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 13 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 13 February 2020

by Johan van Gaalen (South Africa), DRC judge,

on the claim presented by the player,

Mr Demi Avdic, Serbia

represented by Mr Drazen Nikolic

as Claimant

against the Respondent,

FC Ballkani, Kosovo

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 15 January 2019, the Serbian player, Demi Avdic (hereinafter: Claimant) and the Kosovar club, FC Ballkani (hereinafter: Respondent) executed an employment contract (hereinafter: contract), valid from the same date until 31 December 2019.

2. In accordance with the contract, the Respondent undertook to pay the Claimant inter alia a monthly remuneration of EUR 1,000, plus a sign-on fee of EUR 4,500.

3. In accordance with article 17 of the contract, “the [Claimant] understood and agreed that if his performance does not satisfy the needs of the [Respondent], and that if this is the case the [Respondent] shall end the contract unilaterally without legal consequence for the [Respondent]”.

4. On 25 January 2019, the Respondent unilaterally terminated the contract by means of written letter addressed to the Claimant. In such letter, the Respondent outlined that the Claimant had allegedly shown a slow development and low technique performance during training sessions and one control match. Furthermore, the aforementioned letter referenced article 17 of the contract.

5. On 8 May 2019, the Claimant sent a “call for debt payment” to the official e-mail of the Respondent which, in turn, denied to owe the Claimant any amount.

6. On 7 June 2019, the Claimant filed a claim before FIFA and requested the Respondent to be ordered to pay him outstanding remuneration of EUR 5,500 as well as EUR 11,000 as compensation for breach of contract.

7. The Claimant is of the opinion that the motivation for the termination by the Respondent is illegal, groundless and unfounded. Furthermore, the Claimant claims that even if it would be possible to terminate the contract because of his alleged bad performance, he had only spent 10 days playing for the Respondent and such period of time is not enough to estimate a player’s qualities. The Claimant is adamant that the contract was terminated without just cause by the Respondent.

8. On 26 July 2019, the FIFA Secretariat invited the Respondent to file its position regarding the Claimant’s claim and instructed it that such position should be filed in a PDF format to the e-mail address psdfifa@fifa.org by no later than 15 August 2019.

9. On 8 August 2019, the Respondent sent an e-mail to the aforementioned electronic address, however not containing a PDF file but a link.

10. On the same date, the FIFA Secretariat replied to the Respondent in English, German, French, and Spanish stating as follows: “Please be informed that all correspondence with the FIFA Players’ Status department must be duly signed & dated and submitted in English, French, Spanish or German in the form of a PDF file to the following email address: psdfifa@fifa.org”.

11. On 15 August 2019, the deadline set on the FIFA’s Secretariat dated 26 July 2019 expired without any further correspondence having been received by the FIFA Secretariat from the Respondent. As such, on 31 January 2020, the FIFA Secretariat closed the investigation on the present matter.

12. On 3 February 2020, the Respondent filed an unsolicited correspondence by means of which it presented its statement of defense, dated 8 August 2019, and further elaborated on the e-mail that had been sent by the Respondent to FIFA on 8 August 2019.

II. Considerations of the DRC Judge

1. First of all, the DRC Judge analysed 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 7 June 2019. 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 January 2020) he 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 Kosovar club.

3. Furthermore, the DRC Judge analysed 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 January 2020), and considering that the present claim was lodged on 7 June 2019, the June 2018 edition of said regulations (hereinafter: 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. In this respect, the DRC Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. Having said this, the DRC Judge acknowledged that the Claimant and the Respondent were bound by an employment contract in accordance with which the Claimant was entitled to receive a sign-on fee of EUR 4,500, and EUR 1,000 in monthly salaries as from 15 January 2019 until 31 December 2019. In this respect, the DRC Judge took note that the sign-on fee would be payable in two instalments, however no due date was contractually established.

6. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent had terminated the contract without just cause, and seeking EUR 5,500 as outstanding remuneration, as well as EUR 11,000 as compensation for breach of contract.

7. Subsequently, the DRC Judge turned to the Respondent’s position, and observed that on 8 August 2019 it sent a link, and not a PDF file, to the e-mail psdfifa@fifa.org. What is more, the DRC Judge observed that on 3 February 2020, i.e. after the deadline set on 15 August 2019 had expired, and after the investigation-phase of the dispute had already been closed, the Respondent filed its defense.

8. In this respect, the DRC Judge recalled that the wording of article 9bis par. 2 of the Procedural Rules clearly establishes that “Submissions transmitted by e-mail shall be addressed to psdfifa@fifa.org. Only communications submitted as PDF files containing the date and a valid and binding signature shall have legal effect”. Additionally, the DRC judge observed that the FIFA Secretariat had – more than once – thoroughly directed the Respondent as to the adequate manner of filing its position.

9. In addition, the DRC Judge highlighted that in accordance with article 16 par. 1 of the Procedural Rules, procedural acts must be conducted within the time limit prescribed by the rules or by the decision-making body.

10. In light of the above, the DRC Judge concluded that the submissions filed by the Respondent did not comply with the requisites enshrined in the Procedural Rules, and therefore decided that the Respondent failed to correctly and timely present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC Judge considered that the Respondent’s submissions cannot be taken into account and that it renounced its right to defence, and thus accepted the allegations of the Claimant.

11. Furthermore, as a consequence of the aforementioned consideration, the DRC Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

12. Having said this, the DRC Judge acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 4,500 as sign-on fee and the amount of EUR 1,000 as a salary.

13. In the absence of a clear contractual clause with respect to the due date of payment, in line with the jurisprudence of the Dispute Resolution Chamber, the DRC Judge considered that the due date of payment of the Claimant’s salary was on the last day of the month during which the Claimant rendered his services.

14. What is more, the DRC Judge observed that on 25 January 2019, i.e. ten days after the contract had been executed, the Respondent unilaterally terminated the contract.

15. Taking into account the documentation presented by the Claimant in support of his petition, the DRC Judge concluded that the Claimant had substantiated his claim with sufficient documentary evidence.

16. In this context, the DRC Judge focussed its attention on the said art. 17 of the contract, which reads as follows: “the [Claimant] understood and agreed that if his performance does not satisfy the needs of the [Respondent], and that if this is the case the [Respondent] shall end the contract unilaterally without legal consequence for the [Respondent]”.

17. In this regard, the DRC Judge took into account that such clause appears to be unilateral and to the benefit of the Respondent only. What is more, the decision on the performance of a player is left fully to the discretion of the Respondent. In the light of such potestative character of the pertinent contractual clause, and in line with the well-establish jurisprudence of the Dispute Resolution Chamber, the DRC Judge decided that art. 17 of the contract is not acceptable.

18. Therefore, the DRC Judge concluded that the said art. 17 of the contract does not constitute a reason that can be validly invoked nor a legal basis to unilaterally terminate the contract. Consequently, the DRC Judge found that the Respondent terminated the contract without just cause.

19. Having established that the Respondent is to be held liable for the early termination of the contract without just cause, the DRC Judge focussed his attention on the consequences of such breach of contract. Taking into consideration art. 17 par. 1 of the Regulations, the DRC Judge decided that the Claimant is entitled to receive from the Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant contract.

20. The DRC Judge then reverted to the Claimant’s financial claim, which includes outstanding remuneration corresponding to the salary of month of January 2019 and the signing-on fee. Consequently, taking into account the documentation remitted by the Claimant to substantiate his claim, i.e. the relevant employment contract, and the fact that the contract was terminated on 25 January 2019, the DRC Judge considered that the Claimant rendered his services for the month of January 2019 and therefore found that the Respondent is liable to pay to the Claimant the amount of EUR 1,000 relating to the salary of that month.

21. In this regard, the DRC Judge emphasized that the EUR 4,500 corresponding to the signing-on fee do not have a due date as per the contract, and therefore should be accounted as compensation for breach of contract, as detailed below.

22. In addition, taking into consideration the Claimant’s claim, the DRC Judge decided to award the Claimant interest at the rate of 5% p.a. as of the day following the day on which each of the salary payments fell due, i.e. the day after the date of termination of the contract.

23. In continuation, the DRC Judge focussed his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, he 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 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.

24. In application of the relevant provision, the DRC Judge held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable by either contractual party in the event of breach of contract, and concluded that no such clause was inserted in the contract.

25. As a consequence, the DRC Judge 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. The DRC Judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

26. The DRC Judge then turned his attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the DRC Judge to be essential. The DRC Judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the deciding body to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

27. Bearing in mind the foregoing, the DRC Judge proceeded with the calculation of the monies payable to the Claimant under the terms of the contract as from its date of termination without just cause by the Respondent, i.e. 25 January 2019, until 31 December 2019, and concluded that the player would have received in total EUR 15,500 as remuneration had the contract been executed until its expiry date. Consequently, the DRC Judge concluded that the amount of EUR 15,500 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 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. According to the constant practice of the DRC Judge, and article 17 par.1 lit. ii) of the Regulations, such remuneration under a new employment contract 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. The DRC Judge recalled that the player did not sign a professional contract during the year of 2019. Accordingly, the DRC Judge concluded that no mitigation shall apply to the case at hand.

30. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the player’s general obligation to mitigate his damage, the DRC Judge decided to partially accept the player’s claim and that the Respondent must pay the amount of EUR 15,500 as compensation for breach of contract in the case at hand.

31. In addition, taking into account the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC Judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of 7 June 2019 until the date of effective payment.

32. Finally, taking into account the consideration under number 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.

33. 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.

34. 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.

35. 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.

III. Decision of the DRC Judge

1. The claim of the Claimant, Demi Avdic, is partially accepted.

2. The Respondent, FC Ballkani, has to pay to the Claimant outstanding remuneration in the amount of EUR 1,000 plus 5% interest p.a. as from 26 January 2019 until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 15,500 plus 5% interest p.a. as from 7 June 2019 until the date of effective payment.

4. Any further claim lodged by 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 amount plus interest 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 plus interest 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 amount is 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 amount is paid.

9. In the event that the aforementioned sum plus interest is 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 the Code of sports-related arbitration. 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.

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 DRC Judge:

Emilio García Silvero

Chief Legal & Compliance Officer