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 28 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 28 February 2020,

by Jon Newman (USA), DRC judge,

on the claim presented by the player,

Rudolf Avaro Santiago Ignacio Pablo, Italy,

represented by the AFAN

as Claimant

against the club,

Club ACS Poli Timisoara, Romania

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 21 August 2018, the Player and the Club signed an employment contract (hereinafter; the contract). According to Art. 3 of the contract, the contract has a fixed term between 22 August 2018 and 30 June 2019.

2. Art. 9 of the contract provides for the following remuneration and benefits:

a) Romanian Lei (RON) 4,600 net, payable “on each day of 20 of the month following the month the payment is made for”;

b) EUR 3,000 net as bonus, paid in RON “if the team promotes at the final season 2018-2019 in the First League, in 60 days from the final of the championship”;

c) EUR 1,000 net as bonus, paid in RON “if the player will play in the first eleven 50% of official matches by the end of 2018, in 60 days by the end of 2018”;

d) “extra payments, benefit, additional benefits in money, additional in-kind benefits”, not specified.

3. On 22 November 2018, the Player sent a notification to the Club asking for the payment of RON 10,730 corresponding to the months of August (RON 1,530 net), September (RON 4,600 net) and October 2018 (RON 4,600 net). The player gave the club a deadline of 15 days. The Player stated that if the club did not fully comply, then in accordance with Art 14bis of the RSTP, he would “unilaterally terminate the contract for just cause”.

4. On 14 December 2018, the Player sent a notification to the Club in which he referenced the letter sent on 22 November 2018 and terminated the contract. In this letter the Player also stated that the salary of November 2018 in LEI 4,600 net also became due on 10 December 2018.

5. On 17 December 2018, the Player lodged a claim before FIFA against the Club requesting the following:

a) To note that the Player unilaterally terminated with just cause the contract

b) Condemn the club to pay to the Player outstanding salaries in 15,330 Lei (EUR 3,333) representing the following:

 1,530 Lei (EUR 333 net) as rest of salary for August 2018;

 4,600 Lei (EUR 1,000 net) salary for month of September 2018;

 4,600 Lei (EUR 1,000 net) salary for month of October 2018;

 4,600 Lei (EUR 1,000 net) salary for month of November 2018.

c) To condemn the club to pay to the Player a financial compensation until the end of contract amounting to 32,200 Lei (EUR 7,000 net) representing the salaries for December 2018, January, February, March, April, May and June 2019.

6. According to the Player, Art 3 and 9 of the contract (Art 9.1 & 9.4) state that the Club undertakes to pay the Player his salary, which is to be paid on each day of 20 of the month following the month the payment is made for.

7. According to the Player, as the Club did not fully comply with its financial obligations within the deadline of 15 days granted, the Player sent a notification for unilateral termination.

8. The Player considers that since the Club was put in default in writing and was granted a deadline of 15 days to comply, the termination is with just cause.

9. According to the Club, no breach of contract has occurred and provided the following arguments:

 “The Club has paid the due financial obligations towards the player, payments being made accordingly, except for possible delays of several days, due to the hardships that any club of this stature encounters in the present economic conditions”;

 The Club “paid to the player all salaries, according to the contractual provisions, including the salary for October - as it results from the enclosed exhibit, in amount of RON 4.600 (approximately EUR 1000). That payment was made on 31 December 2018”;

 “It was the Player who, in November 2018, left the team without noticing the club staff and management. According to the team coaches and the sports director of the club, the player was absent without leave from the team training since November l".

10. According to the Club, the Player never returned to Romania and additionally they “offered him to be operated in a hospital from our city, Timisoara, but the Player declined that offer, out of reasons unknown to us”.

11. In his replica, the player substantially reiterated his position and took position on the club’s allegations.

12. With regard to the payments that the club alleged having performed, the player replied that – out of all the documents submitted by the club with its reply – only two were real payments, namely: a. RON 4,600 performed on 4 December 2018 and b. RON 4,600 on 11 December 2018.

13. The player clarified that no other wire transfers were performed by the club towards him. He maintained that the other document provided by the club does not constitute proof of payment as it is not a document issued by a bank.

14. The player insisted that he had just cause to terminate the employment contract as, on 13 December 2018, the club was grossly late with the payments of his salaries and had not paid him those related to the months of August and November 2018.

15. Lastly, the player added that it was not true that he did not participate in the trainings in November 2018 as claimed by the club.

16. Despite having been invited to do so, the Club did not submit any final comments regarding the case.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether it was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 17 December 2018 and decided on 28 February 2020. Taking into account the wording of art. 21 of the 2019 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.

2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between an Italian player and a Romanian club.

3. Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 17 December 2018, the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. In this respect, the DRC judge acknowledged that on 21 August 2018 the Claimant and the Respondent concluded an employment contract valid as from 22 August 2018 and 30 June 2019.

6. Moreover, the DRC judge took note that on 14 December 2018, the player unilaterally terminated the contract with the club, after having put it in default on 22 November 2018, for the non-payment of RON 10,730 corresponding to the months of August (RON 1,530 net), September (RON 4,600 net) and October 2018 (RON 4,600 net), granting the club a deadline of 15 days to remedy the default.

7. The DRC judge further took note that the Respondent, for its part, claims to have paid the player all his contractual dues, some of them delayed due to financial hardship, and deems that the player abandoned the trainings in November 2018 without authorisation.

8. The DRC judge also noted that the Claimant in his replica recognises having received from the club the amount of RON 4,600 on 4 December 2018 and of RON 4,600 on 11 December 2018, but rejects any other allegations of the club.

9. Finally, the DRC judge noted that the Respondent did not submit its duplica.

10. In this context, the DRC judge established that the main issued he would have to examine in the present case was whether the reasons put forward by the Claimant could justify the termination of the contract on 14 December 2018.

11. At this point, the DRC judge deemed it appropriate to remind the parties of the wording of art. 12 par. 3 of the Procedural Rules, according to which a party claiming a certain right bears the burden of proof. In the present case, the Respondent bore the burden of proving that it indeed paid all the player’s remuneration correctly or that it had a reasonable justification not to have done so.

12. Having said that, the DRC judge first noted that the club did not provide any substantial absence of the player’s alleged absence without authorisation as from November 2018. The player in fact denied such allegation in his replica and the club failed to submit its duplica. Consequently, the DRC judge concluded that such allegation of the club could not be sustained.

13. The DRC judge went on to analyse the payments made by the Respondent and whether the player would then have had a just cause to terminate the contract on 14 December 2018 based on allegedly outstanding remuneration.

14. In this context, the DRC judge reminded the parties of the wording of art. 14bis par. 1 of the Regulations, according to which “In the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s)”. (emphasis added)

15. In this respect, the DRC judge acknowledged the documentation provided by the parties and noted that in his default notice of 22 November 2018, the Player requested the payment of his salaries for August (RON 1,530 net), September (RON 4,600 net) and October 2018 (RON 4,600 net), in the total amount of RON 10,730, granting the club a 15-day deadline to remedy the default. The player acknowledged two payments of RON 4,600 on 4 December 2018 and of RON 4,600 on 11 December 2018, in total RON 9,200.

16. Thus, in line with the wording of art.14bis par. 1 of the Regulations, the Respondent did not fully comply with its financial obligations within the 15-day deadline and therefore the player had a just cause to terminate the contract on 14 December 2018.

17. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the Respondent’s unjust breach of the contract.

18. Having established the foregoing, the DRC judge focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

19. But before entering the calculation of the amount of compensation due to the Claimant by the Respondent, the DRC judge first established the amount of outstanding remuneration due to the player by the time of termination. In accordance with the general legal principle of pacta sunt servanda, the DRC judge decided that the Respondent is liable to pay to the Claimant the amount of RON 6,130 as outstanding remuneration, corresponding to his partial August salary (RON 1,530 net), and his full salaries for September to November 2018 (3 x RON 4,600 net), minus the RON 9,200 the player acknowledged having received after the default notice. The Claimant did not request any interest on the aforementioned amount.

20. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

21. In application of the relevant provision, the DRC judge held that he first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

22. As a consequence, the DRC judge determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

23. The DRC judge then turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by him to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into account both the existing contract and the new contracts in the calculation of the amount of compensation.

24. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 14 December 2018, until the end of the contract, and concluded that the Claimant would have received in total LEI 32,200 as remuneration had the contract been executed until its expiry date. Consequently, the DRC concluded that the amount of LEI 32,200 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

25. In continuation, the DRC judge verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

26. The DRC judge noted that the player did not manage to mitigate his damages, as he did not sign any new employment contract since he terminated the contract with the Respondent.

27. Consequently, on account of all of the above-mentioned considerations, the DRC judge decided that the Respondent must pay the amount of LEI 32,200 as compensation for breach of contract in the case at hand. No interest was requested on the compensation either.

28. The DRC judge concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected and that his claim is partially accepted.

29. Furthermore, taking into account the consideration under number II./3. above, the DRC judge 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.

30. In this regard, the DRC judge 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.

31. Therefore, bearing in mind the above, the DRC judge 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.

32. Finally, the DRC judge 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.

III. Decision of the DRC judge

5. The claim of the Claimant, Rudolf Avaro Santiago Ignacio Pablo, is partially accepted.

6. The Respondent, ACS Poli Timisoara, has to pay to the Claimant outstanding remuneration in the amount of Romanian Lei (RON) 6,130.

7. The Respondent has to pay to the Claimant compensation in the amount of RON 32,200.

8. Any further claim of the Claimant is rejected.

9. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2 and 3 above.

10. The Respondent shall provide evidence of payment of the due amount in accordance with points 2 and 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).

11. In the event that the amounts due in accordance with points 2 and 3 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

12. The ban mentioned in point 7 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

13. 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.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the Dispute Resolution Chamber. 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 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). 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

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer