Labour Disputes
Texto da decisão
REF FPSD-4985
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player Roman
Yaremchuk
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Roman Yaremchuk, Ukraine
RESPONDENT:
K.A.A. GENT, Belgium
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REF FPSD-4985
I.
Facts of the case
1.
On 6 October 2020, the Ukrainian player, Roman Yaremchuk (hereinafter: the Claimant), and the
Belgian club, K.A.A. GENT (hereinafter: the Respondent) signed an employment contract
(hereinafter: the contract), valid as from 6 October 2020 until 30 June 2025.
2.
Pursuant to article 11 of the contract, the Respondent undertook to pay the following
remuneration to the Claimant:
“Contractual fees:
Fixed monthly fee:
• EUR 17,000 gross + leave allowance
Variable fees:
• Premium for a match in a regular competition + Play Offs (1st Team, if included into the referee’s list)
o Score draw: EUR 500 gross
o Win: EUR 1,500 gross
• Start premium: gross premium in the amount of EUR 500 for a league match (Jupiler Pro League) in
the first team where the Player starts in the first eleven.
Miscellaneous - advantages:
• Sign premium / loyalty premium will be payable in tranches as follows:
- For season 2020-2021: EUR 1,100,000 gross
i. (Paid out: EUR 500,000 gross as of September 15, 2020)
ii. EUR 300,000 gross, due date October 15, 2020
iii. EUR 500,000 gross, due date March 15, 2021
iv. EUR 300,000 gross, due date April 15, 2021
- For season 2021-2022: EUR 1,600,000 gross
i. EUR 500,000 gross, due date September 15, 2021
ii. EUR 300,000 gross, due date October 15, 2021
iii. EUR 500,000 gross, due date March 15, 2022
iv. EUR 300,000 gross, due date April 15, 2022”
3.
Article 11 par. 4 of the contract, inter alia, mentions the following:
“The Club will provide the Player with the company car HYUNDAI TUCSON or a similar one. The lease
contract will be fully borne by the Club. The Player will pay fines for traffic violations and damages
caused (a part thereof), unless covered by insurance.”
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4.
Article 11 par. 5 of the contract, inter alia, mentions:
“The approximate remuneration means the amount of fixed and variable fees agreed in the employment
contract:
All other components of the salary will not be included into the established remuneration:
- employer contribution
- leave allowance
- transfer premium
- sign premium / loyalty premium
- benefits in kind (such as house, car, clothes, air tickets, etc.)
- other contractual payments (such as actual expenses, etc.)”
5.
Additionally, article 11 par. 6, inter alia, mentions the following:
“The Club warrants to the Player a minimum net profit in the amount of EUR 1,000,000 (one million) per
season of his employment with the Club. In the event that the Player is employed at the club for less
than the entire season, the minimum warranty will be distributed pro rata to the number of months
actually paid to the Club’s payroll fund. If the Player is injured for more than 1 months, the minimum
warranty will not be applicable from the second month till the date of recovery.”
“For the calculation of the received income and achievement of the minimum income, all possible
compensations and benefits given to the Player during a season will be taken into account, except for
contributions to the group insurance. This includes (but not limited to) a gross monthly salary, leave
allowances, allowances in kind (in real terms), all possible premiums (match, start, double or triple
premiums in the discretion of the chairman, and European, qualification, classification premiums, …),
sign premiums, etc.”
“The final settlement will be made on June 30 of each season and, in case of the Player’s failure to
achieve the established minimum, the balance will be transferred by July 15 at the latest.”
6.
In August 2021, the Claimant was transferred to the Portuguese club Benfica on a definitive basis
and as a result thereof, his employment with the Respondent was de facto terminated on
31 July 2021.
7.
Moreover, in the month of August 2021, the parties exchanged correspondence regrading a
potential termination agreement. Nonetheless, a formal agreement was never executed between
the parties, in light of the fact the Claimant disagreed with the terms of the draft termination
agreement sent by the Respondent that provided for the amount of EUR 90,486.80 “as the
settlement of all remaining debts or obligations of the Respondent before the Player deriving from my
employment.”
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8.
On 17 November 2021, the Claimant sent a notice of default to the Respondent requesting
payment of the following:
i. EUR 103,918.83 net regarding his outstanding salaries for season 2020/2021; and
ii. EUR 70,343.75 net regarding his outstanding salary for July 2021.
9.
The Claimant mentioned that in reply to the aforesaid correspondence, the Respondent argued
that only EUR 38,832.56 is due to him on the basis of a deduction made by the Respondent in
relation to “additional fees for car leasing, damages caused to the club’s car, medical care.”
10. In the same letter, the Claimant, in addition, referred to an email sent on 9 September 2021 by the
Respondent to his agent, in accordance with which the Respondent deemed it lawful to deduct
certain amounts from the outstanding remuneration of the Claimant. The Claimant disagreed with
the said deductions and refused to accept the deductions, which were made as follows:
Leasing fees 12x750 €
Article 11(4) of the Employment Contract provides
9.000 €:
‘The Club will provide the Player with the company car HYUNDAI
TUCSON or a similar one. The lease contract will be fully borne by
the Club. The Player will pay fines for traffic violations and
damages caused (a part thereof), unless covered by insurance’
(emphasis added)
Medical care
The Claimant never requested the Club to hire additional psycho-
(psycho - support DHOORE)
support specialist for him. It was Club’s decision to engage
29.509,25 €
DHOORE services for my treatment. Moreover, the
Article 6 of the Employment Contract is clear with regard to the
expenses made on medical care:
Fines + car damages
The Claimant returned the Club’s car in a perfect condition.
4.446,03 €
Upon request from the Claimant the Respondent has never
provided any supporting documents justifying the amount of
damages caused to the Club’s car or fines. In any case the burden
of proof of this alleged fact lies with the Respondent.
11. Moreover, according to the Claimant, “pursuant to the Respondent’s payroll for July 2021 the Claimant
actually received 12,989.58 € as a net salary for July 2021. For the season 2021/2022, and according to
the real time passed in KAA GENT’s payroll, I should have received a total net remuneration in
EUR amounting to 83.333,33 € based on the quoted above Art.11 (6) applicable prorate temporis.”
12. In conclusion, the Claimant in his letter of 17 November 2021 stipulated that he never accepted a
settlement offer from the Respondent.
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II.
Proceedings before FIFA
13. On 28 January 2022, the Claimant filed the claim at hand before FIFA.
a.
Position of the Claimant
14. In his claim, the Claimant requested the total amount of EUR 174,262.58 regarding his outstanding
salaries, corresponding to:
(a)
EUR 103,918.83 as outstanding remuneration, related to season 2020/2021; and
(b)
EUR 70,343.75 as outstanding salary for July 2021.
15. Additionally, the Claimant requested to be awarded 5% interest p.a. for the late payment of the
guaranteed salaries, namely:
-
5% interest p.a. from EUR 103,918.83, starting from 15 July 2021 until payment date
-
5% interest p.a. from EUR 70,343.75, starting from 1 August 2021 until payment date.
b.
Position of the Respondent
16. In reply to the claim, the Respondent mentioned that it does not agree with the Claimant that for
“the season 2020-21 - the remaining sum of 103.918,83 EUR (1.000.000 EUR guaranteed net minimum
salary minus 896.081,17 EUR) still has to be paid.”
17. In this context the Respondent argued “that certain amounts paid in relation to the provided vehicle
and for the psychological assistance also have to be taken into consideration for the calculation of the
guaranteed minimum salary, as well as some diverse costs that were not included.”
18. In relation to the vehicle, which was provided by the Respondent, it indicated that in accordance
with article 11 par. 6 of the contract, the costs thereof were to be considered as part of the salary
income of the Claimant.
19. Moreover, in accordance with article 11 par. 4 of the contract, the Claimant is responsible for the
payment of traffic fines and damages not covered by insurance.
20. The Respondent mentioned that all amounts in relation to the psychological assistance have to be
considered as a benefit in kind. In this context, the Respondent indicted that “the mental coaching
was an extra service that Mr. Yaremchuk asked for and the psychologist that was hired - Mr. Francisco
D'Hoore- worked exclusively for Mr. Yaremchuk. This is absolutely no standard service that the team
offers for every player, nor did the psychologist ever worked in group sessions. It was a very intense and
purely individual coaching program.”
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21. In this regard, the Respondent considers that the amount of EUR 43,017.60 that were paid for this
very exclusive service as a benefit in kind, which is a component of the salary “that was rewarded
to the player on his own request to make him a better athlete in but also outside the framework of his
work for the Respondent.”
22. Additionally, the Respondent highlighted other costs in relation to the Claimant and his family were
paid by the Respondent in the total amount of EUR 146.75 have to be considered as a benefit in
kind, namely:
-
“Health insurance contribution: EUR 120
-
Pharmacy costs for the wife of Mr. Yaremchuk: EUR 26,75 “
23. As for the 2021-2022 season, the Respondent disagrees that the amount of EUR 70,343.75 is due
to the Claimant as in its opinion “this prorated minimum salary is not due because of the fact that
Mr. Yaremchuk was absent/not willing to train with the group during the month of July and did not
perform any of his contractual obligations at all.”
24. In this context, the Respondent mentioned:
-
“He participated in the EC with Ukraine from 16/06/2021 - 03/07/2021
-
Afterwards, he decided to take time off (holiday) until 21/07 /21 included, and not to join the first team
of KAA GENT that had already started the preparation of the new season He didn't participate in the first
official games of the club in the qualification round of the Conference League (22/07/2021 against
Valerengen) and the competition (25/07/2021 against STVV)
-
After his return, he refused to take part in the group training sessions of the team, because he was afraid
to get injured and put his transfer at risk, from 22/07 - 26/07.
-
As from 27 /07 he didn't show up anymore, being already in Portugal to close the transfer with Benfica.”
25. Despite the aforesaid the Respondent indicated that in accordance with article 11 par. 6 of the
contract, the amount claimed for this specific season is not due yet as “the final settlement for the
sums of the season 2021- 22 is to be made on 30th of June 2022 and the payment of the remaining
sums must be made no later than 15th of July 2022. The claimant agreed with these contractual terms.”
26. Lastly the Respondent stipulated the following:
“The Claimant states sub paragraph 23-24 that no future payments after the date of 31st July are due
and that payment therefore should be "done on request". This is simply not true. A bonus for 17.081,96
EUR net (i.e. 36.735,40 gross with 53,5% payroll tax) for the achievement of playoff 2 and the
qualification for the UEF A Conference League has yet to be paid to the claimant and the set-off of these
amounts to guaranteed minimum salary has yet to be made.”
27. In conclusion the Respondent indicated that:
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(a)
for the season 2020-2021, the total amount of EUR 950,057.77 has to be set-off against the net
guaranteed minimum salary of EUR 1,000,000:
-
Salaries and Bonuses already paid (no discussion on this amount) – EUR 896,081.17
-
Lease Fees Hyundai Tuscon – EUR 9,000
-
Fines + Administrative costs – EUR 756
-
Damages to car – EUR 8,189.17
-
Mental Training Program on request of Mr. Yaremchuk – EUR 43,017.60
-
Diverse cost – EUR 146,75
Hence due to the Claimant is the amount of EUR 42,809.33
(b)
For the season 2021-2022, “no prorated minimum salary is due because Mr. Yaremchuk was unwilling
to train with the group. Even if one would accept that Mr. Yaremchuk has a right to a prorated minimum
salary, then - according to the contractual terms of article 11.6 - this debt shall only be established on
30 June 2022.”
28. The Respondent requested that its remarks is considered, and that the Claimant be condemned
to pay the cost.
III.
Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. 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 January 2022 and submitted for decision on
23 June 2022. Taking into account the wording of art. 34 of the June 2022 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.
30. 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 (March edition), 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 Ukrainian player and a Belgian club.
31. 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 (March 2022 edition) and considering that the
present claim was lodged on 28 January 2022, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
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b. Burden of proof
32. 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).
c.
Merits of the dispute
33. 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 abovementioned 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
34. 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 payment of certain financial obligations
by the Respondent as per the contract, namely the outstanding remuneration of the Claimant
relating to the 2020/2021 season and for the month of July 2021.
35. In this context, the Chamber acknowledged that its task was to determine, based on the evidence
presented by the parties, whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the latter had a valid justification for not having complied with its
financial obligations.
36. The Chamber first noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
37. In this context the Chamber noted that the Respondent disagreed with the total amount which
was due to the Claimant arguing that certain amounts which was paid to the latter should be
considered as a “benefit in kind”, and should be considered as part of the salary income of the
Claimant.
38. In this regard, the Chamber observed that the Respondent considered it was entitled to the deduct
from the salary income of the Claimant, the following amounts paid to the Claimant as a “benefit
in kind”:
-
Lease Fees Hyundai Tuscon – EUR 9,000
-
Fines + Administrative costs – EUR 756
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-
Damages to car – EUR 8,189.17
-
Mental Training Program on request of Mr. Yaremchuk – EUR 43,017.60
-
Diverse cost – EUR 146,75
39. The DRC turned its attention to the argument put forward by the Respondent regarding its
entitlement to deduct the aforesaid amounts from the Claimant’s salary and to this end, the
members of the Chamber analysed the contract and confirmed that it did not contain any
reference to a possible deduction of the said amounts from the salary of the Claimant.
40. The Chamber remarked that article 11 par. 5 of the contract specifically mentions that benefits in
kind (such as house, car, clothes, air tickets, etc.), shall not be included in the established
remuneration of the Claimant. Moreover, the Chamber indicated that in accordance with article
11 par. 6 of the contract, the Claimant is entitled to a minimum guaranteed salary of EUR 1,000,000,
indicating that though certain compensation and benefits are included as minimum income, there
is not an expressed provision which could indicate that the benefit in kind as highlighted by the
Respondent forms part of or should be considered as the said minimum guaranteed income of
the Claimant.
41. Consequently, the DRC concluded that there is no legal basis in the contract that could justify a
deduction of the amounts as indicated by the Respondent from the salary and/or outstanding
remuneration of the Claimant.
42. As to the traffic fines, the Chamber referred to article 11 par. 4 of the contract which stipulates
that the Claimant will pay fines for traffic violations etc., however the provision does not indicate
that traffic fines could be set-off against the income of the Claimant.
43. In continuation the DRC observed that despite the aforesaid, even though the Respondent
provided documentation relating to traffic fines and damages, the Chamber deemed that the said
documentation cannot be taken into account in assessment of this matter for the following
reasons:
-
the documentation is not translated into one of the official languages of FIFA.
-
a clear link cannot be established between the Claimant and the said vehicle/s as the damages
report provided by the Respondent relate to a Mercedes Benz vehicle and not a Hyundai vehicle
which according to the Respondent provided to the Claimant.
-
moreover, the damage regarding the said vehicle seems to date back prior to the commencement
of the Claimant’s contract.
44. Furthermore, the DRC referred to the argument of the Respondent in relation to the mental
coaching provided to the Claimant and decided that on analysis of the documentation on file it
deemed that the agreement regarding the mental coaching was established between the
Respondent and the said service provider which service was offered to the Claimant, hence this
argument of the Respondent cannot be upheld.
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45. Taking all of the above into account, the DRC held that the amounts referred to by the Respondent
as “benefit in kind”, detailed in III. / par. 37 et seq. above cannot be deducted from the outstanding
remuneration due to the Claimant for the 2020-2021 season.
46. Lastly the DRC referred to the 2021-2022 season and mentioned that the said amount was not
disputed by the Respondent as it only argued that the pro rata salary is not due to the Claimant
due to his unwillingness to train, in this regard the DRC remarked that the Respondent failed to
duly substantiate its argument with the corroborating evidence and therefore it cannot be upheld.
47. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the Respondent
is to be held liable to pay the Claimant the outstanding amounts deriving from the contract
concluded between the parties.
ii. Consequences
48. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
49. As a consequence, the Chamber decided that the Respondent is liable to pay to the Claimant the
total amount of EUR 174,262.58 which were outstanding under the contract.
50. In addition, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on
the outstanding amounts as follows:
(a)
on the amount of EUR 70,343.75 as from 1 August 2021;
(b)
on the amount of EUR 103,918.83 as from 28 January 2022.
iii. Compliance with monetary decisions
51. 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.
52. 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.
53. 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
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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.
24 par. 2, 4, and 7 of the Regulations.
54. 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.
55. 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.
d. Costs
56. 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.
57. 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.
58. 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, Roman Yaremchuk, is accepted.
2.
The Respondent, K.A.A. GENT, has to pay to the Claimant, has to pay to the Claimant, the amount
of EUR 174,262.58 as outstanding remuneration plus 5% interest p.a. as from the respective due
dates until the date of effective payment as follows:
3.
-
on the amount of EUR 70,343.75 as from 1 August 2021;
-
on the amount of EUR 103,918.83 as from 28 January 2022.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players 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 the ban shall be 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 made by the end of
the three entire and consecutive registration periods.
5. The consequences shall only be enforced at the request of the Claimant in accordance with
article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6. 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).
CONTACT INFORMATION
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