Labour Disputes
Texto da decisão
REF FPSD-3003
Decision of the
Dispute Resolution Chamber
passed on 19 August 2021
regarding an employment-related dispute concerning the player Mattia Montini
COMPOSITION:
HENDEL Clifford (USA/France), Deputy Chairman
VERMEER Roy (The Netherlands), member
PIVOVAROV Pavel (Russia), member
CLAIMANT:
Mattia Montini, Italy
Represented by Mr Ludovic Deléchat
RESPONDENT:
AFC Astra Giurgiu, Romania
Page 2
REF FPSD-3003
I.
FACTS OF THE CASE
1.
On 5 October 2020, the Italian player, Mattia Montini (hereinafter: Claimant), and the
Romanian club, AFC Astra Giurgiu (hereinafter: Respondent) signed an employment
contract (hereinafter: contract) valid as from the date of signature until 15 June 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant;
- EUR 7,000 net as monthly salary between October 2020 and June 2021;
- EUR 10,000 net as “installation premium”, payable on 15 October 2021 ;
- EUR 10,000 net as monthly salary between July 2021 and 15 June 2022;
- EUR 400 as monthly housing allowance;
- EUR 200 as monthly car allowance.
Art. V.7 of the contract reads as follows: “the amounts calculated and due to the football
player according to the present Contract will be paid by the Club on a monthly basis, on or
before 15th day of the month following the month for which the payment is made”.
3.
4.
On 19 February 2021, the Claimant put the Respondent in default and requested payment
of EUR 21,000, corresponding to the salaries of December 2020, January 2021 and February
2021, within 15 days.
5.
On 3 March 2021, the Respondent remitted the amount of Romanian Lei (RON) 108,218
(approx. EUR 22,000) to the player. According to the Claimant such amount corresponds
to his salaries and allowances as from October 2020 until December 2020.
6.
On 1 April 2021, the Respondent remitted the amount of RON 34,300 (approx. EUR 7,000)
to the player. According to the Claimant such amount corresponds to his salaries (without
allowances) from January 2021.
7.
On 29 April 2021, the Respondent remitted the amount of RON 8,622 (approx. EUR 1,750)
to the player. According to the Claimant such amount corresponds to match bonuses.
8.
On 17 June 2021, the Claimant terminated the contract since the Respondent failed to fulfil
its financial obligations, referring to his previous default notice and Art. 14bis RSTP.
9.
The player remained unemployed during until today.
II.
PROCEEDINGS BEFORE FIFA
10.
On 8 July 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
Page 3
REF FPSD-3003
a.
11.
The claim of the Claimant
The Claimant lodged a claim against the Respondent and requested payment of the
following monies:
- EUR 28,000 net as outstanding remuneration (February to May 2021; 4x EUR 7,000);
- EUR 2,000 as accommodation allowance (January to May 2021; 5x EUR 400)
- EUR 1,400 as car allowance (7x EUR 200)
- EUR 134,800 net as compensation for breach of contract, corresponding to the residual
value;
- EUR 30,000 as additional compensation in line with art. 17 RSTP.
The player requested interest of 5% p.a. as of the due dates, respectively as of the
termination (17 June 2021).
12.
In his claim, the Claimant argued having had just cause to terminate the contract on 17
June 2021.
13.
According to the player, the club constantly delayed payments throughout the contractual
relationship and the amounts claimed in his default notice remained unpaid.
b.
Position of the Respondent
14.
The Respondent failed to reply to the claim.
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 08 July 2021 and submitted
for decision on 19 August 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.
16.
Subsequently, the members of the Chamber 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 a player and a
club.
Page 4
REF FPSD-3003
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 Player (edition February 2021), and
considering that the present claim was lodged on 8 July 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
18.
The Chamber 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 stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
19.
In this respect, the Chamber 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.
20.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
21.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the Claimant’s argumentation that he terminated the contract with just
cause, after 4 monthly salaries as well as accommodation and car allowances, remained
outstanding despite a default notice.
22.
The Respondent, for its part, failed to present its response to the claim of the player, in spite
of having been invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
23.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 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.
Page 5
REF FPSD-3003
24.
In this context, the Chamber acknowledged that the Claimant’s allegations remained
uncontested. Taking into account art. 14bis of the Regulations and in view of the
outstanding remuneration of more than 4 monthly salaries as well as the default notice
sent, the Chamber concluded that the Claimant had just cause to terminate the contract
with the Respondent on 17 June 2021.
ii. Consequences
25.
In accordance with the above-mentioned considerations, the Chamber decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is liable
to pay to the Claimant outstanding remuneration in the total amount of EUR 28,000,
corresponding to the player’s salaries of February 2021 May 2021, EUR 2,000,
corresponding to the player’s accommodation allowance between January and May 2021
as well as EUR 1,400 as car allowance for 7 months, plus 5% interest as of the respective
due dates.
26.
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.
27.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive compensation for breach of contract from the Respondent.
28.
In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of 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 Claimant 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.
29.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contains 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.
Page 6
REF FPSD-3003
30.
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. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body. In this
regard, the Dispute Resolution Chamber emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a case-by-case
basis taking into account all specific circumstances of the respective matter.
31.
The members of the Chamber then turned their attention to the remuneration and other
benefits due to the Claimant under the existing contract and/or the new contract, which
criterion was considered by the Chamber to be essential. The members of the Chamber
deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations
allows the Chamber to take into account both the existing contract and the new contract,
if any, in the calculation of the amount of compensation.
32.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from the date of
termination with just cause by the Claimant until its natural expiration, i.e. 15 June 2022
Therefore, the Chamber concluded that the amount of EUR 134,800 serves as the basis for
the final determination of the amount of compensation for breach of contract in the case
at hand.
33.
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, 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.
34.
In this respect, the Chamber noted that the Claimant had not found new employment and
therefore was not able to mitigate his damages.
35.
Consequently, on account of the above-mentioned considerations, the Chamber decided
that the Respondent must pay the amount of EUR 134,800 as compensation for breach of
contract to the Claimant, which is considered by the Chamber to be a fair and reasonable
amount.
36.
In addition, taking into consideration the player’s claim, the Chamber decided to award the
Claimant interest at the rate of 5% p.a., as of the date of the claim.
37.
As a conclusion the Chamber decided to partially accept the player’s claim.
Page 7
REF FPSD-3003
iii. Compliance with monetary decisions
38.
Finally, taking into account the consideration under number 17. above, the Chamber
referred to par. 1 lit. and 2 of art. 24bis 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.
39.
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.
40.
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.
41.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
42.
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
43.
The Chamber 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 Chamber decided that no procedural
costs were to be imposed on the parties.
44.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
45.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 8
REF FPSD-3003
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Mattia Montini, is partially accepted.
2.
The Respondent, AFC Astra Giurgiu, has to pay to the Claimant, the following amounts:
a. EUR 200 as outstanding remuneration plus 5% interest p.a. as from 16 December 2020
until the date of effective payment;
b. EUR 200 as outstanding remuneration plus 5% interest p.a. as from 16 January 2021 until
the date of effective payment;
c. EUR 600 as outstanding remuneration plus 5% interest p.a. as from 16 February 2021
until the date of effective payment;
d. EUR 7,600 as outstanding remuneration plus 5% interest p.a. as from 16 March 2021
until the date of effective payment;
e. EUR 7,600 as outstanding remuneration plus 5% interest p.a. as from 16 April 2021 until
the date of effective payment;
f. EUR 7,600 as outstanding remuneration plus 5% interest p.a. as from 16 May 2021 until
the date of effective payment;
g. EUR 7,600 as outstanding remuneration plus 5% interest p.a. as from 16 June 2021 until
the date of effective payment;
h. EUR 134,800 as compensation for breach of contract plus 5% interest p.a. as from 8 July
2021 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 set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
Page 9
REF FPSD-3003
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 10
REF FPSD-3003
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:
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
Page 11