Dispute Resolution Chamber
Texto da decisão
REF 20-00921
Decision of the
Dispute Resolution Chamber
Passed on 28 April 2021,
regarding an employment-related dispute concerning the player Bogdan Planić
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (the Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Bogdan Planić, Serbia
Represented by Hrvoje Raić & Ivan Ostojic
RESPONDENT:
FC FCSB, Romania
Represented by Dr. Madalina Diaconu
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I.
FACTS OF THE CASE
1.
On 31 August 2017, a Serbian player, Bogdan Planić (hereinafter: ’the Claimant’ or ‘the player’)
and the Romanian club, FC FCSB (hereinafter: ‘the Respondent’ or ‘the club’) concluded an
employment contract (hereinafter: first contract), valid as from 1 September 2017 until 30 June
2020.
2.
As per clause J of the first contract, the player was entitled to “basic monthly gross salary: RON
98,089 (equivalent to EUR 15,000 per month)”.
3.
As per clause S of the contract:
‘The Romanian law shall apply- It shall be considered that this indivual emplyoment agreement
is signed in Romania and any disputes or disagreements arising out of or in connection with this
indivual employment contract shall be managed, interpreted, understood and resolved in
accordance with Romanian legislation in force, as well as with sports statutes and rulebooks’.
4.
According to clause 4.4 of the annex to the first contract, the clubwas obliged to provide to
the player EUR 500 per month accomodation costs (“in RON at […] exchange rate on the day
of payment”), as well as 2 plane tickets “for the player and his family per competitive season
on the route Bucharest – Belgrade -Bucharest”.
5.
Clause P of the first contract provides for the following:
“Force Majaure
a) Neither party shall be responsible for delayed or partial or complete inadequate fulfilment
of its obligations, if such delayed or improper fulfilment was caused by an event of force
majeure that cannot be foreseen at the date of signing of this individual employment
contract, or whose consequences could not be avoided, eliminated or remedied by the party
referring to force majeure. The following events are considered to be force majeure: war,
natural disasters, strikes, legal or governmental restrictions, or any event that does not
depend on the will of the party referring to that event;
b) The party referring to the force majeure shall be obliged to immediately and in detail notify
the other party of the occurrence of a force majeure event and shall take all possible
measures to mitigate the consequences of such an event.”
6.
According to Clause T b) of the first contract, in case of contractual dispute, “the dispute shall
be referred only to instances of sports jurisdiction of the FRF or LPF and UEFA, FIFA, or direcly
to the [CAS]. The selection of jurisdiction shall always be the right of the claimant.”
7.
On 6 November 2019, the parties signed a second employment contract (hereinafter: second
contract), valid as from 1 July 2020 until 30 June 2021.
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8.
As per Clause J of the second contract, the player was entitled to “basic monthly gross salary:
RON 98,089 (equivalent to EUR 15,000 per month)”.
9.
On 16 March 2020, the club took “Decision no. 437/9 (Emergency situation)” (hereinafter: the
decision) involving the player.
10.
As per the decision, “after the establishment of measures to prevent the spread of coronavirus”
by the Romanian public authorities the club decided the following:
a)
b)
c)
d)
“Starting from 16.03.2020 (until 14.04.2020) – the [ first contract] of [the player] has been
suspended […]”,
“[The player] will have a compensation of 75% of the average gross salary in the amount of
[RON 4,072]”,
“During the suspension, [the player] will be available to the company. The start of the
engagement will be announced three days in advance via email or other means of
communications (social network)”,
“The decision enters into force on March 16, 2020, with the right to appeal within 30
calendar days from the date of publication to the Court in Bucharest”.
11.
On 8 April 2020, the club informed the player via email of the following: “We inform you about
decision no. 437/1 dated 16 March, 2020, adopted by [the club] which ordered the suspension
of the [ first contract] and according to which you will, during the suspension of the [ first
contract] have a compensation of 75% of the average gross salary in the amount of [RON
4,072]”.
12.
On 14 April 2020, the player informed the club in writing that it had failed to pay him the
“gross” amount of RON 196,178 (“which is no less than net total of EUR 30,000”), as follows:
a)
b)
RON 98,089 corresponding to the February 2020 salary;
RON 98,089 corresponding to the March 2020 salary.
13.
In said letter, the player subsequently argued that the decision “was delivered to the player via
email on 8 April 2020 and therefore cannot have any retroactive effect i.e. cannot be applicable
to the period before the notification of the Decision (i.e. February and March 2020)”.
Furthermore, as per the player, “the Decision […] is invalid since it was issued unilaterally and
without any prior club’s genuine attempt to reach mutual agreement with the player or Union
of Players in Romania which behaviour is evidently contrary to the guidelines of the [FIFA COVID
Guidelines]”.
14.
Thus, the player requested the club to pay him the outstanding amount, and to set aside the
decision, within the next 15 days.
15.
On 21 April 2020, the club responded to the player, holding that it had suspended the contract
“in full compliance with the specific legislation applicable in Romania during the state of
emergency”. According to the club, the player will receive “the average gross monthly salary,
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i.e. RON 4,072 [per month] as established by Romanian law […] without requiring the parties
to negotiate”.
16.
The club further explained in said letter that “the measures regarding the suspension of the
contract enforcement of technical unemployment provisions in relation with the player […] have
been made after consultations with the administrative and technical staff and consideration of
the economic resources available, of the clubpolicy and interest and under no circumstances
have a discriminatory status”. The clubconcluded its letter by establishing that the player had
to commit himself to “fully and timely comply with all the contractual obligations.”
17.
On 23 April 2020, the player informed the club that he rejected the “club’s stipulations” as
mentioned in its correspondence of 21 April 2020, asking the clubto “remedy its default as
requested in [his] letter dated 14 April 2020”.
18.
On 5 May 2020, the player put the club in default requesting within 15 days the following:
a)
b)
The payment of RON 294,267 outstanding remuneration (“which is no less than net
EUR 45,000”), corresponding to the monthly salaries of February, March and April
2020;
That the decision set aside “and continue paying to the player full monthly salary”.
19.
On 18 May 2020, the club replied to the player in writing, arguing that it had “fulfilled all the
financial obligations towards [the player] as established by the contract […] and in relation to
the national legislation and FIFA adopted regarding” COVID. Subsequently, the clubreferred to
the player’s position that he was not invited to negotiations, and held that it had “notified [the
player] about this, you are among the few players of [the club] which did not accept the
reduction of salary rights […]. Accordingly, proceeded in accordance with the national
legislation and FIFA, during the state of emergency […] temporarily suspending the contract
between us and paying your salary in the amount established by law for this period.”
20.
On 2 June 2020, the player requested from the club the payment of the amount of EUR 37,263
in 15 days, broken down as follows:
a)
b)
c)
EUR 7,263 corresponding to the “residual part” of the March 2020 salary;
EUR 15,000 corresponding to the April 2020 salary;
EUR 15,000 corresponding to the May 2020 salary.
21.
In this context, the player maintained that, “instead of complying with [the player’s requests of
5 May 2020] the clubon 15 May 2020 set aside the Decision […] but in the meantime only paid
a part of its debt […] through several different payments in total equivalent of net EUR 22,737”.
22.
On 18 June 2020, the player terminated the employment relationship with the club in writing.
In the termination letter, the player outlined that the club had failed to pay him the amount of
EUR 37,263 as requested in his letter of 2 June 2020. In addition, the player held that the club
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had failed to comply with the FIFA COVID Guidelines, given that it never negotiated any
amendments to the employment contract with the player.
23.
On 22 June 2020, the club notified the player in writing that he had been unjustifiably absent
from training on 19 June, 20 June and 21 June 2020, requesting him to “fulfil [his] contractual
obligations […] otherwise it will be sanctioned according to the contract […] with a penalty
representing 25% of the contractual rights owed by us for the competitive year 2019-2020”.
24.
On 23 June 2020, the player informed the club in writing that it is “in misinterpretation of the
legal situation at hand”, given that he had “unilaterally terminated the employment relationship
on 18 June 2020”.
25.
On 29 June 2020, the player lodged a claim against the club for breach of contract requesting
the following:
a)
EUR 39,650 as outstanding remuneration “which matured as follows”:
i)
ii)
iii)
iv)
v)
vi)
vii)
viii)
ix)
b)
EUR 7,263 on 1 April 2020 (part of the salary for March 2020);
EUR 500 on 1 April 2020 (accommodation costs for March 2020);
EUR 15,000 on 1 May 2020 (the full salary for April 2020);
EUR 500 on 1 May 2020 (accommodation costs for April 2020);
EUR 6,327 on June 2020 (part of the salary for May 2020);
EUR 500 on 1 June 2020 (accommodation costs for May 2020);
EUR 9,000 on 19 June 2020 (part of the salary for June 2020);
EUR 300 on 19 June 2020 (part of the accommodation costs for June 2020);
EUR 260 on 19 June 2020 (flight ticket).
EUR 192,460 as compensation for breach of contract.
26.
The player further requested 5% interest p.a. from the respective due dates, as well as the
imposition of sporting sanctions on the club.
27.
In his claim, the player firstly highlighted that the club started breaching the contract by not
paying him his February 2020 salary, i.e. before the COVID-19 pandemic and suspension of
football activities.
28.
In continuation, the player referred to the club’s decision of 16 March 2020, and argued that,
“irrespective of the national legislation in Romania, [the decision] was invalid since it was issued
unilaterally and without any prior club’s genuine attempt to reach mutual agreement with the
player or Union of Players in Romania”.
29.
According to the player, the club failed to respect the FIFA COVID-19 Football Regulatory
Guidelines “when reducing the salary of the player”.
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30.
Moreover, the player emphasized that he only received the decision from the club on 8 April
2020, and that said Decision, although dated 16 March 2020, cannot “produce any legal effect
retroactively”.
31.
Subsequently, the player held that, following his default letter of 5 May 2020 in which he
requested EUR 45,000, the clubonly paid him the amount of EUR 22,737.
32.
According to the player, the football competitions in Romania restarted on 14 June 2020.
33.
However, as per the player, notwithstanding the fact that the football competition had
restarted, the clubstill failed to remedy the defaults as stipulated by the player in his letters.
34.
Thus, the player determined that he had a just cause to terminate the contract on 18 June 2020.
35.
Having said this, the player highlighted that on 22 June and 23 June 2020, “the clubsuddenly
decided to pay him part of salary for May 2020 in amount of RON 41,992 (equivalent to EUR
8,673)”.
36.
Given the above, the player concluded that the club still owed him outstanding remuneration
in the total amount of EUR 39,650, corresponding to:
a)
b)
c)
d)
e)
f)
37.
part of the March 2020 salary;
the entire April 2020 salary;
part of the May 2020 salary;
accommodation costs in the amount of EUR 500 per month for the months of
March, April and May;
the pro rata monthly salary and accommodation costs for June 2020;
EUR 260 for the return flight Belgrade
With regard to his request for compensation in the amount of EUR 192,460, the player
explained that this corresponds to the residual value of the first contract (valid until 30 June
2020) andsecond contract (valid until 30 June 2021), as follows:
a)
b)
c)
EUR 186,000 corresponding to the remaining value of the salaries;
EUR 6,200 corresponding to the residual accommodation expenses;
EUR 260 corresponding to “2 return tickets Bucharest – Belgrade - Bucharest for
2020/2021 season”.
38.
In its reply, the club confirmed that the player played for its club since the 2017-2018 season,
and that on 31 August 2017, he signed an employment contract with the club, valid until 30
June 2020, as well as that later on, he signed a new contract valid until 30 June 2021.
39.
The club further confirmed that the employment contract inter alia provides for specific clauses,
covering cases of force majeure and for financial consequences in case of early termination of
the contract by the player.
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40.
According to the club, since mid-2017 the player played for the first team in 54 official matches
until 12 March 2020, when the Romanian Football Federation (RFF) suspended all official
football-related activities as a consequence of the COVID-19 pandemic.
41.
In this regard, the club explains that it – together with all the other football clubs in Romania suspended their players' employment contracts as per 12 March 2020 and consequently all the
football players received a reduced remuneration.
42.
The club further reiterated that prior to adopting the decision, the club undertook emergency
discussions with all first team members, proposing a 50% cut of their salaries during the
suspension of the employment contracts. The club holds that in these discussions, the players
were informed that if they do not accept this reduction, the club would have to request technical
unemployment benefits for them from the Romanian state.
43.
In this context, the club explains that the captain of the club’s first team (Florin Tanase)
participated in the abovementioned discussions and that majority of players accepted the 50%
salary cut, however a small minority did not accept this solution. Consequently, these players
were declared ‘in technical unemployment period’.
44.
The clubfurther explained that:
a)
b)
the challenged decision (as rectified) was adopted on 31 March 2020, and took effect
the same day and that the player was notified on 8 April 2020; and
the suspension was then prolonged by another decision, dated 14 April 2020,
which was communicated to the player the next day; the said decision mentions that
the suspension of the player is effective from 15 April 2020 until 14 May 2020, during
which the player shall receive a monthly indemnity ‘of 75% of his average gross income
of RON 4'072’.
45.
According to Romanian law, specifically adopted for this exceptional situation, the remuneration
of sportspersons whose employment contract was temporarily suspended as a consequence of
COVID-19 pandemics is of 75% of their regular financial retribution, but ‘no more than 75%
of the gross average revenue provided by the Public Social Security Act for 2020, i.e. RON
5'429.00’. The decision and subsequent correspondence clearly explained the player's new
remuneration structure during the temporary suspension of his Employment Contract and the
detailed legislation.
46.
Furthermore, the club- in a correspondence dated 21 April 2020 addressed to the player's
lawyer - explained the applicable legal provisions and the calculation of the player's
remuneration during the suspension of the contract.
47.
The clubindicated that the employment contract was initially suspended until 14 April 2020,
but the suspension was extended until 15 May 2020, accordingly the player's contract was
suspended in the period between 31 March 2020 and 15 May 2020.
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48.
The club further highlighted that that the player has expressly admitted, in his claim, that he
resumed his activity with the clubon 15 May 2020 and that the clubthereafter paid his regular
contractual remuneration as follows:
-
first payment of RON 40,920 on 22 June 2020 – represents remuneration for May
2020;
second payment of RON 1,072 on 23 June 2020 - represents technical
unemployment May 2020
49.
The club explained that it continuously reminded the player of the legal considerations as
mentioned above and requested the player to return to the club, however, the player refused
to come back to the team and later terminated the contract, allegedly with just cause.
50.
According to the club, this early termination took place at a crucial time for the club, i.e. just
before the final matches of the Liga 1 play-off and the semi-finals of the Romania Club.
51.
In light of the player’s absence, the club accordingly transferred other defenders, amongst other
a centre-back player from Serbia, whose transfer value was EUR 2,000,000.
52.
The club wish to advise that , in a very similar case concerning a Romanian player, heard by the
Dispute Resolution Chamber of the Romanian Football Federation (RFF DRC) under case no:
35/CNSL/2020, the RFF DRC recently decided in favour of the cluband stated the following:
“The RFF DRC considered, in essence, that Romanian law has established a special legal regime
for the suspension of sport-related contracts during the COVID-19 pandemics, which allows for
the unilateral suspension of contracts by the employer, with the possibility (but without any
obligation) to discuss or negotiate a mutually-agreed solution ·with the employee. If no mutual
solution is found, the provisions of Government Emergency Ordinance (GEO) No. 30/2020 apply
insofar as the remuneration of the Player is concerned. Moreover, the unilateral decision takes
effect since its adoption (and not since its communication to the Player), as a direct consequence
of the law, because the employer merely transposes the imperative provisions of the special law.
Finally, the Chamber decided that this solution was in compliance with the FIFA Circular Letter
No. 1714 of April 7th, 2020”
53.
Furthermore, the club submitted the following counterclaim on the basis that the player
terminated the employment relationship with the club without just cause:
a)
b)
c)
d)
e)
to dismiss the Claimant’s claim;
principally, to condemn the Claimant to pay the Respondent a compensation of
EUR10,000,000, within 45 days from the date of notification of the decision, plus 5%
p.a.
subsidiarily, to condemn the Claimant to pay the Respondent a compensation that shall
be equitably decided by the FIFA DRC, but no less than EUR 2,000,000, within 45 days
from the date of notification of the decision, plus of 5% p.a.
impose sporting sanctions on the player, in accordance with art. 17 par. 3 RSTP;
condemn the Claimant to bear the costs of these proceedings; and
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f)
condemn the Claimant to cover the Respondent's legal fees and other expenses
incurred in connection with these proceedings.
54.
In its reply to the counterclaim of the club, the player reiterated all his claims as raised.
55.
Furthermore, according to the player, the clubsubmitted inaccurate and false facts and
requested that the club’s counterclaim is rejected and that the defences raised therein are
dismissed.
56.
However, should the DRC find that the player unilaterally terminated the employment contract
without just cause, then the player argues that the compensation in the amount of EUR
10,000,000 cannot be awarded to the club, due to it being highly excessive, disproportionate
and that there are justifiable no contractual or regulatory grounds.
57.
Accordingly, neither should any sporting sanctions be imposed on the player.
58.
After having requested to do so, the player informed FIFA, that he remained unemployed until
6 September 2020. On 6 September 2020, he signed an employment contract with the Israeli
clubMaccabi Haifa FC, valid from 1 August 2020 until 31 May 2023, based on which he is
entitled to a monthly salary of NIS 35,200 for 10 months (August 2020 - May 2021). For the
overlapping period between 6 September 2020 and 30 June 2021, this corresponds to NIS
352,000.
59.
On 4 January 2020, the entire case file in this matter was sent by FIFA to the player’s new club,
Maccabi Haifa FC, however despite being invited to do so, Maccabi Haifa FC failed to provide
any comments in this matter.
II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
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. Taking into account the
wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules
and emphasised 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, the Dispute Resolution Chamber is competent
to deal with matters, which concern employment-related disputes with an international dimension
between players and clubs such as the present one, which involves a player from Serbia and a
club from Romania.
3.
In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the
Status and Transfer of Players should be applicable to the present matter. In this respect, the
Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the
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Regulations on the Status and Transfer of Players, and considering that the claim was lodged on
29 June 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand.
4.
With the above having been established, the Dispute Resolution Chamber entered into the
substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the
documents contained in the file. However, the Dispute Resolution Chamber emphasised that in
the following considerations it will refer only to facts, arguments and documentary evidence,
which it considered pertinent for the assessment of the matter at hand.
5.
In this respect, the DRC noted that the player lodged a claim for outstanding remuneration and
compensation for breach of contract, on the basis of two separate employment agreements.
6.
In particular, the DRC noted that, on 31 August 2017, the player and the club concluded an
employment contract valid from 1 September 2017 until 30 June 2020, based on which the
player was entitled to a monthly salary of RON 98,089 gross. Furthermore, on 6 November 2020,
the parties signed a second employment contract valid as from 1 July 2020 until 30 June 2021,
according to which the player was entitled to a monthly salary of RON 98,089 gross.
7.
The Chamber further noted that that the player requested to be awarded the payment of EUR
39,650 as outstanding remuneration and EUR 192,640, based on the allegation that the club
failed to pay his full remuneration between the period March – June 2020.
8.
The members of the Chamber observed that from the information on file, it remained uncontested
that the club unilaterally reduced the player’s monthly salaries, on the grounds of Decision no.
437/9 (Emergency situation) as issued by the club, and that the contract of the player was
suspended in the period between 31 March 2020 and 15 May 2020. Moreover, based on the
contract, it appears that the parties had agreed that Romanian law is applicable to the matter at
hand.
9.
The DRC noted that the player, on the one hand, argued that the club did not conduct any
negotiations in good faith with him prior to the suspension of his contract, but merely
implemented its own plan and failed to respect the FIFA COVID-19 Guidelines “when reducing
the salary of the player”.
10. However, the DRC noted that the club argued that it deducted certain amounts in view of the
COVID-19 pandemic and highlighted that the state of Romania took measures in regards to the
COVID-19 pandemic, which allowed employers to reduce salaries and/or suspend contracts of
employees.
11. Taking into account the foregoing, the Chamber understood that the main issue at stake is to
establish whether at the date of termination, there were any outstanding salaries and whether in light of the COVID-19 pandemic - the club was entitled to reduce (some) of the player’s
remuneration and if so, what the consequences of said reduction are.
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12. Having said the above, the Chamber first of all wished to refer to the fact that, in light of the
worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which
aim at providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure
that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued
an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the
most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters. Those two documents will
hereinafter be referred to as “the FIFA Covid-19 Guidelines”.
13. In continuation, the Chamber emphasised that the FIFA Covid-19 Guidelines in particular, aim at
tackling the situation regarding agreements, which cannot be performed as the parties originally
anticipated. In this regard, the guidelines identify circumstances under which a unilateral variation
of the agreement may be justified.
14. Moreover, the Chamber observed that, according to the FIFA Covid-19 Guidelines unilateral
decisions to vary the terms of an agreement are only allowed if they are made in line with national
law or permissible within the CBA structures, and said allowance should be confirmed by an
independent legal adviser. Thus, if the parties involved cannot reach an amicable settlement, or
the issue is not addressed in national law and CBA’s with a players’ union are not an option, a
variation can only be allowed if it is made in good faith, are reasonable and proportionate. Only
if the aforementioned would not work, a suspension of the contract may be an option provided
that ‘proper income support arrangements’ can be found.
15. In this regard, the Chamber took note of the club’s argument, according to which the team’s
captain was present in the negotiations and majority of the players of its first team agreed to a
salary reduction of 50%, however that a small minority of the players of the first team, including
the player, did not accept this solution. The members of the Chamber noted that consequently,
these players were declared ‘in technical unemployment period’.
16. The club furthermore provided a copy of the “Government Emergency Ordinance”, which
stipulates the following:
“Throughout the state of emergency instituted by Decree No. 195/2020 declaring the state of
emergency in Romania, during the temporary suspension of sport-performance contracts upon
the sport organization’s initiative, as a consequence of the SARS-CoV-2 pandemics, the persons
mentioned in Art. 67 par. 1 lit. a) – c) of Sport and Physical Education Act 69/2000, as modified
and supplemented, shall be retributed by an amount of 75% of the financial retribution to which
they were entitled in counterpart to their sporting activity, but no more than 75% of the gross
average revenue provided by the Public Social Security Act for 2020, Law No. 6/2020. Such
retribution shall be borne by the public consolidated budget.”
17. Keeping the above in mind, the Chamber took note that, within this context, the club took the
following decisions:
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a) “Starting from 16.03.2020 (until 14.04.2020) – the [ first contract] of [the player] has been
suspended […]”,
b) “[The player] will have a compensation of 75% of the average gross salary in the amount
of [RON 4,072]”,
c) “During the suspension, [the player] will be available to the company. The start of the
engagement will be announced three days in advance via email or other means of
communications (social network)”,
d) “The decision enters into force on March 16, 2020, with the right to appeal within 30
calendar days from the date of publication to the Court in Bucharest”.
e) the challenged decision (as rectified) was adopted on 31 March 2020, and took effect the
same day and that the player was notified on 8 April 2020; and
f) the suspension was then prolonged by another decision, dated 14 April 2020, which was
communicated to the player the next day; the said decision mentions that the suspension
of the player is effective from 15 April 2020 until 14 May 2020, during which the player
shall receive a monthly indemnity ‘of 75% of his average gross income of RON 4'072’.
18. In relation to the aforementioned decisions, the Chamber remarked that the first decision – based
on which the contract between the parties was suspended and based on which the player would
be entitled to 75% of his average gross income of RON 4,072 - was only notified to the player
on 8 April 2020. Thus, the Chamber considered that the club was not in a position to apply any
reduction prior to said date. Therefore, the Chamber established that no reduction for the months
of March and part of April 2020 can be accepted.
19. However, for the reduction of the player’s remuneration after 8 April 2020, the Chamber
considered that, in the matter at hand, based on all the elements on file and the documentation
submitted by the parties, it could be concluded that there was from the club’s side indeed an
attempt – made in good faith – to find an amicable solution with its players. After most of its
players agreed with said salary reduction, the club placed the players, which did not agree with
the salary reduction in ‘technical unemployment’, based on the contents of national Romanian
legislation.
20. The Chamber wished to point out that in this respect, the club submitted documentary evidence,
on the basis of which it could indeed be concluded that based on national law in Romania, the
player was provided with a proper and adequate income support arrangement, i.e. a technical
unemployment benefit to be paid by the state of Romania. Said ‘technical unemployment’ would
– according to the club– consist of benefits derivable from the Romanian state during the
temporary suspension of the contract amounting to 75% of the ‘regular financial retribution’,
however ‘no more than 75% of the gross average revenue provided by the Public Social Security
Act for 2020, i.e. RON 5'429.00’. Therefore, as per the club’s decision communicated on 8 April
2020, the player “will have a compensation of 75% of the average gross salary in the amount of
[RON 4,072]”,
21. Based on the foregoing, the members of the Chamber were of the unanimous opinion that the
club indeed could validly reduce the salaries to its players, including the player, in accordance with
Romanian law, as from the date of communication of said decision, i.e. 8 April 2020, until the
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end of the suspension of the season. Furthermore, the Chamber indicated that the club
accordingly correctly executed the reduction of salaries.
22. In continuation, the Chamber recalled the provisions set out in art. 14bis par. 1 according to which
in the case of a club unlawfully failing to pay a player at least two monthly salaries on their due
dates, the player will be deemed to have a just cause to terminate his contract, provided that he
has put the debtor club in default in writing and has granted a deadline of at least 15 days for the
debtor club to fully comply with its financial obligation(s).
23. In this regard, the Chamber held that at the date of termination it is an undisputed fact that the
players’ salaries for March, April and May 2020 were not fully paid . In this respect, the members
of the Chamber pointed out that for the applicability of art.14bis in the matter at hand, it is not
relevant whether the salaries were reduced or not by the club.
24. Accordingly, the Chamber concluded that the player had just cause to unilaterally terminate the
contract on 18 June 2020 because of the outstanding salaries. Consequently, the club is to be
held liable for the early termination of the employment contact without just cause.
25. Bearing in mind the previous considerations, the DRC went on to deal with the consequences of
the early termination of the employment contract with just cause by the player.
26. Consequently, the DRC decided that the Respondent is liable to pay to the Claimant the
remuneration that was outstanding at the time of the termination, i.e. 18 June 2010, in the
amount of EUR 25,090 plus RON 5,022.
27. On this basis the Chamber, first of all, decided that the club is liable to pay to the player the
outstanding salaries for the period between March and April 2021 in the amount of EUR 11,263
corresponding to half of the salary of March 2020 (i.e. EUR 7,263) and pro-rata eight days in April
2020 (i.e. EUR 4,000).
28. Moreover, the Chamber established that the player for the remaining period in the month of April
and for the 15 days in May 2020 until 15 May 2020, is entitled to receive under the principle of
technical unemployment the following remuneration:
a) RON 2,986 pro rata for the remaining 22 days in April 2020; and
b) RON 2,036 for 15 days until 15 May 2020.
29. In continuation, the members of the Chamber observed that the player resumed his activity with
the club on 15 May 2020 and that the club thereafter paid his regular contractual remuneration,
however not EUR 7,500, but a slightly higher amount, i.e. EUR 8,763.In this regard, the Chamber
concluded that the remaining balance in the amount of EUR 1,173 should be deducted from the
player’s June salary and that as a consequence, the club is liable to pay to the player the amount
of EUR 13,827 as his outstanding salary for June 2020.
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30. In addition, following the longstanding jurisprudence of the DRC in this respect, the Chamber
decided to award 5% interest p.a. as from the due dates over the aforementioned amounts.
31. Finally, the DRC decided that the accommodation and rental costs in the amount of EUR 1,800 as
claimed by the player shall also be awarded to him, since there is a contractual basis for such
claim.
32. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the player is entitled to receive from the club compensation for breach of contract in
addition to any outstanding remuneration on the basis of the relevant employment contract.
33. In this context, the Chamber outlined that, in accordance with said provision, 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.
34. In application of the relevant provision, the Chamber held that it first of all had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a 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.
35. Subsequently, and in order to evaluate the compensation to be paid by the club, the members of
the Chamber took into account the remuneration due to the player in accordance with the
employment contract as well as the time remaining on the same contract, along with the
professional situation of the player after the early termination occurred. In this respect, the
Chamber pointed out that at the time of the termination of the employment contract on 18 June
2020, the contract would have run until 30 June 2021.
36. Consequently, taking into account the financial terms of the contract, the DRC concluded that
the remaining value of the contract as from its early termination until the regular expiry of the
contract amounts to EUR 186,000 (i.e. 12 monthly payments of EUR 15,500) and that such
amount shall serve as the basis for the final determination of the amount of compensation for
breach of contract.
37. In continuation, the Chamber remarked that following the early termination of the employment
contract at the basis of the present dispute, the player was able to find new employment with the
with the Israeli club Maccabi Haifa FC, valid from 1 August 2020 until 31 May 2023, based on
which the player – in the overlapping period – was entitled to the total amount of ILS 352,000
(approximatelx EUR 90,000).
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38. As a result, the mitigation in the amount of EUR 90,000 shall be deducted from the amount of
EUR 186,000, leading to a mitigated compensation of EUR 96,000.
39. Subsequently, the members of the Chamber turned their attention to art. 17 par. 1 lit. ii) of the
Regulations, according to which a player is entitled to additional compensation of three monthly
salaries, subject to the early termination of the contract being due to overdue payables. In case of
egregious circumstances, the additional compensation may be increased up to a maximum of six
monthly salaries, whereby the overall compensation may never exceed the rest value of the
prematurely terminated contract.
40. With the above in mind, the DRC decided to award to the player additional compensation
corresponding to three monthly salaries in the amount of EUR 45,000, on top off the mitigated
compensation of EUR 96,000, in accordance with the above-mentioned provision.
41. In view of all of the above, the DRC decided that the club must pay the amount of EUR 141,000
to the player as compensation for breach of contract without just case, which is considered by the
DRC to be a reasonable and justified amount as compensation.
42. In addition, taking into account the claim as well as the Chamber’s longstanding jurisprudence in
this respect, it was decided to award interest of 5% p.a. as of 29 June 2020 on the compensation
payable.
43. In conclusion, the members of the Chamber concluded that any further claim of the player is
rejected and that the claim is partially accepted.
44. Additionally, in line with the consideration above, the Chamber rejected the club’s counterclaim.
45. Furthermore, taking into account the previous considerations, the Dispute Resolution Chamber
referred to par. 1 and 2 of art. 24bis 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.
46. In this regard, the Dispute Resolution Chamber pointed out 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 and for the
maximum duration of three entire and consecutive registration periods.
47. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the event
that the Respondent does not pay the amounts 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.
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48. Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.
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III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Bogdan Planić, is partially accepted.
2.
The counterclaim of the Respondent, FC FCSB, is rejected.
3.
The Respondent has to pay to the Claimant, the following amounts:
1. as outstanding salaries:
- EUR 7,263, plus 5% interest p.a. as from 1 April 2020 until the date of effective payment
- EUR 4,000, plus 5% interest p.a. as from 1 May 2020 until the date of effective payment
- RON 2,986, plus 5% interest p.a. as from 1 May 2020 until the date of effective payment
- RON 2,036, plus 5% interest p.a. as from 1 June 2020 until the date of effective payment
- EUR 13,827, plus 5% interest p.a. as from 19 June 2020 until the date of effective payment
2. as accommodation cost:
- EUR 500, plus 5% interest p.a. as from 1 April 2020 until the date of effective payment
- EUR 500, plus 5% interest p.a. as from 1 May 2020 until the date of effective payment
- EUR 500, plus 5% interest p.a. as from 1 June 2020 until the date of effective payment
- EUR 300, plus 5% interest p.a. as from 19 June 2020 until the date of effective payment
3. as compensation for breach of contract:
- EUR 141,000, plus 5% interest p.a. as from 29 June 2020 until the date of effective
payment.
4. flight ticket:
- EUR 260 plus 5% interest p.a. as from 19 June 2020 until the date of effective payment
5.
Any further claims of the Claimant are rejected.
6.
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.
7.
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).
8.
In the event that the amount due, plus interest as established above is 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:
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REF 20-00921
1.
2.
9.
The Respondent shall be banned 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. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid (cf. art.
24bis of the Regulations on the Status and Transfer of Players).
In the event that the payable amount as per in this decision is 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.
This decision is rendered free of costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF 20-00921
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:
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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