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 3 July 2020
Decision of the
DRC Judge
passed in Zurich, Switzerland, on 3 July 2020,
regarding an employment-related dispute concerning the player Giuseppe de Luca
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
GIUSEPPE DE LUCA, Italy
Represented by Mr. Andrea Catolli
RESPONDENT:
CRF 1907 CLUJ SA, Romania
I. FACTS OF THE CASE
1) On 7 July 2018, the Claimant and the Respondent signed an employment contract valid as of
7 July 2018 until 30 June 2019.
2) In said employment agreement, the parties agreed upon, inter alia, the payment of
remuneration in the total value of EUR 250,000, payable as follows: (i) EUR 50,000 as a signon
fee and (ii) EUR 200,000, divided into 12 monthly instalments of EUR 16,666.66.
3) Furthermore, the parties agreed upon several bonuses, inter alia, and a rent of EUR
500/month payable by the Respondent.
4) On 21 January 2019, the Parties signed a mutual termination agreement with effect as from
31 January 2019 (note: according to TMS the Claimant was with the Respondent on loan and
returned back to his former club on 31 January 2019), which inter alia stipulated that:
“5. The Former Club and the New Club have commonly agreed and certify through the signing
of this agreement, that they do not have any other obligations, financial or any other, as a result
from and in relation with the Temporary Transfer Agreement signed on 06.07.2018.
6. The Player, by the signature of the CONTRACT accepts all the expressed and implied terms
contained herein and agrees to return from loan to the Club VIRTUS ENTELLA., and he certify
through the signing of this addendum, that he does not have other obligations, for past present
or future, as a result from the Contract of sports activity no. 76/07.017.2018, recorded at PFL
under no. 117/11.07.2018”.
II. PROCEEDINGS BEFORE FIFA
A. Position of the Claimant
5) On 11 March 2020, the player lodged a claim against the club for outstanding remuneration,
alleging that he “did not receive all the salaries to which he was entitled under the Employment
Contract until the date of the termination.”
6) In particular, the Claimant argued that the Respondent has debt towards him in the amount
of EUR 31,332, broken down as follows:
a) EUR 13,666 as remaining salary of December 2018;
b) EUR 500 as rent contribution for December 2018;
c) EUR 16,666 as salary of January 2019;
d) EUR 500 as rent contribution for January 2019.
7) On 10 February 2020, the Claimant sent a default notice to the Respondent, requesting the
amount of EUR 31,332, corresponding to the outstanding remuneration arising from
employment contract, granting the Respondent 10 days to remedy its default, however to no
avail.
8) Consequently, the player requests the DRC:
“-to recognize that Cluj SA has delayed the payments of salaries due for more than 30
(thirty)days without a prima facie contractual basis, applying art. 12 bis FIFA RSTP;
-to condemn Cluj SA to pay the Player Euro 31.332,00 (thirty-one thousand three hundred
thirty-two/00 euro) plus 5% interests p.a. as follows:
-Euro 13.666,00 (thirteen thousand seven hundred sixty-six/00 euro) plus 5% interests p.a.since
01st January 2019 until the day of the effective payment;
-Euro 500,00 (five hundred/00 euro) plus 5% interests p.a. since 01st January 2019 until the day
of the effective payment;
-Euro 16.666,00 (sixteen thousand six hundred sixty-six/66 euro) plus 5% interests p.a. since01st
February 2019 until the day of the effective payment;
-Euro 500,00 (five hundred/00 euro) plus 5% interests p.a. since 01st February 2019 until the
day of the effective payment;
-to impose on Cluj SA disciplinary sanction applying art. 12 bis point 4 FIFA RSTP;
-to condemn Cluj SA to pay all the proceedings costs and legal fees”.
B. Position of the Respondent
9) In its reply, the Respondent first contests the competence of FIFA to deal with the present
dispute, in favour of the Romanian NDRC, based on the following article of the contract:
“Resolution of disputes
The parties will make, in good-faith, all efforts to amicably resolve any dispute, controversy, or
misunderstanding resulting from or in connection with the present agreement. Conflicts related
to the conclusion, execution, amendment, suspension or discontinuation of the present
agreement will be resolved by the jurisdictional bodies within the RFF or PPL or by the materially
and regionally competent courts of law when, the above mentioned jurisdictional bodies do not
have the authority to resolve the occurring dispute. Objectively, any disputes resulting from the
development of the present agreement will be resolved by the National Dispute Resolution
Chamber within the RFF and such chamber's decisions may be appealed against before the
Board of Appeals within the RFF /FIFA/CAS, exactly in this order”.
10) The Respondent claims that the Romanian NDRC complies with all the due requirements and
requests primarily that the claim be considered inadmissible. The Respondent however did
not provide any documentation related to the Romanian NDRC.
11) As to the substance, the Respondent refers to clauses 5 and 6 of the termination agreement
and claims that the player thereby acknowledged that the club does not have any pending
financial obligations towards him.
12) Thus, the club deems that, in case the player’s claim is considered admissible, it should be
rejected.
III. CONSIDERATIONS OF THE DRC JUDGE
A. Competence
13) In relation to the competence, the Dispute Resolution Chamber (DRC) Judge (hereinafter also
referred to as the DRC judge) analysed 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 11 March
2020 and decided on 3 July 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 DRC Judge referred to art. 3 par. 1 and 2 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, he is competent to deal with employmentrelated
disputes with an international dimension between a player and a club.
B. Admissibility
15) Notwithstanding the above, the DRC judge acknowledged that the club contested the
competence of FIFA arguing that in accordance with the contract the National Dispute
Resolution Chamber (NDRC) of Romania was the competent tribunal to enter into the
substance of this matter.
16) In this context, the DRC judge first deemed it essential to verify whether the contract indeed
contained a clear and exclusive arbitration clause in favour of one specific deciding body
under the auspices of the Football Federation of Turkmenistan. In this respect, the DRC judge
referred to the wording of the contract, which stipulates that: “The parties will make, in goodfaith,
all efforts to amicably resolve any dispute, controversy, or misunderstanding resulting
from or in connection with the present agreement. Conflicts related to the conclusion, execution,
amendment, suspension or discontinuation of the present agreement will be resolved by the
jurisdictional bodies within the RFF or PPL or by the materially and regionally competent courts of law when, the above mentioned jurisdictional bodies do not have the authority to resolve the
occurring dispute. Objectively, any disputes resulting from the development of the present
agreement will be resolved by the National Dispute Resolution Chamber within the RFF and
such chamber's decisions may be appealed against before the Board of Appeals within the RFF
/FIFA/CAS, exactly in this order”.
17) Having analysed the aforementioned clause, the DRC judge concluded that its wording is by
no means clear and appears to mention two different deciding bodies, not specifying
however the framework of their competence. Thus, such clause of the contract cannot be
considered as a valid arbitration clause, stipulating the clear and exclusive jurisdiction of one
specific deciding body of the Romanian NDRC.
18) As a result of the aforementioned, the DRC judge concluded that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected, without
the need of any further analysis of the NDRC Regulations, as the first pre-requisite – that of
a clear and exclusive arbitration clause contractually agreed between the parties – is not met.
This decision is also in line with previous decisions of the DRC related to the Romanian NDRC.
Thus, the DRC judge is competent to consider the present matter as to the substance, on the
basis of art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and
Transfer of Players and the claim is admissible.
C. Applicable legal framework
19) The DRC judge analysed which edition of the 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 2 of the Regulations on the Status and Transfer of Players, and considering that the
present claim was lodged on 11 March 2020 and decided on 3 July 2020, the June 2020
edition of said regulations is applicable to the matter at hand as to the substance.
20) His competence and the applicable regulations having been established, the DRC judge
entered into the substance of the matter. 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, he emphasised 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.
D. Burden of proof
21) The DRC judge 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.
E. Merits of the dispute
I. Main legal discussion
22) The DRC judge wished to recall in this respect the main elements of the dispute.
23) In this respect, he noted that while the player claims that the club has overdue payables
towards him in the total amount of EUR 31,332, the club deems that the player waived his
right to receive any amounts due to him, in accordance with clauses 5 and 6 of the termination
agreement.
24) In view of the foregoing, the DRC judge noted that the main issue to be solved in the present
case is whether the club indeed had a valid reason not to have paid the player the amounts
he requests based on their employment contract.
II. Considerations
25) Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed
an employment contract valid as from 7 July 2018 until 30 June 2019, as per which the
Claimant was entitled to the remuneration detailed in points I.2 and I.3 above. This contract
was mutually terminated by the parties with effect as from 31 January 2019.
26) The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the
Respondent has overdue payables towards him in the total amount of EUR 31,332,
corresponding to his remaining salary of December 2018, his full salary of January 2019 and
his rent contributions for December 2018 and January 2019.
27) In this context, the DRC judge took particular note of the fact that, on 10 February 2020, the
Claimant put the Respondent in default of payment of the aforementioned amounts, setting
a time limit of 10 days in order for the Respondent to remedy the default.
28) Consequently, the DRC judge concluded that the Claimant had duly proceeded in accordance
with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club)
must have put the debtor club in default in writing and have granted a deadline of at least
ten days for the debtor club to comply with its financial obligation(s).
29) Subsequently, the DRC judge took into account that the Respondent, for its part, claims that
there are no outstanding payments towards the player, as he waived any amounts eventually
due to him in accordance with clauses 5 and 6 of the termination agreement.
30) In this regard, the DRC judge, referring to art. 12 par. 3 of the Procedural Rules, as per which
“any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, noted
that the documentation provided by the club in support of such allegation cannot be
sustained. In particular, the DRC judge noted that from the wording of the aforementioned
clauses, which is rather unclear, no waiver of his financial dues was issued by the player. While
clause 5 stipulates that the releasing and the receiving clubs have no obligations towards
each other, clause 6 stipulates that the player has no further obligations towards the club as
from 31 January 2019.
31) Furthermore, the DRC judge noted that the club did not present any substantial evidence of
payment of the outstanding amounts claimed by the player, the only piece of evidence
presented being a bank statement submitted in Romanian only. Thus, the DRC judge decided
that such allegations of the club must be rejected.
32) On account of the aforementioned considerations, the DRC judge established that the
Respondent failed to remit to the Claimant the total amount of EUR 31,332 corresponding to
his remaining salary of December 2018, his full salary of January 2019 and his rent
contributions for December 2018 and January 2019.
33) The DRC judge established that the Respondent had delayed the due payment of the player’s
remuneration for more than 30 days without a prima facie contractual basis.
34) Consequently, the DRC judge decided that, in accordance with the general legal principle of
pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount of EUR
31,332, plus interest of 5% p.a. as from the due dates until the date of effective payment.
III. The consequences of art. 12bis of the RSTP
35) In continuation, taking into account the consideration under number II./33. above, the DRC
judge referred to art.12bis par. 2 of the Regulations which stipulates that any club found to
have delayed a due payment for more than 30 days without a prima facie contractual basis
may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.
36) The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. In this context, the DRC judge
highlighted that, on several occasions within the past 2 years, the Respondent had already
been found to have delayed a due payment for more than 30 days without a prima facie
contractual basis.
37) Moreover, the DRC judge referred to art. 12bis par. 6 of the Regulations, which establishes
that a repeated offence will be considered as an aggravating circumstance and lead to a more
severe penalty.
38) Bearing in mind the above, the DRC judge decided to impose a fine on the Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations. On account of the above and taking
into consideration the amount due of EUR 31,332 of overdue payables, the DRC judge
regarded a fine amounting to CHF 5,000 as appropriate and hence decided to impose said
fine on the Respondent.
IV. Conclusion
39) As a result of the aforementioned, the DRC judge decided that the player’s claim is admissible
and to partially accepted and that the club should pay the player the total amount of EUR 31,332
as outstanding remuneration plus 5% interest p.a. as follows:
a) on EUR 13,666 as from 1 January 2019 until the date of effective payment;
b) on EUR 500 as from 1 January 2019 until the date of effective payment;
c) on EUR 16,666 as from 1 February 2019 until the date of effective payment;
d) on EUR 500 as from 1 February 2019 until the date of effective payment.
V. Legal Consequences
40) Subsequently, 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.
41) 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.
42) Therefore, bearing in mind the above, the DRC judge 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.
IV.DECISION OF THE DRC JUDGE
1) The claim of the Claimant, Giuseppe de Luca, is admissible.
2) The claim of the Claimant, Giuseppe de Luca, is partially accepted.
3) The Respondent, CRF 1907 Cluj SA, has to pay to the Claimant, the following amount:
- EUR 31,332 as outstanding remuneration plus 5% interest p.a. as follows:
o on EUR 13,666 as from 1 January 2019 until the date of effective payment;
o on EUR 500 as from 1 January 2019 until the date of effective payment;
o on EUR 16,666 as from 1 February 2019 until the date of effective payment;
o on EUR 500 as from 1 February 2019 until the date of effective payment.
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.
8) The Respondent is ordered to pay a fine in the amount of CHF 5,000. The fine is to be paid
within 45 days of notification of the present decision to FIFA to the bank account indicated
below, and making reference to case 20-00462/lsk (cf. note relating to the payment of the
procedural costs below).
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777