Labour Disputes
Texto da decisão
REF FPSD-2676
Decision of the
Dispute Resolution Chamber
passed on 14 October 2021
regarding an employment-related dispute concerning the player Benjamin
Kindsvater
BY:
Frans de Weger (Netherlands), Chairperson
Jose Luis Andrade (Portugal), member
Roy Vermeer (Netherlands), member
CLAIMANT / COUNTER-RESPONDENT:
Benjamin Kindsvater, Germany
Represented by Mr Peter Lukasek
RESPONDENT / COUNTER-CLAIMANT:
FC Nitra, Slovakia
Represented by Mr Tomas Gabris
INTERVENING PARTY:
Vfr Aalen, Germany
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REF FPSD-2676
I.
Facts of the case
1.
On 24 January 2021, the Claimant/Counter-Respondent and the Respondent/CounterClaimant concluded an employment contract (hereinafter: the contract), valid between 21
January 2021 and 30 June 2022, as well as an amendment to said contract (hereinafter: the
amendment), which amendment was dated 15 February 2021.
2.
Based on the contract and the amendment, the Claimant/Counter-Respondent was entitled
to a monthly salary of EUR 3,000 net, due on the 20th day of the following month.
3.
On 6 May 2021, the Claimant/Counter-Respondent put the Respondent/Counter-Claimant in
default for the salaries of February and March 2021, providing the Respondent/CounterClaimant a 15 days’ deadline to remedy its default, however to no avail, as the
Respondent/Counter-Claimant only made a partial payment of EUR 3,000 on 21 May 2021.
4.
On 22 May 2021, the Claimant/Counter-Respondent unilaterally terminated the contract with
the Respondent/Counter-Claimant, based on the outstanding salaries for the months of
February and March 2021.
5.
After having requested to provide an update about his contractual situation, the
Claimant/Counter-Respondent informed FIFA that on an unspecified date, he signed a new
contract with the German club VfR Aalen, valid for the period between 5 July 2021 and 30
June 2022, based on which the Claimant/Counter-Respondent was entitled to receive a
monthly salary of EUR 1,421.84 net. For the overlapping period, this amounts to EUR 17,062
net.
II. Proceedings before FIFA
6.
On 31 May 2021, the Claimant/Counter-Respondent 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 / Counter-Respondent
7.
In his claim, the Claimant/Counter-Respondent explains that the general manager of the
Respondent/Counter-Claimant refused to receive the termination in person, which was
however witnessed by 4 persons, 2 out of which confirming this on ‘the termination of
contract’.
8.
The Claimant/Counter-Respondent explains that he deems that he had terminated the
contract with just cause and that he therefore is entitled to outstanding remuneration and
compensation for breach of contract.
9.
The requests for relief of the Claimant/Counter-Respondent, as amended, were the following:
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Outstanding remuneration in the total amount of EUR 6,000, plus 5% interest p.a. as from
the 21st day of the next month, as follows:
• EUR 3,000 net as outstanding salary for March 2021;
• EUR 3,000 net as outstanding salary for April 2021.
Compensation for breach of contract in the total amount of EUR 24,937 as follows:
• EUR 42,000 as remaining value of the contract in the period between May 2021 and
June 2022.
• Minus EUR 17,062 net as value of the new contract signed with VfR Aalen.
Additional compensation based on art. 17 par. 2 ii) in the amount of EUR 9,000 as follows:
• 3 monthly salaries of EUR 3,000 each.
b. Position of the Respondent/Counter-Claimant and counterclaim
10. In its reply, the Respondent/Counter-Claimant explained that it duly paid the salary for the
month of February 2021.
11. As a result of the foregoing, the Respondent/Counter-Claimant is of the opinion that on 22
May 2021, the day the contract was terminated, there were not enough salaries outstanding
to justify the termination of the contract under art. 14bis of the FIFA Regulations.
12. The Respondent/Counter-Claimant is of the opinion that the Claimant/Counter-Respondent
had terminated the contract without just cause and that he is therefore liable to pay
compensation for breach of contract to the Respondent/Counter-Claimant, amounting to:
•
•
EUR 42,000 as residual value of the contract, minus the potentially outstanding
amount of EUR 6,000 as outstanding salaries for March (EUR 3,000) and April 2021
(EUR 3,000).
5% interest p.a. as from the date of notification of the decision.
c. Reply to the counterclaim by the Claimant/Counter-Respondent
13. In his reply to the counterclaim, the Claimant/Counter-Respondent argues that the fact that
the Respondent only made the full payment for the month of February 2021, could not avoid
that under art. 14bis, the Claimant/Counter-Respondent had a just cause to terminate the
contract with just cause on 22 May 2021. Under art. 14bis, the debtor should made the
payment of the overdue payment in full.
d. Reply to the counterclaim by the Claimant/Counter-Respondent
14. The Claimant/Counter-Respondent’s new club, VfR Aalen, failed to provide its position.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 31 May 2021 and submitted for decision
on 14 October 2021. Taking into account the wording of art. 34 of the October 2021 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.
16. 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 (August 2021 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 German player and
a Slovakian club, with the involvement of a German club.
17. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 31 May 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
18. 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
19. 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 considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
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i. Main legal discussion and considerations
20. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether or not the
Claimant/Counter-Respondent had unilaterally terminated the contract with the
Respondent/Counter-Claimant on 22 May 20201 with just cause.
21. In this context, the Chamber acknowledged that it its task was to determine whether the
salaries that were claimed by the Claimant/Counter-Respondent to be outstanding, were
sufficient to constitute a just cause to terminate the contract with the Respondent/CounterClaimant on 22 May 2021.
22. First of all, the members of the Chamber turned their attention to the contents of the contract
and concluded that the Claimant/Counter-Respondent is entitled to a monthly salary in the
amount of EUR 3,000.
23. What is more, after having analysed the facts and circumstances described in the case file, it
can be established that on the date of the termination of the contract, 22 May 2021, more
than two monthly salaries were outstanding and that – after having been put in default and
been granted a 15 days’ deadline to remedy its default – the Respondent/Counter-Claimant
failed to pay the complete outstanding amount to the Claimant/Counter-Respondent, by only
making a partial payment.
24. Recalling the provisions set out in art. 14bis par. 1 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), the Chamber concluded that the
Claimant/Counter-Respondent had just cause to unilaterally terminate the contract on 22
May 2021.
25. As a result, the Respondent/Counter-Claimant is to be held liable for the early termination of
the employment contract, and its counterclaim is to be rejected at this point in time.
Moreover, the Claimant/Counter-Respondent is entitled to outstanding remuneration and
compensation for breach of contract.
ii. Consequences
26. 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/Counter-Claimant.
27. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant/Counter-Respondent, are
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equivalent to two salaries of EUR 3,000 each under the contract, amounting to EUR 6,000 in
total.
28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent/Counter-Claimant is liable to pay to the
Claimant/Counter-Respondent the amounts which were outstanding under the contract at
the moment of the termination, i.e. EUR 6,000 (3 x USD 3,000).
29. In addition, taking into consideration the Claimant/Counter-Respondent’s request as well as
the constant practice of the Chamber in this regard, the latter decided to award the
Claimant/Counter-Respondent interest at the rate of 5% p.a. on the outstanding amounts as
from the respective due dates until the date of effective payment.
30. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant/Counter-Respondent by the Respondent/CounterClaimant 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, including in particular, the remuneration and other benefits due
to the player 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.
31. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to 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. 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.
32. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent/Counter-Claimant to the Claimant/CounterRespondent 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.
33. Bearing in mind the foregoing as well as the claim of the Claimant/Counter-Respondent, the
Chamber proceeded with the calculation of the monies payable to the Claimant/CounterRespondent under the terms of the contract from the date of its unilateral termination until
its end date. Consequently, the Chamber concluded that the amount of EUR 42,000 (i.e. the
residual value of the contract) serves as the basis for the determination of the amount of
compensation for breach of contract.
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34. In continuation, the Chamber verified as to whether the Claimant/Counter-Respondent 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 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.
35. Indeed, the Claimant/Counter-Respondent found employment with the German club VfR
Aalen. In accordance with the pertinent employment contract, the Claimant/CounterRespondent was entitled to approximately EUR 1,421 per month. Therefore, the Chamber
concluded that the Claimant/Counter-Respondent mitigated his damages in the total amount
of 17,062, that is, 12 times EUR 1,421.
36. 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/Counter-Claimant, and
therefore decided that the Claimant/Counter-Respondent shall receive additional
compensation.
37. In this respect, the DRC decided to award the amount of additional compensation of EUR
9,000, i.e. three times the monthly remuneration of the Claimant/Counter-Respondent.
38. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent/Counter-Claimant must pay
the amount of EUR 33,937 to the Claimant/Counter-Respondent (i.e. EUR 42,000 minus EUR
17,062 plus EUR 9,000), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
39. Lastly, taking into consideration the Claimant/Counter-Respondent’s request as well as the
constant practice of the Chamber in this regard, the latter decided to award the
Claimant/Counter-Respondent interest on said compensation at the rate of 5% p.a. as of 31
May 2021 until the date of effective payment.
iii. Compliance with monetary decisions
40. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
par. 1 and 2 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.
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41. In this regard, the DRC 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.
42. Therefore, bearing in mind the above, the DRC decided that the Respondent/CounterClaimant must pay the full amount due (including all applicable interest) to the
Claimant/Counter-Respondent within 45 days of notification of the decision, failing which, at
the request of the Claimant/Counter-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 immediately effective on the Respondent/Counter-Claimant
in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
43. The Respondent/Counter-Claimant shall make full payment (including all applicable interest)
to the bank account provided by the Claimant/Counter-Respondent in the Bank Account
Registration Form, which is attached to the present decision.
44. The DRC 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. 24bis par. 8 of
the Regulations.
d. Costs
45. 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.
46. 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.
47. 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/Counter-Respondent, Benjamin Kindsvater, is accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, FC Nitra, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, the
following amount:
- EUR 6,000 as outstanding remuneration plus 5% interest p.a. until the date of effective
payment as follows:
o on the amount of EUR 3,000 as from 21 April 2021;
o on the amount of EUR 3,000 as from 21 May 2021.
- EUR 33,937 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 31 May 2021 until the date of effective payment.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis 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/Counter-Claimant 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.
6. The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with art. 24bis par. 7 and 8and art. 24ter of the Regulations on
the Status and Transfer of Players.
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).
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