Labour Disputes
Texto da decisão
REF FPSD-3425
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Abel Luis
Masuero
BY:
Frans de Weger (The Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Abel Luis Masuero, Argentina
Represented by Pablo Bruera
RESPONDENT:
O.F. Ierapetras 1970, Greece
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REF FPSD-3425
I.
Facts of the case
1.
On 22 October 2020, the Argentinian player, Abel Luis Masuero (hereinafter: the Claimant),
and the Greek club, O.F. Ierapetras 1970, (hereinafter: the Respondent) signed an
employment contract (hereinafter: the Contract) valid as from said date until 30 June 2021.
2.
Pursuant to the Contract, the Claimant would be entitled to a salary of EUR 8,712 split into
12 monthly instalments amounting to EUR 726 each.
3.
Furthermore, according to art. 4.1 of the Contract, the Respondent undertook to pay an
additional amount of EUR 726 as “Christmas Gift”, further EUR 363 as “Easter Gift” plus EUR
363 as “leave allowance” and a one-off fee of EUR 1,500 as “other benefit”.
4.
Lastly, in accordance with art. 4.2 of the Contract, the Respondent agreed to pay the
Claimant housing allowances in the amount of EUR 390 and food allowances in the amount
of EUR 300, for a total of 8 monthly instalments as of 30 November 2020 until 30 June 2021,
i.e. a total of EUR 5,520.
5.
On 30 June 2021, the Parties agreed on an extension of the Contract to 30 June 2022.
6.
Under the extended employment agreement, the Parties amended the amounts due to the
Claimant as contractual allowances, respectively reducing to EUR 300 the housing allowances
and increasing to EUR 310 the food allowances.
7.
Conversely, the Parties increased the number of monthly instalments to 10, hence they
stipulated a total payment of EUR 6,100 as of 30 September 2021.
8.
Starting from 18 August 2021, the Respondent seemingly prohibited the Claimant to train
with the first team and to access the club’s facilities.
9.
By correspondence dated 19 August 2021, the Respondent exempted the Claimant from
participating in the team training sessions scheduled for 20 August 2021.
10. Similarly, on 20 August 2021, the Respondent issued a further letter of exemption, valid as
of the next day, 21 August 2021 to 28 August 2021.
11. By means of letter dated 21 August 2021, the Claimant requested the Respondent to be reintegrated in the first team activities, warning the latter that in the negative he would
terminate the employment contract.
12. On 22 August 2021, the Claimant notified the Respondent of the termination of the Contract
with just cause.
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II. Proceedings before FIFA
13. On 26 August 2021, Abel Luis Masuero lodged a claim before FIFA for outstanding
remuneration and breach of contract by the Respondent without just cause. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
14. According to the Claimant, the Respondent held an abusive conduct aimed at forcing the
same Claimant to terminate the employment contract, allegedly because the Respondent was
no longer interested in the Claimant’ services.
15. As a consequence, the Claimant stated that he had no other alternatives but to terminate the
employment contract with the Respondent on 22 August 2021.
16. The requests for relief of the Claimant, accordingly, were the following:
EUR 18,000 as total remuneration due until 30 June 2022, in connection with the
contractual extension dated 30 June 2021.
Additional EUR 9,000 as additional compensation for the aggravating circumstances
that led to the premature termination of the Contract.
b. Position of the Respondent
17. Despite having been invited to do so, the Respondent did not provide its position 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 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 26 August 2021 and submitted for decision
on 28 October 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.
19. 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 (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
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employment-related dispute with an international dimension between an Argentinian player
and a Greek 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 Player (August 2021 edition), and
considering that the present claim was lodged on 26 August 2021, the February 2021 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. 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
23. The foregoing having been established, the Chamber moved to the substance of the matter
and first took note of the allegation of the Claimant that the Respondent, through its abusive
and deliberate conduct, forced the termination of the contract by the Claimant.
24. In particular, the Chamber noted that the Claimant argued to have been prevented by the
Respondent from taking part in any football-related activity with the team, to the extent that
even the access to the Respondent’s training facilities was prohibited by the latter.
25. In this context, the DRC took note also of the fact that the Respondent did not provide its
position with respect to the claim, hence all the facts alleged by the Claimant shall be deemed
as uncontested insofar as the DRC considered that the Respondent renounced its right to
defence and thus accepted the allegations of the Claimant.
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26. Furthermore, as a consequence of the aforementioned consideration, the DRC concurred that
in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision upon the
basis of the documents already on file, in other words, upon the statements and documents
presented by the Claimant.
27. While having the foregoing in mind, the Chamber deemed it appropriate to remind the
parties that only a breach or misconduct which is of a certain severity justifies the termination
of a contract. In other words, only when there are objective criteria which do not reasonably
permit to expect the continuation of the employment relationship between the parties, a
contract may be terminated prematurely. Hence, if there are more lenient measures which
can be taken in order to ensure the fulfilment of the contractual duties by the counterparty,
such measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
28. In line with the above, the Chamber also referred to the specific wording of art. 14 par. 2 of
the Regulations, according to which “any abusive conduct of a party aiming at forcing the
counterparty to terminate or change the terms of the contract shall entitle the counterparty
(a player or a club) to terminate the contract with just cause”.
29. Bearing in mind the foregoing as well as the principle of burden of proof, the Chamber noted
that the behaviour of the Respondent, consisting of hindering the Claimant’s training without
providing any explanation but rather ignoring the latter’s attempts of communicating with
the same club, represents a clear and deliberate abuse by the Respondent.
30. Furthermore, the Chamber took note of the evidence provided by the Claimant, showing that
he consistently and in good faith tried to contact the Respondent and be allowed to comply
with the terms of the employment contract. In this context, the Chamber concluded that the
circumstances of the present case are in line with art. 14 par. 2 of the Regulations and
therefore the Claimant had a just cause to terminate the contract, due to the abusive conduct
held by the Respondent.
ii. Consequences
31. Before addressing the consequences of the premature termination of the Contract with just
cause of the Claimant, the Chamber observed that the outstanding remuneration at the time
of termination, coupled with the specific requests for relief of the Claimant, are equivalent to
two salaries plus housing and food allowances in connection with the months of July and
August 2021, namely amounting to EUR 2,832.
32. 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 2,832 (i.e.
two times EUR 1,416, consisting of EUR 726 plus EUR 390 plus EUR 300).
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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,
and concluded that the latter shall pay compensation to the Claimant.
34. Therefore, the Chamber turned to the calculation of the amount of compensation payable
by the Respondent 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.
35. 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.
36. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
37. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded
with the calculation of the monies payable to the latter 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 14,812 (i.e. the residual value of the contract) serves as the basis for
the determination of the amount of compensation for breach of contract.
38. In continuation, the Chamber verified as to whether the Claimant 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 Claimant’s general obligation to
mitigate his damages.
39. In this respect, the Chamber noted that the Claimant remained unemployed since the
unilateral termination of the contract.
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40. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the Claimant did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
41. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR
14,812 to the Claimant (i.e. EUR 1,336 x 10 = EUR 13,360 plus EUR 726 plus EUR 363 plus EUR
363), which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
iii. Compliance with monetary decisions
42. 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.
43. 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.
44. 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. 24bis par. 2, 4, and 7 of the Regulations.
45. 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.
46. 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. 8 of
the Regulations.
d. Costs
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47. 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.
48. 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.
49. 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, Abel Luis Masuero, is partially accepted.
2.
The Respondent, O.F. Ierapetras 1970, has to pay to the Claimant, the following amount:
EUR 2,832 as outstanding remuneration.
EUR 14,812 as compensation for breach of contract by the Respondent.
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. 24bis 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 the ban shall
be of 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. 24bis par. 7 and 8 and art. 24ter 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).
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