Labour Disputes
Texto da decisão
REF FPSD-4334
Decision of the
Dispute Resolution Chamber
passed on 8 March 2022
regarding an employment-related dispute concerning the player Yameogo
Franck Alex Neeb
BY:
ATILIO TARABORELLI Alejandro (Argentina)
CLAIMANT:
Yameogo Franck Alex Neeb, Burkina Faso
Represented by Anca Mituica
RESPONDENT:
AFC Chindia Targoviste, Romania
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I.
Facts of the case
1.
On 28 August 2019, the Burkinabe player Yameogo Franck Alex Neeb (hereinafter: the
Claimant) and the Romanian club AFC Chindia Targoviste (hereinafter: the Respondent)
concluded an employment contract (hereinafter: the Contract) valid until 1 June 2020.
2.
Clause N of the Contract reads as follows:
“Any disputes regarding the conclusion, execution, modification, suspension or termination
of the present individual employment contract are solved, as amicable as possible and if the
consent is not reached, by the court materially and territorially competent according to the
law.”
3.
On 28 May 2020, the parties agreed to conclude the first addendum (hereinafter: the
Addendum) to the individual employment contract no. 69 and decided to extend the duration
of the contract until 15 August 2020.
4.
Article 3 of the Addendum reads as follows:
“If the club's senior team shall rank in a non-relegated position at the end of the 2019 – 2020
competition season, the employee will receive a net bonus amounting Ron 48.000 (forty –
eight thousand), if the player will play 60% from the effective playing time of the competition
season. If he will play less than 60%, the bonus awarded will be proportional to the actual
time played.”
5.
On 14 August 2020 the parties agreed to conclude addendum no. 2 (hereinafter: the Second
Addendum) according to which the Contract was extended until 15 June 2021.
6.
Art. 2 of the Second Addendum reads as follows:
a.) For the matches played by the football player and won by the team in the 2020 – 2021
season, the athlete will receive a bonus of 100% of the bonus established according to the
Performance Bonus Award System for the 2020 – 2021 competitive season, respectively 1000
Ron/point earned in the regular season, provided that the team is at the end of each month
on one of the 1 – 12 places in the League I ranking, and respectively 1500 Ron/point won in
the Play -out provided that the team is at the end of each month on one of the 1 – 6 places
in the Play -out ranking of League I.
b.) If at the end of the season 2020 – 2021, the team is in a non – relegated place in the
League I Ranking and the team will remain in League I on sporting merit in the season 2021
– 2022, the athlete will receive a net bonus of 48.000 Ron (forty – eight thousand), provided
that the athlete has played at least 60% of the actual playing time of the 2020 – 2021
competition season. If he played less than 60% of the actual playing time, the bonus will be
proportional to the actual time played, corresponding to the amount of 48.000 Ron”.
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7.
On 6 August 2020, the Emergency Committee of Romanian Football Federation (“F.R.R.”)
adopted a decision to modify the competition system from 14 to 16 teams.
8.
On 15 June 2021 the Contract expired by reaching its term.
9.
On 13 September 2021 the Claimant sent a notice to the Respondent requesting the total
amount of RON 67,991 net.
10. On 15 September 2021, the Respondent replied to the previous correspondence admitting
owing some of the amounts requested and denying owing others.
II. Proceedings before FIFA
11. On 18 November 2021, 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
12. According to the Claimant, on “August 9, 2020 and August 12, 2020 the team of Chindia
Târgoviște F.C. disputed the play-off matches for the maintenance /promotion with C.S.
Mioveni. Due to the final result of these matches, Chindia Târgoviște F.C. has earned the right
to promote in the season 2020 – 2021 in Liga 1 competition. The fact that Chindia Târgoviște
F.C. continued to participate in Liga 1 competition, is due to the results obtained on the
matches disputed with C.S. Mioveni”.
13. The Claimant underlines that the Respondent remained in the top division for the season
202/2021. In his view:
“a club that at the end of the competition, has the right to continue its activity in the same
echelon is in a situation of non-relegation.
A club that can, at the end of the competition, evolve in the next echelon, is promoting. A
club that, at the end of the competition, has been demoted to the lower echelon, is
relegating”
14. The Claimant further states that in the current season, 2021 – 2022, the Respondent is
participating in Liga and the Claimant “evolved 1173 minutes from the total of 3510 minutes
of the season 2020 – 2021, this representing a participation percentage of 33,41%.”
15. The Claimant argues he is “entitled to receive for the season 2020 – 2021 a bonus amounting
16.041 Ron net, as the Club also admitted by the Answer sent on September 15, 2021 but
refused the payment until today. We appreciate the bonus due on May 19, 2021, the date
when was disputed the last match of the season 2020 – 2021 of Liga I competition”.
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16. The Claimant further states that from the total amount of RON 14,300 net, the Respondent
paid 10.250 lei, remaining unpaid until today the net amount of 3,950 lei.
17. The Claimant requests for relief were the following:
“We request FIFA DRC to pass a decision through which:
Order the Respondent to pay the total net amount of 48.000 lei, representing bonus rights
due according to article 3 from the addendum no. 1 of the individual employment contract
no. 69 from 26 August 2019 for the season 2019 – 2020;
Order the Respondent Club to the total net amount of 16.041 lei, representing bonus rights
due according to article b) from the addendum no. 2 of the individual employment contract
no. 69 from August 26, 2019 for the season 2020 – 2021;
Order the Respondent Club to the payment of the total net amount of 3950 lei,
representing remaining bonus rights due according to article a) from the addendum no. 2
of the individual employment contract no. 69 from August 26, 2019 for the season 2020
– 2021;
Order the Respondent to pay interests of 5% /year for the above-mentioned amounts due
to the player;
Order the Respondent to pay to the Claimant the amount of euro 2000 representing costs
generated to the Claimant by the present procedure”.
b. Position of the Respondent
18. According to the Respondent, the parties inserted in the Contract an exclusive jurisdiction
clause in favour of the ordinary state courts.
19. The Respondent further states that in application of art. 269 of the Civil Code of procedure,
and the will of the Parties, “the Contract, as detailed above, is subject to Romanian law, and
the choice of competence indicates without any doubt as competent the common courts in
Romania, in this case, Dambovita County Court.”
20. The Respondent further argues that the Claimant “has been represented in the negotiations
and closure of the contract by an agent and since the pre-litigation stage by a lawyer from
Romania, so he cannot either claim he was not aware of the contractual provides regarding
competence, nor rely on the ignorance of the legislation as a misinterpretation of the
jurisdiction clause”.
21. The Respondent states that the real intention of the parties must be analysed and, in its view,
“the Club granted the bonus only in exchange for the performance of the team at a level that
will guarantee to remain in 1st League without disputing a play-out for
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REF FPSD-4334
promoting/maintaining, without risking to relegate and to assure the consideration of TV
rights in the amount grated for the 11th place”.
22. The Respondent adduces that only due to this administrative decision, and not on the sporting
performance during the championship, the Respondent had the chance to dispute a play-off
for the maintenance/promotion in the 1st League and did not relegated directly.
23. The Respondent further states that it voluntarily executed the payment obligation for the
above-mentioned bonuses on 23 November 2021.
24. The Respondent filed the following requests for relief:
Requesting the judicial body that by the decision it will issue to order as follows:
1. Mainly, to reject the Players Claim as inadmissible;
2. In the alternative, to reject the Players Claim as unfounded and to oblige, in any case,
the Player to pay the costs generated by this procedure.
c. Comments of the Claimant
25. Considering the alleged payments of the Respondent, the Claimant was given the
opportunity to comment.
26. The Claimant stated that “the amounts requested on point 2 and 3 of the claim were paid 5
days after the date on which the claim was sent to FIFA, even though, both bonuses were
due from May 2021.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Single 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 18 November 2021 and submitted for
decision on 08 March 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.
28. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (March 2022 edition),
he is in principle competent to deal with the matter at stake, which concerns an employment-
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related dispute with an international dimension between a Burkinabe player and a Romanian
club.
29. In this respect, the Single Judge referred to clause N of the Contract, according to which:
“Any disputes regarding the conclusion, execution, modification, suspension or termination
of the present individual employment contract are solved, as amicable as possible and if the
consent is not reached, by the court materially and territorially competent according to the
law.”.
30. The Single Judge, after analysing the wording of the jurisdiction clause, concluded that such
clause did not clearly and exclusively establish the competence of a specific court.
31. As a consequence, the Single Judge was of the opinion 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.
32. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 18 November 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
33. The Single Judge 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.
c. Merits of the dispute
34. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which he
considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
35. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that since the Claimant had acknowledged a partial payment
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of the some of the amounts claimed, the sole point of conflict between the parties lays on
the Claimant’s entitlement to the performance bonus claimed.
36. In this context, the Single Judge refer himself to the relevant clause which states: b.) If at the
end of the season 2020 – 2021, the team is in a non – relegated place in the League I Ranking
and the team will remain in League I on sporting merit in the season 2021 – 2022, the athlete
will receive a net bonus of 48.000 Ron (forty – eight thousand), provided that the athlete has
played at least 60% of the actual playing time of the 2020 – 2021 competition season. If he
played less than 60% of the actual playing time, the bonus will be proportional to the actual
time played, corresponding to the amount of 48.000 Ron”.
37. Firstly, the Single Judge noted that the percentage of participation by the Claimant is not
disputed by the Respondent. The Respondent argues that it finished in relegation positions
and only due to a change in the regulations it was not ultimately relegated.
38. Subsequently, the Single Judge underlined that the wording of the relevant clause does not
aid in the case at hand since the Respondent did finish in relegation position but due to a
change in the competition rules, it was not ultimately relegated. Hence, the Single Judge had
to proceed to interpret the clause considering the true intention of the parties when
negotiating and drafting such clause.
39. By interpreting the true intention of the parties as well as the common practice of the world
of football, the Single Judge recalled the principle behind payment of bonuses, especially predefined and contractually agreed ones. As such, it observed that these are put in place by the
parties on the basis that a club, with the help of a player’s performance, may reach a predefined goal, entitling such player to be remunerated for achieving such goal.
40. In casu, the Single Judge found that the intention of the parties was to reward the team
performance in the event the club was not relegated to a lower division at the end of the
season, which would have significantly harmed the Respondent’s financial interests. Thus,
since it is clear and undisputed that the Respondent, by winning the play-off, remained in
highest division for the subsequent season, the Single Judge found that the Claimant shall be
entitled to the agreed bonus.
41. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amount of
RON 48,000 which was outstanding at the moment of the termination.
42. In addition, taking into consideration the absence of a specific payment date, the Claimant’s
request as well as the constant practice of the Football Tribunal in this regard, the Single
Judge decided to award the Claimant interest at the rate of 5% p.a. on the outstanding
amounts as from the date of claim until the date of effective payment.
ii. Compliance with monetary decisions
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43. Finally, taking into account the applicable Regulations, the Single Judge 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.
44. In this regard, the Single 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.
45. Therefore, bearing in mind the above, the Single 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. 24 par. 2, 4, and 7 of the Regulations.
46. 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.
47. The Single 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. 24 par. 8
of the Regulations.
d. Costs
48. The Single Judge 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.
49. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be awarded
in these proceedings.
50. Lastly, the Single Judge concluded his 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, Yameogo Franck Alex Neeb, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, AFC Chindia Targoviste, has to pay to the Claimant, the following
amount(s):
- Romanian New Lei (“RON”) 48,000 as outstanding remuneration plus 5% interest p.a. as
from 18 November 2021 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
8.
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).
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