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 18 June 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 18 June 2020,

regarding an employment-related dispute concerning the player Branko OJDANIĆ

COMPOSITION:

Geoff Thompson (England), Chairman

Mohamed Muzammil (Singapore), member

Stefano Sartori (Italy), member

CLAIMANT:

BRANKO OJDANIĆ, Croatia

Represented by Mr. Dražen Nikolić

RESPONDENT:

OFK TITOGRAD, Montenegro

I. FACTS OF THE CASE

1) The Claimant and the Respondent (hereinafter referred to as “the parties”) signed an employment contract valid as from 2 July 2018 until 31 May 2019. The parties agreed on a monthly remuneration in the amount of EUR 300; as well as on a sign-on fee that amounts to EUR 22,000 and was payable in monthly instalments of EUR 2,200. The contract further provided that a bonus of EUR 3,000 would be paid to the Claimant, should the club get qualified for “the European competition for the season 2018/2019”.

2) The contract further provided a jurisdiction clause, which reads as follows: “In the event of a dispute, the Parties determine the jurisdiction of the FSCG Arbitration Court, the Claim and the Player undertake not to resolve disputes arising out of this contract in front of a regular court. The club and the Player undertake to fully comply with all FSCG regulations by which FSCG Arbitration court operates, including the manner in which arbitrators are selected during the arbitration proceedings”.

3) By means of his correspondence dated 5 June 2019, the Claimant put the Respondent in default of payment in the amount of EUR 9,250, based on the employment contract, setting a time limit of 10 days in order for the Respondent to remedy the default; amount from which the Claimant acknowledges having received a partial payment of EUR 1,250.

II. PROCEEDINGS BEFORE FIFA

A. Claim of the player

4) In this context, on 20 January 2020, the Claimant lodged a claim against the Respondent in front of FIFA, requesting outstanding remuneration in the amount of EUR 8,300 plus 5% interest p.a., broken down by the Claimant as follows:

- EUR 300 corresponding to his salary of November 2018, plus 5% interest p.a. as from 1 December 2018 until the date of effective payment;

- EUR 300 corresponding to his salary of January 2019, plus 5% interest p.a. as from 1 February 2019 until the date of effective payment;

- EUR 300 corresponding to his salary of April 2019, plus 5% interest p.a. as from 1 May 2019 until the date of effective payment;

- EUR 4,400 corresponding to 2 monthly instalments of the sign-on fee, plus 5% interest p.a. as from 1 June 2019 until the date of effective payment, “within 30 days as from the notification of the decision”;

- EUR 3,000 corresponding to the qualification bonus, plus 5% interest p.a. as from 1 June 2019 until the date of effective payment, “within 30 days as from the notification of the decision”.

B. Reply of the club

5) On its part, the Respondent disputed the amounts due to the Claimant and only admitted owing to the Claimant the amount of EUR 300 corresponding to the salary of April 2019. Furthermore, the Respondent argued that the amount of EUR 600 requested by the Claimant as the salaries of November 2018 and January 2019 were duly paid to the Claimant.

6) Moreover, as to the other amounts requested by the Claimant, the Respondent alleged that such amounts were indeed not paid in full to the Claimant, insofar the latter did not appear in enough matches and since some disciplinary sanctions were imposed on the Claimant.

7) In its request for relief, the Respondent requested the claim to be deemed inadmissible or, subsidiary, rejected.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

A. Competence

8) The Dispute Resolution Chamber (hereinafter also referred to as 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 20 January 2020 and decided on 18 June 2020. Consequently, the June 2020 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).

9) Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is in principle competent to deal with employment-related disputes with an international dimension between a player and a club.

10) However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies stating that an independent arbitration tribunal in line with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in fine, exists Montenegro. In addition, the Respondent referred to the jurisdiction clause contained in the contract, which stipulates that “In the event of a dispute, the Parties determine the jurisdiction of the FSCG Arbitration Court, the Claim and the Player undertake not to resolve disputes arising out of this contract in front of a regular court. The club and the Player undertake to fully comply with all FSCG regulations by which FSCG Arbitration court operates, including the manner in which arbitrators are selected during the arbitration proceedings”. On the basis thereof, the Respondent argued that the NDRC of Montenegro is competent to hear any dispute arisen in connection with the contract.

11) While analyzing whether it was competent to hear the present matter, the Chamber deemed it vital to outline that one of the basic condition that needs to be met in order to establish that a deciding body other 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. The DRC deemed that such clause existed in the contract in favor of the NDRC of Montenegro within the Football Association of Montenegro.

12) Nevertheless, the DRC 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 DRC referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the DRC referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

13) Having examined the relevant provision, the Chamber acknowledged that the jurisdiction clause contained in the contract constitutes a clear jurisdiction clause in favor of the FSCG (Football Association of Montenegro) Arbitration Tribunal (hereinafter: the NDRC). However, the DRC was also forced to observe that the Respondent had failed to provide, within the deadline give to the Respondent to do so, any relevant documentation allowing it to assess the respect of the NDRC of the principle of equal representation of players and clubs and the other principles provided in the FIFA Circular no. 1010 dated 20 December 2005. Nevertheless, the Chamber noted that, on 16 June 2020, the Respondent submitted an unsolicited correspondence regarding the composition and regulations of the NDRC of Montenegro. The Chamber further noticed that said regulations were presented in its English translation only, the original documentation not being provided by the Respondent. In this regard, the Chamber firstly referred to art. 9.1 lit e), which states that documents of relevance to the dispute shall be submitted in the original language and, in applicable, translated into one of the official FIFA languages. In this respect, the Chamber noted that the Respondent failed to comply with the aforesaid provision, insofar the latter failed to submit the documentation pertaining to the composition and regulations of the NDRC of Montenegro in its original language.

14) Moreover, the Chamber referred to art. 9.3 of the Procedural rules, which provides that submissions received outside the time limit shall not be taken into account. In this regard, the Chamber noted that the documentation related to the composition and regulations of the NDRC of Montenegro was not provided alongside the Respondent’s reply to the claim, but on a later stage. In this context, the Chamber was of the opinion that, even though said correspondence should not be taken into account, it is noticeable that out of 7 arbitrators that compose the NDRC of Montenegro, the FA of Montenegro appoints four arbitrators, whereas the Players’ association only appoints one arbitrator; hence, not complying with the principle of equal representation as established in the FIFA Circular no. 1010.

15) On account of all the above, the Chamber established that the Respondent’s 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.

B. Applicable legal framework

16) The Chamber analyzed which edition of the 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, and considering that the present claim was lodged on 20 January 2020, the January 2020 edition of said regulations is applicable to the matter at hand as to the substance.

17) The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The Chamber 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 emphasized 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.

C. Burden of proof

18) The Chamber 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.

D. Merits of the dispute

I. Main legal discussion

19) The fundamental disagreement between the parties, at the basis of the present dispute, is the question of whether or not the club complied with its financial obligations as per the contract and duly paid the player’s entitlements in accordance therewith.

20) On the one hand, the Claimant maintained that the Respondent failed to pay his salaries of November 2018, January 2019 and April 2019 in the amount of EUR 300 each; as well as to pay two instalments of the sign-on bonus in the amount of EUR 2,200 each, and the bonus for having qualified for the European competition for the season 2018/2019 in the amount of EUR 3,000.

21) On the other hand, the Chamber noted that the Respondent contested the player’s claim and ascertained having duly paid the player’s salaries of November 2018 and January 2019, providing –as evidence thereof– some documentation that seems to correspond to banking extracts.

22) Moreover, the Respondent acknowledged owing to the Claimant his salary of April 2019 in the amount of EUR 300.

23) As to the entitlement of the Claimant to the two claimed instalments of the sign-on bonus in the total amount of EUR 4,400, the Respondent referred to clause 7 of the “Rewards Rulebook”, according to which the monthly remuneration of a player may be reduced up to 50%, should the player not participate in, at least, 70% of the matches. According to the Respondent, said Rewards Rulebook was accepted by the Claimant. In this context, the Respondent maintained that, since the player did not appear in 70% of the matches during the months of March, April and May 2019, the latter was only entitled to EUR 1,100 per month as sign-on bonus. Furthermore, the Respondent pointed out that, whereas the player duly received the amount of EUR 2,200 corresponding to the instalments of March and April 2020, the instalment of May 2020 in the amount of EUR 1,100 was deducted from the player’s entitlements, insofar the player was sanctioned by the Board of Directors for having failed to participate in matches and trainings. In this sense, the Respondent referred to clauses 6 and 16 of the aforesaid Disciplinary Rulebook, which read as follows:

“Article 6

Participation in all games is the most important professional obligation of the players, and failure to comply with these obligations shall be sanctioned:

Delay to the match

Failure to attend the match

Insufficient devotion

Incorrect treatment of teammates, court, officials and board members

A player's refusal to enter or leave the game

Yellow card for objecting to the referee

Red card for objecting to the referee

[…]

Article 16

The range of fines is from 50 eur to 1,500 eur, and the amount of the fine is determined by the chief of expert staff. The Board of Directors has also the right to impose penalties”.

24) In connection with the alleged entitlement of the Claimant to receive the amount of EUR 3,000 as a bonus for having qualified to the European competition for the season 2018/2019, the Chamber noted the argumentation of the Respondent, who held that the entitlement to said bonus was not triggered, since the club finished in the fourth position in the Montenegrin League that season. In this context, the DRC took note of the arguments of the Respondent, who stressed that, according to the UEFA rules for 2018/2021, the right to qualify to European competitions correspond to the first three-ranked clubs in national league and the national cup winner and that, insofar the Respondent did not win the right to compete in European competitions, no such bonus payment obligation is triggered.

25) In view of the diverging positions of the Claimant and the Respondent, the Chamber deemed that it had to analyze whether the Claimant is or not entitled to receive outstanding remuneration from the Respondent.

II. Considerations

26) In this context, the Chamber firstly held that, once the argumentation of both parties had been exposed and insofar the positions of the parties dissent, the Chamber has to rely on the evidence provided by the parties in order to determine whether the Respondent had or not complied with its financial obligations towards the Claimant and whether the claims of the Claimant are based and the payments of such entitlements were triggered.

27) In this context, the Chamber referred to the monthly salaries of November 2018, January 2019 and April 2019 that were claimed by the Claimant. In this regard, the DRC noted that, according to the Respondent, the monthly salaries of November 2018 and January 2019 were duly paid to the Claimant. In order to determine whether such payments were indeed made, the DRC thoroughly analyzed the documentary evidence submitted by the Respondent in order to prove that it did comply with its payment obligations. In this respect, the Chamber noted that, as evidence, the Respondent provided a document that seems to be a banking extract of a bank entity called “NLB Banka” with different tables that include information, all in Montenegrin, amongst which the name of the player and an amount of 300 is indicated, twice. After having duly examined the said document, the Chamber referred, once again, to art. 9.1 lit e), which provides that documents of relevance to the dispute shall be submitted in the original language and, in applicable, translated into one of the official FIFA languages. In this respect, the Chamber noted that the Respondent failed to comply with the aforesaid provision, insofar the Respondent only provided said document in Montenegrin, which hindered the Chamber from ascertaining the nature and reality of what therein is indicated. In view of the above, the DRC unanimously concluded that the Respondent did not discharge its obligations as to the payment of the salaries of November 2018 and January 2019 in the amount of EUR 300 each of them. In connection with the lack of payment of the salary of April 2019, the Chamber duly noted that the Respondent, in its reply to the claim, acknowledged not having paid that monthly salary to the Claimant. Thus, -continued the Chamber-, in accordance with the general principle of law, pacta sunt servanda, the Respondent must be condemned to proceed with the payment of EUR 900 to the Claimant.

28) In addition, taking into account the player’s request and the well-established jurisprudence of the DRC, the Chamber decided that the club must pay to the player interest of 5% p.a. on the amount of EUR 900, as follows:

- on the amount of EUR 300 as from 1 December 2018 until the date of effective payment;

- on the amount of EUR 300 as from 1 February 2019 until the date of effective payment;

- on the amount of EUR 300 as from 1 May 2019 until the date of effective payment.

29) In continuation, the Chamber focused its attention on the two instalments of EUR 2,200 each that were requested by the Claimant as sign-on bonus. In this regard, the Chamber firstly wished to highlight that, even though the payment of monthly instalments of EUR 2,200 has the formal consideration of a sign-on bonus that was divided in monthly instalments, it is evident that it constitutes part of the player’s monthly salary and its nature shall not be other than the player’s basic remuneration, insofar the said payments were not subject to the player or the team achieving any specific goal, but –on the contrary– was part of the player’s fixed monthly remuneration.

30) The above being clarified, the Chamber noted that, whereas the Claimant affirmed not having received two of the sign-on fee instalments in the amount of EUR 2,200 each, the Respondent argued that, for the months of March and April 2020, the player received the total amount of EUR 2,200 as sign-on fee. In this respect, the Respondent argued that the instalments of said months were reduced to 50% of the amount contractually agreed in application of art. 7 of the Rewards Rulebook.

31) In this context, the Chamber referred to art. 7 of the Rewards Rulebook provided by the Claimant, which reads as follows: “For a player who does not play 70% of the matches, the fixed monthly fee will be reduced by 50%”; and unanimously concluded that a club shall not an cannot unilaterally reduce a player’s fixed remuneration subject to the player participating in a minimum amount of matches, insofar the club has the power to decide whether a player does or does not participate in matches, which leads to the club deciding whether the player’s fixed entitlements are reduced to 50% of the amount contractually agreed. Thus, the Chamber concluded that any reduction practiced on the player’s sign-on fee instalments shall be held as null.

32) Moreover, as to the instalment of the sign-on bonus of May 2020, the Chamber took note of the allegations of the Respondent, who held that it was also subject to a reduction of 50% in application of art. 7 of the Rewards Rulebook; and that, on top of that, said instalment was never to be paid to the Claimant, since the player was sanctioned by the Board of Directors for having failed to participate in matches and trainings ex. art. 6 and 16 of the Disciplinary Rulebook.

33) In this context, the Chamber, after having analyzed the documentation on file, held that the Respondent failed to demonstrate that the player did commit acts our omissions that rightfully lead to the imposition of sanctions on the player. In this regard, the DRC emphasized that the Respondent failed to submit evidence that would prove that the player actually failed to participate in matches and trainings. Moreover, the Chamber pointed out that, even if the player had missed some matches or training sessions, the application of sanctions that reduce the player’s fixed remuneration in an amount of EUR 1,100 –as in the present case– is disproportionate and cannot be considered as rightfully imposed. What is more, -continued the Chamber- is that the Respondent failed to submit any proof of the Board of Directors having imposed a sanction of the player that would offset his entitlement to receive the instalment of the sign-on bonus of May 2020 and, by doing so, the Respondent failed to comply with what is stated in art. 12 para. 3 of the Procedural Rules, in accordance with which the Respondent carries the burden of the proof to demonstrate that such a sanction was imposed on the player and that the player had the right to challenge the imposition of such fine. Thus, in view of all the above-mentioned circumstances, the Chamber concluded that, in application of the principle pacta sunt servanda, the player is entitled to receive the amount of EUR 4,400 from the Respondent, which correspond to half of the monthly instalments of March and April 2020, as well as to the entire instalment of May 2020.

34) In addition, taking into account the player’s request and the well-established jurisprudence of the DRC, the Chamber decided that the club must pay to the player interest of 5% p.a. on the amount of EUR 4,400 as from 1 June 2020 until the date of effective payment.

35) In connection with the entitlement of the Claimant to receive the amount of EUR 3,000 from the Respondent for having qualified “for the European competition for the season 2018/2019”, the Chamber took note of the argumentation of the Respondent, who held that, according to the UEFA rules for 2018/2021, the right to qualify to European competitions correspond to the first three-ranked clubs in national league and the national cup winner and that, insofar the Respondent did not win the right to compete in European competitions, no such bonus payment obligation is triggered. In this context, the Chamber referred to the allegations of the Claimant, who held that the Respondent did play for the Respondent when the Respondent qualified in UEFA Europe League during 2018/19 season for upcoming season. In this regard, the Chamber noted that the Claimant submitted documentary evidence to prove his allegations, which were considered by the Chamber as sufficient documentary evidence in order to demonstrate that the Respondent did qualify for UEFA Europa League during the season 2018/2019 for the upcoming season. Hence, the Chamber determined that the Respondent must be ordered to pay to the Claimant the amount of EUR 3,000 as qualification bonus.

36) Furthermore, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 3,000 as from 1 June 2020 until the date of effective payment.

37) Furthermore, taking into account the consideration under number 16) 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.

38) In this regard, the Chamber 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.

39) Therefore, bearing in mind the above, the DRC 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.

40) Finally, the member of the Chamber 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.

41) The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected

IV. Conclusion

42) As a result of the aforementioned, the Chamber decided to accept the claim of the Claimant and to order the Respondent to pay the Claimant outstanding remuneration in the amount of EUR 8,300.

43) The Chamber concluded its deliberations in the present matter by establishing that the claim of Claimant is accepted.

IV.DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, BRANKO OJDANIĆ, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, OFK TITOGRAD, has to pay to the Claimant, the following amounts:

- EUR 300 as outstanding remuneration plus 5% interest p.a. as from 1 December 2018 until the date of effective payment;

- EUR 300 as outstanding remuneration plus 5% interest p.a. as from 1 February 2019 until the date of effective payment;

- EUR 300 as outstanding remuneration plus 5% interest p.a. as from 1 May 2019 until the date of effective payment;

- EUR 7,400 as outstanding remuneration plus 5% interest p.a. as from 1 June 2019 until the date of effective payment.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amounts.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due, plus interest as established 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 following consequences shall arise:

 1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

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) within 21 days of receipt of the notification of this decision (cf. CAS Directives at Legal.FIFA.com).

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

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