Dispute Resolution Chamber
Texto da decisão
REF 20-01542
Decision of the
Dispute Resolution Chamber (“DRC”) Judge
passed on 24 March 2021
regarding an employment-related dispute concerning the player Leonardo Incorvaia
BY:
Daan de Jong (Netherlands), DRC Judge
CLAIMANT:
Leonardo Incorvaia, Argentina
Represented by Stella Juncos
RESPONDENT:
Mons Calpe SC, Gibraltar
Represented by Jose A. Reygadas
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I.
FACTS OF THE CASE
1.
On 1 January 2019, the Argentinian player, Leonardo Incorvaia (hereinafter: Claimant), and
the Gibraltarian club, Mons Calpe SC (hereinafter: Respondent) signed an employment
contract valid as from date of signature until 31 May 2019 (hereinafter: the Contract).
2.
In accordance with clause 2 and exhibit B of the Contract, the Respondent undertook to
pay to the Claimant inter alia the monthly salary of EUR 500.
3.
By correspondence dated 26 August 2020, the Claimant put the Respondent in default of
payment of EUR 2,600 as outstanding salaries and EUR 559,75 as reimbursement of flight
tickets, setting deadline of 10 days in order to remedy the default, to no avail.
II.
PROCEEDINGS BEFORE FIFA
4.
On 20 October 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
5.
According to the Claimant, FIFA has jurisdiction to decide on the matter at stake and stated
that there is no body in the Gibraltarian Football Federation “that is either compliant with
the FIFA NDRC Regulations or with the FIFA circulars 1010 and 1129”.
6.
The Claimant submits that despite the Contract’s term, he was entitled to a monthly salary
of EUR 1,300 as agreed in the initial offer dated 28 December 2018 and, also, this salary
“is in line with the Gibraltarian standard minimum wage”.
7.
In the view of the Claimant, “as the Chamber will agree, it is clear the player would not
receive an offer of a salary of EUR 1300 and the agree on only EUR 500, only 3 days later”.
It is further submitted that this extreme is confirmed by “the subsequent payments that the
club made to the player which exceed by far the amount of EUR 500, as was agreed”.
8.
The Claimant stated that he has fulfilled its contractual obligations with the Club and “had
an impeccable behaviour as the Club’s employee”. However, the Respondent had
“inexplicably” failed to pay the sums due, in breach of employment contract.
9.
Further, via WhatsApp, the “Respondent acknowledges owing EUR 3000 to the player”,
that is to say, the salaries overdue and the return flight ticket home to Argentina.
10.
Therefore, in the view of the Claimant, the Respondent has no grounds on which to refuse
the payments agreed, which remain payable and interest continue to accrue thereon. In
this regard, the Claimant states that, in accordance with the constant FIFA and CAS
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jurisprudence, “the payment of salaries is the main obligation of a club vis-à-vis a player for
the work he performs as a football player”.
11.
The requests for relief of the Claimant, were the following:
-
b.
“The total amount of EUR 2,600 as outstanding salaries;
The amount of EUR 559,75 as a reimbursement of the flight ticket,
Interest on the sums due until the date on which the settlement sum is paid in full;
that sporting sanctions are imposed”.
Position of the Respondent
12.
According to the Respondent, the applicable law is “the Law of Gibraltar”. Furthermore,
he defended that “the Gibraltar Football Association competent body is the one that has
jurisdiction in case of any dispute arising from the contract”.
13.
Moreover, the Respondent argued that “the Gibraltar Football Association has a Dispute
Resolution Chamber constituted respecting all the parameters established by FIFA”.
14.
Notwithstanding the previous pleadings, the Respondent ad cautelam made the following
statements:
-
-
15.
The requests for relief of the Respondent, as amended, were the following:
-
III.
“To declare that FIFA has no jurisdiction in the case at stake;
In case FIFA considers that it has jurisdiction, to dismiss the claim and to declare that
the only sums owed by the Club to the Player are the ones recognized”.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
16.
“It is true the parties signed a contract on 1 January 2019”;
“It is false that the amount of the salary was EUR 1,300 per month. The contract is
clear and the Player signs it. The salary was EUR 500 per month. If the payments of
the club exceeded the sum of EUR 500 every month, this is because the Club helped
the Player with some expenses”
“It is true that the club owes the Player the sum of EUR 419.44 as a reimbursement
of his flight ticket. It is also true that it owes the Player two months of salary, but for
a total of EUR 1.000 (EUR 500 each month)”
Competence and applicable legal framework
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 23 October 2020 and
submitted for decision on 24 March 2021. Taking into account the wording of art. 21 of
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the February 2021 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.
17.
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. b) of the Regulations
on the Status and Transfer of Players (edition February 2021), he is in principle competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Argentinian player and a Gibraltarian club.
18.
However, the DRC Judge also acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on basis of the wording of the employment contract,
which supposedly contained a clear and exclusive jurisdiction clause in favour of the
Gibraltarian NDRC.
19.
At this point, the DRC Judge firstly wished to recall 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.
20.
To this extent, the DRC Judge went to analyse whether the employment contract at the
basis of the present case actually contained a clear and exclusive jurisdiction clause in favour
of the Gibraltarian NDRC. By doing so, the DRC Judge observed that there is no such clause
included in the aforementioned contract. On the contrary, the DRC Judge noted that the
employment contract presents a series of contradictory references to the competence of
ordinary courts and arbitration, such as clauses 6.1, 6.2 and 6.5.
21.
On the basis of said clauses coupled with the Respondent’s submission regarding the
competence of the Gibraltarian NDRC, the DRC Judge determined that it cannot be
established with sufficiently clarity which of the referred decision-making bodies, if any,
would be competent to hear the present dispute. Therefore, considering the absence of a
clear and unequivocal jurisdiction clause in compliance with the DRC well-established
jurisprudence, the DRC Judge decided to dismiss the arguments raised by the Respondent
in this regard.
22.
Finally, the DRC 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 23 October 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Merits of the dispute
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23.
His competence and the applicable regulations having been established, the DRC Judge
entered into the merits of the dispute. In this respect, the DRC 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
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
24.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the player filed the claim at hand requesting
outstanding remuneration.
25.
In this context, the DRC Judge acknowledged that the amounts claimed by the Claimant
does not have a clear contractual basis and, additionally, that the Respondent disputes the
amounts requested.
26.
However, the DRC Judge noted that the Claimant argues that, against the express wording
of the Contract, he was entitled to a monthly salary of EUR 1,300. In support of this
argument, the Claimant states that this is the amount agreed in the initial club’s offer and,
also, that this salary “is in line with the Gibraltarian standard minimum wage”, “it is clear
the player would not receive an offer of a salary of EUR 1,300 and the agree on only EUR
500, only 3 days later”- and that this extreme was confirmed by “the subsequent payments
that the club made to the player which exceed by far the amount of EUR 500, as was
agreed”.
27.
In light of the aforementioned, the DRC Judge aimed to ascertain whether the parties
agreed on a monthly salary of EUR 1,300, as stated by the Claimant; or EUR 500, as
specified in the Contract; in order to determine the amount due by the Respondent.
28.
In this respect, the DRC Judge referred himself to 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. Hence, after carefully reviewing the submissions of the parties,
the DRC Judge concluded that the Claimant had signed freely and unreservedly the
Contract (and its Exhibit B), which stated “the Player’s GROSS BASE salary shall be the
equivalent in (£) (GIBRALTAR POUNDS) to 500 EUROS (€) per calendar month for each
Season”. Moreover, the DRC Judge observed that the Claimant did not claim, let alone
prove, a situation of coercion, duress or fraud by the Respondent in this respect.
Furthermore, there is no indication on file that the Claimant was under any kind of pressure
when the parties signed the Contract. Consequently, the DRC Judge deemed that the
Claimant had agreed with the terms specified in the Contract and should endorse the legal
consequences arising thereby.
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29.
Hence, the DRC Judge decided on the basis of the principle pacta sund servanda that the
Respondent shall pay to the Claimant the outstanding remuneration at the moment of
termination, consisting of EUR 1,000 plus EUR 559,75, corresponding to the overdue salary
payments and the reimbursement of the flight ticket expenses, respectively.
30.
Considering the Claimant’s request and the constant practice of the Chamber, 5% interest per
annum shall apply over the amount of previous amounts as from its respective due dates until
the date of effective payment.
31.
Therefore, the DRC Judge concluded that the claim shall be partially accepted.
ii. Art. 12bis of the Regulations
32.
In continuation, the DRC Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
33.
To this end, the DRC Judge confirmed that the Claimant put the Respondent in default of
payment of the amounts sought, which had fallen due form more than 30 days, and
granted the Respondent with 10 days to cure such breach of contract.
34.
The DRC Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that the club is a repeat offender, the DRC Judge decided to impose a warning on
the Respondent in accordance with art. 12bis par. 4 lit. b) of the Regulations.
35.
In this connection, the DRC Judge wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to more severe penalty in accordance
with art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
36.
Finally, taking into account the consideration under numbers 40 and 44 above, 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.
37.
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.
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38.
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.
39.
The DRC 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.
40.
Lastly, the DRC Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
c.
Costs
41.
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.
42.
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.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER (“DRC”) JUDGE
1.
The claim of the Claimant, Leonardo Incorvaia, is partially accepted.
2.
The Respondent, Mons Calpe SC, has to pay to the Claimant, the following amount:
-
EUR 1,000 as outstanding remuneration as follows:
o
o
-
EUR 500 plus 5% interest p.a. as from 1 May 2019 until the date of effective payment;
EUR 500 plus 5% interest p.a. as from 1 June 2019 until the date of effective payment.
EUR 559,75 as a reimbursement of the flight ticket expenses as follows:
o
o
EUR 140,31 plus 5% interest p.a. as from 13 July 2019 until the date of effective
payment.
EUR 419,44 plus 5% interest p.a. as from 2 December 2019 until the date of effective
payment.
3.
A warning is imposed on the Respondent.
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 amount.
5.
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).
6.
This decision is rendered without costs.
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).
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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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