F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 10 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 10 February 2020,

by Daan de Jong (The Netherlands), DRC judge

on the claim presented by the player,

Ivan Bubalo, Croatia,

represented by Mr Hrvoje Raic

as Claimant

against the club,

SSD Jesina Calcio, Italy,

represented by Mr Matteo Sperduti

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 2 October 2018, the Croatian player, Ivan Bubalo, (hereinafter: the Claimant), and the Italian club, SSD Jesina Calcio, (hereinafter: the Respondent) concluded an employment contract valid for the season 2018/2019 (hereinafter: the contract).

2. According to article 2 of the contract, “The company S.S.D. JESINA CALCIO SRL shall pay out the amount of EUR 2,444.00 to the footballer as a registration fee and as the compensation of costs for participation on the competitions and training sessions starting from August 2018 for the next 9 months.”

3. Moreover, in accordance with art. 3 of the contract, “The company S.S.D. JESINA CALCIO SRL shall subsequently pay in the allowance of EUR 6,000 as the advance premium”.

4. Pursuant to article 6 of the contract, “The amounts of EUR 200 (in words: two hundred/00) shall be recognised for sixth months of renting a flat.”

5. The Claimant maintained that, by the time the Respondent excluded him from the team’s training sessions on 1 February 2019, he had accrued outstanding remuneration in the amount of EUR 9,188, consisting of part of his salary of October 2018, his salaries of December 2018 and January 2019 and accommodation costs as from August 2018 until January 2019.

6. On 4 March 2019 the Claimant put the Respondent in default, in his letter he asked to be reinstated with the team and requested the payment of the aforementioned outstanding amount i.e. EUR 9,188.

7. On 22 March 2019, the Claimant terminated the contract with just cause, arguing that such decision was due to the Respondent breach of the contract.

8. Overall, the Claimant acknowledged having received from the Respondent the following payments:

 EUR 6,000 on 9 October 2018;

 EUR 1,821 on 22 October 2018;

 EUR 1,323 on 20 November 2018;

 EUR 2,400 on 7 January 2019.

9. On 22 April 2019, the Claimant lodged a claim against the Respondent in front of FIFA for breach of contract, claiming the payment of the following amounts, plus 5% interest p.a. as from the due dates:

A. EUR 12,764 as outstanding remuneration, detailed as follows:

 EUR 1,788, corresponding to the residual part of the salary of October 2018 and due on 1 November 2018;

 EUR 2,444, corresponding to the salary of November 2018 and due on 1 December 2018;

 EUR 2,444, corresponding to the salary of December 2018 and due on 1 January 2019;

 EUR 2,444, corresponding to the salary of January 2019 and due on 1 February 2019;

 EUR 2,444, corresponding to the salary of February 2019 and due on 1 March 2019;

 EUR 200, corresponding to accommodation for August 2018 and due on 1 September 2019;

 EUR 200, corresponding to accommodation for September 2018 and due on 1 October 2018;

 EUR 200, corresponding to accommodation for October 2018 and due on 1 November 2018;

 EUR 200, corresponding to accommodation for November 2018 and due on 1 December 2018;

 EUR 200, corresponding to accommodation for December 2018 and due on 1 January 2019;

 EUR 200, corresponding to accommodation for January 2019 and due on 1 February 2019.

B. EUR 7,332 in the sense of art. 17 of the RTSP, corresponding to the residual value of the contract, since 1 March 2019 until 30 May 2019.

C. The Claimant further requested the imposition of sporting sanctions against the Respondent.

10. In its reply to the claim of the Claimant, the Respondent, first of all, pointed out that, since according to the Italian Football Federation (hereinafter: FIGC) both the Claimant and the Respondent are amateurs, the DRC lacked competence to hear the present matter.

11. Moreover, according to the Respondent, pursuant to the rules of the FIGC the relationship between amateur players and club is not considered an employment relationship and, therefore, the DRC lacked competence.

12. Furthermore, the Respondent maintained that, since the Claimant did not have an employment relationship with the Respondent due to his amateur status, he could not interrupt it.

13. In addition, concerning the rent allowance, the Respondent argued that, it paid it directly to the landlord, as indicated in the rental contract and that it paid the Claimant all his dues.

14. Finally, the Respondent explained that it had applied EUR 1,244.44 as penalty to the Claimant since he had been “delayed from football match of 4 official days”.

15. To conclude, the Respondent asked that the claim be declared inadmissible and, in any case that the claim be rejected.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 22 April 2019 and decided on 10 February 2020. Taking into account the wording of art. 21 of the 2019 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 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, in principle, competent to deal with the matter at stake, which concerns an alleged employment–related dispute with an international dimension between a Croatian player and an Italian club.

3. At this point, the DRC judge noted that the Respondent objected to the admissibility of the present claim, alleging that according to the FIGC both the Claimant and the Respondent are amateurs. Thus, the DRC judge lacked competence to hear the present matter and that since the Claimant did not have an employment relationship with the Respondent due to his amateur status, he could not interrupt it.

4. Bearing in mind the foregoing, the DRC judge, firstly, referred to art. 2 par. 2 of the Regulations, which stipulates that “A professional is a player who has a written contract with a club and is paid more for his footballing activity than the expenses he effectively incurs. All other players are considered to be amateurs”.

5. Taking into consideration the criteria set out in art. 2 par. 2 of the Regulations as well as the amounts payable to the player on the basis of the contract signed by the parties, the DRC judge concluded that it was beyond a doubt that the Claimant was in fact paid more for his footballing activity than the expenses he effectively incurred. In this regard, the DRC judge was eager to emphasize that a player’s remuneration as per the criteria set out in art. 2 par. 2 of the Regulations constitutes the decisive factor in the determination of the status of the player and that the legal nature or the designation of the contract is of no relevance in this regard. This approach has been confirmed by the Court of Arbitration for Sport (CAS) in its decision CAS 2006/A/1177, whereby the Panel also emphasized that the definition contained in the mentioned provision is the only ground to establish a player’s status. For the sake of completeness, the DRC judge pointed out that according to the said decision the classification of a player made by the association of his club is not decisive to determine the status of a player. And, finally, that the remuneration in question may well fall short of a living wage, but as long as it exceeds the expenses effectively incurred by the player, the criterion of art. 2 of the Regulations is met.

6. Equally, the Chamber highlighted that the second element contained in said art. 2 par. 2 of the Regulations, i.e. the existence of a written contract, is met.

7. On account of all the above, the DRC judge concurred that the Claimant was registered as a professional with the Respondent. Therefore, the Respondent’s arguments concerning the lack of competence of the DRC is rejected.

8. Having established that he is competent to entertain the present dispute, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players 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 par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 22 April 2019, the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

9. 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 DRC 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.

10. In this respect, the DRC judge acknowledged that, on 2 October 2018, the Claimant and the Respondent concluded an employment contract valid for the season 2018/2019, pursuant to which the Respondent undertook to pay to the Claimant a monthly salary of EUR 2,444 and monthly rent allowance of EUR 200.

11. Moreover, the DRC judge took that on 22 March 2019, the Claimant unilaterally terminated the contract arguing that such decision was due to the Respondent non-payment of his salaries and rent allowances for several months.

12. Having recalled the above, the DRC judge observed that, the Claimant, in his claim, requested outstanding remuneration in the amount of EUR 12,764 and compensation for breach of contract in the amount of EUR 7,335, plus 5% interest p.a. as from the due dates.

13. The DRC judge further noted that the Respondent explained that it had applied EUR 1,244.44 as penalty to the Claimant since he had been “delayed from football match of 4 official days”.

14. The DRC judge noted that the Respondent sustained to have paid the Claimant all his dues and asked that the claim be rejected as to the substance, in case it is declared admissible.

15. Moreover, with due consideration to the above, the DRC judge acknowledged that the Claimant stated not having received the abovementioned amounts, whereas the Respondent stated that it has have paid the Claimant all his dues.

16. In this respect, the DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. In this specific case, the DRC judge pointed out that the Respondent bore the burden of proving the correct payment of the player’s remuneration.

17. According to this, the DRC judge noted that the bank transfers attached to the Respondent’s reply corresponded to the amounts acknowledged by the Claimant, except for a further alleged payment of EUR 6,000, which – however – seemed to be performed towards a different bank account and did not appear to be sufficient proof of payment.

18. In view of the above, the DRC judge decided to reject the arguments put forward by the Respondent in its defence and established that the Respondent has failed to comply with its contractual obligations.

19. Consequently, the DRC judge concluded that the Claimant had just cause to terminate the employment contract on 22 March 2019, as on that date the total amount of EUR 12,764 had remained outstanding, corresponding to his monthly salaries for October 2018 to February 2019 and his rent allowances as from August 2018 to January 2019. Furthermore, the DRC judge noted that the player had put the club in default on 4 March 2019 and that he terminated the contract on 22 March 2019, de facto more than 15 days after the default notice was given. Thus, the DRC judge concluded that the just cause of the player to terminate the contract was given as per art. 14bis of the Regulations.

20. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the DRC judge focussed his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

21. But before entering the calculation of the amount of compensation due to the Claimant by the Respondent, the DRC judge first established the amount of outstanding remuneration due to the player by the time of termination. In accordance with the general legal principle of pacta sunt servanda, the DRC judge decided that the Respondent is liable to pay to the Claimant the amount of EUR 12,764 in connection with the remuneration due to the Claimant in accordance with the employment contract until its early termination.

22. In addition, taking into consideration the Claimant’s claim, the DRC judge decided to award the Claimant interest at the rate of 5% p.a. as of the day following the day on which each of the payments included in the global amount of EUR 12,764 fell due in accordance with the pertinent employment contract.

23. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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.

24. In application of the relevant provision, the DRC judge held that he first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of 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.

25. As a consequence, the DRC judge determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

26. The DRC judge then turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by him to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

27. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 22 March 2019, until the end of the contract, and concluded that the Claimant would have received in total EUR 7,332 as remuneration had the contract been executed until its expiry date. Consequently, the DRC judge concluded that the amount of EUR 7,322 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

28. 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 the player’s general obligation to mitigate his damages.

29. The DRC judge recalled that the Claimant signed an employment contract with the the Icelandic club, Huginn, valid as from 1 April 2019 until 25 September 2019, according to which he was entitled to receive a monthly salary of ISK (Iceland Krona) 270,000 (approx. EUR 1,950). This employment contract enabled the Claimant to mitigate his damages by EUR 5,850 during said period of time. However, as the Claimant is entitled to an additional compensation of 3 months, which is more than the mitigated damage, the Claimant shall receive the full residual value of the contract in the amount of EUR 7,332.

30. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damage, the Chamber decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of EUR 7,332 as compensation for breach of contract in the case at hand.

31. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as from 19 April 2019 until the date of effective payment.

32. The DRC judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

33. Furthermore, taking into account the consideration under number II./8. 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.

34. 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.

35. 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.

36. 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, Ivan Bubalo, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, SSD Jesina Calcio, has to pay to the Claimant the amount of EUR 12,764, plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as from 1 November 2018 on the amount of EUR 1,788;

b. 5% p.a. as from 1 December 2018 on the amount of EUR 2,444;

c. 5% p.a. as from 1 January 2019 on the amount of EUR 2,444;

d. 5% p.a. as from 1 February 2019 on the amount of EUR 2,444;

e. 5% p.a. as from 1 March 2019 on the amount of EUR 2,444;

f. 5% p.a. as from 1 September 2018 on the amount of EUR 200;

g. 5% p.a. as from 1 October 2018 on the amount of EUR 200;

h. 5% p.a. as from 1 November 2018 on the amount of EUR 200;

i. 5% p.a. as from 1 December 2018 on the amount of EUR 200;

j. 5% p.a. as from 1 January 2019 on the amount of EUR 200;

k. 5% p.a. as from 1 February 2019 on the amount of EUR 200.

4. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 7,332, plus 5% interest p.a. as from 19 April 2019 until the date of effective payment.

5. Any further claim lodged by the Claimant is rejected.

6. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under points 3. and 4. above.

7. The Respondent shall provide evidence of payment of the due amounts in accordance with points 3. and 4. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amounts due in accordance with points 3. and 4. 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 Respondent shall be banned 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

9. The ban mentioned in point 8. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

10. In the event that the amounts due in accordance with points 3. and 4. above are 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer