Labour Disputes
Texto da decisão
REF FPSD-2489
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Hugo Lopez Martinez
BY:
Frans de Weger (the Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Stefano Sartori (Italy), member
CLAIMANT:
Hugo Lopez Martinez, Spain
Represented by Ms Rosalía Ortega Pradillo
RESPONDENT:
Dhofar, Oman
Represented by Sport Makers (Mr Nasr Eldin Azzam)
REF FPSD-2489
I.
Facts
1.
On 23 June 2019, the parties concluded an employment contract valid as from the date of signature
until 30 June 2021 (hereinafter: the 2019 contract).
2.
Clause 10 of the contract established bonuses the player would be entitled to obtain, inter alia, as follows
“c. USD 7,000 in the event of the club wining the Sultan Qaboos Cup;”
3.
On 29 September 2020, and after a dispute concerning said contract (20-00691), the FIFA Dispute
Resolution Chamber established the following:
“2. The Respondent, Club Dhofar, has to pay to the Claimant, the following amounts:
-USD 71,000 as outstanding remuneration plus 5% interest (…)
-USD 161,000 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 4 May 2020 until the date of effective payment.”
4.
The decision of the DRC is currently under appeal with the reference CAS 2021/A/7861.
5.
On 27 September 2020, the parties concluded an employment contract valid as from the date of
signature until 30 May 2021.
6.
Following clause 8.3 of the contract, the player was entitled to the following:
“8- The player shall be entitled to an additional bonus for the games in which the player participates as
an essential player in the following cases:
(…)
If the club wins the Sultan Qaboos Cup the player is entitled to a financial reward of 7000 Seven thousand
US Dollars.”
7. On 22 October 2020, the parties decided upon a contractual extension of the 2019 contract, under the
following terms:
“Due to the suspension of Omantel League matches due to the Coronavirus pandemic, the two parties
agreed to extend the contract signed on 06/23/2019 for the period referred to in the previous article to
extend during the period from 25/5/2020 to 15/11 /2020.”
8. On 22 October 2020, the parties concluded a contract valid from 27 September 2020 until 30 May 2021,
according to which the player was entitled to OMR 100 as “defense money”.
9. On 15 April 2021, the player sent a default notice to the club requesting the payment of USD 7,000 for
“wining along his teammates the Sultan Qaboos Cup”.
10. On 17 January 2021, the club issued a document with the following contents:
“We hereby confirm that dhofar club upon your request to not continue your employment contract and
be free player to sign for new club from January 2021, we authorize you to negotiate with any new club
and confirm that upon your agreement with a new club we will sign mutual termination agreement in
light of our discussions today.”
11. On 21 January 2021, the legal representative of the player sent the following correspondence to the
club:
REF FPSD-2489
“we ask you to release the player within a non extendable period of 3 days, and this through an amicable
agreement that does not cause further damage to either party.”
12. On 11 August 2021, the player, via his legal representative, sent a default notice with the following
contents:
“FIFA regulations are very clear in regards to overdue payables. Here, the player’s monthly remuneration
from May 25th, 2020 until November 15th, 2020 is 6.000 USD.
However, our client had not been paid any money. In this case the outstanding salary owed to my client
is 34.200 USD. Furthermore, an additional 5% interest in arrears is owed beginning on the date of which
the obligations became due.
It is the custom of this office to try to reach an out-of-court settlement before initiating other legal
actions. For this reason, we are requesting the payment of 34.200 USD plus 5% interest extrajudicially
within a period not exceeding 15 days of the receipt of this letter.”
13. On 10 May 2021, the player lodged a claim before FIFA, by means of which he requested the payment
of USD 7,000, due as from 7 March 2021, plus 5% interest p.a.
14. In support of his allegations, the player provided a screenshot from the following hyperlink:
https://es.soccerway.com/national/oman/sultan-cup/20202021/s19588/final-stages/
15. In its reply to the claim, the Respondent acknowledged that it won the Sultan Qaboos Cup on 7 March
2021, but explained that its relationship with the player terminated in January 2021, i..e. 3 months
before.
16. As a result, the club rejected the payment of the bonus of USD 7,000.
17. In addition, the club wished to clarify that it “will tackle very briefly the issue of the bonus of the march
2021 Sultan Qaboos Cup”, but further expressed it right “to dig into some facts in order to draw a
general picture.”
18. In this respect, the club explained that the Player started to absent himself with no justification from
matches and training.
19. The Respondent, however, explained that it “expressly notes that it reserves its right vis-à-vis the Player's
breach as stated in the facts should FIFA DRC rule beyond the Claimant's prayers for relief in the present
dispute.”
20. In his replica, the player clarified that he referred to a bonus arising from the Sultan Qaboos Cup, which
was won by the club on 29 November 2020.
21. The player explained that the club acknowledged in his Appeal Brief concerning the previous decision
that the player helped to win the “Sultanate Cup on 29 November 2020”.
22. In this respect, and considering the extension of the 2019 contract, the player acknowledged that ”clearly
there are two contracts in place for a small period of time, both valid, both signed by both parties, and
both containing that bonus of dollars referring to the Cup, and that was played on November 29th,
2020.”
REF FPSD-2489
23. As a result, the player insisted to be paid with the amount of USD 7,000.
24. In addition, the player requested the payment of USD 34,200 as outstanding salary for the contractual
extension, as well as 100 OMR as salary, in accordance with the contract of 22 October 2020.
25. In this respect, the player detailed said amounts as “USD 1,200 for the days in May + USD 30,000 for 5
full months + USD 3,000 for half of November”, and acknowledged that “these amounts had not
previously been claimed to the Club, however, and being within the deadline for it, are claimed here,
and also just claimed out of court to the Club giving him a period of 15 days for payment.”
26. The player explained his contractual situation and entitlements with the following diagram:
27. In its duplica, the club lodged a counterclaim.
28. The club justified the counterclaim due to the fact as it considered that the player “changed totally his
claim from requesting bonus of winning Sultan Cup for season 2020/2021 to a new claim requesting
bonus of winning Sultan Cup for previous season 2019/2020.”
29. The club argued that its initial reply was only related to the bonus of the Sultan Qaboos Cup of
2019/2020, but in view of the player’s new request, the player has in fact changed his request.
30. In light of the above, the club argued that “as the player is only requesting bonus for season
2019/2020 and we are submitting our claim for unilateral breach of the New contract by same player
without just cause, which is up to FIFA to consolidate it with current claim as counter claim.”
31. As a result, the club considered that FIFA shall decide about the unilateral termination of the Player for
the New contract of season 2020/2021 without just cause, “regardless his new claim for false alleged
bonus from season 2019/2020.”
32. The club requested the payment of compensation as follows:
1st criterion: remuneration pending until the expiration of the 2019 Contrat and future remuneration
the Player would have received if he did not violate the employment agreement:
REF FPSD-2489
Between 99,000 USD at minimum and 189,000 USD or 214,000 USD at maximum.
2ndcriterion: loss of the Player’s services and replacement value:
Between 80,000 USD at minimum and 393,038.75 USD at maximum.
33. In his comments to the counterclaim, the player insisted to be paid as follows:
- 7,000 USD in respect of the Sultan Qaboos Cup won by the Club and played by the Player on 29
November 2020 (included both in contract no. 1 or its extension with contract no. 2 and also in
contract No. 3)
- 34,200 USD in unpaid wages due from the contract extension, since 25 May 2020 contract, to 15
November 2020 (included in contract No. 2)
- 100 Omani Rials in respect of the contract signed on 22 October 2020 (included in contract no. 3)
(included in contract no. 3).
34. Concerning the bonus, the player considered that is clear that there are two contracts in force for a
small period of time, both valid, both signed by both parties, and both contain that bonus of 7,000
dollars referring to the cup, which was played on 29 November 2020. Therefore, “whichever one you
want to apply”, the club underlined that both contracts contained the bonus of 7,000 dollars.
35. Concerning the outstanding salaries, the player explained that they correspond to 1,200 USD for May
days + 30,000 USD for 5 full months + 3,000 USD for half of November). The player acknowledged,
however, that “these amounts of salary had not previously been claimed from the Club, but they are
being however, and being within the deadline for doing so, they are claimed here”.
36. As to the facts, the player argued that he suffered a complete labour mobbing situation for the mere
fact of claiming what rightfully belongs to him.
37. The player stated that no breach of contract is attributable to him, whereas the club breached the
contract for non-payment of wages and harassment at work.
38. The Player explained that he decided to terminated his contract dated 27 September 2020, with just
cause, and that on the grounds article 14.1 of the RSTP, he should not pay any compensation to the
Club.
REF FPSD-2489
II. Considerations of the Dispute Resolution Chamber
a.
Competence and applicable legal framework
1.
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. 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 Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) 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), 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 Spanish player and an Omani club.
3.
However, the Chamber observed in this regard that, initially, the Claimant lodged a claim for
outstanding remuneration, whereas, when invited to provide its duplica (i.e. the second exchange of
correspondence), the Respondent lodged a counterclaim.
4.
In relation to the counterclaim of the club, the Chamber referred to art. 9 par 4 of the Procedural
rules, according to which “4. Where the opposing party wishes to lodge a counterclaim, it shall
submit its petition containing all the elements described in paragraph 1 above within the same time
limit as that for the reply.” The Chamber therefore underlined that the club should have therefore
submitted this counterclaim at the moment of the reply, but not at the stage of the duplica.
Consequently, the Chamber established that the counterclaim of the club is inadmissible.
5.
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 the February 2021 in force on the date of claim
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Legal discussion at stake
6.
As to the substance, the Chamber noted that the parties were mutually bound by several
employment contracts.
7.
In this respect, the Chamber noted that the player lodged a claim before FIFA, by means of which
he requested the payment of a bonus in the amount of USD 7,000, due as from 7 March 2021
8.
In relation to said claim, the Chamber reviewed the documentation on file and the different contracts
at stake, and concluded, that, indeed, that the player is entitled to a bonus of USD 7,000 for the
2020 Qaboos cup, won on 29 November 2020,
REF FPSD-2489
9.
On the other hand, the Chamber observed that the Respondent did not prove that said amount was
effectively paid.
10. Consequently, in application of the principle of pacta sunt servanda, the Chamber established that
the Respondent shall pay the aforementioned amount of USD 7,000 to the Respondent.
11. The Chamber then noted that the player also requested the payment of USD 34,200 and OMR 100
for salaries between 5 May 2020 to 15 November 2021.
12. However, in the previous decision (FPSD-1410), FIFA awarded compensation for the residual salary
of the contract, corresponding to “the salary of May 2020, plus USD 25,000 corresponding to the
amount due at the end of the first season, plus the entire remuneration for season 2020/2021”).
The Chamber therefore established player cannot claim this outstanding amount, since it was
integrated into the calculation of compensation in a previous matter.
13. In addition, the Chamber noted that the player did not sent any default notice in this regard, and
only made this request in its last submission during the present procedure. In this respect, art. 12
par. 7 of the procedures establish that “evidence shall be considered (…) taking into account the
conduct of the parties during the proceedings”. In view of the above, the Chamber rejected this
request.
c.
Execution
14. Furthermore, taking into account the previous considerations, the DRC referred to par. 1 and 2 of
art. 24bis 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.
15. In this regard, the DRC pointed out 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 and for the maximum duration of three entire
and consecutive registration periods.
16. Therefore, bearing in mind the above, the Single Judge of the PSC decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the relevant
bank details to the 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 effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
17. Finally, 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. 3 of the
Regulations.
REF FPSD-2489
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Hugo Lopez Martinez, is partially accepted.
2.
The Respondent, Dhofar, has to pay to the Claimant, the amount of USD 7,000 as outstanding
amount plus 5% interest p.a. as from 7 March 2020 until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
The counterclaim of Dhofar is inadmissible.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-2489
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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