Labour Disputes
Texto da decisão
REF FPSD-3714
Decision of the
Dispute Resolution Chamber
passed on 16 December 2021
regarding an employment-related dispute concerning the player
Alexandru Mitrita
BY:
Frans de Weger (Netherlands), Chairman
Angela Collins (Australia), member
Daan de Jong (Netherlands), member
CLAIMANT:
Alexandru Mitrita, Romania
Represented by Josep F. Vandellos Alamilla
RESPONDENT:
Al Ahli, Saudi Arabia
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REF FPSD-3714
I.
Facts of the case
1.
On 7 October 2020, Alexandru Mitrita (hereinafter the Claimant or the Player) and Al Ahli
(hereinafter the Respondent or the Club) concluded employment agreement (hereinafter the
Employment Agreement), valid as from 5 October 2020 until 31 January 2022.
2.
Pursuant Clause 5 of the Employment Agreement, the Claimant was entitled to receive a monthly
salary of USD 140,625 (net) and bonuses of USD 3,000 (net).
3.
On 17 August 2021, the Claimant and the Respondent agreement (hereinafter the Parties) entered
into a termination agreement (hereinafter the Termination Agreement) by way of which the
Parties mutually terminated the Employment Agreement.
4.
Pursuant Clause 2 of the Termination Agreement, the Claimant was entitled to receive the amount
of USD 1,265,625, corresponding to salaries of May 2021 until January 2022 and a compensation
for the early termination. Furthermore, the Claimant was entitled to bonuses of bonuses of
USD 27,000.
5.
Taking into account the above, the Parties agreed upon the following payment schedule of the
total amount of USD 1,292,625:
-
6.
USD 210,938 net on or before 1 September 2021;
USD 27,000 net on or before 1 September 2021;
USD 210,937 net on or before 1 October 2021;
USD 421,875 net on or before 1 November 2021;
USD 421,875 net on or before 1 December 2021.
In Clause 3 of the Termination Agreement, the Parties stipulated the following:
“In case any of the deadlines stipulated in Clause 2 are not met or respected by the Club, then
the entire outstanding amount as on that date shall become immediately due to the Player
along with a penalty of 10% to be calculated on the total amount of this agreement including
the bonus. The Parties duly counselled confirm that they would not have signed this termination
agreement but for this clause.”
7.
On 2 September 2021, the Claimant put the Respondent in default for the payment of the
outstanding payments in the total amount of USD 1,421,888, providing it a 10 days’ deadline to
remedy its default, however to no avail.
II. Proceedings before FIFA
8.
On 17 September 2021, 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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a. Position of the Claimant
9.
In his claim, the Claimant requested the payment of USD 1,421,888, corresponding to the
outstanding amounts as well as a penalty of 10% based on the Termination Agreement.
10. Furthermore, the Claimant requested 5% interest p.a. over that said amount “starting from
2 September 2021 until the date of effective payment”.
11. The Claimant based his claim on the legal principle pacta sunt servanda when it argued that the
Respondent “has failed to make the payment of the first instalment and the bonus that were due
on 01 September 2021, thereby, breaching the [Transfer] Agreement”, “despite being given a
chance to remedy the breach through a notice of default”.
12. The Claimant further asserted that because the Respondent “failed to fulfil the terms and
conditions established in the [Transfer] Agreement and did not comply with the payment schedule
as per Clause 2, it is liable to pay the Player a total amount of USD 1.421.888 NET”.
b. Position of the Respondent
13. The Respondent did not contest that the claimed amount remained outstanding yet argued that
the COVID-19 had a serious financial impact on the Club.
14. In view of the above, Respondent requested additional time to make the payment of the
outstanding amount.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 17 September 2021 and submitted for decision on
16 December 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.
16. 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 employment-related dispute with
an international dimension between a Romanian player and a Saudi Arabian club.
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17. 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 (August 2021 edition) and considering that the
present claim was lodged on 17 September 2021, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
18. 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
19. 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 abovementioned 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
20. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the Parties dispute the payment of certain financial obligations by the
Respondent as per the Transfer Agreement, namely USD 1,421,888.
21. In this context, the DRC acknowledged that its task was to determine, based on the evidence
presented by the Parties, whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the latter had a valid justification for not having complied with its
financial obligations.
22. The Chamber first noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the Transfer Agreement concluded between the
Parties.
23. The Chamber recalled that the Respondent did not contest that the claimed amount remained
outstanding, nonetheless, it argued COVID-19 had a serious financial impact and, consequently, it
requested additional time to make the payment of the outstanding amount.
24. In this context, the Chamber highlighted that FIFA issued a set of guidelines, the COVID-19
Guidelines, which aim at providing appropriate guidance and recommendations to member
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associations and their stakeholders, to both mitigate the consequences of disruptions caused by
COVID-19 and ensure that any response is harmonised in the common interest. Moreover, it was
also outlined that on 11 June 2020, FIFA has issued an additional document, referred to as FIFA
COVID-19 FAQ, which provides clarifications on the most relevant questions in connection with
the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
25. Analysing the concept of a situation of force majeure, the Chamber also stressed that, based on
the contents of the FIFA COVID-19 Guidelines and the FIFA COVID19 FAQ, FIFA did not declare
that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or
that any specific employment or transfer agreement was impacted by the concept of force
majeure. In other words, in any given dispute, it is for a party invoking force majeure to establish
the existence of said event under the applicable law/rules as well as the consequences that derive
in connection thereto. The analysis of whether a situation of force majeure existed has to be
considered on a case-by-case basis, taking into account all the relevant circumstances.
26. In light of the above, the Chamber concluded that the Respondent failed to demonstrate, through
substantial evidence, that the situation faced was to be legally considered a situation of force
majeure. Based on the foregoing, the Chamber rejected Respondent’s argument concerning the
requested additional time to make the payment of the outstanding amount based on the alleged
impact of COVID-19 and decided that, consequently, no reasonable justification was presented by
the Respondent for not having complied with the terms of the Termination Agreement.
ii. Consequences
27. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences.
28. The Chamber noted that the total claimed amount shall correspond to the overall outstanding
amount of USD 1,292,625 as stipulated in Clause 2 of the Transfer Agreement and the penalty of
10% “to be calculated on the total amount of [the Transfer Agreement] including the bonus”, i.e.
USD 129,262.5 as stipulated in Clause 3 of the Transfer Agreement.
29. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the Chamber
ruled that the Respondent shall be held liable to pay the Claimant the outstanding amounts
deriving from the Transfer Agreements concluded between the Parties, namely as follows:
- USD 1,292,625 as outstanding remuneration;
- USD 129,262.5 as contractual penalty.
30. 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 outstanding
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remuneration of USD 1,292,625 at the rate of 5% p.a. as of as from 2 September 2021 until the
date of effective payment.
31. With regard to the requested interest over the contractual penalty of USD 129,262.5, the Chamber
recalled its long-standing jurisprudence establishing that no interest is due over penalty fees. In
light of the above, the DRC rejected the said request of the Claimant.
iii. Compliance with monetary decisions
32. 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.
33. 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.
34. 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.
35. 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.
36. 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
37. 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.
38. 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.
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39. 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, Alexandru Mitrita, is partially accepted.
2.
The Respondent, Al Ahli, has to pay to the Claimant, the following amount(s):
- USD 1,292,625 as outstanding remuneration plus 5% interest p.a. as from 2 September 2021 until
the date of effective payment;
- USD 129,262.5 as contractual penalty.
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 (August 2021 edition),
if full payment (including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1.
2.
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.
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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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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