Labour Disputes
Texto da decisão
REF FPSD-3950
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Adam
Nemec
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stefano Sartori (Italy), member
CLAIMANT:
Adam Nemec, Slovakia
Represented by Mr Nils Baumgarten
RESPONDENT:
FC Dinamo Bucuresti, Romania
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I.
Facts of the case
1.
On 28 August 2020, the Slovakian player, Mr Adam Nemec (hereinafter: the player or the
Claimant), and the Romanian club, FC Dinamo Bucaresti (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from 28
August 2020 until 30 June 2022.
2.
In accordance with clauses 3 and 4 of the contract, the club undertook to pay to the player,
inter alia, a monthly salary in the amount of EUR 15,000 net, payable by the 15th day of the
following month.
3.
On 17 November 2020, the player put the club in default of payment in the total amount of
EUR 31,935, corresponding to the salaries of August, September and October 2020, thereby
granting the club a deadline until 5 December 2020 to remedy the default; however, to no
avail.
4.
On 17 December 2020 the player put the club in default of payment -again- this time in the
amount of EUR 49,835, corresponding ti the salaries August, September, October and
November 2020 as well as bonus payments, thereby granting a deadline until 2 January 2021
to remedy the default; the club proceeding with partial payments.
5.
On 20 May 2021, the player put the club in default of payment of the salaries due as from
December 2020 until April 2021, thereby granting the club a deadline until 10 June 2021 to
remedy the default; however, to no avail.
6.
By means of its correspondence dated 9 July 2021, the club unilaterally terminated the
contract invoking having entered insolvency proceedings.
7.
On 9 September 2021 the player put the club in default of payment in the amount of EUR
94,355, corresponding to the salaries due as from January 2021 until 9 July 2021, thereby
granting the club a deadline until 21 September 2021 to remedy the default; however, to no
avail.
8.
On 22 July 2021 the player signed a new contract with the Romanian club SC Fotbal Club
Voluntari S.A. (hereinafter: the new contract), valid as from the date of its signature until 30
June 2022, whereby the player is entitled to receive a total fixed remuneration of EUR 90,000
net
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II. Proceedings before FIFA
a. Claim of the Claimant
9.
On 11 October 2021, the player lodged a claim against the Respondent before FIFA,
requesting to be awarded outstanding remuneration and compensation for breach of
contract, as follows:
Outstanding remuneration: EUR 94,354, plus 5% interest p.a. as from the respective due dates:
EUR 15,000 corresponding to the salary of January 2021;
EUR 15,000 corresponding to the salary of February 2021;
EUR 15,000 corresponding to the salary of March 2021;
EUR 15,000 corresponding to the salary of April 2021;
EUR 15,000 corresponding to the salary of May 2021;
EUR 15,000 corresponding to the salary of June 2021;
EUR 4,355 corresponding to the salary of July 2021 (pro-rata calculated by the Claimant
considering the period as from 1 until 9 July 2021).
Mitigated compensation for breach of contract: EUR 85,645
EUR 85,645 corresponding to the mitigated compensation calculated by the Claimant,
considering the residual value of the contract, i.e. EUR 10,645 corresponding to the salary
of July 2021 (pro-rata calculated by the Claimant considering the period as from 10 until
31 July 2021) and EUR 165,000 corresponding to the residual value of the contract, as
from August 2021 until June 2022, minus the amount of EUR 90,000 that he is entitled
to receive from his new club (175,645 – 90,000 = 85,645).
10. In his claim, the player explained that despite the club being under insolvency proceedings,
the latter unlawfully and arbitrary terminated the contract, since the club did not terminate
the contract of all players and employees, but only terminated the contracts some of players
for no apparent reason. What is more, the player held that the club continued to participate
in the competition of the "Liga 1" (highest division in Romania) during the 2021/2022 season.
11. What is more, the player argued that, following the termination of the contract, the club
hired 14 new players for the 1st team, 8 of whom had been employed by other clubs before
being signed by the club, i.e. they were new players.
12. In this context, the player argued that, should it be possible for a club to terminate a validly
concluded employment contract without notice and without any reasons without suffering
any sporting consequences, only due to the club entered into insolvency proceedings, the
principle of contractual would be contravened and, even more, considering that the club
signed new players upon the termination of the contract at stake. Should the aforementioned
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conduct not be sanctioned, the player argued that it would come along with the risk that
clubs could terminate existing contracts without sporting or financial consequences.
