F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision22 October 2020
pas sed on 22 October 2020
regarding an employment-related dispute concerning the player
Aris tote Ngondala Fundu
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Aris tote Ngondala Fundu, Congo
RESPONDENT:
Club Academica Clinceni, Romania
I. Facts
1. On 14 January 2020, the Claimant and the Respondent signed an employment contract
), valid as from 14 January 2020 until 30 June 2021.
2. Point 4.1 of the contract established that the Claimant will receive from the Respondent
the following remuneration:
From 14 January 2020 until 30 June 2020
1) EUR 4,000 as net monthly salary;
remains in the first league in season 2019-2020
4) EUR 200 as monthly cost for accommodation and
5) 1 fly ticket (Note: No amount is indicated).
From 1 July 2020 until 30 June 2021
1) EUR 5,000 as net monthly salary;
2) EUR 10,000 if the Responden remains in the first league in season 2020-2021
4) EUR 200 as monthly cost for accommodation and
5) 2 fly tickets
The payment of these amounts will be made every month for the activities performed
in the previous month, until the 20th of every month
3.
remuneration for April and May 2020, which allegedly explained it will be
discussed this summer
4. The player declared that he remained unemployed after leaving the club.
5. On 3 June 2020, the Claimant lodged as against the Respondent in front of FIFA for
breach of contract without just cause.
6.
concluded with the club.
7. In this respect, the Claimant requested the payment of the following:
- EUR 8,000 as outstanding monthly salaries corresponding to the months of April and
May 2020 plus interest;
- Residual value of the contract as compensation plus interest.
8. In its claim, the Claimant explained his decision to terminate the contract with the
Respondent upon receipt of this letter by FIFA due to its continuous contractual breaches.
9. In particular, the Claimant stated that since the beginning of the contract the Respondent
did not pay his remuneration on time. The Claimant pointed out that he received the salary corresponding to the month of January 2020 on 16 March 2020. With regard to the
salaries corresponding to the months of February and March 2020, the Claimant stated
that he was obliged to lodge a claim before FIFA and that the Respondent paid both
salaries after receipt of the relevant claim, i.e. on 27 April 2020.
10. The Claimant argued having contacted the Respondent claiming the salaries
corresponding to the months of April and May and that the latter requested him to wait
until August to discuss this matter.
11. Moreover, the Claimant explained that at the beginning of March 2020 (during the
lockdown) all the foreign players of the team were authorised to return to their home
countries but the Claimant could not return due to lack of means. The Claimant further
explained that only on 29 April 2020, he was able to return to France with his family. The
Claimant stated that his wife was pregnant and his daughter was ill.
12. The Claimant added that the Respondent requested him to come back to Romania and
that only on 16 May 2020, the Claimant was able to cover the travel costs and returned
to Romania.
13. Finally, the Claimant added that the persistent contractual breaches by the Respondent
obliged him to assume high debts. The Claimant underlined that, under the
aforementioned circumstances, he could not continue rendering services until the expiry
of the contract.
14. Despite being invited to do so, the Respondent failed to reply to the claim of the
Claimant.
II. Cons iderations of the DRC Judge
1. First of all, the DRC Judge analysed whether he was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA on 3
June 2020. Taking into account the wording of art. 21 of the 2019 edition of the Rules
Governing the Procedures of t
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 of the Procedural Rules
and emphasised that, in accordance with art. 24 par. 1 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 matters which concern employment-related disputes with an
international dimension between players and clubs with a litigious value of up to
CHF 200,000, such as the present matter, which concerns a player from Congo against a
club from Romania.
3. In continuation, the DRC Judge analysed which edition of the Regulations of the Status
and Transfer of Players should be applicable to the present matter. In this respect, the
DRC Judge 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 claim was lodged on 3 June
2020, the June 2020 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand.
4. With the above having been established, the DRC Judge entered into the substance of
the matter. In doing so, it started to acknowledge the facts of the case as well as the
documents contained in the file. However, the DRC Judge emphasized that in the
following considerations it will refer only to facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
5. In this respect, the DRC Judge noted that, on 14 January 2020, the Claimant and the
Respondent signed an employment contract valid as from 14 January 2020 until 30 June
2021.
6. Subsequently, the DRC judge observed that, on 3 June 2020, the Claimant lodged as
against the Respondent in front of FIFA for breach of contract without just cause.
7. Moreover, the DRC judge noted that the Respondent failed to present its response to the
claim of the Claimant, in spite of having been invited to do so. By not presenting its
position to the claim, the DRC judge was of the opinion that the Respondent renounced
its right of defence and, thus, accepted the allegations of the Claimant.
8. Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a
decision upon the basis of the documentation already on file; in other words, upon the
statements and documents presented by the Claimant.
9. In this respect, the DRC Judge observed the contents of the claim lodged by the player
and, in particular, noted that the contract at stake was not formally terminated by the
player.
10.
accordance with the longstanding jurisprudence of the DRC and exclusively for the
purposes of this matter, the DRC Judge decided that the date of the claim, i.e. 3 June
2020, shall be considered as the date of termination of the contract.
11. This being said, the Judge went on to establish whether, on 3 June 2020, the player would
have had just cause to terminate the contract.
12. In this respect, the DRC judge wished to emphasize that, according to the principle of
contractual stability, the unilateral termination of a contract must be considered as an
absolute last resort, where, given the particularities of the situation at stake, it could not
be expected that one of the parties could reasonably continue to be bound by the
contractual relationship. In what concerns financial obligations, one of the consequences
of the aforementioned principle is that only a persistent and substantial non-compliance
of these obligations could justify the unilateral termination of a contract.
13. In relation to the reasons brought forward by the Claimant to justify the premature
termination of the contract, the DRC Judge noted that, according to him, the amount of
EUR 8,000 corresponding to the monthly salaries of April and May 2020 was outstanding
as of the date of his claim.
14. In this respect, the DRC Judge underlined that, insofar the Respondent failed to reply to
the claim, he could only assume that indeed said two monthly salaries remained as
outstanding. Thus, and although acknowledging that the player failed to put the club in
default, the DRC Judge understood that it remains uncontested that the club owed him
two monthly salaries.
15. In addition, and after duly examining the information gathered during the course of the
investigation, the DRC Judge observed that there was a pattern of delays in the payment
For instance, month of January 2020 was paid in March 2020,
while the player already had to lodge a previous claim in front of FIFA for the salaries of
February and March 2020, which were also paid in delay, after the receipt of another
claim previously lodged by the player.
16. Overall, the DRC Judge considered that the Respondent significantly neglected its
financial obligations towards the Claimant. Consequently, at the date of 3 June 2020, the
player could expect that the Respondent was not in a position to reasonably comply with
its contractual obligations.
17. As a result, the DRC Judge established that the player terminated the contract with just
cause and that the Respondent is to be held liable for the early termination of the
contract with just cause by the player.
18. Therefore, and before entering into the consequences of the early termination of the
contract, the DRC Judge understood that the Claimant is entitled to his outstanding
remuneration due until the early termination of the contract.
19. In this respect, the DRC Judge observed, as already mentioned above, that at the date of
the termination of the contract, the monthly salaries of April and May 2020 were
outstanding, for a total value of EUR 8,000 (i.e. 4,000*2).
20. Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge
established that the Respondent has to pay to the Claimant, the total outstanding
amount of EUR 8,000, as agreed in the contract concluded between the parties.
21. In continuation, the DRC Judge decided that, taking into consideration art. 17 par. 1 of
the Regulations, the Claimant is entitled to receive from the Respondent compensation
for breach of contract in addition to any outstanding remuneration on the basis of the
relevamt employment contract.
22. As a result, the DRC Judge went on to examine the (financial) consequences of the early
termination of the contract and, in particular, the calculation of the payable
compensation.
23. In this context, the DRC judge outlined that, in accordance with said provision, 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. The DRC judge further noted that, following art. 17 par. 1 of the
Regulations, in case the player did not sign any new contract following the termination
of his previous contract, as a general rule, the compensation shall be equal to the residual
value of the contract that was prematurely terminated.
24. In application of the relevant provision, the DRC Judge held that it firstly had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a 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.
25. Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the DRC Judge took into account the remuneration due to the Claimant in accordance
with the employment contract as well as the time remaining on the same contract, along
with the professional situation of the Claimant after the early termination occurred. In
this respect, the DRC Judge pointed out that at the time of the termination of the
employment contract, the contract would run until 30 June 2021, i.e. one additional
month for the season 2019/2020, for which the player would still have to receive one
monthly salary of EUR 4,000, as well as his entire salary for the season 2020/2021, i.e.
5,000*12=60,000. As a result, the DRC Judge considered that the amount of EUR 64,000
shall serve as the basis for the calculation of the payable compensation.
26. 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 judge, such remuneration under a new employment contract
shall be taken into account in the calculation of the amount of compensation for breach
27. In this respect, the DRC judge took note
allegations, the latter remained unemployed.
28. As a consequence, and bearing in mind that the Claimant had not been able to mitigate
damages since he remained unemployed between the date of termination of the contract
by the Respondent and the ending date of the contract, the DRC judge concluded by
deciding that the Respondent has to pay the total amount of EUR 64,000 to the Claimant,
as compensation for breach of contract.
29. Subsequently, the DRC judge analysed the request of the Claimant corresponding to
additional damages
appropriate to point out that the request for said compensation presented by the
Claimant had no legal or regulatory basis and pointed out that no corroborating evidence
had been submitted that demonstrated or quantified the damage suffered.
30. Furthermore, taking into account the previous considerations, 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.
31. 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.
32. 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.
33. 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.
34. Finally, the DRC judge concluded his deliberations by rejecting any further claim lodged
by the parties.
III. Decis ion of the DRC Judge
1. The claim of the Claimant, Aristote Ngondala Fundu, is partially accepted.
2. The Respondent, Club Academica Clinceni, has to pay to the Claimant, the following
amounts:
- EUR 8,000 as outstanding remuneration;
- EUR 64,000 as compensation for breach of contract without just cause.
3. Any further claims of the Claimant are rejected.
4. The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
5. The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
6. In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days , as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.
For the DRC Judge:
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.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777