F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 25 March 2021

Decision of the

Dispute Resolution Chamber

passed on 25 March 2021

regarding an employment-related dispute concerning the player Aleksandar Pešić

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Daan de Jong (Netherlands), member

Alexandra Gómez Bruinewoud (Uruguay and Netherlands), member

CLAIMANT:

Aleksandar Pešić, Serbia

Represented by Mr. Davor Radić

RESPONDENT:

Al Ittihad, Saudi Arabia

Represented by Mr. Jan Kleiner

I. FACTS OF THE CASE

1. On 11 July 2018, the Serbian player, Mr. Aleksandar Pešić (hereinafter: the player or the Claimant), and the Saudi Arabian club, Al Ittihad (hereinafter: the club or the Respondent), signed an employment contract valid as from 15 July 2018 until 30 June 2021 (hereinafter: the contract).

2. In accordance with item 4 of the contract, the club undertook to pay the player, inter alia, the total amount of USD 4,800,000 net, “in the form of 36 equal monthly instalments of USD 133,333.33 (one hundred thirty-three thousand three hundred and thirty-three US Dollars and 33 cents) by no later than the last day of each month that the salary refers to”.

3. Additionally, item 6 of the contract established the following:

“[The club] may not delay payment of [the player’s] salaries or terminate the contract due to player's injury during matches or training. In terms of timely payment of all the cash benefits specified in Item 4 of this Contract, the Parties agree on the following:

[...] b) In case [the club] afterwards fails to pay to [the player] monetary amounts amounting to three (3) monthly instalments referred to in Item 4, Paragraph 1 - point b) of this Contract (USD 400,000.00 net), [the player] is obliged to send [the club] notice in writing warning he will unilaterally terminate the contract for such non-payment and give it a further term of ten (10) working days to pay in full such monetary amount. If within the next ten (10) working days, [the club] fails to pay to [the player] this monetary amount, the [the player] shall have the right to unilaterally terminate this Contract and to request payment of an amount equaling twelve monthly instalments {Item 4, Paragraph 1 - point b) as liquidated damages. No further damage shall be due in such a scenario and the parties further acknowledge that article 17.1 (ii) of the FIFA Regulations on the Status and Transfer of Players will not apply in the sense that no additional compensation will be due to Second Party and no deduction from the agreed amount will apply.

The Parties furthermore agree that [the club] has the right to unilaterally terminate this contract at any time with the payment of an amount equaling twelve monthly salaries. This termination shall be considered justified and no sporting sanction shall apply on [the club] if payment is made of this amount”.

4. Finally, as per item 10, par. 5 of the contract:

“The Player may decide to prematurely terminate this contract without just cause in order to transfer to another football club by paying [the club] the amount of USD 8.000.000 (eight million US Dollars). In this scenario no sports sanction may imposed on the Player since this clause must be interpreted as so called ‘buy-out clause’”.

5. On 31 January 2019, the club and the Korean club FC Seoul agreed on the loan of the player from the former to the latter as from 1 February 2019 to 30 June 2020 (hereinafter: the loan agreement). In parallel, the player and the club signed an “Agreement between the player Aleksandar Pešić and Ittihad FC regarding the loan to FC Seoul in the winter registration period of 2019 until 30 June 2020” (hereafter: the supplementary agreement) and formalized the following:

“2. during the loan period, [the club] will timely pay 50% of the players monthly wage, as agreed in [the contract] signed between [the player] and [the club] on 11 July 2018. [The player] hereby confirms and agrees that [the club] does not have to pay any other amount as provided for in [the contract] signed between the Parties on 11 July 2018 for the whole duration of the loan. In addition, both Parties agree that the mechanism established in Item 6 of [the contract] between [the player] and [the club] shall equally remain in force during the loan period of [the player] to FC Seoul.

3. to pay [the player] two monthly wages which are due (for the months of December 2018 and January 2019), no later than February 5, 2019. [The player] hereby confirms and agrees that no other amount is outstanding in what concerns the period of July 2018 – January 2019 [...]”.

6. On 14 February 2020, the player sent the club an e-mail informing that his salaries from August 2019 to January 2020 remained unpaid. The player also requested the club to send him “in next 7 (seven) days, by this email your proof of that all payments during the loan period of the Player (i.e. payments after 31 January 2019 until today)” in order to confirm the quantum of the outstanding remuneration.

7. On 25 February 2020, the club provided its response to the player and stated that “the due salary for your client is: September-October-November-December 2019 + January 2020”.

8. Also on 25 February 2020, the player sent the club a new e-mail pointing out that he had received the following payments:

a. On 11 February 2019, EUR 105,142.15 (salary of January 2019);

b. On 7 March 2019, EUR 15,352.17 (salary of February 2019);

c. On 1 April 2019, EUR 102,425.71 (salaries of February and March 2019);

d. On 15 May 2019, EUR 58,158.42 (salary of April 2019);

e. On 26 September 2019, USD 66,652 (salary of May 2019);

f. On 31 December 2019, USD 66,652 (salary of June 2019); and

g. On 5 February 2020, USD 66,652 (salary of July 2019).

9. In the same letter, the player wrote as follows: “If you make some another payment, because you said to us that as your calculation debt is 5 salaries please send as proof of that another payment (SWIFT bank account)”.

10. On 12 March 2020, the player put the club in default providing it with a 10 days’ deadline in order to proceed the payment of USD 466,600, corresponding to his salaries from August 2019 to February 2020.

11. On 23 March 2020, the player sent the club a reminder via e-mail and requested an acknowledgment of receipt of his previous communication.

12. On 20 April 2020, the club replied to the player’s notice and referred to COVID-19’s effects on the club (e.g. suspension of sport activities, precautionary measures, financial impact and force majeure).

13. On 29 April 2020, the club sent the player another letter by means of which it reiterated the impacts of the COVID pandemic and notified him the policy of salaries’ reduction that would be adopted by the club in the following months, in verbis:

“The policy that will have to be applied during COVID-19 pandemic is the following:

- For all employees, a basic amount of SAR 20'000.-/per month remains guaranteed.

- The part of the contractually agreed monthly salary exceeding SAR 20,000. - will be reduced by 50%.

- Period of the policy: 15 March 2020 until the resumption of the sportive activities, club training and the disappearance of the COVID-19 pandemic.

Since your client belongs to the group of high-income earners of the professional players at [the club], he is subject to the above-mentioned policy”.

14. On 2 May 2020, the player wrote to the club and established the following: “[The player] will not accept propositions of [the club] in regard to the payment of his income in the period from 15 March 2020 until the continuation of sports activities, club’s trainings and the disappearance of COVID-19”. As a reason for his denial, the player stressed, inter alia, that: (i) he was currently playing for Seoul FC; (ii) he had already agreed on a reduction of 50% of his salary in accordance with the supplementary agreement; and (iii) the club was not complying with its financial obligations towards the player.

15. In the same opportunity, the player granted the club another 10 days’ deadline in order to proceed the payment of his outstanding remuneration in the amount of USD 500,000.

16. On 7 June 2020, the club replied to the player and once again referred to the COVID pandemic as the cause of its default. Moreover, the club mentioned the following: “I can confirm that by no later than 1 July 2020, any overdue payments existing today will be settled to your client”.

17. On 12 June 2020, the club wrote to the player and stated, inter alia, as follows:

”[...] We wish to assure you that [the club] continues to make its best efforts to pay all outstanding salaries. It has been informed that a substantial payment can be made in the coming days. Moreover, the funds that are further required will be made available at the latest by the end of the current month, so that by that time, we can settle all pending financial obligations.

We would also like to maintain our on-going discussions with you as to how the current COVID-19 crisis can be addressed within the current employment relationship between our clients, in a transparent manner and based on good faith”.

18. On the same date, 12 June 2020, the player answered the club’s correspondence and said that he was happy to receive such a guarantee of payment.

19. On 4 September 2020, the player sent the club another default notice informing that, until that date, he had only received the total amount of USD 187,709, so that the club still owed him USD 812,288. As a consequence, the player put the club in default providing it with a 15 days’ deadline in order to pay his outstanding remuneration, under penalty of terminating the contract with just cause.

20. On 21 September 2020, the Player notified the club the termination of the contract with just cause and, apart from his outstanding remuneration, also claimed an additional payment of 12 salaries as compensation for breach of contract (cf. item 6b of the contract).

21. On 4 October 2020, the player signed a new employment contract with the Israeli club, Maccabi Tel Aviv FC. In accordance with the information available in the Transfer Match System (TMS), such employment relationship is valid as from 4 October 2020 until 31 May 2021 and the player is entitled to a monthly salary of EUR 43,750 net during season 2020 and of EUR 33,333 during season 2021/2022.

II. PROCEEDINGS BEFORE FIFA

22. On 23 November 2020, the player filed the claim at hand before FIFA requesting, inter alia, the following amounts:

a. USD 905,689.99 as outstanding remuneration, broken down as follows:

i. USD 66,667 net, plus 5% interest p.a. as from 1 September 2019;

ii. USD 66,667 net, plus 5% interest p.a. as from 1 October 2019;

iii. USD 66,667 net, plus 5% interest p.a. as from1 November 2019;

iv. USD 66,667 net, plus 5% interest p.a. as from1 December 2019;

v. USD 66,667 net, plus 5% interest p.a. as from1 January 2020;

vi. USD 66,667 net, plus 5% interest p.a. as from1 February 2020;

vii. USD 12,354 net, plus 5% interest p.a. as from 1 April 2020;

viii. USD 33,333.50 net, plus 5% interest p.a. as from 1 May 2020;

ix. USD 33,333.50 net, plus 5% interest p.a. as from 1 June 2020;

x. USD 67,667 net, plus 5% interest p.a. as from 1 July 2020;

xi. USD 133,333.33 net, plus 5% interest p.a. as from 1 August 2020;

xii. USD 133,333.33 net, plus 5% interest p.a. as from 1 September 2020; and

xiii. USD 93,333.33 net, plus 5% interest p.a. as from 22 September 2020.

b. USD 1,600,000 net, plus 5% interest as from 22 September 2020, as compensation for breach of contract (cf. item 6 of the contact).

23. In his claim, the player recalled, inter alia, the principle of pacta sunt servanda, CAS’ jurisprudence, Swiss law and the contents of article 14bis of the FIFA Regulations on the Status and Transfer of Players (RSTP) in order to justify that he prematurely terminated the contract with just cause.

24. In support of the above, the player pointed out that, by letter dated 4 September 2020, he put the club in default and granted it with a 15 days’ deadline in order to cure its breach, to no avail.

25. Consequently, the player referred to art.17, par. 1 of the FIFA RSTP, as well as to item 6 of the contract, which he defined as “clear, reciprocal, balanced and gives no room for ambiguity”. As a consequence, the player stressed that he is entitled to a compensation for breach of contract equal to 12 monthly salaries (i.e. USD 1,600,000).

26. At the end, the player expressly requested that all amounts charged should be granted to the player net, as stipulated in the contract.

27. In spite of having been invited to do so, the club failed to submit any reply to the player’s claim within the granted deadline, i.e. 20 December 2020.

28. On 4 January 2021, the FIFA general secretariat closed the investigation of the matter and informed that no further submissions from the parties would be admitted to the file (cf. art. 9 par. 4 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

29. On 13 January 2021, the club filed an untimely answer with enclosures.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

30. 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 presented to FIFA on 23 November 2020 and submitted for decision on 25 March 2021. Taking into account the wording of art. 21 of the January 2021 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.

31. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed 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 February 2021), 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 Serbian player and a Saudi Arabian club.

32. 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 Player (edition February 2021), and considering that the present claim was lodged on 23 November 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

33. 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. Likewise, the DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

34. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

35. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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.

i. Main legal discussion and considerations

36. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the player lodged a claim against the club seeking payment of outstanding remuneration and compensation for breach of contract, claiming that he had just cause to terminate the contract.

37. Subsequently, the DRC observed that the club, for its part, failed to present its response to the claim of the player, in spite of having been invited to do so. In this way, the DRC considered that the club renounced its right to defence and thus accepted the allegations of the player.

38. For the sake of completeness, the DRC was firm to determine that the late response filed by the club is inadmissible in line with art. 9 par. 3 and 4 of the Procedural Rules, insofar as such submission was filed after the deadline granted and after the closure of the investigation phase of the dispute.

39. Furthermore, as a consequence of the aforementioned consideration, the DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the player.

40. In this respect, the DRC turned to the evidence on file and noted that it was clear that upon the termination of the contract, not only the club had been warned and granted a deadline of 15 days to cure its breach, but also the payments defaulted amounted to a significant part of the player’s remuneration for the season (i.e. his monthly salaries from August 2019 until September 2020).

41. The Chamber then recalled the solid DRC jurisprudence according to which such persistent and substantial non-compliance of the contractual obligations by the club can justify the unilateral termination of the agreement as well as it can hold the club liable for breach of contract.

42. Based on the foregoing and having in mind the contents of art. 14bis of the Regulations, the DRC unanimously decided that the player had just cause to terminate the contract.

ii. Consequences

43. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the club.

44. In this regard, the DRC sought to establish which payments had remained outstanding at the time of the termination. In addition, taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is entitled to receive compensation from the club for the termination of the contract with just cause.

45. With due consideration of the above, the Chamber took note of the fact that the player was firstly entitled to monthly remuneration in the amount of USD 133,333.33 and, as per the supplementary agreement, he agreed upon the reduction of 50% of his monthly entitlements (i.e. USD 66,667) during the term of the loan agreement.

46. The Chamber equally took due note of the club’s argumentation in its correspondences to the player regarding the effects of the COVID-19 pandemic.

47. Accordingly, the Chamber firstly wished to highlight that FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

48. The DRC also wished to refer to the fact that said guidelines – as per the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only applicable to “unilateral variations to existing employment agreements”. Therefore, except where a termination of a contract occurred following a unilateral variation made as a result of COVID-19 (in which case the validity of the variation must first be assessed under the guidelines), said guidelines do not apply to assess unilateral terminations of existing employment agreements. The Chamber further noted that for the assessment of disputes that are presented before the FIFA judicial bodies concerning the unilateral termination of a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber shall apply.

49. Additionally, analysing the concept of a situation of force majeure, the members of the Chamber noted that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure.

50. In other words, in any given dispute, it is for a party invoking force majeure to establish the existence of said event under the applicable law/rules as well as the consequences that derive in connection thereto. The analysis of whether a situation of force majeure existed has to be considered on a case-by-case basis, taking into account all the relevant circumstances.

51. Following these general observations, the members of the Chamber went on to analyse whether in the matter at hand, any of the parties to the contract had made a unilateral variation to their existing agreement prior to the unilateral termination of the contract by the Claimant.

52. In this respect, the members of the Chamber agreed that the decision of the club to unilaterally reduce 50% of the player’s salary payments as from 15 March 2020 has to be considered as a unilateral variation to the employment relationship between the parties. It is clear to the members that the club did not terminate the contract, but only altered the salary payment. As a result, the members of the Chamber concluded that the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ are applicable to the matter at hand when having to assess the legitimacy of the pertinent unilateral alteration.

53. In the case at hand, in application of the FIFA COVID 19 Guidelines, the DRC noted that unilateral decisions to vary agreements will only be recognised where they are made in accordance with national law or are permissible within collective bargained agreements (CBA) structures or another collective agreement mechanism.

54. What is more, the Chamber stressed the contents of art. 12 par. 3 of the Procedural Rules, pursuant to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. As an example, a party should provide independent legal advice from a qualified legal practitioner in the relevant jurisdiction which confirms that the unilateral variation was a valid exercise of the national law referred to in the agreement, CBA, or other collective agreement mechanism.

55. Turning to the evidence on file as well as the submissions of the parties, and moreover taking into account that the club failed to timely present its reply to the claim, the Chamber confirmed that there is no argument nor evidence on file capable of demonstrating that the unilateral variation of the player’s salary was made on the basis of the national law, or any collective agreement. Furthermore, the DRC stressed that equally nothing on file is able to demonstrate that the national law does not address the issue of force majeure.

56. Based on the foregoing considerations, the Chamber unanimously concluded that the unilateral variation of the contract cannot be considered licit, entailing that the unilateral variation of the contract due to COVID outbreak shall be disregarded and, hence, that the club should have paid the player’s agreed remuneration as follows:

a. USD 133,333.33 net for the period between 15 July 2018 and 31 January 2019;

b. USD 66,667 net for the period between 1 February 2019 and 30 June 2020 (corresponding to the term of the loan agreement); and

c. USD 133,333.33 net for the period between 1 July 2020 and the termination (i.e. September 2020).

57. On account of the abovementioned considerations, the Chamber noted that the outstanding remuneration requested by the player in his claim is both contractually agreed and undisputed by the club. As a consequence and in accordance with the general legal principle of pacta sunt servanda, the Chamber concurred that the club is liable to pay to the player the following amounts which were outstanding under the contract at the moment of the termination:

- USD 66,667 corresponding to the salary of August 2019;

- USD 66,667 corresponding to the salary of September 2019;

- USD 66,667 corresponding to the salary of October 2019;

- USD 66,667 corresponding to the salary of November 2019;

- USD 66,667 corresponding to the salary of December 2019;

- USD 66,667 corresponding to the salary of January 2020;

- USD 12,354 corresponding to part of the salary of March 2020;

- USD 33,333.50 corresponding to part of the salary of April 2020;

- USD 33,333.50 corresponding to part of the salary of May 2020;

- USD 66,667 corresponding to the salary of June 2020;

- USD 133,333.33 corresponding to the salary of July 2020;

- USD 133,333.33 corresponding to the salary of August 2020; and

- USD 133,333.33 corresponding to the salary of September 2020.

58. Additionally, the DRC, in line with its constant jurisprudence as well as the requests of relief of the player, decided to grant interest at the rate of 5% per annum on said amounts as from their due dates (i.e. the following day upon which they fell due) until the date of effective payment.

59. Having stated the above, the Chamber turned its attention to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, 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.

60. 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 observed that the player requested the amount of USD 1,600,000 net as compensation for breach of contract in accordance with item 6 of the contract.

61. The DRC then proceeded to examine the wording of such clause, which reads, inter alia, as follows: “in case [the club afterwards fails to pay to [the player] monetary amounts amounting to three (3) monthly instalments referred to in Item 4, Paragraph 1 - point b) of this Contract (USD 400,000.00 net), [the player] is obliged to send [the club] notice in writing warning he will unilaterally terminate the contract for such non-payment and give it a further term of ten (10) working days to pay in full such monetary amount. If within the next ten (10) working days, [the club] fails to pay to [the player] this monetary amount, the [the player] shall have the right to unilaterally terminate this Contract and to request payment of an amount equalling twelve monthly instalments {Item 4, Paragraph 1 - point b) as liquidated damages […]”

62. The question that remained was to assess if such clause was reasonable and proportionate in light of the particularities of the case and the extensive jurisprudence of the DRC in this respect. Accordingly, the Chamber was of the opinion that such clause it is not reciprocal as it does not grant the same rights both to the player and the club. Therefore, the members of the Chamber decided that said clause cannot be taken into consideration in the determination of the amount of compensation insofar as it was not deemed reasonable.

63. As a consequence, the DRC 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.

64. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract until its expiry date. Consequently, the Chamber concluded that the amount of USD 1,200,000 (i.e. salaries from October 2020 until June 2021) serves as the basis for the determination of the amount of compensation for breach of contract.

65. 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 as well as art. 17 par. 1 lit. ii) of the Regulations, 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.

66. Indeed, the player found employment with Maccabi Tel Aviv FC. In accordance with the pertinent employment contract, the player was entitled to the monthly salary of EUR 43,750 net during 2020 and of EUR 33,333 during 2021. Therefore, the Chamber concluded that the player mitigated his damages in the total amount of USD 383,333.

67. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Chamber confirmed that the contract termination took place due to said reason i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation.

68. In this respect, the DRC highlighted that theoretically the player would be entitled to USD 400,000 as additional compensation (i.e. three times his monthly remuneration under the contract). However, the Chamber recalled that as per the clear wording of article 17 of the Regulations, the amount of compensation (including any additional compensation) cannot exceed the residual value of the contract.

69. As a consequence, it was decided to award the amount of additional compensation of USD 383,333 to the player.

70. Therefore, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of USD 1,200,000 to the player (i.e. USD 1,200,000 minus USD 383,333 plus USD 383,333) for breach of contract in the present matter.

71. With regard to the claimed interest, the Chamber, applying the constant practice of the DRC decided to award the player 5% interest p.a. on the said amount as from the date of the claim (i.e. 23 November 2020).

iii. Compliance with monetary decisions

72. Finally, taking into account the Regulations, 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.

73. In this regard, the DRC highlighted 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.

74. 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, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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.

75. The DRC recalled that the above-mentioned bans 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.

76. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

77. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

78. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Mr. Aleksandar Pešić, is partially accepted.

2. The Respondent, Al Ittihad, has to pay to the Claimant, the following amounts:

- USD 66,667 as outstanding remuneration plus 5% interest p.a. as from 1 September 2019 until the date of effective payment;

- USD 66,667 as outstanding remuneration plus 5% interest p.a. as from 1 October 2019 until the date of effective payment;

- USD 66,667 as outstanding remuneration plus 5% interest p.a. as from 1 November 2019 until the date of effective payment;

- USD 66,667 as outstanding remuneration plus 5% interest p.a. as from 1 December 2019 until the date of effective payment;

- USD 66,667 as outstanding remuneration plus 5% interest p.a. as from 1 January 2020 until the date of effective payment;

- USD 66,667 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;

- USD 12,354 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until the date of effective payment;

- USD 33,333.50 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until the date of effective payment;

- USD 33,333.50 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until the date of effective payment;

- USD 66,667 as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until the date of effective payment;

- USD 133,333.33 as outstanding remuneration plus 5% interest p.a. as from 1 August 2020 until the date of effective payment;

- USD 133,333.33 as outstanding remuneration plus 5% interest p.a. as from 1 September 2020 until the date of effective payment;

- USD 133,333.33 as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until the date of effective payment; and

- USD 1,200,000 as compensation for breach of contract plus 5% interest p.a. as from 23 November 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

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 amount.

5. The Respondent shall provide evidence of payment of the due amount 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 amount due, plus interest as established 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 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.

7. This decision is rendered without costs.

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.

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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777