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 19 November 2020

Decision of the

Dispute Resolution Chamber

passed on 19 November 2020

regarding an employment-related dispute concerning the player José Luis Alfonso Gamboa Agudelo

COMPOSITION:

Geoff Thompson (England), Chairman

Daan de Jong (Netherlands), member

Michelle Colucci (Italy), member

CLAIMANT:

José Luis Alfonso Gamboa Agudelo, Colombia

Represented by Ms Rosalía Ortega Pradillo

RESPONDENT:

Lori FC, Armenia

I. Facts

1. On 21 February 2020, the parties concluded a “pre-contract” valid as from 21 February 2020 until 1 June 2023.

2. The pre-contract stipulated, inter alia, the following:

3.1 The Player will receive monthly salary $300 net per month. Salary will have option to be grow up each year which will be discussed in Armenia.

3.2. Employment Contract will be signed for until 1 June, 2023.

3.3. The payment order of rewards are defined by the Annex 1 which is signing by both sides with Contract. Rewards for per won match will be 300 USD if the player will be included in Starting XI

3.4. Club undertakes to take care about house living and feeding while he is in Vanadzor.

3. According to the information available in TMS, on 27 February 2020, the parties concluded an employment contract.

4. In relation to its period of validity, the contract stipulated the following:

“5.1. The present Contract enters into force on 27.02.2020 and is valid up 31.07.2023.

5.2. The Contract may be extended after its expiry by mutual agreement of parties through making up one document.

5.3. The Club has right to refuse the contract during the periods: 01. 06. 2020-15. 06. 2020, 01.06.2021 15. 06. 2021 , 01. 06. 2022 - 15. 06. 2022.”

5. According to the player, the parties signed an “Annex”, in which it is agreed that the monthly net salary will increase per season, with USD 300 being the first season, USD 600 the second season and USD 900 for the third.

6. The club was invited by the Regulatory Enforcement Department to attach the annex in TMS, to which it replied as follow on 20 October 2020:

“We would like to mention also the Player never asked to the Club's Board about annex, had been paid his all salaries as all other players and had no any complaints before this "sensational scandal" with a lot of fake informations about our Club made by him and his representatives.”

7. According to the club, the only document including the player’s remuneration is the pre-contract.

8. On 17 August 2020, the player sent a default notice via email to “info@fclori.am” with, inter alia, the following contents:

“This contract establishes the obligations of both parties. However, there are several that are not been fulfilled by the Club (…).

Said unfulfilled obligations, include outstanding salaries due to the player during a period of 3 consecutive months, relegation from the First Team without any justified nor supported sporting reason, the constant threatening of eliminating the “house living” and “feeding” responsibility acquired by the club and agreed within the terms of the contract.

Furthermore, the Club has not provided if the player is under a valid migratory status within the country nor has confirmed the existence of a valid work permit for him. Therefore, throught this document we ask yo to provide us the information regarding the legal status of the player in Armenia country in the very urgent deadline of 5 days.

Also, the player has not received the monthly payment of $300.00 USD agreed on contract signed with your Club on February 21st, 2020 during the last 3 consecutive months, notwithstanding the fact of several attempts done by the player itself and his agent to collect them, with no positive results.

(…)

Based on the above, we place you so that within 15 days you can pay the total amount of 900 USD in the player's bank account. (…)”

9. The player explained that, as of 10 October 2020, he remained “unemployed in the football world.”

10. On 7 September 2020, the Claimant lodged a claim before FIFA for breach of contract without just cause and requested the payment of the total amount of USD 74,235.14, detailed as follows;

- USD 62,020.11 “plus related interests corresponding to the alleged residual value of the contract, further detailed as follows;

- USD 29,790, corresponding to the residual value of the contract, from March 2020 until June 2023.

- USD 27,280.11 as housing (art. 3.4 of the contract), considering that the player was staying in the “Kirovakan Hotel” and that “following many websites”, the most affordable room in said hotel corresponds to USD 862.67.

- USD 4,950 as “aliments”.

- USD 7,873.62 as compensation for specificity of sport;

- USD 4,341.41 as moral damage.

11. The player explained that he never received his salary.

12. In addition, the player stated that the club did not let him know if his legal status in the country was valid did not confirmed whether a valid work permit was issued.

13. Furthermore, the player argued that he is constantly being threatened with being evicted from the hotel which was provided as "housing" by the Club and not receiving food or the means to obtain it.

14. The player further explained that he was relegated to the B team.

15. As a result, the player stated that, it is clear that Lori FC did not want to continue the employment relationship with the Player.

16. According to the player, at the date of the claim, he was still is not allowed to train. In addition, the player stated that the club did not communicate him a work schedule, did not provide him with “the club's clothes” and that “no one from the Club tried to communicate with him despite many attempts.”

17. In relation to the moral damage, the player stated that “he has been placed in a situation of emotional stress, fear and unnecessary distress, as a result of Lori FC's deliberate and malicious behavior. The fact that the new coach treated him unfairly, that he was the only player isolated from the first team, forced to play with the second team, the fact that he did not know his legal status in Armenia (having requested it and not getting an answer) and being a young foreign player (Colombian) in a country very different from his own, including the language, without being able to relate, besides not receiving the agreed salary, all contribute to his moral damage.

18. In its reply to the claim, the Club underlined that “a few days after arrival in Armenia, a state of emergency and isolation was declared in the country.”

19. In this respect, the club argued that the player never asked about his residence status in Armenia and that “the deadline for resolving such issues was September 30, 2020”.

20. According to the club, its players can “choose the place of residence - hotel or apartment” “it is interesting that during living in the hotel for about six months, the footballer never applied to the club representatives to change the room or move to the apartment, but his representative uses it as an argument [in his claim]”.

21. In this respect, and concerning the evidence provided by the player concerning his hotel room, the club stated that “it is clearly seen, first of all, the football player's filthy lifestyle in the room, the numerous garbage cans, which are dangerous from the point of view of hygiene.”

22. The club further considered that “the noisy statement of the football player's representative about "kicking out" the (…) player out of the hotel is a blatant lie, nonsense.”

23. The club stated that “it should be noted that the football player was infected with a coronavirus in July. During the whole period of his isolation, the club took care of his residence, provided him with medical assistance in case of need.”

24. Concerning his alleged demotion, the club argued that “it does not have a second team. It can be found out from the Football Federation of Armenia.”

25. The club further stated that, in his claim, “[the Claimant] provided false information to FIFA"

26. In relation to the default notices, the club argued that “the club's official e-mail addresses: info@fclori.am, petrosyan@fclori.am, office@fclori.am - have not been working since August 10, 2020” and that “due to technical problems, the club could not receive, read, or follow the letters received.”

27. The club concluded by stating that it “strongly condemns the player's non-fulfilment of his contractual obligations with the club, disrespect for the club and the provision of obviously false and absurd information.”

28. As to the requested compensation, the club argued that it is not obliged to reimburse the football player's full salary, food, and/or accommodation expenses until May 31, 2023.

29. In relation to the outstanding remuneration, the club stated that it “was paid for February, March, April, May and June. According to the club's decision, due to the coronavirus's damage, the club made salary cuts in March, April and May, but it also applied to all the club's players and employees”, and explained that “it is ready to provide evidence if necessary.”

30. In particular, the club noted that, according to clause 5.3 of the contract, the club has the right to terminate the player's contract during the first 15 days of each summer transfer window, “which means that in the worst case, the club could refuse his services on June 1, 2021.”

31. In relation to the hotel room, the club explained that it has as special agreement with the Hotel Kirovakan “to provide a service at a specially set price, which is confidential information and is not available to any third party under a contract between the parties.”

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 Colombian player and an Armenian club.

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 7 September 2020, the August 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 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 Chamber noted that, on 21 February 2020, the parties concluded a “pre-contract” valid as from 21 February 2020 until 1 June 2023. For the avoidance of doubt, the Chamber wished to underline that, despite said name, the “pre-contract” was a fully binding contract, as acknowledged by the parties.

6. Subsequently, the DRC acknowledged that, on 7 September 2020, the Claimant lodged a claim before FIFA for breach of contract without just cause.

7. In relation to said breach of contract, the Chamber observed that the Claimant sent a default letter to the Respondent on 17 August 2020 (cf. point I. 8 above), by means of which he complained about certain alleged contractual breaches and granted a deadline of 15 days. However, the Chamber noted that said default letter did not constitute a termination letter.

8. As a resultt, the DRC 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.

9. Nevertheless, given the specific contents of the claim of the player, in accordance with the longstanding jurisprudence of the DRC and exclusively for the purposes of this matter, the DRC decided that the date of the claim, i.e. 7 September 2020, should be considered as the date of termination of the contract.

10. Conversely, the Chamber took note of the Respondent’s position, by means of which, inter alia, it stated that it “strongly condemns the player's non-fulfilment of his contractual obligations with the club, disrespect for the club and the provision of obviously false and absurd information.”

11. In view of the dissent between the parties, Chamber went on to establish whether, on 7 September 2020, the player would have had just cause to terminate the contract.

12. In relation to said termination, the Chamber noted that the player fundamentally stated that he was not paid by the club, was not provided with a work visa and that he was demoted to the B team.

13. Concerning the outstanding salaries, the Chamber took note of the Respondent’s argument, according to which it paid the player’s salary and that it also made some deductions due to the COVID-19 pandemic.

14. On this point, the Dispute Resolution Chamber reminded the parties of the contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

15. Concerning the argument of the Respondent in relation to the outstanding payments, the Chamber noted that it expressed that it is “ready to provide evidence”. Yet, the Chamber noted that, ultimately, the Respondent failed to present any evidence in this respect. Thus, the Chamber was of the opinion that the Respondent failed to support its arguments about the payment of the player’s remuneration with sufficient evidence. As a result, the Chamber could only assume that the claimed outstanding amounts remained unpaid.

16. On this note, the Chamber wished to clarify that, following the contract concluded on 21 February 2020, the player was entitled to a monthly salary of USD 300, while specifying that “salary will have option to be grow up each year which will be discussed in Armenia. “

17. Yet, the Chamber observed that, according to the Claimant, the parties signed an “Annex”, in which it is agreed that the monthly net salary will increase per season, with USD 300 being the first season, USD 600 the second season and USD 900 for the third.

18. However, after duly examining the information gathered on file, including the information contained in the Transfer Matching System (TMS), the Chamber observed that there is no specific evidence of said salary increases, as alleged by the Claimant. The Chamber observed that, indeed, the contract of 21 February 2020 foresaw possible salary increases, but said increases were not clearly regulated.

19. Thus, the Chamber could only establish that the player was entitled to a monthly salary of USD 300.

20. This being said, the Chamber understood that, as of 7 September 2020, the player should have received the total amount of USD 1,800 (i.e. 6*300, from March 2020 until August 2020). Yet, insofar there is no evidence that the player was duly paid during said period, the Chamber understood that, at the date of the claim, the amount of USD 1,800 remained outstanding.

21. As a result, the Chamber established, in accordance with the principle of pacta sunt servanda, that the Respondent shall pay to the Claimant the amount of USD 1,800 as outstanding remuneration.

22. In addition, taking into account the Claimant’s request and in accordance with the longstanding jurisprudence of the Chamber in this respect, the Chamber decided to award 5% interest p.a. over said amount as from the due dates.

23. After establishing that, at the date of 7 September 2020, the Respondent owed six monthly salaries to the Claimant, the Chamber went on to examine whether the Claimant could have had a just cause to terminate the contract at said date.

24. In this respect, the DRC 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.

25. In this respect, the Chamber considered that, since the player appears to not have been paid since March 2020, the Respondent significantly neglected its financial obligations towards the Claimant. Consequently, at the date of 7 September, the player could reasonably expect that the Respondent was not in a position to comply with its financial obligations, as contractually agreed.

26. As a result, the DRC 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. Considering this, the Chamber further noted that it is not necessary to examine the remaining argument from the Claimant in relation to the early termination of the contract.

27. 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 remuneration on the basis of the relevant employment contract.

28. As a result, the DRC went on to examine the (financial) consequences of the early termination of the contract and, in particular, the calculation of the payable compensation.

29. 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. The DRC 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.

30. In application of the relevant provision, the DRC 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 established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

31. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC 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 in September 2020, the contract would run until June 2023, for which the player would still have to receive the total amount of USD 9,900 (i.e. 300*33, from September 2020 until June 2023). As a result, the DRC considered that the amount of USD 9,900 shall serve as the basis for the calculation of the payable compensation.

32. In continuation, the DRC 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, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with Claimant’s general obligation to mitigate his damages.

33. In this respect, the DRC took note that, in accordance with the Claimant’s allegations, the latter remained unemployed.

34. 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 Chamber concluded by deciding that the Respondent has to pay the total amount of USD 9,900 to the Claimant, as compensation for breach of contract.

35. In addition, in accordance with the longstanding jurisprudence of the Chamber in this respect, the Chamber decided to award 5% interest p.a. over said amount as from the date of the claim

36. Subsequently, the Chamber went on to examine the remaining requests of the Claimant.

37. In particular, the Chamber noted that the Claimant requested the amounts of USD 27,280.11 as housing (art. 3.4 of the contract), considering that the he was staying in the “Kirovakan Hotel” and that “following many websites”, the most affordable room in said hotel corresponds to USD 862.67, as well as USD 4,950 as “aliments”.

38. In relation to said request, the Chamber noted, however, that, although certainly clause 3.4. of the contract stipulated that the Respondent “undertakes to take care about house living and feeding while he is in Vanadzor”, said fringe benefits were stipulated as an in kind remuneration (non-cash), which could not be quantified in the manner proposed by the Claimant in his claim. As a result, the Chamber rejected this part of the Claimant’s request.

39. In addition, the Chamber rejected the Claimant’s request for “moral damages” and specificity of sport due to a lack of contractual, regulatory or basis.

40. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

41. In this regard, the Dispute Resolution 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.

42. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

43. Finally, the Dispute Resolution 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, José Luis Alfonso Gamboa Agudelo, is partially accepted.

2. The Respondent, Lori FC, has to pay to the Claimant, the following amounts:

- USD 1,800 as outstanding remuneration plus 5% interest p.a. as from the due dates until the date of effective payment;

- USD 9,900 as compensation for breach of contract without just cause plus 5% interest p.a. as from 9 September 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.

7. This decision is rendered without costs.

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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