Labour Disputes
Texto da decisão
REF FPSD-7218
Decision of the
Dispute Resolution Chamber
passed on 8 December 2022
regarding an employment-related dispute concerning
the player Denzel Gómez Méndez
BY:
Lívia SILVA KÄGI (Brazil), Acting Deputy Chairperson
José Luis ANDRADE (Portugal), member
Michele COLUCCI (Italy), member
CLAIMANT:
Denzel Gómez Méndez, Spain
Represented by Himnus
RESPONDENT:
Club Sportowy Unia Janikowo, Poland
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I.
Facts of the case
1.
On 1 July 2021, the player Denzel Gómez Méndez and Club Sportowy Unia Janikowo concluded an
employment contract valid as from the date of signature until 30 June 2023.
2.
According to the contract, the player was entitled to the following:
“a) PLN 33,600 (…) gross [inclusive of taxes], paid in equal parts of PLN 2,800 (…) gross [inclusive of taxes]
per month in the 2021/2022 season, i.e. in the period from July 1, 2021 to June 30, 2023,
b)
PLN 33,600 (..) gross [inclusive of taxes], paid in equal parts of PLN 2,800 (…) gross [inclusive of
taxes] per month in the season 2021/2022, i.e. in the period from July 1, 2021 until June 30, 2022.
c)
the player shall receive EUR 100 (…) as a bonus for every 3 points obtained by the Team in a
championship match, but only when the Team wins at least 6 points in a given month.”
(…)
3 Under this Contract, the Club agrees to:
(...)
c) Provide the Player with football accident insurance in accordance with the provisions of common law
and the regulations of FIFA and PZPN [Polish Football Association];
(...)
e) Provide treatment in case of injuries arising exclusively from participation in training, official matches,
friendly matches or from illness, with the restriction that the Club is not obliged to cover the costs of
treatment of long-term or genetic illnesses of the Player which are not related to the Player's
performance as a professional football player;
3.
In addition, the parties concluded an image rights agreement valid as from 1 July 2021 until 31
December 2023.
4.
According to art. 7 of the image rights agreement, the player was entitled to a remuneration of PLN
4,850.
5.
The image rights agreement stipulated, inter alia, the following:
§4
[Athlete's obligations].
By virtue of the present Contract, the Athlete:
(a) Expresses his or her consent to the dissemination of his or her Image, in particular by means of
filming, photography
(b)
Consents to the dissemination of his or her Image, in particular through filming, photography or
other recording,
(c)
May give his or her written consent to the dissemination of the Image in a strictly defined situation
of his or her private life, in particular through filming, photography or other recording, and
defined situation of your private life,
(d)
Will participate in all television recordings, radio interviews, other promotional actions and
events organized by the Partner or the
and events organized by the Partner or its sponsors,
(e)
He will not conclude individual advertising contracts, in particular those related to the Image,
without the consent of the Partner.
(...)
7 par 4
The Member undertakes to enroll the Athlete in health insurance and to pay for him the monthly
contributions for such insurance, within the meaning of the applicable provisions.
(…)
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REF FPSD-7218
10 par. 3 The Parties agree that any disputes related to the present Agreement shall be submitted to the
PZPN [Polish Football Association] Football Arbitration Court.
6.
According to the player, on 10 January 2022, the club’s coach sent him the following message:
7.
On 21 January 2022, the player’s agent forwarded to the player a termination notice from the club
and dated 14 January 2022, with the following contents:
“We hereby submit unilateral termination of the contract of termination of the contract for your fault:
Of the Professional Football Contract of July 1, 2021.
Of the Advertising Services Agreement dated July 1, 2021.
Motivation
Unexcused absence in, among others, three training units on the days: 10.01.2022, 11.01.2022,
12.01.2022, 13.01.2022 without justifying in writing his absence.
Due to the absence from the training sessions, based on the provisions of FIFA and PZPN [Polish
Football Association], we terminate the aforementioned contracts due to your fault.”
8.
On 12 April 2022, the player sent a default notice to the club, requesting the payment of PLN
137,700 as compensation.
9.
The player informed FIFA that he subsequently remained unemployed and explained he only
played with the Spanish club, CD Buzanda, as an amateur.
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II.
Proceedings before FIFA
10. On 26 August 2022, lodged a claim before FIFA for outstanding remuneration and breach
of contract without just cause, and requested the payment of the following amounts:
PLN 17,203.53 as outstanding remuneration, detailed as follows:
PLN 6,238.53 arising from the following table:
Monthly
Salary
monthly
Date of
payment
Amount
received
July 21
7,650.00 PLN
23/08/2021
1,410 EUR
August 21
7,650.00 PLN
18/10/2021
1,200 EUR
September 21
7,650.00 PLN
15/11/2021
1,600 EUR
October 21
7,650.00 PLN
23/12/2021
1,400 EUR
November 21
7,650.00 PLN
07/01/2022
1,400 EUR
Total:
Paid amount
Amount
due
1,240.90
6,409.10 PLN
PLN
2,166.00
5,484.00 PLN
PLN
7,272.73 PLN
377.27 PLN
1,168.00
6,482.00 PLN
PLN
1,286.36
6,363.64 PLN
PLN
6,238.53 PLN
PLN 7,650, corresponding to his full salary of December 2021
(PLN 7,650) PLN 3,315 for 13 days of January 2022
EUR 900 as bonuses, detailed as follows:
EUR 300 for three wins in the month of
September 2021; EUR 400 for four wins in the
month of October 2021; and EUR 200 for two
wins in the month of November 2021.
PLN 137,700 as compensation for breach of contract without just cause, plus interest,
corresponding to the residual value of the contract
11. The player considered that the image rights agreement is part of the employment
relationship due to, inter alia, the following reasons:
The parties are the same,
The image rights agreements stipulates a higher salary than the employment contract;
- Art 7 par 4 of the image rights agreement refers to the payment of social
contributions, which are usually related to employment contracts;
In his termination notice, the club terminated both contracts
12. As a result, the player argued that his monthly salary is as follows:
From July 2021 to June 2023: the monthly sum of PLN 7,650 (PLN 2,800 salary + PLN 4850
image rights);
From July to December 2023: the monthly sum of PLN 4,850.
13. The player stated that the payments stipulated in the image rights agreement are to be
paid in a monthly basis.
14. In its reply to the claim, the club argued that it started trainings on 10 January 2022, but that the
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player did not appear and did not inform about his absence.
15. The club argued that the “termination of the contract and the agreement on the use of the player's
image was sent by courier DPD on 14.01.2022” but that the player did not receive the parcel and it
returned to the sender.
16. The club acknowledged that the salaries of November and December are due, as well as the
bonuses.
17. The club provided the following payment receipts (in Polish only):
- PLN 5,629.20, apparently performed on 15.10.2021;
- PLN 7,607.52, apparently performed on 11.11.2021;
- PLN 6,638.38, apparently performed on 21.12.2021;
- PLN 6.557.74, apparently performed on 05.01.2022;
- EUR 1,410, apparently performed on 23 August 2021.
18. In his replica, the Claimant argued that “it is categorically false, that he had to report on January 10,
2022 for the team's first training session after the holidays, because neither the Club nor the coach
counted on him.”
19. The Claimant underlined that the club not only owes him the monthly payments for the months of
November and December 2021 and the variable salary amounts for Club victories, but also owes
the proportional part of the days worked during the month of January 2022 prior to the unilateral
termination without just cause.
20. The player considered that the club established “a plan to terminate the contract by deceptively
relying on alleged non-appearances when it is clear, that the Club (i) did not count on him and (ii)
had already terminated the contract before the "alleged" absences.
21. In its duplica, the Respondent explained that the player failed to attend a training session on 10
January 2022 and argued that the player left Poland without the intention to return.
22. The Respondent considered that this fact can be confirmed since the player returned the keys of
his apartment, as well as by the fact that he took back his “dishes, pots and linens”.
23. The Respondent argued that the player was paid in PLN, and explained that sometimes his
remuneration was “lower” but that on the next month it was “equalized”.
24. The Respondent requested to provide evidence of “a deceptive plan to terminate his contract”.
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III.
Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 26 August 2022 and submitted for decision on 8
December 2022. Taking into account the wording of art. 34 of the October 2022 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.
2.
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), 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 a Polish club.
3.
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 (July 2022 edition),and considering that the
present claim was lodged on 26 August 2022, the July 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
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.
5.
Admissibility
The Chamber noted, in limine litis, that the present matter concerns an employment agreement
concluded between the parties (cf. point I 1 above), as well as to an image rights agreement (cf.
point I 3 above).
6.
In view of the above, the Chamber referred to the jurisprudence of the Football Tribunal, according
to which, as a general rule, if there are separate agreements, FIFA tends to consider the agreement
on image rights as such and does not have the competence to deal with it. However, the Chamber
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pointed-out that such conclusion might be different if specific elements of the separate agreement
suggest that it was in fact meant to be part of the actual employment relationship. In the cases at
hand, such elements appear to exist.
7.
In this regard, the Chamber analyses art 7 par. 4 of the image rights agreement, and observed that
it provides for the payment of medical insurance, which is an element that usually refers to
employment contract.
8.
Moreover, the Chamber also took into account of the fact that, during the season 2021-22, the
Respondent participated in the Polish III liga, i.e. the country’s fourth tier. The Chamber considered
that, at this level, it is unlikely that the club commercialized the player’s image rights.
9.
In addition, the Chamber also observed that the club did not submit any comment as to the legal
nature of the so-called “image rights agreement”.
10. As a result, the Chamber established that it cannot consider the image rights agreements as such,
but rather as an additional agreement to the employment contract instead. Hence, the Chamber
confirmed that it is competent to examine the entire dispute, including the so-called “image rights
agreement”, which is de facto, part of the employment contract concluded between the parties.
d.
Merits of the dispute
11. 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 abovementioned 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
12. The Chamber recalled that, on 1 July 2021, the parties concluded an employment contract valid as
from the date of signature until 30 June 2023.
13. The Chamber then noted that the Claimant lodged a claim before FIFA against the Respondent,
arguing that, on 21 January 2021, he received a termination notice by means of which the club
terminated his contract due to, in particular, “unexcused absence in, among others, three training
units on the days: 10.01.2022, 11.01.2022, 12.01.2022, 13.01.2022 without justifying in writing his
absence.”
14. On the other hand, the Chamber took note of the position of the Respondent, which confirmed
said termination, while adding that the termination was sent via courier on 14 January 2022 but
that the player never picked it up and was returned to the club.
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15. In view of the above, the Chamber understood that the main legal issue at stake is to establish
whether the club had a valid reason to terminate the contract with the reasons established above.
16. In this respect, and as a preliminary note, the Chamber was eager to emphasise that only a breach
or misconduct which is of a certain severity justifies the termination of a contract. In other words,
only when there are objective criteria, which do not reasonably permit to expect a continuation of
the employment relationship between the parties, a contract may be terminated prematurely.
Hence, if there are more lenient measures which can be taken in order for an employer to ensure
the employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment contract can
only ever be an ultima ratio measure.
17. In this respect, and bearing in mind the criteria of ultima ratio, the Chamber was of the firm opinion
that, even if the player would have been absent for “three training units” in January 2022, in any
case, said absences could not justify an early termination of the contract, particularly considering
that they occurred in a period that traditionally overlaps with the winter break. In addition, the
Chamber noted that the club did not provide any convincing evidence to prove that the player was
warned or put in default as to his alleged absences.
18. In view of all of the above, and in accordance with its well-established jurisprudence for similar
cases, the Chamber unanimously concluded that the club terminated the contract without just
cause and that the club is to be held liable for the early termination of the contract.
ii.
Consequences
19. Having stated the above, the members of the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
20. Before entering into the calculation of the payable compensation, the Chamber underlined that
the player is entitled to his outstanding dues until the termination of the contract, i.e. until January
2022.
21. In this regard, the Chamber observed that the Claimant requested the payment of PLN 17,203.53
as outstanding remuneration (cf. point I 10 above), whereas, in its reply, the club provided a series
of receipts to prove the alleged payments.
