DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 15 gennaio 2020 • Stagione sportiva: 2019/2020

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 15 January 2020

Decision of the Dispute Resolution Chamber (DRC) judge

passed on 15 January 2020,

Omar Ongaro (Italy),

on the claim presented by the player,

Milos Stojcev, Serbia,

represented by Mr Mirko Poledica

as Claimant

and the club,

FK Tuzla City, Bosnia and Herzegovina

as Respondent

regarding an employment-related dispute

arisen between the parties

1. Facts of the case

1. On 4 June 2018, the player Milos Stojcev (hereinafter: the player or the Claimant) concluded an “agreement of the professional engagement” (hereinafter: the engagement agreement) with the club, FK Tuzla City (hereinafter: the club or the Respondent), valid as from 4 June 2018 until 30 June 2020.

2. In accordance with art. 3 of the engagement agreement, the player was entitled to the total amount of BAM (Bosnian Mark) 100,000 per year, payable as follows:

- BAM 40,000 to be paid until “the start of the championship for the season

2018/2019”;

- BAM 12,000 to be paid “in equal instalments of KM [BAM] 1,000.00 per month”;

- BAM 48,000 to be paid until 25 February 2019.

- BAM 40,000 to be paid until “the beginning of the championship for the season 2019/2020”;

- BAM 12,000 to be paid “in equal instalments of KM 1,000.00 per month”;

- BAM 48,000 to be paid until 25 February 2020.

3. Moreover, in art. 1 of the engagement agreement, the parties stipulated that “this Agreement is concluded with an aim to regulate the rights and obligations that will not be defined by the main Agreement of the professional PLAYER”.

4. On 1 July 2018, the parties concluded an employment agreement (hereinafter: the employment agreement), valid as from 1 July 2018 until 30 June 2020.

5. In accordance with art. 8 of the employment agreement the player was entitled to “the contracted payment of the Player’s personal income in the gross amount amounts to KM 1000.00”.

6. Furthermore, art. 10 of the employment agreement stated that “when making the salary payment, the financial service of the Club is obliged to hand a written statement of income to the Player”.

7. On 24 May 2019, the player put the club in default for the payment of BAM 47,180, corresponding to the following:

Based on the employment agreement

BAM 1,000 each for the salaries of July 2018 and April 2019;

BAM 460 each for the unpaid part of the salaries of August 2018 to March 2019.

Based on the engagement agreement

BAM 1,000 each for the salaries of June 2018 to April 2019;

BAM 30,500 net for the instalment due on 25 February 2019.

The player set a deadline of 30 days.

8. On 24 June 2019, the player sent a further letter requesting that the player shall immediately return “to train with first team and inform us officially”.

9. On 25 June 2019, the player unilaterally terminated the contract invoking the club’s breach of contract.

10. On 2 July 2019, the Claimant lodged a claim for breach of contract and requested the payment of BAM 162,700 (according to the player that’s EUR 83,0187) of the following amounts:

Outstanding remuneration based on the employment agreement: BAM 6,600, plus 5% interest p.a. as from the due dates, corresponding to the following:

- BAM 1,000 for the salary of July 2018;

- BAM 460 each for the salary for August 2018 until May 2019;

- BAM 1,000 for the salary of June 2019.

Outstanding remuneration based on the engagement agreement: BAM 43,500, plus 5% interest p.a. as from the due dates, corresponding to the following:

- BAM 1,000 each for the salary for June 2018 until June 2019;

- BAM 30,500 for the unpaid part of the instalment due on 25 February 2019.

Compensation: BAM 12,000 based on the residual value of the employment agreement and BAM 100,000 based on the residual value of the engagement agreement, plus 5% interest as from 25 June 2019.

11. In his claim, the player deemed that instead of paying the instalments in accordance with the engagement agreement, the club paid only EUR 10,000 per instalment (in total 3 payments).

12. Furthermore, the player argued that the club “banned” him from training and despite his written requested to be reinstated with the team, the club “did not allow the Claimant to train with team”.

13. In addition, the player stressed that he “fulfilled his duty out from the Agreements and did neither violate against any provisions in the Agreements nor against any provision in good faith and loyalty”.

14. Consequently, the player claimed that he terminated the contract with just cause as the club breached the contract “due to persistent non-compliance with the financial terms”.

