F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 12 June 2020

Decision of the

DRC Judge

passed in Zurich, Switzerland, on 12 June 2020,

regarding an employment-related dispute concerning the player MIHAJLO JELIC

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

MIHAJLO JELIC, Montenegro

RESPONDENT:

TARXIEN RAINBOWS FC, Malta

I. FACTS OF THE CASE

1. On 2 September 2019, the Montenegrin player, Mihajlo Jelic (hereinafter: “the player” or “the Claimant”) and the Maltese club, Tarxien Rainbows Football Club (hereinafter: “the club” or “the Respondent”) signed an employment contract (hereinafter: “the contract”) valid for one football season.

2. Clause 1.1 of the contract provided: “The contract shall be valid for 1 (one) football season and shall come into effect on the 2/9/2019 and terminate naturally at the end of the last competitive match for season 2019/2020”.

3. Clause 1.2 of the contract provided that the player was entitled to receive a monthly salary amounting to EUR 1,000 by cheque. Said clause also provided: “However, the Club and the player agree that he shall be paid for his services by the Club throughout the competitive football season, and therefore the first day which shall be calculated for salary is to be the first day in which the player starts training with the Club in a particular season and the last day shall be the day in which the Club plays the last competitive match of the MFA football season”.

4. According to TMS the sporting season in Malta runs from 2 September 2019 until 8 June 2020.

5. On 16 January 2020, the Claimant sent a letter to the Respondent, requesting the latter the outstanding remuneration related to the months of October, November and December 2019, for a total amount of EUR 3,000 granting 15 days to remedy its default. Moreover, the Claimant warned the Respondent that in case of lack of payment of the requested amounts, the contract would be terminated.

6. On 3 February 2020, the Claimant terminated the contract with just cause due to the persistent contractual breaches made by the Respondent, i.e. payment of three monthly salaries related to the months of November 2019, December 2019 and January 2020 pursuant to art. 14bis of the RSTP.

7. On 14 February 2020 , the Claimant lodged the present claim before FIFA for termination of the contract on 3 February 2020 with just cause requesting from the Respondent the following:

a) EUR 3,000 as monthly salaries related to the months of November 2019, December 2019 and January 2020 plus 5% interest p.a. until the date of effective payment;

b) EUR 4,267 as damage compensation plus 5% interest p.a. until the date of effective payment.

8. Moreover, the Claimant requested FIFA to impose sporting sanctions on the Respondent pursuant to art. 17.4 or art. 24bis of the RSTP.

9. The Claimant maintained that since the month of October 2019 and despite his numerous verbal requests, the Respondent did not comply with its financial obligations in accordance with the contract.

10. According to the Claimant, after sending the default notice on 16 January 2020, the Respondent paid the month of October 2019.

11. The Claimant argued that the clause 2.1 of the contract is not valid which states that he is not entitled to any remuneration for the period between the Respondent´s last official game i.e. “24-26th April” and the expiration of the contract on 8 June 2020. The Claimant provided copy of a fixture published in the website www.maltafootball.com as evidence of the date of the Respondent´s last official match.

12. Moreover, the Claimant enclosed to his claim copy of art. 128 of “The Statute of the Malta Football Association” (MFA), which states that: “The football season commences on the ninth (9th) day in one year and ends on the eight (8th) day of June of the following year”.

13. In sum, the Claimant maintained that the compensation should be calculated until the expiration of the contract, i.e. end of the football season 2019/2020 and not until the day of the Respondent´s last official game.

14. In its reply to the claim, the Respondent considered the contract valid until the end of the last competitive match of the season 2019/2020.

15. Furthermore, the Respondent affirmed that it is willing to pay the Claimant’s remaining salaries until the last competitive match of season 2019/2020, as agreed by the parties in the contract (cf. art. 2.1 of the contract), in two instalments.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER (DRC) judge

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: “the DRC judge”) analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 14 February 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 DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition June 2020) he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Montenegrin player and a Maltese club.

3. Furthermore, the DRC judge analyzed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition June 2020), and considering that the present claim was lodged on 14 February 2020, the January 2020 edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. Subsequently, the DRC judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC judge emphasized 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. To start with, the DRC judge acknowledged that the parties to the dispute had signed a valid employment contract on 2 September 2019 valid until “the end of the last competitive match for season 2019/2020”.

6. The DRC judge further noted that according to the Claimant as from the month of October 2019, the Respondent failed to pay his salaries on time, and despite having sent the default notice to the Respondent, the latter did not honour its contractual obligations in due course.

7. What is more, the DRC judge acknowledged that on 14 February 2020, the Claimant lodged the present claim against the Respondent, claiming that on 3 February 2020, he terminated the contract with just cause (cf. art. 14bis of the Regulations) and consequently the Respondent should be held liable to pay compensation for breach of contract.

8. The DRC judge underlined that it remained uncontested that at the moment of the termination of the contract (i.e. 3 February 2020), the Respondent owed the Claimant three monthly salaries corresponding to November 2019, December 2019 and January 2020.

9. In continuation, taking into account the consideration under point II.3 above, the DRC judge referred to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that, in case a club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player will be deemed to have had a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted it a deadline of at least 15 days to fully comply with its financial obligations.

10. Consequently, on account of the above and considering that, when the player terminated the contract, at least two monthly salaries were due despite the fact that the player provided the club with 15 days to remedy the default via the notices sent on 16 January 2020, the DRC judge concluded that, on 3 February 2020, the player had a just cause to unilaterally terminate the employment contract as per art. 14bis of the Regulations.

11. As a result, the DRC judge decided that the club is to be held liable for the early termination of the employment contract with just cause by the player.

12. Having established that the club is to be held liable for the early termination of the contract, the DRC judge focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge established that the player is entitled to receive from the club compensation for breach of contract, in addition to any outstanding payments on the basis of the contract.

13. Along those lines, the DRC judge first referred to the player’s request regarding the outstanding remuneration at the time of the termination of the contract. In this respect, the DRC judge concurred that the club must fulfil its obligations as per the contract in accordance with the general legal principle of “pacta sunt servanda”.

14. At this stage, the DRC judge reiterated that the Respondent did not contest owing the requested monthly salaries to the Claimant.

15. Consequently, and bearing in mind that the player terminated the contract on 3 February 2020, the DRC judge decided that the club is liable to pay to the player outstanding remuneration in the amount of EUR 3,000, consisting of three monthly salaries from November 2019 until January 2020 (EUR 1,000 each).

16. In addition, taking into consideration the specific request of the player, the DRC judge decided to award the latter interest at the rate of 5% p.a. on the aforementioned amounts as from the relevant due dates until the date of effective payment.

17. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the player is entitled to receive compensation for breach of contract from the club.

18. In continuation, the DRC judge focused its attention on the calculation of the amount of compensation for breach of contract due to the player by the club in the case at stake. In doing so, the DRC judge 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.

19. In application of the relevant provision, the DRC judge held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge observed that the contract does not contain any such clause.

20. As a consequence, the members of the DRC judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the parameters set out in art. 17 par. 1 of the Regulations.

21. Consequently, the DRC judge concluded that the amount of EUR 1,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

22. At this stage, the DRC judge pointed out that the parties held opposing positions with regard to the date of expiry of the contract.

23. On the one hand, the DRC judge acknowledged that the Claimant maintained that the contract was valid until 8 June 2020, i.e. end of the football season 2019/2020 in Malta. On the other hand, the DRC judge observed that the Respondent argued that the contract was valid until the last official game of the season 2019/2020 (cf. clause 2.1 of the contract). The DRC judge underlined that the Respondent did not provide any evidence with regard to the specific date of its last official match in the relevant season.

24. The DRC judge focused his attention to the wording of clause 2.1 of the contract and concluded that the relevant provision clearly established that the contract was valid until the Respondent´s last official match of the season 2019/2020.

25. In this respect, the DRC Judge pointed out that according to the evidence provided by the Claimant, the Respondent’s last official match during the season 2019/2020 took place on 26 April 2020. In this context, the DRC judge reiterated that the Respondent failed to present evidence about the exact date of its last official match during the relevant season.

26. In light of all the above, the DRC judge concluded that 26 April 2020 should be considered the expiry date of the contract.

27. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the contract as from its termination and concluded that the player would have been entitled to receive EUR 1,000 as remuneration had the employment contract been executed until its regular expiry date, i.e. 26 April 2020.

28. In continuation, the DRC judge verified as to whether the Claimant 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.

29. In respect of the above, the DRC judge noted, that the player informed not having signed a new employment contract after 3 February 2020 and therefore had not been able to mitigate his damages. Therefore, no further deductions should be made to the amount of EUR 3,000, in accordance with art. 17 par. 1 lit. i) of the Regulations.

30. At this point, the DRC judge referred to the wording of art. 17 par. 1 lit ii) of the Regulations as from its second sentence, which stipulates that “subject to the early termination of the contract being due to overdue payables, in addition to the Mitigated Compensation, the player shall be entitled to an amount corresponding to three monthly salaries (the “Additional Compensation”). In case of egregious circumstances, the Additional Compensation may be increased up to a maximum of six monthly salaries. The overall compensation may never exceed the rest value of the prematurely terminated contract”.

31. Bearing in mind the foregoing, the DRC judge noted that that additional compensation, added to the aforementioned compensation, would exceed the residual amount of the prematurely terminated contract.

32. Consequently, on account of the above-mentioned considerations, the DRC judge decided to partially accept the Claimant’s claim and held that the Respondent must pay the amount of EUR 3,000 as compensation for breach of contract to the Claimant, which is considered by the DRC judge to be a fair and reasonable amount.

33. In addition, taking into account the Claimant´s request and the well-established jurisprudence of the Dispute Resolution Chamber in this respect, the DRC judge decided that the Respondent shall pay 5% interest p.a. on the amount of EUR 3,000 as from date of claim, i.e. 14 February 2020 until the date of effective payment.

34. Furthermore, taking into account the consideration under point II./3. above, the DRC judge 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.

35. In this regard, the DRC judge pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

36. Therefore, bearing in mind the above, the DRC judge 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.

37. Finally, the DRC judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

38. The DRC judge concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER (DRC) judge

1. The claim of the Claimant, Mihajlo Jelic, is partially accepted.

2. The Respondent, Tarxien Rainbows FC, has to pay to the Claimant outstanding remuneration in the amount of EUR 3,000 plus interest of 5% p.a., calculated as follows:

a. Over the amount of EUR 1,000, as from 1 December 2019 until the date of effective payment;

b. Over the amount of EUR 1,000, as from 1 January 2020 until the date of effective payment;

c. Over the amount of EUR 1,000, as from 1 February 2020 until the date of effective payment.

3. Furthermore, the Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 3,000 plus interest of 5% p.a. as from 14 February 2020 until the date of effective payment.

4. Any further claim of the Claimant is rejected.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due in accordance with points 2. and 3. above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sums are 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of 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).

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