Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 5 November 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (the Netherlands ), member
Joaquim Ev angelis ta (Portugal), member
Todd Durbin (US A), member
Juan Bautis ta Mahiques (Argentina), member
on the claim presented by the player,
Aboubacar Gas s am a, France
represented by Mr Youssef Fofana
as Claimant
against the club,
AFC Dunarea 2005 Calaras i, Romania
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 26 September 2017, the French player, Aboubacar Gassama (hereinafter: the
Claimant) concluded an employment contract (hereinafter: the contract) with
the Romanian club, AFC Dunarea 2005 (hereinafter: the Respondent), valid as
from 27 September 2017 until 30 June 2019, i.e. two sporting seasons.
2.
Article J.1. of the contract reads as follows: “The monthly gross salary: 11,122 Lei
[Romanian New Lei] for the 1st year of the contract, if the team will promote in
the 1st league – the salary will be increased to 3.500 Euro (net amount)(...)”.
3.
Article J.2. of the contract mentioned :
“a) The bonus in the 1st league will be of 10.000 Euro for each participant
according to the number of matches played during the competitive season 20172018, bonus that should be paid when the club receives the 1 st share from the TV
rights (…);
b) Bonus for matches according to the internal regulations of the club for the
competitive year 2017-2018; (…);
c) Free meal and accommodation” (…).
4.
Article J.4. of the contract provided the salary to be paid “until the 15th of each
month”.
5.
On 10 January 2018, the Claimant contacted the Respondent, explaining that he
had not received his complete salary for the month of December as well as the
bonus for the month of November 2017.
6.
On 13 January 2018, the Respondent suggested to the Claimant to mutually
terminate the contract as “he does not give enough satisfaction to the coach”
offering “to pay in advance 2 salaries (3400 euros net) and delete the contract”.
The Claimant rejected the Respondent’s offer and asked to be reintegrated to
the group as well as training sessions.
7.
On 15 January and 20 June 2018, the Claimant sent two notices to the
Respondent, expressing his non satisfaction with being sent to train alone and
to have been forced to leave the group accommodation, asking for the
Respondent’s reaction under 5 days, each to no avail.
8.
On 23 July 2018, the Claimant terminated the contract, alleging that his previous
notices remained unanswered. Moreover, the Claimant argued that he had been
forced to end his contract as from January 2018 until termination and that he
had been also left out of the group during two team preparations.
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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9.
On 25 July 2018, the Claimant lodged a claim against the Respondent for breach
of contract and requested the payment of the following amounts:
i.
ii.
iii.
iv.
v.
EUR 3,400 as monthly salaries for June to July 2018, each due on the 15 th
of the month;
EUR 780 as game bonuses for November to December 2017;
EUR 10,000 as “1st League Bonus Promotion for 2017-2018”;
EUR 40,800 as compensation for the “2nd year contract (From 30/06/2018
to 30/06/2019 12 months duration)”;
EUR 150,000 as damages.
10.
In his claim, the Claimant alleged that as of January 2018 he never received his
salaries on the monthly contractually agreed basis.
11.
Moreover, the Claimant underlined that in December 2017, before the winter
break, he was asked by the Respondent to sign a first termination agreement. In
this regard, the Claimant submitted a copy of an unsigned document titled
“Decision of termination of the individual labour contract NO. 128/11.12.2017”.
12.
Furthermore, the Claimant explained that once back in Romania for the second
part of the season, he was not allowed to stay in the former hotel and was sent
to another accommodation in which he “(…) lived in very difficult conditions
(…) and there was no food provided”.
13.
In this respect, the Claimant alleged having been once again asked to mutually
terminate the contract as from 1st June 2018 “in exchange [the Claimant] could
reintegrate the professional group and have better living conditions”. In this
regard, the Claimant submitted a copy of an unsigned document titled “end of
agreement”.
14.
As to the alleged exclusion from the professional group training program, the
Claimant alleged having been sent to train alone in poor weather conditions
without equipment and access to any medical treatment, despite of which the
Claimant never missed a training session. In this context, the Claimant provided
training schedules, which have all been signed by the Claimant.
15.
Finally, the Claimant also referred to the intervention of FIFPRO in order to solve
the situation, to no avail, as well as to ongoing proceedings in front of the
National Anti-Discrimination Council Autonomic authority of the State.
16.
Despite having been invited to do so, the Respondent did not reply to the claim
in the given deadline, albeit late.
17.
After being requested by FIFA, the Claimant explained that he signed an
employment contract with the Finnish club, Ekenäs idrottsförening Ab, valid as
from 10 August 2018 until 9 November 2018, according to which he was
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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entitled to receive a monthly salary of EUR 1,100. Moreover, the Claimant
explained that he signed another employment contract with the Armenian club,
Ararat FC, valid as from 20 February 2019 until 1 June 2019, according to which
he was entitled to receive a monthly salary of Armenian Dram (AMD) 95,000.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, the Chamber took note that the present matter was submitted to
FIFA on 25 July 2018. Consequently, the DRC concluded that the 2018 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to
the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed 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 October 2019), 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 French player and a Romanian club.
