F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 15 July 2020

Decision of the

DRC Judge

passed via videoconference, on 15 July 2020,

regarding an employment-related dispute concerning the player Jorge Edelmiro Martinich

BY:

Johan van Gaalen (South Africa), DRC Judge

CLAIMANT:

MR JORGE EDELMIRO MARTINICH, Argentina

RESPONDENT:

MONS CALPE SPORTS CLUB, Gibraltar

I. FACTS OF THE CASE

1. On an unspecified date, the player Jorge Edelmiro Martinich (hereinafter: “the player” or “the Claimant”) and the Club Mons Calpe Sports Club (hereinafter: “the club” or “the Respondent”) concluded an employment contract (hereinafter: “the contract”) valid as from 1 January “2018” “until May 31st, 2019”. (Note: the player explained that in reality the contract was valid as from 1 January 2019 and that the mention to the year 2018 is a typo).

2. However, clause 1.1. of the contract stipulated that the period of validity is “unless extended automatically by the Club due to international competitions and for the term in which the Club continues to participate in such international competitions.”

3. Clause 1.1. of the contract further specified that “The Club shall have two separate and independent exclusive and irrevocable options to renew the Term herein for additional independent Seasons (the "Additional Seasons") under the same terms and conditions as the previous Seasons. The option shall be deemed automatically exercised unless the Club notifies player at any time during the Term its intentions not to renew the Term herein. In the event the Club does not notify the player otherwise, then such Additional Season(s) shall automatically begin on the date the then current Season ends and shall be for a new Season period.”

4. In accordance with Exhibit B to the employment contract, the Player was entitled to receive from the Club the amount of EUR 1,400 per month.

5. In addition, clause 4 of the Exhibit stated the following:

“4. Accommodation: ____X___ (YES) I (NO). In the event that accommodation is agreed, the Player shall receive the residential accommodation during the Season provided by the Club, which will be shared with other players and as determined by the Club's sole discretion. Any living expenses such as water. electricity. Internet. Cleaning etc. shall be at all times of the responsibility of the Player. and not the Club. and the Club shall have the right any of these expenses is charged to the Club to withhold from Player's salary the necessary amount to pay such expenses off.”

6. On 9 August 2019, the club sent a letter to the player with, inter alia, the following contents:

“On May 4, 2019, you and several other players participated in a "sit-down" on the pitch in the first minutes of Mons Calpe's match vs. Gibraltar United. In addition, you displayed anti-competitive attitude and behavior in both training and official matches throughout the 2018-19 season, including unexcused absences and insubordination both individually and in conjunction with other players.

(…)

These events and your irresponsible acts have damaged the image, prestige and reputation of the Club and the Gibraltarian Football Association. Such behavior is absolutely prohibited, not only by your player contract, but also the regulations of the GFA, UEFA and FIFA

(…)

Therefore, in addition to the termination or non-renewal of your player contract, the Club determined that it was justified in filing for damages of three (3) months' salary for economic, sporting and reputational losses and for applicable additional charges (such as accommodation and air travel) that were not in your contract, but which the Club may have furnished as a positive gesture to you. Despite these potential actions against you, the Club has paid the FULL and ENTIRE salary you are due, as set forth in your contract.”

7. The player lodged a claim before FIFA against the club for outstanding salaries and breach of contract without just cause, detailed as follows:

- EUR 6,042.45 as outstanding remuneration corresponding to the economic difference of thirty six (36) euros due for the February’s salary, as well as to four (4) months (January, May, June and July 2019) and nine (9) days (August 2019) for services which the Player had already rendered, plus 5% interest p.a. as from the due dates;

o The player specifically detailed this outstanding amount as follows:

o EUR 36 as the salary of February 2019 + 5% interest p.a. as from 1 March 2019;

o EUR 1,400 as the salary of January 2019 + 5% interest p.a. as from 1 June 2019;

o EUR 1,400 as the salary of May 2019 + 5% interest p.a. as from 1 June 2019:

o EUR 1,400 as the salary of June 2019 + 5% interest p.a. as from 1 July 2019;

o EUR 1,400 as the salary of July 2019 + 5% interest p.a. as from 1 August 2019;

o EUR 406,45 as the salary of nine (9) days of August of 2019 + 5% interest p.a. as from August 10th, 2019.

- EUR 13,593,54 as compensation for breach of contract without just cause, plus 5% interest p.a as from the 10th August 2019, further detailed as follows:

- EUR 993,54 for the twenty-two (22) days of August 2019;

- EUR 12,600 for the monthly payments as from September 2019 until May 2020;

- EUR 1,600, as accommodation expenses, from August until November (4*400).

- an amount that the Chamber is requested to determine according to FIFA travel, for his return ticket to Argentina (note: the player attached boarding passes for a flight on 22 November 2019 for the journey Barcelona-London-Buenos Aires);

EUR 8,400, corresponding to an additional sum equivalent to six months of salaries.

8. According to the player, the club “took the decision” not to pay the player’s salaries of January 2019 and of May 2019 onwards, for a total of four (4) months and nine (9) days, and also, it performed only a partial payment of February 2019’s salary.

9. On 4 May 2019, the player participated in a “stage sit-down protest over unpaid wages”.

10. The player further specified that, by 31 May 2019, no notification of the termination of the contract was sent by either party, and therefore the contract should have been extended for the next season.

11. The Respondent rejected the claim of the player and argued that it is bad intentioned.

12. In this respect, the club explained that the player was sanctioned on 4 May due to an act “without precedent” in the league of Gibraltar.

13. The club further explained that the total value of the contract was EUR 7,000 gross for 5 months, out of which the following amounts had to be deducted:

Ordinary deductions:

- Housing: EUR 1,500 for the entire period (EUR 300 per month);

- Flight tickets: USD 885;

- Tax office: 0 (player is exempt from taxation);

- Social Security: EUR 730.2 (GBP 657,9), GBP 131.58 per month;

Extraordinary deductions:

- EUR 2,700 (900 per month), from May until August

14. In sum, the club argued that the player was entitled to the total net amount of EUR 3,885 during the period of validity of the contract.

15. The club explained that the player received the total amount of EUR 4,200 and that, as such, he received more than what he was entitled to earn. The club requested to be reimbursed with the amount of EUR 2,700, “without taking into account the sanction” existing against him.

16. The club further explained that it paid the player’s flight tickets, and provided a travel receipt for the amount of USD 985.50, for the following journey:

“Buenos Aires-Ezeiza - Malaga LowFare

Buenos Aires-Ezeiza - London-Gatwick - 01 Jan 2019 11:30

MARTINICH/EDELMIRO JORGE(328-7295833517)

D85001 London-Gatwick - Malaga - 02 Jan. 2019 09:15

MARTINICH/EDELMIRO JORGE(328-7295833518)”

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER (DRC) judge

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: “the DRC judge”) analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 24 March 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. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition June 2020) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a, Argentinean player and a Gibraltarian club.

3. Furthermore, the DRC judge analyzed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition June 2020), and considering that the present claim was lodged on 24 March 2020, the March 2020 edition of said regulations (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. Subsequently, the DRC judge 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 DRC judge emphasized 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. To start with, the DRC judge acknowledged that the parties to the dispute had signed an employment contract valid from 1 January 2019 until 31 May 2019.

6. The DRC judge further noted that the clause 1.1 of the contract foresees a unilateral option for the club to renew its validity for a further season under the same conditions. What is more, the DRC Judge observed that the contract specifically states that it should be automatically extended for one more season unless the club informed the player in advance that it did not wish to do so.

7. Therefore, the DRC judge underlined that the first question to be clarified is whether the contract was extended for one more season or not.

8. In this regard, the DRC judge took note that the Respondent did not provide evidence of having informed the player in a timely manner that it did not wish to extend the contract.

9. Furthermore, the DRC judge pointed out that the club cannot benefit from its own tort, namely it cannot benefit from a unilateral extension clause in its favour only, by not giving the player any timely notice of termination and still consider the contract as finished as from 31 May 2019.

10. In view of the foregoing, the DRC judge concluded that the contract was extended for one more season, i.e. until 24 May 2020 (i.e. end of the date of the season 2019/2020).

11. In continuation, the DRC judge stated that the second question to be tackled, in the absence of a formal termination document, is whether and when the contract should be considered as terminated and by which party.

12. In this respect, the DRC judge focused his attention on the club’s letter sent on 9 August 2019 to the player, which contains a clear statement from the club, in the sense that the contract was “not extended or terminated”. Thus, the DRC judge considered that the club terminated the contract on 9 August 2019.

13. In continuation, the DRC judge established that the fundamental issue at stake is determining whether the club had a just cause to terminate the employment contract on 9 August 2019. In this respect, the DRC deemed it essential to make a brief recollection of the parties’ arguments regarding the contract termination.

14. In this respect, the DRC judge took note of the Respondent’s allegations that the termination of the contract was due to a collective protest of the players against the club, for alleged non-payment of salaries.

15. The DRC judge was keen in emphasising that based on the principle of contractual stability employment contracts should be, in principle, fulfilled by the parties and only can be terminated for expiry of its validity or based on an amicable settlement between the parties.

16. In this context, the DRC judge remarked that the termination of an employment contract should be the last possible option “ultima ratio” which should be applied only in cases of extreme circumstances. Moreover, the DRC judge added that, as a general rule, an employer first should apply lenient measures to an employee with the goal to redirect the employment relationship.

17. The DRC judge observed that from the information on file, the termination letter of the club was the first and only measure taken against the player after the alleged disciplinary breach. The DRC judge pointed out that the club did not provide evidence of previous warnings sent to the player or proceedings with the participation of the player.

18. Having said this, the DRC judge analysed the documentation provided by the club and, after referring to the principle of the burden of proof explicitly stipulated in art. 12 par. 3 of the Procedural Rules deemed that the Respondent failed to provide conclusive evidence that could justify the termination of the contract.

19. In light of the aforementioned, the DRC judge concluded that the Respondent terminated the contract on 9 August 2019 without just cause.

20. That said, the DRC judge concluded that the club is to be held liable for the early termination of the contract without just cause and should therefore bear the consequences of its unjustified breach of the contract.

21. In continuation, prior to entering into the issue of the consequences of the early termination of the contract without just cause by the Respondent, the DRC judge firstly proceeded to determine the amount of outstanding remuneration, if any, still due to the player by the club to this day.

22. In this regard, the DRC judge recalled that, as per the player, the following salaries were outstanding:

 EUR 36 as the salary of February 2019 + 5% interest p.a. as from 1 March 2019;

 EUR 1,400 as the salary of January 2019 + 5% interest p.a. as from 1 June 2019;

 EUR 1,400 as the salary of May 2019 + 5% interest p.a. as from 1 June 2019:

 EUR 1,400 as the salary of June 2019 + 5% interest p.a. as from 1 July 2019;

 EUR 1,400 as the salary of July 2019 + 5% interest p.a. as from 1 August 2019;

 EUR 406,45 as the salary of nine (9) days of August of 2019 + 5% interest p.a. as from August 10th, 2019.

23. In this context, the DRC judge underlined that the club did not provide substantial evidence of payment of the amounts requested by the player. Thus, the DRC judge concluded that the aforementioned salaries were still outstanding.

24. For the sake of good order, the DRC judge emphasised that sanctions, fines and/or deductions from the player’s salary cannot be justified.

25. On account of the aforementioned considerations, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the club is liable to pay to the player outstanding remuneration in the total amount of EUR 5,636, corresponding to five monthly salaries in the amount of EUR 36 for February 2019 and EUR 1,400 for each of the months from January to July 2019.

26. In addition, taking into consideration the specific request of the player, the DRC judge decided to award the latter interest at the rate of 5% p.a. on the aforementioned amounts as from the relevant due dates until the date of effective payment.

27. In continuation, the DRC judge focused its attention to the Claimant´s request for an amount of EUR 1,600 as accommodation expenses for the period from August until November 2019.

28. In this respect, the DRC judge stated that the Claimant did not provide enough evidence to justify his request (cf. art. 12 par. 3 of the Procedural Rules). Thus, the DRC judge decided to reject this request of the player.

29. In addition, the DRC judge analysed the request of the Claimant for an amount equivalent to his return flight ticket to his home country.

30. The DRC judge noted that the Claimant did not provide substantial evidence for the reimbursement and, in addition, no such obligation was provided for in the employment contract. Thus, the DRC judge concluded that the relevant request of the Claimant should be rejected.

31. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the player is entitled to receive compensation for breach of contract from the club.

32. In continuation, the DRC judge focused its attention on the calculation of the amount of compensation for breach of contract payable by the club to the player in the case at stake. In doing so, the members of the DRC judge first 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.

33. In application of the relevant provision, the DRC judge 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. 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.

34. As a consequence, the DRC judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC 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. In this regard, the DRC judge emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

35. In order to estimate the amount of compensation due to the player in the present case, the DRC judge first turned its attention to the remuneration and other benefits due to him under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

36. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the contract as from its date of termination without just cause by the club, i.e. 9 August 2019, until 30 May 2020, and concluded that the player would have received EUR 14,000 in total as remuneration had the contract been executed until its expiry date. Consequently, the DRC judge concluded that the amount of EUR 14,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

37. In continuation, the DRC judge verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been able 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 termination of contract with just cause in connection with the player’s general obligation to mitigate his damages

38. In respect of the above, the DRC judge noted, that the player informed not having signed a new employment contract after 9 August 2019 and therefore had not been able to mitigate his damages. Therefore, no further deductions should be made to the amount of EUR 14,000, in accordance with art. 17 par. 1 lit. i) of the Regulations.

39. At this point, the DRC judge referred to the wording of art. 17 par. 1 lit ii) of the Regulations as from its second sentence, which stipulates that “subject to the early termination of the contract being due to overdue payables, in addition to the Mitigated Compensation, the player shall be entitled to an amount corresponding to three monthly salaries (the “Additional Compensation”). In case of egregious circumstances, the Additional Compensation may be increased up to a maximum of six monthly salaries. The overall compensation may never exceed the rest value of the prematurely terminated contract”.

40. Bearing in mind the foregoing, the DRC judge noted that that additional compensation, added to the aforementioned compensation, was not applicable in this case taking into account that the contract was not terminated due to overdue payables.

41. Consequently, on account of the above-mentioned considerations, the DRC judge decided to partially accept the Claimant’s claim and held that the Respondent must pay the amount of EUR 14,000 as compensation for breach of contract to the Claimant, which is considered by the DRC judge to be a fair and reasonable amount.

42. In addition, taking into account the Claimant´s request and the well-established jurisprudence of the Dispute Resolution Chamber in this respect, the DRC judge decided that the Respondent shall pay 5% interest p.a. on the amount of EUR 14,000 as from date of claim, i.e. 24 March 2020 until the date of effective payment.

43. Furthermore, taking into account the consideration under point 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.

44. 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.

45. 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.

46. 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.

47. The DRC judge concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Jorge Edelmiro Martinich, is partially accepted.

2. The Respondent, Mons Calpe Sports Club, has to pay to the Claimant, the following amounts:

- EUR 5,636 as outstanding remuneration, plus interest as follows:

o EUR 36 plus 5% interest p.a. as from 1 March 2019 until the date of effective payment;

o EUR 1,400 plus 5% interest p.a. as from 1 June 2019 until the date of effective payment;

o EUR 1,400 plus 5% interest p.a. as from 1 June 2019 until the date of effective payment:

o EUR 1,400 plus 5% interest p.a. as from 1 July 2019 until the date of effective payment;

o EUR 1,400 plus 5% interest p.a. as from 1 August 2019 until the date of effective payment.

- EUR 14,000 as compensation plus interest of 5% p.a. as from 24 March 2020 until the date of effective payment.

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 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 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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