Labour Disputes
Texto da decisão
REF FPSD-6599
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player
Gheorghe Teodor Grozav
BY:
Dana Mohamed Al-Noaimi, Qatar
CLAIMANT:
Gheorghe Teodor Grozav, Romania
Represented by Marius Lazar
RESPONDENT:
Club MTK Budapest, Hungary
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I. Facts of the case
1.
On 3 June 2021, the Romanian player, Gheorghe Teodor Grozav (hereinafter: the
Claimant), and the Hungarian club, MTK Budapest (hereinafter: the Respondent) signed
an employment contract (hereinafter: the Contract) valid as from 15 June 2021 until 30
June 2023.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia a monthly salary of EUR 10,000, due by the 10th day of each
following month.
3.
Article IV par. 16 of the Contract stipulated that:
“16. The Parties agree that if the sport club drops out of the division where it participated
at the time of the contract conclusion, the personal basic salary of the Employee can be
reduced by the Employer with the percentage determined in the Personal Conditions - but
by maximum 50 % - with the condition that if the basic salary reduction exceeds 30% of
the original basic salary, the Employee may avail of the right of immediate termination of
the contract”.
4.
Furthermore, under Article XII of the Contract, the parties agreed upon the following:
“(…) In case the sports club drops out of the division where it participated at the time of
the contract, the Player (Employee) has the right to terminate the contract. In this case the
Employee has the right to receive all the due financial rights, including the ones that are
not due in terms of the date but all the other conditions are met (e.g. specific sign in
bonuses, goal bonuses, etc.)”.
5.
At the end of the season 2021/2022, namely on 15 May 2022, the Respondent was
relegated from the first Hungarian Football League.
6.
By means of letter dated 19 May 2022, the Respondent informed the Claimant of the
following:
“•The Club has dropped out of the first division;
•The Club will no longer be entitled to significant incomes and will reduce the basic salary
of the Player by 50%, in accordance with the standard clause of article IV.16 of the
Contract;
•Given the above facts the Player is entitled to terminate the Contract with immediate
effects within 30 days”.
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7.
On 6 June 2022, the Claimant replied to the Respondent, acknowledging the validity
of the contractual clause entitling the Claimant to terminate the Contract but
contextually objecting to the automatic 50% salary reduction.
8.
On 9 June 2022, the Respondent paid the Claimant the amount of HUF 3,134,488
(Hungarian Forint), corresponding to about EUR 7,907.
9.
On 23 June 2022, the Respondent paid HUF 281,914, corresponding to about EUR 704.
10. On 30 June 2022, at the moment of issuing the relevant International Transfer
Certificate (ITC) upon the Claimant’s transfer to another club, the Respondent
uploaded in the FIFA TMS a declaration of “contract end date” by means of which it
confirmed that the termination of the Contract was mutually agreed on 6 June 2022.
II. Proceedings before FIFA
11. On 4 July 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
12. In his claim, the Claimant acknowledged the validity of Art. XII of the Contract
regarding his right to terminate the Contract, and that he did so on 6 June 2022 as
acknowledged by the Respondent.
13. Conversely, the Claimant objected to the Respondent’s interpretation of Art. IV par.
16 according to which the latter would be automatically entitled to reduce to 50% all
the Claimant’s financial dues in case of relegation.
14. In particular, the Claimant held that, notwithstanding the abovementioned clause,
Art. XII of the Contract foresees that in case of termination of the Contract by the
Claimant “(…) the Employee has the right to receive all the due financial rights”, therefore
this specific clause shall apply to the current case because the Claimant decided to
terminate the Contract after receiving the letter from the Respondent on 19 May
2022.
15. Furthermore, according to the Claimant, even if the Respondent had such right to
unilaterally reduce the Claimant’ salary, this right would have started to operate as
from the season following the relegation, and not instantly from the moment of the
team’s relegation.
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16. In this context, the Claimant declared that at the moment of the termination, the
Respondent failed to pay part of the salary due for May 2022 and part of
remuneration due for the first 6 days of June 2022, for a total amount of EUR 3,055.66.
17. Accordingly, the Claimant requested to be awarded the sum of EUR 3,055.66 plus 5%
interest per annum running as from the relevant due dates.
b. Position of the Respondent
18. In its reply to the claim, the Respondent stated that the purpose of Art. IV par. 16 of
the Contract was to immediately mitigate the impact caused by the team’s relegation,
hence the reduction of the Claimant’ salary in accordance with the Contract would
naturally be triggered on an immediate basis.
19. Accordingly, the Respondent stated to have paid in full the Claimant’ salary of May
and the one pro-rata of June 2022 (i.e. 6 days).
20. For the sake of clarity, the scheme below reproduces the one adopted by the
Respondent.
Period
May (1-19 May
100%; 20-31 May
50%)
June (until 6 June)
No. of
working days
13+9/22
Due salary
(EUR)
7,954.55
3/21
7,142.29
Converted to HUF and paid as
per Sec. XII of the Contract
3134489
281914
Paid in total: 3,416,403
21. Accordingly, the Respondent requested to reject the claim in its entirety because all
the due amounts had been paid already before the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also
referred to as Single Judge analysed whether she was competent to deal with the case
at hand. In this respect, she took note that the present matter was presented to FIFA
on 4 July 2022 and submitted for decision on 31 August 2022. Taking into account the
wording of art. 34 of the June 2022 edition of the Procedural Rules Governing the
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Football Tribunal (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
23. Subsequently, the Single Judge 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 (July 2022 edition), she is competent
to deal with the matter at stake, which concerns an employment-related dispute with
an international dimension between a Romanian player and a Hungarian club.
24. Subsequently, the Single Judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, she 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 4 July 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
25. The Single Judge 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 Single
Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which
she may consider evidence not filed by the parties, including without limitation the
evidence generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
26. The competence and the applicable regulations having been established, the Single
Judge entered into the merits of the dispute. In this respect, the Single Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments, and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
27. The foregoing having been established, the Single Judge moved to the substance of
the matter, and took note of the fact that the parties strongly dispute the 50% salary
reduction operated by the Respondent.
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28. In particular, the Single Judge took note that the Respondent considered lawful the
reduction of the Claimant’s salary as from the date following the notification of
relegation to the Claimant on 19 May 2022, pursuant to Art. IV par.16 of the Contract.
29. In this context, the Single Judge observed that whereas from the Respondent’s point
of view said reduction would instantly and automatically apply in case of relegation of
the team, thus without being it subject to any further condition, conversely the
Claimant is of the opinion that Art XII of the Contract should prevail as lex specialis,
namely because the same Claimant had triggered its application in the moment in
which he had decided to terminate the Contract prematurely.
30. In view of the foregoing, the Single Judge deemed that it was necessary to first analyse
whether said reduction of the Claimant’s salary made by the Respondent was indeed
lawful or potestative. In this context, the Single Judge highlighted that, in general,
potestative clauses – i.e. clauses dependent on an event which can only be triggered
by one of the contractual parties and upon the latter’s wish – cannot be applied, as
they limit the rights of the contractual counterparty in an excessive manner and lead
to an unjustified disadvantage of the latter.
31. In casu the Single Judge was of the opinion that Art. IV par.16 of the contract is clearly
potestative as it unilaterally provides all the power to the club to decide upon a
considerable reduction of the player’s salary up to 50%.
32. Accordingly, the Single Judge concluded the Respondent unlawfully reduced the
Claimant’ salaries and that the latter was entitled to receive his remuneration in full
until the date of termination of the Contract, i.e. 6 June 2022.
33. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant
the amounts which were outstanding under the contract at the moment of the
termination, i.e. EUR 3,055.66 (i.e. outstanding part of the salary due for May 2022
and the salary of June 2022 pro-rata).
34. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the Single Judge decided to award the
Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the
relevant due dates until the date of effective payment.
ii. Compliance with monetary decisions
35. Finally, taking into account the applicable Regulations, the Single Judge referred to art.
24 par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent
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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.
36. In this regard, the Single 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. The overall maximum duration of the registration ban shall be of up to three
entire and consecutive registration periods.
37. Therefore, bearing in mind the above, the Single Judge decided that the Respondent
must pay the full amount due (including all applicable interest) to the Claimant within
45 days of notification of the decision, failing which, at the request of the Claimant, a
ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become
immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of
the Regulations.
38. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
39. The Single Judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with
art. 24 par. 8 of the Regulations.
d. Costs
40. The Single Judge 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.
41. Likewise and for the sake of completeness, the Single Judge recalled the contents of
art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation
shall be awarded in these proceedings.
42. Lastly, the Single Judge 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, Gheorghe Teodor Grozav, is accepted.
2.
The Respondent, MTK Budapest, has to pay to the Claimant, the following amount:
EUR 1,389.00 as outstanding remuneration plus 5% interest p.a. as from 11 June
2022 until the date of effective payment;
EUR 1,666.66 as outstanding remuneration plus 5% interest p.a. as from 11 July
2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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 the ban shall be of 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.
5. The consequences shall only be enforced at the request of the Claimant in
accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and
Transfer of Players.
6. 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).
CONTACT INFORMATION
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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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