Labour Disputes
Texto da decisão
REF. FPSD-11404
Decision of the
Dispute Resolution Chamber
passed on 11 January 2024
regarding an employment-related dispute concerning
the player Paul Arnold Garita
BY:
Frans DE WEGER (The Netherlands), Chairperson
Dana MOHAMED AL-NOAIMI (Qatar), member
Michele COLUCCI (Italy), member
CLAIMANT / COUNTER-RESPONDENT:
Campionii FC Arges, Romania
Represented by SILA International Lawyers
RESPONDENT 1 / COUNTER-CLAIMANT:
Paul Arnold Garita, France and Cameroon
Represented by Eleven & Law
RESPONDENT 2
Al Faisaly, Saudi Arabia
pg. 2
REF. FPSD-11404
I. Facts of the case
1.
On 11 July 2022, the French/Cameroonian player Paul Arnold Garita (hereinafter the Player)
and the Romanian club Campionii FC Arges (hereinafter Arges) concluded an employment
agreement (hereinafter the Employment Agreement), valid as from 11 July 2022 until
30 June 2023.
2.
In article V of the Employment Agreement, Arges and the Player (jointly referred to as the
Parties) agreed upon, inter alia, the following financial conditions:
3.
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EUR 8,500 net as a monthly salary between 11 July 2022 and 30 June 2023;
EUR 9,500 net as a monthly salary between 1 July 2023 and 30 June 2024.
The salaries were to be paid until the 15th of the month following the month in which
the performance of the sports activity was made.
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“The player will receive the net amount of 500 euros for each goal scored, and
respectively the net amount of 500 euros for each goal pass, given in the official matches
held throughout the competition season 2022/2023 or 023/2024 of the 1st Football
League or in the matches played in the Romanian Cup or in the matches played in the
European cups (UEFA Champions League, UEFA Europa League at UEFA Conference
League).”
In article IV of the of the Employment Agreement, the Parties stipulated the following:
“6.1. This sports activity contract terminates in the following cases:
a) upon fulfilment of the term for which it was concluded, if the parties do not agree to its
extension;
b) the written agreement of the parties;
c) if the Player is tested positive for doping or refuses the doping test.”
4.
In article VII of the of the Employment Agreement, the Parties agreed upon the following:
“7.4. In the situation where, at the end of the 2022/2023 competition season the Club will be
relegated to the Romanian Football League 2, the Player shall be entitled to terminate the
present Contract with immediate effect and without compensation and join the club of his
choice.”
5.
On 3 June 2023, Arges lost the relegation play-off and was relegated to the Romanian Liga 2
for the season 2023/2024.
6.
On 7 June 2023, Arges received a termination notice from the Player, terminating the
employment relationship in line with article VII of the Employment Agreement.
7.
In said termination notice, the Player informed Arges that the Employment Agreement shall
be deemed as terminated as from the end of the 2022/2023 season.
pg. 3
REF. FPSD-11404
8.
On the same date, Arges contested the validity of the termination by a letter, arguing that
said article VII of the Employment Agreement is invalid as it is “contrary to the principle of
contractual stability and not enforceable by both parties”. In the same letter, Arges
reminded the Player that his contract runs until 2023/2024 and warned him that it will start
proceedings towards him, and any new club shall the Player sign a new contract.
9.
On 11 June 2023, in a letter to Arges, the Player reiterated his previous statement to
terminate the Employment Agreement as the article VII reflects “the true intention of the
Parties, which was to protect the Player's career from the negative consequences of relegation.”
10. In a letter of 12 June 2023, Arges reiterated its arguments regarding the invalidity of said
clause.
11. In a further correspondence to Arges of 22 June 2023, the Player insisted that the clause
“shall be deemed as valid and enforceable”.
12. On 1 July 2023, the Player signed a new employment agreement (hereinafter the New
Employment Agreement) with the Saudi club Al Faisaly (hereinafter Al Faisaly), valid as from
1 July 2023 until 30 June 2024.
13. In accordance with article 2 of the New Employment Agreement, the Player is entitled a
yearly payment of USD 600,000 net.
14. On 5 and 13 July 2023, Arges sent letters to the Player and Al Faisaly, insisting that the
Player is registered with Arges and shall comply with the Employment Agreement.
