Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
Johan v an Gaalen (S outh Africa), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
Andrej Mrkela, Serbia,
represented by Mr Mico Petkovic
as Claimant
against the club,
ACS Poli Tim is oara, Romania
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 27 June 2018, the Serbian player, Mr Andrej Mrkela (hereinafter: the player
or the Claimant), concluded an employment contract (hereinafter: the
contract) with the Romanian club ACS Poli Timisoara (hereinafter: the club or
the Respondent), valid as from 1 July 2018 until 30 June 2020.
2.
For the season 2018/2019, the player was entitled, inter alia, to a monthly
remuneration of EUR 2,000 “paid in lei at the BNR course of the specific day”.
The contract stipulated that “the salary shall be paid on each day of 20 of the
month following the month the payment is made for”.
3.
On 25 October 2018, the player put the club in default for the payment of EUR
6,000, corresponding to the salaries for July, August and September 2018.
Furthermore, the player informed the club about its failure to take care of his
work permit, stating that the player cannot enter Romania and join the team.
4.
On 21 November 2018, the player unilaterally terminated the contract invoking
the club’s the clubs non-compliance with its contractual obligations.
5.
On 1 April 2019, the player lodged a claim for breach of contract in front of
FIFA and requested the payment of the following amounts:
-
RON 44,412, corresponding to the outstanding remuneration for the period
from 1 July 2018 until 23 November 2018;
-
RON 40,144.2 and EUR 30,000, corresponding to the “compensation for
breach of the Employment contract”.
6.
In his claim, the player deemed that the club “had seriously and severely
neglected its contractual obligations” and therefore he terminated the
contract with just cause.
7.
In its reply, the club rejected the claim. Although it did not contest the claimed
amounts of the player, it argued that the club has entered an insolvency
proceeding, which has an effect on the admissibility of the claim.
8.
Furthermore, due to the insolvency proceedings, the club denied being at any
fault.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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. Taking into account the wording of art. 21 of the 2019 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.
Player Andrej Mrkela, Serbia / Club ACS Poli Timisoara, Romania
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2.
With regard to the competence of the Dispute Resolution Chamber, art. 3 par.
1 of the Procedural Rules states that the Dispute Resolution Chamber shall
examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the
Status and Transfer of Players (edition January 2020). In accordance with art.
24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations,
the Dispute Resolution Chamber would, in principle, be competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a Serbian player and a Romanian club.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies to deal with the matter at hand, because
of the existence of insolvency proceedings involving the player and the club
before a Romanian court. In this regard, the club deemed that the player “had
the obligation to file for his claim to the court”, but that the player failed to
do it and therefore is “now time-barred from obtaining these amounts”.
4.
The Chamber also took note of the Respondent’s further argument that if FIFA
would accept the player’s claim, “the enforcement of such decision would be
legally impossible to be enforced”. At his point the DRC went on to analyse the
documentation provided by the club in support of its allegations.
5.
In this respect, the members of the Chamber noted that the Respondent
provided a copy of the court decision in Romanian, however, that it was not
able to provide a duly translated version of the decision and, consequently, this
document could not be taken into account, in accordance with art. 9 par. 1 lit.
e) of the Procedural Rules, which stipulates that all documentation provided in
the context of a dispute in front of FIFA should be presented in the original
version and, if applicable, translated into one of the official FIFA languages
(English, French, Spanish and German).
6.
Moreover, for the sake of clarity, the members of the Chamber stressed
that in accordance with the jurisprudence of both the DRC and the Court of
Arbitration for Sport, bankruptcy/insolvency procedures in principle do not
affect procedures in front of the DRC as long as the relevant club remains
affiliated to its respective association. What is more, the members of the
Chamber noted, from the information on file as well as following publicly
available sources that the club is still affiliated to the Romanian Football
Federation.
7.
Having established the foregoing, the Chamber deemed that the club’s
objection to the competence of FIFA to deal with the present matter has to be
rejected and it is competent on the basis of art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, to consider the present matter as to the
substance.
8.
Subsequently, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber referred, on the one hand, to art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (editions June
Player Andrej Mrkela, Serbia / Club ACS Poli Timisoara, Romania
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2019, October 2019 and January 2020) and, on the other hand, to the fact that
the present claim was lodged on 1 April 2019. The Dispute Resolution Chamber
concluded that the June 2019 version of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
9.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber
started by acknowledging the above-mentioned facts as well as the
documentation contained in the 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.
10.
Having said this, the Chamber proceeded with the analysis of the circumstances
surrounding the present matter, the parties’ arguments as well as the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules,
in accordance with which any party claiming a right on the basis of an alleged
fact shall carry the burden of proof.
11.
In this respect, the Chamber observed that the parties had signed an
employment contract on 27 June 2018, in accordance with which the player
was entitled to receive, inter alia, a monthly remuneration of EUR 2,000 “paid
in lei at the BNR course of the specific day”, payable “on each day of 20 of the
month following the month the payment is made for”.
12.
The Chamber further observed that the Claimant lodged a claim before FIFA,
asserting that the he had terminated the employment contract just cause on
21 November 2018, invoking the club’s non-compliance with its contractual
obligations. The Chamber noted that the Claimant deemed that the club “had
seriously and severely neglected its contractual obligations” as it allegedly did
not pay any of his salaries as well as it did not take care of his work permit,
disabling him to enter Romania and join the team.
13.
Conversely, the Chamber noted that the Respondent rejected the player’s
claim, although did not deny its debts towards the player.
14.
As a result, the Chamber understood that the main legal issue at stake is to
establish whether the player had just cause to terminate the contract.
15.
A a preliminary note, the Chamber was eager to emphasise that only a breach
or misconduct which is of a certain severity justifies the termination of a
contract. In other words, only when there are objective criteria which do not
reasonably permit to expect a continuation of the employment relationship
between the parties, a contract may be terminated prematurely. Hence, if there
are more lenient measures which can be taken in order for an employer to
ensure the employee’s fulfilment of his contractual duties, such measures must
be taken before terminating an employment contract. A premature
Player Andrej Mrkela, Serbia / Club ACS Poli Timisoara, Romania
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termination of an employment contract can only ever be an ultima ratio
measure.
16.
In this respect, the Chamber went on to analyze the documentation provided
during the course of the investigation. In this respect, the Chamber noted that
the player submitted evidence that on 25 October 2018, he put the club in
default for the payment of EUR 6,000, corresponding to the salaries for July,
August and September 2018, before terminating the contract on
21 November 2018. Besides, the Chamber observed that the player asked to be
awarded his outstanding dues, as well as the payment of compensation for
breach of the employment contract.
17.
The Chamber took into account that the Respondent, for its part, does not
contest that it owes the Claimant the amounts in question, hence implicitly
confirming that it has not made any payment whatsoever to the Claimant. The
Respondent’s sole line of defense is that due to the insolvency proceedings, it
cannot be at any fault.
18.
In view of the above, the Chamber established at this point that, at the date of
the termination of the contract, the Respondent owed to the Claimant the
amount of EUR 6,000, corresponding to his salaries for July, August and
September 2018.
19.
In accordance with the employment contract, and taking into account
the player’s statements that the club failed to pay him the remuneration he
was entitled to until 21 November 2018, the DRC could establish that at the
time the contract was terminated, i.e. on 21 November 2018, the Respondent
had failed to pay the Claimant five monthly salaries for the period between
July 2018 and November 2018. Further, the members of the Chamber noted
that said circumstances remained uncontested by the Respondent.
20.
In addition, the Chamber noted that the Claimant further invoked for the early
termination of the contract that the Respondent did not correctly handle his
work permit.
21.
In relation to said issue, the DRC observed, the Respondent argued that “the
Romanian Authority for Foreign persons denied it justified by our entering into
insolvency and by the fact that the club did not have a restructuring plan at the
time of the application”.
22.
In relation to the work permit, the DRC deemed it appropriate to emphasize
that according to its well-established jurisprudence, it is the club’s responsibility
to undertake all administrative measures to ensure that the player is provided
a visa and/or work permit, in order to perform his work, as per the employment
contract. Moreover, since it appears that the club did not pay the player several
outstanding salaries, as well as that from the club’s behaviour, it could be
established that it appeared to be no longer interested in the services of the
player.
Player Andrej Mrkela, Serbia / Club ACS Poli Timisoara, Romania
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23.
In view of the above, the Chamber concluded that the club had to be held liable
for the early termination of the employment contract with just cause by the
player and was liable to compensate the player. In particular, the Chamber
considered that the Respondent seriously neglected its financial obligations.
24.
In continuation, the Chamber focused its attention on the consequences of
such termination.
25.
In this regard, prior to establishing the consequences of the breach of contract
with just cause by the player in accordance with art. 17 par. 1 of the
Regulations, the Chamber held that it had to address the issue of any unpaid
remuneration at the moment the contract was terminated by the club.
26.
First of all, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract in accordance with the
general legal principle of pacta sunt servanda. In his statement of claim, the
player alleges that his remuneration, relating to the period between 1 July
2018 and 23 November 2018, was to be considered outstanding.
27.
Bearing that in mind, the DRC decided that the player is entitled to the
outstanding remuneration for the salaries of July 2018, August 2018,
September 2018, October 2018 and November 2018, i.e. EUR 8,000. Recalling
the wording of the employment contract, which stipulates that the salary is
“paid in lei at the BNR course of the specific day”, the DRC concluded that the
outstanding remuneration must be calculated into the local currency, at the
exchange rate on the respective due date. The DRC observed that the
equivalent amount of EUR 8,000 corresponds to RON 46,586.60.
28.
Consequently, the DRC Chamber determined that the club had to pay the
equivalent amount of RON 46,586.60 as outstanding remuneration to the
player.
29.
Having established that the Respondent is to be held liable for the early
termination of the employment contract without just cause, the Chamber
focused its attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant would, in principle, be entitled to receive from the Respondent an
amount of money as compensation for breach of contract.
30.
Subsequently, 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
Player Andrej Mrkela, Serbia / Club ACS Poli Timisoara, Romania
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contractual breach falls within the protected period. Moreover, the Chamber
noted that, following art. 17 par 1. I of the Regulations, in case the player did
not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
31.
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 its date of termination without just cause by the Respondent, i.e. 21
November 2018 and concluded that the Claimant would have received in total
amount of EUR 38,000, corresponding to the period as from December 2018
until 30 June 2020, which corresponds to the original date of expiration of the
contract.
32.
Consequently, the Chamber concluded that the amount of EUR 38,000 serves
as the basis for the final determination of the amount of compensation for
breach of contract in the case at hand. In this context, the DRC again referred
to the contract, which stipulated that the salaries are paid in local currency. In
this regard, the Chamber concluded that the applicable conversion rate shall
be at the date of termination of employment contract, i.e. RON 177,054.
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
Claimant’s general obligation to mitigate his damages. The Chamber noted
that the Claimant was not able to mitigate his damages, as he did not sign a
new employment contract for the relevant period of time.
34.
Furthermore, taking into account the consideration under number II./8. above,
the Chamber referred to par. 1 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.
35.
In this regard, the Chamber established that, in virtue of the aforementioned
provision, it has competence to impose a sanction on the club. More in
particular, the DRC pointed out that, against clubs, the sanction shall consist in
a ban from registering any new players, either nationally or internationally, up
until the due amount is paid and for the maximum duration of three entire
and consecutive registration periods.
36.
Therefore, bearing in mind the above, the DRC decided that, in the event that
the club does not pay the amount due to the player within 45 days as from the
moment in which the player, following the notification of the present decision,
communicates the relevant bank details to the club, a ban from registering any
Player Andrej Mrkela, Serbia / Club ACS Poli Timisoara, Romania
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new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become effective on the
club in accordance with art. 24bis par. 2 and 4 of the Regulations.
37.
Finally, the Chamber recalled that the above-mentioned sanction will be lifted
immediately and prior to its complete serving upon payment of the due
amounts, in accordance with art. 24bis par. 3 of the Regulations.
38.
The Chamber concluded its deliberations by rejecting any further claim lodged
by the Claimant.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Andrej Mrkela, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, ACS Poli Timisoara, has to pay to the Claimant outstanding
remuneration in the amount of RON 46,586.60.
4.
The Respondent has to pay to the Claimant compensation for breach of
contract in the amount of RON 177,054.
5.
In the event that the due amounts in accordance with points 3. and 4. are not
paid by the Respondent within 30 days as from the notification of the decision,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned
time limit until the date of effective payment.
6.
Any further claim lodged by the Claimant is rejected.
7.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the email address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts plus interest mentioned under points 3. and 4. above.
8.
The Respondent shall provide evidence of payment of the due amounts in
accordance with points 3. and 4. above to FIFA to the e-mail address
[email protected], duly translated into one of the official FIFA languages
(English, French, German, Spanish).
9.
In the event that the amounts due in accordance with points 3. and 4. above
are not paid by the Respondent w ithin 45 day s as from the notification by
the Claimant of the relevant bank details to the Respondent, the Respondent
shall be banned from registering any new players, either nationally or
internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods (cf. art. 24bis of
the Regulations on the Status and Transfer of Players).
Player Andrej Mrkela, Serbia / Club ACS Poli Timisoara, Romania
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10.
The ban mentioned in point 9. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
11.
In the event that the amounts due in accordance with points 3. and 4. above
are still not paid by the end of the ban of three entire and consecutive
registration periods, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for consideration and a formal decision.
Note related to the publication:
*****
The FIFA administration may publish decisions issued by the Players’ Status
Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be
sent to the CAS directly within 21 days of receipt of notification of this decision and
shall contain all the elements in accordance with point 2 of the directives issued by
the CAS. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Andrej Mrkela, Serbia / Club ACS Poli Timisoara, Romania
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