Dispute Resolution Chamber
Texto da decisão
REF 20-01766
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021,
regarding an employment-related dispute concerning the player Riccardo Piscitelli
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stéphane Burchkalter (France), member
CLAIMANT:
Riccardo Piscitelli, Italy
Represented by Mr Salvatore Civale
RESPONDENT:
FC Dinamo 1948 Bucuresti, Romania
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I. FACTS OF THE CASE
1.
On 1 July 2019, the Italian player, Riccardo Piscitelli (hereinafter: the Claimant or Player) and the
Romanian club, FC Dinamo 1948 Bucuresti (hereinafter: the Respondent or Club) concluded an
employment contract valid as of the date of signature until 30 June 2022 (hereinafter: the
Contract).
2.
Pursuant to art. 3 of the contract, the player was entitled to receive the following amounts:
“3.1. During the period of the present agreement the player will receive a monthly amount as
following:
- For the period 01.07.2019 – 30.06.2020 the monthly amount of 7,000 Euro net; The player
will receive the amount of 7,000 Euro net in advance from his salary until 10.07.2019.
- For the period 01.07.2020 – 30.06.2021 the monthly amount of 7,000 Euro net; The player
will receive the amount of 7,000 Euro net in advance from his salary until 10.07.2020.
- For the period 01.07.2021 – 30.06.2022 the monthly amount of 8,000 Euro net; The player
will receive the amount of 8,000 Euro net in advance from his salary until 10.07.2021.
Bonuses for the period 01.07.2019 – 30.06.2022
For regular season:
- 400 Euro net for the team victory in official game as titular in game played as titular minim
45 minutes in official games of first team of Dinamo I in League I;
- 200 Euro net for game ended in a draw by first team of Dinamo away, in League I, played as
titular minim 45 minutes;
- 5.000 Euro net – if Dinamo I will be qualified in play-off League I and the player will evolve
in 60% from regular season’s minutes;
The bonuses are to be paid with the salary of the following month following the achievement
of the results.
For League I’s play-off:
- 600 Euro net for the team victory in official game as titular in game played as titular, minim
45 minutes, in official games of Dinamo I in League I;
- 300 Euro net for game ended in a draw by Dinamo I away, in League I, played as titular,
minim 45 minutes, in official games of Dinamo I in League I;
- 15.000 Euro net – if Dinamo will win the National Championship - League I and the player
evaluated in 60% of the games.
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- 10.000 Euro net – if Dinamo will rank on the second place at the end of National
Championship - League I and the player evaluated in 60% of the games;
- 6.000 Euro net – if Dinamo will win Romanian Cup proportionally with the minutes played in
the two semifinals and final, (will be applied the rule of “three simple”: 270 minutes = 100%
- two semifinals and final)
- 50.000 Euro net – if the team Dinamo I will be qualified in groups stage of UEFA Champions
League (proportionally with the played minutes in preliminary rounds);
- 30.000 Euro net – if the team Dinamo I will be qualified in groups stage of UEFA Europe
League (proportionally with the played minutes in preliminary rounds).
3.2. The Club reserves the right to grant premiums in money or other bonuses, subject to the
Sportsman’s conduct and performance, which led to achieving competitive performance for each
season by the decision of the Board.
3.3. The competitive bonus is calculated and paid with the salary of the following month following
the achievement of the results.
3.4. The Club can retain from the sums owed to the Sportsman, taxes, fines as well as any other
sports-related penalties in accordance with the regulations of the Romanian Football Federation
and with the Internal Regulations”.
3.
According to art. 3.5 of the contract, the parties agree upon the following:
“3.5. The payment of the amounts provided from this contract will be paid in lei, at the NBR
exchange rate on the payment’s day.
In addition to all the above, for the duration of the employment contract, the Club shall provide
the Player a contribution for the rental of the house quantified in the amount of EUR 350 per each
month”.
4.
On 1 January 2020, the player sent a “first warning letter to the Club asking to fulfill its contractual
obligations in light of the fact that the Club had not paid the salaries concerning the month of
October, November and December 2019 plus the bonuses due for the same months for the total
amount of EUR 23,200 and granted the Club a term of 15 days to remedy to its default”.
5.
On 3 June 2020, after having received part of the amount requested in his letter dated 1 January
2020, the player sent a second default notice to the club, by means of which he requested the
payment of the salaries of February, March, April and May 2020 as well as the bonuses for the
winning matches and the contribution for the rent of the house for the months as from February
to May 2020 for a total amount of EUR 30,200, to be paid within 15 days. Moreover, in his letter,
the player requested “evidence of payment of the social insurance contribution (health and
pension) as well as the proof of payment of the taxes on personal incomes, in compliance with
the Contract and the Romanian Legislation.”
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6.
On 9 July 2020, the player terminated his employment contract due to the club’s failure to comply
with its financial obligations in the amount of EUR 30,200 “as outstanding salaries of the month
of March, April, May and June 2020 (i.e. for the amount of 28,000 EUR), plus the rent for the
month from March until June 2020 (i.e. for the amount of 1,400 EUR), as well as the bonus for
the winning two matches (i.e. for the amount of 800 EUR)”.
7.
By means of letter dated 24 July 2020, the club confirmed “the end of employment contract with
the player Riccardo Piscitelli on 21 July 2020 and his status as free agent.
Moreover, the Club SC Dinamo 1984 waives any possible claim against Clube Desportivo Nacional
de Madeira (Portugal) and the Player”.
8.
According to the player, the parties “discussed to sign a Mutual Termination Agreement of the
Employment Contract by which Dinamo expressly acknowledged its fault and the Player, in good
faith, accepted a “reduced compensation” in the Net amount of EUR 18,700 (eighteen thousand
seven hundred euros) as remaining overdues for the season 2019/2020, with the condition sine
qua non to receive the payment by the 20 September 2020. The agreement also foreseen that in
case of failure to pay within the established deadline the Player was entitled to receive the full
remaining amount of the contract as compensation in addition to the overdue salaries”.
9.
On 26 August 2020, the player sent a letter to the club pointing out that it had not yet signed the
mutual termination agreement as well as that the player by signing the agreement, accepted to
waive his request for the compensation on the basis of the verbal agreement to pay at least the
amount of the overdue salaries for the season 2019/2020 on time and within the established
deadline.
10. On 10 September 2020, the player sent a further notice to the club, asking for the payment of
the amount agreed in the termination agreement within 10 days.
11. On 11 September 2020, the club replied to the player’s letter of 10 September 2020 by stating
the following:
“Regarding the address sent by you, dated September 10, 2020, we inform you of the following:
SC Dinamo 1948 SA has changed its owner, and at the moment our club is in a process of
reorganization and financial audit. The amount communicated by you is composed of:
- 9.700 Euro – financial rights of the player Riccardo Piscitelli;
- 5.000 Euro – legal expenses incurred by the player Riccardo Piscitelli;
- 4,000 Euro – the commission of the agent of the player Riccardo Piscitelli;
In the accounting of our club, the amount due to the player’s agent is 2.000 Euro.
Please confirm the amount from our accounting in order to conclude the Mutual termination
Agreement and start the payment procedure.”
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12. On the same day, the player sent a new version of the termination agreement to the club.
13. On 12 November 2020, the player lodged a claim against the club in front of FIFA, claiming the
following:
“(a) Order the Respondent to pay the Claimant the amount of EUR 16,700 (sixteen thousand
seven hundred euros), NET of TAXES, calculated as follows:
-
Salary of May 2020 – Net amount of EUR 7,000 (seven thousand euros);
Salary of June 2020 – Net amount of EUR 7,000 (seven thousand euros);
the amount of EUR 2,700 (two thousand seven hundred euros) as bonuses for the winning
matches and contribution for the rental of the house;
(b) Order the Respondent to pay the Claimant the total amount of EUR 180,000.00 (one
hundred eighty thousand euros), NET of TAXES, as compensation for the breach of contract
equals to the remaining value of the contract considering the twenty-four (24) monthly salaries
from July 2020 until June 2022 (12 months x EUR 7,000 the sporting season 2020/2021 plus
12 months x EUR 8,000 for the sporting season 2021/2022) and - on a subsidiary basis - order
the Club to pay the mitigated compensation plus in addition the 3 monthly salaries
compensation foreseen by article 17.1 of the FIFA RSTP;
(c) Order the Club to pay an interest of 5% on each of the above amounts due to the Player,
calculated from 9 July 2020 until the date of effective payment;
(d) Apply the measures and sporting sanctions established by the FIFA Regulations on Status
and Transfer of Players, namely the ban of 2 transfer windows;
(e) Apply any other measures it considers necessary in decision of the case at stake.”
14. In his claim, the player held that his termination of the contract was legitimate and duly justified
as he could no longer be expected to continue the employment relationship in good faith. It was
an “extrema ratio” decision which the player was forced to take due to the club’s silence and
persistent breach of the contract.
15. Despite having requested and obtained an extension deadline of 10 days, the Respondent did not
provide an answer to the claim.
16. The player informed FIFA that on 24 July 2020, he signed an employment contract with the
Portuguese club, Clube Deportivo Nacional Futebol, SAD, valid as of the date of signature until
the end of the sporting season 2022/2023, according to which the club undertook to pay the
player the following gross monthly remuneration:
14 monthly salaries of EUR 4,231.31 each during the sporting season 2020/2021;
14 monthly salaries of EUR 5,138.02 each during the sporting season 2021/2022;
14 monthly salaries of EUR 5,440.25 each during the sporting season 2022/2023.
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Moreover, the club undertook to pay the player a sign-on fee of EUR 13,679.89 as well as the
following gross amounts for the use of the player’s image rights:
EUR 38,303.70 for the sporting season 2020/2021;
EUR 46,511.63 for the sporting season 2021/2022;
EUR 49,247.60 for the sporting season 2022/2023.
II. CONSIDERATIONS OF THE DRC
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, the Chamber
took note that the present matter was submitted to FIFA on 12 November 2020. Consequently,
the DRC concluded that the 2021 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition October 2020), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension.
3.
Furthermore, 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 Player (edition February 2021), and considering that the
present claim was lodged on 12 November 2020, the October 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
4.
The DRC recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12 par. 4 of
the Procedural Rules, pursuant to which she may consider evidence not filed by the parties.
5.
In this respect, the DRC also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the
application of the Regulations, any documentation or evidence generated or contained in TMS.
6.
The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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.
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7.
First of all, the members of the Chamber recalled that the parties concluded a contract, valid as
of 1 July 2019 until 30 June 2022.
8.
In continuation, the DRC noted that the Claimant lodged a claim against the Respondent
maintaining that he had terminated the contract with just cause on 9 July 2020 since the club
failed to remit remuneration corresponding to 4 monthly salaries, 2 months of rent and bonus.
9.
Moreover, the DRC observed that the Claimant, in his claim lodged on 12 November 2020,
claimed outstanding remuneration in the amount of EUR 16,700 as well as compensation for
breach of contract by the club in the amount of EUR 180,000 plus 5% interest p.a. “on each of
the above amounts due to the Player, calculated from 9 July 2020 until the date of effective
payment”.
10. Having recalled the above, the DRC took note that despite having been invited to do so, the
Respondent, for its part, failed to present its response to the claim of the Claimant. By not
presenting its position to the claim, the DRC was of the opinion that the Respondent renounced
its right of defence and, thus, accepted the allegations of the Claimant.
11. Furthermore, as a consequence of the aforementioned consideration, the DRC concurred that in
accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the
documentation already on file, in other words, upon the statements and documents presented by
the Claimant.
12. Having said this, the DRC acknowledged that the central issue in the matter at stake was to
determine as to whether the contract was terminated by the Claimant with or without just cause
and to decide on the consequences thereof.
13. On account of the above, the DRC recalled that the termination of the player on 9 July 2020
followed several reminders sent to the club.
14. Bearing in mind the foregoing, the DRC considered the documentation on file and deemed that
the Respondent did not fulfil its obligations as per the employment contract concluded by the
parties in accordance with the general legal principle of “pacta sunt servanda”. Consequently,
considering that the Respondent had repeatedly and for a significant period of time been in
breach of its contractual obligations towards the Claimant, the Chamber decided that the
Claimant had just cause to unilaterally terminate the employment contract on 9 July 2020 in
accordance with art. 14bis of the Regulations and that, as a result, the Respondent is to be held
liable for the early termination of the employment contact with just cause by the Claimant.
15. Subsequently, prior to establishing the consequences of the termination of the employment
contract with just cause by the Claimant in accordance with art. 17 par. 1 of the Regulations, the
Chamber held that it, in general, had to address the issue of unpaid remuneration at the moment
when the contract was terminated by the Claimant.
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16. Bearing in mind the considerations above, and in accordance with the general legal principle of
pacta sunt servanda, the Chamber established that the Claimant is entitled to EUR 14,700,
corresponding to salaries of May and June 2020 (i.e. EUR 7,000 each) plus the contribution for
the rent of the house for the same months (i.e. EUR 350 each as per art. 3.5 of the contract).
17. The DRC noted that the player, in his request for relief, claimed EUR 2,700 as bonus and
contribution for the rent of the house, without indicating which part of such amount refers to the
bonus and which part to the rent. Moreover, regarding the bonus claimed by the player, the
Chamber determined that he failed to provide evidence in such regard, therefore, the DRC
decided to reject this part of Claimant’s claim.
18. Furthermore, with regard to the player’s request for the contribution for the rent of the house,
given the above considerations, the DRC decided to recognize to the Claimant the amount of EUR
700 (two months) considering that only 2 monthly salaries were outstanding on 9 July 2020.
19. In addition, taking into consideration the player’s claim, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. over the outstanding amount of EUR 14,700 as from 9
July 2020 until the date of effective payment.
20. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the Claimant is entitled to receive compensation for breach of contract from the Respondent.
21. In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided for in
the contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including, in particular, the
remuneration and other benefits due to the Claimant 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.
22. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contains a provision by means of which the parties
had beforehand agreed upon an amount of compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
23. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable. Therefore, other objective criteria may be taken
into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber
emphasised beforehand that each request for compensation for contractual breach has to be
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assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of
the respective matter.
24. The members of the Chamber then turned their attention to the remuneration and other benefits
due to the Claimant under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract, if any, in the calculation of the
amount of compensation.
25. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable
to the player under the terms of the employment contract as from the date of termination with
just cause by the Claimant until its natural expiration, bearing in mind that he would have received
in total EUR 180,000 as remuneration for the period as from July 2020 until 30 June 2022.
Consequently, the Chamber concluded that the amounts of EUR 180,000 serve as the basis for
the final determination of the amount of compensation for breach of contract in the case at hand.
26. In continuation, the Chamber verified as to whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would have
been enabled to reduce his loss of income. According to the constant practice of the DRC, such
remuneration under a new employment contract shall be taken into account in the calculation of
the amount of compensation for breach of contract in connection with the player’s general
obligation to mitigate his damages.
27. The Chamber noted that on 24 July 2020, the player concluded a new employment contract with
Clube Deportivo Nacional Futebol, SAD, valid as from the date of signature until the end of the
sporting season 2022/2023, as a consequence of which he was able to mitigate his damages in
the amount of EUR 229,665.85.
28. Subsequently, the Chamber referred to art. 17 par. 1 point ii. and established that, since the
termination was due to overdue payables, the player should also be entitled to additional
compensation in the amount of 3 monthly salaries, amounting in total to EUR 21,000. As the sum
of the mitigated compensation exceed the residual amount of the contract, the Chamber
stipulated that the player was entitled to receive compensation in the amount of EUR 21,000,
corresponding to the additional compensation.
29. In addition, taking into account the player’s request as well as the constant practice of the Dispute
Resolution Chamber in this regard, the DRC decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the amount of compensation as of the date of the claim, i.e. 12
November 2020 until the date of effective payment.
30. The DRC concluded its deliberations by rejecting any further claim of the Claimant.
31. Furthermore, taking into account the consideration under number II./3. above, the Chamber
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision,
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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.
32. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the Respondent. More in particular, the DRC pointed out
that, against clubs, the sanction shall consist in a ban from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods.
33. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amount due to the Claimant within 45 days as from the moment in which the
Claimant, following the notification of the present decision, communicates the relevant bank
details to the Respondent, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
34. The Chamber recalled that the above-mentioned sanction will be lifted immediately and prior to
its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of
the Regulations.
35. Finally, the Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance of
contractual stability as well as international employment related disputes between a club and a
player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
36. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of
the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Riccardo Piscitelli, is partially accepted.
2.
The Respondent, FC Dinamo 1948 Bucuresti, has to pay to the Claimant, the following amounts:
- EUR 14,700 as outstanding remuneration plus 5% interest p.a. as from 9 July 2020 until the
date of effective payment;
- EUR 21,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 12 November 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
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4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amounts due, plus interest as established above are not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank details
to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amounts are paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amounts are paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amounts as per in this decision are still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
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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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