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

• Data decisione: 20 maggio 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 20 May 2020

Decision of the

Dispute Resolution Chamber

passed on 20 May 2020,

in the following composition:

Geoff Thompson (England), Deputy Chairman

Jerome Perlemuter (France), member

Angela Collins (Australia), member

on the claim presented by the player,

Ante Blažević, Croatia,

represented by Mr Emir Spaho

as Claimant

against the club,

NK Čelik Zenica, Bosnia and Herzegovina,

represented by Ms Tugce Orhan

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

Contractual basis

1. On 21 January 2019, the Croatian player, Ante Blažević (hereinafter: the player or the Claimant) concluded an employment contract (hereinafter: the contract) with the Bosnian club NK Čelik Zenica (hereinafter: the club or the Respondent), valid as from the date of signature until 21 January 2021.

2. In accordance with art. 8 and 9 of the contract, the player was, inter alia, entitled to the following amounts:

“Article 8

In order to carry out business as stipulated in this Contract, the Club undertakes to pay the Player a salary and in accordance with the provisions of this Contract, the Labor Law and the Rules of Procedure of the Club.

The contracted income in the gross amount for the Player is BAM 3,000.00.

The contracted income in paragraph 2 of this Article may be increased or reduced depending on the results of the Club and in accordance with the Rules of the Club.

Payment of taxes and contributions to the Player's income constitutes an obligation of the Club.

Article 9

The player may have right on the following fees:

(…)

- Fees for using apartment, approved in the amount of: BAM 300”

3. On Claimant indicated that he had not signed a new employment contract since his unilateral termination of the contract.

Requests of the parties

4. On 6 March 2020, the Claimant lodged the present claim for breach of contract against the Respondent, requesting from the latter the payment of the total amount of BAM 66,090 plus 5% interest p.a. (the Claimant indicated that this amount corresponded to EUR 33,708.91), corresponding to the following:

a. BAM 33,090 as outstanding remuneration, corresponding to:

- BAM 33,000 as outstanding monthly salaries (9 days of January 2019, the full salaries for February to December 2019 and 20 days of January 2020)

- BAM 3,600 corresponding to 12 unpaid housing allowances (months not specified);

b. BAM 33,000 (BAM 3,000 x 11) as compensation equivalent to the residual value of the contract (February to December 2020).

5. In particular, the Claimant deducted an amount of BAM 6,410 as partial payments made by the Respondent.

6. The Respondent requested the claim to be rejected.

Position of the parties

7. The Claimant maintained that since the beginning of the employment relationship the Respondent did not honour its financial obligations in accordance with the contract. The Claimant specified that the club failed to pay the following amounts:

- 9 days of salary for the month of January 2019;

- The entire salaries of February 2019, March 2019, April 2019, May 2019, June 2019, July 2019, August 2019, September 2019, October 2019, November 2019, December 2019; and

- 20 days of salary for the month of January 2020.

8. The Claimant confirmed having only received from the Respondent the total amount of BAM 6,410 in four partial payments as follows:

a. On 27.2.2019, the amount of BAM 1,500;

b. On 4.4.2019, the amount of BAM 1,910;

c. On 25.6.2019, the amount of BAM 1,500; and

d. On 2.11.2019, the amount of BAM 1,500.

9. On 21 January 2020, the Claimant sent a letter to the Respondent, warning the latter of the existence of outstanding remuneration for a total amount of BAM 33,090 (allegedly equivalent to EUR 16,920), granting the club 10 days to remedy its default, however to no avail.

10. Consequently, on 1 February 2020, the Claimant terminated the contract invoking just cause on the basis of the aforementioned outstanding remuneration.

11. In its reply to the claim, the Respondent first pointed out that the amounts payable to the player up until the date of termination amounted to BAM 22,798 and not BAM 33,090 as stated by the Claimant.

12. Then, the Respondent alleged that it had made some payments to the Claimant in the total amount of BAM 10,940 and provided untranslated payment receipts in support of this allegation.

13. The Respondent pointed out that the Claimant started to seek for a reason to early terminate the contract as he allegedly wanted to play for another club, a request that the Respondent refused. The Respondent insisted that the alleged overdue payables were an excuse for the Claimant to leave to said new club.

