Dispute Resolution Chamber
Texto da decisão
REF FPSD-2100
Decision of the
Dispute Resolution Chamber (DRC) Judge
passed on 11 May 2021
regarding an employment-related dispute concerning the player Sergio Miguel Hora
Ribeiro
BY:
Jon Newman (USA), member
CLAIMANT:
Sergio Miguel Hora Ribeiro, Portugal
Represented by Mr Jan Schweele
RESPONDENT:
Ermis Aradippou FC, Cyprus
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I.
FACTS OF THE CASE
1.
On 12 July 2020, the Claimant and the Respondent signed a document referred to as “pre
contract between Ermis Aradippou FC and Hora Riberio Sergio Miguel”, based on which
the player during the 2020/2021 season would receive 10 monthly salaries of EUR 4,500,
therefore the total amount of EUR 45,000, as well as bonus payments for team
achievements and ‘one free package of flight tickets Portugal/Cyprus/Portugal’.
2.
Moreover, the Claimant signed a document referred to as “Letter request”, addressed to
the Immigration Department, informing that the Claimant would go to Cyprus in the period
between 14 July and 18 July 2020.
3.
In August 2020, the Claimant signed a new contract with the Romanian club ASFC
Universitatea Cluj, valid for the period between 23 August 2020 and 30 June 2021,
according to which the player, in the overlapping period between 23 August 2020 and 31
May 2021, would be entitled to the total amount of EUR 31,800.
II.
PROCEEDINGS BEFORE FIFA
4.
On 19 March 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
5.
First of all, the Claimant is of the opinion that the document signed on 12 July 2020 is a
valid contract, as it contains all essentialia negotii, since he passed all medical examinations
and since he participated in training sessions of the Respondent, after he was given entrance
by the Cypriot Immigration Department.
6.
According to the Claimant, on 15 July 2020 he arrived in Cyprus, where an official from
the Respondent picked him up and brought him to an apartment, where he underwent a
COVID-19 test.
7.
Moreover, the Claimant argues that he successfully fully completed all medical examinations
and participated in the Respondent’s pre-season preparation for one week, during which
week the Respondent tried to put pressure on the Claimant to agree with a salary reduction
and/or an amended contract.
8.
The Claimant points out that he refused to sign another contract or to agree with salary
reduction, as a result of which the Respondent booked his flight out of Cyprus on 4 August
2020. The Claimant consequently left the country and – since he never received any salary
from the Respondent, which terminated the contract without just cause in the Claimant’s
opinion – deems that he is entitled to compensation for breach of contract.
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9.
The requests for relief of the Claimant, were the following:
-
to be awarded compensation for breach of contract in the amount of EUR 13,200,
plus 5% interest p.a. as from 12 July 2020.
b.
Position of the Respondent
10.
Despite having been invited to do so, the Respondent failed to reply to the Claimant’s claim.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER (DRC)
JUDGE
a.
Competence and applicable legal framework
11.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC
judge) analysed whether het was competent to deal with the case at hand. In this respect,
it took note that the present matter was presented to FIFA on 19 March 2021 and submitted
for decision on 11 May 2021. Taking into account the wording of art. 21 of the 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.
12.
Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. a) and b) of the
Regulations on the Status and Transfer of Players (edition February 2021), the DRC judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Portuguese player and a Cypriot club.
13.
Subsequently, the DRC 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 Player (edition February 2021), and
considering that the present claim was lodged on 19 March 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
14.
Burden of proof
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
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15.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
16.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC judge emphasised that in the following
considerations he 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
17.
The foregoing having been established, the DRC judge moved to the substance of the
matter, and took note of the fact that the Claimant is of the opinion that he concluded a
valid contract with the Respondent, which was consequently breached by the 4 August
2020. Said circumstances remained uncontested by the Respondent.
18.
In this context, the DRC judge acknowledged that it was his task was to determine as to
whether the parties were indeed bound to a valid and binding employment agreement, as
to whether said agreement was terminated by the Respondent on 4 August 2020 and if
yes, whether said termination was made with or without just cause.
19.
In continuation, the DRC judge recalled the Chamber’s well-established jurisprudence which
dictates that in order for an employment contract to be considered as valid and binding,
apart from the signature of both the employer and the employee, it should contain the
essentialia negotii of an employment contract, such as the parties to the contract and their
role, the duration of the employment relationship and the remuneration payable by the
employer to the employee.
20.
In casu, the DRC judge was of the clear opinion that the document dated 12 July 2020
signed and exchanged between the parties 2013 contains all the essentialia negotii in order
to be considered as a valid and binding employment contract, in accordance with the
jurisprudence of the Chamber. Said circumstance is also remained uncontested by the
Respondent.
21.
Having determined the above, the DRC judge went to analyse whether the relevant
employment contract had been breached without just cause by the Respondent and, in the
affirmative, which would be the potential consequences of said breach.
22.
In this context, the DRC judge recalled that, according to the Claimant, after he successfully
underwent several medical examinations and participated in the Respondent’s pre-season
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REF FPSD-2100
preparation, the Respondent tried to push for a salary reduction. Eventually, after the
Claimant refused said salary reduction, the Respondent booked a flight for the Claimant to
leave Cyprus on 4 August 2020 and the Claimant left Cyprus.
23.
The DRC judge was of the opinion that the abovementioned circumstances clearly are to
be considered as a lack of interest from the Respondent’s side in the services of the
Claimant. As such, the DRC judge decided that the fact that the Respondent booked a flight
out of Cyprus for the Claimant on 4 August 2020 can be considered as an effective
termination of the contract, and that such termination was made without just cause by the
Respondent.
24.
In conclusion, the DRC judge decided that the Respondent shall be held liable for the
consequences of such unilateral termination of the contract without just cause.
ii. Consequences
25.
Having stated the above, the members of the DRC judge turned his attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
26.
First of all, the DRC judge concurred that the Respondent must fulfill its obligations as per
employment contract up until the date of termination of the contract in accordance with
the general legal principle of “pacta sunt servanda”.
27.
Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant
the remuneration that was outstanding at the time of the termination i.e. the amount of
EUR 4,500 consisting of one instalment of EUR 4,500, which fell due on 1 August 2020,
i.e. before the unilateral termination of the contract.
28.
In addition, in line with the Chamber’s well-established jurisprudence, the DRC judge
decided to award 5% interest p.a. on the amount of EUR 4,500 as from 1 August 2020.
29.
In continuation, the DRC judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
30.
In this context, the DRC judge 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.
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31.
In application of the relevant provision, the DRC judge 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 DRC judge established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
32.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the DRC judge took into account the remuneration due to the Claimant in accordance with
the employment contract as well as the time remaining on the same contract, along with
the professional situation of the Claimant after the early termination occurred. In this
respect, the DRC judge pointed out that at the time of the termination of the employment
contract on 4 August 2020, the contract would run until 31 May 2021, in which 9
instalments of EUR 4,500 were to be paid, i.e. the total amount of EUR 40,500.
Consequently, taking into account the financial terms of the contract, the DRC judge
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to EUR 40,500 and that such
amount shall serve as the basis for the final determination of the amount of compensation
for breach of contract.
33.
In continuation, the DRC judge remarked that following the early termination of the
employment contract at the basis of the present dispute the Claimant had found new
employment with the Romanian club, ASFC Universitatae Cluj, valid as from 23 August
2020 until 30 June 2021. During the overlapping period between 23 August 2020 and 31
May 2021, the Claimant would be entitled to the total amount of EUR 31,800.
34.
Consequently, in accordance with the constant practice of the Dispute Resolution Chamber
and the general obligation of the Claimant to mitigate his damages, such remuneration
under the new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract.
35.
As a result, the DRC judge deemed that the mitigated compensation amounts to EUR 8,700.
36.
Moreover, since the Respondent was the party terminating the contract, no additional
compensation as per the contents of art. 17 par. 1 under ii shall be awarded to the Claimant.
37.
In view of all of the above, the DRC judge decided that the Respondent must pay the
amount of EUR 8,760 to the Claimant as compensation for breach of contract without just
case, which is considered by the DRC judge to be a reasonable and justified amount as
compensation.
38.
What is more, in line with the Chamber’s well-established jurisprudence, the DRC judge
decided to award 5% interest p.a. on the amount of EUR 8,760 as from 19 March 2021,
the date of claim.
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iii. Compliance with monetary decisions
39.
Finally, taking into account the consideration under numbers 27. and 37. above, the DRC
judge referred to par. 1 lit. and 2 of art. 24bis of the Regulations, which stipulate that, with
his 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.
40.
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.
41.
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.
42.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
43.
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.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER (DRC) JUDGE
1.
The claim of the Claimant, Sergio Miguel Hora Ribeiro, is accepted.
2.
The Respondent, Ermis Aradippou FC, has to pay to the Claimant, the following amount:
- EUR 4,500 as outstanding remuneration, plus 5% interest p.a. as from 1 August 2020 until
the date of effective payment.
- EUR 8,700 as compensation for breach of contract, plus 5% interest p.a. as from 19 March
2021 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
4.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid within 45 days of notification of this decision, the
following consequences shall apply:
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 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 paid by the end of
the of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
6.
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
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