15. On 24 July 2023, the Single Judge of the Players’ Status Chamber issued a decision,
registering the Player with Al Faisaly.
II. Proceedings before FIFA
16. On 18 August 2023, 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 / Counter-Claimant
17. The requests for relief of the Claimant were the following:
“1. Establish that Paul Arnold Garita has terminate the contract with ACS Campionii FC Arges
without just cause.
2. Order Paul Arnold Garita to pay ACS Campionii FC Arges compensation for breach of
contract of EUR 436,000, plus interest of 5% per year as of June 7, 2023, until full payment.
pg. 4
REF. FPSD-11404
3. Find Al Faisaly FC as jointly and severally liable with Paul Arnold Garita for the payment of
the compensation of EUR 436,000, plus interest of 5% per year as of June 7, 2023, until full
payment.
4. Sanction Paul Arnold Garita with a restriction of four months on his eligibility to play in
official matches.
5. Sanction Al Faisaly FC with a ban from registering any new players nationally or
internationally for two entire and consecutive registration periods.“
18. In its claim, Arges alleged that the Player terminated the contract on 7 June 2023 without
just cause, by exercising article VII of the Employment Agreement.
19. By referring to various case law, Arges argued that the article VII of the Employment
Agreement is invalid as:
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It is disproportionate and not reciprocal;
No compensation was granted the counterparty;
“The validity of the unilateral option allowing a party to terminate the employment
contract after one year, while the other party is bound for the full contract term, is
contrary to Article 335a CO. A clause that violates Article 335a CO as it does not respect
the requirement for formal parity of termination rights is null and void.”
It was amended unilaterally by the lawyer of the Player;
It constitutes an excessive commitment from the side of Arges as it did not have an
equal bargaining power;
It does not protect the financial interest of Arges.
20. In view of the above, Arges argued that it is entitled to compensation (based on the positive
interest theory) for the unjustified breach, taking into account:
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The Player’s market value increased during his time with Arges (Note: Exhibit 4);
The Player’s current salary with Al Faisaly of USD 600,000 (Note: Exhibit 10);
The Player’s value of USD 600,000, i.e. EUR 550,000 (Note: Exhibit 15);
The Players’ salaries with Arges (minus EUR 114,000);
TOTAL: EUR 436,00 (EUR 550,000 minus EUR 114,000).
21. Arges was of the opinion that Al Faisaly shall be jointly liable in accordance with art. 17
par. 2 of the Regulations.
22. Finally, due to the termination during the protected period, art. 18 par. 3 of the Regulations
as well as the alleged inducement, Arges argued that sporting sanctions shall be imposed
in the matter on the Player and Al Faisaly.
pg. 5
REF. FPSD-11404
b. Position of the Respondent 1 / Counter-Claimant
23. In his reply, the Player filed the following request for relief, lodging a counterclaim against
Arges:
“(…) 1. Declare that the Player has validly terminated the Contract with effect from 30 June
2023;
2. Reject the Club's request;
3. Accept the Player's counterclaim;
4. Order the Club to pay the Player the net sum of EUR 10,000 by way of arrears of
remuneration, plus interest at 5% per annum as follows:
- 5% per annum on the net sum of EUR 1,500 from 4 June 2023 until the date of actual
payment;
- 5% per annum on the net amount of EUR 8,500 from 15 July 2023 until the actual payment
date.
5. Order the Club to provide the Player with certificates proving payment of all taxes and
social security contributions on the sums granted under point 4.
6. Order the Club to refrain from registering new players until the above-mentioned sums
have been paid in full.
In the alternative
7.Order the Player and Al Faisaly jointly and severally to pay the Club severance pay in an
amount not exceeding EUR 104,000.
In any event
8. Not to impose any sporting sanction on the Player.” (free translation from French)
24. First of all, the Player argued that he terminated the employment contract as from the end
of season 2022/2033, i.e. that he was under a valid contract until 30 June 2023.
25. The Player argued that the clause (article VII of the Employment Agreement) shall be
considered as binding and valid for, inter alia, the following reasons:
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Arges was represented by an agent and the clause was included during extensive
negotiations between the Parties;
By pointing to CAS jurisprudence, the Player argued that such “relegation clauses”
are valid as they protect the interest of the player and his career. In this respect, it
shall also be recognized that the player is the weaker party in the employment
relationship (CAS 2008/A/1447 para. 38);
The reciprocity of a relegation clause is not a necessary condition; it rather depends
on the circumstances of each case balance of interests shall be analysed
(CAS 2016/A/4549);
In casu, the Player's interest was taken into account, but also the Club's as it offered
the latter the possibility of no longer having to bear a very substantial salary in the
event of relegation. The Player added that based on information from the media,
pg. 6
REF. FPSD-11404
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Arges would have not been financially capable to comply with its financial
obligations;
Taking into account the above, the Player was of the opinion that the claim of Arges
is lodged in bad faith as “in fact, when entering into the Contract, the Club (i) expressed
its desire to obtain the possibility of reducing its financial commitments to the Player in
the event of relegation and (ii) confirmed that the inclusion of a relegation clause in the
Contract was consistent with its intention and likely to achieve its desire.” (free
translation from French)
26. In view of the above, the Player argued that the claim of Arges must be rejected.
27. In his counterclaim, the Player finally requested a payment of EUR 1,500, corresponding to
bonuses from the last game as well as an amount of EUR 8,500, corresponding to the
outstanding salary of June 2023.
c. Position of the Respondent 2
28. In its reply, the Al Faisaly filed the following request for relief:
“(i)
Article 7.4 of the Contract is valid and enforceable;
(ii)
The Player validly terminated the Contract based on its Article 7.4 from 30 June 2023;
(iii)
The Player was free to join the club of his choice from 1 July 2023 without
compensation;
(iv)
From 1 July 2023, the Player and Al Faisaly were free to conclude an employment
contract, valid until 30 June 2024;
Neither the Player nor Al Faisaly committed any breach or wrongdoing pursuant to the FIFA
Regulations on the Status of Players.”
29. In particular, regarding article VII of the Employment Agreement, Al Faisaly argued that:
“(i)
This clause was voluntarily agreed between the Player and Arges, and is the result of
free and specific negotiations. It is therefore binding based on the principles of pacta sunt
servanda and contractual freedom.
(ii)
The clause was included in bold in the Contract, which confirms that the attention of
both parties was drawn on the content of this clause and that both parties specifically agreed
on the content of the clause and the rights/obligations contained therein.
(iii)
The clause reflects the true and common intention of the parties
(iv)
Based on the principle of venire contra factum proprium, Arges is precluded from
claiming that the clause is not valid and/or enforceable insofar as it is in manifest conflict
with its past conduct where:
a.
It has specifically negotiated the content of the clause
b.
It has given its express and informed consent to the content of the clause
c.
It has participated to the drafting of the clause
d.
It has never contested the content of the clause before 7 June 2023
pg. 7
REF. FPSD-11404
(v)
The above-mentioned elements also demonstrate that Arges has blatantly violated the
duty of good faith provided for in Article 2 of the Swiss Civil Code.
(vi)
Arges was no longer interested in the Player's services for the 2023/24 season, but only
wishes to unduly enrich itself at the expense of the Player and Al Faisaly. This is evidenced by
the fact that in its correspondence dated 5 and 13 July 2023, Arges threatened Al Faisaly in
an attempt to force the latter to conclude a transfer agreement and pay a transfer fee.”
d. Position of the Claimant / Counter-Claimant
30. In its reply, Arges requested to dismiss the counterclaim of the Player.
31. Regarding the claimed bonus, Arges argued that there is no contractual basis for such claim
based on the literal wording of article V of the Employment Agreement, read together with
art. 28 of the Regulations of Organisation of Football Activities of the Romanian Football
Federation:
32. Concerning the payment of the June 2023 salary, Arges also contested the Player’s
entitlement as he 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
33. 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 18 August 2023 and submitted
for decision on 11 January 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.
pg. 8
REF. FPSD-11404
34. 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 employmentrelated dispute with an international dimension between a Romanian club,
French/Cameroonian player and a Saudi club.
35. 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 (May 2023 edition) and
considering that the present claim was lodged on 18 August 2023, the May 2023 edition of
said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
36. 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
37. 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
38. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that this is a claim of Arges against its former Player and his new
club, Al Faisaly.
39. The DRC further acknowledged that the Player allegedly exercised his right of termination
in accordance with article VII of the Employment Agreement, yet that Arges argued that
said clause is invalid and, by signing another contract with Al Faisaly, the Player breached
its contractual obligations and shall pay compensation together with the new club.
pg. 9
REF. FPSD-11404
40. Equally, the Chamber acknowledged that the Player rejected the claim of Arges as he
argued that he was a free agent as the clause was indeed valid, taking into account both
the interest of Arges and himself. The DRC further took note that the Player lodged a
counterclaim, requesting his salary of June 2023 (EUR 8,500) and a bonus (EUR 1,500) as
these amounts remained allegedly outstanding.
41. Finally, the Chamber noted that the Player’s new club, Al Faisaly, also rejected the claim of
Arges since it deemed that the disputed clause is valid and that it signed the Player as a
free agent.
42. In this context, the Chamber acknowledged that it its task was to establish if the relegation
clause was valid and, consequently, if the contract was duly terminated.
43. Before entering into the analysis of the relegation clause, the DRC firstly recalled the
wording of article VII of the of the Employment Agreement:
“7.4. In the situation where, at the end of the 2022/2023 competition season the Club will be
relegated to the Romanian Football League 2, the Player shall be entitled to terminate the
present Contract with immediate effect and without compensation and join the club of his
choice.”
44. Duly analysing the content of article IX of the of the Employment Agreement, as well as the
relevant CAS jurisprudence, the Chamber was of the opinion that the arguments of Arges
regarding disproportionality, non-reciprocity and the lack of compensation payable cannot
be upheld, considering the balance of interests as well as the bargaining power of the
Parties in the present dispute.
45. In particular, the Chamber believed that said clause contains considerations of both
Parties, i.e. the Player's interest concerning his career, but also the Club's interest due to
the possibility of no longer having to bear rather high financial burden in the event of
relegation. Furthermore, after observing the evidence on file, the DRC concluded that Arges
was duly represented when drafting the Employment Agreement, and, in any event, a club
is a party with stronger negotiation power.
46. Considering the above, the Chamber rejected the arguments of Arges referring to a lack of
bargaining power or an excessive commitment.
47. By the same token, and based on the principle pacta sunt servanda, the Chamber concluded
that said clause shall be respected and that the Player duly exercised its right to terminate
the contract as per the end of the season 2022/2023.
48. In view of the above, the DRC decided to reject the claim of Arges.
pg. 10
REF. FPSD-11404
49. The Chamber then turned their attention to the parallel claim of the Player concerning the
allegedly outstanding salary of June 2023 and performance bonuses in the amount of
EUR 1,500.
50. 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 Arges that the Player was absent as
well as that he terminated the contract on 7 June 2023, and, consequently, should not be
entitled to his salary.
51. In this respect, the Chamber concluded that Arges failed to provide any evidence
supporting its argument regarding the alleged absence. With regards to the date of
termination, the DRC recalled that the contract was terminated as per the end of the
season and concluded that the Player shall be entitled to his full monthly remuneration.
52. Concerning the payment of the bonus entitlement, the DRC deliberated that the wording
of the relevant bonus clause and the evidence on file are clearly in support of the Player’s
claim and the amount of EUR 1,500 shall be granted to the Player in accordance with the
legal principle pacta sunt servanda.
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 and bonus of EUR 1,500.
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 10,000, 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 5% interest p.a. as
follows:
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over the amount of EUR 1,500 as from 4 June 2023 until the date of effective
payment.
over the amount of EUR 8,500 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-11404
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.
pg. 12
REF. FPSD-11404
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Campionii FC Arges, is rejected.
2.
The claim of the Respondent 1 / Counter-Claimant, Mr Paul Arnold Garita, is partially
accepted.
3.
The Claimant / Counter-Respondent, must pay to the Respondent 1 / Counter-Claimant the
following amount(s):
- EUR 1,500 as outstanding amount, plus 5% interest p.a. as from 4 June 2023 until the
date of effective payment.
- EUR 8,500 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
pg. 13
REF. FPSD-11404
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
pg. 14