Labour Disputes
Texto da decisão
REF. FPSD-13273
Decision of the
Dispute Resolution Chamber
passed on 20 March 2024
regarding an employment-related dispute concerning
the player Gabriel Dario Diaz
BY:
Sihon Gauci (Malta), Single Judge
CLAIMANT:
Gabriel Dario Diaz, Spain
RESPONDENT:
Lanciano Calcio 1920, Italy
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REF. FPSD-13273
I. Facts of the case
1.
On 1 August 2023, the Spanish player Gabriel Dario Diaz Valdiviezo (hereinafter: the player
or the Claimant) and the Italian club Lanciano Calcio 1920 (hereinafter: the club or the
Respondent) concluded an employment agreement (hereinafter: the Contract) valid from the
same date until 30 June 2024.
2.
In accordance with the Contract, the club undertook to pay to the player inter alia a total
remuneration of EUR 15,000, broken down as follows:
-
EUR 1,875 as sign-on fee;
EUR 13,125 as salary split into 8 equal instalments of EUR 1,640.63 each.
3.
On 25 August 2023, the club executed a payment of EUR 1,875 in favour of the player.
4.
On 20 October 2023, the club made a second payment to the player, in the amount of EUR
1,640.
5.
On an unspecified date, the club informed several of its players (including the Claimant) via
WhatsApp that it would have no longer paid their salaries and that still they would have
been prevented from moving to a new club.
6.
By correspondence dated 6 December 2023, the player put the club in default of payment
of two salaries, setting a time limit expiring on 21 December 2023 in order to remedy the
default.
7.
On 26 December 2023, the player sent an email to the club as reminder of the latter’s
failure to comply with its contractual obligations.
8.
On 28 December 2023, the player notified the club of the unilateral termination of the
Contract, following which he remained unemployed.
II. Proceedings before FIFA
9.
On 9 January 2024, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
10. According to the player, the club failed to comply with its financial obligations under the
Contract, to the extent of breaching the player’s trust in the continuation of their
employment relationship.
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REF. FPSD-13273
11. In particular, the player argued that the club refused to pay his salaries as from September
2023 and did never reply to the player’s emails or letters.
12. Accordingly, the player held having had just cause to prematurely end the Contract on 28
December 2023 due to the number of overdue payables by the Respondent.
13. The player therefore submitted the following requests for relief:
-
EUR 1,640.63 as outstanding salary for September 2023;
EUR 1,640.63 as outstanding salary for October 2023;
EUR 1,640.63 as outstanding salary for November 2023;
EUR 1,640.63 as outstanding salary for December 2023;
EUR 4,921.48 as compensation amounting to residual value of the Contract.
Interest over each amount as from the respective due dates.
14. Despite being invited to do so, the Respondent did not reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single 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 9 January
2024 and submitted for decision on 20 March 2024. Taking into account the wording of art.
34 of the March 2023 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.
16. 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 (February 2024 edition), the Single Judge
of 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
Spanish player and an Italian club.
17. Subsequently, the Single 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 (February 2024 edition)
and considering that the present claim was lodged on 9 January 2024, the May 2023 edition
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REF. FPSD-13273
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
18. 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 she 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
19. The 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 she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Claimant alleged a breach of the Contract by the
Respondent, to the extent of entitling the Claimant to terminate the Contract prematurely.
21. In this context, the Single Judge noted that the Respondent failed to present its response
to the claim of the Claimant, in spite of having been invited to do so. By not presenting its
position to the claim, the Single Judge was of the opinion that the Respondent renounced
its right of defence and, thus, accepted the allegations of the Claimant. Equally, she
confirmed that she shall render her decision based on the allegations and evidence put
forward by the Claimant alone in line with articles 14 and 21 of the Procedural Rules.
22. Consequently, after having thoroughly analysed the submission of the Claimant as well as
the documentation at his disposal, the Single Judge deemed that the first question to be
addressed in the present matter was whether the Claimant had just cause to terminate the
contract on 28 December 2023.
23. To this end, the Single Judge referred to the wording of art. 14bis par. 1 of the Regulations,
in accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate his
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REF. FPSD-13273
contract, provided that he has put the debtor club in default in writing and has granted a
deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).
24. In this context, the Single Judge noted that the Claimant claims having not received, inter
alia, his remuneration corresponding to the salaries due for September, October, and
November 2023. Furthermore, the Single Judge noted that the Claimant provided written
evidence of having put the Respondent in default on 6 December 2023, i.e., at least 15 days
before unilaterally terminating the Contract on 28 December 2023.
25. Furthermore, the Single Judge 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. Nonetheless, the Respondent failed to provide any
evidence in this regard.
26. With all the foregoing in mind, the Single Judge concluded that the Claimant had a just
cause to unilaterally terminate the contract on 1 December 2023, based on art. 14bis of
the Regulations.
ii. Consequences
27. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
28. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 4 salaries under
the contract, amounting to EUR 6,562.52.
29. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. 6,562.52
(i.e. four times EUR 1,640.63).
30. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date
of effective payment.
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
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REF. FPSD-13273
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 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 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 4,921.48 (i.e. the residual value) 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. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the Contract.
37. The Single Judge referred to art. 17 par.1 i) 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.
38. Accordingly, the Single Judge decided to award the player compensation for breach of
contract in the amount of EUR 4,921.48 as the residual value of the Contract.
39. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
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REF. FPSD-13273
compensation at the rate of 5% p.a. as of the date of the termination, i.e., 28 December
2023, until 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. The
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
42. 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.
43. 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.
44. 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
45. 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.
46. 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.
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REF. FPSD-13273
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Gabriel Dario Diaz, is accepted.
2.
The Respondent, Lanciano Calcio 1920, must pay to the Claimant the following amount(s):
EUR 6,562.52 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 1,640.63 as from 1 October 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 1,640.63 as from 1 November 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of EUR 1,640.63 as from 1 December 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of EUR 1,640.63 as from 28 December 2023 until the
date of effective payment.
EUR 4,921.48 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 28 December 2023 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13273
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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