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 29 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 29 January 2020,

in the following composition:

Geoff Thompson (England), Chairman

Daan de Jong (The Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay), member

on the matter between the player,

Filip Zderic, Croatia

represented by Mr Hrvoje Raic

as Claimant / Counter-Respondent

and the club,

FK Kukësi, Albania

represented by Mr Arsen Selmanaj

as Respondent / Counter-Claimant

and the club,

NK Zadar, Croatia

as intervening party

regarding an employment-related dispute

arisen between the parties

I. Facts of the case

1. On 23 January 2018, the Croatian player, Filip Zderic (hereinafter: player or the Claimant / Counter-Respondent) and the Albanian FK Kukësi (hereinafter: club or the Respondent / Counter-Claimant) signed an employment contract (hereinafter: the contract) valid “for 2 Football seasons”.

2. According to the information contained in the Transfer Matching System (TMS), the sporting season in Albania runs from 1 July until 30 June.

3. According to art. 2 of the contract, the player was entitled to a monthly salary of EUR 4,000 net.

4. Art. 16 of the contract provides the following:

“iv) the club has the right to terminate the contract at any time without any financial, legal or moral obligations towards the player in case that the last has violated the club regulation.

v)if the player break the contract unilaterally before the term, he shall pay to the club a penalty from 100.000 to 150.000 Euro, within 30 (thirty) days. On 13 March 2018, the player informed the club that due to the fact that the club failed to “meet its obligations” the club “has unilaterally terminated” the contract “without just cause”.

5. On 4 October 2018, the player lodged a claim in front of FIFA against the club for outstanding remuneration and compensation for breach of contract, requesting the following amounts:

- EUR 8,000 as outstanding remuneration, i.e. two instalments of EUR 4,000 that fell due on 10 June 2018 and 1 July 2018 respectively, plus 5% interest p.a. as from the due date;

- EUR 48,000 as compensation for breach of contract, plus 5% interest p.a. as from the due date;

- legal expenses.

6. In his clam, the player explained that the contract was valid until 30 June 2019.

7. According to the player, on 14 June 2018, the club insisted that the player signs a termination agreement by means of which he would waive his right to any remuneration based on the employment contract. The player explained that, following his refusal to sign the document, he was banned from training with the senior squad and was not included to join the pre-season training camp in Slovenia.

8. On 18 June 2018, the player sent a letter to the club, requesting his reintegration in the first squad within the next 10 days.

9. According to the player, on 25 June 2018, the club delivered a letter dated 23 June 2018 to him, imposing a fine of one monthly salary as he did not show up for the training camp in Slovenia. Furthermore, the letter indicates that the player was absent on 15 June 2018 and that he must comply with the training process within the next 2 days.

10. In reply to the aforementioned letter, the player sent a letter to the club on 26 June 2018 denying the allegations of the club and arguing that, according to a list published on the club’s Facebook page, he was not part of the squad traveling to Slovenia. Furthermore, the player reiterated his request to be reintegrated to the squad and further requested air tickets to join the squad in Slovenia as well as outstanding remuneration in the amount of EUR 4,000 by no later than 29 June 2018.

11. According to the player, the club replied in writing on 28 June 2018, repeating the content of its previous letter and “attending the player to come and join the club”.

12. On 30 June 2018, the player unilaterally terminated the contract in writing, invoking the exclusion from the squad for the training camp as well as the non-payment of his salary in the amount of EUR 4,000 and a bonus of EUR 250 that matured on 10 June 2018.

13. The player explained that, on 3 July 2018, the club replied to his notice reiterating why the player was fined and stating that the termination of the contract was without just cause. Furthermore, the player stated that the club paid the bonus of EUR 250 to him on 12 July 2018.

14. In its reply to the claim, the club first stated that the contract was valid until 31 May 2019. Furthermore, it denied having asked the player to sign a termination agreement and explained that the player did not show up on 15 June 2018 in order to travel with the team to Slovenia.

15. In this respect, the club explained that it notified a restaurant on 8 June 2018 which players would consume their lunch from 11 June until and including 15 June 2018, including the name of the player. According to information obtained from the restaurant on 20 June 2018, the player was not present for lunch on the aforementioned days.

16. In continuation, the club explained that the list with the names of the players travelling to Slovenia was uploaded on its Facebook page on 15 June 2018, including the name of the player. In this respect, the club stated that its fans have opened several other Facebook pages which are not controlled by the club.

17. Furthermore, the club referred to the fine of one monthly salary imposed on the player, but stated that it paid the player the minimum salary of LEK 240,000, in addition to the bonus of EUR 250 on 12 July 2018, in accordance with Albanian law.

18. All in all, FK Kukësi maintained that the player did not have a just cause to terminate the contract and argued that it invited him several times to come to the club, but that he did not respond. As a result of the player’s unlawful termination of the contract, the club filed a counterclaim against the player, requesting compensation for breach of contract in the amount of EUR 100,000 based on art. 16 of the contract, as well as legal fees.

19. In his replica and reply to the counterclaim, the player rejected the allegations of the club and stated that he trained normally with the club until 15 June 2018 when he was excluded from the team for the training camp.

20. Furthermore, the player argued that the club fabricated the disciplinary case in bad faith. In this respect, the player maintained that he did not sign any internal regulations, that he was not informed about any disciplinary procedure against him and that he was not heard during said procedure. Moreover, the player argued that the salary for May 2018 which was not paid due to the fine imposed on him on 25 June 2018 had already matured on 10 June 2018.

21. In continuation, the player referred to art. 14 RSTP and argued that the club acted in an abusive manner. Consequently, the player rejected the counterclaim and reiterated his request for relief.

22. On 1 February 2019, the player and the Croatian club, FK Zadar, signed an employment contract valid as from 1 February 2019 until 31 May 2019. According to said contract, the player was entitled to a monthly salary of HRK 6,788.05 gross (approx. EUR 915 on 1 February 2019).

23. After having been invited by FIFA to comment on the present affair, Zadar stated that “we do not have anything else to add, expect that we support all the facts that Filip’s lawyer has been introduced regarding this case”.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed 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 4 October 2018. Consequently, the 2018 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 and 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber (edition January 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 Croatian player, an Albanian club and a Croatian club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition January 2020), and considering that the present claim was lodged on 18 October 2018, the June 2018 edition of said 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 Annexe 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 Transfer Matching System (TMS).

5. In this respect, the Chamber acknowledged that, on 23 January 2018, the player and the club had signed an employment contract, valid “for 2 Football seasons”, i.e. until 30 June 2019, including a monthly salary of EUR 4,000.

6. In continuation, the members of the Chamber noted that the player lodged a claim against the club maintaining having had just cause to terminate the contract on 30 June 2018 since he was excluded from the club’s training and the club failed to remit one salary in the amount of EUR 4,000 and a bonus of EUR 250. In this context, the player requested payment of his outstanding dues as well as compensation for breach of contract.

7. Furthermore, the DRC acknowledged that the club rejected such argumentation and held that the player was absent from training without a valid reason as of 15 June 2018. In this regard, the club held that it imposed a fine on the player corresponding to one monthly salary. Therefore, the club deemed that the player terminated the contract without just cause and lodged a counterclaim against the player, requesting payment of compensation for breach of contract.

8. The Chamber further noted that the player rejected said counterclaim and reiterated his position. Further, the player pointed out that he was not informed about any disciplinary procedure against him and that he was not heard during said procedure.

9. Furthermore, the DRC took note that NK Zadar endorsed the player’s position.

10. On account of the above, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the player terminated the employment contract on 30 June 2018 with or without just cause and to decide on the consequences thereof.

11. In this context, 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.

12. In this framework, the Chamber analysed the player’s termination of the contract on 13 March 2018, in which he inter alia maintained that club excluded him from training as of 15 June 2018, when the team travelled to its training camp in Slovenia.

13. In this regard, the player put the club in default and requested to be reinstated. The Chamber noted that the club’s first reaction, which is on file, dated from 25 June 2018, which was in reply to the player’s letter from 18 June 2018. In other words, the club did not pro-actively put the player in default for his alleged absence as of 15 June.

14. Furthermore, the DRC noted that not written invitation to the player for the training camp in question is on file, but only contradicting documents submitted by both parties.

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

16. In light of the documentation on file, the Chamber stressed that the club failed to convince the members that it had actually invited the player for the training camp in question.

17. Subsequently, the Chamber concurred that the fine imposed on the player by the club shall be disregarded, since the fine in the matter at hand was only a reaction to the player’s default notice and due to the fact that the club failed to proof that the player’s right to be heard was respected in the disciplinary process at hand.

18. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the club’s argument in this connection.

19. On account of the above-mentioned considerations, since the club excluded the player from training and failed remit the player’s salary of May 2018 plus a bonus of EUR 250, taking into account the player’s default notices to the club in this regard, the Chamber concluded that the player had just cause to terminate the contract on 30 June 2018.

20. Subsequently, prior to establishing the consequences of the termination of the employment contract with just cause by the player in accordance with art. 17 of the Regulations, the Chamber held that it, in general, had to address the issue of unpaid remuneration at the moment when the contract was terminated.

21. In this context, the Chamber took note of the player’s claim regarding the salary of May 2018 and June 2018. In accordance with the above-mentioned considerations and in compliance with the general principle of pacta sunt servanda, the Chamber decided that the club has to pay outstanding remuneration in the amount of EUR 8,000 to the player.

22. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the aforementioned amount as of the respective due dates.

23. Having established the above, the Chamber turned its attention to the question of the consequences of the termination of the contract with just cause by the player on 30 June 2018. In continuation and having established the above, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract.

24. In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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 established that no such compensation clause was included in the contract at the basis of the matter at stake.

26. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other 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 Claimant under the terms of the employment contract as from its termination and concluded that the Claimant would have been entitled to receive EUR 48,000 as remuneration had the employment contract been executed until its regular expiry date, i.e. 30 June 2019.

27. Consequently, the Chamber concluded that the amount of EUR 48,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

28. In continuation, the Chamber assessed as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract(s) shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

29. In respect of the above, the Chamber recalled that the player had signed a new employment contract with the Croatian club, NK Zadar, valid as of 1 February 2019 until 31 May 2019, including a total salary of EUR 3,660, which shall be deducted, leading to a mitigated compensation in the amount of EUR 44,340.

30. Consequently, on account of the above-mentioned considerations, the DRC decided that the club must pay the amount of EUR 44,340 as compensation for breach of contract to the player, which is considered by the Chamber to be a fair and reasonable amount.

31. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the aforementioned amount of compensation as of the date on which the claim was lodged, i.e. 4 October 2018, until the date of effective payment.

32. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

33. Finally, the DRC decided that the claim of the player is partially accepted and concluded its deliberations by rejecting any further claim of the Claimant. Moreover, the members of the Chamber rejected the club’s counterclaim.

34. 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.

35. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods.

36. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

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

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Filip Zderic, is partially accepted.

2. The Respondent / Counter-Claimant, FK Kukësi, has to pay the Claimant / Counter-Respondent outstanding remuneration in the amount of EUR 8,000, plus 5% interest p.a. as follows:

a) as of 11 June 2018 on the amount of EUR 4,000 until the date of effective payment;

b) as of 2 July 2018 on the amount of EUR 4,000 until the date of effective payment.

3. The Respondent / Counter-Claimant, has to pay the Claimant / Counter-Respondent the amount of compensation for breach of contract in the amount of EUR 44,340, plus 5% interest p.a. as from 4 October 2018 until the date of effective payment.

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

5. The counterclaim of the Respondent / Counter-Claimant 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 mentioned under points 2. and 3. above.

7. The Respondent / Counter-Claimant 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).

8. In the event that the amounts due plus interest in accordance with points 2. and 3. 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 amount is paid.

10. In the event that the aforementioned amounts plus interest are not paid by the Respondent / Counter-Claimant within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

*****

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 Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer