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 on 23 April 2020,

in the following composition:

Geoff Thompson (England), Chairman

José Luis Andrade (Portugal), member

Stijn Boeykens (Belgium), member

on the claim presented by the player,

Marko Pavicevic, Serbia

represented by Mr Mirko Poledica

as Claimant

against the club,

OFK Titograd, Montenegro

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 31 July 2018, the Serbian player, Marko Pavicevic (hereinafter: the player or the Claimant), and the Montenegrin club, OFK Titograd (hereinafter: the club or the Respondent), signed an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2019.

2. In accordance with art. 2 of the contract, the Claimant was entitled to a monthly salary of EUR 300.

3. Furthermore, art. 2 of the contract further provided that the player was entitled to EUR 2,200 per month as “special allowance for subsistence, fees for engagement in practice, special effort and contribution to matches”.

4. The contract provides in its art. 12.4 that: “In the event of a dispute, the Contracting Parties shall determine the jurisdiction of the FSCG Arbitration Tribunal. The Club and the Player undertake not to resolve disputes arising out of this Contract before the ordinary court. The club and the player undertake to fully comply with all FSCG regulations.”

5. By correspondence dated 9 January 2020, the Claimant put the Respondent in default of payment of EUR 2,500 corresponding to the total remuneration for the month of May 2019 and gave 10 days for the Respondent to comply.

6. On 22 January 2020, the Claimant lodged a claim against the Respondent before FIFA, requesting outstanding remuneration in the total amount of EUR 2,500 plus 5% interest as from 1 June 2019 until the date of effective payment.

7. In his claim, the Claimant held that despite his default notice, the Respondent did not comply and that his remuneration for May 2019 remained outstanding.

8. In its reply, the Respondent contested the competence of FIFA arguing that pursuant to art. 12.4 of the contract, the NDRC of Montenegro is competent. In this regard, the Respondent provided a “confirmation” from the Montenegro FA arguing that it is an “independent and duly formed arbitral tribunal competent to resolve disputes between clubs and players” and that it “guarantees fair proceedings in which equal treatment of all parties is ensured”.

9. On his end, the Claimant held that the NDRC of Montenegro “does not comply with the minimum procedural standards for the independent arbitration tribunals as laid down in art. 22. B) of the FIFA Regulations and in accordance to Circular no- 1010, fair proceedings for foreign players cannot be granted”.

10. As to the substance, the Respondent held that at the end of May 2019 all the players were fined by the Respondent due to non-achievement of the objectives.

11. The Respondent explained that the Claimant was allegedly fined EUR 2,200 corresponding to the remuneration of art. 2.2 of the contract and EUR 150 as half of the remuneration provided in art. 12.1 of the contract.

12. The Respondent acknowledged a debt of maximum EUR 150 and added that should the players achieve the objective they can get from the club EUR 1,000 and that the fine is therefore proportionate to that amount.

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 22 January 2020. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2019; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the Procedural Rules states that the Dispute Resolution Chamber shall examine its jurisdiction in the light of art. 22 to 24 of the Regulations on the Status and Transfer of Players. In accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations, the Dispute Resolution Chamber would, in principle, be competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Serbian player and a Montenegrin club.

3. 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 art. 12.4 of the contract which stipulates that “In the event of a dispute, the contracting parties shall determine the jurisdiction of the FSCG Arbitral Tribunal. The club and the player undertake not to resolve disputes arising out of this contract before the ordinary court. The club and the player undertake to fully comply with all FSCG regulations”. On the basis thereof, the Respondent argued that the NDRC of Montenegro is competent.

4. In this regard, the Chamber noted that the Claimant rejected such position and insisted that FIFA has jurisdiction to deal with the present matter.

5. While analysing 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 another organ than the DRC is competence 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 favour of the NDRC of Montenegro within the Football Association of Montenegro.

6. However, the DRC emphasised 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.

7. Having examined the relevant provision, the Chamber acknowledged that art. 12.4 constitutes a clear jurisdiction clause in favour of the FSCG (Football Association of Montenegro) Arbitration Tribunal. However, the DRC was also forced to observe that the Respondent had failed to provide any relevant documentation allowing it to assess the respect, in particular, of the principle of equal representation of players and clubs and principles provided in the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the DRC deemed that a declaration from the Montenegrin Federation did not constitute a sufficient evidence.

8. 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.

9. Subsequently, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2020) and, on the other hand, to the fact that the present claim was lodged on 22 January 2020. The Dispute Resolution Chamber concluded that the 2020 version of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

10. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts 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.

11. In this respect, the Chamber observed that the parties had signed an employment contract on 31 July 2018, in accordance with which the player was entitled to receive, inter alia, the amount of the amount of EUR 300 as monthly remuneration and an additional monthly fee of EUR 2,200 as special allowance.

12. In continuation, the Chamber noted that the Claimant alleged that the Respondent failed to pay the alleged outstanding amount of EUR 2,500. Consequently, the Claimant asked to be awarded the payment of the total amount of EUR 2.500 plus 5% interest as 1 June 2019.

13. In this context, the Chamber took particular note of the fact that, on 9 January 2020, the Claimant put the Respondent in default of the payment of the aforementioned amounts, setting a 10 days’ time limit in order to remedy its default.

14. Consequently, the DRC concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

15. Having said that, the Chamber took note of the reply of the Respondent, which asserted that it had imposed a fine of EUR 2,200 on the Claimant due to non achievement of the objectives and that as such, for the month of May, only EUR 150 remained outstanding in favour of the player.

16. In view of the above, the Chamber emphasized that in accordance with the legal principle of the burden of proof, which is a basic principle in every legal system, a party deriving a right from an asserted fact has the obligation to prove the relevant fact (cf. art. 12 par. 3 of the Procedural Rules). In this regard, the Chamber duly took note that the Respondent provided documentation to attest that the fine was duly imposed on the Claimant, in particular, it provided the disciplinary rules of the club. However, the decision of the board imposing said fine was not provided.

17. With regard to the fine, the Chamber was eager to underline that in any case, the decision of the Board having not been provided, the DRC was not in capacity to assess said fine, and was of the opinion that the Respondent had not provided sufficient evidence that a fine had indeed been legitimately imposed on the player justifying the non payment of some amounts in May. The DRC was therefore of the opinion to disregard said fine.

18. In view of the above, and based on the documentation currently at its disposal, the Chamber unanimously came to the conclusion that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence, and that the Respondent had failed to provide a conclusive reason for the delay in payment.

19. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration for the month of May 2019 in the total amount of EUR 2,500 corresponding to the following:

 EUR 300 for the salary of May 2019;

 EUR 2,200 for the special allowance of May 2019.

20. In addition, the Chamber established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

21. Consequently, the DRC decided that, in accordance with the legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 2,500.

22. In addition, taking into consideration the claim lodged by the Claimant, as well as the constant practice of the DRC, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the total amount, as of 1 June 2019, until the date of effective payment.

23. In continuation, taking into account the consideration under number II./20. above, the DRC referred to art.12bis par. 2 of the Regulations which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

24. The DRC established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Therefore, and in the absence of the circumstance of repeated offence, the DRC decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

25. In this connection, the DRC wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

26. Furthermore, taking into account the consideration under number II./9. 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.

27. 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.

28. 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.

29. 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.

II. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Marko Pavicevic, is admissible.

2. The claim of the Claimant is accepted.

3. The Respondent, OFK Titograd, has to pay to the Claimant outstanding remuneration in the amount of EUR 2,500 plus 5% interest p.a. as from 1 June 2019 until the date of effective payment.

4. A warning is imposed on the Respondent.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 3 above.

6. The Respondent shall provide evidence of payment of the due amount in accordance with point 3 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due plus interest in accordance with point 3 above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note 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). 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

For the Dispute Resolution Chamber:

Emilio Garcia Silvero

Chief Legal & Compliance Officer