Labour Disputes
Texto da decisão
REF FPSD-4954
Decision of the
Dispute Resolution Chamber
passed on 5 May 2022
regarding an employment-related dispute concerning the player Meleke
Ulrich Sidoine
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Khadija Timera (Senegal), member
Khalid Awad Al-Thebity (Saudi Arabia), member
CLAIMANT:
Meleke Ulrich Sidoine, Côte d'Ivoire
Represented by Anca Mituică
RESPONDENT:
CFR Cluj, Romania
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I.
Facts of the case
1.
On 7 July 2021, the player from the Ivory Coast, Meleke Ulrich Sidoine (hereinafter: player or
Claimant) and the Romanian club, CFR Cluj (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from the date of signature until 30 June
2024.
2.
According to the contract, the Respondent undertook to pay the Claimant, inter alia, the
following amounts:
EUR 10,000 net as monthly salary between 7 July 2021 and 30 June 2022 (12x EUR
10,000);
EUR 12,000 net as monthly salary between 1 July 2022 and 30 June 2023 (12x EUR
12,000);
EUR 14,000 net as monthly salary between 1 July 2023 and 30 June 2024 (12x EUR
14,000).
The salary payments fell due on the “25th day of the next month”.
3.
Art. 7.1 of the contract establishes that, “the player shall”: “t) During a temporary transfer,
the civil convention [contract] shall be suspended and the professional player shall not benefit
from any right stipulated in this convention and its appendices, except the cases CFR club
decides otherwise.”
4.
Further, art. 11.1 of the contract reads as follows:
“This Agreement shall be terminated in the following cases:
[…]
e) The unilateral termination of the agreement without just cause or sports related cause is
forbidden; however, the party in default must pay damages and bear sports penalties in
amount of five million euros net.”
5.
On 1 September 2021, the Respondent, the player and the Romanian club, SC FC Voluntari,
concluded an agreement (hereinafter: loan agreement), according to which the player would
be temporary transferred to SC FC Voluntari for the period between 1 September 2021 until
15 June 2022.
6.
Art. 4 of the loan agreement states:
“4.1. The transferring club (FC CFR 1907 CLUJ SA) undertakes to pay the player, during the
temporary transfer (01.09.2021 - 15.06.2022) the net amount of 4,000 Euros.
4.2. In addition to the amount in point 4.1. above, the player has no financial claims against
the transferring club (FC CFR 1907 CLUJ SA) for the period (01.09.2021 - 15.06.2022).”
7.
On 23 December 2021, the Claimant put the Respondent in default again and requested
payment of EUR 8,000, corresponding to his “reduced” salaries for September and October
2021, within 10 days.
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8.
On 12 January 2022, the Claimant put the Respondent in default again and requested
payment of EUR 12,000, corresponding to his “reduced” salaries for September, October and
November 2021, within 10 days. In this letter, the Claimant warned the Respondent that he
would terminate the contract if his outstanding dues would not be remitted.
9.
The player concluded an employment contract with SC FC Voluntari for the period between
1 September 2021 until 15 June 2022, during the course of the loan.
II. Proceedings before FIFA
10. On 26 January 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
11. In his claim, the Claimant stated that by submitting this claim he wishes to terminate the
contract with the Respondent and he requested payment of the following monies:
EUR 19,225 as outstanding remuneration, corresponding to the “reduced” salary
between September 2021 until 25 January 2022 (4x EUR 4,000 plus January pro rata);
EUR 335,725 as compensation for breach of contract, corresponding to the residual value
of the contract;
Or alternatively, EUR 5,000,000 as compensation, in line with art. 11.1 of the contract.
The Claimant requested payment of 5% interest p.a. as of the “due dates”.
12. Furthermore, the player argued that his salaries remained outstanding, even after he put the
club in default, twice.
13. Moreover, he argued having had just cause to terminate the contract with the Respondent in
accordance with art. 14bis RSTP, since “he could no longer be expected to continue the
employment relationship in good faith”.
b. Position of the Respondent
14. In its reply, the Respondent rejected the claim and alternatively requested to “decrease the
amount of compensation” as it was disproportionate.
15. The Respondent held that the contract was suspended during the period of the loan of the
player and the amounts due to the player are based solely on the agreement.
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16. In this context, the club argued that during the suspension of the contract, the player cannot
terminate the contract, and therefore no compensation can be claimed based on the contract.
17. Furthermore, the club held that the notices sent by the player did not expressly state that he
intends to terminate the contract and that therefore the requirements of art. 14bis are not
fulfilled.
18. Moreover, the club stated that a premature contract termination shall be an ultima ratio,
which is not case in the matter at hand.
19. Additionally, the Respondent held that the monthly salary of EUR 10,000, established in the
contract, shall be taken into account and that therefore a minimum of EUR 20,000 (2 monthly
salaries) needs to be outstanding in order to trigger art. 14 bis RSTP and that this is not the
case either in the matter at hand.
20. The club further pointed out that the player’s claim was not made in good faith.
21. The Respondent argued that art 11.1 of the contract is not applicable since the club was not
the party terminating the contract and since the amount is excessive and would need to be
reduced by the Chamber.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 26 January 2022 and submitted for decision
on 5 May 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.
23. 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 (March 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Ivorian player and
a Romanian club.
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24. 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 (March 2022 edition), and
considering that the present claim was lodged on 26 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
25. 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
26. 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
27. The foregoing having been established, the DRC moved to the substance of the matter, and
took note of the fact that the parties 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.
28. In this context, the Chamber acknowledged that his task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled, in the context of the specifities of the matter at hand.
29. First of all, the members of the Chamber addressed the specific situation of the player, who
terminated the contract with his parent club while he was on loan with a third club. In this
regard, the DRC wished to emphasize that the contract with the parent club is usually
suspended during the period of the loan, which means the obligation to pay the player’s
salary is suspended as well, unless the parties agree otherwise.
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30. So does also the commentary to the RSTP state:
“The written loan agreement should define, in particular, its duration and financial conditions.
During the agreed duration of the loan, the contractual obligations between the professional
player and their parent club are deemed to be suspended unless otherwise agreed in writing.
In practice, some obligations may continue to apply if, for example, the parent club agrees to
continue paying the player’s salary (or a portion of it) during the term of the loan agreement.”
(Commentary on the RSTP; age 79 Chapter lll | Article 10).
31. On account of the above, and taking into account the content of the loan agreement, the
Chamber established that the parties agreed that the Respondent is liable to pay a part of the
player’s salary, i.e. EUR 4,000 per month, and therefore the contract was not suspended as
such.
32. The Chamber established that the amended salary for the period of the loan, i.e. EUR 4,000,
shall be taken into account when assessing if the player had just cause or not, and not the
previously agreed EUR 10,000.
33. In this framework, the DRC 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).
34. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to 5 monthly salaries between September 2021 until January 2022.
Furthermore, the Single Judge noted that the Claimant has provided written evidence of
having put the Respondent in default on 23 December 2021, i.e. at least 15 days before
unilaterally terminating the contract on 26 January 2022, by lodging the present claim.
35. The DRC 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.
The club did not submit any evidence that the outstanding amounts were remitted.
36. Furthermore, the members of the Chamber noted that the Respondent did not dispute that
the claimed outstanding remuneration remained unpaid.
37. Moreover, in the absence of a termination notice and due to the Claimant’s request, the DRC
established that the player terminated the contract on 26 January 2022 by lodging the present
claim in front of FIFA.
38. In this context, the DRC took notice that at the time of termination 5 monthly salaries
(September 2021 until January 2022) remained outstanding.
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39. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
40. 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.
41. 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 5 salaries under
the loan agreement, amounting to EUR 20,000.
42. 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 20,000 (i.e.
5 times EUR 4,000).
43. 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 due dates until the date of effective payment.
44. 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.
45. 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.
46. In this regard, the Chamber took note of the wording of art. 11.1 of the contract, which
established that “The unilateral termination of the agreement without just cause or sports
related cause is forbidden; however, the party in default must pay damages and bear sports
penalties in amount of five million euros net.”
47. After analysing the content of the aforementioned clause, the Chamber concluded that the
clause was vague and not specific enough to be taken into account.
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48. 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.
49. 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 332,000, taking into account the amended salary per loan agreement
until June 2022 (i.e. 5x EUR 4,000 plus 12x EUR 12,000 plus 12x EUR 14,000 ) serves as the
basis for the determination of the amount of compensation for breach of contract.
50. 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.
51. As to the mitigation, the DRC pointed out that player signed the employment contract with
the third club while he was on loan and therefore such contract shall be irrelevant to the
mitigation, as it was part of the deal regarding the loan agreement and the salary part payable
by the Respondent was already reduced.
52. 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 332,000
to the player, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
53. 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 the date of claim until the date of effective payment.
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iii. Compliance with monetary decisions
54. 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.
55. 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.
56. 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.
57. 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.
58. 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
59. 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.
60. 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.
61. 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, Meleke Ulrich Sidoine, is partially accepted.
2.
The Respondent, CFR Cluj, has to pay to the Claimant, the following amount(s):
- EUR 4,000 as outstanding remuneration plus 5% interest p.a. as from 26 October 2021 until
the date of effective payment;
- EUR 4,000 as outstanding remuneration plus 5% interest p.a. as from 26 November 2021
until the date of effective payment;
- EUR 4,000 as outstanding remuneration plus 5% interest p.a. as from 26 December 2021
until the date of effective payment;
- EUR 8,000 as outstanding remuneration plus 5% interest p.a. as from 26 January 2022 until
the date of effective payment;
- EUR 332,000 as compensation for breach of contract plus 5% interest p.a. as from 26
January 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24of 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.
6.
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.
7.
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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