Dispute Resolution Chamber
Texto da decisão
REF 20-01824
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021,
regarding an employment-related dispute concerning the player Rene Roman Hinojo
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
Rene Roman Hinojo, Spain
Represented by Mr Mario Resino and Mr David Sanz García
RESPONDENT:
SC Dinamo 1948, Romania
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I. FACTS OF THE CASE
1.
On 13 September 2020, the Spanish player, René Roman Hinojo (hereinafter: the Claimant or
Player) and the Romanian club, SC Dinamo 1948 (hereinafter: the Respondent or Club) concluded
an employment agreement valid as of the date of signature until 30 June 2022 “or on the final
day of the 2021-2022 football season, if later than 30.06.2022.” (hereinafter: the Contract).
2.
According to art. 3.1 of the contract, the club undertook to pay the player a monthly salary of
EUR 25,000 net, “including the monthly instalment corresponding to September 2020, to be paid
on or before the last day of each corresponding month”.
3.
Pursuant to art. 3.2 of the contract, “The Club reserves the right to grant also other premiums in
money or other bonuses, subject to the Sportsman’s conduct and performance, which led to
achieving competitive performance for each season by the decision of the Board.”
4.
Art. 4.1 of the contract provided that “The sum calculated and owned to the Sportsman in
accordance with this contract will be paid for on a monthly basis by the Club, till no later than the
15 day of the month following the one wherefore payment is due.”
5.
Art. 9.3 of the contract, established that “(…) the disputes arising or in connection with this
employment contract will be submitted and settled, exclusively, by FIFA Judicial Bodies (…)”.
6.
On 18 November 2020, the Claimant put the Respondent in default and requested the payment
of EUR 50,000 within 15 days, amount corresponding to the monthly salaries of September and
October 2020, however to no avail.
7.
By means of a letter dated 4 December 2020, the player unilaterally terminated the employment
contract “for just cause and with immediate effects, in accordance with article 14BIS of FIFA
Regulations on the Status and Transfer of Players”.
8.
On 15 December 2020, the Claimant lodged a claim against the Respondent in front of FIFA,
claiming, inter alia, outstanding remuneration and compensation for breach of contract plus 5%
interest p.a. over the following amounts as from the due dates:
-
Outstanding remuneration in the amount of EUR 78,333.33 net, corresponding to the
following monthly salaries:
a. EUR 25,000 for September 2020;
b. EUR 25,000 for October 2020;
c. EUR 25,000 for November 2020;
d. EUR 3,333.33 for the first 4 days of December 2020.
-
Compensation for breach of contract without just cause by the club in the amount of EUR
471,666.66 net, detailed as follows:
e. EUR 21,666.666, corresponding to the remaining salary of December 2020 (26 days);
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f. EUR 450,000, residual value of the contract, as of January 2021 until June 2022.
9.
Additional compensation in the amount of EUR 75,000 net (3 monthly salaries).
Despite having invited to do so, the Respondent did not provide an answer to the claim of the
Claimant.
10. The player informed FIFA that on 28 January 2021, he concluded an employment contract with
the Spanish club, Atlético Baleares, S.A.D., valid as from the date of signature until the last official
match of the season 2020/2021, according to which the club undertook to pay the player a
monthly salary of EUR 4,000 gross.
II. CONSIDERATIONS OF THE DRC
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, the Chamber took note
that the present matter was submitted to FIFA on 15 December 2020. Consequently, the DRC
concluded that the June 2020 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable
to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition February 2021), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Player (edition 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.
4.
The DRC 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 stressed the wording of art. 12 par. 4 of
the Procedural Rules, pursuant to which she may consider evidence not filed by the parties.
5.
In this respect, the DRC 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.
6.
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
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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.
7.
First of all, the members of the Chamber recalled that the parties concluded a contract, valid as
of 13 September 2020 until 30 June 2022, according to which the Respondent undertook to pay
the Claimant a monthly salary of EUR 25,000.
8.
In continuation, the DRC noted that the Claimant lodged a claim against the Respondent
maintaining that he had terminated the contract with just cause on 4 December 2020 since the
club failed to remit remuneration corresponding to 3 monthly salaries. Consequently, the Claimant
asks to be awarded his outstanding dues as well as the payment of compensation for breach of
the employment contract.
9.
Having recalled the above, the DRC took note that despite having been invited to do so, the
Respondent, for its part, failed to present its response to the claim of the Claimant. By not
presenting its position to the claim, the DRC was of the opinion that the Respondent renounced
its right of defence and, thus, accepted the allegations of the Claimant.
10. Furthermore, as a consequence of the aforementioned consideration, the DRC concurred that in
accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the
documentation already on file, in other words, upon the statements and documents presented by
the Claimant.
11. Having said this, the DRC acknowledged that the central issue in the matter at stake was to
determine as to whether the contract was terminated by the Claimant with or without just cause
and to decide on the consequences thereof.
12. The Chamber observed that, in particular, in his default notice of 18 November 2020, the player
requested the payment of his outstanding remuneration corresponding to 2 monthly salaries, i.e.
September and October 2020, within the next 15 days.
13. The DRC further recalled that the player, having the club failed to pay the salaries mentioned in
his default notice of 18 November 2020, decided to terminate the contract on 4 December 2020.
14. Consequently, considering that the Respondent had been in breach of its contractual obligations
towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally
terminate the employment contract on 4 December 2020 in accordance with art. 14bis of the
Regulations and that, as a result, the Respondent is to be held liable for the early termination of
the employment contact with just cause by the Claimant.
15. Subsequently, prior to establishing the consequences of the termination of the employment
contract with just cause by the Claimant in accordance with art. 17 par. 1 of the Regulations, the
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Chamber held that it, in general, had to address the issue of unpaid remuneration at the moment
when the contract was terminated by the Claimant.
16. Bearing in mind the considerations above, and in accordance with the general legal principle of
pacta sunt servanda, the Chamber established that the Claimant is entitled to EUR 75,000
corresponding to salaries between September until November 2020.
17. In addition, taking into consideration the player’s claim, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. as of the respective due dates.
18. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant is entitled to receive compensation for breach of contract from the Respondent.
19. In continuation, the Chamber focused 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 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.
20. 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 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 Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
21. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber 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 Dispute Resolution Chamber
emphasised beforehand that each request for compensation for contractual breach has to be
assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of
the respective matter.
22. The members of the Chamber then turned their attention to the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract, if any, in the calculation of the
amount of compensation.
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23. Bearing in mind the foregoing, the Chamber 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, bearing in mind that he would have received
in total EUR 475,000 for the period as from December 2020 until 30 June 2022. Consequently,
the Chamber concluded that the amount of EUR 475,000 serve as the basis for the final
determination of the amount of compensation for breach of contract in the case at hand.
24. In continuation, the Chamber 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, 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.
25. In this respect, the Chamber noted that on 28 January 2021, the player concluded a new
employment contract with, Atlético Baleares, S.A.D., valid as from the date of signature until the
last official match of the season 2020/2021, as a consequence of which he was able to mitigate
his damages in the amount of EUR 20,000.
26. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an additional compensation of three monthly salaries,
subject to the early termination of the contract being due to overdue payables. In case of
egregious circumstances, the additional compensation may be increased up to a maximum of six
monthly salaries, whereby the overall compensation may never exceed the rest value of the
prematurely terminated contract.
27. Consequently, on account of the above-mentioned considerations, the Chamber decided that the
Respondent must pay the amount of EUR 475,000 as compensation for breach of contract to the
Claimant, amount corresponding to the rest value of the prematurely terminated contract.
28. In addition, taking into consideration the player’s claim, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. as of the date of the claim, i.e. 15 December 2020, until
the date of effective payment.
29. The DRC concluded its deliberations by rejecting any further claim of the Claimant.
30. Furthermore, taking into account the consideration under number II./3. above, the Chamber
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision,
the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of
the concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
31. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the Respondent. More in particular, the DRC pointed out
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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.
32. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amount due to the Claimant within 45 days as from the moment in which the
Claimant, following the notification of the present decision, communicates the relevant bank
details to the Respondent, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
33. 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.
34. Finally, the Chamber 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 Chamber decided that no procedural costs were to
be imposed on the parties.
35. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of
the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Rene Roman Hinojo, is partially accepted.
2.
The Respondent, SC Dinamo 1948, has to pay to the Claimant, the following amounts:
- EUR 75,000 as outstanding remuneration plus 5% interest p.a. calculated as follows:
Over the amount of EUR 25,000 as from 1 October 2020 until the date of effective
payment;
Over the amount of EUR 25,000 as from 1 November 2020 until the date of effective
payment;
Over the amount of EUR 25,000 as from 1 December 2020 until the date of effective
payment.
- EUR 475,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 15 December 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
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4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amounts.
5.
The Respondent shall provide evidence of payment of the due amounts in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amounts due, plus interest as established above are 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 amounts are 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 amounts are paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amounts as per in this decision are still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
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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