DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 28 gennaio 2021 • Stagione sportiva: 2020/2021

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 28 January 2021

Decision of the

Dispute Resolution Chamber

passed on 28 January 2021

regarding an employment-related dispute concerning

the player Jesus Fernandez Collado

COMPOSITION:

Clifford J. Hendel (USA/France) Stéphane Burchkalter (France) Todd Durbin (USA)

CLAIMANT:

Jesus Fernandez Collado, Spain

Represented by Juan de Dios Crespo Perez

RESPONDENT:

Club CFR Cluj, Romania

I.FACTS

1.On 17 August 2018, the Spanish player Jesus Fernandez Collado (hereinafter: the Claimant or the player) concluded a Professional Player Contract (hereinafter: ‘the contract’) with the Romanian club CFR Cluj (hereinafter: the Respondent or the club), valid from 16 August 2018 to 15 June 2021.2.Pursuant to art. 6 of the contract, the total remuneration payable to the Claimant is a net value of EUR 450,000, to be paid as follows:-for the period: 16 August 2018 – 30 June 2019, the player will receive a net amount of EUR 150,000, which will be paid in 10 monthly instalments of EUR 15,000, starting with the month of September 2018.-for the period: 1 July 2019 – 30 June 2020, the player will receive a net amount of EUR 150,000, which will be paid in 12 monthly instalments of EUR 12,500.-for the period: 1 July 2020 – 30 June 2021, the player will receive a net amount of EUR 150,000, which will be paid in 12 monthly instalments of EUR 12,500.3.Additionally in accordance with art.6 (b) of the contract, the Claimant is entitled to, inter alia, the following bonuses and benefits:-a net amount of EUR 1,000 for each official game won at the first team -pro rata;-a net amount of EUR 500 for each official game ended in a draw at the first team, pro rata;-a net amount of EUR 25,000 for qualifying in the UEFA Europa League Group Stage -pro rata;-a net amount of EUR 15,000 for winning the Romanian Championship -pro rata; and-an apartment or EUR 500 rent paid by club.4.On 10 July 2020, the Claimant notified the Respondent that it had failed to pay him an amount of EUR 40,500 corresponding to outstanding salaries for the football season 2019/2020.5.On 23 July 2020, the Claimant sent a reminder to the Respondent, indicating that it had not fulfilled its contractual duties towards the Claimant and in the same letter notified the Respondent that the Claimant would terminate the contract if the Respondent failed to comply with its contractual obligations.6.On 3 August 2020, the Claimant sent a notice to the Respondent, by means of which he unilaterally terminated the contract, as the Respondent had not fulfilled its contractual obligations.7.On 12 August 2020, the parties concluded a settlement agreement, agreeing to the termination of the contract and that both parties have no obligations, financial or any other, for past, present or future, as a result from and in relation to the contract, except for the payment of the total net amount of EUR 133,250, corresponding to the following:-EUR 61,790 net as ‘contractual financial rights and contractual bonuses’;

- EUR 71,460 net as ‘compensation in order to compensate for the damage cause to the player as a result of the non-performance of the Contract to his end for reasons not related to the player’.

8. The parties further agreed that the amount of EUR 133,250 would be paid as follows:

- EUR 61,790 net will be paid to the player until 20 August 2020

- EUR 26,460 net will be paid to the player until 15 September 2020.

- EUR 22,500 net will be paid to the player on 1 October 2020

- EUR 22,500 net will be paid to the player on 1 November 2020.

9. Furthermore, clause (e) of the settlement agreement stipulates the following:

“ If any payment is not satisfied in full strictly within its deadline, the Player will be automatically entitled to seek redress before the FIFA judicial bodies where he will be able to claim the full outstanding salaries and the full residual value under his original employment contract with FC CFR 1907 Cluj as compensation not subject to any mitigation for whatsoever reason.

Any dispute concerning this Settlement Agreement will be resolved, expressly waiving any jurisdiction that may correspond, (i) by the FIFA Dispute Resolution Chamber in first instance and (ii) in appeal by the Court of Arbitration for Sport (CAS) based in Lausanne, Switzerland, both proceedings according to the Swiss law and FIFA regulations applicable at any possible dispute. The proceedings in the CAS will be ruled by a Sole Arbitrator and shall be conducted in English.”

10. However, after paying the first two instalments of EUR 61,790 and EUR 26,460 to the Claimant, the Respondent failed to make the payment of EUR 22,500 on 1 October 2020.

11. According to the Claimant as result of the actions of the Respondent, he was obliged to sign with a club on a lower level.

12. In this regard, the Claimant concluded a contract with the Romanian club Asociatia Club Sportiv Sepsi Osk valid from 13 August 2020 to 30 June 2021, entitling him to 11 monthly salaries of EUR 7,000 net.

13. On 9 October 2020, the Claimant filed a claim against the Respondent at the deciding bodies of FIFA, claiming the following amounts:

- EUR 303,500 ‘net of taxes’ as compensation for breach of contract, plus 5% interest p.a. as from 3 August 2020 until the effective date of payment, corresponding to the following:

- EUR 143,000 as remaining value of the contract in the period between August 2020 and June 2021, including EUR 500 rent for an apartment);

- EUR 82,500 as performance bonuses for the 2019/2020 season, consisting of:

• EUR 15,000 for winning the Romanian Championship;

• EUR 17,500 for 15 won matches in the Romanian Championship (15 x EUR 1,000), and 5

draws in the Romanian Championship (5 x EUR 500);

• EUR 25,000 for qualifying in Groups Stage of the UEFA Europa League in the 18/19; and

• EUR 25,000 for qualifying in Groups Stage of the UEFA Europa League in the 19/20.

- EUR 78,000 ‘net of any taxes’ as additional compensation of 6 monthly salaries based on the concept of the specificity of sport

14. The Claimant indicated that the Respondent delayed its financial obligations, forcing the Claimant to terminate the contract prematurely with just cause and that the Respondent violated the principle of pacta sunt servanda and is therefore obliged to compensate the Claimant accordingly.

15. According to the Claimant, the Respondent did not pay his salaries for from January 2020 until the end of July 2020. Moreover, the Respondent breached the settlement agreement, by not paying the last two instalments of EUR 22,500 net each.

16. Furthermore, the Claimant requested ‘the relevant tax certificates attesting the payment of taxes to the competent tax authorities in relation to the compensation payable to the player’ from the club, as well as to impose sporting sanctions on the Respondent.

17. Additionally, the Claimant requested that the Respondent produce the club’s reward regulations to the present procedure to duly evaluate the bonuses payable to the player

18. Finally, the Claimant requested that the Respondent be ordered to pay procedural and legal costs.

19. Despite having been invited to do so, the Respondent failed to reply to the claim.

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. Taking into account the wording of art. 21 of the June 2020 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 Dispute Resolution Chamber 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 Dispute Resolution Chamber is competent to deal with matters, which concern employment-related disputes with an international dimension between players and clubs such as the present one, which involves a player from Spain and a club from Romania.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber 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 9 October 2020, the October 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber 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 Dispute Resolution Chamber emphasised 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 acknowledged that the Claimant and Respondent concluded a settlement agreement which terminated the employment contract between the parties, by means of which the Respondent agreed to pay to the Claimant the total net amount of EUR 133,250, corresponding to outstanding remuneration and compensation for breach of contract, to be paid as follows:

- EUR 61,790 net will be paid to the player until 20 August 2020

- EUR 26,460 net will be paid to the player until 15 September 2020.

- EUR 22,500 net will be paid to the player on 1 October 2020

- EUR 22,500 net will be paid to the player on 1 November 2020.

6. Additionally, the Chamber noted that clause (e) of the settlement agreement stipulates the following:

7. Subsequently, the DRC noted that the Claimant lodged a claim at FIFA on 9 October 2020 indicating that the Respondent had not fulfilled its obligations as established in the settlement agreement, by not paying the last two instalments of EUR 22,500 net each and that it requested the following relief:

- EUR 303,500 ‘net of taxes’ as compensation for breach of contract, plus 5% interest p.a. as from 3 August 2020 until the effective date of payment, corresponding to the following:

- EUR 143,000 as remaining value of the contract in the period between August 2020 and June 2021, including EUR 500 rent for an apartment);

- EUR 82,500 as performance bonuses for the 2019/2020 season, consisting of:

• EUR 15,000 for winning the Romanian Championship;

• EUR 17,500 for 15 won matches in the Romanian Championship (15 x EUR 1,000), and 5

• draws in the Romanian Championship (5 x EUR 500);

• EUR 25,000 for qualifying in Groups Stage of the UEFA Europa League in the 18/19; and

• EUR 25,000 for qualifying in Groups Stage of the UEFA Europa League in the 19/20.

- EUR 78,000 ‘net of any taxes’ as additional compensation of 6 monthly salaries based on the concept of the specificity of sport.

8. Furthermore, the DRC noted that the Respondent had been given the opportunity to reply to the claim submitted by the Claimant, but that the it had failed to present its response in this respect. In this way, the DRC deemed, that the Respondent renounced to its right of defence and, thus, accepted the allegations of the Claimant.

9. As a consequence of the aforementioned consideration, the DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules, the Chamber 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.

10. Analysing the documentation on file, it appears that upon termination of the contract by the Claimant on 3 August 2020, the Respondent failed to pay the Claimant outstanding remuneration in the amount of EUR 40,500 in relation to the football season 2019/2020. Furthermore, the settlement agreement concluded after the unilateral termination of the contract provided for a clause, that in case of non-fulfilment of the settlement agreement by one of the parties, the player would therefore be entitled to outstanding remuneration and compensation for a breach of contract.

11. In view of the above, the DRC established that the Respondent had failed to pay to the Claimant the amounts as agreed upon in the settlement agreement. Consequently, the DRC concluded that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the Claimant the amounts as agreed upon in the settlement agreement, which provided that the Claimant would be entitled to claim the outstanding remuneration and compensation for breach of contract.

12. In continuation, the DRC judge acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the total amount of EUR 450,000 for the entire term of the contract.

13. In this respect, the DRC judge took into consideration that according to the Claimant, the Respondent had failed to pay his performance bonus in the total amount of EUR 82,500 as outstanding remuneration.

14. Taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had substantiated his claim pertaining to the said bonus with sufficient documentary evidence and accordingly the said amount shall be awarded as outstanding remuneration. However, the payment received under the settlement agreement related to outstanding remuneration in the amount of EUR 61,790 (20 August 2020), must be deducted from the claimed bonus amount of EUR 82,500, accordingly the Respondent is liable to pay to the Claimant the outstanding remuneration in the amount of EUR 20,710.

15. In continuation, the DRC 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 salaries on the basis of the relevant employment contract.

16.In this context, the DRC 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.17.In application of the relevant provision, the DRC held that it first of all 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 established that no such compensation clause was included in the employment contract at the basis of the matter at stake.18.Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the Chamber 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 pointed out that at the time of the termination of the employment contract on 3 August 2020, the contract was supposed to run until 15 June 2021.19.Consequently, taking into account the financial terms of the contract, the DRC concluded that the residual value of the contract in the period between August 2020 and June 2021 amounts to EUR 143,000 (i.e. 11 months x EUR 13,000, consisting of the monthly salary of EUR 12,500 and EUR 500 as rent for an apartment).20.What is more, as per the terms of the settlement agreement concluded on 12 August 2020, the player received another payment of EUR 26,460 (15 September 2020), which has to be deducted. Therefore the player remains entitled to compensation in the amount of EUR 116,540 plus 5% interest p.a. as from the date of claim, which is 9 October 2020.21.What is more, the player concluded a subsequent employment contract, by means of which in the overlapping period he mitigated his damages with an amount of EUR 77,000.22.However, the members of the Chamber decided that – in view of the contents of clause (e) of the settlement agreement – no further mitigation shall be applied.23.In respect of the Claimant’s request for additional compensation, the DRC concluded that additional compensation would not be awarded as according to art. 17 par. 1 ii) RSTP, the overall compensation may never exceed the residual value of the prematurely terminated contract.24.In view of all of the above, the DRC decided that the Respondent must pay the amount of EUR 20,710 as outstanding remuneration and EUR 116,540 as compensation for breach of contract without just cause, which is considered by the DRC to be a reasonable and justified amount as compensation.25.Finally, in line with the Dispute Resolution Chamber’s longstanding jurisprudence, the DRC decided to award 5% interest p.a. on the amount of EUR 20,710 as from 3 August 2020 until the date of effective payment and 5% interest p.a. on the amount of EUR 116,540 as from 9 October 2020, until the effective date of payment.

26.The tax certificates as requested by the Claimant can be awarded, since the amounts the Claimant was entitled to, are “net of withholding taxes”. In this respect, the DRC referred to the relevant clauses in the contract, which clearly stipulate that the amounts to paid by the club to the coach are net amounts. As a result, the DRC deemed that the Claimant had a justified reason to request the tax certificates, as the amounts awarded as per this decision are also to be considered net amounts.27.The DRC judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.28.Furthermore, the 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.29.In this regard, the 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.30.Therefore, bearing in mind the above, the judge decided that, in the event that the Respondent does not pay the amount 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.31.Finally, the judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Jesus Fernandez Collado, is partially accepted.

2. The Respondent, Club CFR Cluj, has to pay to the Claimant, the following amounts:

- EUR 20,710 as outstanding remuneration plus 5% interest p.a. as from 3 August 2020 until the date of effective payment.

- EUR 116,540 as compensation for breach of contract without just cause plus 5% interest p.a. as from 9 October 2020 until the date of effective payment.

3. The Respondent is ordered to provide the Claimant with the tax certificates.

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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 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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777