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 13 August 2020

Decision of the

Dispute Resolution Chamber

passed on 13 August 2020,

regarding an employment-related dispute concerning the player Aleksandar Gojkovic

COMPOSITION:

Geoff Thompson (England), Chairman Alexandra Gómez Bruinewoud (Uruguay/the Netherlands), member Pavel Pivovarov (Russia), member

CLAIMANT:

Aleksandar Gojkovic, Serbia

Represented by Mr Nenad Curkovic

RESPONDENT:

Larissa FC, Greece

Represented by Mr Konstantinos Zemberis & Mrs Chrissa Sevastopoulou

I. FACTS OF THE CASE

1. On 28 August 2018, the Serbian player Aleksandar Gojkovic (hereinafter: player or Claimant) and the Greek club, Larissa FC (hereinafter: club or Respondent) signed an employment contract (hereinafter: the contract) valid as of the date of signature until 30 June 2020.

2. Art. 10 of the contract provides that: “All disputes between the parties are settled by the Appeals Committee for the Resolution of Financial Disputes (PEEOD) at first instance, and the Court of Arbitration of the H.F.F. at second instance”.

3. In addition, on 2 August 2019, the parties concluded an Amendment to the contract (hereinafter: the amendment), stipulating, inter alia, the following:

“*The contract ends on the 30/6/2022.

*the monthly salary fees are to the amount of 626.68€ net (note: payable at the end of each month in accordance with the contract)

*the bonuses for seasons 2019-20, 2020-21 and 2021-22 are: for winning the national cup 5.000,00€ net, only if the player has played 75% of official cup games in every season {at least 45 minutes in each game). For promoting to UEFA competitions through the final position of the club in the league table 5.000,00€net, only if the player has played 75% official league games in every season (at least 45 minutes in each game), all bonuses are paid on 31st of December of the year after the end of every season.

*all amounts paid to the player are net.

* For season 2019-20 the player will receive 44.400,00€ net in 12 monthly installments of 3.700,00€ net each starting on 31/7/2019 and ending on 30/6/2020 (every end of month),

* For season 2020-21 the player will receive 44,400,00€ net in 12 monthly instalments of 3.700,00€ net each starting on 31/7/2020 and ending on 30/6/2021(every end of month),

* For season 2021-22 the player will receive 44.400,00€ net in 12 monthly instalments of 3,700,00€ net each starting on 31/7/2021 and ending on 30/6/2022(every end of month).”

4. Art. 2 of the amendment stipulated that the parties executed the contract concluded on 23 January 2018 and that they amended its terms as provided above.

5. Neither the contract nor the amendment does contain an art. 28b.

6. On 10 March 2020, the player sent a “Warning letter” indicating the following: “On this day, the club owes (…) salaries for 5 months (November, December 2019 and January, February and March 2020) in total amount of 21,030.00 EUR. Hereby I kindly ask from you to pay him the whole debt within 15 days of the receipt of this letter or he will use a right to terminate present Contract with your Club.”

7. On 10 April 2020, the player sent an additional “Warning letter”, requesting the payment of the previously indicated amount within 15 days, while referring to art 14 bis RSTP.

8. On 14 April 2020, the club replied to the player’s letter, as follows: “We have studied your warning letter, received on April 10, 2020, and we would like to point out the following:

First of all, the FIFA Regulations on the Status and Transfer of Players are not applicable in this case, because, as you already know, your client’s employment contract contains a clause (no 10), according to which: All disputes between the parties are settled by the Appeals Committee for the Resolution of Financial Disputes (PEEOD), at first instance, and the Court of Arbitration of the Hellenic

Football Federation (hereinafter HFF) at second instance.

(…)

The HFF of course has issued a Regulation on the Status and Transfer of Players since June 2018, stipulating a procedure similar to the one prescribed in the corresponding FIFA Regulation. This procedure starts with a mandatory extra judicial warning on behalf of the player, after witch an 8 days deadline is granted to the FC to pay any outstanding salaries.

However on April 9, 2020 this procedure, as you already know, has been suspended by the HFF Governing Committee until June 30, 2020, due to the unprecedented and prolonged financial crisis caused by the government’s restrictive measures to fight COVID -19. According to these measures no matches (official and unofficial) and no training sessions are allowed from March 18, 2020 up to this very day. It is widely recognized that all Clubs are currently unable to fulfill their financial obligations.

The Bureau of the FIFA Council has already recognized that the disruption to global football caused by COVID -19 is a case of force majeure.

Therefore, [the player] has no right to unilaterally terminate his employment contract after the expiration of the 15 days deadline granted in your warning letter. Any unilateral termination of the contract on behalf of your client on the basis of outstanding salaries is null and void within the above time limit (until June 30, 2020).

Our FC shall pay all and any outstanding salaries to our players after the end of the suspension of the procedures and according to Greek law, HFF Regulations and cash flow.”

9. On 26 May 2020, the player sent a termination letter indicating the following: “According to the art. 14bis of the Regulations on the Status and Transfer of Players, hereby I am terminating professional contract signed with the Club on 23 January 2018 which is extended with Amendment until 30. June 2022. On 10 march I sent you warning letter asking from you to pay me salaries and monthly installments for 5 months (November, December 2019 and January, February and March 2020) in total amount of 21,030.00 EUR. I also addressed to you via attorney at law on 23 May with the request to let me know the training schedule. I came to the Greece on your call 20 days ago, and after several verbal calls and after we sent you the mentioned mail, you still have not respond to me or to my lawyer on asked question. As I was not allowed to attend the team trainings and as you did not fulfill your financial obligations in stipulated deadline I am using my right to terminate present contract with just cause.”