3.
Furthermore, 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 Player
(edition October 2019), and considering that the present claim was lodged on 25
July 2018, the June 2018 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and the documentation submitted by the parties.
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.
5.
First of all, the members of the Chamber recalled that, on 26 September 2017,
the parties concluded a contract, valid as of 27 September 2017 until 30 June
2019.
6.
In continuation, the DRC noted that the Claimant lodged a claim against the
Respondent maintaining that he had terminated the contract with just cause on
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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23 July 2018. In this context, the DRC noted that, according to the Claimant,
during the course of the employment relationship, i.e. from January to July
2018, the Respondent failed to fulfil part of its financial obligations and that it
deliberately deteriorated his accommodation and training conditions and, as
well, that he had been forced several times to sign a termination agreement.
Furthermore, the Chamber noted that the Claimant affirmed that he had put
the Respondent in default on several occasions, to no avail. Consequently, the
Claimant asks to be awarded his outstanding dues as well as the payment of
compensation for breach of the employment contract.
7.
Subsequently, the DRC observed that the Respondent, in spite of having been
invited to do so, had, for its part, failed to present its response to the claim of
the Claimant within the relevant time limit set by FIFA, i.e. 15 October 2018. In
fact, the reply of the Respondent was only received on 16 October 2018. As a
result, bearing in mind the Chamber’s constant jurisprudence in this regard and
in application of art. 9 par. 3 of the Procedural Rules, the Chamber decided not
to take into account the reply of the Respondent and established that, in
accordance with the aforementioned provision, it shall take a decision on the
basis of those documents on file that were provided prior to the deadline set by
FIFA, in casu, on the statements and documents presented by the Claimant.
8.
Having said this, the DRC acknowledged that the central issue in the matter at
stake was to determine as to whether the contract was terminated by the
Claimant with or without just cause and to decide on the consequences thereof.
9.
With the above in mind, the Chamber proceeded with an analysis of the
circumstances surrounding the present matter, the parties’ arguments as well
the documentation on file, bearing in mind art. 12 par. 3 of the Procedural
Rules, in accordance with which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
10.
In doing so, the DRC recalled that it has remained undisputed that, after having
put the Respondent in default on several occasions between January 2018 and
July 2018, the Claimant terminated the contract in writing on 23 July 2018.
11.
Furthermore, the DRC recalled that it has remained undisputed that, from
January until July 2018, the Respondent failed to fully comply with its financial
and contractual obligations and that the Claimant’s default notices had
remained unanswered.
12.
In this context, the members of the Chamber established that the Respondent,
without any valid reason, failed to remit the Claimant’s monthly remuneration
in the total amount of RON [Romanian New Lei] 22,244, corresponding to two
monthly salaries for the months of June and July 2018.
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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13.
Furthermore, the Chamber took note of the documentary evidence submitted
by the Claimant in support of his allegations that the Respondent deliberately
deteriorated his accommodation and training conditions and that he had been
forced several times to sign a termination agreement and to train alone.
14.
Consequently, and considering that the Respondent had thus repeatedly and for
a significant period of time been in breach of its financial and contractual
obligations towards the Claimant, the Chamber decided that the Claimant had
just cause to unilaterally terminate the employment contract on 23 July 2018
and that, as a result, the Respondent is to be held liable for the early
termination of the employment contact with just cause by the Claimant.
15.
Having established that the Respondent is to be held liable for the early
termination of the employment contract, the DRC focused its attention on the
consequences of such termination. Taking into consideration art. 17 par. 1 of the
Regulations, the DRC established that the Claimant is entitled to receive from
the Respondent compensation for breach of contract, in addition to any
outstanding payments on the basis of the relevant employment contract.
16.
Along those lines, the DRC firstly referred to the Claimant’s request regarding
the outstanding remuneration at the time of the unilateral termination of the
employment contract. In this respect, the DRC concurred that the Respondent
must fulfil its obligations as per the employment contract in accordance with the
general legal principle of “pacta sunt servanda”.
17.
Consequently, and bearing in mind that the Claimant terminated his
employment contract on 23 July 2018, the Chamber decided that the
Respondent is liable to pay to the Claimant outstanding remuneration in the
amount of RON 22,244, pertaining to his monthly salaries of June and July 2018,
since said month was also fully worked by the Claimant.
18.
Subsequently, the Chamber turned its attention to the Claimant’s request to be
awarded with the amount of EUR 780, as “game bonuses for November to
December 2017” and EUR 10,000 as “1st League Bonus Promotion for 20172018”.
19.
In this respect, the Chamber referred once again to the contents of art. 12 par. 3
of the Procedural Rules, according to which “any party claiming a right on the
basis of an alleged fact shall carry the burden of proof”.
20.
Within this context, the Chamber carefully examined the documentation
presented by the Claimant and noticed that the Claimant failed to provide any
evidence supporting that the aforementioned bonuses were due. As a result, the
DRC decided to reject this part of the Claimant’s claim.
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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21.
As a result, and in accordance with the principle of pacta sunt servanda, the
Chamber decided that the Respondent has to pay to the Claimant outstanding
remuneration in the amount of RON 22,244.
22.
Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the
DRC decided that the Claimant is entitled to receive compensation for breach of
contract from the Respondent.
23.
In continuation, the Chamber focused his attention on the calculation of the
amount of compensation for breach of contract due to the Claimant by the
Respondent in the case at stake. In doing so, the DRC 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 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.
24.
In application of the relevant provision, the members of the DRC 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 DRC established that no such
compensation clause was included in the employment contract at the basis of
the matter at stake.
25.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the parameters set out in art. 17 par. 1 of the Regulations.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment
contract as from its termination and concluded that the Claimant would have
been entitled to receive RON 122,342 as remuneration had the employment
contract been executed until its regular expiry date, i.e. 30 June 2019.
Consequently, the Chamber concluded that the amount of RON 122,342 serves
as the basis for the final determination of the amount of compensation for
breach of contract in the case at hand.
26.
In continuation, the Chamber assessed whether the Claimant had signed an
employment contract with another club during the relevant period of time, by
means of which he would have been able to reduce his loss of income. In this
respect, the DRC deemed it necessary to refer to the first sentence of art. 17 par.
1 lit. ii) of the Regulations, according to which, in case the player signed a new
contract by the time of the decision, the value of the new contract for the
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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period corresponding to the time remaining on the prematurely terminated
contract shall be deducted from the residual value of the contract that was
terminated early (the ”Mitigated Compensation”).
27.
In respect of the above, the Chamber recalled that the Claimant signed an
employment contract with the Finnish club, Ekenas Idrottsförening Ab, valid as
from 10 August 2018 until 9 November 2018, according to which, he was
entitled to a monthly salary of EUR 1,100. Furthermore, the Claimant signed
another employment contract with the Armenian club, Ararat FC, valid as from
20 February 2019 until 1 June 2019, according to which he was entitled to
receive a monthly salary of Armenian Dram (AMD) 95,000, which corresponds to
approximately EUR 165. On account of the above, such amounts shall be
deducted, leading to a mitigated compensation in the amount of RON 104,742.
28.
Consequently, on account of all the above-mentioned considerations, the
Chamber decided that the Respondent must pay the amount of RON 104,742 as
compensation for breach of contract to the Claimant, which is considered by the
Chamber to be a fair and reasonable amount.
29.
Subsequently, the DRC analysed the request of the Claimant corresponding to
“additional damages” in the amount of EUR 150,000. In this regard, the DRC
deemed it appropriate to point out that the request for said compensation
presented by the Claimant had no contractual basis and pointed out that no
corroborating evidence had been submitted that demonstrated or quantified
the damage suffered. Consequently, the Chamber decided to reject the
Claimant’s request relating to “additional damages”.
30.
The DRC decided that the claim of the Claimant is partially accepted and
concluded its deliberations by rejecting any further claim of the Claimant.
31.
Furthermore, taking into account the consideration under number II./3. above,
the Chamber 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.
32.
In this regard, the Chamber pointed out 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.
33.
Therefore, bearing in mind the above, the DRC decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days as
from the moment in which the Claimant, following the notification of the
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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present decision, communicates the relevant bank details to the Respondent, 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.
34.
Finally, the Chamber 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. 24bis par. 3 of the Regulations.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Aboubacar Gassama, is partially accepted.
2.
The Respondent, AFC Dunarea 2005 Calarasi, has to pay to the Claimant
outstanding remuneration in the amount of RON 22,244.
3.
The Respondent has to pay to the Claimant compensation for breach of contract
in the amount of RON 104,742.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under points 2. and 3. above.
6.
The Respondent shall provide evidence of payment of the due amounts in
accordance with points 2. and 3. above to FIFA to the e-mail address
[email protected], duly translated, if need be, into one of the official FIFA
languages (English, French, German, Spanish).
7.
In the event that the amounts due in accordance with points 2. and 3. above are
not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall
be banned 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 (cf. art. 24bis of the Regulations on
the Status and Transfer of Players).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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9.
In the event that the aforementioned sums are 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 FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber).
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the
CAS. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne, Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Aboubacar Gassama, France / Club AFC Dunarea 2005 Calarasi, Romania
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