Labour Disputes
Texto da decisão
REF FPSD-4467
Decision of the
Dispute Resolution Chamber
passed on 1 September 2022
regarding an employment-related dispute concerning the player Antonio
Jesus Seoane Ochoa
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
ANDRADE José Luis (Portugal), member
GOMEZ BRUINEWOUD Alexandra (The Netherlands/Uruguay), member
CLAIMANT:
Antonio Jesus Seoane Ochoa, Spain
Represented by Asociación de Futbolistas Españoles
RESPONDENT:
ASD Rotonda Calcio, Italy
Represented by Salvatore Civale
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REF FPSD-4467
I.
Facts of the case
1.
On or around September 2021, the Spanish player Antonio Jesus Seoane Ochoa
(hereinafter: the Claimant) and Italian club ASD Rotonda Calcio (hereinafter: the
Respondent) concluded a document under the heading “Proposal of agreement on
reimbursement of costs for amateur sports activity” (hereinafter: the Contract) in the
following terms (original agreement in Italian, translation into Spanish provided by the
Claimant freely translated into English):
1. The forewords form an integral part of this agreement;
2. Mr. SEOANE OCHOA ANTONIO JESUS undertakes, as a "non-professional" footballer to
participate in the training and competitive activities of the Association.
3. The Association undertakes to provide the player with the necessary conditions for technical
preparation appropriate to his "non-professional" status, in particular with regard to
participation in competitive training and coaching activities;
4. The Association undertakes to reimburse the footballer for his performance of the activities
referred to in Article 2 an annual net flat-rate reimbursement of expenses equivalent to
€ 20,000.00 (twenty thousand) as follows:
a) € 2,220.00 (two thousand two hundred and twenty) per month for 9 monthly instalments
starting from the month of September.
5. Prizes:
a) € 2.000,00 (two thousand) for playing 20 matches (appearances of more than 45 minutes
played);
6. The Association undertakes to guarantee the player (paid for by the club), accommodation
(meals to be paid for by the player).
2.
On 2 November 2021, the Claimant put the Respondent in default for the amount of
EUR 4,400, corresponding to the salaries of September and October 2021 and gave a
deadline of 15 days to comply, to no avail.
3.
On 23 November 2021, the Claimant terminated the Contract adducing just cause.
II. Proceedings before FIFA
4.
On 3 December 2021, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
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a. Position of the Claimant
5.
According to the Claimant, the Respondent had failed to comply with its financial
obligations towards him and, after putting the club in default, he had no other option but
to terminate the contract.
6.
The Claimant states that the Respondent owed him the following amounts:
- € 6,142.00 net, corresponding to the full monthly payments of September and October 2021,
as well as 23 days of the monthly payment of November 2021:
2 full monthly payments x €2,220 net/month = €4,440.00 net.
23 days of the monthly payment for November 2021 = 1.702,00 euros net.
7.
The Claimant filed the following requests for relief:
To accept the present claim in its entirety:
To recognise the amount due and order the Club to pay the Player, in respect of the contract
entered into, the sum of €6,142.00 net.
Order the Club to pay the Player interest at the rate of 5% per annum on the amounts referred
to in the previous paragraph, as specified in point 38 of this application.
Order the Club to pay the Player compensation amounting to €13,838.00 net; as the residual
value of the contract.
Order the Club to pay the Player interest at the rate of 5% per annum on the amount referred
to in the previous paragraph.
b. Position of the Respondent
8.
According to the Respondent, the DRC does not have jurisdiction to hear the present
dispute.
9.
In the view of the Respondent, “the parties have never signed a labour – employment contract
between them but rather just a reimbursement of costs agreement by virtue of which the
Respondent obliged itself to refund the Player some of the costs he afforded”.
10. The Respondent refers to the Italian Sports Law No. 1981/91 and sustains that in
accordance with the said national law, “amateur players are those who play for a club
belonging to the National Amateurs League (Lega Nazionale Dilettanti). They do not have an
employment agreement, but rather an economic agreement concerning the reimbursement of
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their transfer and training costs by the club. Such agreements can also allow for a lump sum
which may be up to EUR 25,822 (gross) on a yearly basis”.
11. The Respondent submits the relevant provisions of National Amateur League Regulation
as well as of the Internal Organizational Standards of F.I.G.C. (“N.O.I.F.”) are applicable.
12. In addition to the above, the Respondent argues that according to article 25bis, para. 2 of
the National Amateur League Regulations, the Commissione Accordi Economici Economic Agreements Commission (hereinafter “CAE”) “is the only one exclusive and
competent body to decide, at first instance, on all disputes arising between amateurs’ players
registered with amateurs’ clubs which participate to competitions organized by the Lega
Nazionale Dilettanti - National Amateur League”.
13. The Respondent underlines that the CAE, is constituted according to the FIFA
requirements of “existence of an independent arbitration tribunal” and “guaranteeing fair
proceedings”.
14. Thus, the Respondent argues that the competent body to decide the CAE or, in the
alternative, the Ordinary Civil Tribunal of Lagonegro.
15. As for the substance the Respondent states that the “refund of costs” for the amateur
player was possible to be paid only if the Player in question would have actually afforded
these costs for the stay in the location where the Club is located at that time
(accommodation costs, travels, transportation, car, insurances, etc..) and without the
evidence of costs no reimbursement is possible and can be invoked by the Player.
16. The Respondent further argues that as there was no employment relationship, “the Player
cannot invoke to have terminated a contract which, actually, does not exist.”
17. The Respondent also states that the notice of termination “was never addressed or received
by the Club”. The Respondent adds that “the Player left the Club and Italy arguing to have
had an injury and never returned to the Respondent”.
18. The Respondent requested the DRC as follows:
- Declare its lack of jurisdiction in favor of the CAE - Economic Agreement Commission of the
National Amateur League – LND or, on a subordinate basis, in favour of the Ordinary Civil
Tribunal of Lagonegro and, as a consequence, declare the claim at stake as inadmissible;
Or on a subsidiary basis
- Reject the claim in full on the merit for the reasons above mentioned,
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- Mitigate the compensation taking into consideration the contract signed with the Spanish
Club CD BARCO and in any case specifies that this amount is GROSS included of taxes, as for
the applicable provision of the Italian Tax Law.
c. Replica of the Claimant
19. The Claimant states that “at no point in the Contract does the relationship between the two
parties become subject to Italian law”.
20. In the view of the Claimant, the Club tries to confuse the DRC “by claiming that the "CAE" is
an independent arbitral tribunal that guarantees a fair process. With all due respect, the
present proceeding does not whether or not the "CAE" meets the requirements set by FIFA for
National Chambers. As mentioned above, there is no submission clause in the Contract.
Therefore, as this is an international relationship, the FIFA DRC is definitely competent.”
21. The Claimant states that “the Club paid the same fixed amount to the Player on a monthly
basis (an amount which, by the way, is rather high for a mere compensation of expenses)”.
22. For the above, the Claimant requests “the FIFA Dispute Resolution Chamber to reject the
allegations submitted by the Club in their entirety; and to accept the initial claim submitted by
the Player in its entirety.”
d. Duplica of the Respondent
23. The Respondent reiterates that “Mr. Ochoa is an amateur Player, in Italy the regulation
adopted to regulate the employment relationship in sport is the Law No. 1981/91.”
24. The Respondent states that “accordance with article 25bis, para. 2 of the National Amateur
League Regulations, the Commissione Accordi Economici - Economic Agreements Commission
(hereinafter “CAE”) is the only one exclusive and competent body to decide, at first instance, on
all disputes arising between amateurs’ players registered with amateurs’ clubs which
participate to competitions organized by the Lega Nazionale Dilettanti - National Amateur
League”.
25. The Respondent further states that “the Player has not provided proof of expenses incurred
during the period in which he played for the Club, and therefore, being a simple reimbursement
of expenses, it is clear that without proof of expenses no reimbursement is possible”.
26. In the view of the Respondent “the Claimant’s bad faith is highlighted as he did not comply
with the request made by the Club to disclose all documentation linked to the signature of the
employment contract with CD BARCO (Spain), including sign-on fee, bonuses, sponsorship
contracts, fees paid to agents involved and any other payment within this concept”.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 3 December 2021 and
submitted for decision on 1 September 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.
28. Subsequently, the members of the Chamber 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 (July 2022 edition), the Dispute
Resolution Chamber is, in principle, competent to deal with employment-related disputes
with an international dimension. Nevertheless, parties may explicitly opt in writing for
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. 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. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
29. At this point, the DRC referred to the Respondent’s challenge of the competence of the
DRC based on two causes: the amateur status of the Claimant and the consequent
absence of an “employment-related dispute”; and the competence of “the CAE or, in the
alternative, the Ordinary Civil Tribunal of Lagonegro”.
30. As for the first argument, the DRC observed that despite the heading of the Contract, the
Contract undoubtedly contains intrinsic elements of an employment relationship such as
remuneration, additional benefits and performance bonuses. Thus, the Chamber, in line
with its standard and consistent jurisprudence, was convinced that the parties had an
employment relationship and therefore, the present dispute constitutes an “employmentrelated dispute”.
31. As for the second assertion, the Chamber noted that the Contract does not contain any
jurisdiction clause or reference whatsoever in favour of neither the COE nor the local civil
or labour courts.
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32. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an independent arbitration tribunal or the local courts
was not met, and therefore, without the need to enter the analysis of any further
requirement, it established that the Respondent’s objection to 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. 22 par. 1 lit. b) of the Regulations, to consider the present
matter between a Spanish player and an Italian club as to the substance.
33. 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 (July 2022 edition) and
considering that the present claim was lodged on 3 December 2021, 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
34. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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
35. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
i. Main legal discussion and considerations
36. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the justice of the early
termination of the contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the Contract, in accordance with art. 14bis
of the Regulations.
37. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
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unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of
the Regulations had in fact been fulfilled.
38. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
39. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to the salaries from September and October 2021. Furthermore, the
Chamber noted that the Claimant has provided written evidence of having put the
Respondent in default on 2 November 2021, i.e. at least 15 days before unilaterally
terminating the contract on 23 November 2021.
40. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. Nonetheless, the evidence provided by the Respondent does not
prove beyond doubt the payment of the amounts claimed as outstanding by the Claimant.
41. Conversely, the Respondent adduces that the Claimant was solely entitled to the
reimbursement of expenses incurred. In this regard, the Chamber referred to the wording
of the Contract and observed that the Contract provides for a “flat-rate reimbursement of
EUR 2,220 per month starting from the month of September” without any further condition
or requisite. The Chamber was therefore convinced that despite the nomen iuris stated in
the Contract, the parties agreed a monthly salary of EUR 2,220 and therefore the
argument of the Respondent had to be rejected.
42. Furthermore, the Respondent adduced that the Claimant left the Respondent due to an
injury and never returned. In this respect, the DRC referred to art. 13 par. 5 of the
Procedural Rules and underlined that no supporting evidence has been submitted in that
regard.
43. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
44. 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.
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45. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to three salaries
(i.e. September to November 2021) under the contract, amounting to EUR 6,660.
46. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the
amounts which were outstanding under the contract at the moment of the termination,
i.e. EUR 6,660.
47. 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 the respective due dates until
the date of effective payment.
48. Having stated the above, the Chamber 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
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 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.
49. In application of the relevant provision, the Chamber held that it 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 Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
50. As a consequence, the members of the Chamber 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 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.
51. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber
concluded that the amount of EUR 13,320 (i.e. the salaries from December 2021 to
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May 2022) serves as the basis for the determination of the amount of compensation for
breach of contract.
52. In continuation, the Chamber 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.
53. In this respect the Chamber observed that the parties had conflicting positions. According
to the Respondent, the player had found new employment with the Spanish club C.D.
Barco. On the other hand, the Claimant sustained that he had not signed any new
employment contract.
54. The Chamber observed that based on the information available on TMS, a transfer
instruction was entered on 14 January 2022 by C.D. Barco. However, the Chamber further
noted that the said transfer instruction was cancelled by the Italian Football Federation
(FIGC) on 17 January 2022 and at the date of the decision, the Claimant’s International
Transfer Certificate (ITC) remains with the Respondent. Based on the foregoing, the
Chamber found that since there was no sufficient evidence that the Claimant had found
new employment, no mitigation may be applied.
55. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 13,320 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
56. 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 3 December 2021, the date of claim, until the
date of effective payment.
iii. Compliance with monetary decisions
57. Finally, taking into account the applicable Regulations, the Chamber 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.
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58. 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. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
59. 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. 24 par. 2, 4, and 7 of the Regulations.
60. 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.
61. 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. 24 par. 8 of
the Regulations.
d. Costs
62. The Chamber 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 Chamber decided that no procedural costs were
to be imposed on the parties.
63. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
64. 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, Antonio Jesus Seoane Ochoa, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, ASD Rotonda Calcio, has to pay to the Claimant, the following amount(s):
- EUR 6,660 as outstanding remuneration plus 5% interest p.a. as follows:
On EUR 2,220 from 1 October 2021 until the date of effective payment;
On EUR 2,220 from 1 November 2021 until the date of effective payment;
On EUR 2,220 from 1 December 2021 until the date of effective payment;
- EUR 13,320 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 3 December 2021 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
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:
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 of the ban
shall be of up to 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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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