Labour Disputes
Texto da decisão
REF FPSD-4603
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Yanni Regasel
BY:
Clifford J. HENDEL (USA), Deputy Chairperson
Angela COLLINS (Australia), member
Dana MOHAMED AL-NOAIMI (Qatar), member
CLAIMANT:
Nouha Dicko, France
RESPONDENT:
FC Nitra, Slovakia
REF FPSD-4603
I Facts
1.
The player Yanni Regasel and FC Nitra concluded an employment contract valid as from 4 January
2021 until 30 June 2022.
2.
According to the contract, “the Player's gross monthly salary for playing football is 2.500, - € net”.
3.
Art. XIV. 2 of the contract stipulated the following:
“2. In the event of relegation, state of emergency declared in the territory of the Slovak Republic, state of war,
pandemic situation in the territory of the Slovak Republic or the suspension of a sporting competition by a
public authority and/or upon a decision by the League Club Union/ Slovak Football Federation in the
competition, the Player's salary shall be reduced by 50 (fifty) per cent.”
4.
On 6 May 2021, the claimant sent via his legal representative a default notice indicating, inter alia, the
following:
“we hereby inform you that your club is (i) more than 30 days in delay with payment of its financial
obligations toward the player, and also (ii) in delay of payment of at least two monthly salaries.
(…)
Annex no.1 Specification of overdue payables
5.
On 22 May 2021, the claimant sent a termination letter indicating the following:
“the Employment Contract with immediate effect with just cause due to material breach of the
Employment Contract and provision of Article 14bis, para 1 of FIFA RSTP by your club, constituted by
non-payment of at least 2 monthly salaries on their due dates for months of February and March
2021. We hereby inform you that the Employment Contract has been unilaterally terminated by our
Client with just cause”
6.
The player subsequently concluded an employment contract with the German club, Fussballverband
Rheinland e.V., valid as from 1 November 2021 until 30 June 2023 for a monthly salary of EUR 251
net on a “minijob-basis” (i.e. from November 2021 until June 2022, the player would have earned
8*251 = 2,008).
7.
On 21 December 2021, Yanni Regasel lodged a claim before FIFA for outstanding remuneration and
breach of contract without just cause and requested the following:
- Outstanding remuneration
• 1.500,00 EUR net as remaining monthly salary for February 2021 due by no later than 20 March 2021;
• 2.500,00 EUR net as monthly salary for March 2021 due by no later than 20 April 2021;
• 2.500,00 EUR net as monthly salary for April 2021 due by no later than 20 May 2021;
• 2.500,00 EUR net/monthly salary for May 2021 due by no later than 20 June 2021;
- Compensation:
EUR 32,500 net (13 equal payments of EUR 2,5000 net each, from June 2021 until June 2022 inclusive)
8.
The Claimant requested the payment of 5% interest p.a. as from the due dates.
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9.
In relation to the payment of compensation, the claimant acknowledged his duty to mitigate, but
argued that he is entitled to 3 monthly salaries as per art. 17 par. 2 lit ii RSTP.
10. In its reply, the Respondent rejected the claim of the player and simultaneously lodged a counterclaim,
by means of which it requested the payment of EUR 28,500 net, plus 5% interest p.a. as from the
date of notification of the decision.
11. The Respondent calculated the aforementioned amount as the residual value of the contract (EUR
32,500) minus EUR 4,000 (“the amount of one partial monthly salary for February (250,- EUR ) and
three monthly salaries (of 1.250,- EUR) for March, April and for May 2021, i.e. in total 4.000,00 EUR.)
12. The Respondent argued that it paid the player the amount of EUR 1,000 “which partially covered the
outstanding payment for February”.
13. According to the Respondent “since that moment, the overdue salaries were only those for March,
and April 2021.”
14. As to the claimed salaries, the Respondent considered that, following art. XIV (2) of the contract, his
salary was reduced by 50% and that, consequently, due to the pandemic, he was entitled to EUR
1,250 per month.
15. As a result, the Respondent considered that the Claimant terminated the contract without just cause.
16. In his replica, the Claimant explained that, concerning COVID-19, the highest division in football in
Slovakia was not impacted nor limited by pandemic restricts and players were allowed to provide their
services to the Respondent in full accordance with the Employment contract.
17. Therefore, the Claimant considered that there is no single reason as to why the obligation of the
Respondent to pay salary should be reduced by 50 %.
18. The Claimant further argued that the Respondent did not provide any evidence as to the alleged
payments.
19. The Respondent failed to provide its duplica.
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II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber)
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 21 December 2021 and submitted for decision
on 21 April 2022. Taking into account the wording of art. 34 of the October 2021 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the Procedural
Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit.
b) of the Regulations on the Status and Transfer of Players (August 2021 edition), it is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a German player and a Slovak club.
3. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and considering
that the present claim was lodged on 21 December 2021, the August 2021 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4. 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 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
5. 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
REF FPSD-4603
6. The Chamber first acknowledged that the parties concluded an employment contract valid
as from 4 January 2021 until 30 June 2022, for a monthly salary of EUR 2,500.
7. Thereafter, the Chamber noted that the Claimant lodged a claim before FIFA, arguing that
he terminated the contract on 22 May 2021 due to the existence of outstanding salaries for
February and March 2021
8. Conversely, the Chamber also took note of the club’s argument – disputed by the player –
regarding the COVID-19 pandemic, according to which the player’s salaries were to be
reduced by 50% due to the pandemic, in accordance with art. XIV. 2 of the contract.
9. In this context, the Chamber highlighted that 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,
it was also outlined that on 11 June 2020, FIFA has issued an additional document, referred
to as FIFA COVID-19 FAQ, which provides clarifications on the most relevant questions in
connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
10. Analysing the concept of a situation of force majeure, the Chamber also stressed that, based
on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID19 FAQ, FIFA did not
declare that the COVID-19 outbreak was a force majeure situation in any specific country or
territory, or that any specific employment or transfer agreement was impacted by the
concept of force majeure. In other words, in any given dispute, it is for a party invoking force
majeure to establish the existence of said event under the applicable law/rules as well as the
consequences that derive in connection thereto. The analysis of whether a situation of force
majeure existed has to be considered on a case-by-case basis, taking into account all the
relevant circumstances.
11. Following these general observations, the Chamber observed that, in the case at stake, the
Respondent failed to provide any evidence in support of its argumentation, such as, for instance,
a copy of the alleged declaration of the state of emergency or a letter sent to the player.
12. In light of the above, the Chamber concluded that the Respondent was not able to demonstrate,
through substantial evidence, that the situation faced was to be legally considered a situation of
force majeure. Likewise, the Chamber determined that clause XIV 2 of the employment contract
was not applicable to the present case in order to justify the Respondent’s attitude, asd the
pandemic background was already known by the time of the signature. Based on the foregoing,
the Chamber concluded thathad not provided a valid justification in support of its position and
must therefore be held liable for its breach without just cause.
REF FPSD-4603
13. The foregoing having been established, the Chamber moved to the examine the issue
concerning the early termination of the contract by the Claimant, based on the alleged nonpayment of certain financial obligations by the Respondent as per the contract, in accordance
with art. 14bis of the Regulations.
14. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations
had in fact been fulfilled.
15. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance
with which, if a club unlawfully fails 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).
16. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to part of February 2021, as well as his salaries of March, April and May 2021.
Furthermore, the Chamber noted that the Claimant has provided written evidence of having
put the Respondent in default on 6 May 2021, i.e. at least 15 days before unilaterally
terminating the contract on 22 May 2021.
17. The Chamber also noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the Respondent did not prove the payment of the claimed amounts.
18. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations, due to the club’s failure to pay the player’s
remuneration of (part of) February 2021, as well as the months of March and April 2021.
ii.
Consequences
19. Having stated the above, the members of the Chamber turned its attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
20. The Chamber observed that the outstanding remuneration at the time of termination, coupled
with the specific requests for relief of the Claimant, are equivalent to the months of part of
February (due on 20 March 2021) and full March (due on 20 April 2021) and April 2021 (due
on 20 May 2021) (i.e. EUR 1,500 + 2,500) salaries under the contract, amounting to EUR 6,500
net.
21. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
REF FPSD-4603
were outstanding under the contract at the moment of the termination, i.e. EUR 6,500 net, as
explained above.
22. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5%
p.a. on the outstanding amounts as from the due dates until the date of effective payment.
23. 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. 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.
24. In application of the relevant provision, the Chamber held that it first of all had to clarify
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.
25. 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.
26. As a consequence, the Chamber determined that the amount of compensation payable by the
Claimant to the Respondent had to be assessed in application of the other parameters set out
in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
27. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with
the calculation of the monies payable to the player under the terms of the contract until its
term. Consequently, the Chamber concluded that the amount of EUR 35,000 net (i.e. EUR
2,500*14, from May 2021 until June 2022) serves as the basis for the determination of the
amount of compensation for breach of contract.
28. In continuation, the Chamber verified whether the player 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 Chamber as
well as art. 17 par. 1 lit. ii) of the Regulations, 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.
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29. Indeed, the player found new employment with Fussballverband Rheinland e.vV. In accordance
with the pertinent employment contract, the player was entitled to approximately EUR 251 per
month. Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of EUR 2,008, that is, 251*8, from November 2021 until 30 June 2022.
30. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation, should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took place
due to said reason, i.e. overdue payables by the club, and therefore decided that the player
shall receive additional compensation.
31. In this respect, the Chamber decided to award the amount of additional compensation of EUR
7,500 net, i.e. 3 times 2500 as the monthly remuneration of the player.
32. Yet, the Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of
the Regulations, the overall compensation may never exceed the rest value of the prematurely
terminated contract.
33. Consequently, on account of all the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of EUR 35,000 to
the player (i.e. the rest value of the prematurely terminated contract), which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
34. 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 XXX until the date of effective payment.
iii. Compliance with monetary decisions
35. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 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.
36. In this regard, the Chamber highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official matches
up until the due amounts are paid. The overall maximum duration of the restriction shall be of
up to six months.
37. Therefore, bearing in mind the above, the Chamber decided that the player must pay the full
amount due (including all applicable interest) to the club within 45 days of notification of the
REF FPSD-4603
decision, failing which, at the request of the creditor, a restriction on playing in official matches
for the maximum duration of six months shall become immediately effective on the player in
accordance with art. 24 of the Regulations.
38. The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the present
decision.
39. The 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. 24 of the
Regulations.
d.
Costs
40. 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.
41. Furthermore, 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.
42. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-4603
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yanni Regasel, is partially accepted.
2.
The Respondent, FC Nitra, has to pay to the Claimant, the following amounts:
- EUR 6,500 net as outstanding remuneration plus interest as follows:
5% interest p.a. over the amount of EUR 1,500 as from 21 March 2021 until the date of effective payment;
5% interest p.a. over the amount of EUR 2,500 as from 21 April 2021 until the date of effective payment;
5% interest p.a. over the amount of EUR 2,500 as from 21 May 2021 until the date of effective payment.
- EUR 35,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 21 December 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1.
2.
6.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
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.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8and art. 25 of the Regulations on the Status and Transfer of Players.
For the Football Tribunal:
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).
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