Labour Disputes
Texto da decisão
REF. FPSD-11347
Decision of the
Dispute Resolution Chamber
passed on 14 December 2023
regarding an employment-related dispute concerning
the player Andre Lourenco Duarte
BY:
Lívia SILVA KÄGI (Brazil/Switzerland), Deputy Chairperson
Michele COLUCCI (Italy), member
Oleg ZADUBROVSKIY (Russia), member
CLAIMANT / COUNTER-RESPONDENT:
U Craiova 1948 SA, Romania
RESPONDENT 1 / COUNTER-CLAIMANT:
Andre Lourenco Duarte, Portugal
Represented by Duarte Costa
RESPONDENT 2:
Club Reggiana 1919 SRL, Italy
Represented by Cristiano Novazio
pg. 2
REF. FPSD-11347
I. Facts of the case
1.
On 28 June 2022, the Portuguese player Andre Lourenco Duarte (hereinafter the
Respondent 1 or the Player) and the Romanian club U Craiova 1948 SA (hereinafter the
Claimant or Craiova) concluded an employment agreement (hereinafter the Employment
Agreement), valid as from 7 July 2022 until 30 June 2023.
2.
In article IV par. 3 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the Parties) stipulated the following:
“The player hereby agrees that the validity period of this contract shall be unilaterally
extended by the company, under the terms set out under Art. IX in this contract.”
3.
In article V of the Employment Agreement, the Parties agreed upon, inter alia, the following
financial conditions:
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4.
EUR 6,500 as a sign-on fee
EUR 6,500 as a monthly salary (paid in lei) / “The payment obligation of each instalment
shall be due on the 15th of each month following the month for which the instalment is
paid (for July the payment instalment shall become due on 15 August, for August, the
payment instalment shall become due on 15 September, etc).”
“a match bonus of 500 EUR (fivehundred) only for victory and only if the player is in the
starting 11. If the Player is fielded in the second half and the team U Craiova 1948 wins,
he shall receive 250 EURO net.”
In article IX of the of the Employment Agreement, the Parties agreed upon the following:
“The company has the option to unilaterally extend the validity period of this contract
for 1 (one) year, from 01 July 2023 - 30 June 2024 by means of a written notification, sent
to the RFF/PFL, until 30 June 2023. In case the company takes up the right to extend the
validity period of this contract for 01 July 2023 – 30 June 2024, the parties negotiated the
following financial terms:
a) a monthly net fee of 8,000 EUR (eightthousand) net, payable in lei, at the official exchange
rate of the BNR, on the day of the payment;
b) a match bonus, only for wins, of 500 (fivehundred) net, only if the player is in the starting
eleven;
c) a bonus of 10,000 (tenthousand) EURO net in case the team ranks 1-6, in the 2023-2024
regular season, on condition that the player plays in at least 50% of the official matches. If
the player appears in less than 50% of the official matches, he will receive a bonus of 5,000
EUR (fivethousand);
d) a bonus of 10,000 (tenthousand) EURO net for qualification to the European competitions,
in the 2023-2024 season, on condition that the player plays in at least 50% of the official
matches. If the player appears in less than 50% of the official matches, he will receive a bonus
of 5,000 EUR (fivethousand);
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REF. FPSD-11347
e) a monthly amount of 300 (threehundred) EUR for accommodation, the other maintenance
expenses being exclusively the player's responsibility.” (emphasis added)
5.
On 5 December 2022, Craiova sent the Player a “notification to extend the validity of the
contract”.
6.
Allegedly, the Club published on the official website and on its official Facebook page that
it had extended, by mutual agreement with the Player, the latter’s contract for a period of
one year.
7.
Between 9 – 14 January 2023, several media confirmed that the Player’s contract was
extended until June 2024.
8.
Based on the information above, on 11 January 2023, the Player sent a letter to the
Romanian Football Federation (RFF) as well as the Romanian league, inquiring about the
extension of the contract.
9.
On 15 January 2024, the Player also contacted Craiova, rejecting the validity of the
extension. In his correspondence, the Player argued that he was never informed of the
extension and, what is more, that it is in violation of his freedom.
10. According to Craiova, in January 2023, the Player started to show bad faith in performance
of the contractual obligations.
11. Craiova further submitted evidence regarding an imposed disciplinary regarding the
Player’s alleged violations in January 2023.
12. On 22 May 2022, the Player made an announcement on Instagram, clarifying that his
contract ends in June 2023.
13. On 19 June 2023, the Player allegedly failed to report to the squad reunion.
14. On 23 June 2023, the Player sent another correspondence to Craiova, the RFF, the
Romanian league, refuting the validity of the unilateral extension clause.
15. On 5 July 2023, the Player sent an email to RFF, requesting investigation in the abovementioned matter.
16. On 10 July 2023, Craiova was informed that the Player failed to report to the team.
17. On 13 July 2023, the Player wrote to Craiova that he is not bound to the contract, pointing
out to his previous correspondence and explanations therein.
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REF. FPSD-11347
18. Around the same date, Craiova sent a letter to the RFF, requesting to reject the
International Transfer Certificate (ITC).
19. Furthermore, Craiova sent a letter to the Italian club, Reggiana 1919 S.R.L. (hereinafter the
Respondent 2 or the Reggiana), pointing out to the fact that the Player is under valid contract
with Craiova itself.
20. On an unspecified date in the Summer of 2023 (before 5 July 2023), the Player signed a new
employment agreement (hereinafter the New Employment Agreement) with Reggiana valid
as from 1 July 2023 until 30 June 2025.
21. On 5 July 2023, the Respondent 2 requested the Player’s ITC.
22. In accordance with the Transfer Matching System (TMS), the Player was registered with the
Respondent 2 on 19 July 2023.
II. Proceedings before FIFA
23. On 15 August 2023, Craiova 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 / Counter-Respondent
24. The requests for relief of Craiova, were the following:
“22. U Craiova 1948 SA respectfully requests an equitable compensation of no less than
580,968.15 lei, at the official exchange rate of the National Bank of Romania, on the day of
the payment, and 5% per annum on the aforementioned amounts as from the day the Player
unilaterally terminated the contract without just cause considering notably:
i. the Player’s high salary with the Club and his current transfer value;
ii. his constant participation with the first team as a key player;
iii. the remaining contractual period until 30th June 2024, and
iv. the foreseeable costs to replace Mr. André Lourenço Duarte at very short notice in order to
start the new season with the aim of winning the championship.
23. We kindly request that you order that the Club REGGIANA 1919 S.R.L. (the Second
Respondent), jointly and severally with the club, to pay the compensation for unilateral
termination of the contract without just cause. According to the provisions of Art. 17, para. 2
and 4 of the FIFA RSTP, any club registering a player who unilaterally terminated his contract,
without just cause, with another club, shall be jointly and severally liable with the Player
towards the Player’s former club with respect to the compensation established by a deciding
body.
Considering the foregoing, we kindly request that you
i. uphold our claim in its entirety.“
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REF. FPSD-11347
25. In its claim, Craiova alleged that the Player “unilaterally terminated the contract without just
cause, during the protected period, by denouncing the Contract and by refusing to come back
to the team and resume the training sessions, even after several default notices and reports,
thus violating Art. 14 of the FIFA RSTP.”
26. Craiova argued that the contract was validly extended based on Romanian law, as well as
based on the legal principles:
(i) Maximum duration of the contract in not excessive;
(ii) The unilateral extension option was exercised within a reasonable time frame;
(iii) The salary benefits amounted to a “substantial salary increase”;
(iv) No party was at full mercy as the Player was assisted by a professional agent;
(v) The option was clearly established and emphasized in the contract;
(vi) The extension was proportional to the original contract;
(vii) The extension was limited to one sole extension.
27. Craiova did not provide for further elaboration as to how it established the claimed amount
of compensation.
b. Position of the Respondent 1 / Counter-Claimant
28. In his reply, the Player filed the following request for relief, lodging a parallel claim against
Craiova:
“i) The claim filed by U. Craiova 1948 against player André Lourenço Duarte & Club Reggiana
1919, is rejected;
ii) The clause in article IX of the employment contract be considered null and void;
iii) The Respondents’ player counterclaim is accepted and order the Claimant to pay the due
amount of 6.500 Euros as overdue salary, and interest rate of 5% p.a. applicable to the
amounts owed to the player as per date such amounts became due and until integral and
effective payment.
iv) The costs of the proceedings, if any, shall be entirely born by U. Craiova 1948;
v) U. Craiova 1948 shall be ordered to pay to André Lourenço Duarte a total amount of
CHF 6,000 as a contribution towards its legal expenses incurred in connection with these
proceedings.”
29. The Player argued that the extension clause (article IX of the Employment Agreement) is
not valid for, inter alia, the following reasons:
(i)
It was never properly negotiated between the Parties and only inserted by Craiova
last minute;
(ii) The Player was not represented by an agent; it was the Club that used the Agent’s
services;
(iii) The Player was never duly notified regarding the extension – he found out from the
media; in this regard the Player argued that “the essentiality of this communication
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REF. FPSD-11347
should have been foreseen in the clause itself, which it was not, jeopardizing the
substance of the potestative right itself.”
(iv) The Player immediately contested such extension in his correspondence of
15 January 2023;
(v) The “player does not even have the guarantee (or the inalienable right) to be notified of
the claimant club potestative and unilateral right to exercise the contract extension
option, i.e, the right to be notified by the club and consequently take direct notice of his
own employment contract and career situation, which is unequivocally inadmissible and
contrary to the law, regulations and the principle of contractual stability.”
30. In view of the above, the Player argued that the claim of Craiova must be rejected.
31. In his parallel claim, the Player finally requested a payment of EUR 6,500, allegedly overdue
since 15 July 2023.
c. Position of the Respondent 2
32. Despite being invited to do so, the Reggiana failed to reply to the claim.
d. Position of the Claimant / Counter-Respondent
33. In its reply, Craiova reiterated its arguments relating to the extension clause (e.g. pointing
to the fact that the Player was represented by an agent) and insisted on its validity.
34. Regarding the payment of the June 2023 salary, as the Player allegedly “failed to carry out
any football-related activity for the Club.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
35. 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 15 August 2023 and submitted
for decision on 14 December 2023. 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.
36. 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 May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employment-
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REF. FPSD-11347
related dispute with an international dimension between a Romanian club, Portuguese
player and an Italian club.
37. 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 2023 edition) and
considering that the present claim was lodged on 15 February 2023, the March 2023 edition
of said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
38. 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
39. 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.
i. Main legal discussion and considerations
40. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of Craiova against his former Player
and his new club, Reggiana.
41. In this regard, the DRC acknowledged the arguments of Craiova that it had a valid
employment contract with the Player because a unilateral extension clause had been
triggered. The DRC further took note that Craiova deemed that the Player simultaneously
signed another contract with the new club and hence, the Player breached its contractual
obligations and shall pay compensation together with the new club.
42. Equally, the Chamber duly noted that the Player argued he was a free agent as the
unilateral extension clause was invalid and that the claim shall be rejected and, in a parallel
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claim, the Player requested his salary of June 2023 (EUR 6,500) as this amount remained
allegedly outstanding.
43. The Chamber acknowledged that its task was to establish if the extension clause was duly
triggered, valid and, consequently, if the Player was under contract with Craiova.
44. Before entering into the analysis of the validity of said clause, the DRC remarked that the
threshold to accept a unilateral extension is very high and that, generally, the DRC’s
approach is rather restrictive.
45. Consequently, entering into the analysis of the alleged unilateral extension clause, the DRC
firstly recalled the wording of article IX of the of the Employment Agreement:
“The company has the option to unilaterally extend the validity period of this contract
for 1 (one) year, from 01 July 2023 - 30 June 2024 by means of a written notification, sent
to the RFF/PFL, until 30 June 2023. In case the company takes up the right to extend the
validity period of this contract for 01 July 2023 – 30 June 2024, the parties negotiated the
following financial terms:
a. a monthly net fee of 8,000 EUR (eightthousand) net, payable in lei, at the official
exchange rate of the BNR, on the day of the payment;
b. a match bonus, only for wins, of 500 (fivehundred) net, only if the player is in the
starting eleven;
c. a bonus of 10,000 (tenthousand) EURO net in case the team ranks 1-6, in the 20232024 regular season, on condition that the player plays in at least 50% of the official
matches. If the player appears in less than 50% of the official matches, he will receive
a bonus of 5,000 EUR (fivethousand);
d. a bonus of 10,000 (tenthousand) EURO net for qualification to the European
competitions, in the 2023-2024 season, on condition that the player plays in at least
50% of the official matches. If the player appears in less than 50% of the official
matches, he will receive a bonus of 5,000 EUR (fivethousand);
e. a monthly amount of 300 (threehundred) EUR for accommodation, the other
maintenance expenses being exclusively
the player's responsibility.” (emphasis added)
46. Duly analysing the content of article IX of the of the Employment Agreement, the majority
of the Chamber was of the opinion that the clause is potestative in its nature and,
consequently, invalid.
47. In particular, the majority of the Chamber highlighted that the clause does not comply with
the following criteria:
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the unilateral extension option must be exercised by the club within an acceptable
deadline, before expiry of the current employment contract;
the salary reward derived from the option right must be defined in the original
contract and must correspond to a “substantial salary increase”;
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REF. FPSD-11347
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one party may not be at the complete mercy of the other party in regard to the
contents of the employment contract.
48. Furthermore, the majority of the Chamber pointed also to the fact that the Player was
never duly notified as the communication took place only via the RFF/PFL, i.e. Craiova did
not provide any evidence of having informed the Player in writing.
49. In view of the above, the majority of the DRC decided to reject the claim of Craiova as it
considered the relevant clause invalid.
50. The Chamber then turned their attention to the parallel claim of the Player concerning the
allegedly outstanding salary of June 2023.
51. In this respect, the DRC acknowledged that the Employment Agreement was valid until
30 June 2023, but it also took note of the arguments of Craiova that the Player “failed to
carry out any football-related activity for the Club.”
52. Duly analysing the evidence on file, the majority of the Chamber concluded that the full
monthly salary shall be paid to the Player as Craiova failed to support its argumentation by
submitting relevant evidence regarding unjustified absence of the Player.
ii. Consequences
53. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to one monthly salary of June 2023.
54. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the contract, in total EUR 6,500, as detailed above.
55. 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 16 July 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
56. 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.
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REF. FPSD-11347
57. 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.
58. 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. 24 par. 2, 4, and 7 of the Regulations.
59. 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.
60. 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
61. 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.
62. 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.
63. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-11347
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, U Craiova 1948 SA, is rejected.
2.
The claim of the Respondent 1 / Counter-Claimant, Mr Andre Lourenco Duarte, is partially
accepted.
3.
The Claimant / Counter-Respondent, must pay to the Respondent 1 / Counter-Claimant the
following amount(s):
- EUR 6,500 as outstanding remuneration, plus 5% interest p.a. as from 16 July 2023 until
the date of effective payment.
4.
Any further claims of the Respondent 1 / Counter-Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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 Claimant / Counter-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.
7.
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.
8.
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 Governing the Football
Tribunal).
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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