Labour Disputes
Texto da decisão
REF 20-01458
Decision of the
Dispute Resolution Chamber
passed on 28 January 2021,
regarding an employment-related dispute concerning the player Omar Santana Cabrera
COMPOSITION:
Clifford J. Hendel (USA / France), Deputy Chairman
Stéphane Burchkalter (France), member
Todd Durbin (USA), member
CLAIMANT:
Omar Santana Cabrera, Spain
Represented by Asociación de Futbolistas Españoles (AFE)
RESPONDENT:
Miedz Legnica, Poland
Page 2 of 8
REF 20-01458
I. FACTS OF THE CASE
1.
On 22 December 2019 the Spanish player, Omar Santana Cabrera, (hereinafter: the Claimant or
player), and the Polish club, MKS Miedz Legnica, (hereinafter: the Respondent or club) concluded
an employment contract valid as from 1 January 2020 until 30 June 2020 (hereinafter: the
contract), according to which the Respondent undertook to pay the Claimant a monthly salary of
EUR 625 gross as well as a “monthly prize (…) up to the amount” of EUR 6,405 gross “for sport
performance”.
2.
As per clause 9.7. of the contract, “Any disputes concerning the validity, existence or termination
of the Contract shall be settled by the Sports Dispute Settlement Chamber, a body of the Polish
Football Association jurisdictional authority. Any disputes concerning property rights and moral
rights which may arise out if the creation, validity, execution and termination of the Contract,
arising in connection with the organization and practice of football, shall be settled by the Court
of Arbitration of the Polish Football Association. Dispute arising in connection with the
implementation of this Contract shall be subject to settlement by the jurisdictional bodies of the
Polish Football Association.”
3.
On 14 May 2020, the parties “signed the annex no. 1” of the contract (hereinafter: Annex no. 1
of the contract), which provided that “Taking into account the sports results achieved by the
Player in the spring of 2020, MKS [the club] grants the Player an additional one-time award for
sports achievements, to be paid in accordance with § 5 par. 5 of the Contract, reasonable by
special commitment to the work and to achieve good effects of sports, up to the net amount of
PLN 26.665,00 (say: twenty six thousand six hundred sixty five Polish zloty). The awarded prize
shall be paid to the player by transfer to his bank account in a Polish bank, until 30.06.2020.”
4.
On 25 June 2020, the parties extended the contract until 31 July 2020 (hereinafter: Annex no. 2
of the contract) according to which the player will receive a monthly salary in the amount
“constituting the equivalent in Polish currency of EUR 620,00 gross (…)”.
5.
On 19 August 2020, the player sent a default notice to the Respondent by means of which he
requested, in accordance with art. 12bis of the RSTP, the amount of EUR 4,800 to be paid within
10 days,
6.
On 8 October 2020, the Claimant lodged a claim against the Respondent in front of FIFA, claiming
outstanding remuneration in the amount of EUR 4,800 plus 5% interest p.a. as of the due dates
as well as the imposition of a sanction on the Respondent in accordance with art. 12bis of the
Regulations.
7.
The player stated that according to clause 5 of the contract he was entitled to a monthly salary of
EUR 6,000 net as of January until June 2020.
Page 3 of 8
REF 20-01458
8.
The player maintained that his salaries of March 2020, in the amount of EUR 1,800 net, and April
2020, in the amount of EUR 3,000 net, have not been paid by the club. Therefore, the amount of
EUR 4,800 net remains outstanding towards him.
9.
In its reply to the claim, the club firstly pointed out that the contract contained a jurisdiction clause
in favour of the Court of Arbitration of the Polish Football Association. In this regard, the
Respondent stated the following:
“The Club points out, in the first place, that the Professional Football Player Contract in force
between the parties, signed on December 22, 2019 provided that any disputes concerning
property rights and moral rights which may be subject to settlement and which may arise out of
the start, validity, execution and termination of the Contract, arising on the occasion of the
organization and practice of football, shall be settled by the Court of Arbitration of the Polish
Football Association (§ 9 section 7 of the Contract).”
10. Moreover, the club stated that the parties extended the duration of the contract until 31 July
2020, and that it undertook to pay the player a monthly salary in the amount of Polish currency
equivalent of EUR 620 gross. In addition, the plyer could receive a prize for athletic performance
and outstanding achievements in sports from the club, up to an amount of the Polish currency
equivalent of EUR 7,030 gross per month.
11. Furthermore, the club denied the player’s allegation regarding his requests of EUR 4,800 as
outstanding remuneration for the alleged unpaid salaries of March and April 2020.
12. The club further held that as of March until early May 2020, during the lockdown due to the
Covid-19 pandemic in Poland, the leagues competitions were suspended. Therefore, “the player
obligation were not performed”.
13. According to the club, the Polish first football league recommended, “to limit salaries temporarily
(until the end of 2019/2020 season but not before June 30, 2020) by 50% of the total salary. At
the same time clubs indicated that the salary of PLN 4,000 gross would be the amount considered
to be the minimum”
14. It further stated that, nonetheless the above-reached agreement, the club decided to reduce its
staff salaries, players included, up to 30% for March 2020 and up to 50% for April 2020 and
pointed out that the applied reduction “was not a unilateral change. It was a joint decision of
both parties to the contract”, and added that the reduction was agreed with the captain,
representing the entire team.
15. What is more, the club wanted to point out that after having concluded, on 14 May 2020, the
annex no. 1 of the contract, the club, in accordance with clause 1 of annex no. 1 of the contract,
paid, on 30 June 2020, PLN 26,665 to the player as “one-time award for sports achievements”.
16. Finally, the club, in response to the player’s claim, stated that it “should be dismissed in its entirety
as wholly unfounded.”
Page 4 of 8
REF 20-01458
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed
whether it was competent to deal with the case at hand. 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
confirmed that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is in principle
competent to deal with the matter at stake, which concerns an employment-related dispute with
an international dimension between a Spanish player and a Polish club.
3.
However, in relation to this, the Chamber noted that the Respondent considered that the matter
shall be decided by the Court of Arbitration of the Polish Football Association in view of the
content of clause 9.7. of the contract, which stipulates the following:
“Any disputes concerning the validity, existence or termination of the Contract shall be settled by
the Sports Dispute Settlement Chamber, a body of the Polish Football Association jurisdictional
authority. Any disputes concerning property rights and moral rights which may arise out if the
creation, validity, execution and termination of the Contract, arising in connection with the
organization and practice of football, shall be settled by the Court of Arbitration of the Polish
Football Association. Dispute arising in connection with the implementation of this Contract shall
be subject to settlement by the jurisdictional bodies of the Polish Football Association.”
4.
Taking into account all the above, the DRC emphasized that in accordance with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players he is competent to deal with a matter such
as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings
and respecting the principle of equal representation of players and clubs, has been established
at national level within the framework of the association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the DRC referred to the FIFA Circular no. 1010 dated 20
December 2005. Equally, it referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
5.
Equally, the Chamber reminded the parties of the contents of art. 12 par. 3 of the Procedural
Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry
the burden of proof”.
6.
In application of the aforementioned provision, the DRC understood that, in the matter at stake,
it is up to the Respondent to prove that the Court of Arbitration of the Polish Football Association
Page 5 of 8
REF 20-01458
effectively guarantees fair proceedings and respects the principle of equal representation of
players and clubs.
7.
In this respect, and after observing the evidence provided by the parties, the Chamber noted that
the Respondent did not provide any evidence on the effective and actual composition of the
Court of Arbitration of the Polish Football Association, or that said body effectively guarantees
fair proceedings and respects the principle of equal representation of players and clubs.
8.
In view of the above, the Chamber arrived to the conclusion that, from the evidence on file that
was gathered within the course of the present investigation, it cannot follow the Respondent’s
arguments as to its lack of jurisdiction. The DRC is, therefore, competent to hear the present
matter in accordance with art. 22 b) of the Regulations on the Status and Transfer of Players.
9.
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 October 2020), and considering that the
present claim was lodged on 8 October 2020, the January 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
10. The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In doing so, the DRC continued by
acknowledging the above-mentioned facts as well as the documentation contained in the file in
relation to the substance of the matter. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence which it
considered pertinent for the assessment of the matter at hand.
11. In this respect, the Chamber noted that, on 22 December 20219, the parties concluded a
contract, according to which the Respondent undertook to pay the Claimant a monthly salary of
EUR 625 gross as well as a “monthly prize (…) up to the amount” of EUR 6,405 gross “for sport
performance”.
12. Subsequently, the DRC observed that the Claimant lodged a claim before FIFA claiming
outstanding remuneration in the amount of EUR 4,800 plus 5% interest p.a. as of the due dates.
13. The Chamber further observed that, as to the calculation of the amount requested, the Claimant
held that according to clause 5 of the contract he was entitled to a monthly salary of EUR 6,000
net as of January until June 2020 and that his salaries of March 2020, in the amount of EUR
1,800 net, and April 2020, in the amount of EUR 3,000 net, were not paid by the club. Therefore,
the amount of EUR 4,800 net remains outstanding.
14. In this respect, the Chamber noted that player provided proof of monthly salaries paid by the
club in PNL. In particular, the player provided proof of payments made by the club as of February
until July 2020. According to these documents, the DRC observed that the club has always paid
the player almost the same amount for each monthly salary, amounting approx. to PLN 26,000,
Page 6 of 8
REF 20-01458
except for the months of March and April 2020, where the club paid respectively PLN 19,123.20
and PLN 13,629.25.
15. Conversely, the Chamber noted that, the Respondent denied the player’s allegation regarding
his requests of EUR 4,800 as outstanding remuneration for the alleged unpaid salaries of March
and April 2020 and pointed out, inter alia, that after having concluded, on 14 May 2020, the
annex no. 1 of the contract, the club, in accordance with clause 1 of annex no. 1 of the contract,
paid, on 30 June 2020, PLN 26,665 to the player as “one-time award for sports achievements”.
16. In continuation, the DRC noted that the player based his claim on the monthly amounts he should
receive in accordance with clause 5 of the contract, in particular to clause 5.6 of it.
17. What this in mind, the Chamber focused his attention on clause 5.6 of the contract, which reads
as follows: “The player shall have the right to receive a monthly prize specified in Paragraph 5 for
sport performance, up to the amount constituting the equivalent in Polish currency of the amount
of EUR 6.405,00 gross (…)”
18. After having analysed the aforementioned clause, the Chamber deem that the club, despite
having paid almost the same amount for each monthly salary to the player, by paying slightly less
in March and April 2020 (i.e. PLN 19,123.20 and PLN 13,629.25) did not breach the contract,
given that according to clause 5.6 it had to pay the player a monthly prize “up to” an “amount
constituting the equivalent in Polish currency of the amount of EUR 6.405,00 gross”.
19. The DRC, in light of the above considerations, concluded that the Respondent, by paying up to
PLN 19,123.20 in March 2020 and up to PLN 13,629.25 in April 2020, complied with its financial
obligations towards the player in accordance with the contract.
20. On account of the above, the DRC concluded that the Claimant’s claim has to be rejected.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Omar Santana Cabrera, is admissible.
2.
The claim of the Claimant is rejected.
3.
The decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 7 of 8
REF 20-01458
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
Page 8 of 8