Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 27 February 2020,
in the following composition:
Clifford Hendel (US A), Deputy Chairman
Roy Verm eer (The Netherlands ), member
S tefano La Porta (Italy ), member
on the claim presented by the player,
Carlos Manuel S antos Fortes , Portugal,
represented by Messrs Luis Cassiano Neves & Bernardo Morais Palmeiro
as Claimant
against the club,
CS Gaz Metan Medias , Romania,
represented by Ms Anca Alina Iordanescu
as Respondent
regarding an employment-related dispute between the parties
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I.
Facts of the cas e
1.
On 19 July 2018, the player Carlos Manuel Santos Fortes (hereinafter: “the player or the
Claimant”) and the club CS Gaz Metan Medias (hereinafter: “the club or the
Respondent”) signed an employment contract (hereinafter: “the contract”) valid as
from 1 July 2018 until 30 June 2020.
2.
According to art. 4 of the contract the player earned a net monthly salary of EUR 6,000,
the payment of these amount will be made every month for the activities performed in
the previous month until the 20 th of each month.
3.
According to art. 4.2.2. of the contract, the club will pay the player EUR 500 net for each
goal scored, assist or penalty “removed”. According to the contract, this payment will
be paid in two rates, the first until 01 February 2019 and the second until 30 June 2019.
4.
According to the contract, the club had to provide accommodation to the player during
the performance of the contract at the stadium hotel or to give him the payment of the
rent amounting to EUR 200 net every month in accordance with letter “m” which states
that the club has to reimburse to the player, based on justifying documents the amount
he paid for covering.
5.
According to art. XI of the contract, “this agreement will be governed and interpreted
according to the Law of physical education and sport no. 69/2000, to the Civil Code, to
the Regulations on the Status and Transfer of Football Players, to the Law regarding the
Fiscal code and to the Regulations of FRF and FIFA”.
6.
Art. XI of the contract, further stated that the conflicts related to the execution,
performance, modification, suspension or termination will be solved in the following
order of proceedings:
“Amiably;
As litigations, considering that the competence to solve such litigations belongs to the
arbitration courts of sports, that is the competent committees of FRF and/or LPF,
depending on the case and TAS, excepting those that belong exclusively to the
competence of the courts of law, under the law”.
7.
On 1 February 2019, the club, the player and U Craiova 1948 Club Sportiv S.A.
(hereinafter: “Craiova”) signed a tripartite transfer agreement (hereinafter: “the
transfer agreement”) in which the club transferred the player to Craiova “for an
indefinite period starting on 01.02.2019”.
8.
According to art. 3 c) of the transfer agreement, “The Club and the player know that
with the signing of this agreement, any mutual obligations cease (in the event of
definitive transfer) except for the obligations provided for in this agreement ”.
9.
According to art. 5 of the transfer agreement, the parties undertake to comply with and
apply the provision of Romanian Football Federation (FRF) regulations in force on the
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status and transfer of football players (hereinafter: “the National RSTP”). The dispute
arising from or in connection with this transfer agreement shall be solely settled by the
courts of law provided by the Statute of FRF.
10.
On 1 April 2019, the player put the club in default of EUR 8,700 (1 month salary, bonus
for 5 goals and one month’s rent) granting 15 days to remedy the default.
11.
On 16 April 2019, the player sent an email with a second notification whereby he
informed that as the 15 days has elapsed, he was “initiating proceedings against the
Club before FIFA”.
12.
On 7 June 2019, the player lodged a claim against the club before FIFA, the player
requested the amount EUR 8,700 and to pay interest for late over the amounts due as
follows:
5% p.a. over EUR 6,000 as from 20 February 2019 until effective payment;
5% p.a. over EUR 2,500 as from 1 February 2019 until effective payment;
5% p.a. over EUR 200 as from 1 February 2019 until effective payment.
13.
In his claim the player further requested the imposition of “appropriate sanctions” and
the intervention of FIFA on the basis of the Art 12bis RSTP.
14.
The player claims that as a result of the transfer agreement signed, the contract was
terminated as of 1 February 2019. The player claims that since the transfer agreement does
not include any reference or statement regarding outstanding amounts, the player did not
in any way relinquish his rights regarding, payable and outstanding remunerations payable
until 1 February 2019. In this sense, the player claims that since the effects of the transfer
agreement took place as of 1 February, the club was till “contractually required to pay all
amount due until such date”.
15.
The player further explained that the amounts due were outstanding for more than 30 days
and provided the following:
EUR 6,000 should have been paid at the lasts by the end of February;
EUR 2,500 in goal bonuses should have been paid at the moment of termination;
EUR 200 in the last month’s rent should have been the moment the player covered the
payment and provide the club with the supportive documents.
16.
Furthermore the player deemed, as he granted a deadline exceeding 10 days, it should be
considered that the club has overdue payables in the sense of Art 12bis RSTP. Finally, the
player claims that the club never indicated, either orally or in writing, that it did not owe
these amounts.
17.
The club contested the competence of FIFA, arguing that there was a direct reference to
arbitration contained in the contract and in the transfer agreement.
18.
According to the club there is an independent arbitration tribunal established in Romania,
the National Dispute Resolution Chamber (hereinafter: “the CNSL”). The club claims that the
jurisdiction of the independent arbitration tribunal derives from a clear reference in the
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employment contract, i.e. art. XI of the contract. Additionally, the club also stated that the
jurisdiction of the independent arbitration tribunal derives from the clear reference in the
transfer agreement, i.e. art. 5.
19.
According to the club, the CNSL guarantees fair proceedings and respects the principle of
equal representation of players and clubs. In this sense the club stated the following:
The CNSL is composed of 5 member with a four-year renewable mandate;
Chairman chosen by consensus by player and club representatives from a list of at least 5
people drawn up by the Executive Committee of FRF;
Two player representatives appointed on the proposal of the players association, one of
them also being deputy chairman;
Two club representatives appointed on proposal of Executive Committee of FRF;
All member should have a legal degree with at least 8 years’ experience.
20.
According to the club, as provided by art. XI of the contract and 5 of the transfer agreement,
applicable law is Romanian law and Regulations of the FRF.
21.
According to the club, “none of the regulation cannot have priority over the obligation of
the respondent to comply with the requirements of the insolvency law”. The club claims that
since 25 October 2016, the club’s activity has become strictly subject to the provision of the
Insolvency law as well as to the resolutions of the competent jurisdiction. On 27 April 2017,
the syndic judge issued a civil judgment pursuant to which the Reorganisation Plan of
the club was confirmed and it was ordered to continue the activity under management
of the official receiver for and subject to his surveillance.
22.
The club claims that in accordance with art. 36 of the Insolvency Law “from the date of
opening the procedure is suspended of right of all the judicial actions, extrajudicial or
measures of forced enforcement for the performance of the receivables on the debtor or his
assets”. The club claims that art. 36 covers all actions for the settlement of claims against the
debtor or his assets and that art. 36 operates is an imperative rule, which aims at
concentrating all disputes concerning the debtor’s estate in the sole competence of the
syndic judge.
23.
With regard to the substance of this case, the club argued that by signing the transfer
agreement, the player explicitly recognized that all obligations are to be terminated as of
the 1st of February 2019, the notion of “any mutual obligations” encompasses all the
obligation provided by the contract, including the financial ones.
24.
In this context, the club argued that one of the applicable provision is art. 18 par. 6 of the
National RSTP, “any material or financial contractual obligations of the club towards the
Player or of the player towards the club shall cease on the signing date of the terminations
agreement, except for the obligations stipulated in the respective agreement”.
25.
Finally, the club requests the following:
DRC to decide that it is not competent to deal with the claim lodged by the Claimant and
To decide that the claim of the claimant is inadmissible or to dismiss his claim.
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26.
According to the player, the current dispute does not arise from the transfer agreement but
rather from the contract. The player stated that the transfer agreement (which resulted in
the termination of the contract) does not make any reference to outstanding amounts.
27.
With regard to competence, the player stated the following:
a) Art. XI of the contract is deeply flawed as it fails to provide any certainty and clarity which
arbitration court has been chosen. Said article basically establishes a commission of the
FRF and arts. 41 and 42 of the FRF statutes set forth the commissions organised under the
auspices of the FRF. The player stated that neither art. 41 nor art. 42 contain a reference
to the CNSL. Art 43 of the FRF statutes sets out the list of FRF “tribunal” and the CNSL is
listed as one of such, consequently the player stated that art. XI “wrongfully attributed
competence to the FRF “commissions” which do not include the Romanian NDRC”;
b) the DRC cannot be set aside by a jurisdiction clause that can only be deemed as
“pathological”, he quoted CAS 2014/A/3864 and stated that “the parties did not explicitly
determine a certain national body was competent to examine, the clause merely
mentions multiple alternatives”. According to the player, the DRC should be under no
doubt that art. XI of the contract is a pathological clause that does not meet the
regulatory jurisdiction resulting from art. 22 b) of the FIFA Regulations on the Status and
Transfer of Players (RSTP).
28.
In regards to applicable law, the player stated that the RSTP applies primarily and FIFA shall
not be bound by national law and national law is only taken into account to “assist with the
primary application of the RSTP”.
29.
Moreover, the player argued that the club never denied owing the claimed amounts.
Consequently, the player reiterated his request for relief.
30.
According to the club, the remuneration for January 2019 was not due on the date of the
transfer agreement (1 February 2019). Pursuant to art. 4 of the contract the remuneration
for January 2019 should have become due on 20 February 2019.
31.
The club claims that the bonus for goals was not due on the date of the transfer agreement,
according to Art 4.2.2 there are two due dates (01.02.2019 & 30.06.2019) for this type of
bonus and none of the them was set before the termination of the agreement.
32.
In regards to the rent, the club states that no justifying documents were attached to the
claim nor were forwarded to the club before or after conclusion of the transfer agreement,
therefore the amount corresponding to January’s rent is not proven and could not become
due before 1 February 2019.
33.
The club claims that the transfer agreement was drafted and mutually agreed between the
parties, as such the player was not prevented in any way to include, if he believed to be
entitled to, the claim subject to the current affair.
34.
According to the club, the player did not “effectively work” for the club during the month
of January 2019. The club states that the team reunited on 12 January 2019 for a training
camp and at that time negotiations were already under way. Furthermore, the club argued
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that on 16 January the player wrote an email in which he stated that he was required to
return to Portugal to provide urgent assistance to his wife. According to the club the player
was told that he was expected at the club premise starting on 31 January 2019.
II.
Cons iderations 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. In this respect, it took
note that the present matter was submitted to FIFA on 7 June 2019. Consequently, the 2018
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: “the Procedural Rules”) is applicable to the matter
at hand (cf. art. 21 of the Procedural Rules).
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 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is
competent to deal with employment-related disputes with an international dimension
between a player and a club.
3.
Notwithstanding the above, the members of the Chamber acknowledged that the
Respondent contested the competence of FIFA arguing that pursuant to art. XI of the
contract and art. 5 of the transfer agreement the NDRC in Romania (hereinafter: “the CNSL”)
was the competent tribunal to enter into the substance of this matter.
4.
To start with, the Chamber pointed out that the matter at stake concerns overdue payables
in connection to the contract. Therefore, the DRC concluded that only the relevant clauses
in the contract at the basis of the present dispute should be examined to establish which it
would be the competent body to enter and decide the present dispute.
5.
In this respect, the DRC recalled that an arbitrational clause was indeed included in art. XI
of the contract which states inter alia that, “Amiably; As litigations, considering that the
competence to solve such litigations belongs to the arbitration courts of sports, that is the
competent committees of FRF and/or LPF, depending on the case and TAS, excepting those
that belong exclusively to the competence of the courts of law, under the law”.
6.
However, the Chamber pointed out that in case the parties would not reach an amicably
settlement, art. XI of the contract did not explicitly determine a specific national body
having competence to examine the dispute to the exclusion of the competence of all other
bodies which might be invoked. The DRC underlined that to the contrary, the relevant clause
referred to different tribunals, i.e. “… arbitration courts of sports … or courts of law…”,
providing different choices of jurisdiction.
7.
As a result of the aforementioned, the Chamber concluded that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected, and that
the Dispute Resolution Chamber is competent, on the basis of art. 24 par. 1 in combination
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with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the
present matter as to the substance.
8.
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 Players, and considering that the
present claim was lodged on 7 June 2019, the June 2019 edition of said regulations
(hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.
9.
The competence of the Chamber and the applicable regulations having been established,
the Chamber entered into the substance of the matter. 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.
10.
In this respect, the Chamber recalled that the Claimant and the Respondent concluded the
contract valid from 1 July 2018 until 30 June 2020, according to which the player was entitled
to the remuneration specified in points I. 2, I.3 and I.4 above.
11.
Moreover, the DRC acknowledged that on 1 February 2019, the Claimant, the Respondent
and Craiova, i.e. the new club of the player signed the transfer agreement.
12.
Subsequently, the Chamber noted that the Claimant lodged a claim against the Respondent
requesting outstanding remuneration (one monthly salary, bonuses and accommodation
fees) allegedly due by the Respondent before the signature of the transfer agreement for a
total amount of EUR 8,700.
13.
At this stage, the Chamber took note that both parties maintained dissent positions. On the
one hand, the Respondent held that by signing the transfer agreement, the player
recognised that as of 1 February 2019 all contractual obligations between the Claimant and
the Respondent were mutually terminated.
14.
On the other hand, the DRC acknowledged the Claimant´s position which maintained that
the present claim was solely based in the contract and that the transfer agreement did not
include any waiver of his rights to claim outstanding remuneration until 1 February 2019.
15.
The DRC focussed its attention to the content of the transfer agreement and confirmed that
it included one provision, i.e. art. 3, which states “The Club and the player know that with
the signing of this agreement, any mutual obligations cease (in the event of definitive
transfer) except for the obligations provided for in this agreement”.
16.
In this context, the DRC underlined that, as a general rule, a waiver of rights should be
written in a very clear and precise way since it has a direct impact in the parties´ rights.
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17.
In view of the above, the Chamber was of the opinion that from the wording of the art. 3
of the transfer agreement it could not be concluded that the player waived his right to
receive the remuneration gained before the signature of the transfer agreement.
18.
For the sake of good order, the DRC emphasised that if the real intention of the parties was
to waive rights in favour of the Claimant, the clause should have been written in a clearer
way, specifying for instance, which monthly salaries, bonuses or other remuneration were
included in the waiver.
19.
As a consequence, the members of the Chamber concluded that by signing the transfer
agreement the Claimant did not renounce to receive outstanding remuneration accrued
before the 1 February 2019 based on the contract.
20.
In continuation, the DRC focused its attention to the remuneration claimed by the Claimant.
21.
First, the DRC observed that the Claimant was requesting EUR 6,000 as outstanding salary
related to the month of January 2019.
22.
In this respect, the DRC observed that the Respondent argued that the player did not render
services to them during the month of January 2019. However, the Chamber noted that the
Respondent did not include enough evidence proving that the Claimant breached his
contractual obligations.
23.
The Chamber stated that in January 2019, the Claimant was still an employee of the
Respondent and that, in accordance with the general principle of pacta sunt servanda which
in essence means that agreements must be respected by the parties in good faith, the
Respondent must fulfil the obligations it voluntarily entered into with the Claimant by
means of the contract.
24.
Therefore, the DRC concluded that the Respondent should pay to the Claimant the monthly
salary of January 2019 amounting to EUR 6,000. In addition, the DRC took note that the
Claimant had requested interest over the outstanding amount.
25.
In view of the above, the DRC decided to grant the player the amount of EUR 6,000 as
monthly salary corresponding to January 2019, as well as, an annual interest at a rate of 5%
applicable from 20 February 2019 until the date of effective payment.
26.
In continuation, the Chamber turned its attention to the Claimant´s request for EUR 2,500
representing bonuses.
27.
In this respect, the DRC underlined that art. 4.2.2. of the contract established the obligation
to pay bonuses to the Claimant for achieving certain objectives.
28.
Furthermore, the Chamber acknowledged that the Claimant provided evidence of reaching
the relevant objectives which triggered the payment of the requested bonuses. The
Chamber further noted that the Respondent did not contest the evidence provided by the
Claimant.
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29.
However, the DRC focussed its attention to the Respondent´s allegation that the Claimant
was not entitled to receive the requested amount since the due dates for payments of
bonuses were until 1 February 2019 and 30 June 2019 respectively.
30.
In this regard, the members of the Chamber were of the opinion that since the objectives
mentioned in the art. 4.2.2. of the contract were achieved by the Claimant during the
employment relationship with the Respondent, the Claimant should be entitled to receive
the relevant bonus despite the fact that the due dates were set by the parties after 1
February 2019.
31.
In view of the above, the DRC decided that the Claimant was entitled to receive the amount
of EUR 2,500 as bonus plus an interest at a rate of 5% per annum from 2 February 2019 until
the date of effective payment.
32.
Finally, the Chamber turned its attention to the Claimant´s request for EUR 200 as
accommodation fees.
33.
In this respect, the DRC noted that, in fact, it was contractually agreed by the parties that
the club should provide accommodation or reimburse the costs paid in this regard by the
player. Moreover, the DRC pointed out that said contractual clause required as a condition
to receive the relevant reimbursement, that the Claimant should provide documentary
evidence to the Respondent proving having paid the accommodation fees.
34.
In this regard, the Chamber noted that the Claimant did not provide evidence regarding the
payment of accommodation.
35.
Therefore, the DRC concluded that the Claimant´s request for EUR 200 as accommodation
fees should be rejected in accordance with the art. 12 par. 3 of the Procedural Rules.
36.
Furthermore, taking into account the consideration under point II./8. 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.
37.
In this regard, the Chamber pointed out 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.
38.
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, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
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consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
39.
Finally, the Chamber 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. 3 of the Regulations.
40.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the parties are rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Carlos Manuel Santos Fortes, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, CS Gaz Metan Medias, has to pay to the Claimant outstanding
remuneration in the amount of EUR 8,500 plus interest as follows:
a. 5% p.a. over EUR 6,000 as from 20 February 2019 until effective payment;
b. 5% p.a. over EUR 2,500 as from 2 February 2019 until effective payment.
4.
Any further claim of the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly, preferably to
the e-mail address as indicated on the cover letter of the present decision, of the relevant
bank account to which the Respondent must pay the amounts mentioned under point 3
above.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with
point 3 above to FIFA to the e-mail address [email protected], duly translated, if need be, into
one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amounts due in accordance with point 3 above are not paid by the
Respondent w ithin 45 day s as from the notification by the Claimant of the relevant bank
details to the Respondent, the Respondent shall be banned 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 (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
8.
The ban mentioned in point 7 above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
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9.
In the event that the aforementioned sums are 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 FIFA’s Disciplinary Committee for consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating
the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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