Labour Disputes
Texto da decisão
REF FPSD-4207
Decision of the Single Judge of
the DRC
passed on 26 January 2022
regarding an employment-related dispute concerning the player Gramoz
Kurtaj
BY:
Iñigo Riestra (Mexico), Single Judge of the DRC
CLAIMANT:
Gramoz Kurtaj, Kosovo
RESPONDENT:
Thanh Hoa, Vietnam
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REF FPSD-4207
I.
Facts of the case
1.
On 26 January 2021, the player from Kosovo, Gramoz Kurtaj (hereinafter: the Claimant or
player), and the Vietnamese club, Thanh Hoa (hereinafter: the Respondent or club) signed an
employment contract (hereinafter: contract) as from the date of the signature until 30
September 2021.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
USD 7,500 as monthly salary due on the 20th day of the following month;
USD 55,000 as “contract fee” payable in two instalments, one at the start of the season
and the second one “after the end of phase 1 or no later than the start of phase 2 of
the season”.
3.
Furthermore, the contract establishes: “During the time when the club is not playing, Player
can only enjoy monthly salary equal to 50% of the salary specified in this article”.
4.
On 13 August 2021, the club held a meeting to discuss the adjustment of the monthly salaries
due to COVID-19, whereby the following conclusions were taken:
3-months off for the whole team and the team shall gather again on 11 October 2021;
The salaries shall be reduced to 35% of the current salaries, starting from August 2021.
5.
On 23 September 2021, the football competition 2021 in Vietnam was cancelled as of the
13th round.
6.
On 17 October 2021, the Claimant put the Respondent in default and requested payment of
USD 42,500, corresponding to his salaries of August and September 2021 as well as half of
the “contract fee” (USD 27,500), within 15 days.
II. Proceedings before FIFA
7.
On 5 November 2021, 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
8.
The Claimant requested payment of the following monies:
USD 15,000 as salaries for August and September 2021;
USD 27,500 as the second instalment of the “contract fee”.
The player requested interest of 5% p.a. as of the due dates.
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9.
In his claim, the player held that the club failed to remit the outstanding payments, even after
he put them in default.
b. Position of the Respondent
10. In its reply, the Respondent rejected the claim.
11. The Respondent held that it stopped “practicing” as from 1 August 2021 due to COVID-19
and that in accordance with the wording of the contract it had only to pay 50% of the player’s
salary for August and September 2021.
12. Moreover, the club maintained that the Claimant was present during the meeting on 13
August 2021 and therefore agreed to reduce his salary to 35% of his current salary. The
Respondent held that the Claimant did not have any objections at the time.
13. Regarding the “contract fee”, the club states that it was not obliged to pay the remaining
instalment after the competition was cancelled due to COVID-19.
14. Furthermore, the club held that the player violated its disciplinary rules back in March 2021,
but the club decided to “postpone the implementation of sanctions”.
15. Additionally, the club held that the player left the country on 7 September 2021 without its
consent.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single 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 June 2021 and
submitted for decision on 5 November 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.
17. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (August 2021 edition),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from Kosovo and a Vietnamese
club.
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18. Subsequently, the Single 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 Players (August 2021 edition), and
considering that the present claim was lodged on 5 November 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
19. 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 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
20. Its 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 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
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties dispute the payment of certain financial
obligations by the Respondent as per the contract.
22. In this context, the Single Judge acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
23. The Single Judge first 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.
24. The Single Judge equally took due note of the Respondent’s argumentation regarding the
effects of the COVID-19 pandemic.
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25. In this context, the Single Judge, first of all, wished to highlight that FIFA issued a set of
guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the
most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters.
26. As to the concept of a situation of force majeure, the Single Judge also noted that, based on
the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not
declare that the COVID-19 outbreak was a force majeure situation in any specific country or
territory, or that any specific employment or transfer agreement was impacted by the concept
of force majeure. In other words, in any given dispute, it is for a party invoking force majeure
to establish the existence of said event under the applicable law/rules as well as the
consequences that derive in connection thereto. The analysis of whether a situation of force
majeure existed has to be considered on a case-by-case basis, taking into account all the
relevant circumstances.
27. The Single Judge further noted that according to the club, the player agreed to a reduction
of his salary in connection with COVID-19. In this context, the Single Judge pointed out that
even though it appears that a meeting was held with members of the team to discuss such
reductions, the club failed to proof that the Claimant agreed or that he was indeed present
at such meeting.
28. In this regard, the Single Judge noted that the club failed to pay any salary during August and
September 2021. He pointed out that it therefore also failed to comply to pay 35% or 50%
of his salaries, as allegedly agreed.
29. Furthermore, the Single Judge maintained that the club further held that the “contract fee”
was not payable anymore, due to the cancellation of the competition, which was rejected by
the Single Judge.
30. Moreover, the Single Judge concluded that the alleged disciplinary violations are not
corroborated by evidence and according to the meeting minutes the team was given off
during September 2021. Therefore, he also rejected this argument of the club.
31. For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as the
FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific
country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from
paying a player’s salary.
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32. In this context, the Single Judge considered that the arguments raised by the Respondent
cannot be considered a valid reason for non-payment of the monies claimed by the Claimant,
in other words, the reasons brought forward by the Respondent in its defence do not exempt
the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
ii. Consequences
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 remained outstanding, i.e. USD 15,000, corresponding to the salaries of August and
September 2021, as well as USD 27,500, corresponding to the remaining part of the “contract
fee”.
34. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from the due dates until the date of effective
payment.
iii. 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 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.
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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.
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IV. Decision of the Single Judge of the DRC
1.
The claim of the Claimant, Gramoz Kurtaj, is accepted.
2.
The Respondent, Thanh Hoa, has to pay to the Claimant, the following amount(s):
- USD 7,500 as outstanding remuneration plus 5% interest p.a. as from 20 September 2021
until the date of effective payment;
- USD 35,000 as outstanding remuneration plus 5% interest p.a. as from 20 October 2021
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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
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 art. 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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