14. The Respondent also pointed out that the Claimant had been fined BAM 2,500 on 15 December 2019 and KAM 3,000 on 10 January 2020 for not attending training.

15. In contradiction to its previous statement, the Respondent stated that the amount of BAM 10,940 represented the total amount still due to the Claimant, and that it had no outstanding debt towards him.

16. Finally, the Respondent indicated that the debt towards to Claimant was of an amount of BAM 22,150.

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 submitted to FIFA on 6 March 2020. 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 March 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 Croatian player and a Bosnian club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and considering that the claim was lodged on 6 March 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the 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. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that, in accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the TMS.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the members of the Chamber acknowledged that, on 21 January 2019, the player and the club had concluded an employment contract valid for two years, pursuant to which the club undertook to pay to the player the remuneration, as established in point I.2 above.

7. Furthermore, the members of the DRC took note of the fact that, on 21 January 2020, the player had put the club in default of payment of the amount of BAM 33,090, corresponding to the most part of his remuneration for the year 2019 besides four payments that he confirmed having received setting a 10 days’ time limit in order to remedy the default (cf. I. 7 and 8 above).

8. Moreover, the DRC took note that, according to the player, he had just cause to unilaterally terminate the employment contract on 1 February 2020, since no payment had been made by the club in this respect.

9. Subsequently, the members of the DRC took note that the Respondent, for its part, contested the value of the amounts claimed by the player. In particular, the Chamber noted that the submissions of the club provided contradictory amounts as to the outstanding debt towards the player, and noted that the club provided untranslated payment receipts within its reply. What is more, the DRC remarked that the Respondent had fined the player of several amounts for having apparently missed training sessions.

10. In light of the foregoing, the DRC considered that the underlying issue in this dispute, considering the parties’ position, was to determine as to whether the player had just cause to terminate the employment contract and to determine the consequences thereof.

11. In this context, the Chamber deemed it appropriate to clarify that, in accordance with art. 12 par. 3 of the Procedural Rules, in the present case, the Respondent bore the burden of proving either the payment of the Claimant’s salaries or that it had a valid reason for not having done so.

12. In addition, the Chamber recalled that the club contested the amounts claimed by the player and that it had submitted untranslated payments receipts in support. The DRC also remarked that the club fined the player for being absent from training and had argued that such amount should be taken into account.

13. In this respect, the Chamber, irrelevant of the contradictory submissions of the Respondent as to the existence of an outstanding debt towards the Claimant, first noted that the proof of payments were not translated in any of the four FIFA languages.

14. In consistency with its application of the provisions set out in art. 9 par. 3 of the Procedural Rules according to which “The parties shall present all the facts and legal arguments together with all the evidence upon which they intend to rely, in the original language, and, if applicable, translated into one of the official FIFA languages”, the Chamber determined that said untranslated payment receipts could not be taken into account.

15. As to the two fines imposed on the Claimant, the DRC noted that they were not supported by any evidence. In fact, the Chamber pointed out that there were no proof that the player had indeed been absent to the relevant training sessions, and, if so, that the player had been notified of disciplinary proceedings against him and/or that he had been fined in line with the club rules of which the player had been a signatory.

16. As a consequence, and in line with the DRC’s jurisprudence in this respect, the Chamber, recalling that arbitrary fines cannot be used as a mean to offset salary debts fines, determined that said fines could not be taken them into account.

17. In view of the above, the Chamber concluded that the Respondent did not bring any valid reason to justify the delay in paying the player’s remuneration.

18. Nevertheless, the DRC acknowledged that the Claimant indicated that it had received 4 payments of a total amount of BAM 6,410 prior to terminate the contract.

19. Therefore, the DRC calculated that upon termination of the contract by the player on 1 February 2020, the total amount of BAM 34,060 was due to the player, corresponding to a value of more than 11 monthly salaries.

20. Consequently, on account of the above and considering that, when the player terminated the contract, an amount corresponding to the value of 11 monthly salaries were due despite having the player provided the Respondent with 10 days to remedy the default, the DRC concluded that, on 1 February 2020, the player had just cause to unilaterally terminate the employment contract.

21. As a result, the Chamber decided that the Respondent is to be held liable for the early termination of the employment contract with just cause by the player.

22. Having established that the Respondent is to be held liable for the early termination of the employment contract, the DRC focused his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC established that the player 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 contract.

23. Along those lines, the DRC firstly referred to the player’s request regarding the outstanding remuneration at the time of the unilateral termination of the employment contract. In this respect, the DRC concurred that the Respondent must fulfil its obligations as per the employment contract in accordance with the general legal principle of “pacta sunt servanda”.

24. Consequently, and bearing in mind that the player terminated his employment contract on 1 February 2020, the Chamber decided that the Respondent is liable to pay to the player outstanding remuneration in the amount of BAM 34,060, pertaining to his salaries and accommodation allowances for the period January 2019 to January 2020 to which the payment of BAM 6,410 made in 4 instalments throughout the year 2019 was deducted.

25. In addition, taking into consideration the specific request of the player on the point, the Chamber decided to award the latter interest at the rate of 5% p.a. on the total amount of BAM 34,060 as follows:

a. 5% interest p.a. on the amount of BAM 870 as from 1 February 2019 until the date of effective payment;

b. 5% interest p.a. on the amount of BAM 1,800 as from 1 March 2019 until the date of effective payment;

c. 5% interest p.a. on the amount of BAM 1,390 as from 1 Avril 2019 until the date of effective payment;

d. 5% interest p.a. on the amount of BAM 3,300 as from 1 May 2019 until the date of effective payment;

e. 5% interest p.a. on the amount of BAM 3,300 as from 1 June 2019 until the date of effective payment;

f. 5% interest p.a. on the amount of BAM 1,800 as from 1 July 2019 until the date of effective payment;

g. 5% interest p.a. on the amount of BAM 3,300 as from 1 August 2019 until the date of effective payment;

h. 5% interest p.a. on the amount of BAM 3,300 as from 1 September 2019 until the date of effective payment;

i. 5% interest p.a. on the amount of BAM 3,300 as from 1 October 2019 until the date of effective payment;

j. 5% interest p.a. on the amount of BAM 3,300 as from 1 November 2019 until the date of effective payment;

k. 5% interest p.a. on the amount of BAM 1,800 as from 1 December 2019 until the date of effective payment;

l. 5% interest p.a. on the amount of BAM 3,300 as from 1 January 2020 until the date of effective payment; and

m. 5% interest p.a. on the amount of BAM 3,300 as from 1 February 2020 until the date of effective payment.

26. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive compensation for breach of contract from the club.

27. In continuation, the DRC focused his attention on the calculation of the amount of compensation for breach of contract due to the Claimant by the Respondent in the case at stake. In doing so, the DRC 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.

28. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber observed that the employment contract does not contain any such clause.

29. 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 parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its termination and concluded that the player would have been entitled to receive BAM 39,000 as remuneration had the employment contract been executed until its regular expiry date, i.e. 21 January 2021. Consequently, the Chamber concluded that the amount of BAM 39,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

30. In continuation, the Chamber assessed whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. In this respect, the DRC deemed it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the player signed a new contract by the time of the decision, the value of the new contract for the period corresponding to the time remaining on the prematurely terminated contract shall be deducted from the residual value of the contract that was terminated early (the ”Mitigated Compensation”).

17. In respect of the above, the DRC noted that the player did not sign any new employment contract after having terminated the contract on 1 February 2020.

31. Consequently, on account of the absence of mitigation from the player and in view of its request for relief, the Chamber decided that the Respondent must pay the amount of KAM 32,030 as compensation for breach of contract to the player.

32. What is more, taking into consideration the specific request of the player on the point, the Chamber decided to award the latter interest at the rate of 5% p.a. on KAM 32,030 as from the date of claim, i.e. 6 March 2020, until the date of effective payment.

33. Therefore, the DRC decided to partially accept the player’s claim and concluded its deliberations by rejecting any further claim of the player.

34. Furthermore, taking into account the consideration under number II./3. above, the Chamber 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.

35. 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.

36. 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.

37. Finally, 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.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Ante Blažević, is partially accepted.

2. The Respondent, NK Čelik Zenica, has to pay to the Claimant, within 45 days as from the date of notification of this decision, the amount of BAM 34,060 plus interest as follows: