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 14 January 2021

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 14 January 2021,

regarding an employment-related dispute concerning the player Boris GODAL

COMPOSITION:

Geoff Thompson (England), Deputy Chairman Michelle Colucci (Italy), member Mohamed Muzammil (Bangladesh), member

CLAIMANT:

BORIS GODAL, Slovenia

Represented by Mr. Loizos Hadjidemetriou

RESPONDENT:

AEL PODOSFARIO DIMOSIA (LIMASSOL), Cyprus

I. FACTS

1. On 1 August 2019, the Slovenian player Boris Godal (hereinafter: the player or the Claimant) and the Cypriot club AEL Podosfario Dimosia (Limassol) (hereinafter: the club or Respondent) concluded an employment agreement, valid between 1 August 2019 and 31 May 2021.

2. Based on the contract, the player was entitled to a monthly gross salary of:

- EUR 9,522 (EUR 8,500 net) in the period between 31 August 2019 and 31 December 2019;

- EUR 9,610 (EUR 8,500 net) in the period between 31 January 2020 and 31 May 2020;

- EUR 10,362 (EUR 9,000 net) in the period between 31 August and 31 December 2020);

- EUR 9,964 (EUR 9,000 net) in the period between 31 January 2021 and 31 May 2021.

3. Furthermore, article 1.2 of the contract holds the following clause: “The Club engages the Player as a professional footballer for, as a minimum, the Club's First Team, unless the Player shall agree to play for some other team of the Club, on the terms and conditions of this Contract and subject to the Rules of the CFA.”

4. Moreover, article 13 of the standard employment agreement contains – according to the club - the following clause: ‘Any employment dispute between the club and the player shall fall under the exclusive jurisdiction of the National Dispute Resolution Chamber of the CFA and shall be resolved according to the applicable regulations of the CFA’.

5. On 10 August 2020, the player put the club in default, protested against the club’s decision to prohibit him from taking part in the training sessions and matches of the club’s first team and requested for his immediate integration in the club’s first team, however to no avail.

6. On 10 September 2020, the player put the club again in default, reiterating his previous complaints, however again to no avail.

7. Moreover, on 11 September 2020, the club sent the player a letter, in which it argued “that the player was creating problems in his relations with the management and the technical staff and that because of his behaviour in the locker room they asked him to consent to his loan to another football team”.

8. On 14 September 2020, the player refused said proposal and denied the club’s allegations.

9. On 16 September 2020, the player was informed by the Cyprus Football Association (CFA) that he was deregistered from the club’s list of eligible players, which decision became definitive and irreversible on 29 September 2020, as per the CFA’s internal regulations.

10. On 12 October 2020, the player lodged a claim against the club, claiming the total amount of EUR 10,362 as outstanding remuneration, as well as 5% interest p.a. as from 30 September 2020, and the amount of EUR 59,556 as compensation for breach of contract, as well as 5% interest p.a. as from 30 September 2020, and additional compensation “up to 6 months’ salaries, due to the abusive and/or unsporting and/or egregious behaviour” of the club.

11. In his claim, the player explains that in the last week of June 2020, the club started the preparation of the season 2020-2021, however that he was prohibited from training sessions with the rest of the team and was forced to train alone.

12. The player explains that he is of the opinion that he was excluded from the team, as he refused to agree with the club’s request to a 30% reduction of his salaries for the 2020-2021 season.

13. What is more, the player explicitly denies all the allegations of the club and states that the behaviour of the club and the de-registration are to be seen as a valid reason for the player to unilaterally terminate his contract.

14. On 29 September 2020, the player unilaterally terminated his contract with the club, due to his deregistration.

15. In its reply to the claim, the club first of all contested the competence of FIFA to deal with the matter at hand, as the Cypriot NDRC should be competent to deal with the matter at hand.

16. In this respect, the club argues that there is a clear arbitration clause in the contract, as well as that the Cypriot NDRC meets the requirements of FIFA Circular 1010. The club especially highlights that the Cypriot NDRC respects the principle of parity and equal representation, and also provides for a ‘fair hearing’ and equal treatment.

17. In case FIFA would deem itself competent, the club argues that it had paid all the salaries of the player until 29 September 2020 and the player could not demonstrate to ‘what period the outstanding amount of salaries he requires through his correspondence dated 11 October 2020’ relates.

18. What is more, since the player did not accept an offer from the club to go on loan with another Cypriot club (by means of which he would have mitigated his damages), he should not be awarded compensation for breach of contract.

19. On 30 September 2020, the player signed a new contract with the Slovakian club FK Zeleziarne Podbrezova, valid between 1 October 2020 and 30 June 2022, based on which he was entitled to a monthly salary of EUR 2,500.

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. In this respect, it took note that the present matter was submitted to FIFA on 5 May 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 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 August 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake. The matter concerns an employment-related dispute with an international dimension between a Bulgarian player and a Romanian club, and the competence is not disputed by the parties.

3. However, the Chamber acknowledged that the club contested the competence of FIFA’s deciding bodies on the basis of art. 13 of the employment contract highlighting that the Cyprus Football Association (CFA) has an independent deciding body to deal with the matter, i.e. the National Dispute Resolution Chamber of the CFA.

4. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2010 edition of the Regulations on the Status and Transfer of Players it 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 Chamber referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

5. In continuation, the members of the Chamber wished to stress that the club was unable to prove that, in fact, the CFA “National Dispute Resolution Chamber” meets the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations.

6. In this respect, the DRC referred to the principle of equal representation of players and clubs and underlined that this principle was one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list.”

7. What is more, while analysing the documentation submitted by the parties in this respect, in particular, the members of the Chamber concurred that the “Regulations for the Registration and Transfer of Football Players and the DRC Procedural Regulations (July 2020)”, in accordance with its article 22.4.4, the two members which are elected by the Pancyprian Football Players’ Association, need to be approved by the CFA, whereas such condition does not apply to the appointment of club representatives. What is more, based on article 22.4.5 of the Cyprus NDRC Regulations, in case Pancyprian Football Players’ Association refuses or fails to nominate a player representative, the CFA has also potential influence on the selection process of player representatives, as opposed to club representatives.

8. Taking into account the foregoing articles of the Cyprus NDRC Regulations, the members of the Chamber were of the opinion that the Cyprus NDRC does not fully respect the principle of equal representation, as laid down in FIFA Circular no. 1010.

9. In view of all the above, the Chamber established that the club’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

10. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (August 2020 edition), and considering that the claim was lodged on 12 October 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

11. 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.

12. First of all, the DRC acknowledged that, on 1 August 2019, the player and the club had concluded an employment contract valid as from 1 August 2019 until 31 May 2021. As to the financial terms of said employment contract, the Chamber took note that it had been agreed upon between the parties that the club would remunerate the player with a monthly salary of EUR 9,522 gross (or EUR 8,500 net) in the period between 31 August 2019 and 31 December 2019, a monthly salary of EUR 9,610 gross (or EUR 8,500 net) in the period between 31 January 2020 and 31 May 2020, a monthly salary of EUR 10,362 gross (or EUR 9,000 net) in the period between 31 August 2020 and 31 December 2020 and a monthly salary of EUR 9,964 gross (or EUR 9,000 net) in the period between 31 January 2021 and 31 May 2021.

13. The members of the Chamber then turned to the claim of the player, who maintained that – as from June 2020 – the cub excluded him from training sessions and matches with the club’s first team, according to the player because he refused to accept a salary reduction of 30% of his salaries for the 2020-2021 season and because of some non-proven disciplinary issues the club accuses him of. After he put the club in default, to no avail, the player further found out that the club deregistered him. Consequently, the player explains that on 29 September 2020, he unilaterally terminated the contract, based on the fact that he was de-registered and no longer part of the club’s tram anymore.

14. What is more, the Chamber noted that the club, in reply to the player’s claim, mainly argued that the player was not able to demonstrate to which period the salaries claimed referred to, and also pointed out that the player refused to accept an offer from the club to go on loan with another Cypriot club, by means of which he would have mitigated his damages.

15. In this context, the Chamber firstly focussed its attention on the fact that the circumstances described by the player (his exclusion from the first team, as well as the training sessions of the first team and his consequent deregistration), are not contested by the club.

16. In light of the above, first of all, the members of the Chamber considered important to point out, as has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches.

17. Furthermore, the Chamber analysed submitted by the club, and pointed out that the fact that the player did not want to sign a loan contract with another Cypriot club, cannot be upheld against him, as the parties have contractual autonomy as to whether they wish to sign a contract or not. Also the club’s argument that the player was not able to demonstrate what the contractual basis of the monies claimed was, cannot be upheld as to the members of the Chamber it was clear that the amounts claimed could be linked to the monthly remuneration the player was entitled to.

18. For all of these reasons, the Chamber decided to reject the club’s arguments and to establish that the player, on 29 September 2020, had unilaterally terminated the employment with just cause. As a consequence, the club is to held liable for the consequences of such termination.

19. Having established that the club is to be held liable for the early termination of the employment contract without just cause, the Chamber focussed its attention on the consequences of such breach of contract. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive from the club an amount of money as compensation for breach of contract, in addition to any outstanding payments on the basis of the relevant contract, if any.

20. The Chamber then reverted to the player’s claim, from which it clearly follows that at the day of the unilateral termination of the contract, 29 September 2020, the salary for the month of September 2020 remained outstanding. As a result, the DRC decided that the club is liable to pay outstanding remuneration in the amount of EUR 9,000 to the player.

21. Furthermore, in accordance with its established jurisprudence and taking into account the request of the player, the Chamber further decided that interest at the rate of 5% p.a. was to be applied over the amount of EUR 9,000 as from 1 October 2020, i.e. the date of the claim.

22. In continuation, the Chamber focussed its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber 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.

23. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract. In this respect, the members of the Chamber concluded that no such clause was available in the contract.

24. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that the 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.

25. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract until 31 May 2021. In this respect, the Chamber took into account that the contract would – after the unilateral termination on 29 September 2020 would run for another 8 months, in which the player receive a monthly amount of EUR 9,000.

26. Based on the foregoing circumstances, the members of the Chamber decided that the residual value of the contract until 31 May 2021, corresponds to the total amount of EUR 72,000, which amount shall serve as the basis for the determination of the amount of compensation for breach of contract.

27. In continuation, the Chamber verified as to whether the player 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, 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.

28. Indeed, on 30 September 2020, the player found employment with the Slovakian club FK Zeleziarne. In accordance with the pertinent employment contract, which has been made available by the player, valid as from 1 October 2020 until 30 June 2022, the player was entitled to receive a monthly salary of EUR 2,500. For the period between 1 October 2020 until 31 May 2021, the player was therefore entitled to receive the total amount of EUR 20,000. Consequently, the Chamber established that the value of the new employment contract concluded between the player and FK Zeleziarne, amounting to EUR 20,000, should be deducted from the compensation for breach of contract the player was entitled to.

29. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of EUR 52,000 to the player, which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

30. Furthermore, in accordance with its established jurisprudence and taking into account the request of the player, the Chamber further decided that interest at the rate of 5% p.a. was to be applied over the amount of EUR 52,000 as from 12 October 2020, i.e. the date of the claim.

31. Furthermore, taking into account the consideration under number II./10. 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 established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.

33. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

34. Finally, the Chamber recalled that the above-mentioned sanction 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, Boris Godal, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, AEL Podosfario Dimosia (Limassol), has to pay to the Claimant, the following amount:

- EUR 9,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until the date of effective payment.

- EUR 52,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 12 October 2020 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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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