Dispute Resolution Chamber
Texto da decisão
REF FPSD-84
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player RODRIGUEZ VALLA
Felipe
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT:
RODRIGUEZ VALLA Felipe, Uruguay
Represented by Mr Horacio Gonzalez Mullin
RESPONDENT:
Club Hapoel Tel-Aviv FC, Israel
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REF FPSD-84
I.
FACTS OF THE CASE
1.
On 24 December 2019, the Uruguayan player, Felipe Rodriguez Valla (hereinafter: “the
player” or “the Claimant”), and the Israeli club, Hapoel Tel-Aviv FC (hereinafter: “the club”
or “the Respondent”) signed a pre-agreement (hereinafter: “the pre-agreement”)
expressing their intention to conclude an employment contract “for the 2019/20 and
2020/21 seasons”.
2.
Point 3 of the pre-agreement stated “The contract between Hapoel and the player for the
season 2020/2021 (11 months) will become valid only if the player will play by 70% during
the 19/20 season”.
3.
Point 4 of the pre-agreement provided: “This is subjected to the execution of a valid
employment agreement between Hapoel and the Player for the seasons 19/20 and 20/21
(option)”.
4.
On 5 January 2020, the parties concluded an employment contract (hereinafter: “the
contract”) valid from 7 January 2020 until 31 May 2020.
5.
Clause 7 a) of the contract stated: “The parties hereby agree that differences of opinion
between the Club and player of between the Player and the Club, in everything relating to
the provisions of this Agreement, shall be decided by an arbitrator, who will be appointed
by virtue of the power of the Association´s Arbitration Institute Codex”.
6.
Clause 7 b) of the contract provided: “The arbitration will be held in accordance with the
directives of the Association´s Arbitration Institute Codex”.
7.
On 5 January 2020, the parties signed an appendix to the contract (hereinafter: “the first
appendix”).
8.
Clause 2 of the first appendix provides “The Agreement and this appendix are made
between the parties with respect to part of the 2019/20 soccer season, and to the 2020/21
soccer season, for a period commencing on 5.1.2020 and ending on the early to occur of
31.5.2021 or the last match of this season”.
9.
Clause 4.2.1.1 of the first appendix provided that the club should pay the player the
following remuneration for the Season 2019/2020:
Salaries: a total base net salary amounting to USD 75,000 representing a gross total salary
of Israeli Shekel (ILS) 333,500. “The amount shall be divided into 5 gross monthly salaries of
NIS 66,700 each” and
Signing bonus: USD 5,000 net “representing a gross amount of NIS 20,033 which will be
paid up to the day 15/1/2020”.
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Option to cancel an agreement: “The Player grants the Team the option to cancel and
terminate the Agreement at the end of 2019/2020 season. Such execution of the option
shall be done by a notice to the Player no later than June 1, 2020. Such execution of the
option for early termination shall not be considered a breach of the Agreement. The Player
warrants and agree (after he had understood the content of this the provision, throw his
legal representative) that such early termination of the agreement will be consider as a Just
cause to terminate the Agreement and the Annex and the Player won´t have any claim
and/or demand one against the team in this matter. The right of the team as set out in this
subsection above shall not apply if the player has played, in 2019/2020 season, more than
70%.
The Team grants the Player the option to cancel and terminate the Agreement at the end of
2019/2020 season. Such execution of the option shall be done by a notice to the Team no
later than June 1, 2020. Such execution of the option for early termination shall not be
considered a breach of the Agreement. The Team warrants and agree (after he has
understood the content of this the provision, throw his legal representative) that such early
termination of the agreement will be consider as a Just Cause to terminate the Agreement
and the Annex and the Player won’t have any claim and/or demand one against Player in
this matter. The right of the Player as set out in this subsection above shall not apply if the
player has played, in 2019/20 season, less than 40%”.
13.
Clause 4.2.1.2 of the first appendix provided that the club should pay the player the
following remuneration for the Season 2020/2021:
Salaries: a total base net salary amounting to USD 165,000 representing a gross total
salary of NIS 733,700. “The amount shall be divided into 11 gross monthly salaries of NIS
66,700 each” and
Signing bonus: USD 25,000 net “representing a gross amount of NIS 113,367 which will
be paid up to the day 1.10.2020”.
14.
Clause 4.2.3 of the first appendix stated that the player would be entitled to accommodation
which will paid by the team.
15.
Clause 4.2.7 of the first appendix stated that the player would be entitled to receive a bonus
amounting to USD 300 “per league game point, provided that the player participates in the
game”.
16.
On 2 April 2020, the parties signed an addition to the contract (hereinafter: “the second
appendix”) by means of which the player´s salary was reduced in 50% from 1 March 2020
until 30 April 2020 and until the matches will be played with public. The reduced monthly
salary was equivalent to NIS 33,050 gross.
17.
Point 2 of the second appendix provided “It is agreed upon by the parties that, should the
Premier League be played during May 2020, without an audience, or if the Premier League
not be played, the parties set out in section 2 above will continue to apply”.
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18.
Point 3 of the second appendix stated: “If a player has a valid player agreement for the
2020/2021 season, the following instructions will apply: 3.1 It is agreed upon by the parties
that if the Soccer Premier League is played during June 2020, without an audience, the
arrangement set out in paragraph 2 will continue to apply to the parties. 3.2 Renewed in
the Premier League during June 2020, for games with an audience, the dub will pay for the
player June 2020; the full monthly payment set out in Chapter 4 of the Appendix to the
Players 'Agreement, in addition to the monthly payments set forth in Chapter 4 of the
Appendix to the Players· Agreement, which were due on 31.5.2020”.
19.
Point 4 of the second appendix stated: “It is agreed upon by the parties that all other
provisions of the Agreement (i.e. – all provisions of the Player Agreement Form issued by the
Association as well as the Appendix to the Player Agreement Form}, without exception and
without any reservation, will continue to apply to the parties' relationship, except as
expressly set out above”.
20.
On 4 March 2020, the Israeli government suspended the national league due to the COVID19 outbreak.
21.
On 30 May 2020, the national league reassumed. The first six teams among which was the
Respondent played as from 30 May 2020.
22.
On 7 June 2020, the player sent a letter to the legal representative of the club informing
that since no option was exercised by the latter before 1 June 2020 the contract remained
valid until the end of the season 2020/2021 or 31 May 2021.
23.
On 8 June 2020, the club replied to the player stating that the option to exercise the date
was postponed until the end of the season 2019/2020 and for this reason; they did not
exercise the relevant option yet. The club further stated: “At this point, we are waiting
for the player to sign the "pay cut" appendix, as all players have signed with the
club, and in accordance with FIFA's outline, which was adopted by in the Israel
Football Association, since without the signature, According to the Israeli football
constitution, and the budget control authority's instructions, the player will not be
able to continue play until the end of this season. We ask that you instruct the
player to sign the "pay cut" appendix, in order that the player can continue regular
activities, as a player in our club, until the end of the 2019/20 soccer season.”
24.
On 8 June 2020, the player replied and reiterated that the contract is valid until 31 May
2021. The player further stated the club cannot decided unilaterally an amendment to the
contract without the player´s consent and that the club was putting the player under the
pressure to sign an amendment which is totally against his interest while the team was not
including him in the matches and that this constitutes an abusive behaviour from the club
as established in art. 14.2 of the RSTP.
25.
On 9 June 2020 the club sent another email to the player requesting his lawyer to instruct
him to sign the amendment of the contract, otherwise he would not play.
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REF FPSD-84
26.
On 11 June 2020, the player sent a notice to the club requesting it to stop pressuring the
player to sign amendments against his will; to allow the coach´s team to consider the player.
The player further stated that if the club would fail to do the aforementioned, he would
terminate the contract with just cause in accordance with art. 14, 14bis and art. 17 of the
RSTP.
27.
On 14 June 2020, the player was included in the team and was on the bench for the first
time on 14 June 2020 against Hapoel Haifa and he continue being on the bench for the rest
of the matches except only for two matches in which he played.
28.
On 8 July 2020, the club sent a letter (hereinafter: “the letter of termination”) to the player
terminating the employment relationship in accordance with clause 4.2.1.1 of the first
appendix. “This because you didn’t played in 2019/2020 season, more than 70%”.
29.
On 8 July 2020, the player sent a second notice to the club requesting the latter to modify
its position and to fulfil all the terms of the contract until the end of its expiry, granting three
days, otherwise he will lodged the claim before FIFA.
30.
After the termination on 8 July 2020 by the Respondent and until 31 May 2021 (end of
validity of the contract), the player signed two new employment contracts as follows:
a) Club Aldosivi (Argentina) from 15 August 2020 until 31 December 2020
Monthly salary: ARS 100,000 (equivalent to USD 1,367)
Additional monthly remuneration: ARS 550,000 (equivalent to USD 7,518)
Total monthly remuneration: USD 8,885
Total remuneration: USD 35,881.50 (4 months and a half).
b) Club Manucchi (Peru) from 25 January 2021 until 31 May 2021
Monthly salary: USD 2,500
Additional monthly remuneration: USD 6,500
Total monthly remuneration: USD 9,000
Signing-on fee: USD 15,487.50
Total remuneration: USD 51,970.50 (4 months and 6 days)
II.
PROCEEDINGS BEFORE FIFA
31.
On 24 July 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
32.
The claim of the Claimant
The Claimant lodged the present claim against the club arguing that the latter terminated
the contract on 8 July 2020 without just cause and requesting the following:
Outstanding remuneration: total USD 6,000 plus interest of 5% p.a. as from the relevant
due dates, amount composed as follows:
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USD 2,500 as outstanding partial of signing bonus (cf. clause 4 of the first
appendix);
USD 3,500 (i.e. USD 7,500 – USD 4,000 paid by the club) as outstanding salary
related to the month of June 2020.
Damage compensation: total USD 217,384 plus interest of 5% p.a. as from date of
termination, i.e. 8 July 2020 composed as follows:
USD 25,000 as signing bonus for the season 2020/2021 due on 1 August 2020;
USD 165,000 as total net salaries from 1 July 2020 until 31 May 2021 (cf. clause
4.2.1.2 of the first appendix);
USD 6,300 as estimated amount for bonus for participating in league matches (cf.
clause 4.2.7 of the first appendix) based on the performance in the previous season;
USD 21,084 as accommodation (cf. clause 4.2.3 of the first appendix) taking into
account the amount that the club paid until the termination.
Compensation based on specificity of sports
USD 90,000 (USD 15,000 x 6) plus interest of 5% p.a. as from date of termination,
i.e. 8 July 2020.
Imposition of sporting sanctions cf. art. 17 par. 4 RSTP taking into account that the
termination occurred during the protected period and art. 24bis RSTP.
33.
The Claimant argued that as from 30 May 2020 the club tried to make him sign an
agreement by means of which the contract would be terminated on 7 July 2020 and that
during this period the player would not receive salaries only accommodation and the car.
34.
The player stated having rejected this offer and for this reason the club did not allow him to
play neither during two plays off nor during the semi-final of the Israeli FA Cup, i.e.:
On 2 June 2020 against the club Beitar Jerusalem;
• On 6 June 2020 against the club Hapoel Beer Sheva and
• On 9 June 2020 against the club Maccabi Petach Tikya.
35.
In addition, the player argued that clause 4.2.1.1 of the first appendix is null and invalid
since it is not reciprocal and its application depended only on the club´s will to field the
player or not. The player added if he would not play more than 70% of the matches the
club could terminate the contract in advance as of the end of the 2019/2020 season
notifying the player by no later than 1 June 2020.
36.
The player stated that in accordance with the art. 335a par. 1 of the Swiss Code of
Obligations if an employment contract has different conditions to terminate it for each of
the parties, the longest should apply. In this respect, the player argued that even if the clause
4.2.1.1 of the first appendix grants to both parties the possibility to terminate the contract,
the conditions to exercise the option depend only to the club´s decision. Therefore, the player
deemed that it should be taken into account the longest period of validity of the contract,
i.e. 31 May 2021 or the last match of the season 2020/2021 whichever would come first.
37.
Furthermore, the player added that in case the clause 4.2.1.1 will be considered applicable,
the club only communicated its decision to terminate the contract on 8 July 2020, i.e. after
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the deadline of 1 June 2020 established in the relevant clause. Therefore, the player
concluded that the termination of the contract by the club was in any case without just
cause.
b.
Position of the Respondent
38.
The requests for relief of the Respondent, were the following:
to declare this claim inadmissible (cf. points 39-41 below) and
in the alternative, to dismiss the claim in its entirety.
39.
The Respondent held that FIFA is not competent based on art. 22 b) of the RSTP and since
the parties agreed that the “Israeli Football Association´s Arbitration Institute” (IFAI) would
decide any disputes between the parties in accordance with clause 7 of the contract.
40.
According to the Respondent, the IFAI qualifies “by all means as an independent chamber
qualifying by every standard of the FIFA National Dispute Resolution Chamber Standard
Regulations”.
41.
The Respondent argued, “the parties have granted jurisdiction to the IFAI under Israeli law,
which is the sole admissible tribunal in this matter, and, as a consequence, the FIFA DRC
does not have jurisdiction in this dispute. The claim must be declared inadmissible”.
42.
With regard to the substance, the Respondent argued that the true intention of the parties
was to play until the end of the 2019/2020 season and then decide if the contract shall be
continued to the 2020/21 season or whether it shall be terminated and for this reason, they
signed the pre-agreement.
43.
Moreover, the Respondent explained that the parties also signed the first appendix reflecting
this intention of their mutual option to maintain or terminate their contractual relationship
at the end of the 2019/2020 season. The Respondent added that the first appendix includes
the second half of the 2019/2020 season, similar to a probation period “to assess whether
they want to continue for another season or not”.
44.
The Respondent further explained that the first appendix provided to both parties equal
rights either to continue, or to terminate the contract, if a certain percentage threshold of
games played is not reached.
45.
Furthermore, the Respondent stated that due to the COVID-19 outbreak the Israeli Premier
League was suspended from 4 March 2020 until 30 May 2020 and on 2 April 2020 both
parties signed the second appendix by means of which they agreed to reduce by 50% the
player´s salaries of March April and May 2020 and according to clause 3.1 of the second
appendix if the Israeli Premier League was played during June 2020 without audience the
reduction would apply as well.
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46.
The Respondent maintained that since the Claimant did not have a contract for 2020/2021
season he was not entitled to receive any salary for June in compliance with national laws
of Israel and the FIFA COVID-19 guidelines. However, the Respondent explained, “The
Respondent paid the Claimant voluntarily USD 4,000 NET after he agreed to play for the rest
of the season 2019/2020 for free. All this was agreed between the parties in a WhatsApp
exchange”.
47.
The Respondent stated having sent a third appendix to the Claimant reflecting this last
agreement (no salaries only accommodation and car) but the latter did not accept to sign it.
48.
According to the Respondent, due to the suspension of the league because of the pandemic
lockdown, the 2019/20 season was extended until 7 July 2020 and consequently the
deadline to terminate the employment contract must be extended accordingly.
49.
In this respect, the Respondent referred to the definitions section of the RSTP which defines
a ''season" as the period starting with the first official match of the relevant national league
championship and ending with the last official match of the relevant national league
championship". In Israel, the last official match of the 2019/20 league was played on 7 July
2020.
50.
The Respondent stated that “if the Respondent had terminated the contract by 1 June 2020,
it would have violated Article 18(2) RSTP, and also Article 16 RSTP which states that a
contract cannot be unilaterally terminated during the course of a season”.
51.
The Respondent further stated that upon the team´s return to practice, the Claimant had
not adequately followed the fitness instructions during the lockdown and demonstrated
poor level of fitness.
52.
The Respondent added “By 1 June 2020 the Claimant only played 5 league and 2 state cup
matches while 9 league games and many more state cup matches had not been played yet.
At that time, this was not enough to determine if the contract shall be extended for another
season or not. Also, there were not enough games for the thresholds of 40% and 70% to
make any sense”.
53.
Finally, the Respondent claimed that in case the DRC would decide that the it should pay to
the Claimant salaries for the 2020/21 season, it shall be taken into consideration that as per
clauses 1, 2 and 3.1 of the second appendix and by the fact that the Israeli Premier League
was played without any presence of supporters, then the salaries shall be reduced by 50%.
In addition, the Respondent claimed that the remuneration received by the Claimant at his
new club should be deducted as well.
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III. 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”
or “the 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 24 July 2020 and
submitted for decision on 20 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.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between an Uruguayan
player and an Israeli club.
3.
The Chamber acknowledged that the club contested the competence of FIFA’s deciding
bodies on the basis of clause 7 of the contract highlighting that the Israeli Football
Association (IFA) has an independent deciding body to deal with the matter, i.e. the Israeli
Football Association´s Arbitration Institute (IFAI).
4.
In this respect, the Chamber emphasised that in accordance with art. 22 lit. b) of the
February 2021 edition of the Regulations on the Status and Transfer of Players it is
competent to deal with a matter such as the one at hand, unless the parties explicitly opt in
writing for such disputes to be decided by an independent arbitration tribunal that has been
established at national level within the framework of the association and/or a collective
bargaining agreement. Furthermore, the Chamber emphasised that any such arbitration
clause must be included either directly in the contract or in a collective bargaining agreement
applicable on the parties. The independent national arbitration tribunal must guarantee fair
proceedings and respect the principle of equal representation of players and clubs. With
regard to the standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the Chamber referred to FIFA Circular no. 1010 dated 20 December 2005.
In this regard, the Chamber further referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
5.
Therefore, while analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber considered that it should first analyse whether the employment
contract at the basis of the present dispute contained a clear jurisdiction clause.
6.
In this respect, the Chamber recalled that clause 7 a) of the contract stipulated, “differences
of opinion between the Club and player or between the Player and the Club, in everything
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relating to the provisions of this Agreement, shall be decided by an arbitrator, who will be
appointed by virtue of the power of the Association’s Arbitration Institute Codex.”
7.
After examining the relevant provision, the Chamber concluded that clause 7 a) of the
contract does not constitute a clear jurisdiction clause in favor of a specific court of
arbitration or tribunal in Israel, as it only refers to “an arbitrator”.
8.
Having established that the first criterion for the recognition of the competence of a national
decision-making body is not fulfilled in the present matter, the Chamber deemed
unnecessary to examine any further points, which would need to be assessed before
concluding to the competence of a national deciding body.
9.
In view of the above, the Chamber established that the Respondent´s objection to the
competence of FIFA to deal with the present matter had to be rejected and that the DRC is
competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of
Players, to consider the present matter as to the substance.
10.
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 (edition February 2021), and
considering that the present claim was lodged on 24 July 2020, the June 2020 edition of
said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
11.
The Chamber 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 stressed the wording of
art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties.
12.
In this respect, the Chamber 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.
13.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
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i. Main legal discussion and considerations
14.
The foregoing having been established, the Chamber moved to the substance of the matter,
and underlined that it is uncontested by the parties that they signed the contract, the first
appendix and the second appendix. As a result, The DRC concluded that the employment
relationship between the parties was based on the cited three documents.
15.
However, the DRC pointed out that the parties maintained opposing positions regarding the
duration of the employment relationship.
16.
The Chamber highlighted that on the one hand, the Claimant considered that the
employment relationship was valid until the end of the season 2020/2021 based on clause
2 of the first appendix and taking into account that none of the parties terminated it before
1 June 2020 (cf. clause 4.2.1.1 of the first appendix).
17.
On the other hand, the DRC noted that the Respondent maintained that the employment
relationship between the parties lasted until the end of the season 2019/2020 due to the
club´s termination of the contract on 8 July 2020 allegedly based on the clause 4.2.1.1 of
the first appendix.
18.
At this stage, the Chamber recalled that according to the contract, its period of validity was
from 7 January 2020 until 31 May 2020 and that according to the clause 2 of the first
appendix, the employment relationship was “for a period commencing on 5.1.2020 and
ending on the early to occur of 31.5.2021 or the last match of this season”.
19.
Moreover, the DRC acknowledged that clause 4.2.1.1 of the first appendix granted to both
parties an option to terminate the employment relationship by no later than 1 June 2020.
20.
The Chamber pointed out that on 8 July 2020 the club sent the letter of termination to the
player based on clause 4.2.1.1 of the first appendix. In this regard, the Chamber noted that
the Respondent deemed that due to the suspension of the Israeli League because of the
COVID-19 pandemic, the 2019/2020 season was extended until 7 July 2020 and hence the
deadline to terminate the employment relationship was ipso facto extended as well.
21.
The DRC observed that the Claimant strongly rejected the Respondent´s argument and
maintained that since the latter did not exercise the relevant option to terminate the contract
until 1 June 2020, the employment relationship remained valid until 31 May 2021.
22.
In this respect, the Chamber was keen to emphasise that the period of validity of a contract
is one of the essential elements in an employment relationship and consequently, both
parties have to agree in its duration.
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23.
What is more, the DRC remarked that from the evidence on file it was clear that the club
tried to negotiate with the player some amendments of the employment relationship, and
that the latter did not accept them.
24.
Furthermore, the Chamber highlighted that none of the parties exercised the option to
terminate the contract, established in clause 4.2.1.1 of the first appendix before 1 June
2020.
25.
As a result, the Chamber concluded that the Respondent´s failed to provide evidence
sustaining its allegation that the deadline of 1 June 2020 provided in clause 4.2.1.1 of the
first appendix was extended to 7 July 2020.
26.
In light of the above, the DRC rejected the Respondent´s allegation and concluded that the
employment relationship between the Claimant and the Respondent was valid until 31 May
2021 (cf. clause 2 of the first appendix).
27.
On account of all the above, the DRC unanimously reached the conclusion that on 8 July
2020 the Respondent terminated the contract without just cause and it is therefore liable to
pay compensation to the Claimant.
ii. Consequences
28.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of the contract committed by the
Respondent.
29.
Therefore, the Chamber first focused its attention to the Claimant´s requests for outstanding
remuneration, i.e. USD 2,500 as outstanding part of signing bonus (cf. clause 4 of the first
appendix) and USD 3,500 as outstanding salary related to the month of June 2020.
30.
To start with, the DRC acknowledged that the Claimant stated not having received the
aforementioned amounts, whereas the Respondent provided certain pieces of evidence
allegedly proving said payments.
31.
In this respect, the DRC 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. In the case at hand, the burden
of proving the payment of the player’s remuneration lies with the club.
32.
Bearing in mind the foregoing, the Chamber noted that the documentation provided by the
Respondent regarding payments allegedly made to the player were not translated into one
of the official FIFA languages. Therefore, the DRC held that they could not be taken into
account.
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33.
In light of the aforementioned, the DRC concluded that the player is entitled to receive the
amount of USD 2,500 as outstanding part of the signing bonus.
34.
Furthermore, taking into consideration the Claimant’s claim, the Chamber decided to award
him an interest at a rate of 5% p.a. on the amount of USD 2,500 as from 16 January 2020
until the date of effective payment.
35.
With regard to the request for USD 3,500 as outstanding salary related to the month of June
2020, the DRC reiterated its previous considerations related to the evidence presented by
the Respondent.
36.
Moreover, the DRC underlined that in accordance with the second appendix the parties
agreed to a reduction of the salary to a monthly payment of ILS 33,050, which is equivalent
to USD 10,115. In this respect, the DRC observed that the Claimant confirmed having
received from the Respondent a payment of USD 4,000. As a result, the Chamber noted
that in principle an amount of USD 6,115 remained outstanding.
37.
However, the DRC reiterated that the Claimant requested an amount of USD 3,500 as
outstanding remuneration for the month of June 2020.
38.
Consequently, based on the legal principle of ultra petita, the DRC decided to grant to the
Claimant the requested amount of USD 3,500 as outstanding salary related to June 2020.
39.
In addition, taking into consideration the Claimant’s claim, the Chamber decided to award
him an interest at a rate of 5% p.a. on the amount of USD 3,500 as from 1 July 2020 until
the date of effective payment.
40.
Having stated the above, the Chamber focused its attention on the calculation of the
amount of compensation payable to the Claimant by the Respondent 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.
41.
In application of the relevant provision, the Chamber held that it first 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 established that no
such compensation clause was included in the contract at the basis of the matter at stake.
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42.
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 non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
43.
In order to estimate the amount of compensation due to the Claimant in the present case,
the members of the Chamber first turned their attention to the remuneration and other
benefits due to the Claimant under the existing contract and/or any other earnings made
within the residual contractual period, 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 any subsequent earnings, if any, in the calculation of the amount
of compensation.
44.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the contract from 8 July 2020 (i.e. date of
termination) until 31 May 2021.
45.
In this respect, the Chamber noted that by the second appendix the parties agreed on a
reduction of the salaries in 50% from 1 March 2020 until 30 April 2020 and until the
matches would be played with public. The DRC concluded that the reduction of salaries
based on the second appendix were applicable to the matches pertaining to the season
2019/2020.
46.
The Chamber further noted that the Respondent confirmed that the season 2019/2020
ended on 7 July 2020. Therefore, the DRC concluded that the reduction of remuneration
agreed in the second appendix is not applicable to the remaining period of validity of the
contract, i.e. from 8 July 2020 until 31 May 2021.
47.
Consequently, the Chamber pointed out that the amount of USD 190,000 (i.e. USD 165,000
as salaries and USD 25,000 as signing bonus cf. clause 4.2.1.2 of the first appendix) serves
as the basis for the determination of the amount of compensation for breach of contract.
48.
In continuation, the Chamber remarked that following the early termination of the contract
at the basis of the present dispute, the Claimant was able to find new employment and to
mitigate his damages in a total amount of USD 87,852 (i.e. USD 35,881.50 related to the
new contract with the Argentinean club Aldosivi plus USD 51,970.50 related to the new
contract with the Peruvian club Manucchi).
49.
Therefore, the Chamber established that the Claimant, in principle, would be entitled to a
mitigated compensation amounting to USD 102,148.
50.
Consequently and bearing in mind all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
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amount of USD 102,148 to the Claimant, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
51.
Furthermore, taking into consideration the Claimant’s claim, the Chamber decided to award
the Claimant interest at the rate of 5% p.a. on the amount of USD 102,148 as from 24 July
2020 (i.e. date of claim) until the date of effective payment.
52.
In continuation, the DRC focused its attention to the Claimant´s request for accommodation
for the residual period of validity of the contract and based on clause 4.2.3 of the first
appendix.
53.
In this regard, the Chamber observed that the Claimant did not present any evidence of
payment of the requested amount and that the clause 4.2.3 of the first appendix did not
provide any specific amount as accommodation.
54.
As a result, the Chamber decided to reject the Claimant´s request for accommodation.
55.
With regard to the Claimant´s request for bonuses amounting to USD 6,300, the Chamber
observed that he made a projection of possible future bonuses.
56.
In this respect, the DRC underlined that according to its well-established jurisprudence
bonuses are part of the remuneration and they should be paid to the player once the
objectives or conditions triggering the requested bonuses are fulfilled.
57.
Consequently, the Chamber decided to reject the Claimant´s request for bonuses.
iii. Compliance with monetary decisions
58.
Finally, taking into account the consideration under number 10. above, the 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.
59.
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 and for the maximum
duration of three entire and consecutive registration periods.
60.
Therefore, bearing in mind the above, the DRC 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, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive
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registration periods shall become effective on the Respondent in accordance with art. 24bis
par. 2 and 4 of the Regulations.
61.
The DRC recalled that the above-mentioned bans 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.
62.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
63.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”.
64.
Accordingly, the Chamber decided that no procedural costs were to be imposed on the
parties.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Felipe Rodriguez Valla, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club Hapoel Tel-Aviv FC, has to pay to the Claimant, USD 6,000 as outstanding
remuneration plus 5% interest p.a. as follows:
on the amount of USD 2,500 from 16 January 2020 until the date of effective payment;
on the amount of USD 3,500 from 1 July 2020 until the date of effective payment.
4.
The Respondent has to pay to the Claimant, USD 102,148 as compensation plus 5% interest
p.a. from 24 July 2020 until the date of effective payment.
5.
Any further claims of the Claimant are rejected.
6.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
7.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
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REF FPSD-84
8.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
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.
9.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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