Dispute Resolution Chamber
Texto da decisão
REF 21-00118
Decision of the
Dispute Resolution Chamber
passed on 28 April 2021
regarding an employment-related dispute concerning the player Robert Ndip Tambe
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (the Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Robert Ndip Tambe, Cameroon
Represented by Edward Lyonga
RESPONDENT:
CFR Cluj, Romania
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I.
FACTS OF THE CASE
1.
On 9 July 2018, the Cameroonian player, Robert Ndip Tambe (hereinafter: the Claimant or
the player), and the Romanian club, CFR Cluj (hereinafter: the Respondent or the club)
signed an employment contract (hereinafter: the employment contract).
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the following:
a.
b.
c.
d.
RON 233,000 net as signing-on-fee;
A monthly payment of RON 74,560 as of 10 July 2018 until 30 June 2019;
A monthly payment of RON 88,540 as of 01 July 2019 until 30 June 2020;
A monthly payment of RON 102,520 as of 01 July 2020 until 30 June 2021.
3.
On 29 January 2020, the parties to the dispute at hand mutually agreed to the early
termination of the employment contract as of the following day, stipulating, inter alia, that
the player would have been entitled to receive the net amount of RON 354,160
corresponding to the remuneration under the employment contract for the months of
December 2019, January 2020, February 2020, and March 2020 (hereinafter: the
termination agreement).
4.
The cited termination agreement, under art. 1.2, provided for the following conditions and
terms of payment:
“a) the net amount of 88.540 lei (eighty-eight thousand five hundred and forty lei) will be
paid to the player on 10 February 2020
b) the net amount of 88.540 lei (eighty-eight thousand five hundred and forty lei) will be
paid to the player on 28 February 2020
c) the net amount of 88.540 lei (eighty-eight thousand five hundred and forty lei) will be
paid to the player on 20 March 2020
d) the net amount of 88.540 lei (eighty-eight thousand five hundred and forty lei) will be
paid to the player on 10 April 2020
e) In case the CFR 1907 Cluj club will pay the player until February 5, 2020 the amount of
130,000 lei (one hundred and thirty thousand lei) in a single instalment, then the player
declares by signing this present addendum that he no longer has any financial or other
claim to the club CFR 1907 Cluj for future and acknowledges that all his financial claims
have been respected and paid to him.”
5.
According to the information available in the Transfer Matching System (TMS), on 28
February 2020 the player and the Chinese club, Shaanxi Chang'an Athletic FC, signed a
contract valid for one year, according to which the player was entitled to a total
remuneration of USD 500,000.
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6.
By letter dated 18 June 2020, the Claimant put in default the Respondent, alleging the total
non-compliance with its financial obligations and granting a term of fourteen days to
proceed with the payment of the due amounts as per the termination agreement.
7.
On 08 October 2020, the Claimant issued a further default notice, accusing the club of
having paid only RON 130,000, hence requesting the Respondent to pay the remaining
amount of RON 224,160 within the successive two weeks.
8.
On 16 November 2020, the Respondent replied to the Claimant’s letter, arguing that the
club had been released from any further financial obligations towards the player since the
condition stated under letter e) art. 1.2 of the termination agreement had been met.
9.
On 14 January 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
10.
The Claimant requested the Respondent to pay the entire amount of RON 354,160, alleging
the bad faith of the Respondent. The player is of the position that the club induced him to
sign the relevant clause of the termination agreement, which provided for the clearance of
the club’s financial obligations in case of payment by the same club of RON 130,000.
11.
In its reply to the claim at hand, the Respondent argued that the termination agreement
fully represents the mutual will of the parties, therefore the player has freely and
intentionally signed it as well as understood each clause of the mentioned contract.
12.
In support of the above, the Respondent highlighted the clear structure and wording of the
termination agreement, undersigned on each page, a copy of which has been provided to
the player translated into English.
13.
Furthermore, the Respondent submitted evidence of the payment, on 3 February 2020, of
RON 130,000 as per the termination agreement under its art. 1.2 letter e).
14.
Moreover, the Respondent argued that a direct and transparent communication with the
player had taken place. The club furthermore outlined that it was the player who had
requested and insisted that the employment contract was prematurely terminated.
15.
In its rejoinder, the player argued that the insertion of art. 1.2 e) was made in bad faith by
the club. To this end, the player argued that such clause was inserted as a condition
precedent, putting him in a position of “take it or leave it” with regards to the termination
agreement. The player referred to national case law in support of his argumentation.
16.
In continuation, the player argued that the amounts under the termination agreement are
“not a debt per se”, but in fact accumulated salaries he “rightfully earned”.
17.
The player refuted the club’s assertion that he wanted to terminate the employment
contract and submitted that his intention was to remain at the club.
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18.
In its final comments, the club reiterated that the termination agreement was freely
negotiated between the parties, and that art. 1.2 e) was a determinant condition for the
agreement to be reached. The club underlined that the player never questioned the
payment of RON 130,000.
