Labour Disputes
Texto da decisão
REF FPSD-4940
Decision of the
Dispute Resolution Chamber
passed on 8 March 2022
regarding an employment-related dispute concerning the player Pedro
Miguel Ruas Machado
BY:
Alejandro Atilio Taraborrelli (Argentina / Italy), Single judge of the DRC
CLAIMANT:
Pedro Miguel Ruas Machado, Portugal
RESPONDENT:
FC U Craiova 1948, Romania
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REF FPSD-4940
I.
Facts of the case
1.
On 18 June 2021, the Portuguese player, Pedro Miguel Ruas Machado (hereinafter: the player
or the Claimant) and the Romanian club, FC U Craiova 1948 (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from 1
July 2021 until 30 June 2022.
2.
In accordance with clause V.1.a.) ii) of the contract, the club undertook to pay to the player
a monthly salary in the amount of EUR 6,000 net, payable by the 15th day of the following
month.
3.
Clause VII of the contract reads as follows: “Force majeure: 1. Force majeure, as it is defined
by the law, releases the parties from responsibility, in full or in part, in case of partial or full
non-fulfilment, faulty or delayed execution of the obligations under this sports activity
contract. The pandemic / epidemic declared by the authorities is also considered force
majeure. 2. The party relying on force majeure has the obligation to notify the other party
within 5 days from the occurrence of the force majeure and to take all steps necessary to limit
the consequences thereof, otherwise he shall not benefit from the effects releasing him from
the ensuing responsibility”.
4.
Clause V. 2 of the contract states that the player would be entitled to the following match
bonuses in case of victory: EUR 500 net “if the player is in the starting eleven” and EUR 300
net “if the player is fielded during the match regardless of the number of minutes played”.
5.
Clause XI of the contract states that the dispute arisen in connection with the contract “shall
be settled by the domestic sports commissions and / or the courts having substantive and
territorial competence, in accordance with the civil law provisions”.
6.
On 30 November 2021, the player sent a notice to the club, informing the latter, inter alia,
about the following:
- That the club is treating him discriminatorily upon the player’s refusal to mutually terminate
the contract, harassing him to terminate the contract, a conduct that is subject to the
consequences foreseen by art. 14 of the FIFA RSTP;
- To allow the player to train with the rest of the team and provide all necessary training
conditions and facilities.
7.
Thereafter, by means of its correspondence dated 2 December 2021, the club simply
requested the player to accept the mutual termination of the contract against payment of the
salary of December 2021.
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8.
By means of his letter dated 6 December 2021, the player replied to the club stating that he
would only accept the mutual termination of the contract, provided that the club paid a
compensation for the early termination of the contract.
9.
By means of his letter dated 8 December 2021, the player requested the club to reinstate him
into the “team’s program”, thereby granting the club a 10 days’ deadline to do so.
10. By means of its letter dated 13 December 2021, the club unilaterally terminated the contract
on the basis of an alleged “force majeure” (note: document on file).
11. On 7 January 2022, the player signed a contract with the Portuguese club, SC União
Torreense (hereinafter: the new club), valid as from 7 January 2022 until 30 June 2022,
whereby the player is entitled to a total fixed remuneration of EUR 8,750 (contract in TMS).
II. Proceedings before FIFA
a. Position of the Claimant
12. On 25 January 2022, the player lodged a claim against the club before FIFA, requesting to be
awarded outstanding remuneration and compensation for breach of contract in the amount
of EUR 54,500 net, plus 5% interest p.a. as from the date of claim until the date of effective
payment, broken down by the player as follows:
Outstanding remuneration: EUR 15,500 net, plus 5% interest p.a.
-
EUR 6,000 corresponding to the salary of October 2021;
EUR 6,000 corresponding to the salary of November 2021;
EUR 3,000 corresponding to the half of the salary of December 2021;
EUR 500 corresponding to the “match bonus for the game Academica Clinceni – U
Craviova, score 1-2” played on 7 August 2021 (note: supporting document on file).
Compensation for breach of contract: EUR 39,000 net, plus 5% interest p.a.
-
EUR 39,000, corresponding to the residual value of the contract, as from 14 December
2021 until 30 June 2022, calculated by the player himself (6.5*6,000 = 39,000).
13. In his claim, the player explained that, since November 2021, the club requested him and
other 3 players to terminate their contracts, to which the player opposed. As a consequence
thereof, the player explained that the club started “a series of harassment […] consisting in
excluding the 4 players from the team’s activities and forcing them to train separately, without
medical assistance, sometimes without a coach and without ensuring all the appropriate
training conditions”.
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14. In particular, the player held that the club provided different training instructions to him in
comparison to the rest of team, forcing him to start training 5 hours before the rest of the
team and, what is more, on 19 November 2021 he was even expelled by the club from the
WhatsApp group whereby the club provided training information to the players.
15. In view of all of the above, the Claimant held that the Respondent terminated the contract
without just cause on 13 December 2021 and requested to be awarded the outstanding
remuneration due to him at the date of termination, as well as a compensation for breach of
contract in an amount equal to its residual value.
b. Position of the Respondent
16. Despite having been invited to reply to the claim, the Respondent failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as the
Single Judge) 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 25 January 2022 and
submitted for decision on 8 March 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.
18. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players (August 2021 edition), the Dispute Resolution Chamber is,
in principle, competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Portuguese player and a Romanian
club.
19. In this context, the Single Judge wished to refer to clause XI of the contract, which states that
disputes arisen in connection with the conclusion, performance, modification, suspension or
termination of the contract shall be settled by the domestic sports commissions and or by the
ordinary jurisdiction.
20. After an analysis of the wording of the aforementioned clause, the Single Judge stressed that
it seems to foresee that contractual disputes in connection with the contract are to be solved
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by the Romanian national dispute resolution chamber (if any) and / or by the Romanian
ordinary jurisdiction.
21. However, continued the Single Judge, it shall be noted that: 1.) the said clause does not state
that the jurisdiction recognized to the above-mentioned deciding bodies is exclusive; 2.) the
competence of a national dispute resolution chamber must be analysed by the Football
Tribunal in casu, upon receipt of the documentation pertaining to the composition of the
NDRC, which is not on file; 3.) the club failed to reply to the claim and, hence, the club did
not object to the jurisdiction of FIFA to entertain the present matter; 4.) clause XI of the
contract is not specific enough when referring to the ordinary jurisdiction, only stating that
would be competent “the courts having substantive and territorial competence”.
22. In view of all of the above and considering especially the lack of objection of the Respondent
to the competence of FIFA as a consequence of its lack of reply to the claim -in view of the
usual practice of the DRC, which confers FIFA a broad scope of action to decide upon matters
which fall under the framework provided by art. 22 RSTP-, the Single Judge determined that
the DRC is competent to adjudicate on the present dispute.
23. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 25 January 2022, 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
24. The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
25. Its competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
26. The foregoing having been established, the Single Judge moved to the substance of the
matter, and observed that, since the claim of the Claimant remained uncontested, the latter
will be entitled to the amounts claimed, provided that they have a contractual basis.
27. First of all, the Single Judge noted that it remained undisputed that the Respondent
unilaterally terminated the contract alleging force majeure, which was already foreseen by
the parties in clause VII of the contract. In this respect, the wording of the said clause shall be
highlighted, insofar as it states that the Covid-19 pandemic is an event of force majeure,
which can prevent the club from complying in full or in part with its obligations. Considering
the potestative nature of the said clause, the Single Judge decided that it is to be deemed
null and void; also taking into account that, at the time when the contractual relationship
was entered into between the parties, the Covid-19 pandemic was a reality with which players
and club had to coexist, not being reasonable that the club, in casu, simply decides to rely on
the said clause to unilaterally terminate the contract without any further grounds.
28. In addition, the Single Judge highlighted that the Respondent failed to reply to the claim,
missing its procedural opportunity to support the termination of the contract with grounds
that would allow the DRC to determine whether the termination of the contract under the
said premise could be considered as made with just cause. Thus, in view of the
aforementioned, the Single Judge decided that the club terminated the contract without just
cause on 13 December 2021.
ii. Consequences
29. Having stated the above, the Single Judge turned their attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
30. It remained undisputed that the club failed to pay to the player the salaries of October,
November and half of December 2021 by the date on which the contract was unilaterally
terminated by the club. In addition, it remained uncontested that the club failed to pay to the
player the bonus for having participated in the match played against Academica Clinceni on
7 August 2021, which was won by the club (evidence of which was provided by the
Claimant).
31. Thus, and in accordance with the general legal principle of pacta sunt servanda, the Single
Judge decided that the Claimant is entitled to the outstanding remuneration requested in the
amount of EUR 15,500 net, corresponding to the considerations specified in the previous
paragraph.
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32. 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 25 January 2022 until the date of effective
payment, in view of the specific petitum of the Claimant in this respect.
33. Having stated the above, the Single Judge 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 Single
Judge 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.
34. In application of the relevant provision, the Single Judge held that he first of all 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
35. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set out in
art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
36. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of EUR 39,000 (i.e. the monthly salaries payable as from 14
December 2021 until 30 June 2022, which coincides with the residual value of the contract
as from the date of its termination until its natural expiration date, had it been organically
performed) serves as the basis for the determination of the amount of compensation for
breach of contract.
37. In continuation, the Single Judge verified as to 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
DRC 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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38. Indeed, the player found employment with the Portuguese club, SC União Torreense
(hereinafter: the new club), valid as from 7 January 2022 until 30 June 2022, whereby the
player is entitled to a total fixed remuneration of EUR 8,750 during the overlapping period of
both contracts. Therefore, the Single Judge concluded that the player mitigated his damages
in the total amount of EUR 8,750.
39. Subsequently, the Single Judge 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 Single Judge noted that the termination of the
contract was made by the club and not by the player. Consequently, in application of the
aforementioned article, the Single Judge determined that no additional compensation can be
awarded to the player.
40. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of EUR
30,250 net to the player (39,000 – 8,750 = 30,250), which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present matter.
41. 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 25 January 2022, i.e. as from the date on which the claim was
lodged -in line with both the petitum of the Claimant and the jurisprudence of the DRC in
this regard-, until the date of effective payment.
iii. Compliance with monetary decisions
42. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 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.
43. In this regard, the Single Judge 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.
44. Therefore, bearing in mind the above, the Single Judge 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
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three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
45. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
46. The Single Judge 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 par. 8
of the Regulations.
d. Costs
47. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
48. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be awarded
in these proceedings.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pedro Miguel Ruas Machado, is accepted.
2.
The Respondent, FC U Craiova 1948, has to pay to the Claimant, the following amounts:
- EUR 15,500 net as outstanding remuneration plus 5% interest p.a. as from 25 January 2022
until the date of effective payment;
- EUR 30,250 net as compensation for breach of contract plus 5% interest p.a. as from 25
January 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
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:
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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
made by the end of the three entire and consecutive registration periods.
1. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
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