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 30 October 2019
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 October 2019,
in the following composition:
Geoff Thompson (England), Chairman
Roy Vermeer (The Netherlands ) , Member
Daan de Jong (The Netherlands ), Member
on the claim presented by the player,
Milan Mitic, Serbia,
represented by Mr Emilian Hulubei
as Claimant / Counter-Respondent
against the club,
Gaz Metan Medias , Romania,
represented by Ms Anca Alina Iordanescu
as Respondent / Counter-Claimant
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 30 June 2017, the Serbian player, Milan Mitic (hereinafter: player or the
Claimant / Counter-Respondent), and the Romanian club, Gaz Metan Medias
(hereinafter: club or the Respondent / Counter-Claimant) concluded an
employment contract (hereinafter: the contract), valid as of 1 July 2017 until 30
June 2018.
2. In accordance with art. 5 of the contract, the player was, inter alia, entitled to a
monthly net salary in the amount of EUR 3,500, “which will be paid on the 10th
of the following month for the previous month”.
3. Furthermore, the contract stipulated that “the football activity developed as a
professional player, which includes the participation to the training sessions
(trainings) and the effective participation to the football games played by the
first Club team”.
4. In addition, the parties agreed in art. 4 of the contract that “the working time
duration is at the most 2 hrs per day, 10 hrs per week. The working program may
be changed under the terms of the Internal Regulation Policy”.
5. Moreover, art. 6 of the contract stipulated that “the player commits himself to
[…] work on any club’s lower level team if the player has been injured but more
than 10 days while in suspension because of the cards received, leads an
unsportsmanlike life or Where the coach requests this and the player agrees”.
6. Finally, art. 12 of the contract stipulated the following: “The present Convention
will be governed and interpreted according to the Law no. 69/2000 of Physical
Education and Sports, to OUG no. 205/2005, the Romanian Football Federation
regulations. The disputes resulting from the execution of the present Convention,
are to be solved in the following order:
- Amiably;
- By bringing the dispute to the justice institutions of the Romanian Football
Federation and the Professional Football League.”
7. On 28 February 2018, the player was notified about the decision by the club
about the change of his training schedule. In particular, the player was informed
that as from 1 March 2018 until 31 March 2018 the club decided on a
“Individualized Physical Training” for the player, consisting of 2 training sessions
per day from Monday to Saturday.
8. On 5 March 2018, the player sent a letter, stating that “if this situation will not
be remedied within 5 days of the communication […] we will be entitled to
appreciate that this attitude is equivalent to the unilateral termination without
just cause”.
9. On 6 March 2018, the club replied by informing the player that ”the club’s
management decision was not in the way that player Milan Mitic will no longer
participate in matches played by the first team but only in the sense that he
needs individualized physical training”. In addition, the club stated that the
player was absent from training on 1, 2, 3 and 5 March 2018.
10. On 7 March 2018, the parties attended a “Meeting of the Managing Board”
regarding “the absence without leave” from training.
11. On the same date, the club informed the player in writing that the “player is
sanctioned with disciplinary sanction under the form of written warning” due to
the player’s “absence from the training sessions”.
12. 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”.
13. On 13 March 2018, the player lodged a claim for breach of contract without just
cause and requested the payment of the following:
“- to force the Club to pay to the Player the amount of 3.500 Euro net […] plus
5% interest p.a. as of 10th of March and until the date of effective payment, as
salary for February 2018;
- To force the Club to pay to the Player the amount of 14.000 Euro net […] plus
5% interest p.a. as of 13th of March […] for the remaining period March-June
2018.”
14. In his claim, the player deemed that “the Club unilaterally and without just cause
denounced the contract between the parties, due to the fact the Club didn’t
comply to our request and the Player has been further isolated from the First
Team and his presence at the training sessions was constantly denied”.
15. According to the player, he got injured on 26 November 2017 “at the game
disputed by the Club against FC Voluntari”.
16. In this regard, the player pointed out that he returned from injury on 8 January
2018 and participated in a game on 24 February 2018 against FC Botosani.
17. However, pursuant to the player, as from 28 February 2018, “the player was
forbidden to enter the stadium to attend the training”.
18. The player claimed that on 28 February 2018, he requested in writing to be
allowed to attend the training sessions of the team and to be informed of the
training schedule.
19. Furthermore, the player claimed to have sent another letter on 1 March 2018,
informing the club that he tried to attend the team training that day, “but he
was not allowed to train with the team, being informed that these were the
indications received from the management of the Club”. Consequently, he
requested “to take the necessary measures and to allow the player to train with
the 1st team.
20. In its reply to the claim, the club dismissed the player’s claim and filed a
counterclaim against the player for breach of contract. The club requested that
the player shall pay “damages in amount of 7000 euro, corresponding to the
salaries paid by the Club for January and February 2018”.
21. Further, the club contested the competence of FIFA and underlined that art. 12 of
the contract refers to the National Dispute Resolution Chamber (CNSL) of the
Romanian Football Federation (hereinafter: Romanian NDRC), as well as to
Romanian law.
22. The club deemed that the “Head Coach of the senior football team, submitted a
report, by which he complained about the performance of the Player and
requested for an individualized training program to be followed for a limited
period”.
23. In this regard the club pointed out that the coach “as the only person having the
responsibility to evaluate a player’s performance and in view of the particularity
of the case (a player recovering from an injury) decided that it is necessary for the
player to train individually, but only for a limited period of time and with
reasonable instructions regarding training”.
24. In addition, the club stressed that the player received his salary in full, “including
the amounts for February 2018”.
25. Consequently, the club deemed that the player terminated the contract
unilaterally without just cause since (a.) the club paid the player received his
salary (b.) the individual training schedule was temporary (c.) the player was
provided with adequate “training facilities / equipment” and (d.) there is “an
express clause in the agreement” (cf. point I.5. above).
26. In his replica and reply to the counterclaim, the player rejected the club’s
counterclaim and pointed out that “the facts” were presented “in a misleading
manner” by the club.
27. In this regard, the player highlighted, that he returned to training on 8 January
2018 and that he was “almost 2 months with the first team, with no complain
from the coach”.
28. Moreover, the player rejected the competence of the Romanian NDRC, due to the
fact that “the Club is in insolvency proceedings and, as a consequence, the RFF
Committee declines its jurisdiction”.
29. Furthermore, in regards to the coach’s decision to have a “personalized training
program” he deemed that the “program should be done at the same time and in
the same premises as the first team was doing the daily trainings, not isolated
from the rest of the team mates as a punishment”.
30. Moreover, the player stressed that “the measures taken by the club and its
conduct represent discrimination of the player at the workplace by different
treatment applied to the football player compared to the rest of the team by
setting different conditions for the conduct of the football activity”.
31. Finally, the player pointed out that “it is not accidental sanction the player with a
‘warning’, taking into account the provisions of the RFF Disciplinary Regulation
which specifies that this sanction is the only one that should not be ratified.
Applying a more drastic sanction would have brought the dispute to the RFF
Discipline and Ethics Commission that would have censor this measure taken
without any legal basis”.
32. In its duplica, the club argued that the player failed to mention “the winter break
that took place between December 17, 2017 and February 3, 2018.”
33. Regarding the player’s rejection of the competence of the Romanian NDRC, the
club argued that “the Claimant fails to inform the DRC of the legal basis on
which he bases his affirmation that ‘RFF NDRC cannot judge such matters due to
the fact that the Club is in insolvency proceedings’, simply for the fact that such
legal basis do not exist”.
34. Furthermore, the club stressed that “the Club did not made its defence on
insolvency grounds, nor was it ever invoked or mentioned in any ways that it is in
a reorganization procedure.”
35. Furthermore, the club stressed that the player “was an important player for the
team”, but that he needed “individualized training” and that he was not
“punished in any way”.
36. In addition, the club deemed that the notifications dated 28 February 2018 and 1
March 2018 were “conveniently sent on the phone number of the Club […] and
not on the fax number”.
37. Moreover, the club stated that it “must once again argue that the Player was not
deprived of the opportunity to work but had full access to the adequate facilities
for a football player. Moreover, the Club paid the Player’s salary in due course”.
38. Therefore, the club deemed that “an individualized training program not
constitute a violation of the Player’s rights or a breach of the Contract and
conversely, it was the Player who breached the Contract without just cause
through his absence from the Club”.
39. Consequently, the club repeated its arguments and requests submitted in the
counterclaim.
40. After having been requested to do so, the player informed FIFA that he remained
unemployed since the termination of the contract.
II. Cons iderations 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 13
March 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 shall adjudicate on employment-related
disputes between a player and a club of an international dimension.
3. As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves a Serbian player
and a Romanian club regarding an employment-related dispute.
4. However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause 12 of the contract,
alleging that the matter should be referred to the Romanian NDRC.
5. On the other hand, the Chamber noted that the Claimant insisted on the
competence of the FIFA DRC to adjudicate on the claim lodged by him against
the Respondent.
6. Taking into account all the above, the Chamber emphasized that in accordance
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players it is
competent to deal with a matter such as the one at hand, unless an independent
arbitration tribunal, guaranteeing fair proceedings and respecting the principle
of equal representation of players and clubs, has been established at national
level within the framework of the association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the
FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the
Chamber referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
7. In relation to the above, the Chamber also deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another organ
than the DRC is competent to settle an employment-related dispute between a
club and a player of an international dimension, is that the jurisdiction of the
relevant national arbitration tribunal or national court derives from a clear
reference in the employment contract.
8. Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
contained a clear jurisdiction clause.
9. Finally, art. 12 of the contract stipulated the following: “The present Convention
will be governed and interpreted according to the Law no. 69/2000 of Physical
Education and Sports, to OUG no. 205/2005, the Romanian Football Federation
regulations. The disputes resulting from the execution of the present Convention,
are to be solved in the following order:
- Amiably;
- By bringing the dispute to the justice institutions of the Romanian Football
Federation and the Professional Football League.”
10. Having examined the relevant provision, the Chamber came to the unanimous
conclusion that clause 12 of the contract does not constitute a clear jurisdiction
clause in favour of one specific court or arbitration tribunal in Romania, since it
only appears to be a generic reference to “the justice institutions of the
Romanian Football Federation”. In particular, the Chamber highlighted that it
remains unclear from the aforementioned stipulation whether said bodies are
part either of the Romanian Football Association and/or the [Romanian]
Professional Football League.
11. On account of all the above, the Chamber established that the aforementioned
objection towards the competence of FIFA to deal with the present matter has to
be rejected, and that the Dispute Resolution Chamber is competent, on the basis
of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to
consider the present matter as to the substance.
12. The competence having been established, the Chamber decided thereafter to
analyse which edition of the Regulations on the Status and Transfer of Players
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 Players, and considering that the present matter was
submitted to FIFA on 13 March 2018, the January 2018 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
13. Having established the foregoing, and entering into the substance of the matter,
the DRC 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 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.
14. In this respect, the Chamber acknowledged that, on 30 June 2017, the player and
the club had signed an employment contract, valid as of 1 July 2017 until 30 June
2018.
15. 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 13 March 2018 since he was excluded from the club’s training and not
provided with adequate training. In this context, the player requested payment
of his salary of February 2018 as well as compensation for breach of contract.
16. Furthermore, the DRC acknowledged that the club rejected such argumentation
and held that the player received his salary, the individual training schedule was
only temporary and that the player was provided with adequate “training
facilities / equipment”. Therefore, the club lodged a counterclaim against the
player, requesting payment of compensation for breach of contract.
17. 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 13 March 2018 with or without just cause and to decide on the consequences
thereof.
18. 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.
19. In this framework, the Chamber analysed the player’s termination of the contract
on 13 March 2018, in which he maintained that club failed to “meet its
obligations” the club “has unilaterally terminated” the contract “without just
cause”. Said letter must be put in the context of the events as of 28 February
2018, when the player was informed about his individual training. It remained
undisputed that the club ordered the player to train individually, apart from the
team’s training as of 1 March 2018.
20. Furthermore, the Chamber noted that the player contacted the club on 1 March
2018 and 5 March 2018 in order to request access to the team’s training, but to
no avail.
21. Moreover, the DRC observed that the club did not contest the player’s exclusion
from the first team’s training, but held that such measure was only temporary
and that it adequate “training facilities / equipment”. In this regard, the
members of the Chamber deemed that the player was excluded from any team’s
training and that the training schedule of the player did not include training
session with a ball. Therefore, the Chamber concluded that the club failed to
explain how the player would possibly benefit from such training.
22. Furthermore, DRC recalled that the contract stipulated that “the football activity
developed as a professional player, which includes the participation to the
training sessions (trainings) and the effective participation to the football games
played by the first Club team”.
23. 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.
24. In view of the aforementioned facts, the DRC was of the opinion that the player
had founded reasons to believe that the club was no longer interested in his
services.
25. On account of the above-mentioned considerations, since the club undisputedly
excluded the player from any team’s training and failed to provide evidence that
the player received adequate training possibilities as of 1 March 2018, taking into
account the player’s complaints to the club in this regard, the Chamber concluded
that the player had just cause to terminate the contract on 13 March 2018.
26. 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.
27. In this context, the Chamber took note of the player’s claim regarding the salary
of February 2018. Based on the documents on file, the DRC established that said
amount was remitted by the club to the player. Therefore, the Chamber rejected
said part of the claim of the player in light of the fact that no further
outstanding remuneration was due until the termination of the contract.
28. 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 13 March 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.
29. 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.
30. 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.
31. 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 14,000 as remuneration had the employment contract
been executed until its regular expiry date, i.e. 30 June 2018.
32. Consequently, the Chamber concluded that the amount of EUR 14,000 serves as
the basis for the final determination of the amount of compensation for breach
of contract in the case at hand.
33. 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.
34. In respect of the above, the Chamber recalled that the player had not found new
employment during the relevant period of time.
35. Consequently, on account of the above-mentioned considerations, the DRC
decided that the club must pay the amount of EUR 14,000 as compensation for
breach of contract to the player, which is considered by the Chamber to be a fair
and reasonable amount.
36. 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. 13 March 2018, until the date of effective payment.
37. The DRC decided that the claim of the player is partially accepted and concluded
its deliberations by rejecting any further claim of the Claimant. Furthermore, the
members of the Chamber rejected the club’s counterclaim.
III. Decis ion of the Dispute Resolution Chamber
1. The claim of the Claimant / Counter-Respondent, Milan Mitic, is admissible.
2. The claim of the Claimant / Counter-Respondent is partially accepted.
3. The claim of the Respondent / Counter-Claimant, Gaz Metan Medias, is rejected.
4. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-
Respondent within 30 days as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 14’000, plus 5% interest
p.a. as from 13 March 2018.
5. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-
Claimant immediately and directly of the account number to which the remittance
is to be made and to notify the Dispute Resolution Chamber of every payment
received.
6. In the event that the amount due to the Claimant / Counter-Respondent in
accordance with the above-mentioned number 4 is 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.
7. Any further claim lodged by the Claimant / Counter-Respondent is rejected.
*****
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