F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – coach disputes / controversie allenatori (2019-2020) – fifa.com – atto non ufficiale – Decision 24 September 2019

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 24 September 2019,

by

José Luis Andrade (Portugal)

Single Judge of the Players’ Status Committee,

on the claim presented by the coach

Aleksandar Janjic, Serbia

represented by Mr Nenad Curkovic

as “Claimant”

against the Club

FK Borac, Bosnia and Herzegovina,

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 2 February 2016, the Serbian coach Aleksandar Janjic (hereinafter: the Claimant) concluded a “labour agreement to definite time” (hereinafter: the contract) with the Bosnian club FK Borac (hereinafter: the Respondent) (hereinafter jointly referred to as the parties), valid for a duration of four months, i.e. as from 22 January 2016 until the end of the sporting season 2015-2016.

2. Article 3 of the contract provided a monthly salary in the amount of Bosnian Mark (BAM) 4,890.

3. On 7 March 2016, the parties concluded an “agreement on termination of the labour agreement on definite period of time” (hereinafter: the termination agreement) according to which : “(...) [the contract] stops to be in force and produce legal effectiveness”.

4. Article 3 of the termination agreement stated the following : “[the Respondent] undertakes that on the expenses of the unpaid salaries to pay off [the Claimant] the compensation of 4,890 [BAM] not later than 25.03.2016 and the amount of 4,890 [BAM] not later than 10.04.2016. Apart from these claims [the parties] agreed that there are any other claims of [the Claimant] to [the Respondent]”.

5. On 5 October 2016, the parties as well as the Football Association of Serbia (FAS) (hereinafter: the FAS) concluded an “agreement on regulation of obligations” (hereinafter: the additional agreement).

6. Article 1 of the additional agreement provided that : “(…) [the Respondent] owes [the Claimant] (…) on the account of [the termination agreement] (…) the total amount of 4,890 euros (…)”.

7. Moreover, article 3 of the additional agreement stated that : “[the Respondent] (…) confirms that it makes available to [the FAS] the part of the income that receives from the FC “Vojvodina” and its progress in the qualifications for the European League (…) in order to [FAS] on behalf of [the Respondent] (…) settled all the debts from the Article 1 to [the Claimant] (…)”.

8. For its part, article 4 of the additional agreement stated that FAS would pay the Claimant in the abovementioned amount “(…) within the terms of 3 days from the inflow for the achieved results of the FC “Vojvodina” into UEFA competition of 2016 (…)”.

9. Article 5 provided that the additional agreement would “enter into force on the date of signature by all Contracting Parties”.

10. According to the Claimant, his former legal representative initiated various meetings with the Respondent as from November 2016 until January 2018 in order to solve the situation regarding the Respondent’s debt towards the Claimant.

11. Moreover, the Claimant explained that he did not manage to contact said former legal representative “(…) in order to get some official document which was handed over to the club on that occasion”.

12. With the above in mind, on 2 October 2018, the Claimant lodged a claim against the Respondent in front of FIFA, and claimed, in accordance with the additional agreement concluded between the parties, the following:

i. EUR 4,890 as outstanding monies ;

ii. All costs of the proceedings being imposed to the Respondent.

13. In his claim, the Claimant explained that despite having warned the Respondent several times, it did not perform the payment of the debt.

14. Moreover, the Claimant referred to the specific content of the additional agreement and underlined that the Respondent clearly acknowledged the debt to the Claimant in said agreement and also clearly “promised that a third party will fulfil its obligation in the name and for the account of the club (…)”.

15. Furthermore, the Claimant deemed that “(…) even though [the additional agreement] is not signed by [the FAS], is a document that clearly demonstrates the amount of debt and the obligation to pay it by [the Respondent]”.

16. In its reply to the claim, the Respondent argued that in its opinion, the additional agreement having not been signed by the FAS, said agreement could not enter in force according to its article 5.

17. Moreover, as to the termination agreement, the Respondent stated that the two instalments under said agreement were due “not later than April 10, 2016”.

18. As a consequence, the present claim having been lodged on 2 October 2018, the Respondent deemed that “(….) from the date of maturity of the claims under the [termination agreement], more than two (2) years have passed since the date of the submission of the lawsuit (…)”. In this respect, the Respondent referred to art. 25 par. 5 of the RSTP, i.e. the claim should be considered as time-barred and, as a consequence, it is not admissible.

19. Finally, the Respondent deemed that the Claimant’s claim should be rejected in full.

20. In his replica, the Claimant explained that by concluding the additional agreement, the Respondent “extended time for payment obligation for another 6 months”.

21. Furthermore, in the Claimant’s opinion, he agreed to said agreement as he knew that “(…) by Bosnia and Herzegovina law and by other European laws promise made to the other party that the third party will do or fail to do something, the third is not obliged for, and the promise giver is reputed for the damage that the other party would suffer, because a third party shall not be obliged or to do or fail do a certain action”.

22. As a consequence, the Claimant deemed that the parties clearly stated in the additional agreement their will to postpone the date of the payment of the Respondent’s debt owed to the Claimant, in the amount of EUR 4,890.

23. In this respect, the Claimant underlined that said declaration of will, i.e. the additional agreement, “contains all elements of the contract and signature of [FAS] is not a condition for the validity of obligations between [the parties]”.

24. Finally, the Claimant reiterated his previous request.

25. In its duplica, the Respondent rejected the Claimant’s argumentation referring to the “alleged Law on obligations of Bosnia and Herzegovina” by stating that said legal basis “does not exist at all”, as well as “There are only Laws on Obligations of the Republic of Srpska and the Federatrion of Bosnia and Herzegovina, as two Entities of Bosnia and Herzegovina”.

26. Moreover, the Respondent explained that the present proceedings were to be analyzed by FIFA in accordance with the RSTP and not the aforementioned national law.

27. The Respondent finally rejected once again the Claimant’s request in full and reiterated as well its initial position as expressed previously.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 2 October 2018. Consequently, the Single Judge concluded that the 2018 edition of the Procedural Rules is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 4 in combination with art. 22 lit. c) of the June 2019 edition of the Regulations on the Status and Transfer of Players, he is competent to deal with the matter at stake which concerns an employment-related dispute of an international dimension between a Serbian coach and a Bosnian club.

3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable to the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the June 2019 edition of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged with FIFA on 2 October 2018. In view of the foregoing, the Single Judge concluded that the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand (cf. art. 26 par. 1 and 2 of the Regulations).

4. The applicable regulations having been established, the Single Judge started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Single Judge emphasised that, in the following considerations, he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

5. With the above in mind, the Single Judge acknowledged that, on 2 February 2016, the Claimant and the Respondent concluded a contract valid as from 22 January 2016 until the end of the relevant sporting season in Bosnia, i.e. 31 May 2016, providing a monthly salary amounting to Bosnian Mark (BAM) 4,890. In addition, the Single judge took note that the parties concluded a termination agreement on 7 March 2016 by means of which the Respondent undertook to pay to the Claimant BAM 9,780, payable in two equal installments of BAM 4,890 each, respectively on 25 March 2016 and 10 April 2016. In continuation, the Single Judge underlined that the parties and the FAS allegedly concluded an additional agreement on 5 October 2016, by means of which the Respondent stated that it owed the Claimant EUR 4,890, which would be paid to the Claimant directly by the FAS upon fulfillment of certain conditions.

6. Subsequently, the Single Judge noted that the Claimant argued that despite various alleged warnings to and several meetings with the Respondent as from November 2016 until January 2018, the parties did not manage to solve the situation regarding the unpaid debt by the Respondent and/or on his behalf, in accordance with the content of the additional agreement, subsequent to the termination agreement. In this respect, the Single Judge acknowledged that in the Claimant’s opinion, by doing so, the parties postponed the payment date of the Respondent’s debt.

7. Moreover, the Single Judge considered as well that according to the Claimant, by concluding the additional agreement, the Respondent extended its payment obligation for a period equivalent to six months. Consequently, the Single Judge acknowledged the Claimant’s request to be paid outstanding remuneration amounting to EUR 4,890, as well as all costs of proceeding to be imposed on the Respondent.

8. At this point, the Single Judge took note that, for its part, the Respondent held that the additional agreement had not been signed by the FAS and therefore did not come into force. As a consequence, the Single Judge acknowledged that in the Respondent’s view, the Claimant’s claim should be considered as time-barred since it should be concluded that the claim was based on the termination agreement, i.e. at the date of claim more than two years had elapsed since the due date of the performance contained in the termination agreement.

9. In this context, the Single Judge deemed that prior to enter into the analysis of the substance in the present, the issue to address in the present matter is to determine whether the claim of the Claimant had to be considered as time-barred in accordance with art. 25 par. 5 of the Regulations.

10. In this respect, the Single Judge referred to art. 25 par. 5 of the Regulations which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the Dispute Resolution Chamber shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

11. In view of the above, the Single Judge deemed it fundamental to underline that in order to determine whether it could hear the present matter, it should, first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of the two years as set out under art. 25 par. 5 of the Regulations.

12. In this respect, the Single Judge was eager to emphasise that, the parties signed a termination agreement on 7 March 2016 by means of which the Respondent would pay the Claimant the amount of BAM 9,780, in two equal installments of BAM 4,890 each, respectively on 25 March 2016 and 10 April 2016, the total amount in BAM currency corresponding to approx. EUR 5,000. Moreover, the Single Judge noted that the parties subsequently concluded and signed the additional agreement on 5 October 2016, which is to be considered as a debt recognition amounting to EUR 4,890, owed by the Respondent to the Claimant.

13. This being said, the Single Judge referred to the jurisprudence of the Court of Arbitration for Sport (CAS) by means of which the Sole Arbitrator underlined the following : “In the spirit of good relations that should be encouraged in the world of sport, it must be possible for a limitation period to be interrupted in case the parties have mutually agreed on a new payment schedule, especially if the debtor asked for it and the creditor in bona fide relies on such new payment schedule. Determining otherwise would lead to a situation under which a debtor is free to conclude a new payment schedule with a creditor, but that the debtor would be free to dishonour such payment schedule without any material consequences since the debtor would on the one hand not be able to bring his case to FIFA, and on the other hand would be prevented from bringing his case to national courts since the FIFA Statutes so stipulate. In case a limitation period could not be interrupted, it would even be beneficial for a debtor not to comply with such new payment schedule, as the creditor is lead to believe that the debt will be paid, while in fact the new payment schedule could have been intended to gain time in order for a possible claim of the creditor to be time barred. This would induce debtors to conclude new payment schedules with creditors in bad faith and such situation is to be prevented in the eyes of the Sole Arbitrator” (CAS 2012/A/2919).

14. In this respect, the Single Judge observed that, by concluding the additional agreement on 5 October 2016, signed by both parties, i.e. the debt recognition, the parties intended to establish a new payment schedule on which they could both rely in bona fide. In continuation, the Single judge deemed that it should be admitted for the limitation period, such as the prescription of the termination agreement concluded on 7 March 2016, to be interrupted due to the aforementioned mutually agreed new payment schedule, i.e. the debt recognition.

15. In this respect, the Single Judge deemed that, in accordance with the jurisprudence of CAS, applying article 135 of the Swiss Code of Obligations to the matter at stake, the limitation period of art. 25 par. 5 of the Regulations was interrupted on 5 October 2016 and that, pursuant to article 137(1) of the Swiss Code of Obligations, a new limitation period commenced on the same date. As such, the claim of the Claimant dated 2 October 2018 was filed within the two-year limitation period and as such should be deemed admissible.

16. In continuation, the competence of the Single Judge having been established, and as to the substance, the Single Judge underlined that the amounts owed by the Respondent to the Claimant in both documents, termination agreement and additional agreement, were almost of perfectly equal value despite being in different currencies. Consequently, the Single Judge emphasized that the additional agreement was meant to be a postponement in time of the termination agreement, as argued by the Claimant.

17. On account of the aforementioned considerations, the Single Judge established that the Respondent had consequently failed to pay to the Claimant the amounts as agreed upon the additional agreement / debt recognition, totalling EUR 4,890. Consequently, the Single Judge concluded that, in accordance with the general legal principle of “pacta sunt servanda”, the Respondent is liable to pay the Claimant the amount of EUR 4,890.

18. Finally, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the Players’ Status Committee, including its Single Judge, costs in the maximum amount of CHF 25,000 are levied. The relevant provision further states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings.

19. In respect of the above and taking into account that the claim of the Claimant has been accepted, the Single Judge concluded that the Respondent had to bear the costs of the current proceedings before FIFA. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings was EUR 4,890. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

20. As a conclusion, in view of the circumstances of the present matter, in particular the fact that the Respondent had replied to the claim of the Claimant, the Single Judge determined the costs of the current proceedings amounting to CHF 3,000. Consequently, the Single Judge of the Players’ Status Committee decided that the amount of CHF 3,000 had to be paid by the Respondent in order to cover the costs of the present proceedings.

III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Aleksandar Janjic, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, FK Borac, has to pay to the Claimant within 30 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 4,890.

4. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows:

5.1 The amount of CHF 2,000 to FIFA to the following bank account with reference to case no. 18-02014/sil:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5.2 The amount of CHF 1,000 has to be paid directly to the Claimant.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under point 3. and 5.2. above are to be made and to notify the Players’ Status Committee of every payment received.

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Single Judge of

the Players’ Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer