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 29 July 2020

Decision of the

Dispute Resolution Chamber

passed via videoconference, on 29 July 2020,

regarding an employment-related dispute concerning the player Pedro Henrique Cortes Oliveira Gois

BY:

Johan van Gaalen ( South Africa), DRC Judge

CLAIMANT:

Pedro Henrique Cortes Oliveira Gois, East-Timor

represented by Loizos Hadjidemetriou & Associates L.L.C.

RESPONDENT:

Sheikh Russell Krira Chakra, Bangladesh

I. FACTS OF THE CASE

1. On 13 November 2019, the player Pedro Henrique Cortes Oliveria Gois, from East-Timor (hereinafter: the player or Claimant) and the cub Sheik Russel Kiria Chakra, from Bangladesh (hereinafter: the club or Respondent), signed an employment contract valid as from 15 November 2019 until 15 July 2020.

2. According to the schedule attached to the employment contract, the player was entitled to a monthly salary of USD 14,000 to be paid on the 10th of the following month.

3. Furthermore, the player was entitled to a USD 9 daily food allowance “free accommodation” and one economy return flight ticket per year.

4. Art. 19 of the employment contract provides as follows:

“In the event that the Player is injured or incapacitated or inflicted with sickness in the performance of his services under the Contract, the Player shall inform the Club of the same within 1 (one) day of its occurrence. The Club shall then provide to the player, at its expense, such medical or hospital care as is advised by the medical advisors of the Club. The club shall keep a record of any such incapacity, be it sickness or injury or any other form of absence from training or matches. The club shall pay the player his basic remuneration under this contract during periods of injury only when such injury has arisen in the performance of his services under this contract.”

5. Art. 35 of the employment contrat provides as follows:

“The Player shall be entitled to a maximum of 30 (thirty) calendar days paid leave per year, such leave shall be taken at the time which the Club in its absolute discretion shall determine (…)”.

6. On 22 April 2020, the Claimant lodged a claim before FIFA against the Respondent, claiming outstanding remuneration and compensation for breach of contract, broken down as follows:

Outstanding remuneration:

 USD 14,000 as outstanding salaries related to the month of December 2019, plus 5% interest p.a. as from 10 January 2020;

 USD 14,000 as outstanding salaries related to the month of February 2020, plus 5% interest p.a. as from 10 March 2020;

 USD 14,000 as outstanding salaries related to the month of March 2020, plus 5% interest p.a. as from 10 April 2020;

 USD 9,333 as outstanding salary for the period between 1 April and 20 April 2020, plus 5% interest p.a. as from 10 January 2020;

 USD 180 concerning the daily fees of April 2020, plus 5% interest p.a. as from 20 April 2020;

 BTD 18,302 concerning medical expenses, plus 5% interest p.a. as from 20 April 2020.

Compensation for breach of contract:

 USD 104,665 as residual value of the contract between 20 April 2020 and November 2020, plus 5% interest p.a. as from 20 April 2020 until the date of effective payment;

 USD 14,000 in lieu of the 30 days of paid leave, plus 5% interest p.a. as from 20 April 2020;

 The value of one flight ticket, plus 5% interest p.a. as from 20 April 2020;

 USD 5,000 as legal costs.

After having sent the alleged proof of payment provided by the club to the player, the latter amended his claim by confirming that the food allowances were paid. Therefore, he does not requests food allowances.

7. The Claimant explains that, on 24 February 2020, in a match against the Bangladeshi club Mohammedan Dhaka, the Player suffered a severe injury, which was later on diagnosed as a “close spontaneous complete tear of left tendo achilles”. The Player went to the hospital on 28 February 2020 and was discharged on 3 March 2020 while being told by the medical experts that he would have to recover for a period of 9 months.

8. In the beginning of March 2020, two club officials visited the Player who was recovering from his surgery and told him that they wanted to terminate the contract as the Player was no longer able to play for the Club. The Player opposed to the Club’s offer to terminate the contract and made it clear that he had a valid contract with the Club, while pointing out that the Club was already in default of salary payments.

9. On 10 March 2020, the Player’s salary for February 2020 was supposed to be paid, yet the payment was not made by the Club. This was already the second payment that the Club failed to pay, as it had also omitted to pay the Player his salary for December 2019. On 13 March 2020, the player sent the club a default notice regarding the payment of these two monthly salaries, granting the club a deadline of ten days to pay. The club did not reply to the default notice.

10. On 24 March 2020, the player sent the club a second default notice, this time granting the latter a deadline of 5 days. The club did not reply to this default notice.

11. On 2 April 2020, the Player put the Club for the third time in default, giving the Club until 7 April 2020 to make the relevant payments. Yet, for the third time in a row, the Player’s letter was ignored by the Club.

12. On 10 April 2020, the Player’s salary for March 2020 fell due, but again no payment was made by the Club. Thus, by 11 April 2020, 3 salaries remained outstanding.

13. As a result, on 20 April 2020, the Player terminated the contract invoking just cause.

14. The player underlined that, at the moment of terminating the employment contract on 20 April 2020, the amount of USD 42,000 was outstanding in monthly salaries, corresponding to the months of December 2019, February and March 2020. In addition, the Club failed to pay the Player his daily fees of USD 9 in the month of April 2020.

15. What is more, the Club had informed the Player while he was recovering from his injury that they were no longer interested in his services and wanted to terminate the contract. In addition, the Club failed to pay part of the recovery costs incurred by the Player even though this had been clearly indicated as being the Club’s responsibility in art. 19 of the employment contract. In this regard, the player stated that the club failed to reimburse the Player for medical expenses paid in order to recover from his injury in the amounts of Bangladeshi Taka (BTD) 1,400, BTD 700, BTD 7,834 and BTD 8,368 (total of: BTD 18,302) which all relate to doctor consultations and medicine incurred in March and April 2020.

16. As a result, it must be concluded that, apart from not paying the salaries, the Club also acted in bad faith by i) not paying the Player his medical bills, and ii) informing him that they wanted to get rid of him when he was at a very vulnerable point of his career as an injured player in a foreign country. Finally, the Club failed to reply to any of the notices of the Player.

17. As a consequence, the Player deems that he had a just cause to terminate the contract on 20 April 2020 and the Club shall therefore be held liable for the payment of the outstanding salaries and compensation for breach of contract.

18. As to the calculation of the compensation for breach of contract, the player submitted that since the Player has been officially diagnosed to be recovering from an injury until November 2020 and in view of the content of art. 19 of the employment contract and the absence of insurance by the Club, the period to be taken into account for the calculation of the compensation for breach of contract until November 2020.

19. Furthermore, art. 35 of the contract provided that the Player was entitled to 30 days of paid leave which the Player was unable to take due to the termination of the contract with just cause. As a result, the Player was deprived from 30 days of paid leave only because the Club failed to comply with its obligations As such, the missed paid leave should be replaced by one monthly salary payment of USD 14,000, plus 5% interest p.a. as from 20 April 2020.

20. In its reply, the club confirmed that the player, during the match against the Bangladeshi club Mohammedan Dhaka, suffered an injury and held that BDT 100,000 were paid for his medical expenses, “but still a few amount of medical expenses are unsettled and the club is agree to pay the amount to the player”.

21. The club explained that due to the COVID-19 pandemic, as from 15 March 2020, the Bangladeshi football league 2019/2020 has been concluded. Such situation affected the club financially. The club only managed to pay the player’s salaries of November and December 2019.

22. The club maintained that in accordance with Schedule I, h), 5. Of the contract, which reads as follows: “Depending on the time period of the BPL 2019-20, at the duration of your contract may be increased or reduced for two months”, the club, due to the suspension of the league and its financial difficulties, wanted to terminate the contract 2 months earlier.

23. Finally, the club stated it has paid the player food allowance, the accommodation and it never disagreed to provide a return ticket to the player.

24. After having been requested to provide an update about his contractual situation, the Claimant informed the FIFA Administration that he remained unemployed after the unilateral termination of contract.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

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 21 April 2020 and submitted for decision on 29 July 2020. 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 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 21 April 2020, the March 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 23 November 2019, the Claimant and the Respondent signed an employment agreement valid as from 15 November 2019 until 15 July 2020. Based on said contract, the Respondent undertook to pay to the Claimant, inter alia, a monthly salary of USD 14,000, to be paid on the 10th day of the next month, as well as USD 9 daily food allowance, “free accommodation” and one economy return flight ticket per year.

6. What is more, the DRC judge noted that the Claimant explained that on 20 April 2020, he had unilaterally terminated the contract in force between the parties, based on the fact that 3 monthly salaries remained outstanding, despite having put the Respondent in default on several occasions.

7. The Claimant, on the one hand, maintained that he had terminated the contract without just cause as per 20 April 2020, based on the fact that the Respondent had not paid him the salaries for December 2019, February 2020 and March 2020 on time, as well as his daily allowances and some bills for medical expenses.

8. Moreover, the Claimant explains that the Respondent wanted to terminate his contract, after it became clear on 3 March 2020, that the Claimant would be injured for the next 9 months.

9. In addition, the Claimant indicated that he had put the Respondent in default on several occasions, requesting for the payment of his overdue salaries, however to no avail.

10. 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 the Claimant was indeed injured, however that it paid a total amount of BDT 100,000 for his medical expenses. What is more, the Respondent does not deny that several salaries that were due to the Claimant remained outstanding, but argued that this was the result of the financial difficulties of the COVID-19 outbreak. Finally, the Respondent brought forward that based on the contents of Schedule I, h), 5. of the contract, it wanted to terminate the contract “2 months earlier”.

11. The DRC judge highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the contract was terminated with or without just cause by the Claimant on 20 April 2020. The DRC judge also underlined that, subsequently, if he would found that the contract was terminated without just cause, it would be necessary to determine the consequences for the party that was responsible for the early termination of the contractual relation.

12. The DRC judge, first of all, wished to highlight that the unilateral termination of the contract by the Respondent on 20 April 2020, was apparently based on the fact that – amongst others due to the worldwide COVID-19 pandemic – several monthly salaries remained unpaid by the Respondent, as well as that the Respondent wished to terminate the contract, due to the COVID.-19 pandemic.

13. Having said that, the DRC judge 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 has 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.

14. Analysing the concept of a situation of force majeure, the DRC judge noted that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, the COVID-19 outbreak was not to considered a force majeure situation in any specific country or territory. Also, in line with the aforementioned guidelines, no specific employment or transfer agreement was impacted by the concept of force majeure.

15. As such, the contents of the aforementioned documents establishes in general that clubs or its employees cannot rely on the FIFA COVID-19 Guidelines or the decision of the FIFA Bureau, to assert a force majeure situation. The analysis whether a situation of force majeure existed, has to be considered on a case-by-case basis, taking into account all the relevant circumstances.

16. Turning to the content of the file, the DRC judge was eager to emphasize that in this matter, it was not the Respondent, but the Claimant that terminated the contract. Therefore, the DRC judge deemed the argumentation from the Respondent that it wished to terminate the contract two months in advance, not relevant for the analysis whether the Claimant terminated the contract on 20 April 2020 with or without just cause.

17. Furthermore, as a consequence of the aforementioned considerations and taking into account the documentation presented by the parties to the dispute, the DRC judge established almost four monthly salaries, corresponding to December 2019, February 2020, March 2020 and a part of April 2020, had fallen due and remained outstanding at the time of the termination of the contract by the Claimant, as well as that amounts for medical expenses were never reimbursed to the Claimant. Consequently, the DRC judge concurred that the Respondent had seriously neglected its financial contractual obligations towards the Claimant.

18. Furthermore, the DRC judge deemed it vital to outline that it remained uncontested that the Respondent had not fulfilled its financial obligations set forth in the employment contract signed between the parties and that it failed to pay to the Claimant the salaries of December 2019, February 2020 and March 2020.

19. As to the reasons brought forward by the Respondent as to the non-payment of said salaries, the DRC judge was of the clear opinion that said argumentation, i.e. the alleged financial difficulties as a result of COVID-19 the payments could not be made, cannot justify the non-fulfilment of the Respondent’s contractual obligations towards the Respondent. What is more, the DRC judge finally concluded that the COVID-19 outbreak shall not be used as an opportunity to escape from debts that arose from contractually agreed payments that fell due already before the COVID-19 outbreak.

20. On account of all the abovementioned considerations, the DRC judge decided that the Claimant had unilaterally terminate the employment relationship with just cause on 20 April 2010. Consequently, the Respondent is to be held liable for the early termination of the employment contact without just cause.

21. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the early termination of the employment contract without just cause by the Respondent.

22. 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”.

23. 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 51, consisting of the salaries due to the Claimant for the months of December 2019, February 2020 , March 2020 and the pro rata part for the month of April 2020, as well as remaining outstanding medical expenses in the amount of BTD 18,302.

24. 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.

25. 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.

26. 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.

27. 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.

28. 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 20 April 2020, the contract would run for another 3 months, that is, until 15 July 2020. 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 39,667 (corresponding the salaries due in the period between 20 April 2020 and 15 July 2020) and that such amount shall serve as the basis for the final determination of the amount of compensation for breach of contract.

29. 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 new employment. As a result, no further amounts will be deducted from the compensation the Claimant would be entitled to.

30. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of USD 39,667 to the Claimant as compensation for breach of contract without just case, which is considered by the DRC judge to be a reasonable and justified amount as compensation.

31. 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 20 April 2020.

32. Additionally, the DRC judge decided to award the Claimant the amount of USD 800 (as confirmed by FIFA Travel), as reimbursement of the costs of one flight ticket, to which he was contractually entitled.

33. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of USD 123,500 to the Claimant, consisting of the amount of 51,333 corresponding to the Claimant’s outstanding remuneration at the time of the unilateral termination of the contract without just cause by the Respondent and the amounts of USD 39,667 corresponding to compensation for breach of contract without just cause and USD 800 for a contractually agreed flight ticket.

34. 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.

35. 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.

36. 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.

37. 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.

38. 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 DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Pedro Henrique Cortes Oliveira Gois, is partially accepted.

2. The Respondent, Sheikh Russell Krira Chakra, has to pay to the Claimant, the following amounts:

- USD 51,333 as outstanding remuneration plus 5% interest p.a. calculated as follows:

- Over the amount of USD 14,000 as from 10 January 2020 until the date of effective payment;

- Over the amount of USD 14,000 as from 10 March 2020 until the date of effective payment;

- Over the amount of USD 14,000 as from 10 April 2020 until the date of effective payment;

- Over the amount of USD 9,333 as from 20 April 2020 until the date of effective payment.

- Moreover, the Respondent has to pay to the claimant the amount of BTD 18,302 plus 5% interest p.a. as from 20 April 2020 until the date of effective payment.

3. Furthermore, the Respondent has to pay to the Claimant, the following amounts:

- USD 39,667 as compensation for breach of contract without just cause plus 5% interest p.a. as from 20 April 2020 until the date of effective payment;

- USD 800.

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 are 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:

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