Labour Disputes
Texto da decisão
REF. FPSD-14584
Decision of the
Dispute Resolution Chamber
passed on 8 August 2024
regarding an employment-related dispute concerning
the player Herald Marku
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Roy VERMEER (The Netherlands), member
Calum BEATTIE (Scotland), member
CLAIMANT:
Herald Marku, Albania
Represented by Lorin Burba
RESPONDENT:
UTA Arad, Romania
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REF. FPSD-14584
I. Facts of the case
1.
On 12 July 2023, the Albanian player, Herald Marku, (hereinafter: the Claimant or the Player),
and the Romanian club, UTA Arad (hereinafter: the Respondent or the Club), signed an
employment contract (hereinafter: the Contract) valid as from 13 July 2023 until 15 June
2024.
2.
In Article 4.i. of the Contract, the Parties set forth the Player’s remuneration as follows:
“Article 4: Remuneration
i. The Club undertakes to pay the Player for his professional services a monthly gross
basic remuneration of XX………../net amount of 32.000 lei (in words: thirty-two thousand
lei), equivalent of 6.400 euro netto/ to be paid at the latest on 25 of the month for the
previous month. The Parties agree that the basis for calculating the equivalent in LEI shall
be the exchange rate of the National Bank of Romania on the date of each payment being
made”.
3.
In Article 4.iv., the Parties established the following:
“iv. Other amounts agreed by the parties to be paid to the Player:
o 1 500 (one thousand five hundred) lei netto for every goals / assist in official
Superliga matches
o 75 000 (seventy-five thousand) lei netto for the Romanian Championship
o 50 000 (fifty thousand) lei netto for winning the Romanian Cup or qualifying in the
European cups
o 30 000 (thirty thousand) lei netto - signing fee payable until 20.07.2023.
Match Bonus: According to the Internal Regulation of the Club. Unless specified
differently, the match/performance bonus payments are paid at the latest on the last day
of the month during which the objectives were accomplished.
The monthly remuneration and other amounts payable by the club to the player under
this contract shall be paid by bank transfer to the account indicated by the player
(opened with a bank in Romania). The Club shall specify, in respect to each payment, the
contract obligation to which it corresponds (e.g.: "Remuneration for June 2022”).”
4.
On 22 December 2023, the Club made a proposal to the Player to terminate the Contract
through a mutual agreement. In said mutual agreement, the Club proposed to pay the
Player RON 96,000 net in two instalments of RON 48,000 net each. The Player did not sign
this mutual agreement.
5.
On 10 February 2024, the Club made another proposal to the Player to terminate the
Contract through an agreement. On this occasion, the mutual agreement stipulated that
the Club would pay the Player RON 157,000 net in two instalments of RON 78,500 net each.
The Player also did not sign this mutual agreement.
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REF. FPSD-14584
6.
By correspondence dated 22 March 2024, the Claimant put the Respondent in default of
payment of EUR 34,000, setting a 15 days’ time limit in order to remedy the default. The
Player argued that the Club did not pay the salaries for October 2023, November 2023,
December 2023, January 2024 and February 2024, and EUR 2,000 net for the balance of the
signing fee. Additionally, the Player requested payment of EUR 6,400 for the salary for
March 2024.
7.
On 28 March 2024, the Club paid the amount of EUR 2,000 corresponding to the balance
of the signing fee.
8.
On 4 April 2024, the Ministry of Internal Affairs of the Government of Romania informed
the Player that his stay in the country was illegal and that he must return to Albania within
15 days, because he exceeded the right of stay conferred by his visa. As a consequence,
the Ministry imposed a ban on the Player from entering the territory of EU Member States,
EEA and the territory of the Swiss Confederation for a period of six months, which could be
reduced to three in case that he left the country by his own means.
9.
On 8 April 2024, the Player terminated the Contract, alleging just cause.
10. On 15 April 2024, the Player accepted an employment offer from the club ACSM Ceahlaul
Piatra Neamt (hereinafter: the Third Club). The offer set forth the following (quoted
verbatim):
“The Club ACSM CEAHLAUL PIATRA NEAMT is pleased to submit to you this official
empleyement offer, valid for the football season 2024/2025:
Start Date: 16.06 2024
End Date : 30.06.2024
Salary- 7000 euro net
Allowances: Apartment, full board alimentary treatment, health insurance, 1 round trip
flight ticket per season.
This offer is valid upon meeting of the following conditions:
a. The acceptance in writing of the offer ( to be sent counter signed to us within the date
15.04.2024)
b. The successful results of the medical test to be undertaken by Mr. Marku in Bucharest,
Romania on the date 15.04.2024”
11. On an unspecified date, the Third Club withdrew the offer, as the Player could not travel to
Romania until 8 July 2024, and he could not undergo the medical tests.
II. Proceedings before FIFA
12. On 8 May 2024, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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REF. FPSD-14584
a. Position of the Claimant
13. According to the Claimant, he unilaterally terminated the Contract with just cause because
of the breaches committed by the Club.
14. In this regard, the Player argued that the Club failed to pay him six monthly salaries and
also displayed abusive behaviour towards him, as (i) he was forced to train individually and
(ii) he received a ban on entering the EU territory for a period of three months because the
Respondent abandoned the procedures for his visa renewal. Regarding the visa, the Player
stated that he could have applied for it, but he was obliged to submit some documents
such as payslips and proofs of having received his salaries, which he did not have due to
the Club’s lack of payment.
15. As a consequence of the imposition of this ban, the Player asserted that he could not sign
a contract with the Third Club, under which he would have been entitled to receive a total
of EUR 84,000 from 15 June 2024 until 30 June 2025. Thus, the Player assured that, apart
from the financial damages, the Club has produced moral damages to him, which are
quantifiable in the amount of the salaries he would have received from the Third Club: EUR
84,000.
16. The requests for relief of the Claimant were the following:
“1.The full acceptance of the claim.
2.The obligation of the Respondent, Club AFC UTA Arad to pay to the Claimant, Player
Herald Marku the overdue payables of 38,400 € (thirty-eight thousand four hundred
euros) plus interest of 5 % p.a. as follows:
-Interest of 5 % p.a. over 6,400 € as from the date 26.10.2023 until the effective payment;
-Interest of 5 % p.a. over 6,400 € as from the date 26.11.2023 until the effective payment;
-Interest of 5 % p.a. over 6,400 € as from the date 26.12.2023 until the effective payment;
-Interest of 5 % p.a. over 6,400 € as from the date 26.01.2024 until the effective payment;
-Interest of 5 % p.a. over 6,400 € as from the date 26.02.2024 until the effective payment;
-Interest of 5 % p.a. over 6,400 € as from the date 26.03.2024 until the effective payment;
3.The obligation of the Respondent, Club AFC UTA Arad to pay to the Claimant, Player
Herald Marku compensation for the breach of contract in the amount of 16,000 € (sixteen
thousand euros) plus interest of 5 % p.a. as from the date 09.04.2024 until the effective
payment.
4.The obligation of the Respondent, Club AFC UTA Arad to pay to the Claimant, Player
Herald Marku moral damages in the amount of 84,000 € (eighty-four thousand euros),
or in the alternative, any amounts that the Dispute Resolution Chamber of the FIFA
Football Tribunal shall consider adequate and appropriate.
5.The obligation of the Respondent, Club AFC UTA Arad to cover the procedural costs for
the present dispute (if any).”
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REF. FPSD-14584
b. Position of the Respondent
17. Despite having been invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Dispute Resolution Chamber (hereinafter: the 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 8 May 2024 and submitted for decision on 8
August 2024. 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.
19. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 an Albanian player
and a Romanian club.
20. 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 (June 2024 edition), and
considering that the present claim was lodged on 8 May 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
21. 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
22. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
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REF. FPSD-14584
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
assessing the matter at hand.
i. Main legal discussion and considerations
23. The Chamber then moved to the substance of the matter and took note of the fact that the
case at hand is a claim of a player against a club for breach of contract.
24. In this context, the Chamber recalled that the Player argued that he terminated the
contract with just cause due to 6 months’ worth of outstanding remuneration and,
therefore, requested payment of said outstanding amounts and compensation for breach
of contract. Additionally, the Chamber took into consideration that the Player claimed for
moral damages, as he argued that he has lost a job opportunity as a consequence of the
Club’s behaviour.
25. Since the Respondent did not provide its position on the claim, and according to the longstanding jurisprudence of the Football Tribunal, the Chamber decided that it must be
considered that it renounced its right to defence. As a consequence, the Chamber
established that the decision shall be taken based on the documentation already on the
file (i.e., the statements and documents presented by the Claimant).
26. In this respect, the Chamber acknowledged that its task was to determine whether the
Player had just cause to terminate the Contract and, in such a case, which are the
consequences of the termination, in light of the Player’s requests for relief.
27. First, the Chamber noted that, according to the Player, the Club had failed to pay the
salaries for October 2023, November 2023, December 2023, January 2024, February 2024,
and March 2024, which amounts to EUR 38,400.
28. In this regard, the Chamber pointed out that the Respondent bore the burden of proving
that it indeed complied with the financial terms of the Contract. Nonetheless, the Club, as
failed to reply to the claim, did not provide any evidence that proved it paid the amounts
claimed as outstanding by the Claimant. Thus, the Chamber highlighted that it shall be
considered that the Club owed the Player six salaries.
