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 11 march 2021

Decision of the

Dispute Resolution Chamber

passed on 11 march 2021

regarding an employment-related dispute concerning the player Fofana Boubacar

COMPOSITION:

Clifford J. Hendel (USA & France), Deputy Chairman

Tomislav Kasalo (Croatia), member

Mohamed Muzammil (Singapore), member

CLAIMANT:

Fofana Boubacar, Guinea

RESPONDENT:

CS Gaz Metan Medias, Romania

I. Facts

1. On 7 July 2018, the parties concluded an employment contract valid as from the date of signature until 30 June 2020.

2. Clause IV.4.1 of the contract stipulated the following:

V. PAYMENT FOR THE PERFORMANCE OF SPORTS ACTIVITIES

4.1. Monthly pay: In exchange for the football activities performed by the Player, as they are mentioned in this Agreement the Club shall pay the Player the following amounts:

• for the period 07.07.2018-30.06.2019, the equivalent in lei of the net amount of 6.000 euro every month,

• for the period 01.07.2019 - 30.06.2020, the equivalent in lei of the net amount of 6.500 euro every month, calculated according to the exchange rate communicated by BNR (National Bank of Romania) for the payment date. The payment of these amounts will be made every month for the activities performed in the previous month, until the 20"' of every month.

4.2. Bonuses: 4.2.1. The Club will pay the Player, upon the proposal of the senior coach, if the player evolves for at least 45 minutes in at least 50% of the official games, a fee calculated based on the following criterion:

► for joining the Play-off Championship the player will receive 15.000 euro net;

► for joining the Romanian Cup the sum of 15.000 euro net;

► for joining the Preliminaries of Europa League the sum of 15.000 euros net;

► for joining the groups of Europa League the sum of 30.000 euros net;

► for joining the groups of Champions League the sum of 100.000 euros net.

3. On 18 August 2020, the Claimant sent a default notice to the club requesting the following:

“a. The salaries of March 2020 in the net amount of 6 500,00 €, April 2020 in the net amount of 6 500,00 €, May 2020 in the net amount of 6 500,00 € and June 2020 in the net amount of 6 500,00 €, in a total net amount of 26 000,00 €;

b. The fee for joining the Play-Off Championship in the amount of 15 000,00 € net;

c. Half of bonus of winning games to reach playoff;

d. Those payments shall be made in the next 10 days, otherwise the player will be deemed to submit a claim in FIFA's DRC with the imposing of sportive sanctions to the Club.”

4. On 6 November 2020, the Claimant lodged a claim for outstanding remuneration and requested the payment of the total amount of EUR 13,00 plus “interest at 5% rate”:

- EUR 3,250 net for “half March 2020”;

- EUR 6,500 for April 2020;

- EUR 3,250 for “half may 2020”

5. The Claimant specified that the contract expired on its agreed date of expiration.

6. In its reply to the claim, the Respondent rejected the claim.

7. In this respect, the Respondent argued that, due to the COVID-19 pandemic, a state of Emergency was declared in Romania and that, in this context, under the Emergency Ordinance 30/2020, players “were granted an indemnity of 75% of the cash rights related to the consideration of the sports activity, but not more than 75% of the average gross salary (art. 15 of Law no. 6/2020)”

8. Consequently, the club explained that it performed the following payments:

- March 2020 – 305 euro – technical unemployment + 3419 euro = 3724 euro

- April 2020 – 435 euro – technical unemployment

- May 2020 – 448 euro – technical unemployment + 3419 euro = 3867 euro

9. In its replica, the player considered that the Respondent failed to comply with the FIFA Guidelines concerning COVID-19, particularly because there was no agreement nor written consent. The player further argued that there was no negotiation in good faith, and that the club’s position is not reasonable or proportionate.

10. As a result, the player insisted to be paid with the total outstanding amount of EUR 13,000, as initially claimed.

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 January 2021 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 at the present one, which involves a Guinean player and a Romanian 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 date when the claim was lodged, the June 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 7 July 2018, the parties concluded an employment contract valid as from the date of signature until 30 June 2020, according to which he was entitled to a remuneration as quoted in point I.3 above.

6. Subsequently, the Chamber observed that the Claimant lodged a claim for outstanding remuneration and requested the payment of the total amount of EUR 13,000 plus “interest at 5% rate”:

- EUR 3,250 net for “half March 2020”;

- EUR 6,500 for April 2020;

- EUR 3,250 for “half may 2020”

7. Conversely, the Chamber noted the position of the Respondent argued that due to the COVID-19 pandemic, a state of Emergency was declared in Romania and that, in this context, under the Emergency Ordinance 30/2020, players “were granted an indemnity of 75% of the cash rights related to the consideration of the sports activity, but not more than 75% of the average gross salary (art. 15 of Law no. 6/2020)”. The Chamber further noted that the club explained that it performed the following payments:

- March 2020 – 305 euro – technical unemployment + 3419 euro = 3724 euro

- April 2020 – 435 euro – technical unemployment

- May 2020 – 448 euro – technical unemployment + 3419 euro = 3867 euro.

8. The foregoing being established, the Chamber went on to examine the Respondent’s arguments in relation to the COVID-19 pandemic.

9. Having said that, the DRC 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 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.

10. In this respect, the Chamber underlined that, according to the COVID-19 Guidelines, Clubs and employees (players and coaches) are strongly encouraged to work together to find appropriate collective agreements on a club or league basis regarding employment conditions for any period where the competition is suspended due to the COVID-19 outbreak.

11. In addition, the Chamber observed that, following said document, where (a) clubs and employees cannot reach an agreement, and (b) national law does not address the situation or collective agreements with a players’ union are not an option or not applicable, unilateral decisions to vary terms and conditions of contracts will only be recognized by FIFA’s Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they were made in good faith, are reasonable and proportionate.

12. With this idea in mind, the Chamber first wished to establish whether the Emergency Ordinance 30/2020 is applicable to the current matter.

13. In this respect, 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”.

14. Hence, in application of the aforementioned principle, the Chamber understood that it was up to the Respondent to provide a full copy of the aforementioned legislative document. However, the Chamber noted that the Respondent failed to do so. As a result, the Chamber established that, for the present matter, it could not take the Respondent’s arguments into the applicable law, since the law that the Respondent is relying on was not provided during the proceedings.

15. In view of the above, the Chamber established that it could only consider the Regulations on the Status and Transfer of Players, as the primary source of law that is applicable to the contract at stake.

16. After establishing the applicable law to the relevant contract, the Chamber underlined once again that, following the COVID-19 Guidelines, unilateral decisions to vary agreements will only be recognised where they were made in good faith and that, when assessing said decision, the DRC may consider, without limitation, the following elements:

a. whether the club had attempted to reach a mutual agreement with its employee(s);

b. the economic situation of the club;

c. the proportionality of any contract amendment;

d. the net income of the employee after contract amendment;

e. whether the decision applied to the entire squad or only specific employees.

17. After duly taking note of all of the aforementioned criteria, the Chamber focused its attention to the principle of good faith when it comes to unilateral decisions to vary contractual terms. Indeed, the members of the Chamber concurred that this principle is of paramount importance when it comes to recognize a decision of this nature.

18. With this idea in mind, the members of the Chamber further referred once again to 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.

19. Within this context, and after duly analyzing the evidence gathered during the course of the investigation, the members of the Chamber considered that the Respondent failed to prove that it attempted to conduct a negotiation with the player in good faith.

20. As a result, a majority of the Chamber was of the opinion that it could not recognize the salary deductions performed by the Respondent and that, consequently, the player is entitled to his remuneration as contractually agreed.

21. In this respect, the Chamber recalled that, according to the contract, between March and May 2020, the player was entitled to EUR 6,500 per month.

22. Moreover, the Chamber noted that the Claimant request the payment of the following amounts:

- EUR 3,250 net for “half March 2020”;

- EUR 6,500 for April 2020;

- EUR 3,250 for “half may 2020”

23. In relation to said payment, the Chamber also noted that the Respondent argued that it performed them in a partial manner, as follows:

March 2020 – 305 euro – technical unemployment + 3419 euro = 3724 euro

April 2020 – 435 euro – technical unemployment

May 2020 – 448 euro – technical unemployment + 3419 euro = 3867 euro

24. In this respect, the Chamber observed that, in support of its allegations, the Respondent provided some apparent receipts of payment, which were available in their original language only.

25. The Chamber recalled in this regard that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and, if applicable, translated into one of the official FIFA languages (English, French, Spanish and German). Bearing in mind the wording of the aforementioned provision, the Chamber concluded that said documents provided by the Respondent without a translation in one of the official FIFA languages could not be taken into account.

26. In view of the foregoing, the DRC concurred that the Respondent is entitled to the claimed remuneration between March and May 2020, i.e. EUR 3,250 net for “half March 2020”, EUR 6,500 for April 2020 and EUR 3,250 for “half may 2020”, for the total amount of EUR 13,000.

27. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 13,000, as agreed in the contract.

28. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a. over said amount as from the due date, i.e. the day after each of the monthly instalments.

29. 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.

30. 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.

31. 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.

32. 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, Fofana Boubacar, is accepted.

2. The Respondent, CS Gaz Metan Medias, has to pay to the Claimant, the amount of EUR 13,000 as outstanding remuneration, plus 5% interest p.a. as from the due dates until the date of effective payment.

3. 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.

4. 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).

5. 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