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 14 January 2021

Decision of the

Dispute Resolution Chamber

passed on 14 January 2021,

regarding an employment-related dispute concerning the player Vicente de Paula Mercedes

COMPOSITION:

Geoff Thompson (England), Chairman Michelle Colucci (Italy), member Mohamed Muzammil (Singapore), member

CLAIMANT / COUNTER-RESPONDENT:

Vicente de Paula Mercedes, Brazil

Represented by Mr Marcelo Amoretty Souza

RESPONDENT / COUNTER-CLAIMANT:

FK Bylis, Albania

Represented by Mr Arsen Selmanaj

I. FACTS OF THE CASE

1. On 24 January 2020, the Brazilian player, Vicente de Paula Mercedes (hereinafter: Claimant/Counter-Respondent or player) and the Albanian club, FK Bylis (hereinafter: Respondent/Counter-Claimant or club) concluded an employment contract (hereinafter: contract) with the following duration agreed upon:

“a. This contract is entered into force for a period from 24/01/2020, until 31/06/2020.”

“b. This contract can be extended until 31.05.2021 if the club increases the players’ salary. This decision will be notified to the player and the ASF by 31.05.2020.”

2. According to the contract, the Respondent undertook to pay the Claimant a monthly remuneration of EUR 1,300.

3. The contract contains the following clause:

“a. If the player violates any of its obligations set forth in the Contract, or fails to meet the objectives set by the Club on a case by case basis, along with all penalties and sanctions foreseen in the regulations of the Club, the Club has the right to apply the following penalties:

i. reprimand;

ii. a fine of 5,000 to 200,000 Lek;

iii. temporary exclusion from official matches (suspension);

iv. temporary exemption from training or other activities organized or developed by the Club (suspension);

v. exclusion from the club.”

4. Furthermore, the contract defines: “In case of failure to fulfill contractual obligations by the player, the Player is obligated to pay a contractual penalty rate of 50% (fifty percent) of the total amount of the Contract to the club”.

5. On 20 May 2020, the club notified a “decision” to the player imposing a fine of EUR 1,000 since he “without the club’s authorization has given a TV interview saying untrue about the club”.

6. On 26 May 2020, the club notified a “decision” to the player imposing a fine of EUR 200 since he missed a training.

7. On 27 May 2020, the player replied to the fines imposed, rejected them and insisted that he is entitled to outstanding remuneration.

8. On 27 May 2020, the club issued a “decision” extending the player’s contract until 31 May 2021 while increasing his salary by EUR 100.

9. On 30 May 2020, the club notified a “decision” to the player imposing a fine of EUR 2,000 since he “without the club’s authorization has given a TV interview saying untrue about the club”.

10. On 1 June 2020, the club notified a “decision” to the player imposing a fine of EUR 400 since he missed two trainings.

11. On 3 June 2020, the player insisted that the contract extension exercised by the club was not valid. In this letter, the player pointed out that he is entitled to outstanding remuneration of EUR 4,485.

12. On 4 June 2020, the player replied to the fine imposed on 1 June 2020, rejected it and insisted that he is entitled to outstanding remuneration.

13. Subsequently, the club issued further “decisions” imposing fines on the player, as follows:

- EUR 1,000 imposed on 10 June 2020 for missing two official matches;

- EUR 3,000 imposed on 16 June 2020 for missing several trainings and two official matches;

- EUR 6,700 imposed on 7 July 2020 for missing several trainings and five official matches.

14. On 24 July 2020, the player lodged a claim against the club in front of FIFA, requesting payment of outstanding remuneration in the amount of EUR 4,485.

15. In this context, the player held that the club only remitted a total payment of EUR 1,018 during the whole contractual relationship, even though he would have been entitled to a total amount of EUR 5,503.

16. The player further maintained that the fines imposed by the club were not valid, as this is an attempt of the club to offset its debt towards him.

17. Furthermore, the player argues that the contract expired on 31 May 2020 and that the extension exercised by the club was not valid as such decision was unilateral and since the salary raise of EUR 100 was “insignificant”.

18. In reply, the club rejected the player’s claim and lodged a counterclaim against him, requesting payment of 1,079 as reimbursement for a flight ticket as well as EUR 1,949 as compensation for breach of contract.

19. In this regard, the club maintained that the football season in Albania was suspended due to COVID-19 pandemic between 12 March 2020 and 3 June 2020.

20. According to the club, the Albanian Football Federation agreed to pay all player’s salaries in form of “minimum wages” for the period between 13 March 2020 until 31 May 2020.

21. Furthermore, the club argued that COVID-19 was a force majeure situation, where players were not working and the club could not offer work. Therefore no salary payments shall be owed.

22. On account of the above, the club held that it paid the player’s flight ticket as well as the salary of February 2020.

23. Moreover, the club argued that it extended the contractual relationship in accordance with the wording of the contract. In this regard, it pointed out that the raise corresponds to 7% of his salary.

24. The club further pointed out that the fines imposed are in accordance with the contract.

25. On account of the above, the club argued that the player breached the contract without just cause. In accordance with the contractual clause, the club claims EUR 1,949 as compensation for breach of contract (50% of EUR 3,898 as value of the contract between January to May 2020).

26. Additionally, the club claims reimbursement of the flight ticket in the amount of EUR 1,079.

27. The player rejected the club’s counterclaim and reiterated his position.

28. In this regard, he pointed out that the club did not act in accordance with the COVID-19 Guidelines since no negotiations took place at all. Therefore, those arguments need to be rejected.

29. According to the player, the club simply failed to remit the player’s salaries and tried to offset this debt with the fines imposed. Furthermore, he argued that the contract extension was not valid.

30. According to the information contained in the Transfer Matching System (TMS), the player remained unemployed as of 1 June 2020.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 24 July 2020 and submitted for decision on 14 January 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the June 2020 edition of the Procedural Rules is applicable to the matter at hand.

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 combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition January 2021), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (January 2021 edition), and considering that the claim was lodged on 24 July 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the members of the Chamber acknowledged that, on 24 January 2020, the player and the club had concluded an employment contract valid as from the date of its signature until 31 June 2020, including the option that “this contract can be extended until 31 May 2021 if the club increases the players’ salary”.

7. Furthermore, the members of the DRC took note of the player’s claim for outstanding remuneration in the amount of EUR 4,485.

8. The Chamber duly noted that the club, on the other hand, rejected such claim, pointed out that several fines were imposed on the player and that due to COVID-19 a force majeure situation occurred which led to the conclusion that several salaries were not due. Furthermore, the club held that the contract was extended until 31 May 2021 and that the player breached such contract. In this context, the club lodged a counterclaim against the player requesting EUR 1,079 as reimbursement for a flight ticket as well as EUR 1,949 as compensation for breach of contract.

9. In turn, the DRC acknowledged that the player rejected such counterclaim. He argued that the club did not act in accordance with FIFA’s guidelines regarding COVID-19 and that the club tried to offset its debt to him by imposing several fines. He also rejected the validity of the alleged contract extension.

10. Having considered the diverging position of the parties, the members of the DRC concluded that, first and foremost, and before entering into any other consideration, they should examine the validity of the extension clause and determine whether the employment contract signed between the player and the club had been validly extended until 31 May 2021.

11. At this point, the members of the DRC turned their attention to the contents of the relevant extension clause, which reads as follows: “This contract can be extended until 31.05.2021 if the club increases the players’ salary. This decision will be notified to the player and the ASF by 31.05.2020.”

12. Considering that the salary raise was not defined in the contract and the decision to raise the player’s salary or not is only with the club, the members of the Chamber agreed that said extension clause essentially unilateral in its own nature to the benefit of the club and that, accordingly, it should be deemed as invalid.

13. Moreover, the Chamber turned its attention to the player’s alleged outstanding remuneration and noted that it remained uncontested by the club that such amount was in fact remitted. The club referred to COVID-19 and held that a force majeure situation arose while the sporting season was suspended and the Albanian Football Association covered the “minimum salaries”.

14. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

15. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a player’s salary.

16. In this context, the DRC considered that the arguments raised by the club cannot be considered a valid reason for non-payment of the monies claimed by the player, in other words, the reasons brought forward by the club in its defence do not exempt it from its obligation to fulfil its contractual obligations towards the player.

17. On account of the aforementioned considerations, the Chamber established that the club, in principle, is liable to pay the claimed remuneration to the player. However, the DRC noted that club allegedly imposed fines on the player.

18. In continuation, with particular regard to the imposition of a fine, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to offset outstanding financial obligations towards players. Consequently, the members of the Chamber decided to reject the club’s argument in this regard.

19. Consequently, the members of the Chamber decided to accept the player’s claim and 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 4,485.

20. Additionally, in line with consideration II./12. above, the DRC rejected the club’s counterclaim for breach of contract and pointed out that there is no contractual basis for the reimbursement of the flight ticket costs.

21. Furthermore, taking into account the consideration under number II./3. 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.

22. 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.

23. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amounts due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

24. 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.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, Vicente de Paula Mercedes, is accepted.

2. The Respondent/Counter-Claimant, FK Bylis, has to pay to the Claimant/Counter-Respondent, the amount of EUR 4,485 as outstanding remuneration.

3. The claim of the Respondent/Counter-Claimant is rejected.

4. The Claimant/Counter-Respondent is directed to immediately and directly inform the Respondent/Counter-Claimant of the relevant bank account to which the Respondent/Counter-Claimant must pay the due amount.

5. The Respondent/Counter-Claimant 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/Counter-Claimant within 45 days, as from the notification by the Claimant/Counter-Respondent of the relevant bank details to the Respondent/Counter-Claimant, the following consequences shall arise:

 1.

The Respondent/Counter-Claimant 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 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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