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 5 November 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 5 November 2019,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (the Netherlands), member

Joaquim Evangelista (Portugal), member

Todd Durbin (USA), member

Juan Bautista Mahiques (Argentina), member

on the claim presented by the player,

Aboubacar Gassama, France

represented by Mr Youssef Fofana

as Claimant

against the club,

AFC Dunarea 2005 Calarasi, Romania

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 26 September 2017, the French player, Aboubacar Gassama (hereinafter: the Claimant) concluded an employment contract (hereinafter: the contract) with the Romanian club, AFC Dunarea 2005 (hereinafter: the Respondent), valid as from 27 September 2017 until 30 June 2019, i.e. two sporting seasons.

2. Article J.1. of the contract reads as follows: “The monthly gross salary: 11,122 Lei [Romanian New Lei] for the 1st year of the contract, if the team will promote in the 1st league – the salary will be increased to 3.500 Euro (net amount)(...)”.

3. Article J.2. of the contract mentioned :

“a) The bonus in the 1st league will be of 10.000 Euro for each participant according to the number of matches played during the competitive season 2017-2018, bonus that should be paid when the club receives the 1st share from the TV rights (…);

b) Bonus for matches according to the internal regulations of the club for the competitive year 2017-2018; (…);

c) Free meal and accommodation” (…).

4. Article J.4. of the contract provided the salary to be paid “until the 15th of each month”.

5. On 10 January 2018, the Claimant contacted the Respondent, explaining that he had not received his complete salary for the month of December as well as the bonus for the month of November 2017.

6. On 13 January 2018, the Respondent suggested to the Claimant to mutually terminate the contract as “he does not give enough satisfaction to the coach” offering “to pay in advance 2 salaries (3400 euros net) and delete the contract”. The Claimant rejected the Respondent’s offer and asked to be reintegrated to the group as well as training sessions.

7. On 15 January and 20 June 2018, the Claimant sent two notices to the Respondent, expressing his non satisfaction with being sent to train alone and to have been forced to leave the group accommodation, asking for the Respondent’s reaction under 5 days, each to no avail.

8. On 23 July 2018, the Claimant terminated the contract, alleging that his previous notices remained unanswered. Moreover, the Claimant argued that he had been forced to end his contract as from January 2018 until termination and that he had been also left out of the group during two team preparations.

9. On 25 July 2018, the Claimant lodged a claim against the Respondent for breach of contract and requested the payment of the following amounts:

i. EUR 3,400 as monthly salaries for June to July 2018, each due on the 15th of the month;

ii. EUR 780 as game bonuses for November to December 2017;

iii. EUR 10,000 as “1st League Bonus Promotion for 2017-2018”;

iv. EUR 40,800 as compensation for the “2nd year contract (From 30/06/2018 to 30/06/2019 12 months duration)”;

v. EUR 150,000 as damages.

10. In his claim, the Claimant alleged that as of January 2018 he never received his salaries on the monthly contractually agreed basis.

11. Moreover, the Claimant underlined that in December 2017, before the winter break, he was asked by the Respondent to sign a first termination agreement. In this regard, the Claimant submitted a copy of an unsigned document titled “Decision of termination of the individual labour contract NO. 128/11.12.2017”.

12. Furthermore, the Claimant explained that once back in Romania for the second part of the season, he was not allowed to stay in the former hotel and was sent to another accommodation in which he “(…) lived in very difficult conditions (…) and there was no food provided”.

13. In this respect, the Claimant alleged having been once again asked to mutually terminate the contract as from 1st June 2018 “in exchange [the Claimant] could reintegrate the professional group and have better living conditions”. In this regard, the Claimant submitted a copy of an unsigned document titled “end of agreement”.

14. As to the alleged exclusion from the professional group training program, the Claimant alleged having been sent to train alone in poor weather conditions without equipment and access to any medical treatment, despite of which the Claimant never missed a training session. In this context, the Claimant provided training schedules, which have all been signed by the Claimant.

15. Finally, the Claimant also referred to the intervention of FIFPRO in order to solve the situation, to no avail, as well as to ongoing proceedings in front of the National Anti-Discrimination Council Autonomic authority of the State.

16. Despite having been invited to do so, the Respondent did not reply to the claim in the given deadline, albeit late.

17. After being requested by FIFA, the Claimant explained that he signed an employment contract with the Finnish club, Ekenäs idrottsförening Ab, valid as from 10 August 2018 until 9 November 2018, according to which he was entitled to receive a monthly salary of EUR 1,100. Moreover, the Claimant explained that he signed another employment contract with the Armenian club, Ararat FC, valid as from 20 February 2019 until 1 June 2019, according to which he was entitled to receive a monthly salary of Armenian Dram (AMD) 95,000.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 25 July 2018. Consequently, the DRC concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed 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 (edition October 2019), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a French player and a Romanian club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition October 2019), and considering that the present claim was lodged on 25 July 2018, the June 2018 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber 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. First of all, the members of the Chamber recalled that, on 26 September 2017, the parties concluded a contract, valid as of 27 September 2017 until 30 June 2019.

6. In continuation, the DRC noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the contract with just cause on 23 July 2018. In this context, the DRC noted that, according to the Claimant, during the course of the employment relationship, i.e. from January to July 2018, the Respondent failed to fulfil part of its financial obligations and that it deliberately deteriorated his accommodation and training conditions and, as well, that he had been forced several times to sign a termination agreement. Furthermore, the Chamber noted that the Claimant affirmed that he had put the Respondent in default on several occasions, to no avail. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract.

7. Subsequently, the DRC observed that the Respondent, in spite of having been invited to do so, had, for its part, failed to present its response to the claim of the Claimant within the relevant time limit set by FIFA, i.e. 15 October 2018. In fact, the reply of the Respondent was only received on 16 October 2018. As a result, bearing in mind the Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 of the Procedural Rules, the Chamber decided not to take into account the reply of the Respondent and established that, in accordance with the aforementioned provision, it shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant.

8. Having said this, the DRC acknowledged that the central issue in the matter at stake was to determine as to whether the contract was terminated by the Claimant with or without just cause and to decide on the consequences thereof.

9. With the above in mind, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

10. In doing so, the DRC recalled that it has remained undisputed that, after having put the Respondent in default on several occasions between January 2018 and July 2018, the Claimant terminated the contract in writing on 23 July 2018.

11. Furthermore, the DRC recalled that it has remained undisputed that, from January until July 2018, the Respondent failed to fully comply with its financial and contractual obligations and that the Claimant’s default notices had remained unanswered.

12. In this context, the members of the Chamber established that the Respondent, without any valid reason, failed to remit the Claimant’s monthly remuneration in the total amount of RON [Romanian New Lei] 22,244, corresponding to two monthly salaries for the months of June and July 2018.

13. Furthermore, the Chamber took note of the documentary evidence submitted by the Claimant in support of his allegations that the Respondent deliberately deteriorated his accommodation and training conditions and that he had been forced several times to sign a termination agreement and to train alone.

14. Consequently, and considering that the Respondent had thus repeatedly and for a significant period of time been in breach of its financial and contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 23 July 2018 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

15. Having established that the Respondent is to be held liable for the early termination of the employment contract, the DRC focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC established that the Claimant is entitled to receive from the Respondent compensation for breach of contract, in addition to any outstanding payments on the basis of the relevant employment contract.

16. Along those lines, the DRC firstly referred to the Claimant’s request regarding the outstanding remuneration at the time of the unilateral termination of the employment contract. In this respect, the DRC concurred that the Respondent must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”.

17. Consequently, and bearing in mind that the Claimant terminated his employment contract on 23 July 2018, the Chamber decided that the Respondent is liable to pay to the Claimant outstanding remuneration in the amount of RON 22,244, pertaining to his monthly salaries of June and July 2018, since said month was also fully worked by the Claimant.

18. Subsequently, the Chamber turned its attention to the Claimant’s request to be awarded with the amount of EUR 780, as “game bonuses for November to December 2017” and EUR 10,000 as “1st League Bonus Promotion for 2017-2018”.

19. In this respect, the Chamber referred once again to the contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

20. Within this context, the Chamber carefully examined the documentation presented by the Claimant and noticed that the Claimant failed to provide any evidence supporting that the aforementioned bonuses were due. As a result, the DRC decided to reject this part of the Claimant’s claim.

21. As a result, and in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent has to pay to the Claimant outstanding remuneration in the amount of RON 22,244.

22. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the Claimant is entitled to receive compensation for breach of contract from the Respondent.

23. In continuation, the Chamber focused his attention on the calculation of the amount of compensation for breach of contract due to the Claimant by the Respondent in the case at stake. In doing so, the DRC 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 player 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 members of the DRC held that it first of all had to clarify as to whether the pertinent employment contract contained 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 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 members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its termination and concluded that the Claimant would have been entitled to receive RON 122,342 as remuneration had the employment contract been executed until its regular expiry date, i.e. 30 June 2019. Consequently, the Chamber concluded that the amount of RON 122,342 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

26. In continuation, the Chamber assessed 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 able to reduce his loss of income. In this respect, the DRC deemed it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted from the residual value of the contract that was terminated early (the ”Mitigated Compensation”).

27. In respect of the above, the Chamber recalled that the Claimant signed an employment contract with the Finnish club, Ekenas Idrottsförening Ab, valid as from 10 August 2018 until 9 November 2018, according to which, he was entitled to a monthly salary of EUR 1,100. Furthermore, the Claimant signed another employment contract with the Armenian club, Ararat FC, valid as from 20 February 2019 until 1 June 2019, according to which he was entitled to receive a monthly salary of Armenian Dram (AMD) 95,000, which corresponds to approximately EUR 165. On account of the above, such amounts shall be deducted, leading to a mitigated compensation in the amount of RON 104,742.

28. Consequently, on account of all the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of RON 104,742 as compensation for breach of contract to the Claimant, which is considered by the Chamber to be a fair and reasonable amount.

29. Subsequently, the DRC analysed the request of the Claimant corresponding to “additional damages” in the amount of EUR 150,000. In this regard, the DRC deemed it appropriate to point out that the request for said compensation presented by the Claimant had no contractual basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the damage suffered. Consequently, the Chamber decided to reject the Claimant’s request relating to “additional damages”.

30. The DRC decided that the claim of the Claimant is partially accepted and concluded its deliberations by rejecting any further claim of the Claimant.

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

32. In this regard, the Chamber 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.

33. 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.

34. Finally, the Chamber 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, Aboubacar Gassama, is partially accepted.

2. The Respondent, AFC Dunarea 2005 Calarasi, has to pay to the Claimant outstanding remuneration in the amount of RON 22,244.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of RON 104,742.

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

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due in accordance with points 2. and 3. 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).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sums 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 relating to the motivated decision (legal remedy):

According to art. 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 (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne, Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer