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 25 February 2021

Decision of the

DRC Judge

passed on 25 February 2021

regarding an employment-related dispute concerning the player Julius Mauritius BLIEK

BY:

Philippe Diallo (France), DRC Judge

CLAIMANT:

Julius Mauritius BLIEK, Netherlands

Represented by Mr Stijn Boeykens

RESPONDENT:

FC Saburtalo, Georgia

I. FACTS

1. On 26 January 2020, the player and the club concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 31 December 2020.

2. According to Annex No. 1 of the contract, the player was entitled to receive inter alia the following monthly salary, ‘on the 10th day of each next month’:

 ‘In case the player participates in 49% or less of official matches, he will receive the monthly net salary of 2000 (two thousand USD in Georgian Lari.’

 In case the player participates in 50-74% or less of official matches, he will receive the monthly net salary of 3000 (three thousand USD in Georgian Lari.

 In case the player participates in 75% or more of official matches, he will receive the monthly net salary of 4500 (two thousand USD in Georgian Lari.

3. On 14 May 2020, the player sent a letter to the club whereby he indicated that no salary had been paid to him to date. Therefore, the player requested the payment of USD 9,387.10 (salaries of January, February, March and April 2020) plus interest by 31 May 2020 at the latest.

4. On 3 June 2020, the player granted the club a final deadline to 12 June 2020 to pay the total amount of USD 12,387.10 as the monthly salaries of January to May 2020.

5. On 17 June 2020, then player unilaterally terminated the contract and requested the amounts of USD 12,387.10 as outstanding remuneration and USD 21,000 as compensation for breach of contract.

6. In his claim, the player held that the club never paid him any remuneration for his services. In this regard, the player specified that salaries were only due as from 28 January 2020 (instead of 26 January as provided in the contract) as he only started to train as of said date.

7. Due to the non-payment of 5 consecutive monthly salaries, the player deemed to have terminated the contract with just cause.

8. Also, the player underlined that FIFA DRC is competent pursuant to arts. 27 and 28 of the contract.

9. In view of the above, the player requested the following amounts:

- USD 12,387.10 as outstanding remuneration;

- USD 21,000 as compensation for breach of contract;

- 5% interest p.a. on the aforementioned amounts.

10. In reply to the player’s claim, the club argued that the official matches in Georgia have stopped because of the COVID-19 pandemic and that it did not pay salaries to the player, as he left the club in March 2020, without notification to the club.

11. According to the club, the player did not play in official matches of the club, and is therefore not entitled to salaries or compensation. If the DRC would deem that the player is entitled to salaries the club argues that his monthly salary cannot be more than USD 2,000 and that therefore, the maximum amount he could claim is 4 x USD 2,000 + (4/31 x USD 2,000) = USD 8,258.

12. Furthermore, the club argues that the player found new employment with the Dutch club FC Dordrecht, as a result of which the value of this new contract should be deducted from eventual compensation the club would need to pay. In conclusion, according to the club, the maximum amount due as compensation should be USD 2,000 for July 2020.

13. Finally, the club points out that due to the COVID-19 pandemic, it had to cut the salary of the player’s with 50%.

14. In conclusion, the club confirms that the outstanding amount to the player should be USD 4,129 as salaries and USD 2,000 as compensation.

15. On 23 June 2020, the player and the Dutch club FC Dordrecht signed a contract valid between 1 July 2020 and 30 June 2021, based on which the player was entitled to a monthly salary of EUR 1,750. For the overlapping period between 23 June and 31 December 2020, this amounts to EUR 10,966 (approximately USD 13,293).

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the DRC Judge (hereinafter also referred to as DRC judge) analysed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the 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 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 DRC Judge 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 Dutch player and a Georgian club.

3. In continuation, the DRC Judge analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present 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, and considering 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 DRC Judge 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 DRC Judge 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. First of all, the DRC judge acknowledged that, on 26 January 2020, the Claimant and the Respondent had concluded an employment contract valid as from the date of signature until 31 December 2020, in accordance with which the Respondent would pay the Claimant a monthly salary of USD 2,000, in case he would participate in 49% or less of the official matches, a monthly salary of USD 3,000, in case he would participate in 50-74% of the official matches, or a monthly salary of USD 4,500, in case he would participate in 75% or more of the official matches.

6. The DRC judge further observed that the Claimant lodged a claim in front of FIFA against the Respondent indicating that the latter had not paid him more than 4 monthly salaries and that he had terminated his contract with the Respondent on 17 June 2020 invoking just cause.

7. The DRC judge noted that, on account of the above, the Claimant is seeking payment of the amount of USD 12,387.10, corresponding to the outstanding salaries in the period between 26 January and 31 May 2020. Equally, the DRC judge noted that the Claimant is requesting compensation for breach of the employment contract in the amount of USD 21,000.

8. What is more, the DRC judge observed that the Respondent replied that the completion in Georgia was stopped, because of the outbreak of the COVID-19 pandemic and that it did not pay the salaries to the Claimant anymore, as he left the Respondent in Mach 2020.

9. What is more, according to the Respondent, the Claimant is not entitled to any salaries or compensation, as he did not play in official matches of its club. However, in case the DRC would deme that the Claimant is entitled to outstanding remuneration, the amount should be maximized at USD 8,258.

10. Finally, the Respondent argued that due to the outbreak of the CVOID-19 pandemic, it had the right to ‘reduce the Claimant’s salary with 50%.

11. In this respect, the DRC judge first of all analysed to which salary the Claimant was entitled as per the contract. In this respect, the DRC judge noted that – irrespective of the Respondent’s argumentation that the Claimant did not participate in any official matches at all – the contract provides for a minimum salary of USD 2,000 per month, in case the player plays in less than 49% or less of the official games. As a result, the DRC judge concluded that the Claimant is entitled to a monthly salary of USD 2,000.

12. Subsequently, the DRC judge analysed the argumentation from the Respondent in connection with the COVID-19 pandemic, as well as the Respondent’s allegation that it could validly reduce the salary of the player by 50% as a resul of the COVID- 19 pandemic. In this respect, the DRC judge noted that from the information on file, it appeared that the 50% reduction allegedly made by the Respondent, was imposed unilaterally on the players of its club, without proving the possibility of such reduction under national Georgian law by the Respondent. Furthermore, no documentation is on file that the Respondent got in contact with the Claimant (even after he left the Respondent in March 2020) in order negotiate on a possible solution to solve the situation that occurred. Finally, it remained unclear to the DRC judge as to whether said unilateral variation at all was applied, as the Respondent allegedly simply stopped paying the salary the Claimant, a situation that does not fall within the COVID-19 Guidelines as released by FIFA.

13. As a result of the foregoing circumstances, the DRC judge decided that the unilateral variation of the contract – if made at all – does not appears to have been made in line with the COVID-19 Guidelines and can therefore not be upheld.

14. Finally, the DRC judge noted that the Respondent did not contest that the monthly salaries of January (pro rata), February, March, April and May 2020 were still outstanding.

15. Hence, the DRC judge came to the conclusion that the Respondent had failed to pay the Claimant his monthly salaries as of January (pro rata) until May 2020, which qualifies as a serious breach of its financial obligations as per the contract.

16. On account of the above, the DRC judge established that the Claimant had terminated the employment contract with just cause on 17 June 2020 and that, consequently, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

17. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract with just cause by the Claimant.

18. First of all, the DRC judge noted the Claimant’s request regarding the outstanding salaries at the time of the unilateral termination of the contract and observed that the Respondent – given the considerations above - had not contested or given any explanations or justifications for the non-payment of the relevant salaries.

19. In view of the above, the DRC judge stressed that the Respondent must fulfill its obligations as per employment contract in accordance with the general legal principle of “pacta sunt servanda”. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the early termination of the employment contract by the Claimant, i.e. the amount of USD 8,258.06, consisting of the pro rata part of the salary for January 2020, as well as 4 outstanding monthly salaries for the period between February and May 2020.

20. In continuation, the DRC judge decided that, taking into consideration the Claimant’s respective claim and art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding salaries on the basis of the relevant employment contract.

21. 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.

22. In application of the relevant provision, the DRC judge held that he 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.

23. Subsequently, the DRC judge noted that the remaining value of the employment contract as from the date of the termination until the original expiry of the employment contract amounted to USD 14,000, i.e. seven monthly salaries amounting to USD 2,000 each. Consequently, 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 amounted to USD 14,000 and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

24. In continuation, the DRC judge remarked that the Claimant had concluded a new employment contract with the Dutch club, FC Dordrecht, valid between 1 July 2020 and 30 June 2021, based on which the player was entitled to a monthly salary of EUR 1,750, or, for the period between 23 June and 31 December 2020, the amount of EUR 10,966 (approximately USD 13,293).

25. Consequently, and bearing in mind the provision of art. 17 par. 1 of the Regulations and in accordance with the constant practice of the Dispute Resolution Chamber as well as the general obligation of the player to mitigate his damages, such remuneration under the new employment contract shall be taken into account for the calculation of the amount of compensation for breach of contract.

26. In view of all of the above, the DRC judge concluded that the mitigated compensation amounts to (USD 14000 -/- USD 13,293) = USD 707.

27. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an additional compensation of three monthly salaries, subject to the early termination of the contract being due to overdue payables. In case of egregious circumstances, the additional compensation may be increased up to a maximum of six monthly salaries, whereby the overall compensation may never exceed the rest value of the prematurely terminated contract.

28. With the above in mind, the Chamber decided to award the Claimant additional compensation corresponding to three monthly salaries, i.e. USD 6,000, in accordance with the above-mentioned provision.

29. In conclusion, the DRC judge decided that the Respondent must pay the amount of USD 6,707 to the Claimant, which is considered by the DRC judge to be a reasonable and justified amount as compensation for breach of contract.

30. For all the above considerations, the DRC judge decided to partially accept the Claimant’s claim and held that the Respondent is liable to pay the total amount of USD 14,965.06 to the Claimant, consisting of the amount of USD 8,258.06 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 6,707 corresponding to the compensation for the unilateral breach of contract.

31. The DRC judge concluded his deliberations in the present matter by establishing that any further claim of the Claimant is rejected.

32. Furthermore, taking into account the consideration under number II./3. above, 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.

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 judge 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.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Julius Mauritius BLIEK, is partially accepted.

2. The Respondent, FC Saburtalo, has to pay to the Claimant, the following amount:

- USD 8,258.06 as outstanding remuneration, plus 5% interest p.a. as from 7 July 2020 until the date of effective payment.

- USD 6,707 as compensation for breach of contract, plus 5% interest p.a. as from 7 July 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.

For the DRC 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:

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