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 12 August 2020

Decision of the

Dispute Resolution Chamber

passed on 12 August 2020,

regarding an employment-related dispute concerning the player Bruno Ferreira dos Santos

BY:

Stijn Boeykens (Belgium), DRC Judge

CLAIMANT:

Bruno Ferreira dos Santos, Brazil

represented by Mr Cristiano Caùs and Mr Raphael Pacó Barbieri

RESPONDENT:

Vanadzori Footballi Academy, Armenia

I. FACTS OF THE CASE

1. On 14 July 2019, the Brazilian player, Bruno Ferreira dos Sanots (hereinafter: the player or the Claimant) and the Armenian club, Vanadzori Footballi Academy (hereinafter: the club or the Respondent), signed an employment contract valid as from 17 July 2020 until 14 July 2021.

2. In accordance with the provisions contained in the contract, the Respondent undertook to pay the Claimant the following amounts:

 USD 1,200 as monthly salary;

 “Starting from 1 August 2020, Player will be changed and become between 1200 - 2000 USD”;

 “Bonus per won official match where player plays in starting 11 will be a rate of 300 USD. In any other case, bonus will decide head coach”.

3. Furthermore, the Respondent undertook to “take care about house living for the Player while he is in Armenia”.

4. On 28 December 2019, while the Claimant was spending his approved vacation in Brazil until 15 January 2020, he received a message from the club’s manager whereby the club informed the player about the following: “Bruno, [the] Club decided that [the] termination of contract is better option for both sides, as you are not in our plans for upcoming part of the season”.

5. In this context, the player contacted the club, requesting the latter to reconsider its decision. In this respect, it must be noted that the player offered his services to the club and requested the latter to arrange his flight tickets so that he could come back to Armenia

6. According to the player, no termination agreement was concluded between the parties and, what is more, the club rejected to pay his salaries as of December 2019 onwards.

7. On 12 February 2020, the player put the club in default of payment and requested the latter to comply with its financial obligations towards him. In particular, the now Claimant requested the now Respondent to proceed with the payment of his salaries of December 2019 and January 2020 within the following 15 days; as well as to be reinstated in the team and resume his contractual obligations.

8. On 12 March 2020, in view of the fact that the Respondent failed to pay his salaries and the club was allegedly holding an abusive conduct towards the player, the latter sent another notice to the club, by means of which the player terminated the contract.

9. On 2 June 2020, the player lodged a claim against the club before FIFA, requesting “compensation” in the total amount of USD 35,000, plus 5% interest p.a. “pro rata tempore”, in application of art. 14bis of the RSTP or, subsidiary, of art. 14 para. 2 of the RSTP.

10. In his claim, the player held that the club shall be held liable for the early termination of the contract, insofar it communicated to the player that it was no longer interested in his services and failed to arrange his flight tickets as for him to join the club after his holidays, despite him having complied with his contractual obligations towards the club, which is why he did not return to Armenia in January 2020.

11. The player further held that he had just cause to terminate the contract, since it was the ultima ratio measure upon the club’s non-reaction to his default notices and failure to pay his salaries of December 2019 and January 2020.

12. In its reply, the club held that, in mid-December, it started a negotiation with the player in order to amicably terminate the employment contract; however, to no avail.

13. Moreover the club maintained that, at the end of December, it requested the player to return to Armenia and resume training with the team, but –according to the club– the player did not return ”but only demanded payments”.

14. The club maintained that from 14 March 2020 to 23 May 2020, due to the Covid-19 pandemic, “the work of the Football Federation of Armenia was suspended”.

15. Furthermore, the club stated that “In the light of the above, FIFA has stated that in the current situation, relations with players (including the obligation to pay the players) may be regulated by domestic law. In this case, according to the domestic legislation, the Football Federation of Armenia was released from the obligation to pay, therefore, non-payment by him cannot be considered a violation of the law”; and that “After the end of the above-mentioned period, the Player did not return to Armenia, as the football player did not fulfil his obligations, did not participate in the trainings, with which the latter was not paid.”

16. In this context, the club clarified that it is willing to pay the December monthly salary, since the parties were negotiating a possible termination of the contract, but not the salaries from January 2020 onwards, which the club consider as not due to the player, insofar he did not return to Armenia.

17. The club concluded by stating that the claim of the player is to be considered “meaningless.”

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 2 June 2020 and submitted for decision on 12 August 2020. 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 DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension.

3. In continuation, the DRC judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim was lodged on 2 June 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 DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC judge 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 that, the DRC judge acknowledged that, on 14 July 2019, the Claimant and the Respondent signed an employment contract, valid as from 17 July 2019 until 14 July 2021. Based on said contract, the Respondent undertook to pay to the Claimant, inter alia, a monthly salary of USD 1,200 –subject of increase up to USD 2,000 as from August 2020–, as well as to pay his accommodation and a bonus of USD 300 per won official match.

6. What is more, the DRC judge noted that the Claimant argued that, on 12 March 2020, he unilaterally terminated the contract with just cause, since –at that moment in time– 2 monthly salaries remained outstanding (the ones of December 2019 and January 2020), despite him having put the Respondent in default on several occasions; and due to the fact that the club was no longer interested in his services which –according to the player– is crystal clear, since the club failed to provide him with his flight tickets to return to Armenia and due to the Whatsapp reply of the club of 28 December 2019 (cf. point I.4 above).

7. In this context, the Claimant wished to point out that, even though he did not come to the club in January, his failure to return was motivated only because the club made it clear that it was no longer interested in the player and that its intention was to early terminate his employment agreement. In this respect, the Claimant held that the behavior of the club had no justification and it can be considered as an abusive conduct of the latter, in a clear attempt to force the player to accept the early termination of his agreement without any compensation.

8. The DRC judge noted that the Respondent, on the other hand, rejected the claim put forward by the Claimant. In this respect, the Respondent explained that, in mid-December 2019, both parties started negotiations in order to amicably terminate the employment relationship, but that said attempt fail, since they held different positions.

9. Moreover, the DRC judge observed that, according to the Respondent, the latter urged the Claimant to return to Armenia and resume trainings, but the Claimant did not do so and only requested to be paid his salaries. In this context, the DRC judge duly noted that the Respondent acknowledged not having paid the Claimant’s entitlements from December 2019 onwards. Moreover, the DRC judge took note of the allegations of the Respondent, who explained that, upon the covid-19 outbreak, the Football Federation of Armenia suspended the football related activities from 14 March 2020 to 23 May 2020 and that FIFA “stated that in the current situation, relations with players (including the obligation to pay the players) may be regulated by domestic law”. In this context, the Respondent held that it was released from its obligation to pay the player’s entitlements during that period and that, once the said period was finished, the player failed to return to the club and comply with his contractual obligations, reason why the player was not paid.

10. Furthermore, the DRC judge observed that the Respondent stated that it “is ready to pay for December [2019], but as for the period ahead, [the Respondent] has no obligation to pay the player, because the latter did not attend the training, thus violating his obligations”.

11. The DRC judge highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine whether the contract was terminated with or without just cause by the Claimant on 12 March 2020. The DRC judge also underlined that, subsequently, depending on whether the Claimant terminated the contract with or without just cause, it would be necessary to also determine the consequences for the party that was responsible for the early termination of the contract.

12. The DRC judge, first of all, wished to highlight that the unilateral termination of the contract, made by the Claimant on 12 March 2020, was based on both: 1.) the Respondent’s lack of payment of the Claimant’s salaries of December 2019 and January 2020; 2.) as well as on the Respondent’s abusive conduct, which is evidenced by it’s Whatsapp’s statement of 28 December 2019 and by the fact that the Respondent failed to provide the Claimant with the corresponding flight tickets to go back to Armenia in January 2020.

13. As to the first of the arguments brought forward by the Claimant, the DRC judge duly noted that, on 12 February 2020, the Claimant put the Respondent in default regarding the outstanding salaries due to him to date, i.e. the monthly salaries of December 2019 and January 2020, and granted the Respondent a 15 days’ deadline to remedy the default. In this context, the DRC judge referred to the first and second sentences of para. 1 of art. 14bis of the RSTP, which read as follows: “In case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s)”. In view of the above, the DRC judge concluded that, since two monthly salaries were outstanding at the time the Claimant put the Respondent in default, and given that the former granted the latter a 15 days’ deadline to remedy the default without the Respondent doing so, the Claimant, in principle, terminated the contract with just cause on 12 March 2020.

14. Having said that, the DRC judge referred to the argument put forward by the Respondent regarding the suspension of the football activities and the alleged suspension of its obligations to pay the player’s entitlements for the period between 14 March 2020 and 23 May 2020 on the basis of domestic law. In this respect, the DRC judge firstly stressed that the Respondent failed to provide evidence as to the suspension of the league in Armenia during the said period and further asserted that the Claimant had put the Respondent in default regarding payments that were due before the said alleged suspension period started, and, hence, the allegations from the Respondent in this regard are baseless.

15. Notwithstanding the above, the DRC judge referred to the argument brought by the Respondent in relation to the statement of FIFA upon the worldwide COVID-19 outbreak, and wished to remark that 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. In this context, the DRC judge wished to emphasize that, albeit not pertinent to the present case, insofar the 2 outstanding salaries requested by the player correspond to the months of December 2019 and January 2020 –months during which the league was not suspended–, as per said guidelines, FIFA encouraged clubs and players to work together to find appropriate collective agreements regarding employment conditions for any period where the competition is suspended due to Covid-19 outbreak, but did not thereby allow clubs to unilaterally decide to stop paying the salaries of its players.

