F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 27 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 27 February 2020,

in the following composition:

Clifford Hendel (USA), Deputy Chairman

Roy Vermeer (The Netherlands), member

Stefano La Porta (Italy), member

on the claim presented by the player,

Carlos Manuel Santos Fortes, Portugal,

represented by Messrs Luis Cassiano Neves & Bernardo Morais Palmeiro

as Claimant

against the club,

CS Gaz Metan Medias, Romania,

represented by Ms Anca Alina Iordanescu

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 19 July 2018, the player Carlos Manuel Santos Fortes (hereinafter: “the player or the Claimant”) and the club CS Gaz Metan Medias (hereinafter: “the club or the Respondent”) signed an employment contract (hereinafter: “the contract”) valid as from 1 July 2018 until 30 June 2020.

2. According to art. 4 of the contract the player earned a net monthly salary of EUR 6,000, the payment of these amount will be made every month for the activities performed in the previous month until the 20th of each month.

3. According to art. 4.2.2. of the contract, the club will pay the player EUR 500 net for each goal scored, assist or penalty “removed”. According to the contract, this payment will be paid in two rates, the first until 01 February 2019 and the second until 30 June 2019.

4. According to the contract, the club had to provide accommodation to the player during the performance of the contract at the stadium hotel or to give him the payment of the rent amounting to EUR 200 net every month in accordance with letter “m” which states that the club has to reimburse to the player, based on justifying documents the amount he paid for covering.

5. According to art. XI of the contract, “this agreement will be governed and interpreted according to the Law of physical education and sport no. 69/2000, to the Civil Code, to the Regulations on the Status and Transfer of Football Players, to the Law regarding the Fiscal code and to the Regulations of FRF and FIFA”.

6. Art. XI of the contract, further stated that the conflicts related to the execution, performance, modification, suspension or termination will be solved in the following order of proceedings:

 “Amiably;

 As litigations, considering that the competence to solve such litigations belongs to the arbitration courts of sports, that is the competent committees of FRF and/or LPF, depending on the case and TAS, excepting those that belong exclusively to the competence of the courts of law, under the law”.

7. On 1 February 2019, the club, the player and U Craiova 1948 Club Sportiv S.A. (hereinafter: “Craiova”) signed a tripartite transfer agreement (hereinafter: “the transfer agreement”) in which the club transferred the player to Craiova “for an indefinite period starting on 01.02.2019”.

8. According to art. 3 c) of the transfer agreement, “The Club and the player know that with the signing of this agreement, any mutual obligations cease (in the event of definitive transfer) except for the obligations provided for in this agreement”.

9. According to art. 5 of the transfer agreement, the parties undertake to comply with and apply the provision of Romanian Football Federation (FRF) regulations in force on the status and transfer of football players (hereinafter: “the National RSTP”). The dispute arising from or in connection with this transfer agreement shall be solely settled by the courts of law provided by the Statute of FRF.

10. On 1 April 2019, the player put the club in default of EUR 8,700 (1 month salary, bonus for 5 goals and one month’s rent) granting 15 days to remedy the default.

11. On 16 April 2019, the player sent an email with a second notification whereby he informed that as the 15 days has elapsed, he was “initiating proceedings against the Club before FIFA”.

12. On 7 June 2019, the player lodged a claim against the club before FIFA, the player requested the amount EUR 8,700 and to pay interest for late over the amounts due as follows:

 5% p.a. over EUR 6,000 as from 20 February 2019 until effective payment;

 5% p.a. over EUR 2,500 as from 1 February 2019 until effective payment;

 5% p.a. over EUR 200 as from 1 February 2019 until effective payment.

13. In his claim the player further requested the imposition of “appropriate sanctions” and the intervention of FIFA on the basis of the Art 12bis RSTP.

14. The player claims that as a result of the transfer agreement signed, the contract was terminated as of 1 February 2019. The player claims that since the transfer agreement does not include any reference or statement regarding outstanding amounts, the player did not in any way relinquish his rights regarding, payable and outstanding remunerations payable until 1 February 2019. In this sense, the player claims that since the effects of the transfer agreement took place as of 1 February, the club was till “contractually required to pay all amount due until such date”.

15. The player further explained that the amounts due were outstanding for more than 30 days and provided the following:

 EUR 6,000 should have been paid at the lasts by the end of February;

 EUR 2,500 in goal bonuses should have been paid at the moment of termination;

 EUR 200 in the last month’s rent should have been the moment the player covered the payment and provide the club with the supportive documents.

16. Furthermore the player deemed, as he granted a deadline exceeding 10 days, it should be considered that the club has overdue payables in the sense of Art 12bis RSTP. Finally, the player claims that the club never indicated, either orally or in writing, that it did not owe these amounts.

17. The club contested the competence of FIFA, arguing that there was a direct reference to arbitration contained in the contract and in the transfer agreement.

18. According to the club there is an independent arbitration tribunal established in Romania, the National Dispute Resolution Chamber (hereinafter: “the CNSL”). The club claims that the jurisdiction of the independent arbitration tribunal derives from a clear reference in the employment contract, i.e. art. XI of the contract. Additionally, the club also stated that the jurisdiction of the independent arbitration tribunal derives from the clear reference in the transfer agreement, i.e. art. 5.

19. According to the club, the CNSL guarantees fair proceedings and respects the principle of equal representation of players and clubs. In this sense the club stated the following:

 The CNSL is composed of 5 member with a four-year renewable mandate;

 Chairman chosen by consensus by player and club representatives from a list of at least 5 people drawn up by the Executive Committee of FRF;

 Two player representatives appointed on the proposal of the players association, one of them also being deputy chairman;

 Two club representatives appointed on proposal of Executive Committee of FRF;

 All member should have a legal degree with at least 8 years’ experience.

20. According to the club, as provided by art. XI of the contract and 5 of the transfer agreement, applicable law is Romanian law and Regulations of the FRF.

21. According to the club, “none of the regulation cannot have priority over the obligation of the respondent to comply with the requirements of the insolvency law”. The club claims that since 25 October 2016, the club’s activity has become strictly subject to the provision of the Insolvency law as well as to the resolutions of the competent jurisdiction. On 27 April 2017, the syndic judge issued a civil judgment pursuant to which the Reorganisation Plan of the club was confirmed and it was ordered to continue the activity under management of the official receiver for and subject to his surveillance.

22. The club claims that in accordance with art. 36 of the Insolvency Law “from the date of opening the procedure is suspended of right of all the judicial actions, extrajudicial or measures of forced enforcement for the performance of the receivables on the debtor or his assets”. The club claims that art. 36 covers all actions for the settlement of claims against the debtor or his assets and that art. 36 operates is an imperative rule, which aims at concentrating all disputes concerning the debtor’s estate in the sole competence of the syndic judge.

23. With regard to the substance of this case, the club argued that by signing the transfer agreement, the player explicitly recognized that all obligations are to be terminated as of the 1st of February 2019, the notion of “any mutual obligations” encompasses all the obligation provided by the contract, including the financial ones.

24. In this context, the club argued that one of the applicable provision is art. 18 par. 6 of the National RSTP, “any material or financial contractual obligations of the club towards the Player or of the player towards the club shall cease on the signing date of the terminations agreement, except for the obligations stipulated in the respective agreement”.

25. Finally, the club requests the following:

 DRC to decide that it is not competent to deal with the claim lodged by the Claimant and

 To decide that the claim of the claimant is inadmissible or to dismiss his claim.

26. According to the player, the current dispute does not arise from the transfer agreement but rather from the contract. The player stated that the transfer agreement (which resulted in the termination of the contract) does not make any reference to outstanding amounts.

27. With regard to competence, the player stated the following:

a) Art. XI of the contract is deeply flawed as it fails to provide any certainty and clarity which arbitration court has been chosen. Said article basically establishes a commission of the FRF and arts. 41 and 42 of the FRF statutes set forth the commissions organised under the auspices of the FRF. The player stated that neither art. 41 nor art. 42 contain a reference to the CNSL. Art 43 of the FRF statutes sets out the list of FRF “tribunal” and the CNSL is listed as one of such, consequently the player stated that art. XI “wrongfully attributed competence to the FRF “commissions” which do not include the Romanian NDRC”;

b) the DRC cannot be set aside by a jurisdiction clause that can only be deemed as “pathological”, he quoted CAS 2014/A/3864 and stated that “the parties did not explicitly determine a certain national body was competent to examine, the clause merely mentions multiple alternatives”. According to the player, the DRC should be under no doubt that art. XI of the contract is a pathological clause that does not meet the regulatory jurisdiction resulting from art. 22 b) of the FIFA Regulations on the Status and Transfer of Players (RSTP).

28. In regards to applicable law, the player stated that the RSTP applies primarily and FIFA shall not be bound by national law and national law is only taken into account to “assist with the primary application of the RSTP”.

29. Moreover, the player argued that the club never denied owing the claimed amounts. Consequently, the player reiterated his request for relief.

30. According to the club, the remuneration for January 2019 was not due on the date of the transfer agreement (1 February 2019). Pursuant to art. 4 of the contract the remuneration for January 2019 should have become due on 20 February 2019.

31. The club claims that the bonus for goals was not due on the date of the transfer agreement, according to Art 4.2.2 there are two due dates (01.02.2019 & 30.06.2019) for this type of bonus and none of the them was set before the termination of the agreement.

32. In regards to the rent, the club states that no justifying documents were attached to the claim nor were forwarded to the club before or after conclusion of the transfer agreement, therefore the amount corresponding to January’s rent is not proven and could not become due before 1 February 2019.

33. The club claims that the transfer agreement was drafted and mutually agreed between the parties, as such the player was not prevented in any way to include, if he believed to be entitled to, the claim subject to the current affair.

34. According to the club, the player did not “effectively work” for the club during the month of January 2019. The club states that the team reunited on 12 January 2019 for a training camp and at that time negotiations were already under way. Furthermore, the club argued that on 16 January the player wrote an email in which he stated that he was required to return to Portugal to provide urgent assistance to his wife. According to the club the player was told that he was expected at the club premise starting on 31 January 2019.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: “the DRC or the Chamber”) analyzed 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 7 June 2019. Consequently, the 2018 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).

2. Subsequently, the members of 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 competent to deal with employment-related disputes with an international dimension between a player and a club.

3. Notwithstanding the above, the members of the Chamber acknowledged that the Respondent contested the competence of FIFA arguing that pursuant to art. XI of the contract and art. 5 of the transfer agreement the NDRC in Romania (hereinafter: “the CNSL”) was the competent tribunal to enter into the substance of this matter.

4. To start with, the Chamber pointed out that the matter at stake concerns overdue payables in connection to the contract. Therefore, the DRC concluded that only the relevant clauses in the contract at the basis of the present dispute should be examined to establish which it would be the competent body to enter and decide the present dispute.

5. In this respect, the DRC recalled that an arbitrational clause was indeed included in art. XI of the contract which states inter alia that, “Amiably; As litigations, considering that the competence to solve such litigations belongs to the arbitration courts of sports, that is the competent committees of FRF and/or LPF, depending on the case and TAS, excepting those that belong exclusively to the competence of the courts of law, under the law”.

6. However, the Chamber pointed out that in case the parties would not reach an amicably settlement, art. XI of the contract did not explicitly determine a specific national body having competence to examine the dispute to the exclusion of the competence of all other bodies which might be invoked. The DRC underlined that to the contrary, the relevant clause referred to different tribunals, i.e. “… arbitration courts of sports … or courts of law…”, providing different choices of jurisdiction.

7. As a result of the aforementioned, the Chamber concluded that the Respondent’s objection towards the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute Resolution Chamber is competent, on the basis of art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

8. 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, and considering that the present claim was lodged on 7 June 2019, the June 2019 edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.

9. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The DRC 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.

10. In this respect, the Chamber recalled that the Claimant and the Respondent concluded the contract valid from 1 July 2018 until 30 June 2020, according to which the player was entitled to the remuneration specified in points I. 2, I.3 and I.4 above.

11. Moreover, the DRC acknowledged that on 1 February 2019, the Claimant, the Respondent and Craiova, i.e. the new club of the player signed the transfer agreement.

12. Subsequently, the Chamber noted that the Claimant lodged a claim against the Respondent requesting outstanding remuneration (one monthly salary, bonuses and accommodation fees) allegedly due by the Respondent before the signature of the transfer agreement for a total amount of EUR 8,700.

13. At this stage, the Chamber took note that both parties maintained dissent positions. On the one hand, the Respondent held that by signing the transfer agreement, the player recognised that as of 1 February 2019 all contractual obligations between the Claimant and the Respondent were mutually terminated.

14. On the other hand, the DRC acknowledged the Claimant´s position which maintained that the present claim was solely based in the contract and that the transfer agreement did not include any waiver of his rights to claim outstanding remuneration until 1 February 2019.

15. The DRC focussed its attention to the content of the transfer agreement and confirmed that it included one provision, i.e. art. 3, which states “The Club and the player know that with the signing of this agreement, any mutual obligations cease (in the event of definitive transfer) except for the obligations provided for in this agreement”.

16. In this context, the DRC underlined that, as a general rule, a waiver of rights should be written in a very clear and precise way since it has a direct impact in the parties´ rights.

17. In view of the above, the Chamber was of the opinion that from the wording of the art. 3 of the transfer agreement it could not be concluded that the player waived his right to receive the remuneration gained before the signature of the transfer agreement.

18. For the sake of good order, the DRC emphasised that if the real intention of the parties was to waive rights in favour of the Claimant, the clause should have been written in a clearer way, specifying for instance, which monthly salaries, bonuses or other remuneration were included in the waiver.

19. As a consequence, the members of the Chamber concluded that by signing the transfer agreement the Claimant did not renounce to receive outstanding remuneration accrued before the 1 February 2019 based on the contract.

20. In continuation, the DRC focused its attention to the remuneration claimed by the Claimant.

21. First, the DRC observed that the Claimant was requesting EUR 6,000 as outstanding salary related to the month of January 2019.

22. In this respect, the DRC observed that the Respondent argued that the player did not render services to them during the month of January 2019. However, the Chamber noted that the Respondent did not include enough evidence proving that the Claimant breached his contractual obligations.

23. The Chamber stated that in January 2019, the Claimant was still an employee of the Respondent and that, in accordance with the general principle of pacta sunt servanda which in essence means that agreements must be respected by the parties in good faith, the Respondent must fulfil the obligations it voluntarily entered into with the Claimant by means of the contract.

24. Therefore, the DRC concluded that the Respondent should pay to the Claimant the monthly salary of January 2019 amounting to EUR 6,000. In addition, the DRC took note that the Claimant had requested interest over the outstanding amount.

25. In view of the above, the DRC decided to grant the player the amount of EUR 6,000 as monthly salary corresponding to January 2019, as well as, an annual interest at a rate of 5% applicable from 20 February 2019 until the date of effective payment.

26. In continuation, the Chamber turned its attention to the Claimant´s request for EUR 2,500 representing bonuses.

27. In this respect, the DRC underlined that art. 4.2.2. of the contract established the obligation to pay bonuses to the Claimant for achieving certain objectives.

28. Furthermore, the Chamber acknowledged that the Claimant provided evidence of reaching the relevant objectives which triggered the payment of the requested bonuses. The Chamber further noted that the Respondent did not contest the evidence provided by the Claimant.

29. However, the DRC focussed its attention to the Respondent´s allegation that the Claimant was not entitled to receive the requested amount since the due dates for payments of bonuses were until 1 February 2019 and 30 June 2019 respectively.

30. In this regard, the members of the Chamber were of the opinion that since the objectives mentioned in the art. 4.2.2. of the contract were achieved by the Claimant during the employment relationship with the Respondent, the Claimant should be entitled to receive the relevant bonus despite the fact that the due dates were set by the parties after 1 February 2019.

31. In view of the above, the DRC decided that the Claimant was entitled to receive the amount of EUR 2,500 as bonus plus an interest at a rate of 5% per annum from 2 February 2019 until the date of effective payment.

32. Finally, the Chamber turned its attention to the Claimant´s request for EUR 200 as accommodation fees.

33. In this respect, the DRC noted that, in fact, it was contractually agreed by the parties that the club should provide accommodation or reimburse the costs paid in this regard by the player. Moreover, the DRC pointed out that said contractual clause required as a condition to receive the relevant reimbursement, that the Claimant should provide documentary evidence to the Respondent proving having paid the accommodation fees.

34. In this regard, the Chamber noted that the Claimant did not provide evidence regarding the payment of accommodation.

35. Therefore, the DRC concluded that the Claimant´s request for EUR 200 as accommodation fees should be rejected in accordance with the art. 12 par. 3 of the Procedural Rules.

36. Furthermore, taking into account the consideration under point II./8. above, the Chamber 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.

37. In this regard, the Chamber 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.

38. Therefore, bearing in mind the above, the DRC 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.

39. Finally, the Chamber 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.

40. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the parties are rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Carlos Manuel Santos Fortes, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, CS Gaz Metan Medias, has to pay to the Claimant outstanding remuneration in the amount of EUR 8,500 plus interest as follows:

a. 5% p.a. over EUR 6,000 as from 20 February 2019 until effective payment;

b. 5% p.a. over EUR 2,500 as from 2 February 2019 until effective payment.

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 point 3 above.

6. The Respondent shall provide evidence of payment of the due amount in accordance with point 3 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due in accordance with point 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 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.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer