Labour Disputes
Texto da decisão
REF FPSD-5612
Decision of the
Dispute Resolution Chamber
passed on 9 June 2022
regarding an employment-related dispute concerning the player Iván Márquez
Álvarez
BY:
Frans de Weger (Netherlands), Chairperson
Michele Colucci (Italy), member
Iñigo Riestra (Mexico), member
CLAIMANT:
Iván Márquez Álvarez, Spain
Represented by Tiberi Legal Sport
RESPONDENT:
Korona Kielce, Poland
Represented by SW Kancelaria Adwokacka Szczukiewicz
Wierzchowska
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I.
Facts of the case
1. On 16 August 2018, the Spanish player, Iván Márquez Álvarez (hereinafter: the Claimant),
and the Polish club, Korona Kielce (hereinafter: the Respondent) signed an employment
contract valid as from 16 August 2018 until 30 June 2020 (hereinafter: the Contract).
2. In accordance with the Contract, the Respondent undertook to pay to the Claimant inter
alia EUR 10,500 per month for the 2019/2020 season, provided that the Claimant plays in
at least 20 matches of the Ekstraklasa.
3. Furthermore, in accordance with the Contract, the Respondent undertook to pay the
Claimant a bonus for each point scored by the team in the first 30 league matches of the
season, in the amount of:
-
EUR 400 gross, if the Claimant starts the match in the starting eleven;
EUR 200 gross, if the Claimant enters the match as a substitute;
EUR 100 gross, if the Claimant does not enter the match but is a substitute.
4. Additionally, in accordance with the Contract, the Claimant and the Respondent
(hereinafter: the Parties) agreed the following:
“All dispute matters concerning the validity, existence or termination of this Contract are
settled by the proper PZPN and FIFA authorities acting in accordance with separate
regulations. Property disputes resulting from the Contract are submitted to the competence
of the Football Arbitration Court acting at PZPN or the competent authority at FIFA.”
5. On 9 March 2020, due to personal reasons, the Claimant requested permission from the
Respondent to leave Poland in order to travel to Spain. This permission was granted by
the Respondent. The Claimant was subsequently absent from one match.
6. On 13 March 2020, the Polish Professional Football League Ekstraklasa announced that
league games would be suspended until the end of March 2020 due to the outbreak of the
COVID-19 pandemic.
7. On 14 March 2020, the Spanish Government introduced COVID-related travel restrictions,
preventing the Claimant from leaving the country.
8. On 20 March 2020, Ekstraklasa announced that league games would resume as from 8
May 2020.
9. On 23 March 2020, the Claimant received a letter from the Respondent, calling him to
return to Poland by 31 March 2020, in order to begin training following mandatory
quarantine, for the restart of the season.
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10. On 24 March 2020, the Claimant communicated to the Respondent via his agent that he
was unable to return to Poland, given the travel restrictions in Spain at the time, but
assured the Respondent that he would return when the authorities allowed him to.
11. By correspondence dated 28 March 2020, the Respondent proposed to the Claimant that
it would unilaterally reduce his salary by 50% until the end of the contractual term, and
further outlined that most of the Claimant’s teammates agreed to lower their salaries as
requested by the Respondent, with only a minority terminating their contracts.
12. By correspondence dated 8 April 2020, the Claimant formally rejected the proposal to
reduce his salary and to return to Poland, due to his difficult family situation and the need
to earn money for that purpose.
13. By correspondence dated 10 April 2020, the Respondent unilaterally terminated the
Contract, justifying that there is a “lack of possibility of providing mutual benefits, for which
neither party is liable as they are caused by force majeure.”
14. By correspondence dated 29 April 2020, the Claimant put the Respondent in default of
payment of EUR 61,100, setting a time limit expiring on 9 May 2020 in order to remedy
the default.
15. By correspondence dated 10 May 2020, the Claimant put the Respondent in default of
payment of EUR 61,100 for a second time, setting a time limit expiring on 20 May 2020 in
order to remedy the default.
16. By correspondence dated 15 May 2020, the Respondent informed the Claimant that it
would not pay him compensation for premature termination, as it believed that the Contract
was terminated with just cause.
17. By correspondence dated 21 May 2020, the Claimant put the Respondent in default of
payment of EUR 61,100 for a third time, setting a time limit expiring on 31 May 2020 in
order to remedy the default.
18. After the Claimant put the Respondent in default for a third time, the latter paid the former
the outstanding remuneration due until the date of termination, namely the salaries for the
months of February and March, in accordance with the Contract.
19. By correspondence dated 7 March 2022, the Claimant put the Respondent in default of
payment of EUR 40,100, setting a time limit expiring on 17 March 2022 in order to remedy
the default.
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20. By correspondence dated 17 March 2022, the Respondent reiterated its previous stance
to the Claimant that it considers that the Contract was terminated with just cause on 10
April 2020.
21. On 1 August 2020, the Claimant and the Polish club MKS Cracovia SSA signed an
employment contract valid as from 1 August 2020 until 30 June 2022 (hereinafter: the New
Contract).
II. Proceedings before FIFA
22. On 29 March 2022, 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
23. According to the Claimant, with regards to the competence of FIFA, the purported
arbitration clause under Article 6.2 of the Contract is ambiguous and does not exclude
FIFA’s jurisdiction explicitly.
24. As for the merits of the case itself, the Claimant argues that the Respondent terminated the
Contract without just cause, relying in particular on the principles of pacta sunt servanda
and contractual stability.
25. The Claimant, therefore, requested compensation in the amount of EUR 40,100,
corresponding to three monthly salaries of EUR 10,500 each, or the residual value of the
Contract, as well as bonuses due under the Contract, in the amounts of EUR 900 and
EUR 7,700 respectively.
26. With regards to interest, the Claimant requested 5% p.a. as from 10 April 2020 until the
date of effective payment.
27. The Claimant also requested that the Respondent shall be sanctioned in line with art. 17
par. 4 of the Regulations on the Status and Transfer of Players.
28. Lastly, the Claimant requested that all legal and procedural costs are paid by the
Respondent.
b. Position of the Respondent
29. The Respondent replied to the Claim on 22 April 2022, rejecting the claim in its entirety
and submitting as follows:
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30. According to the Respondent, with regards to the competence of FIFA, the arbitration
clause under Article 6.2 of the Contract explicitly states that disputes relating to the
Contract shall be decided by the proper PZPN authority, and in the case of a property
dispute resulting from the Contract, the Football Arbitration Court acting at PZPN shall be
competent. As a result, the Respondent submits that FIFA is not competent to hear the
present dispute.
31. Moreover, the Respondent submits that the Football Arbitration Court acting at PZPN
satisfies the requirements for an independent arbitral tribunal set out in FIFA Circular No.
1010, making it competent to hear the dispute at hand.
32. As for the merits of the case, the Respondent argues that the Contract was terminated on
10 April 2020 with just cause, due to “force majeure” circumstances and the “lack of
possibility of providing mutual benefits”.
33. The Respondent argues that it had no other option than to terminate the Contract, given
the extraordinary circumstances caused by COVID-19 and the financial difficulty in which
it found itself as a result thereof.
34. Furthermore, the Respondent submits that the Claimant fundamentally breached his
obligations under the Contract by not returning to Poland when summoned; in particular,
it is argued that the Claimant at one point no longer relied on the logistical impossibility of
leaving Spain, but instead argued that he needed to tend to his difficult family situation,
and that, by being free to choose whether or not he would continue honouring his
obligations towards the Respondent, and choosing to pursue his own interests instead, he
fundamentally breached the Contract. As such, the termination occurred with just cause.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
35. 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 29 March 2022 and submitted
for decision on 9 June 2022. 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.
36. 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 (March 2022 edition), the Dispute
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Resolution Chamber is – in principle - competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Spanish player and a Polish club.
37. However, the Chamber noted that the Respondent challenged the competence of FIFA to
deal with the matter at hand, referring that based on art. 6.2 of the contract, the PZPN
Football Court of Arbitration is competent to deal with the matter at hand.
38. Entering into the analysis of the argumentation of the parties, the Chamber referred to
Article 6.2 of the Contract, according to which: ”All dispute matters concerning the validity,
existence or termination of this Contract are settled by the proper PZPN and FIFA
authorities acting in accordance with separate regulations. Property disputes resulting from
the Contract are submitted to the competence of the Football Arbitration Court acting at
PZPN or the competent authority at FIFA”.
39. The Chamber, after analysing the wording of the jurisdiction clause, concluded that such
clause did not clearly and exclusively establish the competence of the Football Arbitration
Court acting at PZPN, in accordance with art. 22 par. 1 lit. b) of the aforementioned
Regulations.
40. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need to
enter the analysis of any further requirement, it established that the Respondent’s objection
to the competence of FIFA to deal with the present matter has to be rejected and that the
Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of the
Regulations, to consider the present matter as to the substance.
41. 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 (March 2022 edition),
and considering that the present claim was lodged on 29 March 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
42. 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).
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c. Merits of the dispute
43. 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 above-mentioned 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
44. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether or not the
Contract was terminated by the Respondent with just cause. The Chamber equally took
due note of the Respondent’s argumentation regarding the effects of the COVID-19
pandemic.
45. In this context, the Chamber, first of all, wished to highlight that 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 clarifications on
the most relevant questions in connection with the regulatory consequences of the COVID19 outbreak and identifies solutions for new regulatory matters.
46. The Chamber also wished to refer to the fact that said guidelines – as per the explicit
wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are
only applicable to “unilateral variations to existing employment agreements”. Therefore,
except where a termination of a contract occurred following a unilateral variation made as
a result of COVID-19 (in which case the validity of the variation must first be assessed
under the guidelines), said guidelines do not apply to assess unilateral terminations of
existing employment agreements. The Chamber further noted that for the assessment of
disputes that are presented before the FIFA judicial bodies concerning the unilateral
termination of a contract, the FIFA Regulations as well as the established jurisprudence of
the Chamber shall apply.
47. As to the concept of a situation of force majeure, the Chamber also noted that, based on
the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 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
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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.
48. Following these general observations, the Chamber noted that, in the case at stake, the
Respondent proposed a unilateral variation to the Contract, which the Claimant rejected,
prior to the termination. The Chamber considered that this alone was sufficient in
establishing that the Respondent had terminated the Contract without just cause, in line
with the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19
guidelines.
49. Notwithstanding the above, the Chamber went on to analyse the allegation of the
Respondent – disputed by the Claimant – that the temporary absence of the latter as from
9 March 2022 until the date of termination, without authorisation after the announcement
that league matches would be resumed by the Polish Professional Football League,
consisted of a breach of contract on his part.
50. In view of the foregoing, the Chamber referred to art. 13 par. 5 of the Procedural Rules
(October 2021 edition), according to which a party that asserts a fact has the burden of
proving it, and went on to analyse the arguments provided by the parties in support of their
allegations. In this respect, the Chamber noted that the Respondent summoned the
Claimant to return from Spain to Poland, following the announcement by the Polish
Professional Football League that games shall resume on 8 May 2020, at a time when
there were travel restrictions in place in Spain. Notwithstanding the above, the Chamber
also noted that the Claimant, despite stating that he needed to tend to a difficult family
issue, never explicitly refused to return to the Respondent after the restrictions in Spain
would lift; on the contrary, the Claimant explicitly communicated, via his agent on 24 March
2020, that he intended to return to Poland after the restrictions in Spain, preventing him
from leaving, would be lifted.
51. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective criteria which
do not reasonably permit to expect the 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 assure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be an
ultima ratio.
52. With the above in mind and after having carefully analysed the parties’ submissions, the
Chamber concluded that the absence under the circumstances of the present case, namely
travel restrictions mandated by national law, preventing the Claimant from returning when
summoned, cannot be deemed as a substantial breach of an employment contract, capable
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of triggering the consequences of an unlawful termination. The Chamber also underlined
that, contrary to the Respondent’s argumentation, the Claimant did submit enough
evidence to demonstrate that the Respondent was fully aware of his difficulties to return to
the Respondent, namely the aforementioned communication made through his agent on
24 March 2020, in which he informed the Respondent of the fact that no outgoing flights
from Spain were available due to the COVID-19 travel restrictions mandated by the Spanish
government.
ii. Consequences
53. 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.
54. The Chamber observed that the Claimant had no outstanding amounts due to him under
the Contract at the time of termination. In this respect, it took note in particular of the fact
that both parties agreed that the Respondent, after being put in default for a third time on
21 May 2020, paid the outstanding salaries to the Claimant which corresponded to the
months of February 2020 and March 2020.
55. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, 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.
56. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the 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 Chamber established that no such
compensation clause was included in the Contract at the basis of the matter at stake.
57. 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.
58. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded
with the calculation of the monies payable to the Claimant under the terms of the Contract
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from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 40,100 (i.e. i.e. 3 times EUR 10,500, plus EUR 900,
plus EUR 7,700 or the residual value of the Contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
59. In continuation, the Chamber verified as to whether the Claimant had signed an
employment contract with another Respondent 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 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
Claimant’s general obligation to mitigate his damages.
60. Indeed, the Claimant found employment with MKS Cracovia SSA. However, in this respect,
the Chamber deemed it important to point out that the New Contract signed by the
Claimant had a contractual start date that was after the Contract with the Respondent
would have naturally expired.
61. Consequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which, in case there is no new contract to be taken into account, as a general rule, the
compensation shall be equal to the residual value of the Contract that was prematurely
terminated.
62. In this respect, the Chamber decided to award the Claimant compensation for breach of
contract in the amount of EUR 40,100, as the residual value of the Contract and the
contractual bonus payments due to the Claimant, the fulfilment of the necessary conditions
of which were substantiated by the Claimant in his request.
63. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of the date of claim, 29 March 2022 until the date
of effective payment.
iii. Compliance with monetary decisions
64. 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.
65. 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
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maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
66. 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.
67. 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.
68. 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
69. 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.
70. 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.
71. 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, Iván Márquez Álvarez, is partially accepted.
2.
The Respondent, Korona Kielce, has to pay to the Claimant the following amount:
- EUR 40,100 as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 29 March 2022 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 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
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
article 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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