13. Moreover, the player stressed that the contract does not provide for any such termination
option or automatic termination of the contract in the event of financial problems or
insolvency of the club.
14. Thus, the player maintained that the club terminated the contract without just cause by
means of its notice dated 29 June 2021 and, consequently, the club shall pay him the
amounts due at the date of termination, as well as a compensation for breach of contract,
ex. art. 17 RSTP.
15. In connection with the amounts that were outstanding at the date of termination of the
contract, the player held that the club failed to pay his remuneration as from January 2021
until the date on which the contract was terminated, i.e. it failed to remit his salaries during
more than 6 months.
16. Concerning the amount requested as compensation for breach of contract, the Claimant
already mitigated his damages, taking into account the value of his new contract.
b. Position of the Respondent
17. In its reply to the claim, the Respondent informed that, as per the decision issued on 28 June
2021 by the competent court in Bucharest, the club entered insolvency proceedings.
18. In this context, the club held that the Claimant registered his credit, in the amount of EUR
88,500 (which, according to the Respondent would correspond to LEI 435,951) in front of
the Romanian court in charge of carrying out the insolvency proceedings referred.
19. In this context, the Respondent held that, since the club is under insolvency proceedings, the
latter cannot proceed with payments “born before 28 June 2021”, since debts of that nature
can only be paid via the mechanisms established within the insolvency proceedings.
20. In this regard, the club stressed that, with the exception of cases where the debtor enters
insolvency proceedings to circumvent his payment obligations (which is not the case), credits
such as the one of the player cannot be privileged within the framework of FIFA proceedings,
insofar as that would be against the principle of par conditio creditorum.
21. Thus, the Respondent requested FIFA to close the present proceedings.
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c. Replica of the Claimant
22. In its replica, the Claimant firstly referred to the amount to which the club made reference,
i.e. EUR 88,500, and held that the said amount does not even represent the outstanding
moneys due to him, insofar as the said amount only represents the salaries due as from 1
January until 28 June 2021, the Respondent failing to make any comments regarding the
salary due between 29 June 2021 and 9 July 2021. In this respect, the Claimant held that he
must be paid until the last day he rendered his services for the club, i.e until 9 July 2021, and
that, consequently, the said claim shall be analysed and awarded by FIFA.
23. The Claimant further stressed that, neither in the termination notice dated 9 July 2021 nor in
its statement of reply to the claim, did the Respondent provide any valid reason as to the
unilateral termination of the contract.
24. The Claimant also reiterated that the club did not terminate the employment contracts of all
players and staff, but only terminated the employment contracts of some players for no
apparent reason and that the club even hired new players following the termination of the
contract at stake.
25. The above being said, the player admitted having communicated his credit with the club’s
insolvency proceedings concerning the salaries due as from 1 January until 28 June 2021. The
player argued that he proceeded so in order to safeguard his credit and not be accused of
having acted negligently by not communicating his credit in front of the competent court.
26. However, continued the Claimant, the credit communicated that not cover the entire debt of
the club towards the player and neither does it secure its payment in the same way as a final
judgment of the competent FIFA deciding body does.
27. Thus, the Claimant explained that it is absolutely necessary to secure the claims of the player
and pass a decision on all claims made by the Claimant, because neither the salary claims for
the period as from 29 June until 7 July 2021 nor the compensation for breach of contract
requested are registered under the insolvency proceedings, which cannot be -in any eventoffset or considered as not due, since the payment of such considerations are not part of the
insolvency proceedings and are debts that arise after the opening of the insolvency
proceedings, which excludes the application of the exception claimed by the Respondent (cf.
point 19 supra).
28. Furthermore, the Claimant reiterated that the Respondent continues to participate in games,
pays the salaries of its players and settles all other liabilities arising after the opening of the
insolvency proceedings.
29. The Claimant explained that, within the insolvency proceedings, an insolvency plan was
submitted to the Claimant for voting and, after an examination thereof, the said plan raised
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considerable doubts as to its and feasibility, which is why the plaintiff rejected the insolvency
plan in the voting procedure.
30. In this regard, the Claimant explained that although the above-mentioned plan provides for
payment of all liabilities of the insolvency creditors, including those of the Claimant, but for
the period for the period 1 January to 28 June 2021 only; payment in accordance with the
said payment plant is not planned until summer of 2024, which -according to the Claimantare too optimistic estimations.
31. What is more, the Claimant maintained that, even in that case, the Claimant would never
recover the salary for the period between 29 June and 9 July 2021.
32. In this context, the Claimant requested FIFA to reject the Respondent’s request to close the
present proceedings, since that would create a scenario of denial of justice for the player and
requested a formal decision to be adopted. In this regard, the player held wished to highlight
that, in its In its statement of defence, the Respondent did not dispute the merits of the claim
lodged by the player, nor the amount of the Claimant’s claim.
33. In addition, the Claimant argued that the Respondent failed to provide reasons as to the
unilateral termination of the contract.
d. Duplica of the Respondent
34. In its duplica, the Respondent referred to art. 3 of the Procedural Rules Governing the Football
Tribunal and held that FIFA shall also take into account national law. In this respect, the
Respondent referred to art. 123 of the Law no. 85/2014, i.e. the Romanian Insolvency Law
and argued that it is entitled to unilaterally terminate employment contracts in order to
“maximize the assets of the debtor company” and that it was under that particular scope
that it terminated the contract of the player.
35. In this context, the club held that the decision to terminate the contract was not adopted by
the club but by the “official receiver”, i.e. the insolvency administrator, who did so after
determining that the contract of the player was “a damaging contract”.
36. The Respondent concluded its allegations but stating that, as from 28 June 2021, any claims
lodged against the club “should be done according to the provisions of the Romanian.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
37. 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 11 October 2021 and submitted for decision
on 16 February 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.
38. 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 (August 2021 edition), the Dispute
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
Slovakian player and a Romanian club.
39. However, the Chamber noted that the Respondent tacitly challenged the competence of FIFA
to decide upon the present dispute and requested the present proceedings to be closed,
arguing that credits, such as the one of the player, cannot be privileged within the framework
of FIFA proceedings, since it corresponds to the local court in charge of the insolvency
proceedings the club is undergoing to determine the amount due to the player.
40. In this context, the DRC wished to recall the jurisprudence of the Football Tribunal according
to which the existence of insolvency proceedings per se does not object the entertainment of
the claim, but only pertains to the execution of the decision i.e. to the applicability of art. 24
of the FIFA RSTP (in casu). What is more, explained the Chamber, it is also noteworthy that
the closure of proceedings due to the existence of insolvency proceedings, as claimed by the
club, lacks any regulatory basis.
41. Thus, the Chamber determined that the claim of the Claimant is admissible.
42. 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 (August 2021 edition) and
considering that the present claim was lodged on 11 October 2021, the August 2021 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b. Burden of proof
43. 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).
c. Merits of the dispute
44. 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.
45. 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
46. The foregoing having been established, the Chamber moved to the substance of the matter,
and noted that the present case pertains a claim for outstanding remuneration and
compensation for breach of contract in connection with the employment contract signed
between the player and the club.
47. Having analysed the parties’ submissions, the Chamber noted that it remained uncontested
that the amounts requested by the player as outstanding remuneration were unpaid by the
club. Furthermore, as to the termination of the contract, the Chamber observed that the club
admitted having unilaterally terminated it by means of its correspondence dated 9 July 2021
and argued that it lawfully did so ex. art. 123 of the Law no. 85/2014, i.e. the Romanian
Insolvency Law, since the contract at stake was “a damaging contract”.
48. In this respect, the Chamber observed that the club failed to provide any copy of the law
85/2014, i.e. the Romanian Insolvency Law. Thus, the Chamber unanimously concluded that,
as a consequence, it is to be determined that the Respondent did not meet its standard of
proof ex. art. 13.5 of the Procedural Rules and underscored that, without a copy of the said
legal text, it is not possible for the DRC to analyse whether the unilateral termination of the
club could have eventually been considered as lawfully made in accordance with the said law.
In addition, the Chamber highlighted that the club did not provide of any sort of
documentation capable of rebutting the player’s argumentation.
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49. Thus, while referring to the general legal principle of pacta sunt servanda, the Chamber
determined that the player shall be awarded the outstanding remuneration sought.
50. As to the unilateral termination of the contract, considering that the club has not provided
any valid reason for having unilaterally terminated the contract, the argument that the
contract was a “damaging contract” not possibly being upheld, since it lacked of any legal
support, the Chamber determined that the club terminated the contract without just cause
on 9 July 2021.
ii. Consequences
51. 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.
52. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, correspond to the monthly salaries
due to the player as from 1 January until 9 July 2021, which amount to EUR 94,354.
53. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, i.e. EUR 94,354.
54. In addition, 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 at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates, bearing in mind
that art. 4 of the contract states that salaries are payable by the 15th day of the month
following their accrual, until the date of effective payment.
55. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club 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 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.
56. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment 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
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such compensation clause was included in the employment 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 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.
58. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of EUR 175,645 (EUR 10,645 corresponding to the salary of July 2021 (prorata calculated by the Claimant considering the period as from 10 until 31 July 2021) and
EUR 165,000 corresponding to the residual value of the contract, as from August 2021 until
June 2022), 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 player 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 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 player’s general obligation to
mitigate his damages.
60. Indeed, the player found employment with the Romanian club SC Fotbal Club Voluntari S.A.,
valid as from the date of its signature until 30 June 2022, i.e. fully overlapping with the term
of the contract, whereby the player is entitled to receive a total fixed remuneration of EUR
90,000 net. Therefore, the Chamber concluded that the player mitigated his damages in the
total amount of EUR 90,000 net.
61. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables.
62. In the case at hand, the Chamber noted that the contract was terminated by the club and
not by the player and, consequently, considering the specific wording of art. 17 para. 1 lit. ii)
of the Regulations, no additional compensation could be awarded, should the contract not
have been terminated by the player due to overdue payables, as occurred in the present case.
63. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR 85,645
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to the player (i.e. 175,645 – 90,000 = 85,645) which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
64. Lastly, the Chamber observed that the Claimant failed to request default interest in
connection with the amount requested as compensation for breach of contract and,
consequently, the DRC decided not to grant any default interest to the Claimant in this
respect, in accordance with the legal principle, ne ultra petita.
iii. Compliance with monetary decisions
65. 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.
66. In the present case, the Chamber turned to the applicability of art. 24 of the Regulations and
found it relevant to highlight the content of art. 24, par. 3, lit. b) of the FIFA RSTP, in verbis:
“Such consequences may be excluded where the Football Tribunal has: […] b) been informed
that the debtor club was subject to an insolvency-related event pursuant to the relevant
national law and is legally unable to comply with an order.”
67. With the above in mind, the Chamber wished to recall that, in accordance with the
jurisprudence of the Dispute Resolution Chamber, two requirements have to be met in order
to use the exemption stipulated above, namely: (i) the debtor club is subject to an insolvencyrelated event pursuant to the relevant national law; and (ii) it is legally unable to comply with
an order.
68. In casu, despite the Respondent sufficiently demonstrating that insolvency proceedings were
opened against it in Romania, the DRC decided that, by simply referring to art. 75 of the
National Law no. 85/2014, the club did not fulfil the second requirement stipulated by art.
24 para. 3 of the Regulations. In other words, the DRC concluded that the club could not
sufficiently prove that it was unable to pay the amounts due to the player. Thus, the DRC
determined that art. 24 of the Regulations is applicable to the case at stake.
69. The above being said, the DRC highlighted that, in accordance with art. 24 of the Regulations,
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.
70. 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
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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.
71. 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.
72. 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
73. 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.
74. 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.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Adam Nemec, is accepted.
2.
The Respondent, FC Dinamo Bucuresti, has to pay to the Claimant, the following amounts:
- EUR 94,354 as outstanding remuneration plus 5% interest p.a. as, calculated as follows:
- on the amount of EUR 15,000, as from 16 February 2021 until the date of effective
payment;
- on the amount of EUR 15,000, as from 16 March 2021 until the date of effective
payment;
- on the amount of EUR 15,000, as from 16 April 2021 until the date of effective payment;
- on the amount of EUR 15,000, as from 16 May 2021 until the date of effective payment;
- on the amount of EUR 15,000, as from 16 June 2021 until the date of effective payment;
- on the amount of EUR 15,000, as from 16 July 2021 until the date of effective payment;
- on the amount of EUR 4,354, as from 16 August 2021 until the date of effective payment;
- EUR 85,645 as compensation for breach of contract.
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3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
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.
5. 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.
6. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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