Labour Disputes
Texto da decisão
REF FPSD-3821
Decision of the
Dispute Resolution Chamber
passed on 13 January 2022
regarding an employment-related dispute concerning the player
Diarrassouba Ousmane Viera
BY:
DE WEGER, Frans (The Netherlands), Chairperson
GAUCI, Sihon (Malta), Member
VAURASI, Laurel (Fiji), Member
CLAIMANT:
Diarrassouba Ousmane Viera, Côte d'Ivoire
Represented by Anca Mituică
RESPONDENT:
AFC Hermannstadt, Romania
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REF FPSD-3821
I.
Facts of the case
1.
On an unspecified date, the Ivorian player, Mr Diarrassouba Ousmane Viera (hereinafter: the
player or the Claimant), and the Romanian club, AFC Hermannstadt (hereinafter: the club or
the Respondent) concluded an employment contract valid as from 10 July 2019 until 30 June
2021 (hereinafter: the employment contract).
2.
Pursuant to clause 11 of the employment contract, the club undertook to pay the player, inter
alia, the following amounts:
a. EUR 6,000 net, as monthly remuneration, payable “on the last working day of the
month for previous month”;
b. EUR 300 net “representing rent”; and
c. EUR 250 net “for each point won by the team in the national championship, if the
player shall play as titular player, under the conditions that at the end of the
championship the team shall at least in position 9 in the National Championship”.
3.
In addition, clause 18 of the employment contract read as follows:
“18. CONCTRACUAL DISPUTES
18.1. Any dispute regarding the inadequate performance or non-performance of the
parties’ obligations undertaken under this contract is settled amicably. In case such a
settlement is not possible, the parties have the right to resort to the CNSL bodies with
jurisdictional liabilities, in compliance with the FIFA Bylaws and Regulations or to submit
it settlement to the common law courts.
18.2. In case sports jurisdiction way has been chosen, after the case has been judged
by NDRC / The National Dispute Resolution Chamber / Appeal Commission of FIFA, the
unsatisfied party may appeal the decision at TAS.
18.3 For the employment contracts concluded between the clubs and players, the labor
legislation is equally applicable. The parties undertake to comply with the regulations
established by the football forums”.
4.
On 14 May 2020, the player sent the club a default notice requesting payment of EUR 18,900,
corresponding to the salaries and rent allowance for the months of February, March and April
2020.
5.
On 6 July 2020, the player sent the club a second default notice acknowledging that the same
payment previously mentioned had not been performed. Therefore, the player requested the
club to cure the breach until the following day.
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6.
On 8 July 2020, the player sent the club a third notice acknowledging receipt of a partial
payment and requesting the remaining EUR 12,600 to be delivered within 3 days,
corresponding to the salaries and rent allowance for the months of February and March 2020.
7.
On 13 July 2021, the player sent the club a fourth default notice requesting payment of: (i)
EUR 28,460 net as outstanding salaries; (ii) EUR 4,800 as rent allowance; and (iii) EUR 11,000
net as bonus for the 44 points won during the national championship. The player granted
the club with a 10 days’ deadline in order to cure the breach.
II. Proceedings before FIFA
8.
On 28 September 2021, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
9.
In his claim, the player pointed out that, despite fulfilling his contractual obligations, the club
did not comply with its financial duties by failing to pay a significant part of his remuneration.
10. In view of the above, the player requested, inter alia, to be awarded the following amounts:
a. EUR 28,450 net as outstanding salaries, broken down as follows:
(i)
EUR 4,450 net as the salary of February 2021;
(ii)
EUR 6,000 net as the salary of March 2021;
(iii)
EUR 6,000 net as the salary of April 2021;
(iv)
EUR 6,000 net as the salary of May 2021; and
(v)
EUR 6,000 net as the salary of June 2021.
b. EUR 4,800 net as rent allowance for the period between March 2020 and June
2021 (i.e. EUR 300 net per month); and
c. EUR 11,000 net as bonuses in accordance with art. 11.2 of the employment
contract (i.e. 44 points times EUR 250 net per point).
b. Position of the club
11. In its reply, the club challenged FIFA’s jurisdiction to decide this matter. The club primary
maintained that the Romanian national courts i.e. the Sibiu Tribunal was indeed competent
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to adjudicate on the matter taking into consideration the opening of the general insolvency
proceedings.
12. Alternatively, the club argued that the National Dispute Resolution Chamber of the Romanian
Football Federation (hereinafter: the Romanian NDRC) would be competent to deal with the
matter at hand and not FIFA, due to the wording of clause 18 of the employment contract.
13. In addition to the above, the club argued that the Romanian NDRC “is an arbitration body
that complied with the FIFA requirements on composition, independence and fair
proceedings”
14. Therefore, the club held that the player’s claim should be ruled inadmissible.
15. As to the substance, the club referred to the COVID-19 pandemic and informed that it was
forced to open insolvency proceedings before the Sibiu Tribunal in order to prevent
bankruptcy.
16. In light of the above, the club referred to art. 66, par. 10, in combination with art. 75 of the
National Law no. 85 / 2014, which reads as follows:
Art. 66, par. 10
”The debtor’s request will be judged urgently, within 10 days, in the council, without
summoning the parties. By exception from the provisions of art. 200 of the Code of
Civil Procedure, the syndic judge will establish the trial term in the council chamber,
within 10 days from the submission, even if the application does not meet all legal
requirements and not all documents are submitted. If at the date of submitting the
debtor’s application, the creditors’ applications are registered, the procedure will be
proceeded according to the provisions of par. (6) Thesis II”.
Art. 75, par. 1
“As of the date of the procedure opening, all judicial, extrajudicial actions or
enforcement measures for the achievement of the claims on the debtor's property shall
be de jure suspended. The capitalization of their entitlements can be done only within
the insolvency procedure, by submitting the applications for the admission of claims.
Their reinstatement is possible only in case of annulment of the order for relief, of the
revocation of the said order or in cases of the procedure closure under the terms of art.
178. If the order for relief is annulled or, as the case may be, revoked, the judicial or
extrajudicial actions for the achievement of the claims on the debtor's property may be
reinstated and the enforcement measures may be resumed. On the date on which the
order for relief becomes final, both the judicial or extrajudicial action and the suspended
enforcements shall cease.”
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17. Based on the above, the club the club requested to “suspend the player’s claim”.
Alternatively, it claimed that the exception established in art. 24 par. 3, lit. b) of the FIFA
Regulations on the Status and Transfer of Players (RSTP) is applicable in the case at stake.
III. Considerations of the Dispute Resolution Chamber
a. Competence
18. 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 28 September 2021 and submitted for
decision on 13 January 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.
19. 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 (August 2021 edition) the Dispute
Resolution Chamber is – in principle – 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.
20. At this point, the DRC acknowledged that the club contested its competence to deal with the
matter at hand and held that:
a. due to clause 18 of the employment contract combined with the insolvency proceedings
in Romania, the local court (i.e. the Sibiu Tribunal) was competent;
b. alternatively, due to the same clause 18 of the employment contract the Romanian NDRC
was competent.
21. In this context, the Chamber first of all turned to the analysis of the wording of clause 18 of
the employment contract and noted that it contains alternative references to the competence
of the ordinary courts and to the Romanian NDRC, as well as it mentions FIFA’s deciding
bodies and the Court of Arbitration for Sport (CAS).
22. On the basis of said clause coupled with the club’s contradictory submissions regarding the
competence of the Romanian NDRC and the Sibiu Tribunal, the Chamber acknowledged that
it could not be established with sufficiently clarity which of the referred decision-making
bodies, if any, would be competent to hear the present dispute. In other words, and in line
with the player’s position, the Chamber was firm to determine that the employment contract
lacked of a clear and unequivocal jurisdiction clause in compliance with the DRC’s wellestablished jurisprudence.
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23. Notwithstanding the above, the Chamber also wished to outline that although bankruptcy
proceedings appear to have been opened in Romania, the Romanian Football Federation
confirmed that the club is still affiliated and competes in its second-tier league. Therefore, the
DRC decided that the club’s argumentation in this regard should be rejected.
24. It follows from the above, in the DRC’s opinion, that the Football Tribunal is competent to
deal with the matter at hand, in line with the abovementioned art. 22, par. 1, lit. b) of the
FIFA RSTP.
b. Applicable legal framework
25. 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 (August 2021 edition), and
considering that the present claim was lodged on 28 September 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
c. Burden of proof
26. 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).
d. Merits of the dispute
27. 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
28. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the case pertains to a claim for overdue payables in connection
with the employment contract signed between the player and the club.
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29. Having analysed the parties’ submissions, the DRC noted that the outstanding amounts
claimed by the player remained unchallenged by the club. On the other hand, the Chamber
was also observant that it requested the suspension of this procedure due to the insolvency
proceedings opened before the Sibiu Tribunal.
30. In this context, the DRC wished to recall its solid jurisprudence according to which the
existence of insolvency proceedings per se does not object the entertainment of the claim,
but only may affect the execution of the decision. What is more, the Chamber also found it
noteworthy that a suspension of the proceedings as claimed by the club lacks any regulatory
basis. Consequently, the members of the Chamber unanimously decided that the club’s
argumentation could not be upheld.
31. Taking the above into consideration, the DRC considered that the outstanding remuneration
sought by the player is contractually based, supported by documentary evidence and
remained uncontested by the club. Therefore, by referring to the general legal principle of
pacta sunt servanda the Chamber decided to award him: (i) EUR 4,800 net as rent allowance;
(ii) EUR 28,450 net as salaries; and (ii) EUR 11,000 net as bonus.
32. Additionally, in attention to the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest at the rate of 5% p.a.
on the outstanding amounts as from the date in which each instalment fell due until the date
of effective payment.
33. For the sake of completeness, the DRC pointed out that the interest on the bonus of EUR
11,000 net should arise as from the date of natural expiry of the employment contract, due
to the fact that its due date was not clearly established between the parties.
34. In view of the foregoing, the Chamber concluded that the claim of the player was partially
accepted.
ii. Compliance with monetary decisions
35. 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.
36. 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.
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37. At this point, the Chamber acknowledged that the club argued that art. 24, par. 3, lit. b) of
the Regulations would be applicable to the case at stake. In doing so, the Chamber recalled
the content of the aforementioned provision, in verbis:
“Such consequences may be excluded where the Football Tribunal has:
[…] b) been informed that the debtor club was subject to an insolvency-related event
pursuant to the relevant national law and is legally unable to comply with an order.”
38. With the above in mind and bearing in mind the position of the club in this respect, the DRC
stressed that, in accordance with the clear wording of the cited provision, two concomitant
requirements have to be met so that the consequences set out under art. 24 do not apply: (i)
the debtor club is subject to an insolvency-related event pursuant to the relevant national
law; and (ii) it is legally unable to comply with an order.
39. After a thorough analysis of the documentation on file, the DRC was of the opinion that, in
spite of demonstrating that insolvency proceedings were apparently opened against it in
Romania, by simply referring to art. 75 of the National Law no. 85/2014 the club failed to
demonstrate it was subject to the second requirement stipulated by art. 24, par. 3 of the
Regulations. Likewise, the Chamber unanimously decided that the club could not establish to
a comfortable satisfaction degree that it was unable to pay the amounts due to the player
(cf. art. 13, par. 5 of the Procedural Rules).
40. To this extent – and conversely to the club’s argumentation – the DRC determined that art.
24 of the Regulations should be applied in the case at stake.
41. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the
decision, failing which, at the request of the player, 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 club in accordance with art.
24 par. 2, 4, and 7 of the Regulations.
42. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
43. 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.
e. Costs
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44. 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.
45. 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.
46. 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, Diarrassouba Ousmane Viera, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, AFC Hermannstadt, has to pay to the Claimant, the following amounts:
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until
the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until
the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until
the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until
the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 August 2020 until
the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 September 2020
until the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 October 2020
until the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 November 2020
until the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 December 2020
until the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 January 2021
until the date of effective payment;
- EUR 300 net as outstanding remuneration plus 5% interest p.a. as from 1 February 2021
until the date of effective payment;
- EUR 4,750 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2021
until the date of effective payment;
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- EUR 6,300 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until
the date of effective payment;
- EUR 6,300 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until
the date of effective payment;
- EUR 6,300 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until
the date of effective payment;
- EUR 11,000 net as outstanding remuneration plus 5% interest p.a. as from 30 June 2021
until the date of effective payment; and
- EUR 6,300 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2021 until
the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), 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.
7.
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.
8.
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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