16. Turning to the second of the arguments brought forward by the Claimant in relation to the grounds of his unilateral termination of the employment relationship, the DRC judge firstly referred to the alleged failure of the Respondent to provide the Claimant with flight tickets to return to Armenia and resume his professional activities. In this respect, the DRC judge noted that there was no contractual clause in the contract whereby the Respondent had undertaken to provide the Claimant with flight tickets to return to Armenia. Hence, the DRC judge established that the argument of the Claimant in this regard could not be followed and that the Respondent did not show an abusive conduct by not providing the Claimant with the said flight tickets.

17. Moreover, the DRC judge referred to the Whatsapp message sent by the Respondent to the Claimant on 28 December 2019 and concluded that the authenticity of the said message not having been contested by the Respondent, it shall be presumed that the Respondent did communicate to the Claimant, on 28 December 2019, that it was no longer interested in his services, which de facto constitutes a breach of contract that was later on corroborated by the consecutive non-payment of the Claimant’s entitlements. Nevertheless, in view of the fact that more correspondence was sent to the Respondent by the Claimant thereafter and that no termination notice was sent by any of the parties to the other until 12 March 2020, the DRC judge concluded that the contractual relationship between the parties is to be deemed terminated on 12 March 2020 as per the termination notice sent by the Claimant.

18. On account of all the above-mentioned considerations, the DRC judge concluded that the Claimant terminated the contract with just cause on 12 March 2020 ex. art. 14bis of the RSTP. Consequently, the Respondent is to be held liable for the early termination of the employment contact.

19. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract.

20. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per employment contract up until the date of termination of the contract in accordance with the general legal principle of “pacta sunt servanda”.

21. On account of the above considerations and the documentation on file, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the termination i.e. the amount of USD 3,600, consisting of the salaries due to the Claimant for the months of December 2019, January 2020 and February 2020 in the amount of USD 1,200 each (1,200*3 = 3,600).

22. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of the respective due dates.

23. In continuation, the DRC judge 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.

24. In this context, the DRC judge 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.

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

26. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC judge 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 judge pointed out that at the time of the termination of the employment contract on 12 March 2020, the contract would have run for 16 months more, that is, until 14 July 2021. Consequently, taking into account the financial terms of the contract, the DRC judge concluded that the remaining value of the contract as from its early termination by the Respondent until the regular expiry of the contract amounts to USD 28,903 (corresponding the salaries due in the period between March 2020 and July 2020 in the amount of USD 1,200 each; and between August 2020 until 14 July 2021 in the amount of USD 2,000 each). In this respect, the DRC judge deemed that, in view of the lack of specificity as to the monthly salary of the player as from August 2020 onwards (cf. point I.2 above) and since the Respondent is the party liable for the early termination of the contract, the amount of USD 2,000 shall serve as basis for the calculation of the compensation payable to the player as from August 2020 until the date on which the contract would have naturally expired.

27. In continuation, the DRC judge remarked that following the early termination of the employment contract at the basis of the present dispute, the Claimant was not able to find a new employment. As a result, no further amounts will be deducted from the compensation the Claimant would be entitled to.

28. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of USD 28,903 to the Claimant as compensation for breach of contract, which is considered by the DRC judge to be a reasonable and justified amount as compensation.

29. In addition, taking into account the Claimant’s claim and the longstanding jurisprudence of the DRC in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as of 2 June 2020 until the date of effective payment.

30. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of USD 32,503 to the Claimant, consisting of the amount of USD 3,600 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract with just cause by the Claimant and the amount of USD 28,903 corresponding to compensation for breach of contract.

31. The DRC judge concluded his deliberations in the present matter stipulating that any further claim lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.

32. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to para. 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.

33. 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.

34. Therefore, bearing in mind the above, the DRC 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.

35. Finally, the DRC judge 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.

DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Bruno Ferreira dos Santos, is partially accepted.

2. The Respondent, Vanadzori Footballi Academy, has to pay to the Claimant, the following amount:

- USD 3,600 as outstanding remuneration, plus 5% interest p.a. as follows:

o USD 1,200 plus 5% interest p.a. as from 1 January 2020 until the date of effective payment;

o USD 1,200 plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;

o USD 1,200 plus 5% interest p.a. as from 1 March 2020 until the date of effective payment.

- USD 28,903 as compensation for breach of contract, plus 5% interest p.a. as from 2 June 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 amounts.

5. The Respondent shall provide evidence of payment of the due amounts 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 amounts 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 amounts are paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amounts 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 judge:

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

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