Labour Disputes
Texto da decisão
REF 19-02051
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 4 June 2020,
regarding an employment-related dispute concerning the player Federico Taborda
COMPOSITION:
Clifford J. Hendel (USA) / (France), Deputy Chairman
Elv is Chetty (Seychelles), member
Tom is lav Kas alo (Croatia), member
CLAIMANT:
FEDERICO TABORDA, Italy
Represented by Mr. Pedro Macierinha
RESPONDENT 1:
FK SENICA, Slovakia
Represented by Mr. Sergio Ribeiro
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I. FACTS OF THE CASE
1)
On 1 June 2019, the Claimant and the Respondent (hereinafter jointly referred to as the
parties) signed an employment contract, valid as from 1 July 2019 until 30 June 2020, for,
inter alia, a monthly salary of EUR 3,807 payable “no later than on the last day of the following
month”. Moreover, the Respondent undertook to provide accommodation for the Claimant
in the amount of EUR 350. The said contract also established that health insurance in the
amount of EUR 100/month will be deducted from the Claimant’s salary.
2)
Furthermore, the contract contains the following clause:
“9. The club is obliged to deduct and pay health insurance from the player’s salary according t
the relevant legislation. The health insurance (for health and complete medical insurance is 100
EUR per month. The player is obliged to pay the health insurance in advance in the following
amounts: to 31/07/2019 – 300 EUR, to 31/08/2019 – 300 EUR, to 31/01/2020 – 300 EUR, to
28/02/2019 – 300 EUR”.
3)
In addition, the contract contains the following clauses regarding the termination of the
contract:
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4)
According to the Claimant, the Respondent omitted to pay him the amount of EUR 9,114: (i)
“EUR 1,500 due for the month of October 2019”; (ii) “EUR 3,807 due for the month of
November 2019”; (iii) “EUR 3,807 due for the month of December 2019”.
5)
On 14 January 2020, the Claimant sent a default notice requesting the above mentioned
amount, granting the Respondent a deadline of 15 days to remedy his default, to no avail.
6)
On 30 January 2020, the Claimant terminated the contact, requesting EUR 12,675.38, i.e. EUR
9,114 as mentioned above and 29 days outstanding salary of January 2019 (EUR 9,114 + EUR
3,561.38 = EUR 12,675.38), to no avail.
II. PROCEEDINGS BEFORE FIFA
A. Claim of the Claimant
7)
Based on the aforementioned facts, on 6 February 2020, the Claimant lodged a claim against
the Respondent for outstanding remuneration and compensation for breach of contract,
claiming the following amounts:
Outstanding remuneration in the total amount of EUR 12,921, specified as follows:
EUR 1,500 as outstanding salary for October 2019;
EUR 3,807 as outstanding salary for November 2019;
EUR 3,807 as outstanding salary for December 2019;
EUR 3,807 as outstanding salary for January 2019.
Compensation for breach of contract in the total amount of EUR 19,035, specified as follows:
The residual value of the contract in the period between February 2020 and June 2020,
corresponding to 5 monthly salaries of EUR 3,807 each.
8)
The Claimant maintained that he terminated the contract with just cause according to art.
14bis of the Regulations, as the Respondent failed to pay him more than two monthly salaries
and disrespected the legal principle of pacta sunt servanda. Moreover, the Claimant requested
compensation in the amount of the remaining value of the contract, i.e. five monthly salaries.
B. Reply of the Respondent
9)
In its reply, The Respondent in its reply to the claim, sustained that it has faced financial
difficulties and tried to accommodate the Claimant requests by helping and allowing him to
find another club with the promise of not requesting any transfer fee or training
compensation from his future club.
10)
The Respondent affirmed that the Claimant left the Respondent for training with a new one
in order to try to be employed by the latter. However, according to the Respondent he failed.
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11)
Finally, the Respondent held that the Claimant lodged a claim for the sole purpose of
compensating the fact he has not obtained a new employment contract with another club.
C. Contractual situation of the Claimant
12)
The Claimant confirmed that after the unilateral termination of the contract, he remained
unemployed.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
A. Competence
13)
The Dispute Resolution Chamber (hereinafter also referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 6 February 2020 and decided on
4 June 2020. Consequently, the June 2020 edition of the Rules governing the procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
14)
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the Dispute Resolution Chamber is in principle competent
to deal with employment-related disputes with an international dimension between a player
and a club.
B. Applicable legal framework
15)
The Chamber analysed which edition of the regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and
2 of the Regulations on the Status and Transfer of Players, and considering that the present
claim was lodged on 6 February 2020, the January 2020 edition of said regulations is
applicable to the matter at hand as to the substance.
16)
The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. The Chamber continued by
acknowledging the above-mentioned facts as well as the documentation contained in the file
in relation to the substance of the matter. However, the Chamber emphasised that in the
following considerations it will refer only to the facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
C. Burden of proof
17)
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.
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D. Merits of the dispute
I. Main legal discussion
18)
The fundamental disagreement between the parties, at the basis of the present dispute, is the
question whether or not the unilateral termination of the contract made by the Claimant on
30 January 2020, would lead to the entitlement of the Claimant to receive compensation for
rbeach of contract.
19)
On the one hand, the Claimant claims that he unilaterally terminated the employment
contract with just cause according to art. 14bis of the Regulations, as the Respondent failed
to pay him more than two monthly salaries and disrespected the legal principle pacta
sunt servanda.
20)
On the other hand, the Chamber noted that the Respondent did not contest that – due to
financial difficulties – it had outstanding debts towards the Claimant and that it even tried to
help the Claimant to find a new club. However, the Respondent is of the opinion that the only
reason the Claimant lodged a claim before FIFA was the fact that he did not find new
employment with another club and that by means of a complaint before the Dispute
Resolution Chamber of FIFA; he could request that the Respondent by ordered to pay him
compensation for breach of contract.
21)
In view of the diverging positions of the Claimant and the Respondent, the Chamber deemed
that it had to analyze whether the unilateral termination of contract made by the Claimant on
30 January 2020, was made with or without just cause.
II. Considerations
22)
In this context, the Chamber first acknowledged that the Claimant and the Respondent signed
an employment contract valid as from 1 as from 1 July 2019 until 30 June 2020, for, inter alia,
a monthly salary of EUR 3,807.
23)
What is more, the DRC noted that the Claimant had unilaterally terminated the contract on
30 January 2019, alleging that the total amount of EUR 12,675.38 remained outstanding,
corresponding to a partially outstanding salary for October 2019 in the amount of EUR 1,500,
the full outstanding salary for November 2019 in the amount of EUR 3,807, the full
outstanding salary for December 2019 in the amount of EUR 3,807 and the pro rata
outstanding part of the salary for January 2019 in the amount of EUR 3,561.38.
24)
Subsequently, the DRC observed that the Respondent, for its part, it did not contest that the
salaries between October 2019 and January 2020 remained unpaid. The Respondent mainly
alleged that it was facing financial difficulties, which made it impossible for its club to fulfill
its contractual obligations.
25)
In addition, the Chamber noted that on 14 January 2019, the Claimant had put the
Respondent in default of the payment of the total amount of EUR 9,114, that is, the
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outstanding (part) of the salaries for October, November and December 2019, granting the
Respondent 15 days to remedy the default, however to no avail, and consequently, had
unilaterally terminated the contract on 30 January 2019, mentioning art. 14bis of the RSTP
and claiming the Respondent had still not paid his salary for November 2019.
26)
At this point, the Chamber deemed it appropriate to remind the parties of the wording of art.
14bis par. 1 of the Regulations, according to which: “In the case of a club unlawfully failing 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)”. (emphasis added)
27)
Bearing in mind the foregoing, the DRC noted a) that the Claimant acted in accordance with
art. 14bis of the Regulations, b) that after the default notice the Respondent did not make
any payments at all to the Claimant and c) that the termination of the contract was made 16
days after the default notice was sent, which gave the Respondent 15 days to remedy its
default.
28)
Based on the foregoing, the DRC concluded that the Claimant had met dthe criteria liad down
in art. 14bis of the Regulations and therefore, had a just cause to terminate the contract.
29)
As a result, the Respondent is to be held liable for the early termination of the employment
contact with just cause by the Claimant.
30)
In continuation, the Chamber focused its attention on the consequences of such termination.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
player is entitled to receive from the club an amount of money as compensation for breach
of contract in addition to any outstanding payments on the basis of the relevant employment
contract.
31)
In this regard, the DRC first addressed the issue of unpaid remuneration at the moment when
the contract was terminated by the Claimant and decided that, since the Respondent did not
contest that it had outstanding debts towards the Claimant and in accordance with the
general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant
outstanding remuneration corresponding to EUR 1,500 as outstanding salary for October
2019, EUR 3,807 as outstanding salary for November 2019, EUR 3,807 as outstanding salary
for December 2019 and EUR 3,807 as outstanding salary for January 2019, i.e. the total
amount of EUR 19,921.
32)
In continuation, having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the DRC focused its
attention on the consequences of such termination. Taking into consideration art. 17 par. 1
of the Regulations, the DRC decided that the Claimant is entitled to receive an amount of
money from the Respondent as compensation for the termination of the contract with just
cause in addition to any outstanding payments on the basis of the relevant employment
contract.
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33)
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 members
of 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.
34)
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.
35)
In this regard, the Chamber established that no such compensation clause – including an
amount payable in case of a termination by one of the parties - was included in the
employment contract at the basis of the matter at stake.
36)
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
37)
The DRC then turned its attention to the remuneration and other benefits due to the Claimant
under the existing contract and/or the new contract, which criterion was considered by the
DRC to be essential.
38)
Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded
with the calculation of the monies payable to him under the terms of the employment
contract from its date of termination with just cause by the Claimant, i.e. 30 January 2020 until
30 June 2020 and concluded that the Claimant would have received in total 5 monthly salaries
of EUR 3,807, i.e. the total amount of EUR 19,035 as remuneration had the contract been
executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR
19,035 serves as the basis for the determination of the amount of compensation for breach
of contract.
39)
In continuation, the Chamber 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 enabled 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 breach of contract in connection with the
player’s general obligation to mitigate his damages.
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40)
The Chamber noted that the Claimant remained unemployed after the termination of the
contract and thus did not manage to mitigate his damages.
41)
Therefore, the amount of EUR 19,035 is due to the Claimant by the Respondent as
compensation for breach of contract.
IV. Conclusion
42)
As a result of the aforementioned, the Chamber decided to partially accept the claim of the
Claimant and to order the Respondent to pay the Claimant the following amounts:
-
outstanding remuneration in the amount of EUR 19,921;
-
compensation for breach of contract in the amount of EUR 19,035.
43)
Furthermore, the DRC 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.
44)
In this regard, the DRC pointed out that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods.
45)
Therefore, bearing in mind the above, the DRC decided that, in the event that the Repondent
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.
46)
Finally, 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. 24bis par.
3 of the Regulations.
47)
The Chamber concluded its deliberations in the present matter by establishing that any
further claims of the Claimant are rejected, and that therefore in conclusion, the claim of
Claimant is partially accepted.
IV.DECISION OF THE DISPUTE RESOLUTION CHAMBER
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1) The claim of the Claimant, Federico Taborda, is partially accepted.
2) The Respondent, FK Senica, has to pay to the Claimant outstanding remuneration in the
amount of EUR 19,921.
3) The Respondent has to pay to the Claimant compensation for breach of contract in the amount
of EUR 19,035.
4) Any further claim of the Claimant is rejected.
5) The Claimant is directed to inform the Respondent, immediately and directly, preferably to the
e-mail address as indicated on the cover letter of the present decision, of the relevant bank
account to which the Respondent must pay the amounts mentioned under points 2. and 3.
above.
6) The Respondent shall provide evidence of payment of the due amounts in accordance with
points 2. and 3. above to FIFA to the e-mail address [email protected], duly translated, if need
be, into one of the official FIFA languages (English, French, German, Spanish).
7) In the event that the amounts due plus interest in accordance with points 2. and 3. above are
not paid by the Respondent within 45 days as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from registering any
new players, either nationally or internationally, up until the due amounts are paid and for the
maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
8) The ban mentioned in point 7. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
9) In the event that the aforementioned sums plus interest are still not paid by the end of the ban
of three entire and consecutive registration periods, the present matter shall be submitted,
upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
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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 (cf. CAS Directives at Legal.FIFA.com).
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 Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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