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 4 November 2020

Decision of the DRC Judge

passed on 4 November 2020

regarding an employment-related dispute concerning the player Juan Manuel Cobelli

BY:

Alexandra Gómez Bruinewoud (Uruguay & Netherlands), DRC Judge

CLAIMANT:

Juan Manuel Cobelli, Argentina

Represented by Mr Felipe Vasquez Rivera

RESPONDENT:

ASD Marina di Ragusa, Italy

Represented by Avv. Simone Venuti

I. Facts

1. On 21 August 2019, the parties concluded an employment contract valid as from the date of signature until 30 June 2020 (i.e. almost 10 months).

2. According to clause 2 of the contract, the player was entitled to a total remuneration of EUR 18,000 for the season 2019/2020. (i.e. EUR 1,800 per month, 10 instalments).

3. In addition, the parties concluded an “Agreement for the sports season 2019/2020”.

4. According to clause 2 of the aforementioned agreement, the player was entitled to a remuneration of EUR 20,000, for the season 2019/2020 (i.e. EUR 2,000 per month, 10 instalments).

5. On 12 December 2019, the player sent a default letter to the club with, inter alia, the following contents:

“the Club is in default of payment of:

- Salary balance august: Euro 1.800.oo

- Salary balance September: Euro 1.800.oo.

- Full salary of October: Euro 3.800.oo

- Full salary of November: Euro 3.800.oo

2.- According art. 14 bis of FIFA RETJ the player formally requires, and put in default of payment of the said amount, and give a time limit of 15 days, under warning that in case of default of payment the Player will start all legal procedure before FIFA CRD.

B) STOP WITH ABUSE CONDUCT AIMING AT FORCING CONTRACTUAL TERMINATION.

3.- The club must immediately stop using abuse conduct in order to force me to breach the contract, so I formally require and claim:

 The club allow me to train with the squad,

 The club must give me all the necessary elements to train.

6. On 27 December 2019, the player sent a letter to the club with the following contents:

“1.- According to the letter send to the Club on December 12th, requiering the overdues payables, and without receveing any answer either the overdues payments, Mr. Juan Manuel Cobelli formally requires, and put in default of payment of the salaries due of the amount of Euros 11.200.oo with a final time limit of 48 hours.-

2.- In case the salaries due keep unpaid Mr. Juan Manuel Cobelli will end the labor contract with just cause according to art. 14 bis of FIFA RETJ, and be entitled to claim the overdues salaries and the salaries to remain of the contract.”

7. On 2 January 2020 the player sent a termination letter to the club, indicating the following:

“1.- According to the letters send to the Club on December 12th and December 27th, requiering the overdues payables, and without receveing any answer either the overdues payments, Mr. Juan Manuel Cobelli formally comunícate to the Club that:

• The player terminate from this moment the contract with just cause (art 14 bis num. 1 RETJ),

• The player will start all legal procedures accordinging to FIFA Regulations claiming the overdue salaries and the compensation (residual value of the contract) for breaching the contract.”

8. The Claimant informed FIFA that he remained unemployed since the termination of the contract.

9. On 5 February 2020, the player lodged a claim against the club for breach of contract without just cause and requested the payment of the following amounts, plus 5% interest p.a. as from 2 January 2020:

• EUR 11,200, as outstanding salaries and as indicated in his default notice;

• EUR 22,800, corresponding to the residual value of the contract (3,800*6).

10. In addition, the player requested the payment of legal fees in the amount of USD 10,000.

11. The respondent submitted its reply in Italian only.

II. Considerations of the DRC Judge

1. First of all, the DRC Judge (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 5 February 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 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 with a litigious value of up to CHF 200,000, such as the present one, which involves an Argentinean player and an Italian 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 that the claim was lodged on 5 February 2020, the January 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. In this respect, the DRC Judge noted that the parties concluded an employment contract valid as from the date of signature until 30 June 2020 and that, in addition, the also concluded an additional agreement referred to as “Agreement for the sports season 2019/2020”.

6. Subsequently, the DRC judge noted that the Claimant lodged a claim before FIFA for breach of contract without just cause, arguing that, on 2 January 2020, he terminated to the contract due to, inter alia, the existence of outstanding salaries.

7. On the other hand, the DRC judge took note that the Claimant provided its reply in Italian only.

8. In this respect, the DRC Judge referred to art. 9 par. 1 lit. e) of the Procedural Rules which stipulates that all documents of relevance to the dispute shall be submitted in the original language as well as translated into one of the official FIFA languages (English, Spanish, French, and German).

9. In this context, the DRC Judge noted that the Respondent did not provide a reply of its claim not a translated version of the documents it submitted with it. In view of the foregoing and taking into consideration art. 9 of the Procedural Rules, the DRC Judge decided that it could not take into account the documents which have not been made available in an official FIFA language.

10. For the sake of completeness, the DRC Judge further noted that, when inviting the Respondent to reply to the claim (letter of 12 February 2020), FIFA specifically referred to art. 9 par. 1 lit. e) of the Procedural Rules, according to which all documents of relevance to the dispute, such as contracts and previous correspondence, must be submitted in the original language, and, if need be, translated into one of the four official FIFA languages.

11. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, she shall take a decision upon the basis of the documentation already on file; in other words, upon the statements and documents presented by the Claimant.

12. Subsequently, the DRC Judge went on to analyse the circumstances that led to the unilateral termination of the contract by the Claimant.

13. In this respect, the DRC Judge was eager to emphasise, according to the principle of contractual stability, the unilateral termination of a contract must be considered as an absolute last resort, where, given the particularities of the situation at stake, it could not be expected that one of the parties could reasonably continue to be bound by the contractual relationship. In what concerns financial obligations, one of the consequences of the aforementioned principle is that only a persistent and substantial non-compliance of these obligations could justify the unilateral termination of a contract.

14. In relation to the reasons brought forward by the Claimant to justify the premature termination of the contract, the DRC Judge noted that, on 12 December 2019, the player already sent a default notice requesting the payment of the following amounts:

15. On 12 December 2019, the player sent a default letter to the club with, inter alia, the following contents:

“the Club is in default of payment of:

- Salary balance august: Euro 1.800.oo

- Salary balance September: Euro 1.800.oo.

- Full salary of October: Euro 3.800.oo

- Full salary of November: Euro 3.800.oo

16. In relation to said default notice, the DRC Judge noted, however, that insofar the contract started on 21 August 2019, the Claimant was not entitled to EUR 1,800 during August 2019, since he only stayed for 9 days during said month. In this respect, the DRC Judge noted the Claimant himself calculates that he was entitled to 10 instalments, and thus would be entitled to receive a salary from September 2019 until June 2020.

17. With the aforementioned in mind, the DRC Judge examined the claim of the claimant as well as the documentation on file and observed that, under any circumstance, she could only assume that indeed it was sufficiently established that, in any case, the amounts corresponding to his remuneration of September 2019 (EUR 1,800), October 2019 (EUR 3,800, including the additional agreement), November 2019 (EUR 3,800, including the additional agreement) remain as outstanding.

18. In addition, the DRC Judge also understood that, at the date of 2 January 2020, when the contract was terminated, the salary of December 2020 (clause 2 of the contract), for the amount of EUR 1,800, also fell due.

19. All in all, the DRC Judge understood that the total amount of EUR 11,200 was due at the date of the termination of the contract.

20. Overall, the DRC Judge considered that the Respondent significantly neglected its financial obligations towards the Claimant. Consequently, at the date of 2 January 2020, the player could expect that the Respondent was not in a position to reasonably comply with its contractual obligations.

21. As a result, the DRC Judge established that the player terminated the contract with just cause and that the Respondent is to be held liable for the early termination of the contract with just cause by the player.

22. Therefore, and before entering into the consequences of the early termination of the contract, the DRC Judge understood that the Claimant is entitled to his outstanding remuneration due until the early termination of the contract.

23. In this respect, the DRC Judge observed, as already mentioned above, that at the date of the termination of the contract, the total amount of EUR 11,200 was outstanding.

24. Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 11,200, as observed in the previous paragraphs and as agreed in the contract concluded between the parties.

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

27. 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. The DRC judge further noted that, following art. 17 par. 1 of the Regulations, in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

28. In application of the relevant provision, the DRC Judge held that it firstly had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

29. 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, the contract would run until 30 June 2020, i.e., for which the player would still have to receive six monthly instalments of EUR 3,800 (i.e. EUR 1,800 from the main employment contract and EUR 2,000 from the “Agreement for sports season 2019/2020”). As a result, the DRC Judge considered that the amount of EUR 22,800 shall serve as the basis for the calculation of the payable compensation.

30. In continuation, the DRC judge verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC judge, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with Claimant’s general obligation to mitigate his damages.

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

32. As a consequence, and bearing in mind that the Claimant had not been able to mitigate damages since he remained unemployed between the date of termination of the contract by the Respondent and the ending date of the contract, the DRC judge concluded by deciding that the Respondent has to pay the total amount of EUR 22,800 to the Claimant, as compensation for breach of contract.

33. Moreover, taking into account the Claimant’s request and the longstanding jurisprudence in this regard, the DRC judge decided to award 5% interest p.a. over the outstanding amount as from the date of the termination, and 5% interest p.a. as from the date of the claim for the compensation.

34. Moreover, as to the request for legal costs, the DRC judge referred to arts. 18 par 2 and 4of the regulations, according to which, respectively, “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge” and “no procedural compensation shall be awarded in proceedings of the Players’ Status Committee and the DRC.”

35. Furthermore, taking into account the previous considerations, 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 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.

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 DRC Judge

1. The claim of the Claimant, Juan Manuel Cobelli, is partially accepted.

2. The Respondent, ASD Marina di Ragusa, has to pay to the Claimant, the following amount:

- EUR 11,200 as outstanding remuneration plus 5% interest p.a. as from 2 January 2020 until the date of effective payment;

- EUR 22,800 as compensation for breach of contract without just cause plus 5% interest p.a. as from 5 February 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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