Labour Disputes
Texto da decisão
REF FPSD-4742
Decision of the
Dispute Resolution Chamber
passed on 10 March 2022
regarding an employment-related dispute concerning the player Bunga
N’kala Keinus
BY:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Bunga N’kala Keinus, Belgium
Represented by Felix Majani
RESPONDENT:
CS Pandurii Liguitul Târgu Jiu, Romania
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REF FPSD-4742
I.
Facts of the case
1.
On April 2020, the Belgian player, Bunga N’kala Keinus (hereinafter: the Claimant or player),
and the Romanian club, CS Pandurii Liguitul Târgu Jiu (hereinafter: the Respondent or club)
signed an employment contract (hereinafter: contract) valid as from as from 1 July 2020 until
30 June 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
amounts:
EUR 1,000 as monthly salary;
EUR 50 for “every point”.
3.
On 17 March 2021, the club offered the player to “pay all salaries due today” by 30
September 2021 and sent a draft of an agreement to the player while requesting him to sign
such agreement.
4.
On 23 March 2021, the player put the club in default and requested payment of EUR
5,870.75, corresponding to the salaries of the months of August 2020 (partially) to January
2021, within 15 days.
5.
On 8 April 2021, the player terminated the contract due to the outstanding remuneration.
6.
On 10 June 2021, the parties signed a document titled “addendum to the contract of sporting
activity”, which establishes:
“Art 1. At the written request of the player, from 09.06.2021, the parties agree to
amicably terminate, by mutual agreement, the [contract].
Art 2. Starting from the moment of signing this addendum, the professional football
player is no longer under contract and he has no financial claim from CS Pandurii
Lignitul Tg Jiu.
Art 3. From the date of signing this addendum, any other previous, pending or
subsequent obligations regarding the contract are considered terminated between
the signatory parties”.
7.
On 28 May 2021, the player signed a new employment contract with the Belgian club, FC
Wiltz, valid as of 1 July 2021 until 30 June 2022, including a monthly salary of EUR 500.
II. Proceedings before FIFA
8.
On 7 January 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
9.
In his claim, the player requested payment of the following monies:
EUR 9,266 as outstanding salaries (July 2020 until 8 April 2021; 9x EUR 1,000 plus
EUR pro rata for April 2021), plus 5% interest as of the due dates;
EUR 650 as match bonuses plus 5% interest p.a. as of 9 April 2021 (termination);
EUR 20,733 as compensation, corresponding to the residual value of the contract
(EUR 14,733) plus additional compensation (EUR 6,000), plus 5% interest p.a. as of
9 April 2021 (termination);
EUR 5,000 as legal costs.
10. In this context, the player held that he had just cause to terminate the contract in accordance
with art. 14bis RSTP, after having put the club in default, to no avail.
11. The Claimant pointed out that he was not paid for 9 months (July 2020 until March 2021).
12. Furthermore, the player held that the document signed on 10 June 2021 shall be declared
null and void since he was desperate to be able to sign for a new club due to not having been
paid for such a long time. In this context, the player argued that he was “coerced” and
“blackmailed” into signing the document.
13. Moreover, the player maintained that there was no need to conclude a termination
agreement, since he already terminated the contract in April 2021. Therefore, there was “no
valid subject matter” for the documents.
14. Additionally, the Claimant held that it was not possible to waive monies for work already
performed as well as compensation, in accordance with Swiss Law.
b. Position of the Respondent
15. The Respondent failed to submit its reply to the claim, even though it was requested by the
FIFA administration to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 7 January 2022 and submitted for decision
on 10 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.
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17. 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), the DRC is competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Belgian player and a Romanian club.
18. 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 7 January 2022, 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
19. 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
20. 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
21. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the Claimant’s argumentation that he terminated the contract with just
cause in accordance with art. 14bis of the Regulations, after more than 9 monthly salaries
and bonuses remained outstanding despite a default notice.
22. The Respondent, for its part, failed to present its response to the claim of the player, in spite
of having been invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
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23. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred
that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision upon the
basis of the documents already on file, in other words, upon the statements and documents
presented by the Claimant.
24. In this context, the Chamber acknowledged that the Claimant’s allegations remained
uncontested. Taking into account art. 14bis of the Regulations and in view of the outstanding
remuneration of more than 9 monthly salaries and bonuses as well as the default notice sent,
the Chamber concluded that the Claimant had just cause to terminate the contract with the
Respondent on 8 April 2021.
25. Additionally, the Chamber noted that after the termination, the parties appear to have signed
the document dated 10 June 2021, according to which the player declared to have “no
financial claim” against the club. According to the player, he was forced to sign the document
in order to be able to continue his career in Belgium. In this regard, the DRC established that
the player’s allegations remained uncontested, and found this to be an important
circumstance to take into account as a starting point.
26. Furthermore, the members of the Chamber failed to see any other indications not speaking
in favour of the player’s position. Indeed, the Chamber noted that, when the document was
signed, the player had already terminated the contract and therefore, absent any position or
explanation submitted by the Respondent, it is not entirely clear the reason why the player
would have an interest in declaring that he had no further claims towards the Respondent,
especially in light of what appears to be a relatively clear case of termination with just cause.
The player’s position is further supported by the fact, and the Chamber does not rule out,
that the player was also more prone to sign the document as he did not receive his salaries
as from the beginning of the contract for a period of nine months and strongly wished to be
released to sign a contract with a new club to generate income. Therefore, on the basis of
the elements on file (including the fact that the Respondent failed to reply to the player’s
claim, as set out above), the DRC was satisfied that the player had been coerced into signing
the document dated 10 June 2021 and therefore decided to disregard it and award the player
outstanding remuneration and compensation for breach of contract.
ii. Consequences
27. 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.
28. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 9 monthly salaries
(July 2020 until March 2021, EUR 9,000) and the bonuses claimed for 13 points won (EUR
650).
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29. In accordance with the above-mentioned considerations, the Chamber decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is liable
to pay to the Claimant outstanding remuneration in the total amount of EUR 9,650, plus 5%
interest as of the respective due dates.
30. 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.
31. 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
such compensation clause was included in the employment contract at the basis of the matter
at stake.
32. 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.
33. 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 15,000 (i.e. April 2021 until June 2022, 15x EUR 1,000) serves as the
basis for the determination of the amount of compensation for breach of contract.
34. 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.
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35. Indeed, the player found new employment with the Belgian club, FC Wiltz. In accordance
with the pertinent employment contract, valid as from 1 July 2021 until 30 June 2022, the
player was entitled to EUR 500 per month. Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of EUR 6,000, that is, 12 times EUR 500.
36. 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. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason, i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
37. In this respect, the DRC decided to award the amount of additional compensation of USD
EUR 3,000, i.e. 3 times EUR 1,000, as the monthly remuneration of the player.
38. Consequently, on account of all the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of EUR 12,000 to
the player (i.e. EUR 15,000 minus EUR 6,000 plus EUR 3,000), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present matter.
39. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 7 January 2022 until the date of effective payment.
iii. Compliance with monetary decisions
40. 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.
41. 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 maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
42. 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.
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43. 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.
44. 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
45. 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.
46. 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.
47. 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, Bunga N’kala Keinus, is partially accepted.
2.
The Respondent, CS Pandurii Liguitul Târgu Jiu, has to pay to the Claimant, the following
amount(s):
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2020 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 September 2020
until the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2020
until the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2020
until the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2021 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2021 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until the
date of effective payment;
- EUR 650 as outstanding remuneration plus 5% interest p.a. as from 7 January 2022 until
the date of effective payment;
- EUR 12,000 as compensation for breach of contract plus 5% interest p.a. as from 07 January
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 (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.
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6.
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.
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).
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