Dispute Resolution Chamber
Texto da decisão
REF 20-01616
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Francisco Jose Navarro Aliaga
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Francisco Jose Navarro Aliaga, Spain
RESPONDENT:
KSC Lokeren Temse (as sporting successor of Sporting Club Lokeren Oost-Vlanderen NV), Belgium
Page 2 of 14
REF 20-01616
I.
Facts
1.
On 24 January 2019, the player and the Spanish club, Valencia CF concluded an employment
contract valid until 30 June 2022.
2.
On 11 July 2019, Valencia CF and the Respondent concluded a loan agreement for the
temporary transfer of the player from said date until 30 June 2020.
3.
On 11 July 2019, Valencia CF and the Claimant concluded an agreement on the suspension of
their employment contract.
4.
On 11 July 2019, the player and “Sporting Club Lokeren Oost-Vlanderen NV” concluded an
employment contract valid as from the date of signature until 30 June 2020.
5.
According to art. 11 of the contract, the player was entitled to the following:
Contractual fees
1.Fixed monthly fee:
EUR 6,000 gross
2.Variable fees : The Player is entitled to the following match premiums:
•Regular league competition (1*to Team):
o Draw:1,000 EUR
o Profit: EUR 3,000
• Match premieres Play Off 1 (1°" Squad):
O Draw: EUR 1,500
O Profit: EUR 4,500
» Match bonuses Play Off 2 (1*toTeam):
o Draw: Gelijk spel:500
o Profit: EUR 1,500
• Match premiums championship 2de Team:
o Draw: 25 EUR
o Profit: EUR 75
(…)
Guarantee of at least 45 points: If the Player has not earned a total of 45,000.00 euros (fortyfive thousand euros) (= 45 points in the regular season) at the end of the season, the Club will
adjust the difference between the actual match premiums and the sum of 45,000.00 euros. This
difference will be transferred to the Player together with the salary for the month of June.
4.All sorts - benefits:
Gross drawing premium per full season ttz:
For the 2019/2020 season: EUR 75,000 payable as follows:
In two equal discs 37,500 EUR payable per 31/07 and 15/02 of the current season
6.
On 29 November 2019, the player suffered a minor injury.
7.
According to the player, in January 2020, the club told him that they no longer counted in his
services.
8.
On 31 January 2020, the club offered to Valencia CF to terminate the loan agreement with
effect as from 29 January 2020.
Page 3 of 14
REF 20-01616
9.
The proposed mutual termination agreement (unsigned by the player) stated the following:
“LOKEREN and the Player have agreed to prematurely terminate the employment contract by
mutual agreement on 29/01/2020.”
10.
On the same date, Valencia CF replied as follows:
“Please note our astonishment as per the document received from your most esteemed club
which by no means reflects the agreement between the Parties.
As a result thereof you are referred to the loan agreement which is fully valid and binding”.
11.
On 3 February 2020, Lokeren replied as follows:
“We confirm that we have ended the employment contract between our club and Fran Navarro
explicitly at his request because he had the opportunity to go back to Valencia CF and he didn’t
want to play no longer for our club. We did it in good faith to help the player.”
12.
On 18 August 2020, the Belgian Football Association informed Valencia CF of the following:
“a Belgian Court dated April 20, 2020 the club KSC LOKEREN OOST VL has been declared
bankrupt and no longer participates in organised football.
(…)
Although our club SC TEMSE has changed its name to SC LOKEREN-TEMSE, it is a completely
different club and is not the legal successor of the former KSC LOKEREN OOST VL.”
13.
The player remained unemployed until “the rest of the season”, i.e. until 30 June 2020
14.
However, the player acknowledged that Valencia CF paid him the following amounts from
February until June 2020:
- EUR 778,34 for February 2020;
- EUR 632.63 for March 2020;
- EUR 632.63 for April 2020;
- EUR 177.81 for May 2020;
- EUR 177.82 for June 202
Total: EUR 2,399.23
15.
The Claimant attached and article named “new story” from Sporting Lokeren including, inter
alia, the following statements:
“SC Lokeren - Temse was baptized at the same location of yesteryear, the Lokeren town hall.
(…)
KSV Temse was founded at the end of the Second World War and often shuttled between the
national and provincial ranges
(…)
The cooperation between Lokeren and Temse gives an enormous boost to youth football, not
only in both cities, but throughout the region.
(…)
With a board that consists 100% of supporters from Lokeren and Temse, the new club is well
aware of the complaints from the past and is working on this.
Page 4 of 14
REF 20-01616
The new logo is closely related to the logo of the former Sporting Lokeren, but still gets a new
touch that aims to emphasize the combination with the former KSV Temse.”
16.
The Claimant further attached an article stating “Sporting Lokeren becomes KSC LokerenTemse after merger with Temse”.
17.
On 6 November 2020, the Claimant lodged a claim against “New Lokeren” for breach of
contract without just cause and requested the payment of the total amount of EUR 105,000 as
compensation, plus 5% interest p.a. as from 30 January 2020.
18.
In particular, the Claimant detailed his request as follows:
EUR 75,000 (residual value of the contract, i.e. EUR 30,000 [6 monthly salaries] and guaranteed
bonuses in the total amount of EUR 45,000)
EUR 30,000 as “damages in relation to the decrease of Player’s market value and the lost
opportunity to sustain his competitive level”
19.
The player stated that “Lokeren simply started mobbing the Player since the beginning of
January 2020, forcing him to agree on the premature termination of the Lokeren Employment
Contract.”
20.
Moreover, he declared that, “contrary to the false allegations of Lokeren, [he] never requested
the premature termination of the Lokeren Employment Contract”
21.
As to the status of the club, the Claimant stated that “Contrary to the statements of the Belgium
Royal FA, not only did the SC Temse change its name, but eventually merged with the Lokeren.”
22.
In particular, the Claimant noted the following about “New Lokeren”:
- It has the similar name with the Original Debtor;
- Shares the history with the Original Debtor, found on their websites
- Uses the same stadium as the Original Debtor
- Uses uniform with the same colours as of the Original Debtor; and
- Uses the same logo as the Original Debtor.
23.
In relation to the Respondent, the Belgian FA declared the following:
“by ruling of the Court for Enterprises of Ghent, Division Dendermonde dated April 20th, 2020
the club KSC LOKEREN OOST VL has been declared bankrupt and no longer participates in
organised
Football”
24.
In this respect, the Belgian FA stated the following:
“KSV TEMSE has only recently changed its name to SC LOKEREN-TEMSE, it is a completely
different club and is not the legal successor of the former KSC LOKEREN OOST VL.”
Page 5 of 14
REF 20-01616
⚫ POSITION OF SC LOKEREN-TEMSE
25.
In its reply to the claim, SC Lokeren Temse stated the following:
“SC LOKEREN-TEMSE is NOT the original debtor, NOR the legal successor, NOR the sporting
successor of KSC Lokeren OOST VL.”
26.
On 13 April 2021, the Judicial Liquidators of KSC Lokeren Oost VL (as informed by the Royal
Belgian FA) were invited to provide their comments in relation to this matter. However, no
reply was received in this respect.
Page 6 of 14
REF 20-01616
II. Considerations of the Dispute Resolution Chamber
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 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.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs.
3. Having stated the above, the members of the Chamber acknowledged that the dispute is
related to an employment contract concluded between the Spanish player, Francisco Jose
Navarro Aliaga, and the Belgian club, Sporting Club Lokeren Oost-Vlanderen NV.
4. However, the Chamber noted that the Claimant directed his claim against the Belgian
club, SC Lokeren – Temse, as he understood that the latter is the successor of Sporting
Club Lokeren Oost-Vlanderen NV.
5. Conversely, the members of the Chamber also acknowledged the position of SC LokerenTemse, according to which “SC LOKEREN-TEMSE is NOT the original debtor, NOR the legal
successor, NOR the sporting successor of KSC Lokeren OOST VL.”
6. Moreover, the members of the Chamber also took note of the statement provided by the
Royal Belgian FA, according to which ““KSV TEMSE has only recently changed its name
to SC LOKEREN-TEMSE, it is a completely different club and is not the legal successor of
the former KSC LOKEREN OOST VL.”
7. With the above-mentioned considerations in mind, the DRC referred to previous decisions
of FIFA’s decision-making bodies related to this particular issue as well as to the CAS
Award 2016/A/4550, which mutatis mutandis can be applied to the present matter.
Indeed, in said Award, CAS, while confirming a previous decision of the FIFA Dispute
Resolution Chamber, established that a club is a sporting entity identifiable by itself that,
as a general rule, transcends the legal entities which operate it.
8. Moreover, the DRC also referred to the Award CAS 2013/A/3425, which was also quoted
by CAS in its decision 2016/A/4550, and which includes the following reasoning:
“The Sole Arbitrator highlights that the decisions that had dealt with the question of
the succession of a sporting club in front of the CAS (CAS 2007/A/1355; TAS 2011/A/2614;
TAS 2011/A/2646; TAS 2012/A/2778) and in front of FIFA’s decision-making bodies (…),
have established that, on the one side, a club is a sporting entity identifiable by itself
that, as a general rule, transcends the legal entities which operate it. Thus, the
obligations acquired by any of the entities in charge of its administration in relation with
Page 7 of 14
REF 20-01616
its activity must be respected; and on the other side, that the identity of a club is
constituted by elements such as its name, colours, fans, history, sporting achievements,
shield, trophies, stadium, roster of players, historic figures, etc. that allow it to distinguish
from all the other clubs. Hence, the prevalence of the continuity and permanence in time
of the sporting institution in front of the entity that manages it has been recognised,
even when dealing with the change of management companies completely different
from themselves” (original text in Spanish).
9. Having said this, the members of the Chamber focused their attention on the following
facts:
a. The logo and colours of “SC Lokeren” remain almost identical;
b. Both the old club and the new club are registered at the same address;
c. Both the old club and the new club use the same stadium;
d. Both the old club and the new club use similar uniforms and colours;
e. In its official website, SC Lokeren Temse, presents itself as a “new story” within the
tradition of of SC Lokeren, and consequently share a common history;
10. In sum, and in consideration of the above-mentioned facts, the DRC was of the
unanimous opinion that the new club’s argument that it had not acquired any rights or
assets of the old club cannot be upheld.
11. In addition, the DRC deemed it important to underline that it was the new club that
decided to use the same name and logo of the previous club, despite having no obligation
to do so. In the DRC’s opinion, the most plausible reason for such a decision was precisely
to maintain the identity and image of “SC Lokeren” therewith allowing the new club to
be perceived by any third party as the same club.
12. On account of all the above, the members of the Chamber reached the following
conclusions:
a. There are sufficient elements to establish that “SC Lokeren Temse” has been the same
club throughout its history, despite the change of the management company behind
the operation of the team;
b. Moreover, by using the same name, logo and stadium, it is evident that the new club
had the intention to maintain the identity and image of “SC Lokeren” in order to be
considered the same club;
c. SC Lokeren, both in the form as “Sporting Club Lokeren Oost-Vlanderen NV” and “SC
Lokeren Temse”, concluded an employment contract with the Respondent.
13. In view of the foregoing conclusions, the DRC unanimously decided that SC Lokeren is
one and the same club and consequently has standing to be sued in the present
proceedings
14. In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the June 2020 edition of the
Page 8 of 14
REF 20-01616
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at
hand.
15. With the above having been established, the Dispute Resolution Chamber entered into
the substance of the matter. In doing so, it started to acknowledge the facts of the case
as well as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
16. In this respect, the Chamber noted that, on 11 July 2019, the parties concluded an
employment contract valid as from the date of signature until 30 June 2020. The Chamber
noted that this contract was concluded within the framework of a loan agreement
between the Spanish club, Valencia CF (i.e. the lender), and the Respondent (i.e. the
loanee).
17. Subsequently, the Chamber noted that the player lodged a claim against the club,
arguing that the latter terminated the contract without just cause on 30 January 2020.
18. On the other hand, the DRC noted that the Respondent failed to present a substantive
response to the claim of the Claimant, in spite of having been invited to do so, as its reply
only contained arguments concerning its standing to be sued. Furthermore, as a
consequence of the aforementioned consideration, the DRC judge concurred that in
accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the
basis of the documentation already on file; in other words, upon the statements and
documents presented by the Claimant.
19. The foregoing being established, the Chamber noted that there is no direct evidence of
a termination letter having been sent to the player.
20. However, the Chamber observed, after reviewing the evidence brought during the course
of the investigation that, on 31 January 2020, Lokeren proposed to terminate the
agreement to Valencia CF and within the framework of the loan agreement.
21. As a result, and although the termination was not directly addressed to the player, the
Chamber understood that, by proposing the return of the player to the lender, the
Respondent was de facto terminating the contract it had with the player.
22. As a result, the Chamber understood that the main legal issue at stake is to determine
whether the Respondent had any just cause to terminate the contract.
23. In this respect, 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
termination of an employment contract can only ever be an ultima ratio measure.
Page 9 of 14
REF 20-01616
24. With the aforementioned idea in mind, the Chamber observed that the Respondent did
not provide any reason for the termination of the contract, and therefore the termination
was without just cause. As a result, the Claimant is entitled to compensation.
25. In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided that,
in accordance with art. 17 par. 1 of the Regulations, the club is liable to pay compensation
to the player.
26. In this respect, 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 player 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.
27. 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.
28. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player 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.
29. The members of the Chamber then turned their attention to the remuneration and other
benefits due to the player 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
in the calculation of the amount of compensation.
30. 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 with just cause, i.e. until 30 June 2020, and concluded that the
Claimant would have received in total EUR 75,000 [i.e. 6,000*5=30,000), as well as to the
guaranteed bonus in the amount of EUR 45,000]. Consequently, the Chamber concluded
that the amount of EUR 75,000 serves as the basis for the final determination of the
amount of compensation for breach of contract in the case at hand.
Page 10 of 14
REF 20-01616
31. 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.
32. In this respect, the Chamber verified that the player acknowledged that Valencia CF paid
him the following amounts from February until June 2020:
- EUR 778,34 for February 2020;
- EUR 632.63 for March 2020;
- EUR 632.63 for April 2020;
- EUR 177.81 for May 2020;
- EUR 177.82 for June 202
Total: EUR 2,399.23
33. In view of the above, the Chamber established that the mitigated compensation
corresponds to EUR 72,600.77 (i.e. EUR 75,000-2,399.23)
34. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the player’s
claim and that the club must pay the amount of EUR 72,600.77 as compensation for
breach of contract in the case at hand.
35. In addition, taking into account the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the aforementioned amount as of the
date of the claim.
36. Furthermore, taking into account the previous considerations, the Dispute Resolution
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.
37. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
38. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that the Respondent does not pay the amounts due to the Claimant within 45
days as from the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
Page 11 of 14
REF 20-01616
duration of three entire and consecutive registration periods shall become effective on
the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
39. Finally, the Dispute Resolution Chamber 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. 3 of the Regulations.
Page 12 of 14
REF 20-01616
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Francisco Jose Navarro Aliaga, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, KSC Lokeren Temse, has to pay to the Claimant, the amount of EUR
72,600.77 as compensation for breach of contract without just cause, plus 5% interest p.a.
as from 6 November 2020 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned 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. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.
8.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 13 of 14
REF 20-01616
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 14 of 14