Dispute Resolution Chamber
Texto da decisão
REF 20-01701
Decision of the
Dispute Resolution Chamber
passed on 8 April 2021
regarding an employment-related dispute concerning the player David Mateos
Ramajo
COMPOSITION:
Geoff Thompson (England), Chairman
Tomislav Kasalo (Croatia), member
Jérôme Perlemuter (France), member
CLAIMANT:
David Mateos Ramajo, Spain
RESPONDENT:
Hapoel Umm Al-Fahm, Israel
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I. Facts
1. On 15 July 2020, the Parties entered into an Employment Contract valid as from 1 August 2020
until 31 May 2021.
2. Under the contract, the player was entitled to receive a fixed monthly remuneration of NIS
19.000 (nineteen-thousand NIS) gross (cf. clause 6 A) to be paid by in ten monthly
instalments, from August 2020 to May 2021.
3. Following Clause 6 lit. H of the Contract, the player was entitled to a sign-on fee of NIS
25.000 to be paid by the CLUB as follows:
- NIS 15.000 on 20 July 2020;
- NIS 10.000 on 30 July 2020.
4. Clause 9 of the contract stipulated the following:
“the team has an option to extend and/or resolve the agreement according to the Coach’s
decision. In this case the team will not be obligated to compensate the player.”
5. On 5 November 2020, the club sent a “release notice” to the player with the following
contents:
“we would like to inform you that in light of a professional decision, we are exercising the
option agreed between us in the employment agreement for your release for professional
reasons.
And all in accordance with the professional decision of the professional staff and the
professional manager.
We agreed and signed the clause:
“the team has an option to extend and/or resolve the agreement according to the Coach’s
decision. In this case the team will not be obligated to compensate the player
In this Case The Team will not be obligated to compensate the Plaver.
Your last working day at the club is Thursday, 05/11/2020.”
6. On 5 November 2020, the club also issued a “releasing letter” stating that “unfortunally [sic],
the coach decided that the player was not good enough and the contract allowed to release
the player if it's connected to his bad ability.”
7. On 6 November 2020, the player rejected the letter of the club, stating that the invoked letter
is “of a purely potestative nature and therefore, void”.
8. The player informed FIFA that he subsequently concluded an employment contract with the
Bolivian club, The Strongest, valid as from 27 January 2021 until 31 December 20201.
9. Accordingly, the player was entitled to a monthly salary of USD 13,333, plus a sign-on fee of
USD 30,000. Consequently, from November 2020 until May 2021, the player would have earned
USD 123,331 = 30,000+13,333*7
10. On 23 November 2020, the Claimant lodged a claim against the club for breach of contract
without just cause, and requested the payment of the following amounts:
Outstanding remuneration:
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NIS 38,000, corresponding to the entire salaries of September and November 2020, plus 5%
interest p.a. as from the due dates.
Compensation:
NIS 133,000, corresponding to the residual value of the contract (until 31 May 2021, “plus
default interest of 5% which starts running as of the day following the due date of payment”
11. In its reply to the claim, the respondent considered that the player acted without good faith as
the contract was terminated by mutual agreement.
12. In addition, the Respondent requested the payment of the procedural costs.
13. In particular, the Respondent argued that the player “his Representative Mr. Charbel Joubran
Negotiated, read the contract and approved its clauses inclusive clause 9 of the signed
Contract.”
14. The Respondent explained that “the Claimant cheated in negotiations, after all, if he had not
agreed to this Clause, [it] would not have signed the contract with him.”
15. As to the outstanding salaries, the Respondent explained that it paid for the months of
September and October 2020.
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.
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
Regulations on the Status and Transfer of Players, and considering the date when the claim was
lodged, 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 emphasized
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 Chamber first noted that entered into an Employment Contract valid as from
1 August 2020 until 31 May 2021.
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6.
Subsequently, the Chamber took note that the Claimant lodged a claim against the club for
breach of contract without just cause, noting that the club unilaterally terminated the contract
on 5 November 2020 and on the basis of clause 9 of the contract.
7.
Conversely, the Chamber noted that the Respondent acknowledged that it terminated the
contract in application of the aforementioned clause.
8.
In view of the above, the Chamber understood that the main legal issue at stake is to determine
whether the club had a just cause to terminate the contract on 5 November 2020.
9.
In this respect, the Chamber was eager to emphasize that only a breach or misconduct which is
of a certain severity justifies the termination of a contract. In other words, only when there are
objective criteria, which do not reasonably permit to expect a continuation of the employment
relationship between the parties, a contract may be terminated prematurely. Hence, if there
are more lenient measures which can be taken in order for an employer to ensure the
employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment contract can
only ever be an ultima ratio measure.
10. In this respect, the Chamber observed that the termination of the contract was performed on
the basis of clause 9 of the contract, according to which “the team has an option to extend
and/or resolve the agreement according to the Coach’s decision. In this case the team will not
be obligated to compensate the player.”
11. In analyzing the contents of said clause, the Chamber understood that they were relatively
clear.
12. However, the members of the Chamber wished to highlight that, in general, potestative
clauses, i.e. clauses that contain obligations which fulfilment are conditional upon an event
that one party entirely controls, cannot be considered since they limit the rights of the other
contractual party in an excessive manner and lead to an unjustified disadvantage of the latter
towards the other. In the matter at stake, the Respondent was the only party which could
decide to terminate the contract according to a unilateral decision of the coach, and without
offering any compensation to the player.
13. On account of all the above, the members of the Chamber established that clause 9 of the
contract is clearly of a potestative nature and is to be deemed invalid.
14. For the sake of completeness, the members of the Chamber also underlined that, following its
well-established jurisprudence, an alleged poor performance of a player cannot not justify a
premature termination of an employment contract by a club as the assessment of the
performance of a player is a subjective perception which could not be measured on an objective
scale and therefore, has to be considered as inadmissible grounds for premature termination
of an employment contract.
15. In light of the above considerations, the Chamber came to the unanimous conclusion that the
Respondent had no just cause to terminate the contract binding it to the Claimant and that,
consequently, the Respondent is to be held liable for said early termination of the contract
without just cause.
16. Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract without just cause by the
Respondent.
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17. First of all, the members of the Chamber wished to refer to the amounts requested by the
Claimant as outstanding remuneration. In this respect, the Chamber noted that the Claimant
requested the payment of NIS 38,000, corresponding to two entire salaries (i.e. 19,000*2). After
verifying the documentation on file, the Chamber understood that said two salaries appear to
correspond to the months of September and October 2020.
18. Conversely, the Chamber noted that the Respondent provided in its reply a series of documents
to apparently, prove the payment of certain amounts.
19. Having analysed the documentation provided by the Respondent, the members of the Chamber
refer to art. 9 lit. e) of the Procedural Rules which stipulates that all documents of relevance to
the dispute shall be submitted in the original languages and, if applicable, translated into one
of the official FIFA languages. Taking into account the cited provision, the Chamber concluded
that it could not consider the documentation provided by the Respondent, as it was provided
without a translation into one of the official FIFA languages (English, Spanish, German or
French).
20. As a result, the Chamber could only assume that the player’s remuneration of September and
October 2020 (i.e. 19,000) remained unpaid.
21. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, the total
outstanding amount of NIS 38,000, as detailed above.
22. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a.
over said amount as from the due dates.
23. 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. 22.
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.
24. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent 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. The members of the Chamber recalled that according to art. 9 of
the contract, the player would not be entitled to compensation. However, given that said clause
is to be deemed invalid due to its potestative nature, the Chamber decided to disregard it in
full.
25. 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 nonexhaustive enumeration of criteria to be taken into consideration when
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calculating the amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
26. 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.
27. 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 without just cause by the Respondent, i.e. 5 November 2020 until the original date
of expiry, i.e. May 2021, and concluded that the Claimant would have received remuneration
in the total amount of NIS 57,000 (19,000*7) had the contract been executed until its ordinary
expiry date. Consequently, the Chamber concluded that the amount of NIS 57,000 serves as the
basis for the final determination of the amount of compensation for breach of contract in the
case at hand.
28. 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.
29. In this respect, the Chamber noted that the Claimant concluded an employment contract with
the Bolivian club, The Strongest, valid as from 27 January 2021 until 31 December 2021. The
Chamber observed that, accordingly, the player was entitled to a monthly salary of USD 13,333,
plus a sign-on fee of USD 30,000. Consequently, from said contract, the player would have
earned USD 123,331 = 30,000+13,333*7. The Chamber noted that this amount is equivalent to
NIS 400,000.
30. However, given that the contract with said Bolivian club was valid only as from 27 January 2021,
the Chamber understood that the Claimant was unable to mitigate his damages until said date,
i.e. from November 2020 until January 2021 (incl.).
31. As a result, the Chamber established that the amount of payable compensation would be
equivalent to the non-mitigated period of time, i.e. from November 2020 until and including
January 2021, i.e. 19,000*3, i.e. NIS 57,000.
32. Consequently, on account of all of the above-mentioned considerations, the Chamber decided
that the Respondent must pay the amount of NIS 57,000 to the Claimant as compensation for
breach of contract.
33. In addition, taking into account the Claimant’s request, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as
of the date on which the claim was lodged, until the date of effective payment.
34. 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.
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35. 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.
36. 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.
37. 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, David Mateos Ramajo, is partially accepted.
2.
The Respondent, Hapoel Umm Al-Fahm, has to pay to the Claimant, the following
amounts:
- NIS 38 000 as outstanding remuneration (salaries of September and October 2020)
plus 5% interest p.a. as from the due dates until the date of effective payment.
- NIS 57 000 as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 23 November 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
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 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:
1. 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).
2. 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.
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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