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 23 April 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 23 April 2020,

in the following composition:

Geoff Thompson (England), Chairman

José Luis Andrade (Portugal), member

Stijn Boeykens (Belgium), member

on the dispute between the club,

Al Nassr Sports Club, Oman

as Claimant 1 / Respondent 2

and the player,

Rok Elsner, Slovenia

represented by Mr Ivan Smokrovic

as Claimant 2 / Respondent 1

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 1 August 2019, the Slovenian player Rok Elsner (hereinafter: the player) and the Omani club Al Nassr (hereinafter: the club) concluded an employment contract, valid as from the date of signature until 30 April 2020.

2. According to the contract the player was entitled to the following benefits:

- an advance payment of USD 20,000;

- a monthly salary of USD 5,555.55;

- furnished accommodation;

- round-trip air tickets Zagreb <> Salalah for the player and his family once during the contract;

- a car.

3. On 11 December 2019, the player put the club in default of payment of “more than two month (2) salaries” granting the club 10 days to remedy the default.

4. On 27 December 2019, the player terminated the contract with the club in writing, mentioning art. 14bis of the RSTP and claiming the club had paid his salaries for September and October 2019, but not for November 2019.

5. On 28 December 2019, the club acknowledged receipt of the termination and warned the player that the latter had been done without just cause.

6. Also on 28 December 2019, the club lodged a claim against the player for breach of contract, claiming that he had terminated the contract without just cause. According to the club, on the same day the player terminated the contract, he left the club, just before an important match and was unreachable on his mobile phone. The club claims the player had no just cause as per art. 14bis of the RSTP as only the November 2019 salary was outstanding when he terminated the contract.

7. In its claim the club requests that the player should be held liable to pay compensation in the amount of USD 74,350, broken down as follows:

- USD 70,000 “as full contract amount as physical effect on team during important matches”;

- USD 1,558 as “apartment rent for remaining months as per the contract”;

- USD 26 as cash invoice for translation of payment vouchers”;

- USD 571 as “ticket for player from Zagreb to Salalah;

- USD 2,195 as “tickets for the player family from Zagredb-Salalah-Zagreb”.

8. On 10 January 2020, the player lodged a parallel claim against the club, claiming that the termination was made with just cause. The player explains that he had not received his salaries for October and November 2019 and thus put the club in default of payment on 11 December 2019. He claims that after the default notice, the salary for October 2019 was paid but the one for November 2019 remained outstanding and therefore on 27 December 2019 he still had a just cause as per art.14bis of the RSTP to terminate the contract. According to a receipt provided by the club itself, the salary of October 2019 was paid on 19 December 2019.

9. In his claim, the player makes the following requests:

- USD 34,021.30 corresponding to his monthly salaries from November 2019 to April 2020 (i.e. 6 months x USD 5,555.55) and USD 688 as “additional damage” corresponding to a ticket from Salalah to Zagreb, plus “statutory default interest within 15 days”;

- Procedural costs.

10. In reply to the claim of the club, the player insisted on the arguments brought up in his claim and emphasises that he had a just cause to terminate the contract as per art. 14bis of the Regulations, since the club did not pay its debts in full and even admits in his claim not having paid him the salary on November 2019.

11. In spite of having been invited to do so, the club did not reply to the claim of the player, within the granted deadline and the investigation was closed on 19 March 2020. On 24 March 2020, the club sent a letter to FIFA claiming to never have received the player’s claim forwarded by FIFA on 27 January 2020. After a thorough check, FIFA informed the club on 26 March 2020 that “both the player’s claim against you and your claim against the player were properly notified to the respective parties on 27 January 2020 […] to the same email address from which you sent your correspondence date 24 March 2020”. In addition, FIFA enclosed to its letter of 26 March 2020 proof of delivery of its correspondence of 27 January 2020.

12. The player informed FIFA that he did not sign any new employment contract up to this date.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was first submitted to FIFA on 28 December 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 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 Slovenian player and an Omani 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 Players (2020), and considering that the present claim was initially lodged on 28 December 2019, the October 2019 edition of said regulations (hereinafter: 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. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. 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.

5. In this respect, the Chamber first acknowledged that the player and the club signed an employment contract valid as from 1 August 2019 until 30 April 2020, for the remuneration detailed in point I.2 above.

6. In addition, the Chamber noted that on the one hand the player lodged a claim against the club, claiming to have terminated the contract with just cause on 27 December 2019 based on art. 14bis of the Regulations, and that on the other hand the club also lodged a claim against the player, claiming the contract was terminated without just cause as only the November 2019 salary was outstanding by the time of termination.

7. In view of the foregoing and of the diverging opinions of the parties, the Dispute Resolution Chamber was of the opinion that the issue at stake considering the argumentation of both parties, was to determine whether the employment contract had been unilaterally terminated by the player with or without just cause on 27 December 2019, and which party was responsible for the early termination of the contractual relationship in question.

8. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequence for the party that caused the unjust breach of the relevant employment contract.

9. Subsequently, the DRC observed that the club, for its part, in spite of having been invited to do so, failed to present its response to the claim of the player within the relevant time-limit. In fact, in spite of the fact that the player’s claim and the club’s claim were forwarded to the relevant parties simultaneously and to the email address used by the club to communicate with FIFA, a reaction from the club to the player’s claim was only received after the investigation-phase of the matter had already been concluded.

10. As a result, considering that the claim of the player was duly communicated to the club, the DRC decided not to take into account the reply of the club and established that, in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the player and the claim of the club.

11. Having established the foregoing, the DRC deemed it appropriate to recall the content of art. 12 par.3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

12. Bearing in mind the foregoing, the Chamber noted that the club bore the burden of proving that it indeed paid the amounts due to the player in accordance with the employment contract or that it had a valid reason not to have done so. In this respect, the DRC noted that the club itself admits that the salary of November 2019 remained outstanding by the time of termination.

13. In addition, the Chamber noted that the player had put the club in default of payment on 11 December 2019, for the payment of “more than two month (2) salaries”, corresponding to September, October 2019 and November 2019, granting the club 10 days to remedy the default. The Chamber also noted that the player unilaterally terminated the contract on 27 December 2019, mentioning art. 14bis of the RSTP and claiming the club had still not paid his salary for November 2019.

14. At this point, the Chamber deemed it appropriate to remind the parties of the wording of art. 14bis par. 1 of the Regulations, according to which: “In the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s)”. (emphasis added)

15. Bearing in mind the foregoing, the DRC noted a) that the player acted in accordance with art. 14bis of the Regulations, b) that after the default notice the club only partially paid the outstanding remuneration claimed and c) that the termination of the contract de facto only occurred more than 15 days after the default notice was given. Thus, the DRC concluded that the player had a just cause to terminate the contract.

16. As a result, the club is to be held liable for the early termination of the employment contact with just cause by the player.

17. In continuation, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive from the club an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract.

18. In this regard, the DRC first addressed the issue of unpaid remuneration at the moment when the contract was terminated by the player and decided that, in accordance with the general legal principle of pacta sunt servanda, the club is liable to pay to the player outstanding remuneration corresponding to USD 5,555.55 as his salary of November 2019 and USD 688 corresponding to the reimbursement of a flight ticket, foreseen in the contract and for which the player provided evidence.

19. In addition, taking into consideration the player’s claim, the DRC decided to award him interest at the rate of 5% p.a. on the respective amounts due as from the date of claim, i.e. as from 10 January 2020, until the date of effective payment.

20. In continuation, having established that the club is to be held liable for the early termination of the employment contract with just cause by the player, the DRC focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the player is entitled to receive an amount of money from the club as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

21. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

22. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained 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 Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

23. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

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

25. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to him under the terms of the employment contract from its date of termination with just cause by the Claimant, i.e. 27 December 2019 until 30 April 2020 and concluded that the player would have received in total USD 27,777.75 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of USD 27,777.75 serves as the basis for the determination of the amount of compensation for breach of contract.

26. In continuation, the Chamber verified 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 enabled to reduce his loss of income. According to 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.

27. The Chamber noted that the player remained unemployed after the termination of the contract and thus did not manage to mitigate his damages.

28. Therefore, the amount of USD 27,777.75 is due to the player by the club as compensation for breach of contract.

29. 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 decided that the club must pay to the player interest of 5% p.a. on the amount of compensation as of the date of the claim, i.e. 10 January 2020 until the date of effective payment.

30. Furthermore, taking into account the consideration under number II./3. above, the DRC 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.

31. In this regard, the DRC 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.

32. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amounts 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

33. Finally, the DRC 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.

34. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that the player’s claim is partially accepted and the club’s claim is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant 1 / Respondent 2, Al Nassr Sports Club, is rejected.

2. The claim of the Claimant 2 / Respondent 1, Rok Elsner, is partially accepted.

3. Al Nassr Sports Club has to pay to Rok Elsner the amount of USD 5,555,55 as outstanding remuneration plus interest at the rate of 5% p.a. as from 10 January 2020 until the date of effective payment.

4. Al Nassr Sports Club has to pay to Rok Elsner the amount of USD 688 as reimbursement of a flight ticket plus interest at the rate of 5% p.a. as from 10 January 2020 until the date of effective payment.

5. Al Nassr Sports Club has to pay to Rok Elsner the amount of USD 27,777.75 as compensation plus interest at the rate of 5% p.a. as from 10 January 2020 until the date of effective payment.

6. Any further claim lodged by Rok Elsner is rejected.

7. Rok Elsner is directed to inform Al Nassr Sports Club, 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 Al Nassr Sports Club must pay the amounts mentioned under points 3, 4 and 5 above.

8. Al Nassr Sports Club shall provide evidence of payment of the due amounts in accordance with points 3, 4 and 5 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).

9. In the event that the amount due plus interest in accordance with points 3, 4 and 5 above is not paid by Al Nassr Sports Club within 45 days as from the notification by Rok Elsner of the relevant bank details to Al Nassr Sports Club, Al Nassr Sports Club 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).

10. The ban mentioned in point 9 above will be lifted immediately and prior to its complete serving, once the due amount is paid.

11. 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.

*****

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 appeal procedure:

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

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 / www.tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer