Labour Disputes
Texto da decisão
REF 20-01482
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 14 January 2021,
regarding an employment-related dispute concerning the player Boris GODAL
COMPOSITION:
Geoff Thompson (England), Deputy Chairman
Michelle Colucci (Italy), member
Mohamed Muzammil (Bangladesh), member
CLAIMANT:
BORIS GODAL, Slovenia
Represented by Mr. Loizos Hadjidemetriou
RESPONDENT:
AEL PODOSFARIO DIMOSIA (LIMASSOL), Cyprus
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I. FACTS
1.
On 1 August 2019, the Slovenian player Boris Godal (hereinafter: the player or the Claimant) and
the Cypriot club AEL Podosfario Dimosia (Limassol) (hereinafter: the club or Respondent)
concluded an employment agreement, valid between 1 August 2019 and 31 May 2021.
2.
Based on the contract, the player was entitled to a monthly gross salary of:
-
EUR 9,522 (EUR 8,500 net) in the period between 31 August 2019 and 31 December 2019;
EUR 9,610 (EUR 8,500 net) in the period between 31 January 2020 and 31 May 2020;
EUR 10,362 (EUR 9,000 net) in the period between 31 August and 31 December 2020);
EUR 9,964 (EUR 9,000 net) in the period between 31 January 2021 and 31 May 2021.
3.
Furthermore, article 1.2 of the contract holds the following clause: “The Club engages the Player
as a professional footballer for, as a minimum, the Club's First Team, unless the Player shall agree
to play for some other team of the Club, on the terms and conditions of this Contract and subject
to the Rules of the CFA.”
4.
Moreover, article 13 of the standard employment agreement contains – according to the club the following clause: ‘Any employment dispute between the club and the player shall fall under
the exclusive jurisdiction of the National Dispute Resolution Chamber of the CFA and shall be
resolved according to the applicable regulations of the CFA’.
5.
On 10 August 2020, the player put the club in default, protested against the club’s decision to
prohibit him from taking part in the training sessions and matches of the club’s first team and
requested for his immediate integration in the club’s first team, however to no avail.
6.
On 10 September 2020, the player put the club again in default, reiterating his previous
complaints, however again to no avail.
7.
Moreover, on 11 September 2020, the club sent the player a letter, in which it argued “that the
player was creating problems in his relations with the management and the technical staff and
that because of his behaviour in the locker room they asked him to consent to his loan to another
football team”.
8.
On 14 September 2020, the player refused said proposal and denied the club’s allegations.
9.
On 16 September 2020, the player was informed by the Cyprus Football Association (CFA) that
he was deregistered from the club’s list of eligible players, which decision became definitive and
irreversible on 29 September 2020, as per the CFA’s internal regulations.
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10. On 12 October 2020, the player lodged a claim against the club, claiming the total amount of
EUR 10,362 as outstanding remuneration, as well as 5% interest p.a. as from 30 September 2020,
and the amount of EUR 59,556 as compensation for breach of contract, as well as 5% interest
p.a. as from 30 September 2020, and additional compensation “up to 6 months’ salaries, due to
the abusive and/or unsporting and/or egregious behaviour” of the club.
11. In his claim, the player explains that in the last week of June 2020, the club started the preparation
of the season 2020-2021, however that he was prohibited from training sessions with the rest of
the team and was forced to train alone.
12. The player explains that he is of the opinion that he was excluded from the team, as he refused
to agree with the club’s request to a 30% reduction of his salaries for the 2020-2021 season.
13. What is more, the player explicitly denies all the allegations of the club and states that the
behaviour of the club and the de-registration are to be seen as a valid reason for the player to
unilaterally terminate his contract.
14. On 29 September 2020, the player unilaterally terminated his contract with the club, due to his
deregistration.
15. In its reply to the claim, the club first of all contested the competence of FIFA to deal with the
matter at hand, as the Cypriot NDRC should be competent to deal with the matter at hand.
16. In this respect, the club argues that there is a clear arbitration clause in the contract, as well as
that the Cypriot NDRC meets the requirements of FIFA Circular 1010. The club especially highlights
that the Cypriot NDRC respects the principle of parity and equal representation, and also provides
for a ‘fair hearing’ and equal treatment.
17. In case FIFA would deem itself competent, the club argues that it had paid all the salaries of the
player until 29 September 2020 and the player could not demonstrate to ‘what period the
outstanding amount of salaries he requires through his correspondence dated 11 October 2020’
relates.
18. What is more, since the player did not accept an offer from the club to go on loan with another
Cypriot club (by means of which he would have mitigated his damages), he should not be awarded
compensation for breach of contract.
19. On 30 September 2020, the player signed a new contract with the Slovakian club FK Zeleziarne
Podbrezova, valid between 1 October 2020 and 30 June 2022, based on which he was entitled
to a monthly salary of EUR 2,500.
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II. CONSIDERATIONS
OF
THE
DISPUTE
RESOLUTION
CHAMBER
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 submitted to FIFA on 5 May 2020. Taking into account the wording of
art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (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. 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 August 2020), the Dispute Resolution
Chamber is competent to deal with the matter at stake. The matter concerns an employmentrelated dispute with an international dimension between a Bulgarian player and a Romanian club,
and the competence is not disputed by the parties.
3.
However, the Chamber acknowledged that the club contested the competence of FIFA’s deciding
bodies on the basis of art. 13 of the employment contract highlighting that the Cyprus Football
Association (CFA) has an independent deciding body to deal with the matter, i.e. the National
Dispute Resolution Chamber of the CFA.
4.
Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of
the 2010 edition of the Regulations on the Status and Transfer of Players it is competent to deal
with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing
fair proceedings and respecting the principle of equal representation of players and clubs, has
been established at national level within the framework of the Association and/or a collective
bargaining agreement. With regard to the standards to be imposed on an independent arbitration
tribunal guaranteeing fair proceedings, the Chamber referred to FIFA Circular no. 1010 dated 20
December 2005. In this regard, the Chamber further referred to the principles contained in the
FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force
on 1 January 2008.
5.
In continuation, the members of the Chamber wished to stress that the club was unable to prove
that, in fact, the CFA “National Dispute Resolution Chamber” meets the minimum procedural
standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations.
6.
In this respect, the DRC referred to the principle of equal representation of players and clubs and
underlined that this principle was one of the very fundamental elements to be fulfilled, in order
for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is
mentioned in the Regulations on the Status and Transfer of Players, in the Circular no. 1010 as
well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as
follows: “The NDRC shall be composed of the following members, who shall serve a four-year
renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and
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club representatives (…); b) between three and ten player representatives who are elected or
appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such
associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three
and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following:
“The parties must have equal influence over the appointment of arbitrators. This means for
example that every party shall have the right to appoint an arbitrator and the two appointed
arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be
selected from a predetermined list, every interest group that is represented must be able to
exercise equal influence over the compilation of the arbitrator list.”
7.
What is more, while analysing the documentation submitted by the parties in this respect, in
particular, the members of the Chamber concurred that the “Regulations for the Registration and
Transfer of Football Players and the DRC Procedural Regulations (July 2020)”, in accordance with
its article 22.4.4, the two members which are elected by the Pancyprian Football Players’
Association, need to be approved by the CFA, whereas such condition does not apply to the
appointment of club representatives. What is more, based on article 22.4.5 of the Cyprus NDRC
Regulations, in case Pancyprian Football Players’ Association refuses or fails to nominate a player
representative, the CFA has also potential influence on the selection process of player
representatives, as opposed to club representatives.
8.
Taking into account the foregoing articles of the Cyprus NDRC Regulations, the members of the
Chamber were of the opinion that the Cyprus NDRC does not fully respect the principle of equal
representation, as laid down in FIFA Circular no. 1010.
9.
In view of all the above, the Chamber established that the club’s objection to the competence of
FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber
is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players,
to consider the present matter as to the substance.
10. In continuation, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (August 2020 edition), and considering that
the claim was lodged on 12 October 2020, the June 2020 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
11. 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.
12. First of all, the DRC acknowledged that, on 1 August 2019, the player and the club had concluded
an employment contract valid as from 1 August 2019 until 31 May 2021. As to the financial terms
of said employment contract, the Chamber took note that it had been agreed upon between the
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parties that the club would remunerate the player with a monthly salary of EUR 9,522 gross (or
EUR 8,500 net) in the period between 31 August 2019 and 31 December 2019, a monthly salary
of EUR 9,610 gross (or EUR 8,500 net) in the period between 31 January 2020 and 31 May 2020,
a monthly salary of EUR 10,362 gross (or EUR 9,000 net) in the period between 31 August 2020
and 31 December 2020 and a monthly salary of EUR 9,964 gross (or EUR 9,000 net) in the period
between 31 January 2021 and 31 May 2021.
13. The members of the Chamber then turned to the claim of the player, who maintained that – as
from June 2020 – the cub excluded him from training sessions and matches with the club’s first
team, according to the player because he refused to accept a salary reduction of 30% of his
salaries for the 2020-2021 season and because of some non-proven disciplinary issues the club
accuses him of. After he put the club in default, to no avail, the player further found out that the
club deregistered him. Consequently, the player explains that on 29 September 2020, he
unilaterally terminated the contract, based on the fact that he was de-registered and no longer
part of the club’s tram anymore.
14. What is more, the Chamber noted that the club, in reply to the player’s claim, mainly argued that
the player was not able to demonstrate to which period the salaries claimed referred to, and also
pointed out that the player refused to accept an offer from the club to go on loan with another
Cypriot club, by means of which he would have mitigated his damages.
