Labour Disputes
Texto da decisão
REF FPSD-6266
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player
Hugo Filipe Goncalves Martins De Sousa
COMPOSITION:
ONGARO Omar (Italy), Deputy Chairperson
AWAD ALTHEBITY Khalid (Saudi Arabia), member
COLUCCI Michele (Italy), member
CLAIMANT:
Hugo Filipe Goncalves Martins De Sousa, Portugal
Represented by Pedro Macieirinha
RESPONDENT:
ACS Sepsi OSK,
Represented by Dragos Balta
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I.
Facts of the case
1.
On 17 June 2021, the Portuguese player Hugo Filipe Goncalves Martins De Sousa
(hereinafter: the Claimant) and the Romanian club ACS Sepsi OSK (hereinafter: the
Respondent) concluded an employment contract (hereinafter: the Contract) valid until 30
June 2023.
2.
Article 5 of the Contract reads inter alia as follows:
v.1,1. For the contractual period between 17.06.2021-30.06.2023, respectively for “Liga I”
competition, the Player will have a monthly pay of 8.000, euro net, that will be paid by the Club
on the 25'" of every month for the past month's activity.
V.2.1. result bonuses for a competition all year:
if the team qualifies to the play of half of the lega Romanian National Football championship
the players entitled to 10,000 euro net per season
(…)
d) if the team wins the Romanian cup the player is entitled to 5,000 euro net per season
e) the bonus is described in the present article will be calculated proportionally with the
minutes the player played effectively using the following scheme:
- if the player will play between 70% and 100% of the total number of minutes in the regular
season the player will get 100% of the bonus meaning 10,000 euro net.
- if the player will play less than 70% of the total number of minutes in the regular season the
player will get a bonus proportionally with played minutes.
3.
On 30 April 2022, the Claimant sent a default notice requesting to be provided “with the
necessary conditions for sports participation. as well as effective participation in training. and
in official matches, as well as other preparation or instrumental activities of sports
competition, ensuring the right to effective occupation”.
4.
On 2 May 2022, the Respondent replied to the previous correspondence stating that the
Claimant’s absence from training was due to medical conditions and invited him to pay
with the second team to recover the fitness.
5.
On the same day, the Claimant replied stating inter alia that the Respondent had not
contested the de-registration of the Claimant.
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6.
On 3 May 2022, the Respondent sent the training schedule to the Claimant and informed
that his nonparticipation in matches was due to the decision of the coaching staff.
7.
On 10 May 2022, the Claimant sent a correspondence reiterating that he had been deregistered and requested the Respondent to cure by the previously given deadline.
8.
On 16 May 2022, the Claimant sent a notice of termination to the Respondent, adducing
just cause.
9.
On 27 September 2022, the Claimant signed an employment contract with the Greek club
Ionikos.
II. Proceedings before FIFA
10. On 6 June 2022, 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
11. According to the Claimant, since February 2022 he was forced to train separated from the
rest of the team.
12. The Claimant states that the Respondent had de-registered him from the list of players
registered with the Romanian League.
13. The Claimants sustains that the Respondent breached Claimant's right to effective
occupation and his right to perform his job according to the contract and the law, by
preventing him to play in official matches.
14. The Claimant filed the following requests for relief:
a) Declare that the Claimant Player terminated the contract signed with the Respondent Club
with just cause, because the Respondent Club failed to comply with its contractual obligation
to provide to the Claimant Player his right to effective occupation;
b) Condemn the Respondent Club to pay to the Claimant Player compensation as follows:
b.1. the following result bonuses for the competitional year:
b.1.1 -10.000 € net for the season, because the team qualified to the playoff half of the "Liga I"
Romanian National Football Championship, plus interest at 5% rate since the due date until
effective payment;
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b.1.2 - 5.000 € net for the season, because the team won the Romanian Cup, plus interest at
5% rate since the due date until effective payment.
b.2 - the following salaries that should be paid on the 25th of every month for the past month's
activity:
April 2022 in the amount of 8.000 € net, that should be paid on 25 May 2022;
May 2022 in the amount of 8.000 € net, that should be paid on 25 June 2022;
June 2022 in the amount of 8.000 € net, that should be paid on 25 July 2022;
July 2022 in the amount of 8.000 € net, that should be paid on 25 August 2022;
August 2022 in the amount of 8.000 € net, that should be paid on 25 September 2022;
September 2022 in the amount of 8.000 € net, that should be paid on 25 October 2022;
October 2022 in the amount of 8.000 € net, that should be paid on 25 November 2022;
November 2022 in the amount of 8.000 € net, that should be paid on 25 December 2022;
December 2022 in the amount of 8.000 € net, that should be paid on 25 January 2023;
January 2023 in the amount of 8.000 € net, that should be paid on 25 February 2023;
February 2023 in the amount of 8.000 € net, that should be paid on 25 March 2023;
March 2023 in the amount of 8.000 € net, that should be paid on 25 April 2023;
April 2023 in the amount of 8.000 € net, that should be paid on 25 May 2023;
May 2023 in the amount of 8.000 € net, that should be paid on 25 June 2022;
June 2023 in the amount of 8.000 € net, that should be paid on 25 July 2023;
In the total amount of 120 000,00 €, plus interest at 5% rate until effective payment.
c. All according to the "Sports Activity Contract Nr. 206/17.06.2021" signed by the parties, the
FIFA Statutes and regulations, as well as the specificity of sport;
d. Impose to the Respondent Club sportive and disciplinary sanctions.
b. Position of the Respondent
15. According to the Respondent, it had respected its contractual obligations until the
Claimant terminated the Contract.
16. The Respondent states that the Claimant solely provides a single photo and “it does not
show how the player trained alone.”
17. The Respondent sustains that since February 2022, “the Player invoked a lot of medical
reasons that prevented him to train with our team. Even we suggested him to be present to a
medical examination the Player refused to prove this situation with an official medical
document”.
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18. Moreover, the Respondent submits that “In order to heal and regain the physical form that
would allow him to participate in the games of the first team of our club, we recommended
him to participate in the championship for a period of time with our second team of the club.”
19. Regarding to the registration of the player, the Respondent states that the selection of
players is a decision of the coaching staff. Moreover, the Respondent argues that it “does
not have the obligation to use one player for all its official games where it is involved. The coach
is free to decide who are the players that will play for the team in the next game.”
20. The Respondent sustains that it did not breach the Contract, nor it had any abusive
conduct as defined by the article 14 par. 2 of the Regulations.
21. As for the bonuses requested, the Respondent states that the Claimant is not entitled to
the bonus of EUR 10,000 because the Respondent finished in 10th position and was
therefore not qualified for the playoff during the season 2021/2022.
22. As for the bonus for winning the Romanian cup, the Respondent refers to art. 5.2 of the
Contract and states that if the Claimant plays in less than 70% of the minutes, the
Claimant would only be entitled to the prorata amount according to the minutes played.
23. In this regard, the Respondent submits that the Claimant played only 1 minute in the
whole competition (consisting of 6 games) and therefore, he is entitled to receive a bonus
of EUR 9,25.
24. The Respondent states that the compensation claimed is not due because the club did
not breach the contract.
25. Lastly, the Respondent refers to the obligation to mitigate damages.
c. Final comments of the Claimant
26. The Claimant was requested to provide his comments on the submission of the
Respondent.
27. The Claimant reiterates the arguments and the requests already made without providing
any new argument or evidence.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
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28. 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. In this respect, it
took note that the present matter was presented to FIFA on 6 June 2022 and submitted
for decision on 29 September 2022. 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.
29. Subsequently, the members of 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 lit.
b) of the Regulations on the Status and Transfer of Players (July 2022), 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 Portuguese
player and a Romanian club.
30. 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 (July 2022 edition), and
considering that the present claim was lodged on 6 June 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
31. 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
32. 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 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 the assessment of the matter at hand.
i. Main legal discussion and considerations
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33. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the existence of just
cause in the termination of the Contract by the Claimant.
34. The Claimant in the notice of termination sustains his termination on the following
motives:
-
His separation from the rest of the squad/training alone
His de-registration as player with the Romanian league.
35. The Chamber went on to analyse the allegation of the Claimant – undisputed by the
Respondent – that he was forced to train alone for several months, without any valid
justification. In turn, the Respondent deems that there was a valid justification for the said
separate training.
36. In view of the foregoing, the Chamber referred to art. 13 par. 5 of the Procedural Rules,
according to which a party that asserts a fact has the burden of proving it and went on to
analyse the documentation provided by the parties in support of their allegations. In this
respect, the Chamber noted that only after the Claimant requested to be reinstated with
the rest of the team the Respondent mentioned the alleged medical conditions which
prevented the Claimant to train with the rest of the squad. However, based on the
evidence submitted by the parties, there is no clear evidence of the alleged medical
reason as adduced by the Respondent.
37. Moreover, the Chamber observed that the Respondent did not provide any specific
timeframe or period of absence from first team training. Thus, the Chamber was of the
opinion that the Respondent had decided to indefinitely separate the Claimant from his
teammates.
38. In this scenario and after careful consideration of the evidence on file, the Chamber
recalled that although the Claimant had waited several weeks to challenge the situation,
the Respondent should have acted promptly and, in the absence of solid justification,
ought to had reinstated the Claimant with the remaining of the first team squad, upon his
request.
39. Since the Respondent refused to reinstate the Claimant after the Claimant had shown his
disagreement and several communications, the Chamber was convinced that the
Claimant could not reasonably believe that the Respondent was going to comply with his
request.
40. With the above in mind and after having carefully analysed the parties’ submissions, the
Chamber concluded that the Respondent committed a severe breach of the employment
contract and that the termination of the contract by the Claimant was indeed justified.
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41. Having established the above, the Chamber deemed that since the existence of just cause
had already been determined, there was no need to analyse the second motive adduced
by the Claimant for the termination.
ii. Consequences
42. 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.
43. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, consisted of the April 2022
salary and some alleged outstanding bonuses.
44. 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
salary of April 2022 which became outstanding under the contract at the moment of the
termination, i.e. EUR 8,000.
45. 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 26 May 2022 until the date
of effective payment.
46. As for the claim for EUR 10,000 as bonus for reaching the play-off, the Chamber
underlined that the Claimant has not provided evidence that the said milestone was
reached. Furthermore, the Respondent has stated that it finished in 10th position, not
triggering the said bonus. Thus, the Chamber decided that the Claimant is not entitled to
the requested amount.
47. As for the claim for EUR 5,000 for winning the Romanian Cup, the Chamber noted that
the Claimant has not provided any further evidence in his final comments against the
Respondent’s allegations. Therefore, the Chamber agreed with the Respondent’s
argumentation and decided that the Claimant is entitled to EUR 9.25 as outstanding
bonuses plus 5% interest as from date of claim.
48. 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
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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.
49. 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.
50. 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.
51. 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 112,000 (i.e. the EUR 8,000 * 14 months) serves as the basis
for the determination of the amount of compensation for breach of contract.
52. 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.
53. Indeed, the player found employment with the Greek club Ionikos. In accordance with the
pertinent employment contract, the player was entitled to the amount of EUR 38,669.33.
Therefore, the Chamber concluded that the player mitigated his damages in the said.
54. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination did not take place due to said reason i.e. overdue payables by the club, and
therefore decided that the Claimant is not entitled to receive additional compensation.
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55. 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
of EUR 73,330.67 to the player (i.e. EUR 112,000 minus EUR 38,669.33), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
56. Lastly, 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 6 June 2022 until the date of effective payment.
iii. Compliance with monetary decisions
57. 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.
58. 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.
59. 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.
60. 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.
61. 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
62. 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
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agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were
to be imposed on the parties.
63. 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.
64. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Hugo Filipe Goncalves Martins De Sousa, is partially accepted.
2.
The Respondent, ACS Sepsi OSK, has to pay to the Claimant, the following amount(s):
- EUR 8,009.25 net as outstanding remuneration plus 5% interest p.a. as follows:
On EUR 8,000 from 26 May 2022 until the date of effective payment;
On EUR 9.25 from 1 June 2022 until the date of effective payment.
- EUR 73,330.67 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 6 June 2022 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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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