Dispute Resolution Chamber
Texto da decisão
REF 20-01821 / FPSD-494
Decision of the
DRC Judge
passed on 2 June 2021
regarding an employment-related dispute concerning the player Vagner Goncalves
Nogueira de Souza
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Vagner Goncalves Nogueira de Souza, Brazil
Represented by Guy San Bartolome Sarrey
RESPONDENT:
FC Dinamo Batumi, Georgia
Represented by Archil Bolkvadze
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I.
FACTS OF THE CASE
1.
On 1 January 2020, the Brazilian player, Vagner Goncalves Nogueira de Souza (hereinafter:
Claimant), and the Georgian club, FC Dinamo Batumi (hereinafter: Respondent) signed an
employment contract valid as from the same date until 1 December 2021.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia a monthly fixed salary of USD 6,000, with due date on the first day of
each following month.
3.
By correspondence dated 8 September 2020, the Claimant put the Respondent in default
of payment of USD 18,000, namely 50% of the salary due as of the month of March 2020
until August 2020, and it contextually set a time limit expiring on 23 September 2020 in
order to remedy the default.
4.
On 21 September 2020, the Respondent replied to the Claimant with the following
statement:
“(. . .) Following the unprecedented disruption caused by COVID-19 at all levels of football,
we have worked on how to fulfil the obligations to the club members.
The COVID-19 pandemic has clearly had a major impact on the revenues of the club, not
least since latches cannot be played. Football, like other sectors of the economy, has to find
fair and equitable solutions tailored to these circumstances, hopefully with a view of
protecting jobs and achieving a fair and reasonable balance of interest between players and
clubs.
The COVID-19 pandemic has clearly changed all factual circumstances around football for
this season. After consultation with different stakeholders, including representatives of club
management, players, and the Football Association of Georgia, we agreed on sum
restrictions of payments. For March, April and May we have paid half of the remuneration
to everyone. As for the remuneration of June, July and August, we will cover all that is left
($9000) with the salaries of September, October and November.
It should serve to bring a measure of stability and clarity to football for the foreseeable
future. We hope that this collaborative effort can provide example of how football can
come together and show unity, solidarity and a spirit compromise I order to face the
challenging times ahead. (. .. )”.
5.
On 12 November 2020, the Claimant put once again the Respondent in default, requesting
the payment of the outstanding remuneration amounting to USD 24,000 and granting the
latter further 15 days in order to comply with its financial obligations.
6.
On 12 December 2020, the player notified the club the termination of the employment
contract for outstanding salaries as per art. 14bis of FIFA RSTP.
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7.
On 15 January 2021, the Claimant signed a new employment contract with the Ukrainian
club LLC Sports Dnipro-1, to be valid until 31 December 2022.
II.
PROCEEDINGS BEFORE FIFA
8.
On 15 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
9.
According to the Claimant, the Respondent did not comply with several of its financial
obligations towards the player, failing to pay more than two monthly salaries and entitling
the latter to terminate the contract with just cause.
10.
In this context, the Claimant invoked the application of art. 14bis of FIFA Regulations on
the Status and Transfer of Players.
11.
Moreover, the Claimant accused the Respondent of having repeatedly acted in bad faith
postponing the payment of the due amounts, adopting specious grounds for the delay of
said payment and not respecting eventually, any of its promises.
12.
The requests for relief of the Claimant, were the following:
(Partial) outstanding salary for March 2020: USD 2,706.69 plus interest of 5% per
year from 1 April 2020 until the actual payment date
(Partial) outstanding salary for April 2020: USD 3,021.85 plus interest of 5% per
year from 1 May 2020 until the actual payment date
(Partial) outstanding salary for May 2020: USD 3,031.68 plus interest of 5% per year
from 1 June 2020 until the actual payment date
(Partial) outstanding salary for June 2020: USD 3,040.42 plus interest of 5% per
year from 1 July 2020 until the actual payment date
(Partial) outstanding salary for July 2020: USD 3,026.80 plus interest of 5% per year
from 1 August 2020 until the actual payment date
(Partial) outstanding salary for August 2020: USD 3,046.73 plus interest of 5% per
year from 1 September 2020 until the actual payment date
(Partial) outstanding salary for September 2020: USD 3,146.08 plus interest of 5%
per year from 1 October 2020 until the actual payment date
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(Partial) outstanding salary for October 2020: USD 2,999.28 plus interest of 5% per
year from 1 November 2020 until the actual payment date
(Partial) outstanding salary for November 2020: USD 6,000.00 plus interest of 5%
per year from 1 December 2020 until the actual payment date
Compensation for breach of contract: USD 72,000.00 as residual value of the
employment agreement as of the salary for December 2020 until the salary of
November 2021 (due date 1 December 2021)
Additional compensation for breach of contract due to overdue payables by the
club: USD 18,000.00.
5% p.a. interest over the total compensation as of 12 December 2020 (day of
termination) until effective date of payment.
b.
Position of the Respondent
13.
In its reply, the Respondent firstly addressed the lack of FIFA DRC’s competence over the
present matter.
14.
In particular, according to the Respondent, art. 8.2 of the employment contract would
clearly attribute competence over such matters to the Georgian Football Federation Dispute
Committee (GFF Dispute Committee or simply GFF DC).
15.
In this context, the Respondent is of the opinion that the abovementioned judicial body
shall be deemed to satisfy all the criteria set by the FIFA Regulations on the Status and
Transfer of Players (RSTP) as well as per FIFA Circular n.1010.
16.
In a subsidiary way, the Respondent argued that the Claimant should have first lodged a
claim for overdue payables, as per art. 12bis of FIFA RSTP and only after, as ultima ratio, he
would have been entitled to invoke art. 14bis of FIFA RSTP and unilaterally terminate the
employment contract with just cause.
17.
In this context, the Respondent is of the opinion that the Claimant’s perspective of joining
a new club (Dnipro-1) induced the latter to breach the contract with the Respondent in
order to sign a new employment contract on 15 January 2021.
18.
Therefore, the Respondent requested FIFA DRC to:
I.
Declare FIFA DRC lack of competence over the present dispute; or
II.
To reject the claim in its entirety.
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III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
19.
First of all, the DRC Judge (hereinafter also referred to as the Judge) analysed whether he
was competent to deal with the case at hand. In this respect, it took note that the present
matter was presented to FIFA on 15 December 2020 and submitted for decision on 2 June
2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the June 2020 edition of the Procedural Rules
is applicable to the matter at hand.
20.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the
Regulations on the Status and Transfer of Players (edition February 2021), the DRC Judge
is, in principle, competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Brazilian player and a Georgian
club.
21.
However the Judge acknowledged that the Respondent, in view of art. 8.2 of the
employment contract, contested the competence of FIFA’s deciding bodies as, according to
the Respondent, the present matter shall be adjudicated by the GFF Dispute Committee.
22.
For the sake of clarity, the text of said article is reported below:
“Any dispute which may arise between the employer and the employee pursuant to or in
connection with this contract shall be submitted for arbitration by GFF dispute committee
to the exclusion of an ordinary court of law, as provided for in GFF statute and finally by
the Sports Arbitrage of Lausanne (CAS).”
23.
With the aforementioned considerations in mind, and prior to entering into the analysis of
its competence, the DRC Judge wished to recall that in accordance with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, without prejudice to the right of any
player or club to seek redress before a civil court for employment-related disputes, 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.
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24.
With regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Judge referred to FIFA Circular no. 1010 dated 20
December 2005. In this regard, the Judge further referred to the principles contained in the
FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into
force on 1 January 2008.
25.
In this context, the DRC Judge wished to stress that the Respondent failed to submit any
regulations of the allegedly competent deciding bodies. In this respect, the DRC Judge
pointed out that the Respondent was unable to prove that, in fact, the Georgian deciding
bodies currently meet 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.
26.
In view of all the above, the DRC Judge established that the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected and that the DRC
Judge 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.
27.
Subsequently, the Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Player (edition February 2021),
and considering that the present claim was lodged on 15 December 2020, the October
2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b.
Burden of proof
28.
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
29.
In this respect, the Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining
to the application of the Regulations, any documentation or evidence generated or
contained in TMS.
c.
30.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the Judge entered into the merits of the dispute. In this respect, the Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
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considerations he 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
31.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the Respondent did not dispute the financial overdues
claimed by the Claimant.
32.
Conversely, the Judge observed that the Respondent merely argued that the unilateral
termination of the employment contract by the Claimant was not the appropriate action.
33.
In particular, according to the Respondent, the Claimant should have first exercised all the
remaining options in order to claim the relevant overdue payables and only once the
termination had become the only viable solution the latter would have been entitled to
invoke his just cause.
34.
In this respect, the Judge wishes to draw the Respondent’s attention to the wording and
content of art. 14 bis of FIFA RSTP, according to which:
“In the case of a club unlawfully failing to pay a player at least two monthly salaries on their
due dates, the player will be deemed to have a just cause to terminate his contract, provided
that he has put the debtor club in default in writing and has granted a deadline of at least
15 days for the debtor club to fully comply with its financial obligation(s). Alternative
provisions in contracts existing at the time of this provision coming into force may be
considered.”
35.
Taking the above into account, the DRC Judge remarked that the conduct of the Claimant
appears consistent with the standard interpretation of the above-mentioned provision as
well as with the well-established jurisprudence of the DRC Judge.
36.
In particular, the Judge noted that as the Respondent failed to pay the equivalent of more
than two-monthly salaries, the Claimant had certainly the right to put the club in default of
the aforementioned overdues and, eventually, to terminate the employment contract with
just cause.
ii. Consequences
37.
Having stated the above, prior to establishing the consequences of the termination of the
employment contract with just cause by the Claimant, the DRC Judge held that he had to
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address the issue of unpaid remuneration at the moment when the contract was terminated
by the Claimant.
38.
Considered that the sums claimed by the player were not disputed by the Respondent, and
in accordance with the general legal principle of pacta sunt servanda, the DRC Judge
established that the Claimant is entitled to USD 30,019.53, corresponding to a part of the
player’s salaries due starting from March 2020 to October 2020 as well as the full salary of
November 2020).
39.
Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC Judge
decided that the Claimant is entitled to receive compensation for breach of contract from
the Respondent.
40.
In continuation, the DRC Judge focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the Judge 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 Claimant 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.
41.
In application of the relevant provision, the DRC Judge held that he first of all had to clarify
as to whether the pertinent employment contract contains 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 Judge established
that no such compensation clause was included in the employment contract at the basis of
the matter at stake.
42.
As a consequence, the DRC Judge 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 Judge recalled that 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. In this regard, the DRC Judge
emphasised beforehand that each request for compensation for contractual breach has to
be assessed on a case-by-case basis taking into account all specific circumstances of the
respective matter.
43.
Bearing in mind the foregoing, the Judge proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from the date of
termination with just cause by the Claimant until its natural expiration. Furthermore, the
DRC Judge took into account the amount claimed by the player and consequently, the DRC
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Judge concluded that the amount of USD 72,000 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at hand.
44.
In continuation, the Judge verified as to 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 enabled to reduce his loss of income. According to the constant practice of the
DRC Judge, 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.
45.
In this respect, the DRC Judge noted that on 15 January 2021, the Claimant signed a new
employment contract with the Ukrainian club LLC Sports Dnipro-1, to be valid until 31
December 2022.
46.
Moreover, the Judge acknowledged that under said new contract, the player’s monthly
salary was fixed in the amount of 85,000 Hryvnias, corresponding to about USD 3,062.
47.
What is more, the Judge took note that with regard to the months of January 2021 and
February 2021, the player has been paid respectively 42,021 Hryvnias (approx. USD 1,514)
and 83,703.90 Hryvnias (approx. USD 3,016).
48.
Consequently, the DRC Judge assessed that the Claimant has mitigated his financial loss for
a total of USD 32,241, and decided that such amount shall be deducted from the residual
value of the contract terminated prematurely.
49.
Nevertheless, the DRC Judge observed that the unilateral termination of the employment
contract by the Claimant was ascribable to the presence of several overdue payables.
50.
Therefore, in line with art. 17.1.ii) of FIFA RSTP, the Claimant shall be entitled to an
additional compensation, amounting to the equivalent of three monthly salaries.
51.
In this respect, the DRC Judge recalled that the original monthly salary fixed under the
employment contract was USD 6,000, hence he decided to award the Claimant an
additional compensation of USD 18,000.
52.
On account of the above-mentioned considerations, the DRC Judge concluded that the
Respondent must pay the amount of USD 57,759 as compensation for breach of contract
to the Claimant, which is considered by the Judge to be a fair and reasonable amount.
53.
In addition, taking into consideration the player’s claim, the DRC Judge decided to award
the Claimant interest at the rate of 5% p.a. as requested, as of the respective due dates.
iii. Compliance with monetary decisions
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54.
Finally, the DRC Judge 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.
55.
In this regard, the DRC Judge 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 and for the
maximum duration of three entire and consecutive registration periods.
56.
Therefore, bearing in mind the above, the DRC Judge 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, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
57.
The Judge recalled that the above-mentioned bans 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.
58.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
d.
Costs
59.
The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the Judge decided that no
procedural costs were to be imposed on the parties.
60.
Likewise and for the sake of completeness, the Judge recalled the contents of art. 18 par.
4 of the Procedural Rules, and decided that no procedural compensation shall be awarded
in these proceedings.
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IV. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Vagner Goncalves Nogueira de Souza, is admissible
2.
The claim of the Claimant, is accepted.
3.
The Respondent, FC Dinamo Batumi, has to pay to the Claimant, the following amount:
USD 57,759.00 as compensation for breach of contract plus 5% interest per annum as of 12
December 2020
USD 30,019.53 as outstanding remuneration plus 5% interest per annum, broken down as
follows:
I.
5% p.a. over the amount of USD 2,706.69 as of 1 April 2020 until date of effective
payment;
II.
5% p.a. over the amount of USD 3,021.85 as of 1 May 2020 until date of effective
payment;
III.
5% p.a. over the amount of USD 3,031.68 as of 1 June 2020 until date of effective
payment
IV.
5% p.a. over the amount of USD 3,040.42 as of 1 July 2020 until date of effective
payment
V.
5% p.a. over the amount of USD 3,026.80 as of 1 August 2020 until date of
effective payment
VI.
5% p.a. over the amount of USD 3,046.73 as of 1 September 2020 until date of
effective payment
VII.
5% p.a. over the amount of USD 3,146.08 as of 1 October 2020 until date of
effective payment
VIII.
5% p.a. over the amount of USD 2,999.28 as of 1 November 2020 until 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.
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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.
8. This decision is rendered without costs.
For the DRC Judge:
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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