22. On this note, the Chamber underlined that, according to the two contracts governing the
employment relationship between the parties, the player was entitled to a monthly remuneration
of PLN 7,650 (PLN 2,800 arising from the employment contract + PLN 4,850 arising from the socalled image rights agreement)
23. As a result, and after carefully examining the documentation provided by the parties, the Chamber
arrived to the conclusion that the amount of PLN 6,238.53, corresponding to unpaid amounts
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between July 2021 until November 2021, remains outstanding, as it can be seen in the following
table:
Monthly
July 21
August 21
September 21
October 21
November 21
Salary
monthly
7,650.00 PLN
7,650.00 PLN
7,650.00 PLN
7,650.00 PLN
7,650.00 PLN
Date of payment
Amount due
23/08/2021
18/10/2021
15/11/2021
23/12/2021
07/01/2022
Total:
1,240.90 PLN
2,166.00 PLN
377.27 PLN
1,168.00 PLN
1,286.36 PLN
6,238.53 PLN
24. In addition, the Chamber observed that the club failed to pay the entire salary of December 2021
(PLN 7,650).
25. Consequently, in strict application of the principle of pacta sunt servanda, the Chamber established
that the Respondent has to pay to the Claimant, the total outstanding amount of PLN 13,888.53
(i.e. PLN 6,238.53 + PLN 7,650), as mentioned above.
26. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Chamber decided to award 5% interest p.a. over said amount as
from the due date.
27. The Chamber then considered that Claimant’s request for the payment of bonuses, as it observed
that the contract stipulated that “the player shall receive EUR 100 (…) as a bonus for every 3 points
obtained by the Team in a championship match, but only when the Team wins at least 6 points in a
given month.”
28. In this respect, the Chamber noted that the Respondent acknowledged that said bonuses are due.
29. Consequently, in strict application of the principle of pacta sunt servanda, the Chamber established
that the Respondent has to pay to the Claimant, the total outstanding bonuses in the amount of
EUR 900.
30. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Chamber decided to award 5% interest p.a. over said amount as
from the due dates (i.e. at the end of each month).
31. Having stated the above, the Chamber 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 Chamber 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
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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 Chamber held that it first of all had to clarify 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.
33. As a consequence, the Chamber determined that the amount of compensation payable by the
Respondent to the Claimant had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive 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 Chamber proceeded with the
calculation of the monies payable to the player under the terms of the employment contract until
its term (i.e. from January 2022 until 30 June 2023). Consequently, the Chamber concluded that the
amount of PLN 137,700 (i.e. 18*PLN 7,650) serves as the basis for the determination of the amount
of compensation for breach of contract.
35. In continuation, the Chamber verified 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 Chamber as well as art. 17
par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be
considered 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 Chamber noted that the player remained unemployed since the unilateral
termination of the contract.
37. The Chamber referred to art. 17 par. 1 lit. ii) 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. In this respect, the Chamber decided to award the player compensation for breach of contract in
the amount of PLN 137,700, corresponding to the residual value of the contract.
39. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation at
the rate of 5% p.a. as of the date of claim until the date of effective payment.
iii.
Compliance with monetary decisions
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40. 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.
41. In this regard, the Chamber 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 Chamber decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision,
failing which, at the request of the creditor, 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 club in accordance with art. 24 par.
2, 4, and 7 of the Regulations.
43. The club shall make full payment (including all applicable interest) to the bank account provided
by the player in the Bank Account Registration Form.
44. 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. 24 par. 8 of the
Regulations.
e.
Costs
45. 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.
46. Furthermore, 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.
47. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Denzel Gómez Méndez, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club Sportowy Unia Janikowo, has to pay to the Claimant, the following amounts:
- PLN 13,888.53 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount PLN 6,238.53 of as from 1 December 2021 until the date of effective payment;
- 5% interest p.a. over the amount PLN 7,650 of as from 1 January 2022 until the date of effective payment;
- EUR 900 as outstanding bonuses plus interest p.a. as follows:
- 5% interest p.a. over the amount EUR 300 of as from 1 October 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 400 of as from 1 November 2021 until the date of effective payment;
- 5% interest p.a. over the amount EUR 200 of as from 1 December 2021 until the date of effective payment;
- PLN 137,700 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 26 August 2022 until the date of effective payment.
4.
Any further claims of the 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 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).
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