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 13 November 2020

Decision of the

Dispute Resolution Chamber

Passed on 13 November 2020,

regarding an employment-related dispute concerning the player Constantin Valentin Budescu

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Stijn Boeykens (Belgium), member

Daan de Jong (Netherlands), member

CLAIMANT / COUNTER-RESPONDENT:

AL SHABAB FC, Saudi Arabia

Represented by Mr. Simon Grossobel

RESPONDENT 1 / COUNTER-CLAIMANT:

CONSTANTIN VALENTIN BUDESCU, Romania

Represented by Mr. Mincu Paul Alexandru

RESPONDENT 2:

AFC ASTRA GIURGIU, Romania

I. FACTS OF THE CASE

1. On 1 July 2018, the Saudi club, Al Shabab FC (hereinafter “Shabab” or “the Claimant”) and the Romanian player, Constantin Valentin Budescu (hereinafter “the First Respondent” or “the player”) concluded an employment contract (hereinafter “the contract”) valid from 5 July 2018 until 4 July 2021.

2. The First Respondent was employed by the Claimant as a professional player subject to the terms set out in the Contract. The Payment Terms at Item 4 of the Contract provided for three advance payments of USD 800,000 (one each season on 5 July) and a monthly salary of USD 75,000.

3. At Item 5 of the Contract states that the First Respondent shall inter alia:

a. “Comply with the laws, regulations, decisions and circulars issued by SAFF and FIFA and sports traditions & provisions of these regulations

b. Attend training, camps, seminars, press conferences and taking part in friendly and official matches of the club or national team according to established dates. Student players shall be exempted from the morning trainings during school days only, provided that such trainings shall be compensated in other periods to be fixed by the club.

c. Maintain his physical fitness and attend technical tests and periodical medical examinations and treatment according to tables prepared by technical and medical staffs of the club.

d. Inform his current club and obtain its consent when negotiating or signing with a new club unless his contract has expired or will expire during the last six months of his contract.

e. Participate and exert his best and capabilities in performing the activities and duties provided for in the contract signed with him unless the player's health does not allow this according to medical reports approved by the first party."

4. Item 13 of the Contract regarding General Provisions states: “The two parties declare that they have taken note of SAFF and FIFA regulations and circulars before signing this contract and that they are obliged to implement them.”

5. On 15 July 2019, the player informed Shabab in writing of the following:

• “The outstanding salaries and other financial rights of the player are:

o 800.000 USO net- payment according to Item 4.3. of the contract, due on 05.07.2019

o 9.728 USD net - rest of the salary for August 2018, according to Item 4.4 of the contract. (only 65.272 USD have been paid, from the monthly amount of75.000 USD)”

• “I respectfully request you to pay all the outstanding financial rights of the player no later than 15 days following the receipt of the present notice”

6. On 21 July 2019, the player informed Shabab in writing that the amounts mentioned in his letter dated 15 July 2019 were still outstanding.

7. Furthermore, the player argued that he had been excluded from the first team, and that another training program would apply to him. Finally, the player requested Shabab that he be reinstated to the first team “within the […] time limit of 3 days”.

8. On 27 July 2019, the player informed Shabab in writing of the following:

“It is true that after the notice from 21.07.2019 the club provided the player flight tickets for him to join the first team in Germany, but the fact that he is training alone, that he is not allowed to take part to the team's activity, still constitute the just cause for him to terminate the contract. The player was not integrated into the team's activity, as his colleague Gaman Valerica did.

Therefore, I kindly ask you for the last time to take all necessary steps in order to integrate the excluded p layer in the team's program, no later than 3 days following the receipt of the present notice.

Last but not least, I underline that the notice sent on behalf of the player on 15.07.2019 remained unanswered and without any effect until the present date, which is also prejudiciable for the player.”

9. On 28 July 2019, Shabab informed the player in writing that he has “over weight since last season” and that he “need to lose weight”.

10. On 1 August 2019, the player informed Shabab in writing that he had joined the team on training camp, but that he was still training alone. Furthermore, the player stated that he did not undergo any fitness tests “until the present day”, and that he did not receive “a dedicated and personalized training” from Shabab, but only a “separate training”.

11. In addition, in aforementioned letter of 1 August 2019, the player further held the following:

“The statement that the full transfer of the player's salaries was executed is not true. The amount of 9.728 USD is still due by the club and it represents the re t- of the salary for August 2018, according to Item 4.4 of the contract.

I respectfully ask you to integrate the player in the team's program (with or without a dedicated and personalized training) no later than 03.08.2010 at the latest.

In the absence of such integration, the player will be forced to unilaterally terminate the employment contract, with all the consequences from such termination.”

12. On 4 August 2019, the player unilaterally terminated the employment contract in writing. In the termination letter, the player inter alia held the following:

“Following my requests from 21, 27, 29 and 31 July 2019 the player was not integrated in the team so his exclusion clearly proves the intention of the club.

Considering all of the above, the player is convinced that the contractual relationship cannot continue, having in mind the abusive conduct of the Club in its execution.”

13. On 5 August 2019, Shabab informed the player in writing that his outstanding salaries “had been paid and we are in the process of reintegrating you into the first team […] following your completion of the club’s pre-season fitness training”. As per Shabab, there is “no basis whatsoever under the FIFA Regulations to justify this termination […] If you return to the training camp within 24 hours, we will take that as a sign of your commitment to the team and we will put this issue behind us. If you do not return within 24 hours we will commence a claim against you before FIFA”.

14. On the same date, the player replied to Shabab, maintaining that on 3 August 2019, he was told to find a new club. Moreover, the player held that he “was not integrated in the first team”.

15. Finally, the player requested that Shabab comply with the following within 48 hours:

a. The player is reintegrated in the team immediately

b. The club provides flight ticket for his return

c. The player will not be requested anymore to find a new club

d. The player is granted the right to immediately terminate the contract if a new exclusion occurs in the future, without any prior warning or other procedure to follow;

e. A written transaction is concluded between the parties if the conditions are accepted by the club

16. On 16 August 2019, the player signed an employment contract with the Romanian club, Astra Giurgiu (hereinafter “Astra” or “the Second Respondent”) valid until 15 June 2021 in accordance with which the player was entitled to receive EUR 15,000 per month as well as EUR 60,000 for each season.

17. On 19 August 2019, according to the information contained in the Transfer Matching System (“TMS”), Astra entered a transfer instruction to engage the player permanently.

18. On 20 August 2019, the Saudi Arabian Football Federation rejected the International Transfer Certificate (“ITC”) request.

19. In a letter dated 20 August 2019, Shabab explained that the player’s exclusion was “a decision taken by the head coach and it should be noted that the administration does not interfere with such decisions”. Moreover, Shabab referred to its letter of 5 August 2019 and stated that the player failed to return within 24 hours. With regards to the player’s demands, Shabab held that they were “unacceptable”.

20. On 30 August 2019, FIFA allowed for the provisional registration of the player with Astra.

21. By letter dated 4 October 2019, Shabab informed the player and Astra inter alia of the following:

We write to require that Mr Budescu or his new club Astra Giurgiu ("Astra") pays US$ 3,000,000 to the bank account set out below within seven days of the date of this letter, failing which we are instructed to file a claim against Mr Budescu and Astra before the FIFA Dispute Resolution Chamber ("FIFADRC"). This figure is claimed and required entirely without prejudice to the quantum that the Club may claim in proceedings before the FIFA DRC and/or the Court of Arbitration for Sport ("CAS"). It is clear that your correspondence and Mr Budescu’s actions display a pre-meditated attempt to secure the advance payment of US$ 800,000 and then avoid the obligations set out in the Employment Contract, namely to remain with the Club until 2021 . Such behaviour is outrageous and will be subject to sanction by the FIFA DRC.

With the benefit of hindsight, the Club can now understand why Mr Budescu returned from the end of season vacation period having shown no regard for his physical fitness and with no desire to improve. It appears that he had already taken the decision that he would seek to terminate his contract as soon as he was paid his advance of US$ 800,000. In fact, he left just five days after he was paid his contractual advance.

22. On 2 March 2020, Shabab lodged a claim against the player and Astra for breach of contract, requesting FIFA to:

a. order that the First and Second Respondents be jointly and severally liable to the Claimant for the sum of USD 3,333,000;

b. impose a six-month restriction on the First Respondent from playing in official matches;

c. ban the Second Respondent from registering new players for two entire and consecutive registration periods.

23. In its claim, Shabab firstly argued that the player was a “most valuable asset and he was one of the highest paid players at” Shabab.

24. In continuation, Shabab explained that on 8 July 2019, the player failed to attend a training session. According to Shabab, the player was subsequently sanctioned for this absence on 2 August 2019.

25. Moreover, as per the Claimants submissions, during the training session held on 10 July 2019, it was concluded that the player’s body mass index was above acceptable.

26. In this context, Shabab stated that on 11 July 2019, the player requested a “different regime from the other players due to his tiredness”.

27. According to Shabab, on 16 July 2019, the player was informed that he would not travel with the team to training camp, but that he would stay behind in order for him to regain his fitness. However, “rather than work hard to regain his fitness, the [player] instructed his lawyer to send a letter to [Shabab] immediately demanding that the [player] be bought a ticket to join the first team”.

28. In this context, Shabab held that it complied with the payer’s wishes and that it allowed the player to join the team on training camp. However, according to Shabab, the player’s “level of fitness did not permit him to join the first team activities”.

29. Shabab further highlighted that on 30 July 2019, it “settled its liability to the [player] in full by way of a bank transfer of USD 875,000”. According to Shabab, on that same day it also informed the player that his fitness fell short, but that he “remained of great importance to the team”.

30. With regard to the player’s termination notice dated 4 August 2019, Shabab argued that all of the player’s demands had already been met, requesting him to return within 24 hours.

31. However, as per Shabab, instead of returning, by means of his letter dated 5 August 2019, the player listed a set of demands that were unacceptable for Shabab. In particular, the player’s request that he reserves “the right to immediately terminate the contract if a new exclusion occurs in the future, without any prior warnings or other procedure to follow” was interpreted by Shabab as “aggressive and antagonistic”.

32. Shabab argued that it complied with its contractual obligations towards the player, and that he was reintegrated to the first team on 4 August 2019.

33. Given the above, Shabab concluded that the player had had unilaterally terminated the contract without just cause, and requested compensation in the amount of USD 3,333,000. Shabab firstly underlined that the residual value of the Contract on the date of termination amounted to USD 2,600,000. Furthermore, Shabab argued that USD 800,000 paid to the player on 30 July 2019 is to be considered an “advance payment for his services for the 2019/20 season. The [player] left [Shabab] in August 2019 after one month’s service and is therefore required to return 91.7% of that sum – USD 733,600”.

34. Having said, Shabab maintained that both the player and Astra are jointly liable to compensate Shabab in the amount of USD 3,333,000.

35. As per Shabab, given that the player terminated the contract within the protected period, sporting sanctions should be imposed upon him.

36. Furthermore, Shabab argued that Astra induced the player to terminate the contract, given that the player “joined Astra just two days after his termination”. Consequently, as per Shabab, sporting sanctions are to be imposed on Astra.

37. In his reply, the Player lodged a counterclaim against Shabab. According to the player, during the season 2018/2019, the management of Shabab changed and a new head coach was appointed on July 2019, meaning that the both the management and the coach that had brought in the player left.

38. The player emphasised that he used to be the number 10 of Shabab and “midfielder- attacking midfield” but ended having to give up his number and position in favour of a new player that were brought in by the new coach/management.

39. The player explained that coming back for the new season on 9 July 2019, he was first requested to train by himself for 2 days, then only allowed to do warm ups with the first team but not participate in any technical training with the rest of the first team.

40. As per the player, the decision for him not to train with the first team was taken by the management and not the coach.

41. Following this, some delays of payment were noticed by the player, hence his default notice of 15 July 2019.

42. On 19 July 2019, the player was informed that he was not selected to go to the training camp in Germany.

43. On this point, the player explained that “the players enlisted on the short list, meaning those who were left to train in Riyadh, are not the regular players of the first team. They are players for whom no track record can be found on the player profile websites, players who appear to have ended their contractual relations with the club, a number of players who were part of an external schooling program, players without any seniority at the club’s team, etc.”.

44. The player held that following his default notices of 15 and 21 July 2019, he and another Romanian player were asked to move to another accommodation “improper for performance sport” in a location allegedly placed under Shabab’s stadium stand. The player argued that it was a retaliation from his default letters. The player explained that he and the other player refused to move in the new accommodation.

45. According to the player, he and the other player, had to train 2 days in a row under 45 degree heat, and then the club provided them with plane tickets to join the rest of the team in Germany for the training camp.

46. According to the player upon their arrival in Germany, the other Romanian player was allowed to train with the first team but not him. He had to train alone with one coach and on the grass in front of the hotel while the rest of the team was on a regular football pitch.

47. The player held that during the entire time in Germany, he was not allowed to train with the team, having individual sessions.

48. According to the player, in reply to his letter of 1 August 2019, he received two decisions (hereinafter: “the decisions”) from the club:

a. On 1 August 2019: salary deduction of 5 % from the July 2019’s salary due to “irregularities related to attendance […] and the absence in morning and evening exercises” on 7 July 2019;

b. On 2 August 2019: salary deduction of 10% of the July 2019’s salary due to “irregularities related to attendance […] and the absence in morning and evening exercises” on 8 July 2019.

49. Both decisions provide that “this decision is subject to appeal in accordance with chapter 5 of the list of violations and penalties.”

50. According to the player, he was sanctioned for training he missed prior to joining the club in July, while he came back using plane tickets provided by the club.

51. On 2 August 2019, the player explained that he had a meeting with the President and the Football General Director of Shabab. According to the player, the management of Shabab made it clear that they were no longer interested in the player, and implied that it was better for him to find another club.

52. Following this, the player unilaterally terminated the contract on 4 August 2019 and left the club that afternoon.

53. According to the player he terminated the contract with just cause as Shabab “breached the contractual terms and excluded, de facto, the player from the team training”. In particular, the player held that since his return to the team in July 2019, he was not allowed to train with them, and was initially not even invited to the training camp.

54. The player held that the arguments of Shabab, supposedly his poor physical shape, were not objectives, and could not substantiated. The player underlined that the alleged poor physical condition of his was “never proved”.

55. The player held that in reply to his default letters, he got sanctioned with the decisions. He explained that contrary to what was asserted by Shabab, he never received the SAFF Disciplinary Regulations and pointed out that Shabab did not provide conclusive evidence in this respect.

56. The player pointed out that training alone can only be accepted should the training be personalised in order to make the player achieve certain objectives and that Shabab “did not prove that the measures it took against the player were determined by the wish for the recovery of the player or by the restoration of his physical shape”. Nor that any recovery plan was created toward that purpose.

57. The player argued that preventing him from having complete pre-season trainings when preseason’s training is a “decisive phase for the preparation of the new season”. Further, the player underlined that FIFA DRC on several occasions deemed that by not letting a player train with the team, the club was showing its lack of interest in the services of the player.

58. On his alleged lack of fitness, the player held that a fitness level can only be assessed with 2 cumulative conditions: the existence of a specific test performed on the player upon his return from holidays and the existence of a previous comparison tests, performed during similar period for it to be relevant for comparison purpose. The player underlined that this was not done.

59. In his counterclaim, the player requested the total amount of USD 2,031,538 plus 5% interest, corresponding to:

a. USD 9,728 as outstanding remuneration corresponding to the worked part of the salary of August 2018;

b. USD 2,021,810 as compensation for breach of the contract, corresponding to the residual part of the contract in the amount of USD 2,525,000 minus his mitigation from the new contract with Astra.

60. In reply to the claim of Shabab, Astra underlined that it had no relationship with the contractual dispute between Shabab and the player, that it was a third party to this dispute.

61. Astra explained that it had no influence in the termination of the contract by the player. It explained that prior to 4 August 2019, Astra had no contact with the player.

62. In any event, Astra considered that the player had just cause to unilaterally terminate the contract with Shabab.

63. Astra deemed that the majority of the evidence provided by Shabab corresponds to internal documentation which could have been fabricated by Shabab and should therefore not be taken into account. Astra particularly pointed out that the disciplinary sanctions imposed on the player, the decisions, were abusive. Astra was of the opinion that Shabab should have provided evidence on the exact required return date for all its players and also it should have provided evidence that it had informed the player of said return date.

64. Astra further pointed out that according to art. 4 of the contract, it was the obligation of Shabab to provide flight tickets to the player, meaning that the flight tickets used by the player to return to Shabab had been bought by Shabab.

65. On the physical condition of the player, Astra deemed that using only the BMI of the player was not sufficient to deem the player as being overweighed, as the BMI does not take into account the difference between an athlete and a non-athlete. Indeed, Astra underlined that the BMI only take into account the person’s height and his weight. Astra pointed out that BMI could not be used to assess the athletic capacities of a person, or his football talent.

66. On the joint liability of Astra, it explained that the presumption that the new club induced the player into the alleged breach (art. 17 par. 2 of the FIFA Regulations on the Status of Players, “RSTP”), can be overturned, and held that all the information it had on the contractual situation of the player came from newspaper articles, especially since Romanian press published multiple articles on the player as from 25 July 2019.

67. Astra does not deny that the player trained with them prior to signing the new contract, but pointed out that those training happened following the termination by the player and underlined that the player used to be under contract with Astra hence the easiness in the relationship between Astra and the player.

68. Astra explained that prior to signing with the player on 16 August 2019, between the date of termination and the signature with Astra, the player was allegedly negotiating with several clubs.

69. Ultimately, Astra requested the reimbursement of its legal fees, in the amount of EUR 15,000.

70. In response to the counterclaim, Shabab considered that on 4 August 2019, the player had been reintegrated to the first team.

71. Shabab considered that the pictures and videos provided by the player to substantiate his allegation that he was training alone should not be taken into account as those are subjective evidence. In particular, and on the question of whether the player had been reintegrated in the first team’s training of 4 August 2019, Shabab argued that the player was training with the team but left training without authorisation, and requested one of the assistant coach to help him with some individual drills “in order to record material for his planned legal action”.

72. Shabab held that the player had been given a rehabilitation program that was supposed to finish on 2 August 2019 and that upon the completion of this rehabilitation program he was supposed to reintegrate the 1st team.

73. Furthermore, even if the player had not been reintegrated in the first team, Shabab considered that he would still have had no ground under art. 14 par.2 of the FIFA RSTP to unilaterally terminate the contract. Indeed, Shabab considered that the reply and counterclaim of the player was contrived to create a scenario to support his case for a termination with just cause. Especially, the scenario of the player Guanca being hired as a replacement for the player is not true. Shabab held that it had to hire Mr Guanca because of the lack of fitness of the player and historic knee injury. But Shabab denied that it had hired Mr Guanca with the sole purpose of relying solely upon him, as competition for a spot in a team is the attribute of big clubs.

74. Shabab held that the player was put in a rehabilitation program due to the following factors:

a. He requested it himself and knew it was a temporary measure;

b. The recurring knee injury of the player;

c. The head coach and doctor’s assessments.

75. Shabab claimed that from 9 to 21 July 2019 the player had been training with the 1st team and also participated in some one-to-one rehabilitation. Shabab held that the default notice of 15 July 2019 of the player only mentioned outstanding amounts and not the alleged exclusion from the first team, which was only mentioned in his second default letter of 21 July 2019.

76. Shabab denied having requested the player to change accommodation and deemed that the evidence provided by the player (i.e. pictures and videos) are undated and should not be taken into account.

77. On the allegation that the player had a training on the grass in front of the hotel in Germany and not in the football pitch, Shabab acknowledged that but held that the player was not the only one who had training there. Shabab held that this place was convenient due to its location close to the hotel.

78. With regard to the meeting of 2 August 2019, Shabab held that the recording is not clear enough and that “the president does not generally conduct business in English and does not have a firm grasp of the language”.

79. According to Shabab, the player was not deregistered and training alone, at the alleged player’s request, for a minor period, is not enough for the termination to be with just cause.

80. Finally, Shabab slightly amended its claim by requesting FIFA to:

a. reject the Defences of the First and Second Respondents;

b. reject tine Second Respondent's claim for reimbursement of legal fees;

c. reject the First Respondent's Counterclaim;

d. declare that the First Respondent terminated his contract on 4 August without just cause;

e. declare that the First Respondent's breach of contract was induced by the Second Respondent;

f. order that the First and Second Respondents be jointly and severally liable to the Claimant for the sum of USD 3,334,522

g. impose a six-month restriction on the First Respondent from playing in official matches;

h. ban the Second Respondent from registering new players for three entire and consecutive registration periods

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

81. First of all, the DRC analysed whether it was competent to deal with the case at hand. In this respect, it referred to 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”), as well as to the fact that the present matter was submitted to FIFA on 2 March 2020 and decided on 13 November 2020. Therefore, the DRC concluded that the June 2020 edition of the Procedural Rules is applicable to the matter at hand.

82. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 2 in combination with art. 22 a) and b) of the Regulations on the Status and Transfer of Players, the DRC is competent to hear disputes between clubs and players in relation to the maintenance of contractual stability and with an international dimension.

83. In continuation, the DRC analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present 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, and considering that the claim was lodged on 2 March 2020, the March 2020 edition of the aforementioned regulations (hereinafter: “the Regulations”) is applicable to the matter at hand.

84. The Chamber subsequently recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

85. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

86. With the above having been established, the DRC entered into the substance of the matter. In doing so, the Chamber started to acknowledge the facts of the case as well as the documents contained in the file. However, the 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.

87. First, the Chamber deemed necessary to clarify that the core of the dispute laid on to whether the player had just cause to terminate the contract, based on the fact that he was training alone for a certain period of time. Furthermore, the Chamber confirmed that it had to decide whether this individual training was an appropriate measure according to the circumstances at hand.

88. Based on the foregoing, the Chamber assessed the evidence on file in order to confirm the length of the time during which the player trained individually. Apparently, the first time the player requested to be reintegrated into the first team was on his second default notice, dated 21 July 2019, and therefore the Chamber concluded that there is no evidence on record that demonstrates that the player had not been included with the first team before such date.

89. In light of the above, the Chamber came to the conclusion that the player appeared to have trained alone for a period of 13 days. The Chamber did not find this time-lapse to be prima facie excessive or disproportionate, even more so bearing in mind that there was an exchange of correspondence between the Claimant and the First Respondent during that period.

90. Furthermore, the Chamber acknowledged that the Claimant was, to a certain extent, reactive to the communications sent by the player. As a matter of fact, it is undisputed that the Club provided the player with flight tickets in order for him to join the rest of the first team squad in the pre-season camp in Germany.

91. Moreover, the Chamber acknowledged that whilst the evidence on file is not entirely conclusive, it appears to be a legitimate reason for the Claimant to instruct and individual training regime to the player.

92. Based on the evidence available, it appeared that the Claimant had a legitimate reason to send the player to train individually as a temporary measure in order for the player to regain his fitness.

93. Additionally, the Chamber took note of the fact that, on 1 August 2019, the player requested to be reintegrated into the first team and only 3 days later (i.e. 4 August 2019), the player sent the termination letter to the Claimant. The Chamber deemed the termination to be rather premature, without giving the Claimant a reasonable time to respond to his demands as it had responded to the previous requests made by the player.

94. In relation to the arguments raised by the First Respondent regarding the alleged lack of interest on behalf of the Claimant to retain his services and the alleged indications to find a new club, the Chamber deemed that the First Respondent has not met the burden of proof required, explicitly stipulated in arts. 12 para. 3 of the Procedural Rules, to demonstrate such allegation.

95. Lastly, the Chamber acknowledged that the Claimant had settled the outstanding remuneration to the player, including an advance payment of USD 800,000, and therefore, the Chamber considered difficult to concur with the First Respondent on the alleged lack of interest on his services.

96. Based on the foregoing and bearing in mind the ultima ratio nature of the unilateral termination, the DRC deemed that the First Respondent did not had just cause to terminate the Contract.

97. Once the above had been established and based on art. 17 of the Regulations, the DRC had to establish the compensation to be paid by the party in breach.

98. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract payable by the club to the player in the case at stake. In doing so, the members of the Chamber first 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.

99. In application of the relevant provision, the Chamber 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 Chamber established that no such compensation clause was included in the contract at the basis of the matter at stake.

100. As a consequence, the Chamber determined that the amount of compensation payable by the player to the club had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The DRC recalled that 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. In this regard, the DRC emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

101. In order to estimate the amount of compensation due to the Claimant in the present case, the Chamber first turned its attention to the remuneration and other benefits due to the player under the existing contract, which criterion was considered to be essential.

102. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows to take into account the circumstances in each particular case. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the remuneration paid to the player under the terms of the Contract

103. Based on the evidence on file, the Chamber noted that shortly before the breach of contract without just cause, the Claimant had paid the amount of USD 800,000 to the First Respondent. This amount consisted on an advance payment for the whole season 2019/2020, as per item 4 of the Contract.

104. Considering that the First Respondent terminated the Contract on the 4 August 2019, only a month and four days into the new season, the Chamber considered reasonable for the Claimant to be reintegrated in the percentage of the advance of costs paid to the player for the time in which he was ultimately not registered and therefore did not provide his services to the Claimant.

105. The Chamber calculated that the amount of USD 800,000 divided by 12 months, equals to USD 66,666 per month. This amount has to be multiplied by the months not performed by the player (i.e. 11 months), which equals to USD 733,333.

106. Considering that the Claimant admits to owe to the player the amount of USD 9,728, the Chamber decided that this amount should be considered also in the calculation of compensation.

107. Therefore, the Chamber confirmed that the First Respondent shall pay to the Claimant the amount of USD 723,605.

108. Once this had been established, the Chamber turned to art. 17 para. 2 RSTP, which states that “If a professional is required to pay compensation, the professional and his new club shall be jointly and severally liable for its payment.”

109. Whilst the argument submitted by the Second Respondent, regarding the possibility of this presumption to be overturned, is theoretically correct, the Chamber found no reason to divert from this presumption and confirmed that in strict application of this provision, the Second Respondent shall be jointly and severally liable to pay the aforementioned compensation.

110. In regards to the legal expenses, the Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Chamber decided to reject the claim for legal expenses.

111. Furthermore, 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.

112. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the First and on the Second Respondent. 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. Against a player, a restriction on playing in official matches up until the due amounts are paid. The overall maximum duration of the restriction, including possible sporting sanctions, shall be of six months on playing in official matches.

113. Therefore, bearing in mind the above, the DRC decided that, in the event that the First Respondent does not pay the compensation due within 45 days, from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details, he shall be restricted from playing in official matches up until the due amount are paid, with a maximum restriction of six months in accordance with art. 24bis par. 2 and 4 of the Regulations.

114. Additionally, if the Second Respondent does not pay the amount due within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details, 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.

115. Finally, the Chamber recalled that the above-mentioned sanctions 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.

116. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged are rejected.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, Al Shabab FC, is partially accepted.

2. The counterclaim of the Respondent 1/Counter-Claimant, Constantin Valentin Budescu, is rejected.

3. The Respondent 1/Counter-Claimant has to pay to the Claimant/Counter-Respondent, the following amount:

- USD 723,605 as compensation for breach of contract without just cause.

4. The Respondent 2, AFC Astra Giurgiu, is jointly and severally liable for the payment of the aforementioned amount.

5. Any further claims of the Claimant/Counter-Respondent are rejected.

6. The Claimant/Counter-Respondent is directed to immediately and directly inform the Respondent 1/Counter-Claimant and the Respondent 2 of the relevant bank account to which the Respondent 1/Counter-Claimant and the Respondent 2 must pay the due amount.

7. The Respondent 1/Counter-Claimant and the Respondent 2 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).

8. In the event that the amount due, plus interest as established above is not paid by the Respondent 1/Counter-Claimant and the Respondent 2 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 1/Counter-Claimant shall be restricted on playing in official matches up until the due amount is paid and for the maximum duration of six months. 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 this decision is still not paid by the end of the restriction on playing in official matches for six months, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

3.

The Respondent 2 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).

4.

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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777