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 4 June 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 4 June 2020,

regarding an employment-related dispute concerning the player Federico Taborda

COMPOSITION:

Clifford J. Hendel (USA) / (France), Deputy Chairman Elvis Chetty (Seychelles), member Tomislav Kasalo (Croatia), member

CLAIMANT:

FEDERICO TABORDA, Italy

Represented by Mr. Pedro Macierinha

RESPONDENT 1:

FK SENICA, Slovakia

Represented by Mr. Sergio Ribeiro

I. FACTS OF THE CASE

1) On 1 June 2019, the Claimant and the Respondent (hereinafter jointly referred to as the parties) signed an employment contract, valid as from 1 July 2019 until 30 June 2020, for, inter alia, a monthly salary of EUR 3,807 payable “no later than on the last day of the following month”. Moreover, the Respondent undertook to provide accommodation for the Claimant in the amount of EUR 350. The said contract also established that health insurance in the amount of EUR 100/month will be deducted from the Claimant’s salary.

2) Furthermore, the contract contains the following clause:

“9. The club is obliged to deduct and pay health insurance from the player’s salary according t the relevant legislation. The health insurance (for health and complete medical insurance is 100 EUR per month. The player is obliged to pay the health insurance in advance in the following amounts: to 31/07/2019 – 300 EUR, to 31/08/2019 – 300 EUR, to 31/01/2020 – 300 EUR, to 28/02/2019 – 300 EUR”.

3) In addition, the contract contains the following clauses regarding the termination of the contract:

4) According to the Claimant, the Respondent omitted to pay him the amount of EUR 9,114: (i) “EUR 1,500 due for the month of October 2019”; (ii) “EUR 3,807 due for the month of November 2019”; (iii) “EUR 3,807 due for the month of December 2019”.

5) On 14 January 2020, the Claimant sent a default notice requesting the above mentioned amount, granting the Respondent a deadline of 15 days to remedy his default, to no avail.

6) On 30 January 2020, the Claimant terminated the contact, requesting EUR 12,675.38, i.e. EUR 9,114 as mentioned above and 29 days outstanding salary of January 2019 (EUR 9,114 + EUR 3,561.38 = EUR 12,675.38), to no avail.

II. PROCEEDINGS BEFORE FIFA

A. Claim of the Claimant

7) Based on the aforementioned facts, on 6 February 2020, the Claimant lodged a claim against the Respondent for outstanding remuneration and compensation for breach of contract, claiming the following amounts:

Outstanding remuneration in the total amount of EUR 12,921, specified as follows:

 EUR 1,500 as outstanding salary for October 2019;

 EUR 3,807 as outstanding salary for November 2019;

 EUR 3,807 as outstanding salary for December 2019;

 EUR 3,807 as outstanding salary for January 2019.

Compensation for breach of contract in the total amount of EUR 19,035, specified as follows:

 The residual value of the contract in the period between February 2020 and June 2020, corresponding to 5 monthly salaries of EUR 3,807 each.

8) The Claimant maintained that he terminated the contract with just cause according to art. 14bis of the Regulations, as the Respondent failed to pay him more than two monthly salaries and disrespected the legal principle of pacta sunt servanda. Moreover, the Claimant requested compensation in the amount of the remaining value of the contract, i.e. five monthly salaries.

B. Reply of the Respondent

9) In its reply, The Respondent in its reply to the claim, sustained that it has faced financial difficulties and tried to accommodate the Claimant requests by helping and allowing him to find another club with the promise of not requesting any transfer fee or training compensation from his future club.

10) The Respondent affirmed that the Claimant left the Respondent for training with a new one in order to try to be employed by the latter. However, according to the Respondent he failed.

11) Finally, the Respondent held that the Claimant lodged a claim for the sole purpose of compensating the fact he has not obtained a new employment contract with another club.

C. Contractual situation of the Claimant

12) The Claimant confirmed that after the unilateral termination of the contract, he remained unemployed.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

A. Competence

13) The Dispute Resolution Chamber (hereinafter also referred to as the DRC or the Chamber) analysed 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 6 February 2020 and decided on 4 June 2020. Consequently, the June 2020 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).

14) Subsequently, 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 in principle competent to deal with employment-related disputes with an international dimension between a player and a club.

B. Applicable legal framework

15) The Chamber analysed which edition of the 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 6 February 2020, the January 2020 edition of said regulations is applicable to the matter at hand as to the substance.

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

C. Burden of proof

17) The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

D. Merits of the dispute

I. Main legal discussion

18) The fundamental disagreement between the parties, at the basis of the present dispute, is the question whether or not the unilateral termination of the contract made by the Claimant on 30 January 2020, would lead to the entitlement of the Claimant to receive compensation for rbeach of contract.

19) On the one hand, the Claimant claims that he unilaterally terminated the employment contract with just cause according to art. 14bis of the Regulations, as the Respondent failed to pay him more than two monthly salaries and disrespected the legal principle pacta sunt servanda.

20) On the other hand, the Chamber noted that the Respondent did not contest that – due to financial difficulties – it had outstanding debts towards the Claimant and that it even tried to help the Claimant to find a new club. However, the Respondent is of the opinion that the only reason the Claimant lodged a claim before FIFA was the fact that he did not find new employment with another club and that by means of a complaint before the Dispute Resolution Chamber of FIFA; he could request that the Respondent by ordered to pay him compensation for breach of contract.

21) In view of the diverging positions of the Claimant and the Respondent, the Chamber deemed that it had to analyze whether the unilateral termination of contract made by the Claimant on 30 January 2020, was made with or without just cause.

II. Considerations

22) In this context, the Chamber first acknowledged that the Claimant and the Respondent signed an employment contract valid as from 1 as from 1 July 2019 until 30 June 2020, for, inter alia, a monthly salary of EUR 3,807.

23) What is more, the DRC noted that the Claimant had unilaterally terminated the contract on 30 January 2019, alleging that the total amount of EUR 12,675.38 remained outstanding, corresponding to a partially outstanding salary for October 2019 in the amount of EUR 1,500, the full outstanding salary for November 2019 in the amount of EUR 3,807, the full outstanding salary for December 2019 in the amount of EUR 3,807 and the pro rata outstanding part of the salary for January 2019 in the amount of EUR 3,561.38.

24) Subsequently, the DRC observed that the Respondent, for its part, it did not contest that the salaries between October 2019 and January 2020 remained unpaid. The Respondent mainly alleged that it was facing financial difficulties, which made it impossible for its club to fulfill its contractual obligations.

25) In addition, the Chamber noted that on 14 January 2019, the Claimant had put the Respondent in default of the payment of the total amount of EUR 9,114, that is, the outstanding (part) of the salaries for October, November and December 2019, granting the Respondent 15 days to remedy the default, however to no avail, and consequently, had unilaterally terminated the contract on 30 January 2019, mentioning art. 14bis of the RSTP and claiming the Respondent had still not paid his salary for November 2019.

26) At this point, the Chamber deemed it appropriate to remind 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)

27) Bearing in mind the foregoing, the DRC noted a) that the Claimant acted in accordance with art. 14bis of the Regulations, b) that after the default notice the Respondent did not make any payments at all to the Claimant and c) that the termination of the contract was made 16 days after the default notice was sent, which gave the Respondent 15 days to remedy its default.

28) Based on the foregoing, the DRC concluded that the Claimant had met dthe criteria liad down in art. 14bis of the Regulations and therefore, had a just cause to terminate the contract.

29) As a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

30) In continuation, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive from the club an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract.

31) In this regard, the DRC first addressed the issue of unpaid remuneration at the moment when the contract was terminated by the Claimant and decided that, since the Respondent did not contest that it had outstanding debts towards the Claimant and in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration corresponding to EUR 1,500 as outstanding salary for October 2019, EUR 3,807 as outstanding salary for November 2019, EUR 3,807 as outstanding salary for December 2019 and EUR 3,807 as outstanding salary for January 2019, i.e. the total amount of EUR 19,921.

32) In continuation, having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the DRC focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC 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.

33) Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the members of the Chamber 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 player 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.

34) In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained 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.

35) In this regard, the Chamber established that no such compensation clause – including an amount payable in case of a termination by one of the parties - was included in the employment contract at the basis of the matter at stake.

36) As a consequence, the members of the Chamber 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 Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

37) The DRC then turned its 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 the DRC to be essential.

38) Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to him under the terms of the employment contract from its date of termination with just cause by the Claimant, i.e. 30 January 2020 until 30 June 2020 and concluded that the Claimant would have received in total 5 monthly salaries of EUR 3,807, i.e. the total amount of EUR 19,035 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 19,035 serves as the basis for the determination of the amount of compensation for breach of contract.

39) In continuation, the Chamber 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.

40) The Chamber noted that the Claimant remained unemployed after the termination of the contract and thus did not manage to mitigate his damages.

41) Therefore, the amount of EUR 19,035 is due to the Claimant by the Respondent as compensation for breach of contract.

IV. Conclusion

42) As a result of the aforementioned, the Chamber decided to partially accept the claim of the Claimant and to order the Respondent to pay the Claimant the following amounts:

- outstanding remuneration in the amount of EUR 19,921;

- compensation for breach of contract in the amount of EUR 19,035.

43) Furthermore, the DRC 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.

44) In this regard, the DRC 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.

45) Therefore, bearing in mind the above, the DRC decided that, in the event that the Repondent 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.

46) Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

47) The Chamber concluded its deliberations in the present matter by establishing that any further claims of the Claimant are rejected, and that therefore in conclusion, the claim of Claimant is partially accepted.

IV.DECISION OF THE DISPUTE RESOLUTION CHAMBER

1) The claim of the Claimant, Federico Taborda, is partially accepted.

2) The Respondent, FK Senica, has to pay to the Claimant outstanding remuneration in the amount of EUR 19,921.

3) The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 19,035.

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 points 2. and 3. above.

6) The Respondent shall provide evidence of payment of the due amounts 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).

7) In the event that the amounts due plus interest 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).

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 plus interest 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.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision (cf. CAS Directives at Legal.FIFA.com).

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

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