Labour Disputes
Texto da decisão
REF. FPSD-11161
Decision of the
Dispute Resolution Chamber
passed on 13 September 2023
regarding an employment-related dispute concerning
the player Alan Calbergue Leite Rodrigues
BY:
Andre DOS SANTOS MEGALE (Brazil), Single Judge
CLAIMANT:
Alan Calbergue Leite Rodrigues, Brazil
Represented by Vilaca Advogados
RESPONDENT:
KF Erzeni, Albania
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REF. FPSD-11161
I. Facts of the case
1.
On 9 August 2022, the Brazilian player Alan Calbergue Leite Rodrigues (hereinafter: the
Claimant or the player) and the Albanian club KF Erzeni (hereinafter: the Respondent or the
club) concluded an employment contract (hereinafter: the Contract) valid as from the same
date until the end of the season 2024/2025 (3 seasons).
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant a
monthly salary of ALL 35,000 “on the 5th day of each month”, for the entire duration of the
contractual period.
3.
By correspondence dated 14 July 2023, the Claimant put the Respondent in default of
payment of EUR 4,500 setting a time limit expiring on 29 July 2023 in order to remedy the
default.
4.
On 29 July 2023, the Claimant notified the unilateral termination of the Contract to the
Respondent.
II. Proceedings before FIFA
5.
On 1 August 2023, 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
6.
According to the Claimant, the Respondent failed to comply with its financial obligations
regarding the period between March 2023 and July 2023.
7.
In this respect, the Claimant stated having had just cause to terminate the contract on 29
July 2023 as the Respondent’s debt at the time would amount to more than 2 monthsalaries.
8.
In this context, the Claimant also argued having not been provided with a copy of the
Contract by the Respondent, hence he declared having been not able to calculate the
relevant contractual value properly.
9.
Nonetheless, the Claimant presented the following requests for relief:
-
EUR 7,500 as outstanding remuneration + 5% interest p.a. as from the respective due
dates;
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REF. FPSD-11161
-
EUR 45,000 as compensation for breach of contract by the Respondent without just
cause + 5% interest p.a. as from the date of the claim.
b. Position of the Respondent
10. Despite being invited to do so, the Respondent did not reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the 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 1 August
2023 and submitted for decision on 13 September 2023. Taking into account the wording
of art. 34 of the March 2023 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.
12. Subsequently, the Single Judge 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 May 2023, the Single Judge of 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 Brazilian player
and an Albanian club.
13. 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 (May 2023 edition), and
considering that the present claim was lodged on 1 August 2023, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
14. 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 he may
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REF. FPSD-11161
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
15. The 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 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
16. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that on 9 August 2022, the Claimant and the Respondent
stipulated an employment agreement valid until the end of the season 2024/2025.
17. In this context, the Single Judge observed that on 29 July 2023 the Claimant unilaterally
terminated the Contract, allegedly because of the Respondent’s failure to comply with the
financial obligations set under the said agreement.
18. In this this respect, the Single Judge noted that the Respondent failed to present its
response to the claim of the Claimant, in spite of having been invited to do so. By not
presenting its position to the claim, the Single Judge was of the opinion that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant. As such,
the Single Judge confirmed that per art. 21 of the Procedural Rules, he shall make a
determination on the basis of the arguments and documentation filed by the Claimant.
19. Accordingly, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the Claimant, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
20. The Single Judge 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).
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REF. FPSD-11161
21. In this context, the Single Judge noted that the Claimant argues not having received his
remuneration corresponding to the period between March 2023 and July 2023.
Furthermore, the Single Judge noted that the Claimant has provided written evidence of
having put the Respondent in default on 14 July 2023, i.e. at least 15 days before unilaterally
terminating the contract on 29 July 2023.
22. In this respect, the Single Judge observed that, in spite of the fact that under the Contract
the Parties stipulated the Claimant’s remuneration to be paid in Albanian Lek (ALL), the
Claimant requested the relevant sums to be paid in Euros in the aforementioned default
notice as well as in his claim.
23. In this context, the Single Judge wished to remark that the currency indicated in the
Contract shall be instead preserved as further manifestation of the Parties’ will, namely as
it reflects the effective financial value of the contractual consideration established thereto
in line with the principle pacta sunt servanda. Accordingly, the Single Judge emphasized that
all the sums he will award, if any, shall be consistent with the currency and amounts fixed
under the Contract only.
24. With the above in mind, the Single Judge calculated the pro-rata value of the outstanding
remuneration at the time of the termination and concluded that the claimed amount of
EUR 7,500 as detailed by the player would correspond approximately to ALL 175,000, which
results of more than two monthly salaries under the Contract. Hence, the Single Judge
established that the criteria set under art. 14bis of the Regulations were met, because more
than 2 salaries were outstanding and the Respondent was placed in default by the Claimant
at least 15 days before the termination of the Contract by the latter.
25. In this context, the Single Judge wished to emphasize that he did not ignore the wording of
art. 13 of the Contract, pursuant to which, the Respondent shall be granted a further period
of time (i.e. 30 days from the written notice) in order to remedy the relevant default. In this
respect, the Single Judge remarked however that, in line with art. 18 par. 6 of the
Regulations as well as the jurisprudence of the Dispute Resolution Chamber, contractual
clauses granting a club additional time to pay to their professionals amounts that have
fallen due under the terms of the contract (so-called “grace periods”) shall not be
recognised.
26. With all the foregoing in mind, the Single Judge concluded that the Claimant had a just
cause to unilaterally terminate the contract on 29 July 2023, based on art. 14bis of the
Tegulations.
ii. Consequences
27. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
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REF. FPSD-11161
28. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 5 salaries under
the contract, amounting to ALL 175,000.
29. 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 were outstanding under the contract at the moment of the termination, i.e., ALL
175,000 (i.e., 5 times ALL 35,000).
30. In addition, taking into consideration the Claimant’s request as well as the constant practice
of Dispute Resolution Chamber in this regard, the Single Judge decided to award the
Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the respective
due dates until the date of effective payment.
31. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single
Judge 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.
32. In application of the relevant provision, the Single Judge held that he 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.
33. In this regard, the Single Judge established that no such compensation clause was included
in the employment contract at the basis of the matter at stake.
34. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
35. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Single Judge
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REF. FPSD-11161
concluded that the amount of ALL 700,000 (i.e., the residual value of the Contract) serves
as the basis for the determination of the amount of compensation for breach of contract.
36. In continuation, the Single Judge verified as to whether the player 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 Dispute Resolution 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.
37. In this respect, the Single Judge observed that the player did not sign any employment
contract after the relevant termination occurred, and as such confirmed that no additional
compensation could be granted.
38. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of ALL
700,000 to the player (i.e., the residual value of the Contract), 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 player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Single Judge decided to award the player
interest on said compensation at the rate of 5% p.a. as of 1 August 2023 until the date of
effective payment, since the player expressly requested so in his claim. The Single Judge
remarked that the player could have requested interest as of the date of termination,
however because he did not do so the Single Judge could not rule ultra petita.
iii. Compliance with monetary decisions
40. 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.
41. 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.
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REF. FPSD-11161
42. 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.
43. 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.
44. 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
45. 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
46. 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.
47. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
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REF. FPSD-11161
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alan Calbergue Leite Rodrigues, is partially accepted.
2.
The Respondent, KF Erzeni, must pay to the Claimant the following amount(s):
ALL 35,000 as outstanding remuneration plus 5% interest p.a.as from 6 March 2023
until the date of effective payment;
ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 April 2023
until the date of effective payment;
ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 May 2023
until the date of effective payment;
ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 June 2023
until the date of effective payment;
ALL 35,000 as outstanding remuneration plus 5% interest p.a. as from 6 July 2023
until the date of effective payment;
ALL 700,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 1 August 2023 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.
5.
Pursuant to art. 24 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:
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1. 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.
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 in accordance
with art. 24 par. 7 and 8 and art. 25 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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REF. FPSD-11161
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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