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 23 September 2020

Decision of the

DRC Judge

passed on 23 September 2020,

regarding an employment-related dispute concerning the player Duvier Alberto Mosquera Palacios

BY:

Philippe Diallo (France), DRC Judge

CLAIMANT:

Duvier Alberto Mosquera Palacios, Colombia

represented by Ms. Melanie Schärer

RESPONDENT:

Club Real Potosí, Bolivia

I. FACTS OF THE CASE

1. On an unspecified date, allegedly in October 2019, the parties concluded a pre-contract (hereinafter: the pre-contract), valid as from October 2019 until December 2020.

2. In accordance with numeral 1 of the pre-contract, the club undertook to pay to the player his return air tickets.

3. In accordance with numeral 3 of the pre-contract, the club undertook to pay to the player a lump sum of USD 12,000, payable in two instalments of USD 6,000 each, payable on the date of its signature and on 28 January 2020, respectively.

4. Moreover, numeral 4 of the pre-contract stipulated that the player is entitled to a monthly salary of USD 2,000 as from October until December 2019; and of USD 5,000 as from January until December 2020, as well as an increase of 10% per worked year.

5. Clause 1 of the pre-contract stated that the player must be a free agent in order to be signed by the club.

6. According to the Claimant, on 5 December 2019, the parties signed an employment contract (hereinafter: the contract), which contains the same elements of the pre-contract.

7. In this context, the Claimant argued that “only a few days after signing the employment contract on 5 December 2019, the Respondent informed the Claimant that they did not count on his services anymore as they were looking for more experienced players”.

8. What is more, according to the Claimant, as from that moment, the Respondent hindered the Claimant from rendering his services for the club and, de facto, unilaterally terminated the contract without just cause.

9. By means of his correspondence dated 7 and 24 February 2020, the Claimant put the Respondent in default of payment and urged the Respondent to make an offer in order to settle the dispute, informing the Respondent that he would initiate proceedings against it before FIFA if the Respondent didn’t make any offer or if such offer was to be considered insufficient for the Claimant. In such correspondences the Respondent was granted the deadlines until 11 February 2020 and 29 February 2020, respectively.

10. In his claim, the Claimant argued that, despite him complying with his contractual obligations, the club failed to comply with its financial obligations towards the Claimant upon terminating the contract without just cause. In his claim, the Claimant requested to be awarded the total amount of USD 101,560, plus 5% interest p.a. as from the due dates until the date of effective payment, as follows:

Outstanding remuneration: USD 3,560

USD 3,000 net corresponding to the unpaid part of the sign-on fee;

USD 560 net corresponding to the flight ticket Bolivia-Colombia (note: document on file).

Compensation for breach of contract: USD 72,000

USD 6,000 corresponding to the sign-on fee payable on 28 January 2020;

USD 2,000 corresponding to the salary of October 2019;

USD 2,000 corresponding to the salary of November 2019;

USD 2,000 corresponding to the salary of December 2019;

USD 5,000 corresponding to the salary of January 2020;

USD 5,000 corresponding to the salary of February 2020;

USD 5,000 corresponding to the salary of March 2020;

USD 5,000 corresponding to the salary of April 2020;

USD 5,000 corresponding to the salary of May 2020;

USD 5,000 corresponding to the salary of June 2020;

USD 5,000 corresponding to the salary of July 2020;

USD 5,000 corresponding to the salary of August 2020;

USD 5,000 corresponding to the salary of September 2020;

USD 5,000 corresponding to the salary of October 2020;

USD 5,000 corresponding to the salary of November 2020;

USD 5,000 corresponding to the salary of December 2020.

Additional compensation: USD 30,000 (6 monthly salaries of USD 5,000 each).

11. Despite having been invited to do so, the Respondent did not reply to the claim.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

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 24 June 2020 and submitted for decision on 23 September 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 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 24 June 2020, the June 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, in October 2019, the Claimant and the Respondent signed a pre-contract, valid as from October 2019 until December 2020. Based on said contract, the Respondent undertook to pay to the Claimant, inter alia, a lump sum of USD 12,000, payable in two instalments of USD 6,000 each, payable on the date of its signature and on 28 January 2020, respectively; as well as a monthly salary of USD 2,000 as from October until December 2019; and of USD 5,000 as from January until December 2020, as well as an increase of 10% per worked year.

6. Moreover, the DRC judge noted that, according to numeral 1 of the pre-contract, the player was also entitled to receive from the club return air tickets.

7. What is more, the DRC judge noted that the Claimant argued that, on 5 December 2019, the parties signed an employment contract that was, later on, orally terminated by the Respondent unilaterally. In this regard, the Claimant explained that the only reason given by the Respondent as regards the unilateral termination of the employment relationship was that the club was “looking for more experienced players”.

8. Moreover, the DRC judge acknowledged the statement of the Claimant, whereby the latter stressed that the Respondent hindered the Claimant from rendering his services, which de facto corroborated the unilateral termination of the contract, since the player was prevented from complying with his contractual obligations.

9. Furthermore, the DRC judge observed that the Claimant put the Respondent in default of payment on 7 February and 24 February, both 2020, requesting the Respondent to comply with its financial obligations towards him and eventually make an offer to the player in order to settle the financial default.

10. The DRC judge further noted that the Respondent, despite having been invited to reply to the claim, did not reply thereto. In this context, the DRC judge wished to emphasize that, in the absence of a reply from the Respondent, the arguments brought forward by the Claimant remain uncontested and will be deemed as facts, if sufficiently proved with the necessary documentary evidence, in accordance with art. 12 para. 3 of the Procedural Rules.

11. As to the conclusion of a valid agreement between the parties, despite a version of the employment contract not having been provided by the Claimant, the DRC judge duly analysed the documentation on file and, in particular, the contents of the pre-contract. In this respect, the DRC judge stated that the pre-contract does contain all the necessary essentia negotii for the conclusion of a valid and binding employment agreement: the parties, object, term, and remuneration –which outline the employment relationship between the club and the player– can be found in such document.

12. What is more –continued the DRC judge–, as per the allegations of the Claimant, it can be concluded that the typical activities concerning the execution of such pre-contract appeared to have taken place as per the documentation provided by the Claimant (i.e. a medical examination took place, a valid pre-contract was concluded between the parties, the player attending training sessions, and proof of payment of a part of the sign-on fee) , which stands undisputed in light of the Respondent’s lack of reply.

13. Equally –stressed the DRC judge–, the seemingly conditions precedent to the employment relationship have been met by the player, especially pertaining his “free agency”.

14. Accordingly, and in the absent of any challenge exercised by the Respondent as to the claim, the DRC judge determined that, by refraining (or ceasing, since the evidence on file suggests the parties started to execute the pre-contract) from executing the pre-contract, the Respondent de facto unilaterally terminated the employment relationship without just cause as per art. 14 of the Regulations.

15. As to the date of termination of the contract, the DRC judge pointed out that, since it is not contested that the club –shortly after the conclusion of the contract with the player on 5 December 2019– communicated to the player that the contract was terminated, the date that shall be interpreted as date of termination of the contract, in the absence of any further evidence and a reply of the Respondent, shall be the 5 December 2019.

16. Therefore –concluded the DRC judge–, the player is entitled to receive both, his outstanding remuneration, by virtue of the legal principle of law: pacta sunt servanda; as well as a compensation for breach of contract, ex. art. 17 of the Regulations.

17. In this context, the DRC judge went on to deal with the consequences of the early termination of the employment contract.

18. 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 7,000, consisting of: the moneys due to the Claimant for the months of November 2019, in the amount of USD 5,000 (USD 3,000 corresponding to the remainder of the sign-on fee and USD 2,000 corresponding to the salary of October 2019), and December 2019, in the amount of USD 2,000, corresponding to the salary of the said month.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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 5 December 2019, the contract would have run for 13 months more, that is, until 31 December 2020.

24. 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 68,000 (corresponding the salaries due in the period between December 2019 and December 2020 in the amount of USD 5,000 –except for the salary of December 2019, which amounts to USD 2,000– and the payment regarding half of the sign-on fee, in the amount of USD 6,000, which was payable by 28 January 2020.

25. Moreover, the DRC judge referred to the air tickets’ expenses in which the Claimant incurred, in the amount of USD 560 –expense which the Claimant proved with the corresponding documentary evidence– and concluded that, insofar the pre-contract contained a specific provision whereby the Respondent undertook to pay to the player his return air tickets, the Respondent shall be ordered to reimburse such expense to the Claimant.

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

27. In view of all of the above, the DRC judge decided that the Respondent must pay the amount of USD 68,560 (68,000 + 560) to the Claimant as compensation for breach of contract, which is considered by the DRC judge to be a reasonable and justified amount as compensation.

28. 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 the date on which the claim was lodged, i.e. 24 June 2020, until the date of effective payment.

29. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of USD 75,560 to the Claimant, consisting of the amount of USD 7,000 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 amount of USD 68,560 corresponding to compensation for breach of contract.

30. 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.

31. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to para. 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 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.

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 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.

DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Duvier Alberto Mosquera Palacios, is partially accepted.

2. The Respondent, Club Real Potosí, has to pay to the Claimant the following amounts:

- USD 5,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2019 until the date of effective payment;

- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2019 until the date of effective payment;

- USD 68,560 as compensation for breach of contract without just cause plus 5% interest p.a. as from 24 June 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.

7. The decision is rendered free of costs.

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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