Labour Disputes
Texto da decisão
REF FPSD-2427
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Daniel
Quintana Sosa
BY:
Frans de Weger (The Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Daniel Quintana Sosa, Spain
Represented by Mr Alejandro Pascual Madrid
RESPONDENT:
Chengdu Better City FC, China
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REF FPSD-2427
I.
Facts of the case
1.
On 7 February 2020, the Spanish player, Daniel Quintana Sosa (hereinafter: the player or the
Claimant), and the Chinese club, Chengdu Better City FC (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from 1
January 2020 until 31 December 2021.
2.
Clause 2.1 of the contract reads as follows: “[The club] employs [the player] and [the player]
accepts employment from [the club] as the professional first-team professional football player.
[The club] shall not suspend or subordinate [the player].
3.
In accordance with clause 5.1 of the contract, the club undertook to pay to the player, inter
alia, the following remuneration:.
During the year 2020 (as from 1 February 2020 until 31 December 2020):
- EUR 68,181 net as monthly salary;
- EUR 3,000 as bonus for every match won within the League;
- EUR 1,500 as bonus for every match won within the League;
- EUR 200,000 as bonus, should the club promote to the “China Super League” (1st division
league in China).
During the year 2021 (as from 1 January 2021 until 31 December 2021):
- EUR 62,500 net as monthly salary;
- EUR 3,000 as bonus for every match won within the League;
- EUR 1,500 as bonus for every match won within the League;
- EUR 200,000 as bonus, should the club promote to the “China Super League” (1st division
league in China).
4.
Clause 9 of the contract reads as follows: “If any Party seriously breaches this Contract at any
time without just cause and after two written warnings the breaching Party still does not
remedies the situation, the Party in breach shall pay to the aggrieved Party a net compensation
in an amount equal to all the remaining salaries of the Contract and any supplementary
agreement at the moment of the breach without any mitigation”.
5.
In accordance with clause 6.1 of the contract, the club undertook to provide the player with
“four round-trip Business air tickets from China to Spain every year”.
6.
Clause 8.2 (1) of the contract reads as follows: “[The club] is entitled to terminate the Contract
without paying any compensation, as well as free from the liability on any salary or any
relevant economic consequences for the remaining period of the Contact and [the player]
shall also pay liquidated damages to [the club] in accordance with Article 9 below. […] If [the
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player] returns to Spain or cannot be on duty during more than 10 (ten) days due to personal
reason without Party A’s approval upon its written application in advance”.
7.
On 7 February 2020, the parties entered into an image rights’ agreement (hereinafter: the
agreement) valid for the same period as the contract and whereby the club undertook to pay
to the player the amount of EUR 340,909 net per year, i.e. EUR 681,818 in total, as follows:
During the year 2020:
-
EUR 240,909 by 22 February 2020;
EUR 50,000 by 15 May 2020;
EUR 50,000 by 15 August 2020.
During the year 2021:
-
EUR 240,909 by 15 January 2021;
EUR 50,000 by 15 April 2021;
EUR 50,000 by 15 July 2021.
8.
Clause 4.1 of the agreement reads as follows: “If any Party seriously breaches this Agreement
at any time without just cause and after two written warnings the breaching Party still does
not remedies the situation, the Party in breach shall pay to the aggrieved Party a net
compensation in an amount equal to all the remaining salaries in the Agreement as well as
in the Contract at the moment of the breach without any mitigation. The Parties agree as
well that, as per their inextricably linkage, any breach committed either in the Contract and/or
this Agreement, which may lead to its termination with or without just cause, will
automatically suppose the termination of the other contract (either the Contract or this
Agreement, as the case may be), leading to the pertinent compensations as stated in each
contract”.
9.
By means of his letter dated 30 December 2020, the player requested the club to inform him
about the specific date on which trainings would be resumed, in order for the player to travel
back to China. The player further requested the club to provide him with the corresponding
flight tickets and to take into account the quarantine he would need to pass upon his arrival
in China.
10. On 31 December 2020, the club sent an email to the player, informing the latter that the
team would resume trainings on 4 January 2021 and urged the club to join.
11. Thereto, the player replied on 1 January, alleging -inter alia- that it would not be possible for
him to travel back to China and resume trainings on 4 January 2021, in view of the fact that
he would need to be under quarantine upon his arrival in China. However, the player
proposed to travel to China either on 4 or on 12 January 2021, thereby also informing the
club that he would pay the corresponding flight tickets.
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12. On the same date, the player sent another letter to the club, informing it that he had
purchased the flight tickets to travel to China on 4 January 2021. However, the player also
informed the club that, after his arrival, he must pass a 2 to 3 weeks quarantine, reason why
it would not be possible for him to join the team directly after his comeback. The player
thereby further stressed that he would “take no responsibility in case any setback arises
during this period”.
13. By means of its email of 6 January 2021, in view of the absence of the player in the training
session of 4 January 2021, the club urged the player to travel to China on the following day,
i.e. 7 January 2021, and resume his contractual obligations. Moreover, the club informed the
player that it “will deduct the corresponding daily wage according to [the player’s contract]
and the regulations of the team”. Furthermore, the club stated that, should the player not
join the team, it would “execute further punishment” on the player.
14. By means of his correspondence dated 7 January 2021, the player explained that it was him
who requested the club in the first place to provide him with the training session schedule,
since it is his only interest to join the team and render his services. The player further stressed
that, despite the aforesaid, he needs to be under quarantine in accordance with the Chinese
policies and that he “will join the team right after [his] quarantine”. In this context, the player
requested the club to remove the sanctions to which it referred in its previous
correspondence.
15. In this context, by means of its letter dated 12 January 2021, the club urged the player -againto travel to China and take part in the training sessions, thereby granting the player a deadline
until 13 January 2021 to do so.
16. On the same date, the player replied thereto, referring to his previous explanations as to his
absence and arguing that, according to the information provided to him by the Chinese
authorities, he would be “leaving the quarantine on 20 January 2021” and requested the
club to provide him with the flight tickets to travel from Shanghai to the city where the club
will be on 20 January 2021.
17. On 14 January 2021, the player requested the club to reply to his previous correspondence
and to confirm to him whether the club would finally be in the city of Kumming on 20 January
2021 and, if so, to confirm whether any Covid-19 related restrictions would apply on him
upon his arrival there.
18. By means of its message of 20 January 2021, the club urged the player to join the team, at
the Wenjiang training Base, on that very same day before 9 p.m.
19. In reply thereto, the player stated: that the club failed to reply to his previous notices, that he
just got out of quarantine and will fly to the Wenjiang training Base immediately, that he will
by the flight tickets himself but the club will have to reimburse him the corresponding
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expenses and that the sanctions imposed on him are unlawful and will not be accepted by
him.
20. On 28 January 2021, the player sent another letter to the club, informing the club that his
quarantine had terminated and requested the club to provide him with information regarding
training sessions.
21. By means of his notice dated 1 February 2021, the player explained that he was instructed to
train with the “reserve team” and urged the club to reinstate him in the First Team within
the following 3 days, highlighting that, as stated in clause 2.1 of the contract, he was hired
as a “first team professional football player” and he could not be demoted “as expressly
prevented by the Employment Contract”; however, to no avail.
22. Thereafter, in view of the lack of reply from the club, the player sent two more letters to the
club, on 9 and 16 February 2021, requesting the club -again- to reinstate him in the First
Team.
23. In this context, the player sent a final letter to the club on 19 February 2021 with the same
content as the previous ones, thereby granting the club a 5 days’ deadline to be reinstated in
the First Team of the club.
24. Subsequently, by means of his letter dated 25 February 2021, the player unilaterally
terminated the contract, in view of “his demotion and de-registration” and thereby granted
the club a 10 days’ deadline to “solve this matter amicably before going to FIFA”.
25. On 23 June 2021, the player signed a new contract with the Polish club, Jagiellonia Bialystok,
valid as from the date of its signature until 30 June 2022, whereby the player is entitled to a
monthly salary of EUR 1,000 net and to monthly image rights instalments of EUR 12,000.
II. Proceedings before FIFA
a. Claim of the player
26. On 3 May 2021, the player lodged a claim against the club before FIFA, requesting to be
awarded outstanding remuneration and compensation for breach of contract in the total
amount of EUR 725,385 and RMB 53,147, plus 5% interest p.a. on the amounts claimed as
compensation for breach of contract as from 25 February 2021 until the date of effective
payment, broken down by the player as follows:
Outstanding remuneration: RMB 53,147 (approx.: EUR 7,100 approx.) and EUR 385
-
RMB 53,147 corresponding to flight tickets’ expenses and PCR tests’ costs incurred by the
player to travel to and from China during the term of the contract;
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-
EUR 385 corresponding to flight tickets’ expenses and PCR tests’ costs incurred by the player
to travel to and from China during the term of the contract.
Compensation for breach of contract: EUR 725,000 net
-
EUR 625,000 net corresponding to the residual value of the contract, i.e. 10 salaries of EUR
62,500 each (as from March until December 2021) – the player further argued that the said
amount cannot be subject of any mitigation ex. clause 9 of the contract;
-
EUR 100,000 corresponding to the second and third instalments payable during the year 2021
as per the agreement, i.e. EUR 50,000 by 15 April 2021 and EUR 50,000 by 15 July 2021.
27. In his claim, the player argued that, as proof of his good faith and will to render his services
for the club, “the Player covered all his flight tickets and PCR tests in order to be able to arrive
to China as early as possible”.
28. Once in China, explained the player, after having passed “all the relevant quarantines” and
made himself available for the club, on 19 January 2021, the latter informed him that “it was
not counting with his services anymore and, meanwhile, he had to train with the Reserve
Team of the Club”.
29. In this regard, the player held that he “was not only hired for the First Team but that the
Employment Contract even expressly prevented such demotion when stipulating that “Party
A shall not suspend or subordinate Party B”, as they did by demoting him to the Reserve
Team”. In doing so, argued the player, the club put him in a position in which “it was
impossible for him to execute the Employment Contract” and that, “among a player´s
fundamental rights is not only his right to timely payment of his remuneration but also a
reasonable opportunity to compete with his teammates in official matches”. What is more,
the player assured that the club de-registered him.
30. The player explained that, insofar as the club failed to reinstate him into the First Team, it
being his contractual entitlement, he had no alternative but to terminate the contract. In this
context, the player stated that he stayed in China “for around an extra month after the
termination, until 14 April 2021, with the intention of solving the matter amicably, but to no
avail due to the lack of any reaction from the Club who did not even care to answer the
Player”.
31. As to the financial entitlement of the player to receive compensation for breach of contract
from the club, the former referred to clauses 9 of the contract and 4.1 para 2 of the
agreement and alleged that “the breach of the Employment Contract committed by the Club
entitled the Player to terminate the Employment Contract and Supplementary Agreement
with just cause and the Club shall be liable for the pertinent economic consequences
generated from both agreements” without applying any mitigation whatsoever.
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32. In this respect, the player also referred to clause 9 of the contract and argued that it shall be
deemed as validly concluded, since it “fulfils the requisites of reciprocity and proportionality”.
33. Concerning the agreement, the player held that “it shall be out of question that the intention
of the Supplementary Agreement was not for the Parties to deal with the exploitation of the
Player´s image rights but to be part of the employment relationship”, in view of the fact that
both contracts were linked: the duration of both being the same, the validity of the
agreement being subject to the validity of the contract and the agreement providing the
payment of fixed amounts that were also due as per the contract.
b. Late reply and intended counter-claim of the club
34. In its late reply to the claim and intended counterclaim -submitted on 4 June 2021, despite
the club having been granted a deadline until 31 May 2021 to do so-, the club held that it
has “duly executed the Employment Contract and the Supplementary Agreement and paid
each amount on time. By the date of this statement of counterclaim, Better City has paid the
salary to the Player to the month of April 2021 under the Employment Contract, paid all the
Salary Fee of the Supplementary Agreement of 2020 season, and paid the first installment
(EUR 240,909) of 2021 season”.
35. The club referred to the Covid-19 restrictions’ policies implemented in China and argued that,
even though the player was aware of the fact that he could not return to China if he left the
country, the player “insisted” on leaving China and return to Spain, which resulted in the
player not being able to join the team on 4 January 2021 to resume his professional activities,
despite the club having informed him in advance about the resuming of the football activities
by means of its correspondence dated 30 December 2020.
36. In connection with the allegation of the player that the club failed to pay the flight tickets’
expenses, it argued that, also by means of its email of 30 December 2020, it informed the
player of the following: “you should buy the air ticket by yourself. After you arrive in
Chengdu, you can apply for reimbursement”.
37. As to the delay of the player in resuming his contractual obligations in January 2021, the club
argued that “the Player had 15 days overdue since the first returning date (4 January 2021)
which was the designated date by the Club for all players return to training”. Moreover, the
club held that “the Player’s conduct has seriously violated the regulations of the team and
the terms of the Employment Contract regardless of there are there written notifications to
inform him return”.
38. In this respect, the club referred to clause 8.2 (1) of the contract and argued that the player
“had 15 days overdue obviously beyond the said 10 days and without the club Better City’s
approval, and thus constitutes the breach of the Employment Contract and its Supplementary
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Agreement severely”. In this context, while invoking clause 9 of the contract, the club argued
that the player shall pay to the club a “net compensation in an amount equal to the remaining
salaries of the Employment Contract and its Supplementary Agreement without any
mitigation”.
39. In connection with the agreement, the club argued that it shall “be regard as a part of the
Employment Contract”. Furthermore, explained the club, both contracts “have the same
validity period, payment way, liability for breach of contract, settlement of dispute, indicating
that the two contracts have their inextricably linkage, which should be regard as ONE
employment contract”.
40. In its request for relief, the club requested to be awarded compensation for breach of contract
and the reimbursement of moneys that should not have been paid to the player in the total
amount of EUR 1,090,909 (no interest requested), broken down by the club as follows:
-
EUR 625,000 net, corresponding to the residual value of the contract – the salaries due as
from March until December 2021, i.e. 10 salaries of EUR 62,500 each;
-
EUR 240,909, corresponding to the first instalment payable in 2021 as per the agreement,
i.e. the instalments payable by 15 January 2021*;
-
EUR 100,000 corresponding to the second and third instalments payable in 2021 as per
the agreement, i.e. the instalments payable by 15 April and 15 July 2021 in the amount of
EUR 50,000 each;
-
EUR 125,000 corresponding to the salaries of March and April 2021, which were paid by
the club and to which the player was not entitled, since he terminated the contract on 25
February 2021.
41. As to the instalment of EUR 240,909 paid by the club to the player on 15 January 2021*, the
club explained that, since the player breached the contract and, thereafter, terminated the
contract without just cause, “it is impossible for [the club] to use the Player’s Image right in
2021 season, and the purposes or goals of the Supplementary Agreement should not be
realized, therefore, for the first instalment (Eur.240,909 net) of the 2021 season in the
Supplementary Agreement which have been paid by the club […], the Player should return
the amount (Eur.240,909 net) of the first instalment of 2021 season which have been paid
to the club”.
c. Comments of the player on the payments allegedly made by the club
42. On 30 July 2021, the Claimant provided his comments on the payment of EUR 125,000,
allegedly made by the club as salaries of March and April 2021. In this respect, the Claimant
maintained that “the Player received his salary corresponding to the month of February 2021
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on the 9 April 2021. Thus such payment did not correspond to the salary of March 2021 but
to the salary of February 2021”. Thus, the player stated that the said payment cannot be
deducted from the amounts claimed by the Claimant, since it corresponded to the salary of
February 2021, which is not subject of the present claim.
43. As to the payment of EUR 62,500 made by the club on 8 May 2021, i.e. after the player had
lodged his claim against the club before FIFA, the Claimant acknowledged having received it
and argued that it is to be allocated to the salary of March 2021 (prior in tempore). Thus, the
Claimant amended his request for relief by not claiming the salary of March 2021, i.e. the
Claimant requested to be awarded the total amounts of EUR 662,885 and RMB 53,147, plus
5% interest p.a. on the amounts claimed as compensation for breach of contract as from 25
February 2021 until the date of effective payment.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
44. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 3 May 2021 and submitted for decision on
28 October 2021. 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.
45. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Spanish player and
a Chinese club.
46. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition) and
considering that the present claim was lodged on 3 May 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
47. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
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of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
48. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
49. The foregoing having been established, the Chamber moved to the substance of the matter,
and wished to briefly recall that the Respondent failed to reply to the claim lodged by the
player within the deadline granted by the FIFA general secretariat for it to so, the Respondent
only providing its statement of reply and counter-claim 4 days after the relevant deadline had
expired. Thus, underscored the Chamber, in application of art. 21.1 and 21.2 of the
Procedural Rules, submissions concerning replies and counter-claims received outside of the
relevant deadline will not be considered and a decision is to be passed considering the
documentation on file.
50. In view of the foregoing, having analysed the position and documentation brought forward
by the Claimant, which remained uncontested, the DRC stressed that the following events
must be highlighted:
-
The player was in Spain for the Christmas holidays of the year 2020 and, on 30 December
2020, the player requested the club to provide him with the training schedule for the
following year in order for him to travel back to China and resume his professional
activities;
-
The club urged the player to travel back to China and take part in the training session
scheduled for 4 January 2021;
-
Several correspondence was exchanged between the parties, the player urging the club
to provide him with the flight tickets to travel to China and explaining to the club that,
even though he would fly to China on 4 January 2021 (the earliest possible), he would
need to undergo quarantine and could not join the team on the requested date.
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-
On its part, the club continued to insist on the player’s comeback as soon as possible,
granting him short deadlines to present himself at the club or at the base where the team
was training, imposing salary deductions on him for his absences and warning the player
that further punishments would be imposed on him;
-
Despite the several notices sent by the player, the club failed to reply to many of them
and, once the player joined the club, it decided to make him train with the second team;
-
The player urged the club, on several occasions, to reinstate him in the first team and
granted it deadlines to do so; to no avail;
-
The player terminated the contract on 25 February 2021 in view of the breaches
committed by the club, which: 1.) failed to provide him with the necessary flight tickets
to join the team after the Christmas break of 2020, 2.) sanctioned the player for absences
linked to the club’s lack of provision of the corresponding flight tickets and due to the
quarantine that the player needed to pass upon his arrival in China, which prevented him
from training and playing, 3.) told him that the club no longer wanted him as a player,
4.) did not allow him to train with the first team, 5.) failed to reimburse the costs of the
flight tickets and to reply to the player’s notices.
51. In this context, the above-mentioned chain of events remaining uncontested, the Chamber
determined that the following questions need to be addressed:
1.) Did the player terminate the contract with or without just cause on 25 February 2021?
52. On the date on which the Claimant terminated the contract, explained the Chamber, it seems
that no amount due to the player was outstanding, neither as per the contract, nor as per
the agreement.
53. However, as stated by the Claimant, not only the obligation to pay the player’s salaries must
be observed by the club, but also all the rest of the contractual obligations to which both
parties committed. In this respect, the player argued that it was his contractual right to be
part of the first team and, upon his late arrival in China, which was a consequence of the
club’s lack of issuance of the corresponding flight tickets and the player’s compliance with
the mandatory policies of the government regarding quarantine, the club informed him of
the following: that he would train with the second team, that he was no longer interested in
his services and even de-registered him.
54. After having analyzed the statement of claim of the player and the documentary evidenced
produced by the latter, the DRC determined that the club did lose its interest in the player’s
services. In this respect, pointed out the Chamber, it must be noted that it was the player the
party that requested the club to provide him with the specific date on which training sessions
would be resumed (despite it being the club’s duty to inform the player accordingly) and, only
on 31 December 2020, did the club inform him that he must resume trainings on 4 January
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2021, i.e. the player only had 3 days to travel back to China, which -in this context, being
Covid-19 a reality that affected and affects freedom of movement- was not feasible for the
player, extent that also remained uncontested.
55. What is more, highlighted the Chamber, the club continued to grant short deadlines to the
player to return China (it granted, on 2 occasions, deadlines of 1 day, respectively) and
threatened the player with the imposition of salary reductions and further sanctions, despite
the manifest interest of the player to resume his professional activities.
56. All of the above, underscored the Chamber, is essential to determine that the club did lose
its interest in the player’s services and was acting in what can be considered as bad faith.
57. However, continued the DRC, on top of the above-mentioned considerations, 2 specific
events are of substantial importance in order to determine whether the player terminated the
contract with just cause on 25 February 2021:
-
The club’s instruction for the player to train with the second team: in this respect, as
alleged by the player, clause 2.1 of the contract expressly establishes that the Claimant
was hired as a player of the first team. It remained uncontested that the player, upon his
arrival in China after the Christmas holidays, was instructed to train with the second team.
In this context, it is to be noted that the player urged the club to allow him to train with
the first team, granting the latter deadlines of 3 and 5 days, respectively; however, to no
avail. The above having remained uncontested, the Chamber determined that the club
did breach the contract by not allowing the player to train with the first team.
-
The club de-registering the player: In his statement of claim and also in his termination
letter, the player brought up that the club proceeded with his de-registration. In this
respect, explained the DRC, the player did not provide any evidence in order to support
the said event. However, insofar as the claim of the Claimant remained uncontested and
in view of the fact the player has, in principle, no means to provide evidence as to his
registration status, which can only be provided by the club, which missed its procedural
chance to do so, the allegation of the Claimant in this regard is to be considered an
uncontested fact.
58. In view of all of the above, insofar as the club not only did lose its interest in the player’s
services but also blatantly breached the contract when not allowing the player to train and
join the first team and de-registering the player, the Chamber concluded that the club did
breach the contract and the termination made by the player on 25 February 2021 is to be
deemed as made with just cause ex. art. 14 of the Regulations. Thus, stressed the DRC, the
player is entitled to receive compensation for breach of contract from the Respondent.
2.) What amount shall be granted as compensation for breach of contract? Shall the contract
and the agreement be cumulatively considered for the calculation of the corresponding
compensation? Is clause 9 of the contract of application?
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59. As argued by both parties in their statements of claim and late reply and intended
counterclaim, both documents are to be jointly considered. In this respect, clause 4.1 of the
agreement (para 2) is of relevance: “The Parties agree as well that, as per their inextricably
linkage, any breach committed either in the Contract and/or this Agreement, which may lead
to its termination with or without just cause, will automatically suppose the termination of
the other contract (either the Contract or this Agreement, as the case may be), leading to the
pertinent compensations as stated in each contract”. The foregoing leaves no doubt as to the
clear intention of the parties to treat both, the contract and the agreement, as a unity; practice
that finds support in the jurisprudence of the DRC, which tends to consider that, when the
parties it so express, an image rights agreement and an employment contract can be regarded
as part of the same contract, even though they are drafted in separate documents, as long
there exists a unequivocal link between them, as exists in the present case.
60. The above being said, the question of the applicability of clause 9 of the contract arises. The
said clause, explained the DRC, is a liquidated damages clause, insofar as it provides the
specific amounts payable by the party in breach to the aggrieved party. In this respect, the
Chamber highlighted that the said clause states that, in case of breach of contract, “ […] the
Party in breach shall pay to the aggrieved Party a net compensation in an amount equal to all
the remaining salaries of the Contract and any supplementary agreement at the moment of
the breach without any mitigation”. The above-quoted clause coincides with the content of
art. 17 of the Regulations, insofar as the amount payable as compensation is the residual
value of the contract. Thus, continued the Chamber, there should be no discussion as to the
nullity or non-applicability of the said liquidated damages clause. Regarding the provision of
the clause that refers to the non-mitigation of the amounts due as compensation, the latter
is to be considered valid, since it was freely agreed by both parties, is reciprocal and
reasonable (the jurisprudence of the DRC also contemplates the possibility of the parties
agreeing on the non-mitigation of the amount payable as compensation).
ii. Consequences
61. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the club.
62. The Chamber determined that the player is entitled to the reimbursement of the amounts
incurred by the latter that are associated with travel expenses (expenses incurred and
supported with documentary evidence), considering that, ex. art. 6.1 of the contract, the club
should have paid the said expenses.
63. Thus, the Chamber determined that the player is entitled to receive the amounts of RMB
53,147 net (approx.: EUR 7,100 approx.) and EUR 385 net as outstanding remuneration, in
accordance with the general legal principle of pacta sunt servanda.
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64. Concerning the above-mentioned amounts, the Chamber observed that the player failed to
request any default interest. Thus, the DRC determined that no default interest shall be
granted to the player in connection with the outstanding remuneration awarded.
65. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake.
66. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the
Regulations, the amount of compensation shall be calculated, in particular and unless
otherwise provided for in the contract at the basis of the dispute, with due consideration for
the law of the country concerned, the specificity of sport and further objective criteria,
including in particular, the remuneration and other benefits due to the player under the
existing contract and/or the new contract, the time remaining on the existing contract up to
a maximum of five years, and depending on whether the contractual breach falls within the
protected period.
67. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber referred to its previous
explanations and recalled that clause 9 of the contract is liquidated damages clause, which
was validly concluded between the parties and shall, therefore, serve as basis for the
calculation of the amounts due to the player as compensation for breach of contract.
68. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player amounts to EUR 662,500 net, corresponding
to the residual value of the contract (salaries as from April until December 2021, i.e. EUR
562,500) and the residual value of the agreement in the amount of EUR 100,000 (cf. points
26, 42 and 43 supra for breakdown and explanation of the amendment),
69. In this context and considering that clause 9 of the contract specifically provides that the
amounts granted as per the liquidated damages clause cannot be subject of any sort of
mitigation, the DRC referred to its previous considerations and concluded that the new
income received by the player as per his new contract concluded with the Polish club,
Jagiellonia Bialystok, cannot be taken into account for mitigation purposes. Hence,
determined the Chamber, the full residual value of the contract and the agreement, i.e. EUR
662,500 net, shall be awarded to the player.
70. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 3 May 2021, i.e. as from the date on which the player lodged his
claim against the club before FIFA, until the date of effective payment.
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iii. Compliance with monetary decisions
71. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
72. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
73. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
74. 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.
75. 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. 24bis par. 8 of
the Regulations.
d. Costs
76. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
77. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules and decided that no procedural compensation shall be awarded in
these proceedings.
78. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Daniel Quintana Sosa, is partially accepted.
2.
The Respondent, Chengdu Better City FC, has to pay to the Claimant, the following amounts:
- RMB 53,147 net as outstanding remuneration;
- EUR 385 net as outstanding remuneration;
- EUR 662,500 net as compensation for breach of contract, plus 5% interest p.a. as from 3
May 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. 24bis 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:
6.
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.
7. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
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REF FPSD-2427
8. 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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