Labour Disputes
Texto da decisão
REF FPSD-2123
Decision of the
DRC Judge
passed on 11 August 2021
regarding an employment-related dispute concerning the player Emiliano Gaston
Mozzone Sueiro
BY:
S tijn Boey kens (Belgium )
CLAIMANT:
Emiliano Gaston Mozzone Sueiro, Uruguay
Represented by Luca Tettamanti
RESPONDENT:
FK Bylish SH.A, Albania
Represented by Mr Jan Schweele
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REF FPSD-2123
I.
FACTS OF THE CASE
1.
On 31 January 2020, the Uruguayan player, Emiliano Gaston Mozzone Sueiro (hereinafter:
Claimant), and the Albanian club, FK Bylish SH.A (hereinafter: Respondent) signed an
employment contract (hereinafter: contract) valid as from 27 January 2020 until 31 May
2020. The player was on loan with the Respondent from the Uruguayan club, CA Fenix.
2.
According to the contract, the Respondent undertook to pay the player a monthly salary of
EUR 3,000.
3.
On 12 March 2020, the Albanian Football Federation suspended all football activities due
to the COVID-19 outbreak until 3 June 2020.
4.
On 24 March 2020, according to the club, the player was sanctioned with a fine of EUR
600 due to “disobedience to the coach”.
5.
On 13 May 2020, the player put the club in default and requested payment of EUR 8,783
(part of January 2020; EUR 483,87), February 2020 (EUR 3,000), March 2020 (EUR 3,000)
and April 2020 (EUR 3,000).
6.
On 24 May 2020, according to the club, the player was sanctioned with a fine of EUR 200
for missing a training session.
7.
On 27 May 2020, according to the club, the player was sanctioned with a fine of EUR 300
having “abandoned a training session”.
8.
On 28 May 2020, the club replied and held having remitted the salaries of February and
March 2020, but informed not to pay the player’s salary as of 12 March 2020 due to the
outbreak of COVID-19.
9.
On 2 June 2020, CA Fenix, the Claimant and the Respondent extended the loan until 3
August 2020, applying the same conditions as defined in the contract.
10.
On 23 September 2020, the player put the club in default again, requesting payment of
EUR 7,267 net within 15 days.
11.
On 8 October 2020, the club replied stating that the player is not entitled to receive his
salaries of March, May and July 2020 due to internal disciplinary sanctions imposed.
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REF FPSD-2123
II.
PROCEEDINGS BEFORE FIFA
12.
On 23 March 2021, 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
13.
The Claimant lodged a claim against the Respondent in front of FIFA, requesting payment
of EUR 12,300 as outstanding remuneration plus 5% interest as of the due dates.
14.
In his claim, the player held being entitled to the total amount of EUR 18,641 during the
contract and he acknowledged payments in the total amount of EUR 6,341. Therefore, he
concluded that the amount of EUR 12,300 remained outstanding, as follows:
15.
Furthermore, the player held that the club deducted amounts from his salaries with alleged
disciplinary sanctions months after such incidents allegedly occurred. According to the
player, such deductions shall not be taken into account.
16.
Moreover, the Claimant argued that deductions related to COVID-19 cannot be imposed
retrospectively and shall therefore also not be taken into account.
b.
Position of the Respondent
17.
In its reply, the Respondent rejected the claim and argued that the Claimant is only entitled
to EUR 477.
18.
The Respondent argued that due to the suspension of the football activities between 12
March 2020 and 3 June 2020, and due force majeure in accordance with Albanian labour
law as well as the FIFA COVID-19 Football Regulatory Issues, the contractual obligations
were suspended as well.
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19.
On account of the above, the Respondent held that the player was still entitled to receive
the minimum wage in Albania and that such unilateral variation was made “without
discrimination” applying to all the players and in accordance with FIFA regulations.
20.
According to the club, the player was entitled to a net salary of EUR 2,190 per month and
was suspended during the COVID outbreak. Therefore, the player was entitled to EUR 7,418
in total, from which EUR 5,841 were acknowledged by the player.
21.
From the residual amount of EUR 1,577, according to the club, the fines due to disciplinary
violations have to be deducted EUR 1,100, which leaves a total of EUR 477.
22.
Additionally, the Respondent held that the maximum the player could claim is EUR 7,267,
which is the net amount he was claiming in his default notice on 27 September 2020.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
23.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to 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 March 2021 and submitted for
decision on 28 July 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.
24.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules
and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22
lit. b of the Regulations on the Status and Transfer of Players (edition February 2021), he 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.
25.
Subsequently, the DRC Judge 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 23 March 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b.
Burden of proof
26.
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.
27.
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.
28.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
he 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
it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
29.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the parties dispute the outstanding remuneration the
player is entitled to.
30.
In this context, the DRC Judge acknowledged that his task was to detail to which amounts
the player is entitled to or if the club fulfilled its financial obligations as per contract.
31.
On account of the above, the DRC Judge noted that the parties concluded a contractual
relationship as from 27 January 2020 until 31 May 2020 and then extended it until 3 August
2021, including a monthly salary of EUR 3,000.
32.
Consequently, the DRC Judge established that the player was entitled to a total amount of
EUR 18,800 during the contractual relationship.
33.
The DRC Judge then turned his attention to the argument of the Respondent that the
contract was suspended during the COVID-break in Albania.
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34.
Having said that, the DRC Judge wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim
at providing appropriate guidance and recommendations to member 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, on 11 June
2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which
provides clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
35.
For the present dispute, it is important to note that based on the COVID-19 Guidelines, as
well as the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in
any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
36.
The DRC Judge wished to emphasize that the Respondent failed to submit any
docuementation in order to proof that it complied with FIFA’s COVID regulations regarding
unilateral variations.
37.
In this context, the DRC Judge considered that the arguments raised by the Respondent
cannot be considered a valid reason for non-payment of the monies claimed by the
Claimant, in other words, the reasons brought forward by the Respondent in its defence
do not exempt the Respondent from its obligation to fulfil its contractual obligations
towards the Claimant.
38.
Subsequently, the DRC Judge analysed the argument of the Respondent that several
disciplinary fines in the total amount of EUR 1,100 were imposed on the player and that
those amounts have to be deducted.
39.
In this regard, the DRC Judge noted that the Respondent failed to submit any transmission
report of such fines and that the dates said fines were imposed occurred months after the
alleged incidences. The DRC Judge raised serious doubts if the Claimant’s right to be heard
was respected.
40.
Furthermore, and irrespective of the foregoing consideration, the DRC Judge wished to
point out that the imposition of a fine, or any other available financial sanction in general,
shall not be used by clubs as a means to set off outstanding financial obligations towards
players. Consequently, the DRC Judge decided to reject the Respondent’s argument in this
connection.
41.
As a conclusion, the DRC Judge established that the player acknowledged receipt of
payments in the total amount of EUR 6,341, whereby he was entitled to receive EUR
18,800.
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42.
Taking into account the above-mentioned considerations, and since the Claimant limited
his claim to EUR 12,300, the DRC Judge decided to award such amount to the player.
ii. Consequences
43.
Consequently, the DRC Judge 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 12,300 plus 5% interest as of 4 August 2020, i.e.
the day after the contract expired.
iii. Compliance with monetary decisions
44.
Finally, taking into account the consideration under number 25. above, the DRC Judge
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.
45.
In this regard, the DRC 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.
46.
Therefore, bearing in mind the above, the DRC 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. 24bis par. 2, 4, and 7 of the Regulations.
47.
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.
48.
The DRC 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. 24bis
par. 8 of the Regulations.
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d.
Costs
49.
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 Chamber decided that
no procedural costs were to be imposed on the parties.
50.
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.
51.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Emiliano Gaston Mozzone Sueiro, is partially accepted.
2.
The Respondent, FK Bylish SH.A, has to pay to the Claimant, the following amount:
- EUR 12,300 as outstanding remuneration plus 5% interest p.a. as from 4 August 2020 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 article 24 bis 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 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 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 24 bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer
of Players.
7. This decision is rendered without costs.
For the DRC 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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