Labour Disputes
Texto da decisão
REF FPSD-3515
Decision of the
Dispute Resolution Chamber
passed on 20 April 2022
regarding an employment-related dispute concerning the player Elton
Pereira Gomes
BY:
Andre dos Santos Megale (Brazil), Single Judge of the DRC
CLAIMANT:
Elton Pereira Gomes, Brazil
Represented by Mr Arsen Selmanaj
RESPONDENT:
KF TIRANA, Albania
Represented by Mr Alkis Papantoniou
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I.
Facts of the case
1.
On 10 July 2019, the Brazilian player, Mr Elton Pereira Gomes (hereinafter: the player or the
Claimant) and the Albanian club, KF TIRANA (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the contract), valid as from 1 August 2019
until 31 May 2021. Clause 8.8 of the contract specifies that, during the months of June and
July 2020, no remuneration would be paid.
2.
In accordance with clause 8 of the contract, the club undertook to pay to the player, inter
alia, the following remuneration:
-
EUR 4,000 net as monthly salary, payable by the 13th day of the following month (clauses
8.2 and 8.10);
EUR 10,000 as sign on fee for the season 2020/2021, payable by June 2020 (clause 8.4);
EUR 5,000 “if the player scores a total of 15 goals and assist together (clause 8.5)”;
EUR 5,000 net as bonus for winning the Championship (clause 8.6);
“For the next season (2020-2021) in case of participation in the Champions League or
Europa League the player will benefit a payment of 5.000 EUROS NET (Five thousand) for
qualifying the first round, and for qualifying the second round, 5.000 EUR (Five thousand)
NET”. (clause 8.7).
3.
Also in accordance with clause 8 of the contract, the club undertook to provide the player
with accommodation and 2 flight tickets (return tickets) per year.
4.
According to the leasing contract concluded between the player and the landlord of the
apartment rented by the player, the rental fee payable as per the said agreement amounts to
EUR 350 per month.
5.
Clause 8.9 of the contract reads as follows: “If the club does not reach the target of
participating in the Champions League or Europa League, it has the right to reduce 15% of
the player’s total salary for a season”.
6.
Clause 11 a.) b.) and c.) of the contract read as follows: “The Club may deduct from the
compensation of the Player: a) Player’s fines imposed under the provisions of this Agreement
and the Regulations of the Club, FSHF, UEFA and FIFA; b) All amounts paid by the Club in
favour of the Player with the prior consent of the Player (e.g. fees, fines imposed by the govern
etc.); c) Any other amount which should be clearly defined that the player owes to the Club”.
7.
On 28 September 2020, the Municipal Council of Tirana decided to award the staff of the
Respondent (athletes, technical staff and support staff) an amount of ALL 15,000,000 “as a
result of winning the National Football Championship 2019-2020, which coincides with the
100th anniversary of the establishment of this club”.
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8.
On 26 July 2021, the player sent a letter to the club, requesting the latter to provide him with
the payment slips concerning the payments made by the club and further urging the club to
pay his outstanding salaries, bonuses and housing allowances, thereby granting the club a
deadline until 30 July 2021 to do so; however, to no avail.
9.
Thereafter, on 2 August 2021, the player put the club in default of payment in the amount
of EUR 96,522 corresponding to outstanding salaries, bonuses and housing allowances,
thereby granting the club a 10 days’ deadline to remedy the default.
II. Proceedings before FIFA
a. Claim of the Claimant
10. On 11 March 2022, the player lodged a claim against the Respondent before FIFA, requesting
to be awarded outstanding remuneration in the amount of EUR 95,500, plus 5% interest p.a.
as from their respective due dates until the date of effective payment, explained by the player
as follows:
-
The Claimant argues that, during the whole term of the contract, the club should have
paid him a total amount of EUR 135,700, broken down as follows:
o EUR 88,000 as salaries, concerning the salaries due as from August 2019 until May
2021, i.e. 22 salaries of EUR 4,000 each (4,000*22 = 88,000);
o EUR 30,000 as bonuses, broken down by the Claimant as follows: EUR 5,000 for
having scored and assisted 15 goals; EUR 5,000 as bonus for winning the
Championship; EUR 5,000 as bonus for participation in UEFA Champion League
Season 2020/2021; EUR 5,000 as bonus for qualifying in the first round of UEFA
Champion League Season 2020/2021; EUR 5,000 as bonus for qualifying in the
second round of UEFA Champion League 2020/2021; and EUR 5,000 as bonus for
participation in UEFA Europa League Season 2020/2021;
o EUR 10,000 as sign-on fee, which was payable at the beginning of the season
2020/2021;
o EUR 7,700 as housing allowances during the whole term of the contract, in
accordance with the rental agreement (22*350 = 7,700).
-
The Claimant explains that, out of the amount of EUR 135,700 that the club should have
paid to him, the club only paid a total amount of EUR 40,200 and, thus, the player shall
be entitled to the remainder of the value of the contract, i.e. EUR 95,500 (135,700 –
40,200 = 95,500).
11. In his claim, the player argued that, despite having complied with his contractual obligations
towards the club, the latter failed to comply with its financial obligations towards him
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throughout the whole term of the contract, despite the player having put the club in default
of payment, requesting the club to cure its breach.
b. Reply of the Respondent
12. In its reply, the club acknowledged being in default of payment of certain amounts due to
the player, but argued that only the amount of EUR 17,085 is outstanding, thereby rejecting
the claim of the Claimant pertaining to his entitlement to EUR 95,500. The Respondent
provides several payment documentation (tables fabricated by the club itself and a document
from the bank where it is displayed that a payment of EUR 4,000 was made by the club to
the player on 7 August 2020).
13. First of all, the club stressed that the parties signed a document on 30 March 2020
(hereinafter: the financial clearance document), whereby the player declared having received
all his financial dues accrued between August 2019 and December 2019 and, therefore, the
Claimant cannot request to be awarded any moneys due during the said timeframe.
14. The club also referred to clause 8.8 of the contract and underscored that the said provision is
clear when stating “that salary instalments are not to be paid for the months of June and July
2020” and, hence, “the salary of the player for each of the 2019/20 and 2020/21 seasons is
equal to EUR 40,000”.
15. As to the salaries due to the player, the Respondent held that, on top of the moneys paid to
the player during the year 2019 (which compliance has been acknowledged by the Claimant
himself), the club held that it has paid a total amount of EUR 63,600 concerning the moneys
due to the player as salaries and bonuses during the years 2020 and 2021.
16. Concerning the amounts claimed by the player as bonuses, the club acknowledged that the
events referred by the player occurred, i.e. the participation, qualification and wins pointed
out by the Claimant. However, the Respondent referred to the wording of clause 8 of the
contract and held that “the Claimant misinterprets the relevant clause. The bonus does not
apply for the Club’s qualification to the “first round of UCL” since this has been guaranteed
automatically through winning the Albanian Championship. It would not make sense for the
Club to award a double bonus for the Player for the exact same thing, i.e. winning the
Championship and playing in the first round of UCL [qualifiers]”. In this respect, the
Respondent explained that “the correct interpretation of the phrase “qualifying the first
round” contained in art. 8 para. 7 of the Contract is that “the Club qualifies after winning
the first round / qualifying from the first round”, meaning that the Player would be entitled
to EUR 5,000 in case the Club qualified from the first round to the second round and
subsequently to EUR 5,000 in case the Club qualified from the second round to the third
round”.
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17. Also as for the bonuses, the club pointed out that “it is clear that the parties have not agreed
that the Player should receive bonus for each one of the competitions, in case the Club
participated in both competitions, but only for participating in one of them (in case of
participation in the Champions League or Europa League)”. Thus, the Respondent held that
the player was only entitled to the amount of EUR 10,000 as bonuses, as follows: EUR 5,000
for winning the 2019/2020 Albanian League; and EUR 5,000 for qualifying from the first
round of UEFA Champions League (winning against Tbilisi with 2-0); and that the amount of
EUR 8,100 was already paid “by the Municipal District of Tirana” for this consideration.
18. In addition, the club requested any further claim of the Claimant pertaining to any further
bonus shall be rejected.
19. As to the bonuses claimed as per clause 8.5 of the contract, the club held that the player is
not entitled thereto, since the player did not score and assist 15 times but only 14 times.
20. The club also referred to clause 8.9 of the contract and held that, since it finished in the 6th
position of the Albanian league and failed to qualify for either European competition during
the season 2020 / 2021, the said clause was applied, meaning that the club was entitled to
deduct the total amount of EUR 6,000 from the player’s annual salaries.
21. Concerning the rental allowances claimed by the player, the Respondent held that the
contract only states that the club would provide the player with accommodation, but does
not specify any housing allowance payable. Thus, arguing that insofar as the Claimant did
not discharge his burden of proof by failing to provide proof of payment concerning the
specific monthly allowances, the claim of the Claimant to be awarded EUR 7,700 as housing
allowances due needs to be rejected.
22. In its request for relief, the Respondent requested the DRC to determine that the club is liable
to pay to the player overdue payables in the total amount of EUR 17,085 (EUR 88,000 -which
is the amount that the Respondent held that it had to pay to the Claimant- minus the amounts
allegedly paid (EUR 63,600) and the amount deducted in accordance with clause 8.9 of the
contract and due to the police fine, i.e. EUR 7,315, or to determine that the club is liable to
pay to the player, as overdue payables, “an amount that is lower than the one claimed by the
player, and to the extend that the DRC accepts the deduction of:
“a. the alleged overdue payables corresponding to the year of 2019, waived by
the Player and/or
b. the incorrectly requested salary payments from June and July 2020 and/or
c. the payments made by the Club that were not disclosed by the Player,
d. the achievement bonus requested by the Player and/or
e. the performance bonus requested by the Player and/or
f. the deductions applying to the Player’s salaries and/or
g. the apartment rental requested by the Player”.
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c. Replica of the Claimant
23. In its replica, the Claimant rejected the allegations and documentation provided by the club
and reiterated his claim: to be awarded “EUR 95,500.00 plus 5% interest p.a. from the due
dates until the date of full and effective payment”. Furthermore, the Claimant rejected the
allegations of the club that it paid the amount of EUR 63,600 to the player and argued that
the Respondent failed to provide any valid evidence in support of the said affirmation apart
from tables fabricated by the club, reason why its argument shall be rejected.
24. As for the financial clearance document, the player alleged that the club forged his signature
on it and held that “if the club had evidence proving that it paid the player Cash or by Bank,
it would have to present this evidence in court. So, the Club has not managed to prove that
it has paid all the obligations to the Player for the year 2019 and the request of the Club
regarding this point, must be rejected”.
25. In connection with the allegations of the Respondent that the player shall receive no
remuneration for the months of June and July 2020, the Claimant argued that the club played
its last matches in June and July 2020, due to the postponement of the Albanian
Championship due to COVID – 19 and, if the logic of the club was followed, the DRC would
be accepting that the player was not paid for work effectively rendered, which would not be
lawful.
26. As to the amount of EUR 8,100 paid by the Municipality of Tirana, the player stated that the
said payment was not paid as bonus, since the said obligation only corresponded to the
Respondent. In this respect, the Claimant held that the said payment corresponded to an
amount awarded by the Mayor of Tirana, Mr Erion Veliaj, “for the 100th anniversary of the
club and for the victory of the Championship” but did not in any way discharge the club from
its financial obligations towards the player.
27. As to the bonuses due for having participated in European competitions, the Claimant
rejected the allegations of the Respondent and held that the interpretation of clauses 8.6 and
8.7 of the contract is clear: the player is entitled to: EUR 5.000 NET if the club wins the
championship,which occurred; EUR 5.000 NET in case of participation in the UCL or UEL
(which occurred, the club participated in both); EUR 5.000 NET for qualification in the first
round (which occurred, match Dinamo Tbilisi-KF Tirana, UEFA Champion League 20/21, result
(0-2)); EUR 5.000 NET for qualification in the second round (which occurred, match KF TiranaCrvena Zvezda, UEFA Champion League 20/21 result (0-1)); EUR 5.000 NET for qualification
in UEL (which occurred, match Young Boys-KF Tirana, UEFA Europa League 20/21, result (30)). Thus, the Claimant stressed that “the club must pay the Player only for the participation
in European Competitions the total amount of EUR 20,000 NET”. What is more, the Claimant
highlighted that the contract does not state that if the player receives a bonus for winning
the Championship, he will not receive a bonus for European competitions; thus, the bonuses
that the club consider as the very same are actually 2 completely different bonuses.
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28. As to the bonus for having scored and assisted 15 goals, the Claimant held that clause 8.5 of
the contract (cf. point 2 of the summary) does not specify the timeframe during which the
goals (directly scored by the player or assisted by him) shall be scored and, hence, since the
total duration of the contract is as from 1 August 2019 until 31 May 2021, the whole
timeframe shall be considered, meaning that if the player scored or assisted 15 goals during
the whole term of the contract, the payment of the bonus contained in clause 8.5 of the
contract must be deemed as triggered.
29. In connection with the salary reductions practiced by the club under the scope of clause 8.9
of the contract, the Claimant held that it cannot be considered as lawfully practiced, insofar
as the club never informed the player that such a reduction would be made, nor did it give
the player the possibility to make any comments or submit any claim concerning that
unilateral decision. In this context, the Claimant held that the reduction practiced by the club
“is in open violation of all principles of international law and in particular of Swiss and
Albanian law”.
30. Concerning the entitlement of the player to accommodation, the latter argued that the
contract provided for such entitlement and the club “has not proved that it has provided
accommodation to the Player, [which] obliges Club to pay the Player for the entire duration
of his rent”.
d. Duplica of the Respondent
31. Concerning the validity of the financial clearance document, the club rejected the allegations
of the club and held that the player freely signed it, evidence of which is that -after its
conclusion- the player continued to render his services for the club and “never complained
for nor addressed the content and validity of the waiver”. The club also highlighted that the
said document also states that the player would not lodge any claim pertaining to the
amounts accrued during the year 2019, which prevents the player from doing so in the
present proceedings.
32. As to the alleged entitlement of the player to receive a remuneration for the months of June
and July 2020, the club acknowledged that the player rendered services during the said
months but held that the player did not provide any king of service to the player during the
months of March, April and May 2020, since competitions in Albania were suspended during
the said timeframe due to the Covid-19 pandemic. In view of the aforementioned, the club
held the following: “The parties could potentially agree to a rearrangement of the
instalments, e.g. moving some instalments due on March, April and May to the months of
June and July, but such an agreement was not made.
33. Thus, it is clear that the parties shall abide by the initial agreement for 10 monthly payments
of a total amount of EUR 40,000”.
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34. As for the amount of EUR 8,100 paid by the Municipality of Tirana, the Respondent argued
that the Municipality of Tirana is a shareholder of the club and that the said payment
corresponds to an amount awarded by the city of Tirana to the club for having won the
championship and that it was finally distributed by the Municipality of Tirana directly to the
players and other staff of the club for this consideration, which holds the same nature as the
bonus contained in clause 8.6 of the contract. Thus, the Respondent requested the amount
of EUR 8,100 to be deducted from the amount due to the player as bonuses.
35. In connection with the participation and qualification bonuses, the club held that, if the
argumentation of the player was followed, 2 bonuses would be paid for the same
achievement, i.e. for winning the championship and participating in the UEFA Champions
League (UCL), since -upon winning the championship in Albania- the club directly qualified
for UCL and, organically, participated in the first round of games.
36. According to the interpretation of the club, the player is only entitled to 2 bonuses, one in
the amount of EUR 5,000 for having won the championship (and hence having qualified for
the UCL) and another bonus of EUR 5,000 for having qualified from the first round to the
second round of the said competition.
37. As to the “performance” bonus (clause. 8.5 of the contract), the club wished to highlight
that the player acknowledged not having achieved the target therein specified during the
season 2019/2020 and held that the contract does not state that the achievement was to be
reached during the full term of the contract. In this context, the club held that performance
bonuses shall be awarded in connection with the specific performance of a player during a
specific season, the argumentation of the player not being reasonable.
38. As for the reductions imposed on the player’s financial entitlements, the club held that 2
reductions were applied: a reduction of an amount of EUR 1,315 corresponding to “a police
fine” and an amount of EUR 6,000 corresponding to 15% percent of the player’s annual
salaries ex. clause 8.9 of the contract.
39. The Respondent explained that it is entitled to deduct the amount corresponding to the fine,
since it was payable by the player and not the club, and that the entitlement of the club to
deduct 15% of the player’s salaries was freely agreed between the parties and, therefore, it
shall be deemed as valid.
40. Concerning the accommodation expenses requested by the Claimant, the Respondent
reiterated its previous argumentation: the Respondent failed to provide evidence of having
incurred in such expenses and, since he did not meet his standard of proof, he cannot be
granted any moneys for such consideration, insofar as the contract does not contemplate any
amount payable as accommodation allowance.
41. As a closing remark, the club reiterated his request for relief
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
42. First of all, the Single Judge fo the Dispute Resolution Chamber (hereinafter referred to as the
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 1 September 2021
and submitted for decision on 20 April 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.
43. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (March 2022 edition), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Brazilian player and an Albanian club.
44. Subsequently, the Single Judge 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 1 September 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
45. 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. Likewise, the Single stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
46. His competence and the applicable regulations having been established, the Single Judge
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.
47. However, the Single Judge emphasised that, in the following considerations, he will refer only
to the facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand.
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i. Main legal discussion and considerations
48. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the Claimant is requesting to be awarded outstanding
remuneration in the total amount of EUR 95,500, plus 5% interest p.a. as from the specific
due dates of the different amounts that integrate the total amount requested, until the date
of effective payment. The Claimant explains that, out of the amount of EUR 135,700 that the
club should have paid to him, the club only paid a total amount of EUR 40,200 and, thus, the
player shall be entitled to the remainder of the value of the contract, i.e. EUR 95,500.
49. The Single Judge also noted that, on its part, the club rejects the whole argumentation of the
club, alleging that only an amount of EUR 17, 085 is outstanding. In its request for relief, the
club requests the DRC to determine that only the said amount is due or, in any case, an
amount lower than the one requested by the Claimant.
50. In this context, the Chamber acknowledged that it had to address the events that are disputed
by the parties:
A.
Validity of the financial clearance document.
51. Whereas the Respondent argues that the parties validly concluded the financial clearance
document on 30 March 2020, whereby the player -on the one hand- acknowledged having
received his financial dues for the year 2019 and waived his right to lodge any claim against
the club in connection therewith, the Claimant challenged the authenticity of the document
by arguing that the club forged its signature on it and that the latter also failed to provide
any evidence of having effectively paid his financial entitlements of the year 2019.
52. After an analysis of the positions of the parties and the documentation on file, the Single
Judge observed that the financial clearance document is only signed by the player (if the
signature thereon stamped is attributed to the player) and not by the club.
53. However, since the content of the document at stake seems to be an acknowledgement and
waiver of the rights of the player, the signature and thus consent of the club would not
required as an element for the document to produce legal effects.
54. Notwithstanding the aforesaid, the Single Judge referred to the jurisprudence of the DRC,
whic is clear in connection with payments’ acknowledgements: if the validity of the document
at stake is challenged, the party that alleges having complied with its contractual obligations
(i.e. the club in the present scenario), shall provide further evidence of having complied with
the said obligations, monetary in casu, by providing documentation related to transfer wires,
bank checks or any other documentary evidence in support of its allegations in order for the
club to be considered discharged therefrom.
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55. In the present case, insofar as the club has not submitted any further evidence of having paid
the player’s financial dues, the Single Judge determined that the financial clearance document
cannot produce the effects sought by the Respondent, neither in connection with the
payment of the player’s financial dues during the year 2019, nor in connection with the
waiving of the player’s rights to lodge a claim in connection thereto.
B.
“Police fine” and salary reductions imposed under the framework of art. 8.9 of the contract.
56. The Respondent maintains that it was entitled to deduct certain amounts from the player’s
remuneration. In particular, the Respondent held that it lawfully deducted an amount of EUR
1,315 corresponding to “a police fine” and an amount of EUR 6,000 corresponding to 15%
percent of the player’s annual salaries of the season 2020 / 2021 ex. clause 8.9 of the
contract.
57. In connection with the police fine, the Single Judge wished to make 3 remarks: 1.) the club
failed to provide evidence of the “police fine” imposed on the player, the club only submitting
a table fabricated by the club itself where it is said that the latter paid the amount of EUR
1,315 on behalf of the player due to a police fine, which does not suffice to state that the
club met its standard of proof in order for its allegation to be upheld; 2.) even if proven,
clause 11 of the contract does not entitle the club to deduct a certain amount from the
player’s moneys due to a fine of such nature (cf. clause 11 a.) b.) and c.) of the contract); 3.)
as a general principle of labour law and in line with the usual practice of the DRC a club acting as employer of a player- shall not unilaterally deduct any amount (as disciplinary fines
or any other kind of fine) from the player’s remuneration, least to say if no proceedings were
conducted where the right to be heard of the player was respected. Thus, in view of the
above-mentioned considerations, the Single Judge concluded that the amount of EUR 1,325
cannot be considered as lawfully deducted.
58. On the other hand, concerning the amount of EUR 6,000 deducted by the club in accordance
with clause 8.9 of the contract, the Single Judge determined that the said clause was clear as
to the event that would trigger its application: the club not participating in the Champions
League or Europa League (during the season 2020/2021, in casu).
59. It remained undisputed that the club did not participate in the aforementioned competitions
in the said season and, hence, the condition precedent to the application of clause 8.9 was
fulfilled. According to the general principle of law, pacta sunt servanda, and in the absence
of a potestative nature of the clause at stake, the Single Judge decided that clause 8.9 of the
contract is valid and the club is entitled to deduct 15% of the player’s annual salaries. In this
context, the Single Judge highlighted that the Respondent seems to have calculated the
amount of EUR 6,000 in the understanding that the player’s fixed remuneration during the
season 2020/2021 is EUR 40,000 (as from August 2020 until May 2021((4,000*10) *0.15 =
6,000), a calculation that can be upheld. Thus, the Single Judge concluded that the
Respondent is entitled to deduct the amount of EUR 6,000 from the amounts due to the
player, ex. clause 8.9 of the contract.
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C.
Outstanding salaries to date (especial consideration of the salaries for June and July 2020
and clause 8.8 of the contract):
60. As for the salaries of June and July 2020, whereas the Claimant holds being entitled thereto,
insofar as he rendered services for the club during those months (which has been
acknowledged by the club), the club, while referring to clause 8.8 of the contract, alleges
that the player cannot be entitled to a salary during those months, since it was contractually
agreed so.
61. In addition, the club explained that the fact that the player rendered his services during those
months is to be compensated by the fact that the player did not render any services during
the months of March, April and May 2020 (due to the Covid-19 outbreak, competitions in
Albania were suspended during that period).
62. Having analysed the positions of both parties and the evidence provided, the Single Judge
wished to refer to the FIFA Guidelines on Covid-19, in accordance with which -in connection
with periods where the competitions were suspended in a particular territory- clubs and
players were encouraged to find suitable solutions to maintain the contractual stability of
their relationships.
63. With this in mind, even though the club provided evidence as to the suspension of the
competitions in Albania, it failed to provide any kind of evidence as to having agreed with
the player that he would not receive any remuneration during the said timeframe.
64. Thus, in the absence of any agreement of the parties in connection thereto, there are no
grounds to uphold the petitum of the club concerning the factual substitution of the months
during which the league was suspended and the months of June and July 2020.
65. In view of the above, considering that the player played games and was at the disposal of the
club during the months of June and July 2020, in line with the jurisprudence of the DRC, the
player is entitled to receive a remuneration for the said months during which he effectively
rendered services for the club.
66. The above being said, after having analysed the positions of both parties, the Single Judge
decided that the player is entitled to EUR 47,800 as outstanding salaries:
Seasons
Salaries due:
Sign on fee / Lump sum due:
Salaries paid:
Deductions lawfully
practiced:
TOTAL DUE:
2019 / 2020 (08.19 –
07.20)
EUR 48,000
None
EUR 40,200
None
2020 / 2021 (08.20 – 05.21)
EUR 7,800
EUR 40,000
EUR 40,000
EUR 10,000
EUR 4,000 (on 07.08.21)
EUR 6,000
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D.
Bonuses: a.) performance bonus; b.) bonus for winning “the championship” & the reward
paid by the Municipal Council of Tirana; c.) qualification bonuses.
67. Concerning the performance bonus in the amount of EUR 5,000 for having scored a total of
15 goals and assist together (clause 8.5 of the contract), whereas the player claims being
entitled thereto for having scored and assisted 15 goals during the full duration of the
contract, the club held that clause 8.5 of the contract needs to be interpreted as referring to
15 goals or assists within a season. It remained undisputed that the player did score and assist
a total of 15 goas during the full duration of the contract. Thus, the reply to the question of
the entitlement of the player to receive the requested bonus lies on the interpretation of the
clause at stake. In this respect, the Single Judge was of the opinion that the relevant clause is
unclear and should have indicated the timeframe during which the aforesaid achievements
needed to be made in order to trigger the relevant payment. However, in the absence of
clarity, the Single Judge decided that the principle in dubio contra proferentem applies.
Consequently, considering that there exists a general presumption (iuris tantum) in labour
relationships that employment contracts are drafted by the employer -which has not been
rebooted by the club- and that the contract at stake carries all the identification elements of
the club (logo, name, address, telephone number, e-mail address of the club), it is to be
presumed that the club was the drafting party of the agreement (stipulatorem). Hence, in
application of the referred legal principle, it is our opinion that clause 8.5 of the contract shall
be interpreted as wielded by the Claimant, i.e. the bonus shall be paid if the player scores or
assisted 15 goals during the full duration of the contract, which is acknowledged by the
parties. Hence, the Single Judge determined that the player is entitled to receive the
performance bonus in the amount of EUR 5,000.
68. As for the bonus for having won the championship (clause 8.6 of the contract) and the
payment made by the Municipal Council of Tirana, it must first be noted that it is undisputed
that the club won the Championship at the end of the season 2019 / 2020 and, hence, the
club’s obligation to pay the bonus for this consideration (in the amount of EUR 5,000) is not
disputed. In connection with the payment of EUR 8,100 paid by the Municipality of Tirana,
the Respondent argued that the Municipal Council of the city of Tirana is a shareholder of
the club and that the said payment corresponds to an amount awarded to the player for
having won the championship, i.e. the Municipal Council substituted the Respondent in its
obligation to pay the bonus of EUR 5,000 for having won the championship (clause 8.6 of
the contract). On his part, the player challenges the said argument and held that the
Municipality of Tirana is not a shareholder of the club and that the consideration of the said
payment was the celebration of the 100th anniversary of the club.
69. After having analyzed the positions of the parties and the documentary evidence on file, the
Single Judge underscored that the relevant document to be analyzed in order to determine
whether the amount paid by the Municipal Council of Tirana can be associated with the
bonus contained in clause 8.6 of the contract is the letter issued by the said authority on 28
September 2020, which serves as title for the payment of the amount of EUR 8,100.
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70. After having carefully studied the said letter, the Single Judge noted that the consideration
of the said payment was both: having won the championship and the club’s 100th anniversary.
Nothing is said in the relevant letter as to the association of such payment with the bonus
contemplated under clause 8.6 of the contract. What is more, the letter states that “the
mayor or the person authorized by him is in charge of signing individual contracts with the
beneficiaries of the reward, according to the definitions in this decision”. Thereby, the letter
states that the payer is the mayor (on behalf of the Municipal Council) and not the club. No
substitution of the club by the mayor is mentioned and the letter even states that the
Municipal Council would sign individual contracts with the relevant beneficiaries. It is also to
be noted that the amount thereby payable (EUR 8,100) was higher than the amount of EUR
5,000 payable as per the bonus concerned. In view of all of the above, the Single Judge
determined that the argumentation of the Respondent cannot be upheld, insofar as not
enough links subsist between the obligation undertaken by the club under clause. 8.6 of the
contract and the letter dated 28 September 2020 (title of the player’s credit of EUR 8,100).
Thus, the Single Judge decided that the player is entitled to EUR 5,000 as bonus for having
won the championship, ex. clause 8.6 of the contract.
71. Concerning the qualification bonuses, the player argues being entitled to EUR 20,000 in total,
broken down as follows: EUR 5,000 as bonus for participation in UEFA Champion League
Season 2020/2021; EUR 5,000 as bonus for qualifying in the first round of UEFA Champion
League Season 2020/2021; EUR 5,000 as bonus for qualifying in the second round of UEFA
Champion League 2020/2021; and EUR 5,000 as bonus for participation in UEFA Europa
League Season 2020/2021.
72. On its part, the club held that the player is only entitled to EUR 5,000 as qualification bonus,
i.e. the one due for having qualified from the first to the second round of UEFA Champions
League, insofar as: 1.) the bonus for participation in the said competition has the same
consideration as the bonus for winning the championship since the former is a consequence
of the latter, 2.) the round-qualifying bonuses are to be understood as payable if the club
manages to qualify from one round to the next one and, with this in mind, only the bonus
for qualifying from the first to the second round of the competition is payable.
73. After a careful analysis of the clauses pertaining to the qualification bonuses, the Single Judge
determined that the argumentation of the player is to be upheld. Clause 8.6 is clear and its
application is not disputed: the club owes the player a bonus of EUR 5,000 for having won
the national championship at the end of the season 2019/2020 (as discussed in point B supra).
74. However, the parties dissent as to the interpretation of clause 8.7 of the contract. In this
respect, the Single Judge noted the allegations of the Respondent, in accordance with which
there would be a duplicity in granting 2 bonuses to the player for the same achievement, i.e.
winning the championship in Albania (which grants the club access to UCL) and competing
in the first round of the said competition.
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75. In this respect, the Single Judge determined that there is no duplicity in granting the player
the bonus in the amount of EUR 5,000 for having won the league and hence participate in
UCL, since it could happen that, for other reasons (e.g. player being banned from playing in
official matches or the player being injured and not able to play) the player would not play in
UCL. Thus, the Single Judge concluded that the player is entitled to EUR 5,000 for having
won the league, EUR 5,000 for the scores /assistances, EUR 5,000 for participating in UCL
and EUR 5,000 for qualifying from the 1st to the 2nd round within UCL, i.e. a total amount of
EUR 20,000 as bonuses.
76. In connection with the accommodation expenses requested, despite the contract providing
the club’s obligation to provide the player with accommodation during the duration of the
contract, the Single Judge noted that the Claimant failed to provide evidence in support of
having incurred in the accommodation expenses claimed, i.e. monthly expenses of EUR 350
during 22 months. Thus, in accordance with the usual practice of the DRC and ex. art. 13.5
of the Procedural Rules of the Football Tribunal, in the absence of evidence in this respect,
the petitum of the Claimant cannot be upheld.
ii. Consequences
77. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent. In this
context, the Single Judge concluded that, in accordance with the legal principle, pacta sunt
servanda, the player is entitled to receive outstanding remuneration in the amount of EUR
67,800, i.e. the abovementioned outstanding salaries (EUR 47,800) and the outstanding
bonuses due to the player (EUR 20,000).
78. 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. as from the respective due dates in connection with the outstanding salaries due
and as from the date following the date on which the claim was lodged concerning the
bonuses due (in view of the lack of contractual indication of their due dates).
iii. Compliance with monetary decisions
79. 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.
80. 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.
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REF FPSD-3515
81. The overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
82. 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.
83. 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.
84. 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
85. 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.
86. 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.
87. Lastly, the Single Judge 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, Elton Pereira Gomes, is partially accepted.
2.
The Respondent, KF TIRANA, has to pay to the Claimant, the following amount(s):
- EUR 67,800 as outstanding remuneration plus 5% interest p.a., as follows:
- on the amount of EUR 7,800, as from 1 August 2020 until the date of effective payment;
- on the amount of EUR 40,000, as from 1 June 2021 until the date of effective payment;
- on the amount of EUR 20,000, as from 2 September 2021 until the date of effective
payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
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6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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
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