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 24 November 2020

Decision of the

Dispute Resolution Chamber

passed on 24 November 2020

regarding an employment-related dispute concerning the player Ozcan Ahmet Alper

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Roy Vermeer (Netherlands), member

José Luis Andrade (Portugal), member

CLAIMANT:

Ozcan Ahmet Alper, Switzerland

Represented by AFAN

RESPONDENT:

AFC Dunarea 2005 Calarasi, Romania

I. Facts

1. On 26 August 2019, the parties concluded an employment contract, valid as from the date of signature until 15 June 2020.

2. According to art. 4.1.1. of the contract, the player was entitled to a monthly salary of “after tax” EUR 3,000, payable on the 20th of the following month.

3. Following art. 4.2.2. of the contract, the club committed “to cover the player’s” rent in the amount of EUR 200 net for rent.

4. On 6 August 2020, the player sent a default notice, requesting the payment of the total amount of EUR 11,407.50.

5. On 25 August 2020, the player lodged a claim for outstanding remuneration against the club and requested the following:

“To condemn the Club to pay to the Player the amount of 11,407.50 Euro net plus 5% interest p.a., financial outstanding, as follows:

• 3,200 Euro net, remuneration and rent for February 2020, plus 5% interest p.a. as of 20th of March 2020 and until the date of effective payment;

• 998 Euro net, rest of the remuneration for March 2020, plus 5% interest p.a. as of 20th of April 2020 and until the date of effective payment;

• 2,509.50 Euro net, rest of the remuneration for April 2020, plus 5% interest p.a. as of 20th of May 2020 and until the date of effective payment;

• 3,000 Euro net, remuneration for May 2020, plus 5% interest p.a. as of 20th of June 2020 and until the date of effective payment;

• 1,500 Euro net, remuneration for June 2020, plus 5% interest p.a. as of 20th of July 2020 and until the date of effective payment;”

6. In its reply to the claim, the club explained that it performed the following payments:

• The amount of 15,360.00 lei, which represents sports services in February 2020 + related rent, according to OP (payment order) no.697 dated 27'08'2020;

• The amount of 9,689.00 lei, which represents sports services in March 2020 + March rent, according to OP no. 392 dated 15'04'2020;

• The amount of 2,386.00 lei, which represents rent and technical unemployment in May, according to OP no. 554 dated 26'06'2020;

• The amount of 1,920.00 lei, which represents the rent in May and June, according to OP 631 dated 10.07.2020

7. In this respect, the club argued that, in view of the COVID-19 pandemic, it “ordered the suspension of the sports activity contract concluded between the parties with the consequence of paying the compensatory indemnity of 75% of the cash rights related to the sports activity, but not more than 75% of the average gross salary provided by the Social State lnsurance Law for the year 2020 no.6 / 2020.”

8. In view of the above, the club explained that “for these reasons, during the period 16.03.-01.06.2020,the player was paid the compensatory indemnity a by law as it results from the previously mentioned financial accounting documents”.

9. The Claimant was invited to provide his comments to the reply of the Respondent.

10. In this respect, the Claimant argued that “.regarding the payment of the outstanding amounts related to February 2020, (…) that the payment was made after the transmission of the complaint”.

11. In this respect, the Claimant acknowledged that he received the amounts for said month.

12. In relation to the amounts for April and June, the Claimant considered that the Respondent failed to provide any evidence.

13. In relation to the months of March, the player acknowledged that on view of the “Decree 195 I 16.03.2020” which establishes a state of emergency in Romania until 15 April 2020 and subsequent legislation, “sports activity contracts may be suspended at the initiative of the club and that, during the suspension, players will benefit from the state budget, of a monthly allowance equal to 75% of the salary value but not more than 75% of the value of the average gross salary”

14. Yet, according to the Claimant, “there is not the slightest evidence that the player's contract has been suspended” and noted that “the club has not issued any decision (or other valid document) suspending the contractual relations with the player.”

15. In view of the above, the Claimant requested the following amounts:

– EUR 998 euros net for March 2020, plus 5% p.a. as from 20.04.2020;

– EUR 2,509.50 net for April 2020, plus 5% interest p.a. as from 20.05.2020

– EUR 3,000 net for May 2020, plus 5% interest p.a. as from 20.06.2020, noting that the player did not have the contract legally suspended, plus 5% interest p.a. as from 20 June 2020;

– EUR 1,500 euros for June 2020, plus 5% interest p.a. p.a. as from 20.07.2020.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. 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 Dispute Resolution Chamber 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 Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which involves a Swiss player and a Romanian club.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that date of the claim, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber 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 Dispute Resolution Chamber 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 Chamber noted that, on 26 August 2019, the parties concluded an employment contract, valid as from the date of signature until 15 June 2020 and that, according to art. 4.1.1 of the contract, the player was entitled, inter alia, to a monthly salary “after tax” of EUR 3,000.

6. Subsequently, the Chamber observed that the player lodged a claim for outstanding remuneration against the club and requested the following:

“To condemn the Club to pay to the Player the amount of 11,407.50 Euro net plus 5% interest p.a., financial outstanding, as follows:

• 3,200 Euro net, remuneration and rent for February 2020, plus 5% interest p.a. as of 20th of March 2020 and until the date of effective payment;

• 998 Euro net, rest of the remuneration for March 2020, plus 5% interest p.a. as of 20th of April 2020 and until the date of effective payment;

• 2,509.50 Euro net, rest of the remuneration for April 2020, plus 5% interest p.a. as of 20th of May 2020 and until the date of effective payment;

• 3,000 Euro net, remuneration for May 2020, plus 5% interest p.a. as of 20th of June 2020 and until the date of effective payment;

• 1,500 Euro net, remuneration for June 2020, plus 5% interest p.a. as of 20th of July 2020 and until the date of effective payment;”

7. Conversely, the Chamber noted that the Respondent argued that it partially paid the aforementioned amounts, noting that, in addition, in view of the COVID-19 pandemic, it “ordered the suspension of the sports activity contract concluded between the parties with the consequence of paying the compensatory indemnity of 75% of the cash rights related to the sports activity, but not more than 75% of the average gross salary provided by the Social State lnsurance Law for the year 2020 no.6 / 2020.”

8. In relation to the alleged partial payments, the Chamber noted that the Respondent admitted having received the outstanding amount corresponding to the month of February 2020. Thus, at this stage, the Chamber understood that the total amount in dispute corresponds to the amounts due from March 2020 until June, for the total amount of EUR 8,007.50 (i.e. EUR 998+ EUR 2,509.50+ EUR 3,000+ EUR 1,500, cf. point II. 6 above).

9. The Chamber then went on to examine the Respondent’s arguments, according to which it was entitled to unilaterally deduct certain amounts in view of the economic effects of the COVID-19 pandemic.

10. Having said that, the DRC wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

11. In this respect, the Chamber observed that, following said document, where (a) clubs and employees cannot reach an agreement, and (b) national law does not address the situation or collective agreements with a players’ union are not an option or not applicable, unilateral decisions to vary terms and conditions of contracts will only be recognized by FIFA’s Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they were made in good faith, are reasonable and proportionate.

12. Within this context, the Chamber underlined once again that, following the COVID-19 Guidelines, unilateral decisions to vary agreements will only be recognised where they were made in good faith and that, when assessing said decision, the DRC may consider, without limitation, the following elements:

a. whether the club had attempted to reach a mutual agreement with its employee(s);

b. the economic situation of the club;

c. the proportionality of any contract amendment;

d. the net income of the employee after contract amendment;

e. whether the decision applied to the entire squad or only specific employees.

13. After duly taking note of all of the aforementioned criteria, the Chamber focused its attention to the principle of good faith when it comes to unilateral decisions to vary contractual terms. Indeed, the members of the Chamber concurred that this principle is of paramount importance when it comes to recognize a decision of this nature.

14. With this idea in mind, the members of the Chamber further referred to 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.

15. Within this context, and after duly analyzing the evidence gathered during the course of the investigation, the members of the Chamber considered that the Respondent failed to prove that it attempted to conduct a negotiation with the player in good faith. In addition, the Chamber observed that the club already had outstanding remuneration towards the player that was already overdue before the outbreak of the COVID-19 pandemic.

16. In this respect, the Chamber underlined that, according to the COVID-19 Guidelines, Clubs and employees (players and coaches) are strongly encouraged to work together to find appropriate collective agreements on a club or league basis regarding employment conditions for any period where the competition is suspended due to the COVID-19 outbreak.

17. As a result, the Chamber was of the opinion that it could not recognize the salary deductions performed by the Respondent and that, consequently, the player is entitled to his remuneration as contractually agreed.

18. In this respect, the Chamber noted that the player sufficiently justified the alleged due amounts in accordance with art. 12 par. 3, in accordance with the table quoted in point II. 8 above and that, in principle, he would be entitled to the claimed total amount of EUR 8,007.50, as it is grounded in the remuneration as provided by the contract.

19. As a result, the Chamber established that, in accordance with the principle of pacta sunt servanda, that the Respondent shall pay to the Claimant, the total outstanding amount of EUR 8,007.50.

20. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a. over said amount as from the due dates.

21. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

22. In this regard, the Dispute Resolution 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.

23. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

24. Finally, the Dispute Resolution 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, Ozcan Ahmet Alper, is accepted.

2. The Respondent, AFC Dunarea 2005 Calarasi, has to pay to the Claimant, the total outstanding net amount of EUR 8,007.50, plus interest as follows:

- 5% interest p.a. over the amount of EUR 998 net as from 21 April 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 2,509.50 net as from 21 May 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 3,000 net as from 21 June 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 1,500 net as from 21 July 2020 until the date of effective payment.

3. 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.

4. 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).

5. 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 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).

CONTACT INFORMATION:

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