Labour Disputes
Texto da decisão
REF FPSD-3535
Decision of the
Dispute Resolution Chamber
passed on 9 December 2021
regarding an employment-related dispute concerning the player Marcos Lavín Rodríguez
BY:
Omar ONGARO (Italy), Deputy Chairperson
Mario FLORES CHEMOR (Mexico), member
Khadija TIMERA (Senegal), member
CLAIMANT:
Marcos Lavín Rodríguez, Spain
RESPONDENT:
FC Voluntari, Romania
Represented by Josep F. Vandellos Alamilla
REF FPSD-3535
I. Facts
1. On 3 September 2020, Marcos Lavín Rodríguez and FC Voluntari concluded an employment
contract valid as from the date of signature until 30 June 2022.
2. The contract stipulated the following conditions:
“1. The club undertakes to pay the player for the period 03.09.2020- 30.09.2020 the net amount
of 13.000 Euros which will be paid as follows:
- 6.500 Euro net until 10.09.2020;
- 6.500 Euro until the 20th of the following month for the previous month.
1.1.The club undertakes to pay the player for the period 01.10.2020- 30.06.2021 the net amount
of 6.500 Euro / month on the 20th of the following month for the previous month.
2. The club undertakes to pay the player for the period 01.07.2021- 30.06.2022 the net amount
of 7.000 Euro / month on the 20th of the following month for the previous month.”
(…)
4.6. The club undertakes to pay the player the net amount of 200 Euro / official match played
League 1 (match played is considered at least 45 minutes I official match League 1) on the 20th of
the following month for the previous month.
4. 7. The club undertakes to pay the player the net amount of 250 Euro / official match played
Liga 1 and the team wins, on the 20th of the following month for the previous month.
(…)
6. The payment of the amount will be made in Lei, respectively of 4.7 / Euro.
7. The club undertakes to pay the player two round trip plane tickets Romania-Spain”
3. According to the player, on 19 July 2021, the club demoted him to the second team.
4. On 30 July 2021, the player, via his representative, sent the following correspondence to the club:
“Due to the debts maintained by your Club, the financial situation of Mr.Marcos Lavín Rodríguez
is totally grievous and nowadays (July 30, 2021) the current outstanding salary not paid by FC
VOLUNTARI on a timely manner amounts 15.262,43 EUR net, equivalent to:
- The monthly instalments of his regular salary of May 2021 (6.500 EUR net) and June 2021
(6.500 EUR net) = 13.000 EUR net.
- Bonus related to played matches (under clause 4.6 of the referred contract) = 1.400 EUR net (7
matches x 200 EUR net).
- Two round plane tickets (under clause 7 of the referred contract) = 862, 43 EUR net.
(…)
Taking into account the exposed scenario, we hereby require FC VOLUNTARI to urgently fulfill the
debt with our affiliate (15.262, 43 EUR net) and their obligations, letting his comeback to the
regular development of trainings with the first team of your Club. Please note that should your
Club not comply with the above-mentioned request within the deadline of 15 days, the player
reserves his right to terminate the contract due to a justified cause in accordance with the FIFA
RSTP and its article 14 and 14bis.”
5. On 6 August 2021, and as acknowledged by both parties, the club paid EUR 6,638 to the player.
6. On 21 August 2021, the player, via his legal representative, sent a termination notice to the club
and to the Romanian Football Federation and expressed the following:
“The player gave you a 15 days deadline and informed you and the Federation that in case of
non-compliance the total outstanding debt at that date (15.262,43 EUR net), he reserved his right
REF FPSD-3535
to terminate the contract due to a justified cause in accordance with the FIFA RSTP - article 14 and
14bis-.
(…)
That is why, given the repeated, persistent and erratic behavior of your Club, who after having
been equested has not remedied the referred outstanding debt, the player has no choice but to
send this document through which he terminates his contract with FC VOLUNTARI with just
cause, according to article 14 and 14bis of FIFA RSTP.”
7. On 1 September 2021, the club, via its legal representative, replied as follows:
“we wish to indicate that as on 30 July 2021 when the first notice was sent the Club was only
short of EUR 5500 (five thousand five hundred euros) in salary which is less than two monthly
salaries. Thereafter, on 5 August 2021 the Club paid the Player an amount of EUR 6638 (…)
thereby fulfilling its obligations.
Secondly, on 21 August 2021 i.e. the date of termination only the salary for the month of July
2021 was due and which had only become due one day prior i.e. on 20 August 2021. Hence, the
Player must have misinformed you or failed to inform you of the relevant facts correctly.
Thus, we understand that the termination by the Player is against the FIFA Regulations and
therefore without just cause. Nevertheless, as a sign of good faith the Club gives the Player a
deadline of forty-eight (48) hours to report back to the Club and resume training
8. The player remained unemployed following the termination of the contract.
9. On 3 September 2021, Marcos Lavín Rodríguez lodged a claim before FIFA for breach of contract
without just cause and requested the payment of the following;
- EUR 20,504.37 net as outstanding remuneration, plus 5% interest p.a. as from 21 August 2021
detailed as follows;
- EUR 18,241.94 net for the monthly salaries of June 2021 (6,500 EUR net) and July 2021 (7,000
EUR net), as well as the 21 days worked in August 2021 (4,741.94 EUR net)
- Bonus related to matches played (under clause 4.6 of the contract) = 1.400 EUR net (7 matches x
200 EUR net), in relation to the following matches:
20/11/20 vs Dinamo
13/12/20 vs Hermannstadt
19/01/21 vs UTA Arad
22/01/21 vs FCSB
26/01/21 vs Univ. Craiova
30/01/21 vs Sepsi OSK
03/02/21 vs Astra Giurgiu
- Two round-trip air tickets Romania-Spain (clause 7 of the contract) = 862, 43 EUR net (copy of
invoices enclosed)
- EUR 76,532.62 net plus 5% interest p.a. as from 21 August 2021 as compensation for breach of
contract without just cause, corresponding to the residual value of the contract.
10. According to the player, the fact that the club paid the amount due on 30 July 2021 on 5 August
2021 does not imply that the Club has fulfilled its obligations, and therefore article 14bis RSTP is
applicable. The player referred in this regard to the matter 20-00783 (decision on file).
11. In its reply to the claim, the Respondent lodged a counterclaim.
12. The Respondent considered that the player terminated the contract without just cause.
REF FPSD-3535
13. The club explained that, for September 2020, the player was entitled to 2 instalments of EUR 6,500
in order to pay EUR 6,500 net to his agent.
14. In relation to the default notice on 30 July 2021, the Respondent argued that said notice was
incorrect insofar at that time two monthly salaries were not pending and only less than one monthly
salary was pending to be paid to the Player.
15. The Respondent insisted that, nevertheless, after receiving the notice of default, on 5 August
2021, the Club made a payment of EUR 6.638 NET.
16. In this respect, the Respondent explained that it paid the player as follows:
Payment made according to
the Contract in LEI
Payment made according to the Contract in
Euro
Date of
Payment
(DD/MM/YYYY)
1.575,00 RON
30.550,00 RON
1.160,00 RON
30.550,00 RON
30.550,00 RON
30.550,00 RON
1.680,00 RON
1.920,00 RON
15.275,00 RON
3.760,00 RON
1.680,00 RON
1.680,00 RON
15.275,00 RON
31.200,00 RON
31.200,00 RON
1.200,00 RON
2.160,00 RON
14.100,00 RON
3.000,00 RON
62.400,00 RON
31.200,00 RON
335,11 €
6.500,00 €
246,81 €
6.500,00 €
6.500,00 €
6.500,00 €
357,45 €
408,51 €
3.250,00 €
800,00 €
357,45 €
357,45 €
3.250,00 €
6.638,30 €
6.638,30 €
255,32 €
459,57 €
3.000,00 €
638,30 €
13.276,60 €
6.638,30 €
25/08/2020
16/10/2020
16/10/2020
26/10/2020
21/12/2020
28/01/2021
01/02/2021
17/02/2021
17/02/2021
22/02/2021
02/03/2021
15/03/2021
29/03/2021
13/04/2021
28/04/2021
19/04/2021
23/04/2021
18/05/2021
19/05/2021
22/06/2021
05/08/2021
342.665,00
RON
72.907,45 €
6.500,00 €
Difference in Salary as on termination (21 August
2021)
5.592,55 €
Pending Bonus as on 21 August 2021
1.400,00 €
Pending Flight Tickets as on 21 August 2021
684,95 €
Payment required to be
made
until 30 July 2021
71.500,00 €
1.400,00 €
684,95 €
Payment required to be
made under the Contract in
Euro
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
4,70
6.500,00 €
6.500,00 €
Sep-20
Sep-20
6.500,00 €
6.500,00 €
6.500,00 €
6.500,00 €
6.500,00 €
6.500,00 €
6.500,00 €
6.500,00 €
6.500,00 €
7.000,00 €
Oct-20
Nov-20
Dec-20
Jan-21
Feb-21
Mar-21
Apr-21
May-21
Jun-21
Jul-21
Relevant months
78.500,00 €
Monthly salary of the player during season
2020/21
Component
under
Contract
Salary
Bonus
Flight
Exchange
rate as per
Contract
Payment made until 22 June
2021
and 30 July 2021
66.269,15 €
0,00 €
0,00 €
17. According to the club, as of the date of termination, the salary for the month of July 2021 had
become due, that too only a day earlier as per the Contract. Thus, the club noted that again only
one month was due and not 2 months as required under Article 14bis of the FIFA RSTP.
18. The club noted that the DRC has defined that less than two monthly outstanding salaries is not
enough to meet the criteria of Article 14bis, finding that a player does not have just cause to
terminate the contract.
REF FPSD-3535
19. As to the player’s alleged demotion to the second team, the club argued that the player has not
attached any substantive evidence to prove such conduct by the Club.
20. As to the consequences for the alleged termination of the contract without just cause, the club
requested the payment of compensation in the amount of EUR 60,290.24 net, plus 5% interest as
from 21 August 2021.
21. In this respect, the club calculated that the residual value of the contract is EUR 72,484 net, but
noted that it owes to the player the amount of EUR 7,677.50 net and also EUR 4,516.13 for 20
days of August 2021.
22. In his replica and reply to the counterclaim, the player insisted that he terminated the contract with
just cause, and insisted in the payment of EUR 76,532.26 net as compensation
23. The player explained that throughout the entire duration of the employment relationship, the Club's
payment behaviour is erratic and devoid of any logic or order.
24. The player further underlined that despite taking into account the partial payment on 5 August
2021 to satisfy the monthly payment for May 2021 (the player considered that this does not
preclude the termination for just cause carried out as there was no full payment of the required
amount in due time and form on 30 July 2021), at the date of termination of the contract, two
monthly payments of salary were already due, once again, on the basis of the contract. According
to the player, this is a clear evidence of the Club's continuous non-compliance and delay in the
payment of its financial obligations.
25. As final comments, the club argued that, although the Player accuses of receiving erratic and
unorderly payments since the start of the Contract, he “he intentionally omits mentioning that he
never once complained about the same.”
26. In relation to said payments, the club argued that all payments indicated in the table are supported
by the respective bank excerpts.
27. In the opinion of the club, the Player cannot say that the Club did not respond to the default notice
notice, since it complied with ALL its financial obligations right after the notice (which in any case
was incorrect), clearing all its debt as on 30 July 2021.
28. As to the alleged demotion, the club insisted that it never exerted any sort of pressure or adopted
any measure against the Player with the aim to terminate or change the terms of the Contract.
REF FPSD-3535
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber 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 3 September
2021 and submitted for decision on 9 December 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.
2.
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), it is competent to deal
with the matter at stake, which concerns an employment-related dispute with an international
dimension between a Spanish player and a Romanian club.
3.
Subsequently, the Single Judge 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 (August 2021 edition), and considering that the
present claim was lodged on 3 September 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
4.
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
5.
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 abovementioned 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.
i. Main legal discussion and considerations
REF FPSD-3535
6.
In doing so, the Chamber noted that, on 3 September 2020, the player Marcos Lavín Rodríguez and
FC Voluntari concluded an employment contract valid as from the date of signature until 30 June
2022.
7.
Subsequently, the Chamber observed that the player lodged a claim against the club for breach of
contract without just cause, noting that he terminated the contract on 21 August 2021 due to the
existence of outstanding remuneration in the amount of EUR 15,262.43 net.
8.
Conversely, the Chamber took note of the club’s position, according to which the termination of the
contract was without just cause since only one month was due and not 2 months as required under
Article 14bis of the FIFA RSTP. In view of the above, the club lodged a counterclaim.
9.
As a result, the Chamber considered that the legal issue at stake is to establish whether the player
had a just cause to terminate the contract on 21 August 2021. In doing so, the Chamber considered
that it was of utmost important to determine the quantum of the debt of the club towards the player
at said date.
10. In doing so, the Chamber noted that the club accepted a debt of EUR 7,677.50, i.e. slightly more
than one monthly salary. The Chamber further that, in his replica, the player did not deny this specific
amount as the debt of the club towards him at the date of termination of the contract.
11. As a result, the Chamber had no other option than to conclude that the club’s debt towards the
player (roughly one month) was not sufficient to justify an early termination of the contract, neither
in accordance with art. 14 or 14 bis of the Regulations. The Chamber referred to its well-established
jurisprudence for similar situations.
12. In view of the above, the Chamber referred to art. 17 par. 1 of the Regulations, according to which,
in all cases, the party in breach shall pay compensation.
ii. Consequences
13. Having stated the above, the members of the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
14. Nevertheless, and before entering into the calculation of the payable compensation, the Chamber
recalled that the player is entitled to the payment of his outstanding remuneration until the date of
termination of the contract.
15. In particular, the Chamber observed, after reviewing the documentation gathered during the course
of the investigation, the player would be entitled to the outstanding amount of EUR 7,677.50 net
due until 21 August 2021, as well as to his salary for 21 days of August, i.e. EUR 4.741 (7000*21/31)
net.
16. In addition, the Chamber further noted that the player is also entitled to the claimed matches
bonus (which were contractually agreed and remained uncontested by the club), for the amount of
REF FPSD-3535
EUR 1,400, as well as to the reimbursement of the contractually agreed flight tickets (as per receipt)
in the amount of 862 EUR.
17. Consequently, in strict application of the principle of pacta sunt servanda, the Chamber established
that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 15,216.55
net, as agreed in the contract.
18. In addition, in accordance with its longstanding jurisprudence, the Chamber decided to awarded 5%
interest p.a. over the outstanding amounts as from the due dates.
19. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the club by the player 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, the fees and expenses paid or incurred by the former club (amortised over
the term of the contract) 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 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.
21. 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.
22. As a consequence, the Chamber determined that the amount of compensation payable by the player
to the club 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.
23. Bearing in mind the foregoing as well as the claim of the club, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract until its term.
Consequently, the Chamber concluded that the amount of EUR 72,259 (i.e.
Rest of August 2021: EUR 2,259 + From September 2021 until June 2022: 7,000*10 = EUR 70,000)
serves as the basis for the determination of the amount of compensation for breach of contract.
24. In continuation, the Chamber verified whether the player had signed an employment contract with
another club during the relevant period of time. According to the constant practice of the Chamber
as well as art. 17 par. 1 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
due by a player to his former club. In particular, the Chamber explained that its standard practice is
REF FPSD-3535
to calculate the average between the player’s remuneration with his former club and his
remuneration with the new club, for the exact same period of time comprised between the early
termination of the employment contract with the old club and the original expiry date of such
contract. In case substantial evidence thereof is provided by the club, the Chamber might additionally
grant the damaged club the non-amortised transfer fee paid for the player in breach and/or the actual
costs incurred by the damaged club in order to replace the leaving player.
25. In this respect, the Chamber noted that the player remained unemployed since the unilateral
termination of the contract.
26. However, the Chamber recalled the event that led to the early termination of the contract, and
observed that the club committed several irregularities during the execution of the performances,
such as the non-payment of the agreed bonus, as well as demoting the player to the second team.
In the opinion of a majority of the Chamber, said events would justify a significant reduction of the
payable compensation, to a final amount of EUR 15,000.
27. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the player must pay the amount of EUR 15,000 to the club
which was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
28. Lastly, taking into consideration the club’s request as well as the constant practice of the Chamber
in this regard, the latter decided to award the club interest on said compensation at the rate of 5%
p.a. as of the date of the counterclaim until the date of effective payment.
iii. Compliance with monetary decisions
29. 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.
30. In this regard, the Chamber highlighted that, against players, the consequence of the failure to pay
the relevant amounts in due time shall consist of a restriction on playing in official matches up until
the due amounts are paid. The overall maximum duration of the restriction shall be of up to six
months. Likewise, the Chamber underlined that, against clubs, FC Voluntari the consequence of the
failure to pay the relevant amounts in due time shall consist in a ban 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.
31. Therefore, bearing in mind the above, the Chamber decided that the player must pay the full amount
due (including all applicable interest) to the club within 45 days of notification of the decision, failing
which, at the request of the creditor, a restriction on playing in official matches for the maximum
duration of six months shall become immediately effective on the player in accordance with art. 24bis
par. 2, 4, and 7 of the Regulations. Equally, the Chamber decided that the club shall pay to the player
REF FPSD-3535
the full amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, a ban in registering new players (as explained
above) will come into force.
32. The Chamber recalled that the above-mentioned restrictions 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.
REF FPSD-3535
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marcos Lavín Rodríguez, is partially accepted.
2.
The Respondent, FC Voluntari, has to pay to the Claimant, the following amounts:
EUR 15,216.55 net as outstanding salaries, plus interest as follows:
- 5% interest p.a. over the amount of EUR 5,954.55 (rest of the salary of July 2021) as from 21 August 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 7,000 (salary of August 2021) as from 21 September 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 1 400 (outstanding bonuses) as from 21 August 2021 until until the date of effective payment;
- 5% interest p.a. over the amount of EUR 862 (flight tickets) as from 21 August 2021 until until the date of effective payment.
3.
The counterclaim of FC Voluntari is partially accepted.
4.
The Claimant / Counter-Respondent, Marcos Lavín Rodríguez, has to pay to FC Voluntari, the
amount of EUR 15,000 net for breach of contract without just cause, plus 5% interest p.a. as
from 29 September 2021 until the date of effective payment.
5.
Any further claims of the parties are rejected.
6.
Full payment (including all applicable interest) shall be made to the bank accounts indicated in
the enclosed Bank Account Registration Forms.
7.
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.
FC Voluntari 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.
2.
The player, Marcos Lavín Rodríguez, shall be restricted on playing in official matches up until the due amounts are paid. The
overall maximum duration of the restriction shall be of up to six months on playing in official matches
3.
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 aforementioned ban and/or restriction.
9.
The consequences shall only be enforced at the request of the parties in accordance with
art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
10. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-3535
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).
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