15. In its reply, the club rejected the player’s claim and deemed that the engagement agreement “was not certified by the Authorized judge for registration of players and hasn’t come into force according to the article 71 and 79 of Rulebook on registration, status and transfer of the players’ of Football Federation of Bosnia and Herzegovina”.

16. Furthermore, the club argued that despite the above, the club “paid 4 instalments by 10.000,00 Euro”.

17. In addition, the club stressed that the “salaries are agreed in gross amounts of 1.000,00 BAM (with all insurances and contribution included) which is apx 540,00 BAM for payment to the Claimant”.

18. Moreover, the club deemed that “all this issue regarding Claimant Milos Sojcev started when FC Tuzla City started disciplinary procedure against him on May 21st 2019 because he refused to attend on the game and while his club FC Tuzla City played its championship game against HSK Zrinjski Mostar, Milos Stojcev was present at the game of FK Sarajevo and he was celebrating their championship title with them at the same time. When Claimant was informed about the disciplinary procedure against him then he started to request allegedly unpaid salaries and other amounts of money from FC Tuzla City”.

19. Furthermore, the club argued that the player “refused to do workouts with the rest of the team when suddenly he left the FC Tuzla City and never returned to Club”.

20. In this respect, the club pointed out that the club “decided to terminate his contract”.

21. In view of the above, the club highlighted that it “paid to Claimant 4 instalments by 10.000,00 Euro as well as 12 salaries in gross amount of 12.000,00 BAM which is approximately 92.000,00 BAM”.

22. Upon request, the player informed FIFA that on 27 June 2019, he signed an employment contract with the Serbian club FC Vozdovac, valid as from 1 July 2019 until 31 May 2021, and according to which he was entitled to get a total amount of EUR 13,050 for the period between 1 July 2019 and 30 June 2020.

II. Considerations of the DRC judge

1. First, the Dispute Resolution Chamber (DRC) judge (hereinafter: DRC judge) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 2 July 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

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 October 2019) 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 Bosnian 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 2 July 2019, the June 2019 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. Subsequently, the DRC judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC judge 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. First of all, the DRC judge acknowledged that on 4 June 2018, the player and the club signed an engagement agreement, valid as form 4 June 2018 until 30 June 2020.

6. Furthermore, the DRC judge acknowledged that on 1 July 2018, the parties signed an employment contract valid as from 1 July 2018 until 30 June 2020.

7. The DRC judge then reviewed the claim of the player, who maintains that he had just cause to terminate the contract on 25 June 2019, as the club failed to comply with its financial obligations and excluded the player from the training. Consequently, the Claimant asked to be awarded, inter alia, payment of his outstanding remuneration as well as compensation for breach of contract.

8. The DRC then turned its attention to the arguments of the club and acknowledged that the latter did not dispute the existence of the two contracts but deemed that only the employment contract signed on 1 July 2018 was registered with the Bosnian Football Association and therefore, the only document to be considered as valid. Furthermore, the DRC judge noted that the Respondent argued that it was the club that terminated the contract as the player refused to train and left the club without permission.

9. In view of the foregoing, the DRC judge deemed that the first issue to be solved is how the contract was terminated, by which party and on which date. In so doing, the DRC judge proceeded with an analysis of the parties’ arguments as well as of the documentation on file, bearing in mind the wording of 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.

10. In this regard, the DRC judge noted that the player provided written evidence that the termination letter had been sent to the club by e-mail on 25 June 2019. In this respect, the DRC judge deemed that the player provided sufficient and consistent evidence of having sent the club the termination letter. Thus, the DRC judge concluded that the contract was terminated by the player on 25 June 2019.

11. Having established the termination of the contract by the player on 25 June 2019, the DRC judge continued his analysis of the substance of the case by noting that, while the player deems that there are 2 valid contracts of which both are applicable, the club on the other hand sustains that only the employment agreement signed on 1 July 2019 is applicable, as it is the only agreement that was registered with the Bosnian Football Association.

12. The DRC judge proceed by analysing both contracts and noted that none of the agreements excluded the validity of the other agreement and, in fact, the DRC judge referred to art. 1 of the engagement agreement which stipulated the following: “this Agreement is concluded with an aim to regulate the rights and obligations that will not be defined by main Agreement of the professional Player”. Considering the wording of said clause, the DRC judge concluded that the parties explicitly agreed that two contract will be signed and both of them shall be valid.

13. In addition, the DRC judge emphasised, that as a general rule, the registration of an employment contract at a football association does not constitute a condition for its validity.

14. In continuation, the DRC judge then proceeded to the allegation of the player in regards of the amount of BAM 50,100, which the player deemed that the club did not pay.

15. Equally, the DRC judge took note of the reply of the Respondent, which asserted that it had paid 4 instalments in the amount of EUR 10,000 each and paid the salary in the amount of BAM 540 each month.

16. In this respect, the DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

17. Subsequently, the DRC judge first analysed the payments due in accordance with the engagement agreement. In this regard, the DRC judge took note that the Claimant acknowledged that he received 3 payments on 4 June 2018, 19 July 2018 and 18 April 2019, in the amount of EUR 10,000 each. The DRC judge then recalled that the Respondent claimed to have made an additional payment of EUR 10,000 on 10 April 2019. In this respect, the club provided a document, which it deemed to be a payment confirmation. However, having analysed said document, the DRC could not accept that the document could be considered as proof of payment, in particular, as it differed to the payment confirmation of the other three payments which were acknowledged by the player.

18. In addition, the DRC judge emphasised that the amount of EUR 30,000, equals to around BAM 57,500, and therefore, the DRC judge established that an amount of BAM 30,500 remained unpaid from the 2 instalments in the amount of BAM 40,000 and BAM 48,000 due at the start of the 2018/2019 and on 25 February 2019.

19. Moreover, the DRC judge recalled that the Respondent did not dispute that it did not pay the monthly salary in the amount of BAM 1,000 net in accordance with the engagement agreement, as it deemed that said agreement is not valid.

20. Having established the above, the DRC judge concluded that a total amount of BAM 42,500 remained unpaid in accordance with the engagement agreement.

21. The DRC judge then turned his attention to the amounts due in accordance with the employment agreement and acknowledged that the player would be entitled to a monthly salary in the amount of BAM 1,000 gross as from 1 July 2018. Moreover, the DRC judge recalled that the Claimant acknowledged to have received BAM 540 as monthly salary from August 2018 until May 2019.

22. Continuously, the DRC judge referred to the document provided by the Respondent titled “Annual report” which provided the calculation from the gross amounts to the net amounts. In this regard, the DRC judge acknowledged that the Respondent paid to the Claimant BAM 540 each month as from August 2018. Having said that, the DRC judge noted that the Respondent calculated the net amounts based on a gross amount of BAM 869.57, instead of BAM 1,000.

23. Therefore, the DRC judge proceeded to calculate the net salary based on a gross salary of BAM 1,000 and came to a net amount of BAM 620.90.

24. Considering the aforementioned, the DRC judge concluded that the Claimant would be entitled to an additional BAM 80.98 on each salary as from August 2018, plus the full salary in the amount of BAM 620.90 for July 2018.

25. Based on the foregoing, the DRC judge concluded that on the date of termination, i.e. 25 June 2019, the total amount of total amount of BAM 43,930.70 remained unpaid.

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

27. Consequently, on account of the above and considering that, when the player terminated the contract, a total amount of BAM 43,930.70 were due despite the fact that the Claimant put the Respondent in default, the DRC judge concluded that, on 25 June 2019, the Claimant had a just cause to unilaterally terminate the employment contract.

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

29. Having established that the Respondent is to be held liable for the early termination of the employment contract, the DRC judge focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge established that the Claimant is entitled to receive from the Respondent compensation for breach of contract, in addition to any outstanding payments on the basis of the relevant employment contracts.

30. Subsequently, prior to establishing the consequences of the termination of the employment contract with just cause by the Claimant in accordance with art. 17 par. 1 of the Regulations, the DRC judge held the Claimant shall be entitled to the unpaid remuneration as established above at the moment when the contract was terminated by the Claimant, i.e. BAM 43,930.70.

31. Furthermore, considering the player’s claim for interest and also taking into account the DRC’s longstanding jurisprudence, the DRC judge ruled that the Respondent must pay interest as follows:

a. 5% p.a. as from 1 July 2018 on the amount of BAM 1,000;

b. 5% p.a. as from 1 August 2018 on the amount of BAM 1,000;

c. 5% p.a. as from 1 August 2018 on the amount of BAM 620.90;

d. 5% p.a. as from 1 September 2018 on the amount of BAM 1,000;

e. 5% p.a. as from 1 September 2018 on the amount of BAM 80.98;

f. 5% p.a. as from 1 October 2018 on the amount of BAM 1,000;

g. 5% p.a. as from 1 October 2018 on the amount of BAM 80.98;

h. 5% p.a. as from 1 November 2018 on the amount of BAM 1,000;

i. 5% p.a. as from 1 November 2018 on the amount of BAM 80.98;

j. 5% p.a. as from 1 December 2018 on the amount of BAM 1,000;

k. 5% p.a. as from 1 December 2018 on the amount of BAM 80.98;

l. 5% p.a. as from 1 January 2019 on the amount of BAM 1,000;

m. 5% p.a. as from 1 January 2019 on the amount of BAM 80.98;

n. 5% p.a. as from 1 February 2019 on the amount of BAM 1,000;

o. 5% p.a. as from 1 February 2019 on the amount of BAM 80.98;

p. 5% p.a. as from 26 February 2019 on the amount of BAM 30,500;

q. 5% p.a. as from 1 March 2019 on the amount of BAM 1,000;

r. 5% p.a. as from 1 March 2019 on the amount of BAM 80.98;

s. 5% p.a. as from 1 April 2019 on the amount of BAM 1,000;

t. 5% p.a. as from 1 April 2019 on the amount of BAM 80.98;

u. 5% p.a. as from 1 May 2019 on the amount of BAM 1,000;

v. 5% p.a. as from 1 May 2019 on the amount of BAM 80.98;

w. 5% p.a. as from 1 June 2019 on the amount of BAM 1,000;

x. 5% p.a. as from 1 June 2019 on the amount of BAM 80.98.

32. In continuation, the DRC judge focused his attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the DRC judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the 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.

33. In application of the relevant provision, the DRC judge held that he first of all had to clarify as to whether the pertinent employment contracts contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

34. As a consequence, the members of 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. In this regard, the DRC judge emphasised beforehand that each request for compensation for contractual breach has to be assessed by the DRC judge on a case-by-case basis taking into account all specific circumstances of the respective matter.

35. 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 DRC judge to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

36. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from the date of termination with just cause by the Claimant until its natural expiration, bearing in mind that he would have received in total BAM 109,072 as remuneration for the period as from June 2019 until June 2020. Consequently, the DRC judge concluded that the amount of BAM 109,072 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

37. 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 art. 17 par. 1 lit. ii) of the Regulations as well as the constant practice of the DRC, 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.

38. In this respect, the DRC recalled that the Claimant had found new employment with the Serbian club, FC Vozdovac, as from 1 July 2019 until 31 May 2021, leading to total value for the period corresponding to the time remaining on the prematurely terminated contract of EUR 13,050, which is approximately BAM 25,000, which shall be deducted from the above-mentioned residual value. As a result, the DRC judge established that the “Mitigated Compensation” amounts to BAM 84,072.

39. Subsequently, the DRC judge turned its attention once more to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an “Additional Compensation” of three monthly salaries on top of the “Mitigated Compensation”, subject to the early termination of the contract being due to overdue payables. Furthermore, said provision established that the overall compensation may never exceed the rest value of the prematurely terminated contract.

40. Therefore, taking into consideration the player’s monthly salary under the prematurely terminated contract, which the DRC judge deemed to be BAM 9,100 calculated as an average amount received per month, the DRC judge decided to award the Claimant additional compensation in the amount of BAM 25,000, in accordance with the above-mentioned provision.

41. Consequently, on account of the above-mentioned considerations, the DRC judge decided to partially accept the Claimant’s claim and held that the Respondent must pay the amount of BAM 109,072 as compensation for breach of contract to the Claimant, which is considered by the DRC judge to be a fair and reasonable amount.

42. In addition, taking into account the player’s request and the DRC’s well-established jurisprudence, the DRC judge decided that the club must pay to the player interest of 5% p.a. on the amounts of BAM 109,072 as of the date on which the claim was lodged, i.e. 2 July 2019, until the date of effective payment.

43. The DRC judge concluded its deliberations by rejecting any further claim of the Claimant.

44. Furthermore, 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.

45. 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.

46. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amount 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.

47. Finally, the DRC judge 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 DRC judge

1. The claim of the Claimant, Milos Stojcev, is partially accepted.

2. The Respondent, FK Tuzla City, has to pay to the Claimant outstanding remuneration in the amount of BAM 43,930.70, plus 5% interest p.a. until the date of effective payment as follows: