Dispute Resolution Chamber
Texto da decisão
REF 20-01036
Decis ion of the
DRC Judge
pas s ed on 7 April 2021,
regarding an em ploy m ent-related dis pute concerning the play er Marcelo Ángel
Gonzalez S uluaga
BY:
Jon New m an (USA), DRC Judge
CLAIMANT:
Marcelo Ángel Gonzalez Suluaga, Argentina
Represented by Mr Marcelo Amoretty Souza
RES PONDENT:
FK Bylis, Albania
Page 2 of 11
REF 20-01036
I. FACTS OF THE CAS E
1.
On an unspecified date, the Argentine player, Marcelo Ángel Gonzalez Suluaga
(hereinafter: Claimant or Player) and the Albanian club, FK Bylis (hereinafter:
Respondent or Club), signed an employment contract (hereinafter: the contract), valid
as from 7 January 2020 until 31 December 2021.
2.
Pursuant to “Appendix 1” to the employment contract, the club committed itself to pay
the player a monthly salary of EUR 250.
3.
According to “Appendix 1” of the employment contract, “The Financial Relation,
between, The Player and The Club, is valid, for the following period 01/08 until 31/05 for
each year of the contract. The months of June and July are not payable” and that “The
values of remunerations and benefits defined in this Contract are in gross amounts.”
4.
On 15 June 2020, the player informed the club in writing that the salaries of March, April
and May 2020 remained outstanding, in the total amount of EUR 750. In addition, the
player maintained that the club had failed to provide him a work permit and the player
granted the club 15 days to pay him the outstanding amounts and to provide him a valid
work permit.
5.
On 30 June 2020, the club replied holding that it “has paid [the player] beyond its
financial obligations” in the total amount of EUR 1,150. As per the club, “in this
calculation, the fines imposed by the club based on the regulations have not been
deducted yet”.
6.
On 1 July 2020, the player terminated the employment contract in writing. In said letter,
he referred to the club’s letter of 30 June 2020, and acknowledged having received EUR
450 on 29 June 2020. However, the player argued that he still did not have a work permit
and the club “has failed to pay the due amounts to the player”.
7.
On 21 July 2020, the Claimant lodged a claim in front of FIFA against the Respondent
for breach of contract, requesting the following:
a)
EUR 300 as outstanding remuneration;
b)
EUR 4,500 as compensation for breach of contract;
c)
The imposition of sporting sanctions on the club.
8.
In his claim, the Claimant firstly held that, following his default letter of 15 June 2020 in
which he requested EUR 750 as outstanding remuneration, the club paid him the
amount of EUR 450 on 29 June 2020. Thus, according to the player, the amount of EUR
300 remained outstanding.
Page 3 of 11
REF 20-01036
9.
In addition, the Claimant stated that since his arrival the club “promised him to obtain
his work permit, however, until now, this do not happened”. As per the player, he is
“now illegal in the country, and […] afraid to being deported anytime”.
10.
The Claimant then referred to the club’s letter dated 30 June 2020, and emphasized that
it failed to mention anything regarding his work permit.
11.
Given the above, the Claimant maintained that he had a just cause to terminate the
employment contract on 1 July 2020, taking into consideration arts. 14bis and 18.4 of
the FIFA Regulations on the Status and Transfer of Players.
12.
In its reply to the claim of the Claimant, the Respondent firstly pointed out that
according to Appendix n. 1 of the contract “[t]he financial relation between the Player
and the Club is valid for the following period 01/08 until 31/05 for each year of the
contract. The months of June and July are not payable”.
13.
The Respondent further highlighted that, in accordance with the item “Implementation
of Taxes and Fees” lit. c of the Appendix n. 1 of the contract, “[t]he values of
remunerations and benefits defined in this Contract are in gross amounts”. The net
amount receivable by the Claimant per month amounted to EUR 225.
14.
Concerning the player allegations regarding the unilateral termination of the contract
with just cause in accordance with art. 14bis of the RSTP, the club explained that, as
proven by the claim’s annexes provided by the player, it paid the outstanding salary of
March 2020 on 10 June 2020 and the outstanding salaries of April and May 2020 on 30
June 2020. Furthermore, the club stated that it paid, by the 30th of July 2020, the total
amount of EUR 1,150 and sustained that it complied with its financial obligations
towards the player and that therefore he terminated the contract without just cause.
15.
Subsequently, the Respondent maintained that the responsibility to apply for the
issuance of a work visa lays with the individual who is employed with an Albanian entity,
and not with the employer.
16.
The Respondent added that it is the obligation of the Claimant to prove that the
Respondent has not facilitated or helped him during the administrative procedures for
its issuance. He had the possibility and tools for applying but he did not. Therefore, it
stated that his lack of diligence for regularize his residence status in Albania cannot be
opposed to the club.
17.
Along these lines, the Respondent concluded by maintaining that that the unilateral
termination of the contract by the player on 1 July 2020 was made without just cause
and requested the claim to be rejected.
Page 4 of 11
REF 20-01036
18.
In his final comments, the player held that a “visa and/or work permit is an obligation
of the Respondent, having in mind that the Respondent is the only one who has the
means to regularize the Claimant’s residence visa and/or work permit situation, contrary
to what the Respondent alleged“, and such situation “already consist in a just cause to
terminate the contract”.
19.
Finally, the player reiterated the requests made in his claim.
II.
CONS IDERATIONS OF THE DRC JUDGE
1.
First of all, the DRC Judge analysed whether he was competent to deal with the case at
hand. In this respect, he took note that the present matter was submitted to FIFA on 21
July 2020. Taking into account the wording of art. 21 of the 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, DRC Judge referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Argentine player and an Albanian
club.
3.
In continuation, the DRC Judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that in accordance with art.
26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition February
2021) and considering that the present claim was lodged on 21 July 2020, the June 2020
edition of the said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the DRC Judge and the applicable regulations having been
established, the DRC Judge entered into the substance of the matter. In this respect, the
DRC Judge started by acknowledging all the above-mentioned facts and arguments as
well as the documentation on file. However, the DRC Judge emphasised that in the
following considerations he will refer only to the facts, arguments and documentary
evidence, which he considered pertinent for the assessment of the matter at hand.
5.
In this respect, the DRC Judge firstly recalled that the Claimant and the Respondent
signed an employment contract which was valid as from 7 January 2020 until 31
December 2021, according to which the club undertook to pay the player a monthly
salary of EUR 250 for the period between 1 August until 31 May “for each year of the
contract” and that “the months of June and July are not payable.”
Page 5 of 11
REF 20-01036
6.
The DRC judge further observed that the Claimant lodged a claim in front of FIFA against
the Respondent indicating that the latter had not provided him with the necessary visa
and that, after the club “has failed to pay the due amounts to the player”, he had
terminated his contract with the Respondent on 1 July 2020 invoking just cause.
7.
The DRC judge duly noted that, on account of the above, the Claimant is seeking
payment of the amount of EUR 4,800, corresponding to i) outstanding salaries for the
amount of EUR 300 and ii) compensation for breach of the employment contract in the
amount of EUR 4,500.
8.
What is more, the DRC judge observed that the Respondent replied that it paid the
outstanding salaries of March, April and May and added that by the 30th of July 2020, it
paid the total amount of EUR 1,150 as well as that according to Appendix n. 1 of the
contract, the financial relation between the parties was valid as of 1 August until 31 May
for each year of the contract and therefore, the months of June and July were not
payable to the player.
9.
Furthermore, the DRC Judge noted that, according to the Respondent, the responsibility
to apply for the issuance of a work visa lays with the individual who is employed, (i.e.
the player) with an Albanian entity, and not with the employer (i.e. the club).
10. In this respect, the DRC judge outlined that as soon as an employment contract is signed
between a club and a player, rights and responsibilities ensue on both sides without
being subject to any particular condition. In this respect, the DRC judge referred to the
well-established jurisprudence of the DRC and emphasised that, as a general rule, it is
the club´s duty and responsibility to act accordingly in order to obtain, if necessary, a
work permit or a visa for its players prior to the signing of an employment contract or
during its period of validity, in order for players to be able to legally enter a particular
country and be in a position to render their services to the club.
11. In continuation, the DRC judge referred to art. 18 par. 4 of the Regulations, which
stipulates, inter alia, that the validity of a contract may not be subject to the grant of a
work permit.
12. Furthermore, the DRC judge recalled that the Respondent contested that the monthly
salaries of March, April and May 2020 were still outstanding and that by 30 July 2020, it
paid the total amount of EUR 1,150 to the player. However, the DRC Judge noted that
the club failed to provide evidence of the said payment of EUR 1,150.
13. Hence, the DRC judge came to the conclusion that the Respondent had failed to carry
out the necessary arrangements in order for the player to legally enter the country as of
January 2020 and had equally failed to pay the Claimant his monthly salaries in the total
amount of EUR 300. Therefore, the DRC judge concluded that the Claimant had a just
Page 6 of 11
REF 20-01036
cause to unilaterally terminate the contractual relationship with the Respondent in July
2020.
14. In light of the above, the DRC Judge established that the Claimant had terminated the
employment contract with just cause on 1 July 2020 and that, consequently, the
Respondent is to be held liable for the early termination of the employment contact
with just cause by the Claimant.
15. Bearing in mind the previous considerations, the DRC judge went on to deal with the
consequences of the early termination of the employment contract with just cause by
the Claimant.
16. First of all, the DRC judge noted the Claimant’s request regarding the outstanding
salaries at the time of the unilateral termination of the contract and observed that the
Respondent failed to provide evidence for the non-payment of the relevant salaries
amounting to EUR 300.
17. In view of the above, the DRC judge stressed that the Respondent must fulfill its
obligations as per employment contract in accordance with the general legal principle
of “pacta sunt servanda”. Consequently, the DRC judge decided that the Respondent is
liable to pay to the Claimant the remuneration that was outstanding at the time of the
early termination of the employment contract by the Claimant, i.e. the amount of EUR
300.
18. In continuation, the DRC judge decided that, taking into consideration the Claimant’s
respective claim and art. 17 par. 1 of the Regulations, the Claimant is entitled to receive
from the Respondent compensation for breach of contract in addition to any
outstanding salaries on the basis of the relevant employment contract.
19. In this context, the DRC judge outlined that, in accordance with said provision, 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 Claimant 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.
20. In application of the relevant provision, the DRC judge held that he first of all had to
clarify whether the pertinent employment contract contained any clause, by means of
which the parties had beforehand agreed upon a compensation payable by the
contractual parties in the event of breach of contract. In this regard, the DRC judge
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
Page 7 of 11
REF 20-01036
21. Bearing in mind the foregoing, the DRC Judge proceeded with the calculation of the
monies payable to the Claimant under the terms of the employment contract as from its
date of termination with just cause by the Claimant, i.e. 1 July 2020, until the expiry date
of the contract. In this context, the DRC Judge noted that the employment contract was
valid until 31 December 2021 and that according to the employment contract “The
months of June and July are not payable.”
22. In continuation, the DRC Judge concluded that the Claimant would have received EUR
3,750 in total as remuneration had the contract been executed until its expiry date of 31
December 2021, i.e. fifteen monthly salaries of EUR 250 each. Consequently, the DRC
Judge concluded that the amount of EUR 3,750 serves as the basis for the final
determination of the amount of compensation for breach of contract in the case at
hand.
23. In continuation, the DRC Judge verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means
of which he would have been able to reduce his loss of income. According to the
constant practice of the DRC, such remuneration under a new employment contract shall
be taken into account in the calculation of the amount of compensation for termination
of contract with just cause in connection with the Claimant’s general obligation to
mitigate his damages. Having said this, the DRC Judge noted that according to the
information on file, the Claimant remained unemployed for the period as from 1 July
2020.
24. Given the above considerations, the DRC Judge established that the Respondent must
pay the amount of EUR 3,700 to the Claimant as compensation for breach of contract,
corresponding to the residual value of the contract.
25. The DRC Judge concluded its deliberations in the present matter by establishing that any
further claims lodged by the Claimant are rejected.
26. Furthermore, taking into account the consideration under number II.3. above, the DRC
Judge 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.
27. In this regard, the DRC Judge established that, in virtue of the aforementioned provision,
he has competence to impose a sanction on the club. More in particular, the DRC Judge
pointed out that, against clubs, the sanction shall consist in a ban 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.
Page 8 of 11
REF 20-01036
28. Therefore, bearing in mind the above, the DRC Judge 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 consecutive registration periods shall become effective on the Respondent in
accordance with art. 24bis par. 2 and 4 of the Regulations.
29. The DRC Judge recalled that the above-mentioned sanction 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.
30. Lastly, the DRC Judge 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 DRC Judge
decided that no procedural costs were to be imposed on the parties.
31. Likewise and for the sake of completeness, the DRC Judge recalled the contents of art.
18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
III. DECIS ION OF THE DRC JUDGE
1.
The claim of the Claimant, Marcelo Ángel Gonzalez Suluaga, is partially accepted.
2.
The Respondent, FK Bylis, has to pay to the Claimant, the following amounts:
- EUR 300 as outstanding remuneration;
- EUR 3,750 as compensation for breach of the contract without just cause.
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 amounts.
5.
The Respondent shall provide evidence of payment of the due amounts in accordance
with this decision to ps [email protected], duly translated, if applicable, into one of the
official FIFA languages (English, French, German, Spanish).
6.
In the event that the amounts due, plus interest as established above is 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 following consequences shall arise:
Page 9 of 11
REF 20-01036
1. 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. The aforementioned
ban mentioned will be lifted immediately and prior to its complete serving, once
the due amounts are paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amounts 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.
7.
This decision is rendered without costs.
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 10 of 11
REF 20-01036
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football As s ociation
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 11 of 11