Dispute Resolution Chamber
Texto da decisão
REF 20-01682
Decision of the Dispute Resolution Chamber
(DRC) Judge
passed on 30 June 2021
regarding an employment-related dispute concerning the player Dieye Matar
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Olimpik Donetsk, Ukraine
Represented by V. Gelzin
RESPONDENT 1:
Player Dieye Matar, Senegal
Represented by Luca Tettamanti
RESPONDENT 2:
HNK Gorica, Croatia
Represented by Nikola Badovinac
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I.
FACTS OF THE CASE
1.
On 15 January 2019, the Ukrainian club, Olimpik Donetsk (hereinafter: the Claimant), and
the Senegalese player, Mr. Dieye Matar (hereinafter: the player or the Respondent 1), signed
an employment contract valid as from the date of signature until 15 December 2022
(hereinafter: the employment contract).
2.
In accordance with clause 4.1 of the employment contract, the Claimant undertook to pay
the player a monthly remuneration of UAH 4,173 net.
3.
Furthermore, pursuant to clause 1 of the annex 1 to the employment contract, the player
was entitled to an additional remuneration of USD 2,000 net per month.
4.
On 10 February 2020, the Claimant and the Ukranian club, FC Karparty Lviv (hereinafter:
FC Karparty), signed a temporary transfer agreement, by means of which the player was
loaned from the latter to the former between 11 February 2020 and 31 May 2020
(hereinafter: the loan agreement).
5.
On the same date, i.e. 10 February 2020, the player also signed a written document by
means of which he acknowledged that the Claimant had fulfilled all its financial obligations
towards him under the employment contract until that date.
6.
On 27 March 2020, the player exchanged messages with a representative of FC Karparty
via WhatsApp, requesting his outstanding payments. The same request was reiterated in
several opportunities during the conversation between the parties.
7.
On 16 April 2020, the player sent the Claimant an e-mail requesting payment of his salaries.
The player wrote, inter alia, the following: “since January they do not pay me too any
salaries. I have no money to pay my apartment and to buy something to eat and to help my
family that is really difficult situation”.
8.
On 24 April 2020, the player sent the Claimant a second e-mail requesting payment of his
outstanding remuneration.
9.
On 25 April 2020, the player also wrote to FC Karparty and requested outstanding salaries.
10.
On 18 June 2020, the player notified the Claimant the termination of the employment
contract. In this opportunity, the player, inter alia, made the following remarks:
a. the Claimant “promised [him] a monthly salary of USD 6,000 but then, only after
having signed the documents [the club] prepared in Russian language only, [the player]
realized [he] had a comprehensive salary of around USD 2,000 per month”;
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b. the Claimant did not provide him with a copy of the employment contract in English
nor complied with the payments of the amounts described in the document in Russian.
In particular, the Claimant did not pay him anything since the beginning of season
2019/2020, except for small cash payments to cover pocket expenses;
c. he accepted the conditions described in the loan agreement, however did not receive
any salary from FC Karparty apart from two cash payments in the approx. amount of
EUR 1,760; and
d. consequently, he “definitively lost any confidence and trust in [the Claimant] and, due
to such severe and persistent violations of [the Claimant] against [him]” he terminated
the employment contract with just cause and immediate effect. The player also
reserved his rights to claim for outstanding remuneration against the Claimant and FC
Karparty.
11.
On 19 June 2020, the Claimant replied to the player’s notice and referred to the
employment relationship allegedly pending between them. In this respect, the Claimant
wrote as follows: “we offer you to visit [the Claimant] located at 2, Sportyvna Str.
Shchaslyve, Kyiv region to resolve all the issues associated with further labor relationships”.
12.
On 20 June 2020, the player sent an e-mail to website transfermark.com and informed that
he was not employed by the Claimant anymore. Accordingly, the player requested the
updated information to be uploaded in the website, because he was “looking for new
club”.
13.
On 24 June 2020, the player sent the Claimant a notice reiterating that he had terminated
the employment contract with just cause, due to outstanding remuneration. At the end,
the player stated, inter alia, the following: “I am a free player now, I need to go ahead and
find a respectful employer that will pay me in full and timely the agreed salary to feed my
family in the future, contrary to your conducts towards me which were the opposite”.
14.
On 26 June 2020, the Claimant replied to the player’s notice and held that he had breached
the employment contract. The Claimant further referred to the FIFA RSTP and stressed that
if the player did not resume his duties, it would use “legal mechanisms to obtain
compensation for the termination of [the employment contract] and apply sanctions to [the
player]”.
15.
On 1 July 2020, the Claimant once again wrote to the player and reiterated its own
fundaments concerning the unlawful termination of the employment contract. On top of
that, the Claimant mentioned the following: “we are ready to pay your flight to Ukraine,
as well as to fulfil all conditions of the contract with the club, including payment of
monetary remuneration for work”.
16.
Between 8 and 10 July 2020, the player exchanged e-mails with the representative of the
Croatian club, HNK Gorica (hereinafter: HNK Gorica or Respondent 2), regarding a possible
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employment relationship between them. In this respect, the player sent the HNK Gorica all
the documentation concerning the termination of the employment contract, as well as his
banking statements.
17.
On 10 July 2020, the player sent a letter to the Claimant recalling the termination of the
employment contract and stating that he was seeking new employment. Additionally, the
player once again requested payment of his outstanding remuneration.
18.
In parallel, in accordance with the information available in the Transfer Match System (TMS),
the player and HNK Gorica signed a new employment agreement on 1 September. The
player is entitled to a monthly remuneration of EUR 2,000 and the employment agreement
is valid from the date of signature until 31 May 2023.
19.
On 4 September 2020, the Claimant sent a warning via e-mail to HNK Gorica, informing
that the player had a valid contract with the Claimant and, hence, that his registration
would “entail legal action on our part”.
20.
On 8 September 2020, HNK Gorica provided its response to the Claimant’s letter and
confirmed that it entered into a professional employment contract with the player.
Accordingly, HNK Gorica pointed out that the player was free, as well as it requested the
necessary documentation to be sent by the Claimant for the player’s registration before the
Croatian Football Federation (CFF).
21.
On 16 September 2020, the Claimant filed a claim against HNK Gorica before the Dispute
Resolution Chamber, requesting training compensation in relation to the player.
22.
Finally, on 17 September 2020, the Single Judge of FIFA Players’ Status Department upheld
the CFF’s request in order to authorize the provisional registration of the player with HNK
Gorica with immediate effect and without prejudice.
II.
PROCEEDINGS BEFORE FIFA
23.
On 23 November 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
24.
According to the Claimant, the player was supposed to resume his duties after the expiry
of the loan agreement, however he unilaterally and prematurely terminated the
employment contract without just cause.
25.
In this respect, the Claimant referred to the acknowledgement of receipt signed by the
player on 15 January 2019 and held that it complied with all the pertinent obligations under
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the employment contract. Additionally, the Claimant recalled the notices sent to the player,
as well as the warning delivered to HNK Gorica.
26.
To this extent, the Claimant claimed that the player and HNK Gorica “caused serious losses
to the Claimant” and, hence, shall be liable to pay compensation in accordance with art.
17 of the FIFA Regulations on the Status and Transfer of Players (RSTP).
27.
As to the calculation of the compensation for breach of contract, the Claimant stated that
the player was entitled to receive a monthly remuneration of USD 2,000 (cf. Annex 1 to the
employment contract).
28.
Therefore, the Claimant requested to be awarded the total amount of USD 39,000,
corresponding to the residual value of the employment contract.
b.
Position of the player
29.
In his reply, the player claimed that he terminated the employment contract with just cause,
due to outstanding remuneration and in line with art.14bis of the FIFA RSTP.
30.
In support of his allegations, the player clarified that since the beginning of the employment
relationship between the parties, the Claimant failed to comply with its economic duties. In
this respect, the player stressed that he received random payments in cash and that he was
only able to survive in Ukraine because of the food and shared accommodation provided
by the Claimant.
31.
In this context, the player maintained that, at some point, he could open a bank account
where he deposited the money received from his family in Senegal, as well as the random
payments made by the Claimant. At this point, the player filed a copy of his banking
statements from October 2019 to October 2020 in order to demonstrate that the Claimant
did not pay him his salaries as established in the employment contract.
32.
Subsequently, the player informed that in October 2019 he injured his leg and was forced
by the Claimant to continue playing. As a consequence of the Claimant’s pressure and due
to the lack of remuneration, the player stated that he accepted to conclude the loan
agreement with FC Karparty and, hence, was compelled to sign the acknowledgment of
receipt submitted by the Claimant.
33.
Based on the foregoing, the player stressed that, by the time of the termination of the
employment contract, the Claimant owed him USD 13,448. In addition, the player referred
to the several notices sent to the Claimant requesting the outstanding remuneration and
remarked that the Claimant did not submit any evidence of payments of the player’s salaries
to support its allegations.
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34.
Finally, the player informed that HNK Gorica did not induce him to terminate the
employment contract because the relationship between the parties was already ended due
to outstanding remuneration.
35.
Based on the abovementioned considerations, the player requested the Claimant’s claim to
be entirely rejected.
c. Position of HNK Rijeka
36.
On its part, HNK Gorica also opposed to the claim filed by the Claimant and stressed that it
was “erroneous, inaccurate and unfounded”.
37.
To this extent, HNK Gorica clarified that it did not influence in any way the decision of the
player to terminate the employment contract. Specifically, HNK Gorica pointed out that it
only started negotiations with the player after the termination had already taken place.
38.
Additionally, HNK Gorica informed that it had analysed all the documentation forwarded
by the player in regards to the termination with the Claimant and concluded that “the
player in accordance with the provisions of article 14bis of FIFA Regulations on the Status
and Transfer of Players terminated the contract with the Claimant for just cause”.
39.
In view of the above, HNK Gorica maintained that it acted “in good faith all the time” and
that “the Claimant’s allegations that [HNK Gorica] actually influenced the player to
unilaterally terminate the contract with the Claimant, are completely untrue and contrary
to the evidence submitted”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
Competence and applicable legal framework
40.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
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 23 November 2020 and
submitted for decision on 30 June 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
41.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the
Regulations on the Status and Transfer of Players (edition February 2021), 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 Ukrainian club, a
Senegalese player and a Croatian club.
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42.
Subsequently, the DRC 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 Player (edition February 2021),
and considering that the present claim was lodged on 23 November 2020, the October
2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b.
Burden of proof
43.
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
44.
In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
Merits of the dispute
45.
His competence and the applicable regulations having been established, the DRC Judge
entered into the merits of the dispute. In this respect, the DRC Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
46.
The DRC Judge then moved to the substance of the matter, and took note of the fact that
it remained undisputed between the parties that the player prematurely terminated the
employment contract on 18 June 2020, under the auspices of art. 14bis of the Regulations.
47.
In this context, the DRC Judge acknowledged that it was his task to determine whether
such termination was made with just cause and the consequences that follow.
48.
Having analysed the parties’ submissions, the DRC Judge noted that the Claimant, on its
part, alleged that the player had simply refused himself to resume his duties after the expiry
of the loan agreement. Likewise, the DRC Judge observed that the Claimant is of the
opinion that the player did not have just cause to terminate the employment contract and,
hence, that he shall be liable to pay compensation together with the HNK Gorica.
49.
On the other hand, the DRC Judge highlighted the player’s argumentation according to
which he had not received any of his salaries due by the Claimant during their employment
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relationship and, therefore, that he had just cause to terminate the employment contract.
Finally, the DRC Judge also took due note of HNK Gorica’s allegations in the same direction
as the ones provided by the player.
50.
Taking into consideration the dissent between the parties, the DRC Judge turned his
attention to the documentation on file and noted that, in spite of having the opportunity
to do so, the Claimant did not provide any convincing evidence of the payment of the
player’s remuneration during the term of the employment contract.
51.
In particular, the DRC Judge recalled the well-established jurisprudence of the Dispute
Resolution Chamber in order to decide that the acknowledgment of receipt filed by the
Claimant could not establish to a comfortable satisfaction degree that the payments were
made to the player.
52.
The DRC Judge found it pivotal to his conclusion the fact that said document and the loan
agreement were signed on the same date, apparently as a requirement for the completion
of the transfer. In addition, the DRC Judge also wished to outline that the player put the
Claimant in default in several opportunities, but the club did not contest the alleged default
nor provided any evidence regarding the fulfilment of its financial obligations, such as
banking statements, swifts or receipts in case of delivery in cash.
53.
To this extent, the DRC Judge concurred with the player’s argumentation and was satisfied
with the conclusion that the overall developments of the case demonstrated that the
acknowledgement of receipt filed by the Claimant was signed under the pressure of
concluding the loan agreement and cannot be deemed (alone) as an unequivocal proof of
compliance by the Claimant.
54.
In light of the foregoing, the DRC Judge recalled the clear wording of art. 12 par. 3 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. By doing so, the DRC Judge concluded that the
Claimant did not meet its burden of proof in order to demonstrate that it delivered the
player’s remuneration on time.
55.
As per the solid jurisprudence of the Chamber, the DRC Judge was firm to determine that
such persistent and substantial non-compliance of the financial obligations by the Claimant
can justify the unilateral termination of the contract as well as it can hold the club liable for
breach of contract.
56.
Consequently, the DRC Judge concluded that the player terminated the employment
contract with just cause.
57.
Therefore, based on the factual and contractual situation, the DRC Judge determined that
no compensation should be awarded to the Claimant and, hence, that the claim should be
entirely rejected.
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d.
Costs
58.
Lastly, the DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to
which “DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC Judge decided that
no procedural costs were to be imposed on the parties.
59.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, Olimpik Donetsk, is rejected.
2.
This decision is rendered without costs.
For the Dispute Resolution Chamber Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
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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