15. In this context, the Chamber firstly focussed its attention on the fact that the circumstances
described by the player (his exclusion from the first team, as well as the training sessions of the
first team and his consequent deregistration), are not contested by the club.
16. In light of the above, first of all, the members of the Chamber considered important to point out,
as has been previously sustained by the DRC, that among a player’s fundamental rights under an
employment contract, is not only his right to a timely payment of his remuneration, but also his
right to access training and to be given the possibility to compete with his fellow team mates in
the team’s official matches.
17. Furthermore, the Chamber analysed submitted by the club, and pointed out that the fact that the
player did not want to sign a loan contract with another Cypriot club, cannot be upheld against
him, as the parties have contractual autonomy as to whether they wish to sign a contract or not.
Also the club’s argument that the player was not able to demonstrate what the contractual basis
of the monies claimed was, cannot be upheld as to the members of the Chamber it was clear
that the amounts claimed could be linked to the monthly remuneration the player was entitled
to.
18. For all of these reasons, the Chamber decided to reject the club’s arguments and to establish that
the player, on 29 September 2020, had unilaterally terminated the employment with just cause.
As a consequence, the club is to held liable for the consequences of such termination.
19. Having established that the club is to be held liable for the early termination of the employment
contract without just cause, the Chamber focussed its attention on the consequences of such
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breach of contract. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the player is entitled to receive from the club an amount of money as compensation
for breach of contract, in addition to any outstanding payments on the basis of the relevant
contract, if any.
20. The Chamber then reverted to the player’s claim, from which it clearly follows that at the day of
the unilateral termination of the contract, 29 September 2020, the salary for the month of
September 2020 remained outstanding. As a result, the DRC decided that the club is liable to pay
outstanding remuneration in the amount of EUR 9,000 to the player.
21. Furthermore, in accordance with its established jurisprudence and taking into account the request
of the player, the Chamber further decided that interest at the rate of 5% p.a. was to be applied
over the amount of EUR 9,000 as from 1 October 2020, i.e. the date of the claim.
22. In continuation, the Chamber focussed its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of 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 contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
23. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contains a provision by which the parties had
beforehand agreed upon an amount of compensation payable by either contractual party in the
event of breach of contract. In this respect, the members of the Chamber concluded that no such
clause was available in the contract.
24. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the club to the player had to be assessed in application of the other parameters set
out in art. 17 par. 1 of the Regulations. The Chamber recalled that the said provision provides for
a non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be taken into account
at the discretion of the deciding body.
25. 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
31 May 2021. In this respect, the Chamber took into account that the contract would – after the
unilateral termination on 29 September 2020 would run for another 8 months, in which the player
receive a monthly amount of EUR 9,000.
26. Based on the foregoing circumstances, the members of the Chamber decided that the residual
value of the contract until 31 May 2021, corresponds to the total amount of EUR 72,000, which
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amount shall serve as the basis for the determination of the amount of compensation for breach
of contract.
27. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would have
been enabled to reduce his loss of income. According to the constant practice of the DRC, such
remuneration under a new employment contract shall be taken into account in the calculation of
the amount of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
28. Indeed, on 30 September 2020, the player found employment with the Slovakian club FK
Zeleziarne. In accordance with the pertinent employment contract, which has been made available
by the player, valid as from 1 October 2020 until 30 June 2022, the player was entitled to receive
a monthly salary of EUR 2,500. For the period between 1 October 2020 until 31 May 2021, the
player was therefore entitled to receive the total amount of EUR 20,000. Consequently, the
Chamber established that the value of the new employment contract concluded between the
player and FK Zeleziarne, amounting to EUR 20,000, should be deducted from the compensation
for breach of contract the player was entitled to.
29. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of EUR 52,000 to the
player, which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
30. Furthermore, in accordance with its established jurisprudence and taking into account the request
of the player, the Chamber further decided that interest at the rate of 5% p.a. was to be applied
over the amount of EUR 52,000 as from 12 October 2020, i.e. the date of the claim.
31. Furthermore, taking into account the consideration under number II./10. 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 established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the club. More in particular, the DRC pointed out that,
against clubs, the sanction shall consist in a ban from registering any new players, either nationally
or internationally, up until the due amount is 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 club does not
pay the amount due to the player within 45 days as from the moment in which the player,
following the notification of the present decision, communicates the relevant bank details to the
club, a ban from registering any new players, either nationally or internationally, for the maximum
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duration of three entire and consecutive registration periods shall become effective on the club in
accordance with art. 24bis par. 2 and 4 of the Regulations.
34. Finally, the Chamber recalled that the above-mentioned sanction 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.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Boris Godal, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, AEL Podosfario Dimosia (Limassol), has to pay to the Claimant, the following
amount:
- EUR 9,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until
the date of effective payment.
- EUR 52,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 12 October 2020 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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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