Dispute Resolution Chamber
Texto da decisão
REF 21-00012 / FPSD-561
Decision of the
Dispute Resolution Chamber
passed on 1 July 2021
regarding an employment-related dispute concerning the player Omid Singh
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Tomislav Kasalo (Croatia), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Omid Singh, Iran
Represented by Rouzbeh Vosough Ahmadi & Amir Arsalan Eskandari
RESPONDENT:
East Bengal FC, India
Represented by
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I.
FACTS OF THE CASE
1.
On 11 March 2020 the Iranian player, Omid Singh (hereinafter: player or Claimant), and the
Indian club, East Bengal FC (hereinafter: club or Respondent) signed an employment
contract (hereinafter: Contract) valid for two sporting seasons, namely as from said date
until the end of the season 2021/2022.
2.
According to clause 2 of the Contract, the Respondent undertook to pay the Claimant the
amount of USD 100,000 for the season 2020/2021, split into 10 fixed monthly instalments
of USD 10,000 starting from August 2020 and to be paid by the 15th day of each following
month.
3.
Contextually, a sum of USD 110,000 was agreed by the Parties as remuneration for the
season 2021/2022, to be split as well into 10 fixed monthly instalments of USD 11,000 and
to be paid within the 15th day of the following month.
4.
Furthermore, clauses 27 and 28 of the Contract provided respectively for a roundabout
ticket India-Iran to be granted by the Respondent to the Claimant and the subscription of
an insurance policy in favour of the latter.
5.
Finally, pursuant to clause 26 of the Contract, the Player would be entitled to terminate the
employment agreement in case of fail by the Club to pay two-month salary consecutively.
6.
On 5 April 2020, a club’s official confirmed via web media the arrival of the Player on a 2years deal basis.
7.
Following a change of ownership and management communicated on the web, the Club
announced its participation to the next Indian Super League for the sporting season
2020/2021.
8.
On a non-specified date, a Club’s representative informed the Player via WhatsApp that the
latter was not considered any longer part of the Club’s plan, suggesting him to find an
alternative.
9.
By letter dated 29 October 2020, the Player put in default the Club and granted the latter
15 days to comply “with all its obligations and overdue payments as of the conclusion of
the contract until that date.”
10.
In the above letter, the Player threatened the Club to unilaterally terminate the employment
agreement in case of non-compliance with its financial obligations, accusing the same Club
of having failed in the payment of the entire remuneration due under the Contract until
that moment as well as of the stipulated flight-ticket to India
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11.
Moreover, the Player complained about not having been registered by the Club to the Indian
Super League 2020/2021.
12.
By correspondence dated 14 November 2020 the Claimant notified the Club of the
unilateral termination of the employment contract for just cause of the Player.
II.
PROCEEDINGS BEFORE FIFA
13.
On 26 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
14.
The claim of the Claimant
On his claim dated 26 December 2020, the Claimant denounced the breach of contract by
the Respondent and requested the following:
To condemn the club to pay USD 210,000 as salaries and compensation to the
player.
To condemn the club to pay interest at a rate of 5% per annum to the player.
15.
In support of his claim, the Claimant submitted the default letter sent to the Respondent
on 29 October 2020 and accused the latter for not having never complied with its financial
obligations towards the Claimant, obliging him de facto to find an alternative club.
16.
Furthermore, the Claimant stated that the Respondent misbehaviour in conjunction with
the default notice above mentioned would satisfy the requirements set by FIFA RSTP in
order to terminate the contract with just cause.
b.
Position of the Respondent
17.
In his reply to the claim, the Respondent asked to reject the claim in its entirety.
18.
In particular, the Respondent accused the Claimant of having fabricated false evidence with
the purpose of inducing FIFA DRC to assess the employment agreement as valid and binding
between the Parties.
19.
On the contrary, according to the Respondent, the Contract was never signed by the Club
and for this reason is not enforceable.
20.
In support of the above, the Respondent submitted a screenshot of a conversation held on
WhatsApp between the Player and the Club’s TMS Manager Mr. Pratham Basu.
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21.
Moreover, the Respondent submitted a copy of the Contract without the signature of the
Club.
22.
Secondly, the Respondent argued that at the time of sending the aforementioned letters of
default and termination of the Contract, the Player used wrong contact details, namely
[email protected] and [email protected] , which were not
allegedly belonging to the Indian club.
23.
In view of the above, the Respondent stated that even if the Contract was deemed as
authentic, nevertheless the Club was not put in the condition to comply with the deadline
served by notice dated 29 October 2020, hence said termination shall be deemed invalid.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
24.
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 24 December 2020 and
submitted for decision on 1 July 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
June 2020 edition of the Procedural Rules is applicable to the matter at hand.
25.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 Iranian player
and a Indian club.
26.
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 February 2021), and
considering that the present claim was lodged on 24 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
27.
Burden of proof
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
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wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
28.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
29.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
30.
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 authenticity of the
employment contract signed on date 11 March 2020.
31.
In this context, the Chamber acknowledged that it its task was to establish whether the
Parties have effectively entered into an employment agreement in said date and, if
affirmative, whether the Player shall be awarded any specific amount of money.
32.
Firstly, in order to verify whether the Contract shall be considered valid and binding, the
Chamber analysed the employment agreement and verified whether it contained all the
essentialia negotii.
33.
In particular, the Chamber focused its attention on the signature of the Parties to the
contract, as it recalled that the Respondent accused the Claimant of having forged the
Club’s signature in order to mislead the judgment of the DRC panel.
34.
In this respect, the Chamber observed that the Respondent failed to corroborate its
allegations, as the latter has not provided any evidence that its signature has been falsified
by the Claimant.
35.
Therefore, the Chamber concluded that both the signatures inserted in the employment
contract shall be deemed as valid.
36.
Moreover, the Chamber acknowledged the presence of all the other basic elements which
typically constitute a valid contract, hence the DRC established that the employment
agreement shall be deemed to be valid and binding between the Parties.
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37.
Subsequently, the Chamber turned its attention to the content of the Contract and
investigated whether the Player shall be entitled to any outstanding remuneration.
38.
In this regard, the Chamber observed that the Respondent’s only objection concerned the
validity of the employment contract per se, therefore the amounts claimed by the Player
remained uncontested.
39.
Secondly, the Chamber recalled that the Player put the Club in default by letter dated 29
October 2020, namely when the latter already held a debt towards the Claimant of at least
2 monthly salaries.
40.
However, the DRC noted that the Respondent objected to the validity of the default letter
as well as of the termination notice as allegedly addressed by the Player to the wrong email
addresses.
41.
In this respect, the Chamber observed that, nevertheless, one of the above mentioned
addresses (namely [email protected]) was still in use by the Club at the
moment of receiving the abovementioned communication, hence the thesis sustained by
the Respondent according to which the latter was not put in the condition to comply with
the deadline served by notice dated 29 October 2020, cannot be upheld.
42.
What is more, the Chamber remarked that the same Contract, under clause 26, provided
for the Player’s right to unilaterally terminate the employment agreement in case of noncompliance by the Club with its financial obligations for at least 2 consecutive monthly
salaries,
43.
All the above considered, the DRC established that on 14 November 2020 (i.e. the date of
termination), the Claimant had just cause to terminate the employment contract as all the
criteria set by article 14bis of the Regulations had been certainly met. As a result, the
Claimant is entitled to outstanding remuneration and compensation for breach of contract.
ii. Consequences
44.
Having stated the above, the members of the Chamber acknowledged that the Claimant,
at the moment of terminating the employment contract, was entitled to the monthly
salaries of August 2020, September 2020 and October 2020, namely corresponding to a
total amount of USD 30,000 (3*10,000).
45.
In conclusion, the Chamber decided that the amount of USD 30,000 shall be awarded to
the Claimant as outstanding remuneration.
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46.
Moreover, and in line with the DRC jurisprudence, the Chamber established that on the
above amount it shall be applied a 5% interest per annum as of the relevant due dates for
each outstanding salary, therefore as of the 16th day of each following month.
47.
Subsequently, the Chamber turned its attention to the question of the consequences of
such unjustified breach of contract committed by the Respondent and established that the
Claimant shall be entitled to a compensation in accordance with art. 17 of the Regulations.
48.
In this respect, 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.
50.
In this sense, the DRC underlined the absence of any compensation clause included in the
contract. Consequently, the Chamber held that no compensation clause being applicable
to the case at hand, the compensation can be assessed on the basis of the residual value of
the contract in line with the jurisprudence of the Dispute Resolution Chamber.
51.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the Player under the terms of the employment contract as from the date of
termination without just cause by the Respondent until its natural expiration. Bearing this
in mind, the Chamber deemed that he would have received in total USD 180,000 as
remuneration for the period as from November 2020 until the end of the 2021/2022
season, said amount consisting of the 7 monthly salaries due for the season 2020/2021
(7*10,000) plus the value of the contract for the season 2021/2022, i.e. USD 110,000.
52.
Consequently, the Chamber concluded that the amount of USD 180,000 serves as the basis
for the final determination of the amount of compensation for breach of contract in the
case at hand.
53.
Equally, the Chamber verified as to whether the Player had signed a new employment
contract after terminating the employment contract on 14 November 2020, by means of
which he would have been enabled to reduce his loss of income. According to his constant
practice, such remuneration under a new employment contract would be taken into
account in the calculation of the amount of compensation for breach of contract in
connection with the Player’s general obligation to mitigate his damages.
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54.
In this context, the Chamber recalled that, after the termination of the employment
contract, on 16 November 2020, the Player signed a new contract with the Iranian club
Aluminium Hormozgan F.C., to be valid until end of the Iranian sporting season 2020/2021.
55.
In this regard, the Chamber acknowledged that the total value of the new Player’s
employment contract is of 8,000,000,000 Iranian Rials, which at the moment of the
decision would correspond to approximately USD 34,430
56.
In view of the above, the DRC established that the amount of USD 34,430 shall be deducted
from the total compensation awardable to the Player, leading to a mitigated sum of USD
155,570.
57.
Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an additional compensation of three monthly
salaries, subject to the early termination of the contract being due to overdue payables. In
case of egregious circumstances, the additional compensation may be increased up to a
maximum of six monthly salaries, whereby the overall compensation may never exceed the
rest value of the prematurely terminated contract.
58.
With the above in mind, the Chamber decided to award the Claimant additional
compensation corresponding to three monthly salaries, i.e. USD 33,000 (3*11,000), in
accordance with the above-mentioned provision.
59.
Consequently, on account of the above-mentioned considerations, the Chamber decided
to partially accept the Claimant’s claim and that the Respondent must pay the amount of
USD 178,570 as compensation for breach of contract to the Claimant, which is considered
by the Chamber to be a fair and reasonable amount.
60.
Lastly, as per Claimant’s request, and in line with the FIFA DRC jurisprudence, the DRC
decided to apply a 5% interest per annum on the above amount, running as from the date
of the claim, namely 26 December 2020.
iii. Compliance with monetary decisions
61.
Finally, 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.
62.
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 and for the maximum
duration of three entire and consecutive registration periods.
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63.
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, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
64.
The DRC recalled that the above-mentioned bans 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.
65.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
66.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
67.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Omid Singh, is partially accepted.
2.
The Respondent, East Bengal FC, has to pay to the Claimant, the following amount:
USD 10,000 as outstanding salary for August 2020 plus 5% interest p.a. as from
16 September 2020 until the date of effective payment.
USD 10,000 as outstanding salary for September 2020 plus 5% interest p.a. as
from 16 October 2020 until the date of effective payment.
USD 10,000 as outstanding salary for October 2020 plus 5% interest p.a. as from
16 November until the date of effective payment.
USD 178,570 as compensation for breach of contract plus 5% p.a. interest as from
26 December 2020
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant
bank account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.
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7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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