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 4 June 2020

Decision of the

Dispute Resolution Chamber

passed on 4 June 2020,

in the following composition:

Clifford Hendel (USA/France), Deputy Chairman

Elvis Chetty (Seychelles), member

Tomislav Kasalo (Croatia), member

On the matter between the player,

Stefan Radovanovic, Serbia,

represented by Sindikat Profesionalnih Fudbalera Nezavisnost

as Claimant / Counter-Respondent

and the club,

Qrendi FC, Malta

as Respondent / Counter-Claimant

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 1 August 2019, the player, Stefan Radovanovic (hereinafter: the player or Claimant / Counter-Respondent) concluded an employment contract (hereinafter: the contract) with the club, Qrendi FC (hereinafter: the club or Respondent / Counter-Claimant), valid as from the date of signature until “the last competitive match of season 2019/20”.

2. In accordance with clause 2.1 of the contract, the player was, inter alia, entitled to the following amounts:

“In remuneration for his services the Club shall pay the player a monthly salary of seven hundred eighty euros (EUR 780) net of all taxes at the end of each month. Such remuneration shall be paid by means of cheque”.

3. On 21 January 2020, the club informed the player that he is “suspended from attending training sessions and football matches until further notice. This decision has been taken after the Qrendi FC Committee deems that you have not abided by the contract agreement signed on the 1st of August 2019”.

4. On 27 January 2020, the player sent a letter to the club requesting to “immediately withdraw [its] decision dated 21 January 2020 […] and enable the [player] to train with team”.

5. In the same letter, the player requested the payment of EUR 1,560, corresponding to his monthly salaries for November and December 2019, granting a 15 days’ deadline to remedy the default.

6. On 12 February 2020, the player sent a termination letter to the club invoking that “due to unfulfilled financial obligations with a delay of more than three (3) months you have breached the Contract of Employment unilaterally and without just cause, also you banned me to train with team without just cause”.

7. On 13 February 2020, the player lodged a claim in front of FIFA requesting the following:

“To uphold that the Contract of Employment was unilaterally breached without just cause due persistent non-compliance with the financial and training terms by the Respondent […] and to order that the Respondent to pay as follows:

Due amounts before termination (resp. 12 February 2020)

a. Season 2019/2020 Salary for November 2019 EUR 780 with 5% interest from 1 December 2019

b. Season 2019/2020 Salary for December 2019 EUR 780 with 5% interest from 1 January 2020

c. Season 2019/2020 Salary for January 2020 EUR 780 with 5% interest from 1 February 2020

Due amounts (12 February 2019 Sub – Total 1 EUR 2,340

Compensation after termination (from 17/06/19 – 15/12/19)

d. Season 2019/2020 Salary for February 2020 EUR 780

e. Season 2019/2020 Salary for March 2020 EUR 780

f. Season 2019/2020 Salary for April 2020 /24 days) EUR 624

Compensation Sub- Total 2 EUR 2,184 with 5% interest from 12 February 2020

TOTAL (Sub – Total 1 & 2) = EUR 4,524”

8. In his claim, the player deemed the he “fulfilled his duty out from the contract and did neither violate against any provisions in the ‘Contract of Employment’ nor against any provision in good faith and loyalty”.

9. In its reply, the club rejected the player’s claim and deemed that it was the player that breached the contract.

10. In this respect, the club acknowledged that the salary for November and December 2019 was not paid yet, but the club deemed that the player “abandoned his employment” in “January 2020”, as he decided to leave the country.

11. In view of the above, the club lodged a counterclaim against the player for breach of contract and argued that the player terminated the contract without just cause.

12. In this regard, the club requested the payment of EUR 3,900, corresponding to the monthly salaries from December 2019 until April 2020.

13. In spite of being invited to do so, the player did not reply to the counterclaim.

14. The player confirmed that he remained unemployed after the termination on 12 February 2020.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) 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 13 February 2020. Consequently, the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

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 June 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Serbian player and a Maltese club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition June 2020), and considering that the claim was lodged on 13 February 2020, the January 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. 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. In particular, the Chamber recalled that, in accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the members of the Chamber acknowledged that, on 1 August 2019, the player and the club had concluded an employment contract valid as from the date of its signature until “the last competitive match of season 2019/20”, pursuant to which the club undertook to pay to the player the remuneration, as established in point I.2 above.

7. Furthermore, the members of the DRC took note of the fact that, on 27 January 2020, the player had put the club in default of payment of the amount of EUR 1,560, corresponding to the salaries for November and December 2019 setting a 15 days’ time limit in order to remedy the default.

8. In addition, the Chamber took also observed that in the same letter, the player requested to be immediately reinstated within the team and to withdraw the suspension of which he was informed on 21 January 2020.

9. Moreover, the DRC took note that, according to the player, he had just cause to unilaterally terminate the employment contract on 12 February 2020, since the club failed to reply to his default notice sent on 27 January 2020 and since no payment had been made by the latter in this respect.

10. Subsequently, the members of the DRC took note that the club, for its part, acknowledged to have not made the payments of the player’s salary for November and December 2019.

11. In continuation, the Chamber observed that the club claimed that the player terminated the contract without just cause and that the player decided to leave the country in “January 2020”.

12. In light of the foregoing, the DRC considered that the underlying issue in this dispute, considering the parties’ position, was to determine as to whether the player had just cause to terminate the employment contract and to determine the consequences thereof.

13. In this context, the Chamber deemed it appropriate to clarify that, in accordance with art. 12 par. 3 of the Procedural Rules, in the present case, the Respondent bore the burden of proving either the payment of the Claimant’s salaries or that it had a valid reason for not having done so.

14. In this respect, the Chamber noted that the club did not provide any evidence for its arguments, in particular, in regards to the player leaving the country in January 2020. In fact, based on the documents on file, the Chamber observed that the player requested in his letter sent on 27 January 2020 to be reinstated within the team with immediate effect.

15. With the above in mind, the Chamber highlighted that on the basis of the parties’ submissions, it could be noted that the club did not contest that, by the time the player addressed it with his default letter on 27 January 2020, at least the amount of EUR 1,560 were outstanding. Moreover the members of the DRC observed that it also remained undisputed that the player provided the club with 15 days to remedy its default and that the club never reacted to the default letter.

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

17. Consequently, on account of the above and considering that, when the player terminated the contract, at least two monthly salaries were due despite the club having been provided with a deadline of 15 days to remedy the default, the DRC concluded that, on 12 February 2020, the conditions set out in art. 14bis of the Regulations were fulfilled, and consequently the player had just cause to unilaterally terminate the employment contract.

18. As a result, the Chamber decided that the club is to be held liable for the early termination of the employment contract with just cause by the player. The Chamber subsequently also decided that the counterclaim lodged by the club against the player should be rejected.

19. Having established that the club is to be held liable for the early termination of the employment contract, the DRC focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC 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 relevant employment contract.

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

21. Consequently, and bearing in mind that the player terminated his employment contract on 12 February 2020, the Chamber decided that the club is liable to pay to the player outstanding remuneration in the amount of EUR 2,340, pertaining to his monthly salaries of November and December 2019 and January 2020.

22. In addition, taking into consideration the specific request of the player on the point, the Chamber decided to award the latter interest at the rate of 5% p.a. on the total amount of EUR 2,340 as follows:

a. 5% interest p.a. on the amount of EUR 780, as from 1 December 2019;

b. 5% interest p.a. on the amount of EUR 780, as from 1 January 2020;

c. 5% interest p.a. on the amount of EUR 780, as from 1 February 2020.

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

24. In continuation, the DRC focused his attention on the calculation of the amount of compensation for breach of contract due to the Claimant by the Respondent in the case at stake. In doing so, the DRC 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.

25. In application of the relevant provision, the Chamber 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 Chamber observed that the employment contract does not contain any such clause.

26. 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 parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its termination and concluded that the player would have been entitled to receive EUR 2,184 as remuneration had the employment contract been executed until its regular expiry date, i.e. 24 April 2020. Consequently, the Chamber concluded that the amount of EUR 2,184 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

27. In continuation, the Chamber assessed 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 able to reduce his loss of income. In this respect, the DRC deemed it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted from the residual value of the contract that was terminated early (the ”Mitigated Compensation”).

28. In respect of the above, the members of the Chamber noted, that according to the player and the information contained in TMS, the player had not signed a new employment contract after 12 February 2020 and therefore had not been able to mitigate his damages. Therefore, no further deductions should be made to the amount of EUR 2,184, in accordance with art. 17 par. 1 lit. i) of the Regulations.

29. Consequently, on account of all the above-mentioned considerations, the Chamber decided that the must pay the amount of EUR 2,184 as compensation for breach of contract to the player, which is considered by the Chamber to be a fair and reasonable amount.

30. In addition, taking into consideration the player’s claim, the Chamber decided to award the player interest at the rate of 5% p.a. as of the date of the claim, i.e. 13 February 2020, until the date of effective payment.

31. Therefore, the DRC decided to partially accept the player’s claim and concluded its deliberations by rejecting any further claim of the player.

32. Furthermore, taking into account the consideration under number II./3. 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.

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

34. Therefore, bearing in mind the above, the DRC 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.

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

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Stefan Radovanovic, is partially accepted.

2. The counterclaim of the Respondent / Counter-Claimant, Qrendi FC, is rejected.

3. The Respondent / Counter-Claimant hast to pay to the Claimant / Counter-Respondent, within 45 days as from the date of notification of this decision, outstanding remuneration in the amount of EUR 2,340 plus 5% interest p.a. until the date of effective payment as follows:

a. on the amount of EUR 780, as from 1 December 2019;

b. on the amount of EUR 780, as from 1 January 2020;

c. on the amount of EUR 780, as from 1 February 2020.

4. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, within 45 days as from the date of notification of this decision, compensation for breach of contract in the amount of EUR 2,184, plus 5% interest p.a. as from 13 February 2020 until the date of effective payment.

5. Any further claim lodged by the Claimant / Counter-Respondent is rejected.

6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant, 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 / Counter-Claimant must pay the amounts plus interest mentioned under points 3. and 4. above.

7. The Respondent / Counter-Claimant shall provide evidence of payment of the due amount in accordance with points 3. and 4. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amount due in accordance with points 3. and 4. above are not paid by the Respondent / Counter-Claimant within 45 days as from the notification by the Claimant / Counter-Respondent of the relevant bank details to the Respondent / Counter-Claimant, the Respondent / Counter-Claimant 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).

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

10. In the event that the amount due in accordance with points 3. and 4. above 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.

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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 relating to the motivated decision (legal remedy):

According to art. 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 (CAS)

Avenue de Beaumont 2, CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer