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 28 January 2021

Decision of the

Dispute Resolution Chamber

passed on 28 January 2021,

regarding an employment-related dispute concerning the player Omar Santana Cabrera

COMPOSITION:

Clifford J. Hendel (USA / France), Deputy Chairman Stéphane Burchkalter (France), member Todd Durbin (USA), member

CLAIMANT:

Omar Santana Cabrera, Spain

Represented by Asociación de Futbolistas Españoles (AFE)

RESPONDENT:

Miedz Legnica, Poland

I. FACTS OF THE CASE

1. On 22 December 2019 the Spanish player, Omar Santana Cabrera, (hereinafter: the Claimant or player), and the Polish club, MKS Miedz Legnica, (hereinafter: the Respondent or club) concluded an employment contract valid as from 1 January 2020 until 30 June 2020 (hereinafter: the contract), according to which the Respondent undertook to pay the Claimant a monthly salary of EUR 625 gross as well as a “monthly prize (…) up to the amount” of EUR 6,405 gross “for sport performance”.

2. As per clause 9.7. of the contract, “Any disputes concerning the validity, existence or termination of the Contract shall be settled by the Sports Dispute Settlement Chamber, a body of the Polish Football Association jurisdictional authority. Any disputes concerning property rights and moral rights which may arise out if the creation, validity, execution and termination of the Contract, arising in connection with the organization and practice of football, shall be settled by the Court of Arbitration of the Polish Football Association. Dispute arising in connection with the implementation of this Contract shall be subject to settlement by the jurisdictional bodies of the Polish Football Association.”

3. On 14 May 2020, the parties “signed the annex no. 1” of the contract (hereinafter: Annex no. 1 of the contract), which provided that “Taking into account the sports results achieved by the Player in the spring of 2020, MKS [the club] grants the Player an additional one-time award for sports achievements, to be paid in accordance with § 5 par. 5 of the Contract, reasonable by special commitment to the work and to achieve good effects of sports, up to the net amount of PLN 26.665,00 (say: twenty six thousand six hundred sixty five Polish zloty). The awarded prize shall be paid to the player by transfer to his bank account in a Polish bank, until 30.06.2020.”

4. On 25 June 2020, the parties extended the contract until 31 July 2020 (hereinafter: Annex no. 2 of the contract) according to which the player will receive a monthly salary in the amount “constituting the equivalent in Polish currency of EUR 620,00 gross (…)”.

5. On 19 August 2020, the player sent a default notice to the Respondent by means of which he requested, in accordance with art. 12bis of the RSTP, the amount of EUR 4,800 to be paid within 10 days,

6. On 8 October 2020, the Claimant lodged a claim against the Respondent in front of FIFA, claiming outstanding remuneration in the amount of EUR 4,800 plus 5% interest p.a. as of the due dates as well as the imposition of a sanction on the Respondent in accordance with art. 12bis of the Regulations.

7. The player stated that according to clause 5 of the contract he was entitled to a monthly salary of EUR 6,000 net as of January until June 2020.

8. The player maintained that his salaries of March 2020, in the amount of EUR 1,800 net, and April 2020, in the amount of EUR 3,000 net, have not been paid by the club. Therefore, the amount of EUR 4,800 net remains outstanding towards him.

9. In its reply to the claim, the club firstly pointed out that the contract contained a jurisdiction clause in favour of the Court of Arbitration of the Polish Football Association. In this regard, the Respondent stated the following:

“The Club points out, in the first place, that the Professional Football Player Contract in force between the parties, signed on December 22, 2019 provided that any disputes concerning property rights and moral rights which may be subject to settlement and which may arise out of the start, validity, execution and termination of the Contract, arising on the occasion of the organization and practice of football, shall be settled by the Court of Arbitration of the Polish Football Association (§ 9 section 7 of the Contract).”

10. Moreover, the club stated that the parties extended the duration of the contract until 31 July 2020, and that it undertook to pay the player a monthly salary in the amount of Polish currency equivalent of EUR 620 gross. In addition, the plyer could receive a prize for athletic performance and outstanding achievements in sports from the club, up to an amount of the Polish currency equivalent of EUR 7,030 gross per month.

11. Furthermore, the club denied the player’s allegation regarding his requests of EUR 4,800 as outstanding remuneration for the alleged unpaid salaries of March and April 2020.

12. The club further held that as of March until early May 2020, during the lockdown due to the Covid-19 pandemic in Poland, the leagues competitions were suspended. Therefore, “the player obligation were not performed”.

13. According to the club, the Polish first football league recommended, “to limit salaries temporarily (until the end of 2019/2020 season but not before June 30, 2020) by 50% of the total salary. At the same time clubs indicated that the salary of PLN 4,000 gross would be the amount considered to be the minimum”

14. It further stated that, nonetheless the above-reached agreement, the club decided to reduce its staff salaries, players included, up to 30% for March 2020 and up to 50% for April 2020 and pointed out that the applied reduction “was not a unilateral change. It was a joint decision of both parties to the contract”, and added that the reduction was agreed with the captain, representing the entire team.

15. What is more, the club wanted to point out that after having concluded, on 14 May 2020, the annex no. 1 of the contract, the club, in accordance with clause 1 of annex no. 1 of the contract, paid, on 30 June 2020, PLN 26,665 to the player as “one-time award for sports achievements”.

16. Finally, the club, in response to the player’s claim, stated that it “should be dismissed in its entirety as wholly unfounded.”

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the 2021 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 members of the Chamber 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 Dispute Resolution Chamber is in principle competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Spanish player and a Polish club.

3. However, in relation to this, the Chamber noted that the Respondent considered that the matter shall be decided by the Court of Arbitration of the Polish Football Association in view of the content of clause 9.7. of the contract, which stipulates the following:

“Any disputes concerning the validity, existence or termination of the Contract shall be settled by the Sports Dispute Settlement Chamber, a body of the Polish Football Association jurisdictional authority. Any disputes concerning property rights and moral rights which may arise out if the creation, validity, execution and termination of the Contract, arising in connection with the organization and practice of football, shall be settled by the Court of Arbitration of the Polish Football Association. Dispute arising in connection with the implementation of this Contract shall be subject to settlement by the jurisdictional bodies of the Polish Football Association.”

4. Taking into account all the above, the DRC emphasized that in accordance with art. 22 lit. b) of the Regulations on the Status and Transfer of Players he is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, it referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

5. Equally, the Chamber reminded the parties of 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”.

6. In application of the aforementioned provision, the DRC understood that, in the matter at stake, it is up to the Respondent to prove that the Court of Arbitration of the Polish Football Association effectively guarantees fair proceedings and respects the principle of equal representation of players and clubs.

7. In this respect, and after observing the evidence provided by the parties, the Chamber noted that the Respondent did not provide any evidence on the effective and actual composition of the Court of Arbitration of the Polish Football Association, or that said body effectively guarantees fair proceedings and respects the principle of equal representation of players and clubs.

8. In view of the above, the Chamber arrived to the conclusion that, from the evidence on file that was gathered within the course of the present investigation, it cannot follow the Respondent’s arguments as to its lack of jurisdiction. The DRC is, therefore, competent to hear the present matter in accordance with art. 22 b) of the Regulations on the Status and Transfer of Players.

9. Subsequently, 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 2020), and considering that the present claim was lodged on 8 October 2020, the January 2021 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

10. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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.

11. In this respect, the Chamber noted that, on 22 December 20219, the parties concluded a contract, according to which the Respondent undertook to pay the Claimant a monthly salary of EUR 625 gross as well as a “monthly prize (…) up to the amount” of EUR 6,405 gross “for sport performance”.

12. Subsequently, the DRC observed that the Claimant lodged a claim before FIFA claiming outstanding remuneration in the amount of EUR 4,800 plus 5% interest p.a. as of the due dates.

13. The Chamber further observed that, as to the calculation of the amount requested, the Claimant held that according to clause 5 of the contract he was entitled to a monthly salary of EUR 6,000 net as of January until June 2020 and that his salaries of March 2020, in the amount of EUR 1,800 net, and April 2020, in the amount of EUR 3,000 net, were not paid by the club. Therefore, the amount of EUR 4,800 net remains outstanding.

14. In this respect, the Chamber noted that player provided proof of monthly salaries paid by the club in PNL. In particular, the player provided proof of payments made by the club as of February until July 2020. According to these documents, the DRC observed that the club has always paid the player almost the same amount for each monthly salary, amounting approx. to PLN 26,000, except for the months of March and April 2020, where the club paid respectively PLN 19,123.20 and PLN 13,629.25.

15. Conversely, the Chamber noted that, the Respondent denied the player’s allegation regarding his requests of EUR 4,800 as outstanding remuneration for the alleged unpaid salaries of March and April 2020 and pointed out, inter alia, that after having concluded, on 14 May 2020, the annex no. 1 of the contract, the club, in accordance with clause 1 of annex no. 1 of the contract, paid, on 30 June 2020, PLN 26,665 to the player as “one-time award for sports achievements”.

16. In continuation, the DRC noted that the player based his claim on the monthly amounts he should receive in accordance with clause 5 of the contract, in particular to clause 5.6 of it.

17. What this in mind, the Chamber focused his attention on clause 5.6 of the contract, which reads as follows: “The player shall have the right to receive a monthly prize specified in Paragraph 5 for sport performance, up to the amount constituting the equivalent in Polish currency of the amount of EUR 6.405,00 gross (…)”

18. After having analysed the aforementioned clause, the Chamber deem that the club, despite having paid almost the same amount for each monthly salary to the player, by paying slightly less in March and April 2020 (i.e. PLN 19,123.20 and PLN 13,629.25) did not breach the contract, given that according to clause 5.6 it had to pay the player a monthly prize “up to” an “amount constituting the equivalent in Polish currency of the amount of EUR 6.405,00 gross”.

19. The DRC, in light of the above considerations, concluded that the Respondent, by paying up to PLN 19,123.20 in March 2020 and up to PLN 13,629.25 in April 2020, complied with its financial obligations towards the player in accordance with the contract.

20. On account of the above, the DRC concluded that the Claimant’s claim has to be rejected.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Omar Santana Cabrera, is admissible.

2. The claim of the Claimant is rejected.

3. The decision is rendered without costs.

For the Dispute Resolution Chamber:

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).

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