19.
The club was also of the position that the player failed to meet his burden of proof.
II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
20.
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 14 January 2021 and submitted
for decision on 28 April 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 aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
21.
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. 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 a player from
Cameroon and a club from Romania.
22.
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 14 January 2021, the January 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
23.
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
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
24.
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
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pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
25.
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
26.
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 compliance with the
termination agreement. More in particular, the DRC found that the underlying question in
dispute is whether the termination agreement signed by the player is to be considered a
valid waiver for outstanding remuneration.
27.
At this point, the Chamber wished to recall the decisions and jurisprudence of the Court of
Arbitration for Sport (CAS) with regards to waivers. In this respect, the DRC outlined more
in particular the contents of the awards in cases CAS 2020/A/6727 as well as CAS
2016/A/4582, to which it adheres.
28.
The conclusion that follows from the CAS jurisprudence is that the player in principle cannot
waive his right to outstanding remuneration. At the same time, the DRC highlighted that
that the case at hand does not pertain to compensation for breach of contract, so this issue,
although discussed in depth by the CAS, does not need to be examined.
29.
In the case at hand, the player did not contest having signed the termination agreement –
which is both a waiver and a receipt in full settlement – and only pointed out that he did
not receive any of the amounts due under the termination agreement, albeit having
recognized indirectly in his previous correspondence to the club that he did receive RON
130,000.
30.
The player furthermore stated that he was misled to sign the termination agreement. There
having been no evidence in support of this reasoning, the DRC was firm to set aside such
argumentation.
31.
The foregoing considerations coupled with the teachings of CAS jurisprudence, which are
detailed below, led the Chamber to conclude that the waiving of salary for work already
performed, in the case at hand, cannot be considered as validly made.
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32.
Firstly, art. 341 of the Swiss Code of Obligations (SCO) prevents the employee to
waive, during the duration of the contract and within a month following the (effective) end
of the contractual relationship, claims arising from mandatory provisions of the law or of a
collective agreement.
33.
Secondly, art. 361 SCO lists the absolutely mandatory provisions (i.e. those that cannot be
derogated from neither to the detriment of the employer or employee).
34.
Thirdly, art. 362 SCO lists the relative mandatory provisions (i.e. those that protect the
employee only as the provisions listed therein cannot be derogated from to the detriment
of the latter.
35.
Fourthly, art. 20 par. 1 SCO rules that a contract (or clause) is null and void if its terms
are unlawful (i.e. such in a case where a contract that contravenes art. 361/362).
36.
Fifthly, the salary, established under art. 322 SCO is not listed under art. 361/362, entailing
that parties may agree on the reduction in pay for the future; but not for work already
done for the period established under art. 341.
37.
At the same time, for receipts in full settlement, these are to be considered in contravention
of art. 341 SCO if they contain a unilateral waiver by the employee of a claim laid down in
a mandatory provision (art. 361/362), and that this claim has not been compensated
through a transaction. In other words: if the player indirectly waives payment of wages for
work already done / outstanding salaries by way of a remission of debt (“I acknowledge
having received everything”, whereas this is not true), this waiver is null and void unless it
is part of a genuine transaction involving concessions of comparable importance on the part
of each party.
38.
In concrete terms, CAS jurisprudence reveals that to assess whether such a transaction is
permissible under art. 341 of the SCO, the court/deciding body is required to conduct a
balancing of interests, checking whether the mutual claims waived by each party are of
comparable value. Put in another way, whether there is an appropriate equivalence
between the parties’ reciprocal concessions.
39.
As outlined before, the DRC adhered to this understanding enshrined in CAS jurisprudence.
Accordingly, the DRC decided that the termination agreement is partially rendered null and
void to establish that the salaries of December 2020 and January 2021 cannot be waived
and thus shall be awarded.
40.
As to the salaries of February and March, however, the DRC found the waiver fair and
equitable insofar as the transaction made by the player (by being released from his
employment contract with the Respondent) allowed him to sign a profitable contract in
China, while the club was no longer enjoying his services but also not paying his salary. In
other words, the DRC understood that such reciprocal concessions were proportionate and
thus valid.
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41.
Consequently, the DRC concluded that the player shall be entitled to the salaries of
December 2020 and January 2021 (i.e. RON 177,080) minus the amount undisputedly paid
RON 130,000, arriving at RON 47,080.
ii. Compliance with monetary decisions
42.
Finally, taking into account the applicable Regulations as set out in the relevant section, the
Chamber referred to par. 1 lit. 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.
43.
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.
44.
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. 24bis par. 2, 4, and 7 of the Regulations.
45.
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.
46.
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. 8
of the Regulations.
d.
Costs
47.
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.
48.
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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49.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Robert Ndip Tambe, is partially accepted.
2.
The Respondent, CFR Cluj, has to pay to the Claimant, the following amount:
- RON 47,080 as outstanding remuneration.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
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).
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