Labour Disputes
Texto da decisão
REF. FPSD-11961
Decision of the
Dispute Resolution Chamber
passed on 13 December 2023
regarding an employment-related dispute concerning the player Arley Bonilla
Micolta
BY:
Angela Collins (Australia), member
CLAIMANT:
Arley Bonilla Micolta, Colombia
Represented by Patryk Radovac
RESPONDENT:
PASA Irodotos FC, Greece
pg. 2
REF. FPSD-11961
I. Facts of the case
1.
On 31 January 2022, the Colombian player, Arley Bonilla Micolta (hereinafter: Claimant or
player) and the Greek club, PASA Irodotos FC (hereinafter: Respondent or club) signed an
offer (hereinafter: “the offer”), stipulating the following conditions:
“OFFER TO MR. ARLEY BONILLA
IRDOTOS FC, professional football which actually plays in SUPERLEAGUE 2
In Greece would like to propose to Mr Arley Bonilla Micolta born 08.11.1993 an offer of work
with next conditions:
-
5 months contract until 30.06.2022
2,000 € net/month
Use: Home, 2 daily food
1 ticket fly, Colombia – Greece
This offer of work is valid in the case that player is free player and has professional license
In the case that you accept this proposal, please sign down this document in order to fix the
ticket fly.”
2.
According to the Claimant, after conclusion of the offer, he did not receive the airline tickets
from the Respondent, “even though the counter-signed offer has been delivered to the
Respondent.”
3.
The Claimant indicated that he “tried to call the Respondent's representatives, but the calls
have not been answered.”
4.
On 12 February 2022, the Claimant sent an e-mail to the Respondent, requesting the
Respondent to provide the airline ticket from Columbia to Greece and requesting it to
perform in accordance with the contract, however to no avail.
II. Proceedings before FIFA
5.
On 27 September 2023, 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
6.
According to the Claimant, due to the non-compliance of the Respondent with the terms of
the contract, the latter is in breach of contract and is liable to pay compensation to the
Claimant.
pg. 3
REF. FPSD-11961
7.
The requests for relief of the Claimant, were the following:
“a. order the Respondent to pay the Claimant a compensation for terminating the contract
concluded by and between the Claimant and the Respondent without just cause in the total
amount of 24 115,50 EUR (say: twenty four thousand one hundred fifteen euro 50/100) net
increased by the 5% interest per year calculated from the 11th of March 2023 until the date of
effective payment,
b. impose on the Respondent a fine or any other sanction in accordance with art. 12bis sec. 4 of
the RSTP that the Chamber deems appropriate - due to the Respondent's delay with due payment
for more than 30 days,
c. impose on the Respondent the sporting sanctions in accordance with art. 17 sec. 4 of the RSTP
that the Chamber deems appropriate - due to the Respondent's breach of contract during the
protected period,
d. decide that the Respondent shall bear all costs related to these proceedings, including any
advance of costs, if any payment of costs is ordered.”
b. Position of the Respondent
8.
Notwithstanding being invited to do so, the Respondent failed to reply to the claim.
pg. 4
REF. FPSD-11961
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 23 September
2023 and submitted for decision on 13 December 2023. 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.
10. Subsequently, the Single Judge 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 May 2023 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute between a player from Colombia and a club from Greece.
11. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 23 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
12. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
13. Her competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence, which
she considered pertinent for the assessment of the matter at hand.
pg. 5
REF. FPSD-11961
i. Main legal discussion and considerations
14. The foregoing having been established, the Single Judge noted that the parties’ first
fundamental disagreement relates to whether the offer presented by the Respondent and
signed by the Claimant on 31 January 2022 can be considered a valid and binding
employment contract.
15. In this context, the Single Judge acknowledged that his task was to determine whether the
alleged offer established a valid and binding employment contract and if so whether the
Respondent was in breach of the terms of the offer.
16. The Single Judge noted that – after having been provided with the claim of the Claimant –
the Respondent failed to present its response. By not presenting its position to the claim,
the Single Judge was of the opinion that the Respondent renounced its right of defence
and, thus, accepted the allegations of the Claimant.
17. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
expressed that he shall take a decision upon the basis of the documentation already on
file; in other words, upon the statements and documents presented by the Claimant.
18. On analysis of the offer on file, the Single Judge started by recalling her well-established
jurisprudence which dictates that, in order for an offer to be considered as valid and
binding, apart from the signature of both the employer and the employee, it should contain
the essentialia negotii of an employment contract, such as the parties to the contract and
their role, the duration of the employment relationship and the remuneration payable by
the employer to the employee.
19. The Single Judge noted that the Claimant argued that he indeed concluded a valid contract
with the club and in support of his argument provided (i) the offer as signed by both parties;
(ii) an email correspondence from Respondent communicating the offer to the Claimant; and
(iii) an email from the Claimant to Respondent, requesting the flight ticket and for it to comply
with the terms of the offer.
20. In casu, after a thorough analysis of the documentation on file, the Single Judge concluded
that all such elements were included in the document filed by the player, moreover the
evidence presented by the Claimant indeed corroborates the fact the parties had the
intention to establish an employment relationship. Moreover, the Single Judge noted that
the player indicated that the Respondent failed to send him a flight ticket to travel to
Greece, to be able to commence his employment services hence hindering the execution
thereof.
21. The Single Judge confirmed that the contract created contractual obligations for the parties
and that the Respondent indeed breached its contractual obligations.
pg. 6
REF. FPSD-11961
ii. Consequences
22. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
23. The Single Judge decided that the Claimant would only be entitled to the basic
remuneration as stipulated in the contract.
24. The Single further concluded that as the Claimant never travelled or resided in Greece, he
is not entitled to the additional benefits extended thereto i.e., airline tickets,
accommodation, and meal cost.
25. The Single Judge therefore 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 Single Judge 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.
26. In application of the relevant provision, the Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
27. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
28. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract.
Consequently, the Single Judge concluded that the amount of EUR 10,000 (i.e., the residual
value of the contract) serves as the basis for the determination of the amount of
compensation for breach of contract.
29. In continuation, the Single Judge verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
pg. 7
REF. FPSD-11961
which he would have been enabled to reduce his loss of income. According to the constant
practice of the Single Judge 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.
30. In this respect, the Single Judge noted that the player remained unemployed.
31. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract, as a general rule, the compensation shall be
equal to the residual value of the contract.
32. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Respondent must pay
the amount of EUR 10,000 to the Claimant which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
33. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 27 September 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
34. Finally, taking into account the applicable Regulations, the Single Judge 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.
35. In this regard, the Single Judge 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.
36. Therefore, bearing in mind the above, the Single Judge 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.
pg. 8
REF. FPSD-11961
37. 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.
38. The Single Judge 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
39. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
40. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
41. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-11961
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Arley Bonilla Micolta, is partially accepted.
2.
The Respondent, Club PASA Irodotos FC, must pay to the Claimant the following amount(s):
- EUR 10,000 net as compensation for breach of contract without just cause plus 5% interest
p.a. as from 27 September 2023 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
pg. 10
REF. FPSD-11961
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 11