Labour Disputes
Texto da decisão
REF FPSD-6035
Decision of the
Dispute Resolution Chamber
passed on 4 August 2022
regarding an employment-related dispute concerning the player Ismaël
Kanda
BY:
Omar Ongaro (Italy), Deputy Chairperson
Laurel Vaurasi (Fiji), member
Khadija Timera (Senegal), member
CLAIMANT:
Ismaël Kanda, France
Represented by Ms Laura Grange, UNFP
RESPONDENT:
CS Gaz Metan Mediaș, Romania
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REF FPSD-6035
I. Facts of the case
1.
On 1 February 2021, the French player, Ismaël Kanda (hereinafter: the Claimant), and the
Romanian club, CS Gaz Metan Mediaș (hereinafter: the Respondent) signed an
employment contract (hereinafter: the Contract) valid as from the date of signature until
30 June 2024.
2.
In accordance with Article IV.a of the Contract, the Respondent undertook to pay the
Claimant as follows:
-
Net monthly salary of EUR 1,500 between 1 February 2021 and 30 June 2021;
Net monthly salary of EUR 3,000 between 1 July 2021 and 30 June 2022;
Net monthly salary of EUR 4,000 between 1 July 2022 and 30 June 2023;
Net monthly salary of EUR 5,000 between 1 July 2023 and 30 June 2024.
3.
In accordance with the same provision, these salaries are payable by the 20 th day of the
following respective month.
4.
Furthermore, in accordance with Article IV.b of the Contract, the Respondent undertook
to pay the Claimant bonus payments as follows:
-
-
EUR 300 net for every point gained by the Respondent in an official game, provided
that the Claimant plays in that game – this amount shall be reduced to 50% if the
team fails to qualify for the “play-off” stage of the competition;
EUR 100 for every game with a “positive result” in which the Claimant has played and
the team has not conceded a goal;
EUR 100 for every game with a “positive result” in which the Claimant has played and
the team has scored a goal.
5.
Additionally, in accordance with Article IV.c of the Contract, the Respondent undertook to
pay the Claimant a monthly accommodation indemnity of EUR 200, as well as two return
flight tickets between Romania and France per season.
6.
By correspondence dated 21 April 2022, the Claimant put the Respondent in default of
payment of EUR 17,701.74, corresponding to a pro-rata amount exceeding five monthly
salaries, setting a time limit expiring on 1 May 2022 in order to remedy the default.
7.
By correspondence dated 2 May 2022, the Claimant put the Respondent in default of
payment for a second time, for the outstanding amount of EUR 20,901.74, corresponding
to the pro rata amount of 6 monthly salaries, setting a time limit expiring on 7 May 2022
in order to remedy the default.
8.
By correspondence dated 11 May 2022, the Claimant terminated the Contract unilaterally.
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9.
On 5 July 2022, the Claimant and the Portuguese club, Vitoria Setubal (hereinafter: the
New Club) signed an employment contract (hereinafter: the New Contract) valid as from
1 July 2022 until 30 June 2024.
10. In accordance with the New Contract, the New Club undertook to pay the Claimant a total
remuneration of EUR 40,000 for the duration of the New Contract.
II. Proceedings before FIFA
11. On 13 May 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. According to the Claimant, the Respondent defaulted on several monthly remuneration
payments, at the time of termination in a pro-rata amount exceeding 6 months.
13. At the time the Claimant terminated the Contract, he had put the Respondent in default
of the relevant amounts twice, granting a 10-day and 5-day deadline each time
respectively. The Claimant therefore argues that he had just cause to terminate the
Contract in line with art. 14bis of the Regulations on the Status and Transfer of Players.
14. The Claimant requested outstanding remuneration in the amount of EUR 20,601.74,
corresponding to the pro-rata value of the monthly salaries owed between October 2021
and May 2022, plus EUR 1,473.33, corresponding to the accommodation indemnity for
the same period, plus bonus payments in the amount of EUR 350 in line with Article IV.b
of the Contract, giving rise to a total amount of EUR 22,425.07.
15. Furthermore, the Claimant requested interest at 5% p.a. as from the respective due dates
of the outstanding instalments until the date of effective payment.
16. The Claimant also requested compensation due to breach of contract in the amount of
EUR 118,026.67, corresponding to the residual value of the Contract as from the date of
termination, plus six return tickets from Romania to France, the value of which the
Claimant requested to be calculated by FIFA Travel.
17. Furthermore, the Claimant requested interest at 5% p.a. on any compensation payable as
from 11 May 2022 until the date of effective payment.
b. Position of the Respondent
18. Despite being invited to do so, the Respondent failed to provide its position to the claim
lodged by the Claimant.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 presented to FIFA on 13 May 2022 and submitted
for decision on 4 August 2022. Taking into account the wording of art. 34 of the July 2022
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
20. Subsequently, the members of the Chamber 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), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
French player and a Romanian club.
21. Subsequently, 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 Players (July 2022 edition),
and considering that the present claim was lodged on 13 May 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
22. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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
23. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
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considerations it 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
24. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the justice of the early termination of the Contract
effected by the Claimant was in dispute, based on the alleged non-payment of certain
financial obligations by the Respondent as per the Contract, in accordance with art. 14bis
of the Regulations.
25. In this context, the Chamber acknowledged that it its task was to determine, based on the
evidence presented by the Claimant – in the absence of a submission by the Respondent
– whether the claimed amounts had in fact remained unpaid by the latter and, if so,
whether the formal pre-requisites of art. 14bis of the Regulations had been fulfilled.
26. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails 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).
27. The Chamber noted that the Claimant claimed not having received large parts of his
remuneration corresponding to the period between October 2021 and May 2022, in the
total amount of EUR 20,601.74, or more than six monthly salary instalments, as well as
the accommodation allowance for the same period in the amount of EUR 1,473.33 and
bonus payments under the Contract in the amount of EUR 350, giving rise to a total
amount of EUR 22,425.07. Furthermore, the Chamber noted that the Claimant has
provided written evidence of having put the Respondent in default on 21 April 2022 and
2 May 2022 respectively, i.e., providing a combined deadline of at least 15 days before
unilaterally terminating the Contract.
28. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the Contract concluded
between the parties. Nonetheless, the Respondent failed to provide any evidence in order
to prove the payment of the amounts claimed as outstanding by the Claimant.
29. Thus, the Chamber concluded that the Claimant had just cause to unilaterally terminate
the Contract, based on art. 14bis of the Regulations.
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ii. Consequences
30. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
31. The Chamber observed that the Claimant was owed a pro-rata amount of EUR 1,501.74
for the month of October 2021, the entire salaries between November 2021 and
April 2022 in the amount of EUR 18,000 (i.e., 6 times EUR 3,000), the accommodation
allowance between October 2021 and April 2022 in the amount of EUR 1,400 (i.e., 7 times
EUR 200), and bonus payments in the amount of EUR 350. Furthermore, as the salary and
accommodation allowance for May 2022 had not fallen due at the time of termination yet,
the Chamber considered that these amounts should not be considered as outstanding
amounts, and should instead be included in the calculation of the compensation due to
the Claimant as a result of the unlawful breach of contract by the Respondent.
32. As a consequence, and in accordance with the legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay the Claimant the amounts which
were outstanding at the time of termination, i.e., EUR 21,251.74 (i.e., EUR 1,501.74 plus
EUR 18,000 plus EUR 1,400 plus EUR 350).
33. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
on the outstanding amounts as follows:
-
5% p.a. on the amount of EUR 1,701.74 as from 21 November 2021;
5% p.a. on the amount of EUR 3,200 as from 21 December 2021;
5% p.a. on the amount of EUR 3,200 as from 21 January 2022;
5% p.a. on the amount of EUR 3,200 as from 21 February 2022;
5% p.a. on the amount of EUR 350 as from 1 March 2022;
5% p.a. on the amount of EUR 3,200 as from 21 March 2022;
5% p.a. on the amount of EUR 3,200 as from 21 April 2022;
5% p.a. on the amount of EUR 3,200 as from 21 May 2022.
34. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, 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,
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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.
35. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained 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.
36. 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.
37. As a consequence, 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.
38. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the terms of
the Contract until its term. From the time of termination until the term of the Contract,
the Claimant would have been entitled to the following amounts:
-
EUR 3,000 corresponding to the salary for May 2022;
EUR 200 corresponding to accommodation allowance for May 2022;
EUR 3,000 corresponding to the salary for June 2022;
EUR 200 corresponding to accommodation allowance for June 2022;
EUR 48,000 corresponding to the salary for the 2022-2023 season;
EUR 2,400 corresponding to accommodation allowance for the 2022-2023 season;
EUR 60,000 corresponding to the salary for the 2023-2024 season;
EUR 2,400 corresponding to accommodation allowance for the 2023-2024 season.
39. Consequently, the Chamber concluded that the amount of EUR 119,200 serves as the
basis for the determination of the amount of compensation for breach of contract.
40. In continuation, the Chamber verified 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
Chamber as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
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41. Indeed, the Claimant found new employment with the New Club. In accordance with the
New Contract, the Claimant was entitled to a total remuneration of EUR 40,000 for the
duration of the New Contract. Given that the New Contract entirely overlapped in term
with the Contract between the Claimant and the Respondent, the Chamber concluded
that the Claimant mitigated his damages in the amount corresponding to the total value
of the New Contract, i.e., EUR 40,000.
42. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation, should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason, i.e. overdue payables by the Respondent, and
therefore decided that the Claimant shall receive additional compensation.
43. In this respect, the Chamber decided to award the amount of additional compensation of
EUR 9,000, i.e., 3 times EUR 3,000 which corresponds to the monthly remuneration of the
Claimant at the time the Contract was terminated and the present claim was lodged.
44. In addition thereto, the Chamber took note of the Claimant’s request to receive one flight
ticket from Romania to France to be calculated by FIFA Travel. In this respect, the Chamber
established that, based on the fact that the Claimant has not substantiated in its claim
whether or not any of the flight tickets claimed have been used, in line with its
longstanding jurisprudence, the Chamber decided to award one flight ticket in the
amount of EUR 340, as calculated by FIFA Travel, corresponding to the Claimant’s return
flight home following the early termination of the Contract.
45. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of
the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract.
46. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent must pay the amount of
EUR 88,540 to the Claimant (i.e. EUR 119,200 minus EUR 40,000 plus EUR 9,000 plus
EUR 340), which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
47. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as from 13 May 2022, i.e., the date the present claim
was lodged, until the date of effective payment.
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iii. Consequences of art. 17 par. 4 of the Regulations
48. In continuation, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, it addressed the question of sporting sanctions
against the Respondent in accordance with art. 17 par. 4 of the Regulations. The cited
provision stipulates that, in addition to the obligation to pay compensation, sporting
sanctions shall be imposed on any club found to be in breach of contract during the
protected period.
49. In this respect, the Chamber referred to item 7 of the “Definitions” section of the
Regulations, which stipulates inter alia that the protected period shall last “for three entire
seasons or three years, whichever comes first, following the entry into force of a contract,
where such contract is concluded prior to the 28th birthday of the professional, or two entire
seasons or two years, whichever comes first, following the entry into force of a contract, where
such contract is concluded after the 28th birthday of the professional”.
50. In this respect, the Chamber took note that the Claimant was born on 8 November 2000
and the Contract with the Respondent was concluded on 1 February 2021. Furthermore,
the Chamber noted that the Claimant terminated the Contract with just cause on
11 May 2022. The breach of contract by the Respondent had, therefore, occurred within
the protected period.
51. Furthermore, the Chamber noted that the Respondent had already been held liable of
breach other players’ contracts without just cause on several occasions, in particular in
the cases with reference FPSD-4543, FPSD-4934 and FPSD-5778.
52. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations,
the Respondent shall be sanctioned with a ban from registering any new players, either
nationally or internationally, for two entire and consecutive registration periods.
53. Finally, and given that sporting sanctions have been imposed on the Respondent, the
Chamber concluded that art. 24 par. 3 lit. a) of the Regulations shall not apply in this case.
d. Costs
54. The Chamber 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.
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55. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
56. Lastly, the DRC 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, Ismaël Kanda, is partially accepted.
2.
The Respondent, CS Gaz Metan Mediaș, has to pay to the Claimant, the following
amount(s):
- EUR 1,701.74 as outstanding remuneration plus interest of 5% p.a. as from
21 November 2021 until the date of effective payment;
- EUR 3,200 as outstanding remuneration plus interest of 5% p.a. as from
21 December 2021 until the date of effective payment;
- EUR 3,200 as outstanding remuneration plus interest of 5% p.a. as from
21 January 2022 until the date of effective payment;
- EUR 3,200 as outstanding remuneration plus interest of 5% p.a. as from
21 February 2022 until the date of effective payment;
- EUR 350 as outstanding remuneration plus interest of 5% p.a. as from
1 March 2022 until the date of effective payment;
- EUR 3,200 as outstanding remuneration plus interest of 5% p.a. as from
21 March 2022 until the date of effective payment;
- EUR 3,200 as outstanding remuneration plus interest of 5% p.a. as from
21 April 2022 until the date of effective payment;
- EUR 3,200 as outstanding remuneration plus interest of 5% p.a. as from
21 May 2022 until the date of effective payment;
- EUR 88,540 as compensation for breach of contract without just cause plus interest of
5% p.a. as from 13 May 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form within 30 days of notification
of this decision.
5.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
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6.
The Respondent, CS Gaz Metan Mediaș, shall be banned from registering any new players,
either nationally or internationally, for the next two entire and consecutive registration
periods following the notification of the present decision.
7. 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
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