Labour Disputes
Texto da decisão
REF FPSD-2824
Decision of the
Dispute Resolution Chamber
passed on 29 July 2021
regarding an employment-related dispute concerning the player Dorin Rotariu
COMPOSITION:
CLAIMANT:
Dorin Rotariu, Romania
Represented by Ruiz-Huerta & Crespo
RESPONDENT:
FC Astana, Kazakhstan
Represented by SILA Lawyers
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I.
FACTS OF THE CASE
1.
On 18 February 2019, the Romanian player, Dorin Rotariu (hereinafter: Claimant), and the
Kazakh club, FC Astana (hereinafter: Respondent) signed an employment contract
(hereinafter: contract) valid as from the date of signature until 31 December 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
- EUR 39,700 net as monthly salary between 18 February 2019 until 31 December 2019;
- EUR 43,700 net as monthly salary between 1 January 2020 until 31 December 2022;
- EUR 150,000 as signing fee until 1 May 2019.
3.
On 29 January 2021, the club sent a letter to the player that he had to train with the second
team, on a temporary basis, due his “fitness level”.
4.
On 1 May 2021, the player put the club in default and requested payment of his
outstanding remuneration which “exceed two monthly salaries” within 15 days.
5.
On 4 May 2021, the club sent a letter to the player notifying him of his absence and
requesting him to return to training on 5pm of the same day.
6.
On 5 May 2021, the player sent a letter to the club denying that he was absent for the
training without a reason as he is sick and referring again to his outstanding remuneration,
payable until 15 May 2021.
7.
On 20 May 2021, the player terminated his contract with the club due to the outstanding
remuneration.
8.
On 16 June 2021, the Claimant and the Bulgarian club, PFC Ludogorets 1945 signed an
employment contract valid as from 16 June 2021 until 31 December 2022 including a
monthly salary of EUR 20,000.
9.
On 16 June 2021, the player lodged a claim against the Respondent for breach of contract
and requested payment of the following monies:
- EUR 174,800 as outstanding remuneration (February 2021 until May 2021;4x EUR
43,700) plus 5% interest p.a. as of the due dates;
- EUR 830,300 as compensation corresponding to the residual value of the contract, plus
5% interest p.a. as of 20 May 2020;
- “six monthly salaries” as additional compensation in relation to Art. 17 RSTP;
- EUR 10,000 as legal costs.
10.
In his claim, the player held having had just cause to terminate the contract on 20 May
2021, due to the outstanding remuneration and after he put the club in default.
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11.
In this regard, the player held that 4 monthly salaries remained outstanding.
12.
The Respondent failed to reply to the claim even though it was invited to do so.
13.
On 28 July 2021, the Claimant acknowledged receipt of EUR 174,800 corresponding to his
outstanding remuneration.
II.
PROCEEDINGS BEFORE FIFA
14.
On 16 June 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
15.
According to the Claimant, he terminated the contract on 20 May 2021 with just cause,
after having put the club in default on 1 May 2021. In this context, the Claimant argued
that the club failed to remit 4 monthly salaries to him.
16.
The Claimant requested therefore payment of the following amounts:
- EUR 174,800 as outstanding remuneration (February 2021 until May 2021;4x EUR
43,700) plus 5% interest p.a. as of the due dates;
- EUR 830,300 as compensation corresponding to the residual value of the contract,
plus 5% interest p.a. as of 20 May 2020;
- “six monthly salaries” as additional compensation in relation to Art. 17 RSTP;
- EUR 10,000 as legal costs.
17.
During the proceedings, the Claimant acknowledged receipt of EUR 174,800 corresponding
to his outstanding remuneration.
b.
Position of the Respondent
18.
The Respondent failed to reply to the claim.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
19.
Competence and applicable legal framework
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was presented to FIFA on 16 June 2021 and submitted
for decision on 29 July 2021. 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
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the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
20.
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 a Romanian
player and a Kazakh club.
21.
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 16 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
22.
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.
23.
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.
24.
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.
i. Main legal discussion and considerations
25.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the Claimant’s argumentation that he terminated the contract with just
cause, after having put the Respondent in default for salaries amounting to more than 2
months.
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26.
The Respondent, for its part, failed to present its response to the claim of the player, in spite
of having been invited to do so. In this way, the Chamber considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
27.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision
upon the basis of the documents already on file, in other words, upon the statements and
documents presented by the Claimant.
28.
In this context, the Chamber acknowledged that the Claimant’s allegations remained
uncontested. Taking into account art. 14bis of the Regulations and in view of the
outstanding remuneration of 4 monthly salaries as well as the default notice sent on 1 May
2021, the Chamber concluded that the Claimant had just cause to terminate the contract
with the Respondent on 20 May 2021.
ii. Consequences
29.
As to the outstanding remuneration claimed, the DRC noted that the Claimant
acknowledged receipt of the amount of EUR 174,800 during the course of the proceedings.
30.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
31.
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.
32.
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.
33.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment 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. In this regard, the Chamber
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established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
34.
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. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body. In this
regard, the Dispute Resolution Chamber emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a case-by-case
basis taking into account all specific circumstances of the respective matter.
35.
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.
36.
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 with just cause by the Claimant until its natural expiration, i.e. 31 December
2022. Therefore, the Chamber concluded that the amount of USD 830,030 serves as the
basis for the final determination of the amount of compensation for breach of contract in
the case at hand.
37.
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.
38.
In this respect, the DRC noted that the Claimant concluded a new employment contract
and mitigated his damages in the total amount of EUR 370,000, which is deducted from
USD 830,030 and results in the amount of EUR 460,030.
39.
Subsequently, the Chamber turned its attention to the Regulations, according to which the
Claimant is entitled to an additional compensation of three monthly salaries, subject to the
early termination of the contract being due to overdue payables. In case of egregious
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circumstances, the additional compensation may be increased up to a maximum of six
monthly salaries, whereby the overall compensation may never exceed the rest value of the
prematurely terminated contract.
40.
With the above in mind, the members of the Chamber decided to award the Claimant
additional compensation of EUR 131,100, in accordance with the above-mentioned
Regulations.
41.
Consequently, on account of the above-mentioned considerations, the Chamber decided
that the Respondent must pay the amount of EUR 591,130 as compensation for breach of
contract to the Claimant, which is considered by the DRC to be a fair and reasonable
amount.
42.
In addition, and taking into account the longstanding jurisprudence in this respect as well
as the Claimant’s request, the DRC decided to award 5% interest p.a. on the
aforementioned amount as from the date of claim.
43.
Consequently, on account of the above-mentioned considerations, the Chamber decided
that the Respondent must pay the amount of USD 376,000 as compensation for breach of
contract to the Claimant, which is considered by the Chamber to be a fair and reasonable
amount.
44.
In addition, taking into consideration the player’s claim, the Chamber decided to award the
Claimant interest at the rate of 5% p.a., as of the date of the claim.
45.
In addition, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4
of the Procedural Rules as well as to its long-standing and well-established jurisprudence,
in accordance with which no procedural compensation shall be awarded in proceedings in
front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the
Claimant’s request relating to legal expenses.
46.
As a conclusion the Chamber decided to partially accept the player’s claim.
iii. Compliance with monetary decisions
47.
Finally, taking into account the consideration under number 21. above, the Chamber
referred to par. 1 lit. 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.
48.
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,
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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.
49.
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.
50.
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.
51.
The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8
of the Regulations.
d.
Costs
52.
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”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
53.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
54.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Dorin Rotariu, is partially accepted.
2.
The Respondent, FC Astana , has to pay to the Claimant, the following amount:
- EUR 591,130 as compensation for breach of contract plus 5% interest p.a. as from 16 June
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 article 24 bis 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 the ban shall be of
three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not paid by the end of
the of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance with
article 24 bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer
of Players.
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
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