29. Furthermore, the Chamber observed that, on 22 March 2024, the Player sent a notice of
default requesting payment of five full salaries and balance of the signing fee within 15
days. The Chamber also saw that the Player acknowledged that the Club paid the balance
of the signing fee but argued that the Club failed to pay the five salaries. As it was
mentioned before, the Club did not prove payment of these salaries.
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REF. FPSD-14584
30. Moreover, the Chamber underlined that, on 8 April 2024, i.e., more than 15 days after
having sent the notice of default, the Player terminated the Contract because of the
breaches committed by the Club.
31. Consequently, the Chamber considered that the two conditions of article 14bis were met:
the Club failed to pay the Player more than two salaries and the Player put the Club in
default and granted a deadline of 15 days to fully comply with its financial obligations.
32. Hence, the Chamber concluded that the Claimant had just cause to unilaterally terminate
the contract, based on article 14bis of the Regulations.
ii. Consequences
33. 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.
34. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, was equivalent to six salaries
under the Contract.
35. The Chamber also noted that in the Contract the Parties agreed that the Player was entitled
to receive a monthly salary in RON, equivalent to EUR 6,400, considering the exchange rate
of the National Bank of Romania on the date of each effective payment. Although the
Parties agreed that the salaries should have been paid in RON and not in EUR, as claimed
by the Player, the Chamber stressed that it is appropriate to award the amounts in EUR
because the Parties agreed on the amount in EUR and their intention was that the Player
receive a certain amount of EUR.
36. In addition, the Chamber emphasised that the Club (i) did not contest this request in the
present claim, (ii) did not argue that the outstanding amounts should be paid in RON and
(iii) did not provide any elements to make the calculation of the amount due in RON.
37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber 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., EUR
38,400 net (i.e., six times EUR 6,400 net).
38. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber 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 day after each due date, which was the
26th day of the subsequent due month, until the date of effective payment.
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REF. FPSD-14584
39. Having stated the above, the Chamber 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
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.
40. 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.
41. As a consequence, the members of the Chamber 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 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.
42. Bearing in mind the foregoing as well as the claim of the Player, the Chamber 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 Chamber
concluded that the amount of EUR 16,000 net (i.e. the residual value of the Contract, which
includes two and a half salaries) serves as the basis for the determination of the amount
of compensation for breach of contract.
43. In continuation, the Chamber 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
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.
44. The Chamber observed that until the date of the decision the Player remained unemployed
and was not able to mitigate his damages.
45. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
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REF. FPSD-14584
of EUR 16,000 net to the Player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
46. Taking into consideration the Player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 9 April 2024 until the date of effective payment.
47. Finally, the Chamber moved to the last claim of the Claimant and recalled that he requested
EUR 84,000 for moral damages, as he argued that, due to the ban imposed by the
Romanian authorities caused by the Club’s behaviour, he lost the opportunity to sign a
contract for the specified amount.
48. In this respect, the Chamber first interpreted that the Player’s claim was not a claim for
moral damages but rather for loss of opportunity. The Chamber indicated that the Player
sought compensation for an alleged loss of chance, and not for non-material damage
inflicted upon him, as was the case in the CAS awards cited by the Player himself.
49. Following this reasoning, the Chamber pointed out that the Player has not provided
convincing arguments that these damages fall within the purview of the DRC and the
regulatory structure to be applied. Hence, the Chamber decided to reject the claim for
these damages.
iii. Compliance with monetary decisions
50. Finally, taking into account the applicable Regulations, the Chamber 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.
51. 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.
52. Therefore, bearing in mind the above, the DRC 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.
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REF. FPSD-14584
53. 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.
54. 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. 24 par. 8 of
the Regulations.
d. Costs
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14584
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Herald Marku, is partially accepted.
2.
The Respondent, UTA Arad, must pay to the Claimant the following amounts:
- EUR 38,400 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount EUR 6,400 net of as from 26 November 2023 until the
date of effective payment;
- 5% interest p.a. over the amount EUR 6,400 net of as from 26 December 2023 until the
date of effective payment;
- 5% interest p.a. over the amount EUR 6,400 net of as from 26 January 2024 until the date
of effective payment;
- 5% interest p.a. over the amount EUR 6,400 net of as from 26 February 2024 until the
date of effective payment;
- 5% interest p.a. over the amount EUR 6,400 net of as from 26 March 2024 until the date
of effective payment;
- 5% interest p.a. over the amount EUR 6,400 net of as from 9 April 2024 until the date of
effective payment;
- EUR 16,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 9 April 2024 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:
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.
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7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14584
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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