
b. Ad cautelam, to dismiss the claim; and
c. Ad cautelam and alternatively, to acknowledge that the salary of the player amounts
to GIP 910.
c.
The rejoinder of the player
20.
After being invited to do so, the player submitted his comments to the club’s reply and, in
particular, regarding the authenticity of the employment contract signed by the parties.
21.
To this extent, the player, inter alia, filed a copy of the original document signed by the
parties as well as copies of his banking statement, demonstrating that the club has paid
him the amount of EUR 2,425 in February 2019 and the amount of EUR 2,500 in March
2019.
22.
Furthermore, the player stressed that the club had never questioned the quantum due to
the player, so that it tacitly confessed its default.
23.
Finally, the player clarified that the differences in the amounts mentioned by the contracts
signed between the parties arise from a club’s attempt to evade from its tax obligations
d. The final comments of the club
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24.
Lastly, the club submitted its final comments and reiterated its allegations regarding the
validity of the employment contract. Specifically, the club filed the original version of the
document via DHL and pointed out several differences between the two different annexes
B, concluding that the player’s version was forged.
25.
By doing so, the club remarked that the player’s claim should be entirely rejected.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
Competence and applicable legal framework
26.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
Judge) analysed whether she was competent to deal with the case at hand. In this respect,
she took note that the present matter was presented to FIFA on 2 September 2020 and
submitted for decision on 16 June 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.
27.
Subsequently, the DRC Judge 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), she is, in principle, competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Argentinean player and a Gibraltarian club.
28.
However, the DRC Judge also acknowledged that the club contested the competence of
FIFA’s deciding bodies on basis of the wording of the employment contract and the image
rights agreement, which supposedly contained a clear and exclusive jurisdiction clause in
favour of the Gibraltarian National Dispute Resolution Chamber (hereinafter: the NDRC).
29.
To this extent, the DRC Judge went to analyse whether the employment contract at the
basis of the present case actually contained such reference in favour of the Gibraltarian
NDRC. By doing so, the DRC Judge observed that, on the contrary of what was alleged by
the club, clause 7.2 of the employment contract expressly referred to the jurisdiction of FIFA
deciding-bodies in case of the player being a foreigner.
30.
In addition and for the sake of completeness, the DRC Judge also wished to outline that
the player seeks no relief regarding the image rights agreement so that the jurisdiction
clause therein included is not relevant to the dispute at stake.
31.
Therefore, the DRC Judge decided to dismiss the arguments raised by the club as to the
competence and to confirm that FIFA is competent to adjudicate on the matter.
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32.
Having established the above, the DRC Judge analysed which regulations should be
applicable as to the substance of the matter. In this respect, she confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition February 2021), and considering that the present claim was lodged on 2 September
2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b.
Burden of proof
33.
The DRC Judge 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 Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties.
34.
In this respect, the DRC Judge 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.
Merits of the dispute
35.
Her competence and the applicable regulations having been established, the DRC Judge
entered into the merits of the dispute. In this respect, the DRC Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence, which
she considered pertinent for the assessment of the matter at hand.
36.
In this context, the DRC Judge acknowledged that the player asserted that his salaries from
October 2018, April and May 2019 remained unpaid. On the other hand, the DRC Judge
recalled that club claimed that the remuneration due to the player was paid in full.
37.
To this extent, the DRC Judge turned her attention to the documentation on file and
observed that the club did not submit any evidence capable of rebutting the player’s
allegations in regards to his outstanding remuneration.
38.
By doing so, the DRC Judge referred to the content of 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. Consequently, the DRC Judge considered that, by the end of
the employment contract, the club had failed to pay the player 3
monthly salaries (i.e. October 2018, April, and May 2019) without a prima facie contractual
basis.
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39.
Subsequently, the DRC Judge further acknowledged that the parties dispute the quantum
of the remuneration due to the player. In particular, the DRC Judge highlighted that both
the player and the club filed different versions of the annex B to the employment contract
and, hence, argued that the counterparty was trying to mislead the facts.
40.
In order to address the matter, the DRC Judge firstly recalled the FIFA long-standing
jurisprudence according to which, as a general rule, FIFA’s deciding bodies are not
competent to decide upon matters of criminal law and that such affairs fall into jurisdiction
of the competent national criminal authority.
41.
After a thorough analysis of the documentation brought forward by the parties, the DRC
Judge was firm to determine that the club could not establish to a comfortable satisfaction
degree that the version of the employment contract submitted by the player was indeed
forged. In this respect, the DRC Judge based her conclusion on the facts that: (i) the player
provided FIFA with the original version of the contract signed by the club; (ii) the player
submitted evidence that the club had paid him the claimed remuneration (i.e. EUR 2,500)
during the 2019/2020 season and the club did not dispute that such deposits corresponded
to the player’s monthly entitlements; and (iii) both of the documents (i.e. the one presented
by the club and the one presented by the player) were registered before the GFA.
42.
With this in mind, DRC Judge concluded that the evidence presented by the player lead her
to a higher threshold of certainty than the one provided by the club and, therefore, that
she could not uphold the club’s argumentation in this regard.
43.
As a consequence, and in line with the general legal principle of pacta sunt servanda, the
DRC Judge determined that the club shall be liable to pay to the player the following
amounts:
a. EUR 2,500 corresponding to the salary of October 2018;
b. EUR 2,500 corresponding to the salary of April 2019; and
c. EUR 2,500 corresponding to the salary of May 2019.
44.
Additionally, taking into consideration the player’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard as well as the specific request for relief of
the Claimant, the DRC Judge decided to award the player interest at the rate of 5% p.a.
on the outstanding amounts as from 1 June 2019.
45.
Having established the above, the DRC Judge went on carefully analysing the
documentation brought forward by the parties and noted that the employment contract
appears to have expired naturally on 31 May 2019. The DRC Judge came to this conclusion
due to the fact the player had only put the club in default after the end of the employment
contract term, as well as that he did not add further explanations about the date of an
eventual premature termination.
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46.
Therefore, the DRC Judge deemed that the player’s request for compensation for breach of
contract should be rejected.
47.
Finally, the DRC Judge 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.
48.
In this regard, the DRC 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 and for the
maximum duration of three entire and consecutive registration periods.
49.
Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
club does not pay the amounts due to the player within 45 days as from the moment in
which the player, communicates the relevant bank details to the club, 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.
50.
The DRC Judge 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.
51.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
d.
Costs
52.
The DRC Judge 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 DRC Judge decided that
no procedural costs were to be imposed on the parties.
53.
Likewise and for the sake of completeness, the DRC Judge 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 JUDGE
1.
The claim of the Claimant, Jonathan di Toro, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Mons Calpe SC, has to pay to the Claimant, the following amount:
- EUR 7,500 as outstanding remuneration plus 5% interest p.a. as from 1 June 2019 until the
date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
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.
6.
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).
7.
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).
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.
8. This decision is rendered without costs.
For the Dispute Resolution Chamber Judge:
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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