10. On 27 May 2020, the player lodged a claim before FIFA for outstanding remuneration and breach of contract, and requested the payment of the following amounts:

- EUR 22,560 net, plus 5% interest p.a. as from 27 May 2020, as outstanding remuneration and corresponding to six salaries (for five months plus one as easter bonus) in the amount of EUR 626.68 net per month, and five installments in amount of EUR 3.700,00 per month;

- EUR 110,654 net, plus 5% interest p.a. as from 27 May 2020, as compensation for breach of contract;

- “all costs of the proceedings”.

11. The player stated that “the present matter is simple - the Club has never paid outstanding amounts (…), as stipulated” and that he had just cause to terminate the contract.

12. Moreover, the player sustains that the DRC is competent to adjudicate any potential dispute between the parties in accordance with “Article 28b of the Agreement”.

13. In its reply to the claim, the Respondent questioned the competence of FIFA and alternatively, requested to reject the claim.

14. The club referred to the jurisdiction clause contained in art. 10 of the contract and sustained that such clause had been mutually agreed by the parties and that it is a clear jurisdiction clause in favour of the mentioned bodies in it.

15. In addition, the club recalled that in its opinion “The Financial Dispute Resolution Committee of the HFF (PEEOD), as well as the second instance judicial body of the HFF (Arbitration Court) are among the judicial bodies that have been expressly recognized by both the CAS and FIFA as independent arbitration tribunals guaranteeing fair proceedings, as required by the FIFA RSTP”.

16. As such, the club rejected the existence of art. 28b supposedly giving competence to the DRC, it held that the player did not provide any evidence or arguments contesting the competence of the Greek bodies and insisted on the lack of competence of FIFA in accordance with the aforementioned considerations.

17. Finally, the club referred to the content of its letter dated 14 April 2020 and explained that “It is of course clear that nothing or nobody prevented the Claimant to lodge (- send) his claim before the competent judicial bodies of Hellenic Federation on 27.5.2020, as he did before the FIFA DRC, so that it would be judged immediately after the end of suspension, i.e. after 30/6/2020. And it is also true that the hearing of his claim before the competent Committee of HFF would have been set much earlier than the hearing before the FIFA DRC, since the recent lodged claims before PEOD of HFF have been already set to be heard on 13.7.2020”.

18. As to the substance, the club firstly explained that when the Claimant’s first warning letter was sent to it on 10 April 2020, the date on which the legal effect of his labour contract was already suspended for an indeterminate period due to decision taken by the Greek authorities in reaction to the Covid-19 outbreak on 12 March 2020 which suspended the professional championship.

19. Moreover, the club deemed that on 21 March 2020, the Greek authorities decided that “the employees were not entitled to their salary, for the period the business was closed due to the State decision, since this was considered a force majeure event and since the employees did no work at all during that period”.

20. As such, the club deemed that it was not obliged to pay the player’s salary for March and April 2020 and that the easter bonus amounted only to “half a salary that is 313.34€ and not a full salary as mistakenly mentioned in the player’s claim”.

21. Furthermore, the club sustained that it paid on 29 April 2020 part of the outstanding salaries owed to the player, i.e. the salaries of November and December 2019, and that it had never denied to pay the salaries of January and February 2020 as soon as possible despite the financial difficulties it was undergoing.

22. In continuation, the club sustained that, once the individual or small group training sessions started again as of 5 May 2020, the player came back to Greece from Serbia on 6 May 2020 and was quarantined for 14 days after being tested to Covid-19. Consequently, he could have resumed the training sessions just before terminating the contract, which he did on 26 May 2020, i.e. with an alleged bad faith in order to gain more in front of the DRC than he would have in front of the HFF.

23. In consideration of all the above, the club requested the following :

“i. to rule that it is not competent to decide on the present matter;

ii. to reject the claim as inadmissible;

iii. to rule that the Claimant shall bear any and all costs of the proceedings.

Subsidiarily and only in the event that the above is rejected,

i. to rule that no breach of contract occurred by our club and that the

outstanding salaries towards the Claimant amount to only 8,966.70 euros;

ii. to reject the claim as groundless;

iii. to rule that the Claimant shall bear any and all costs of the proceedings.

Subsidiarily and only in the event that the above is rejected,

i. to rule that the outstanding salaries towards the Claimant amount to only

8,966.70 euros and to reject the claim as abusive or to rule that the

outstanding salaries towards the Claimant amount to only 8,966.70 euros and

to diminish the compensation payable for alleged breach of contract taking

into consideration the overall circumstances of the case and the obligation of

the Claimant to mitigate his damages;

ii. to rule that the Claimant shall bear any and all costs of the proceedings.”

24. Upon being requested by FIFA, the player confirmed that he remained unemployed as of the termination of his contract.

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the Dispute Resolution Chamber (hereinafter also referred as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 27 May 2020. Consequently, the DRC concluded that the November 2019 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).

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 June 2020), the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Serbian player and a Greek club.

3. However, the DRC acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of art. 10 of the contract highlighting that the “The Financial Dispute Resolution Committee of the HFF (PEEOD), as well as the second instance judicial body of the HFF (Arbitration Court)” are independent deciding bodies and competent to deal with the matter, which was previously “recognized by both the CAS and FIFA as independent arbitration tribunals guaranteeing fair proceedings”.

4. Taking into account the above, the Chamber 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 Chamber referred to FIFA Circular no. 1010 dated 20 December 2005. In this regard, the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

5. In continuation, the DRC wished to stress that the club failed to submit any regulations of the allegedly competent deciding bodies. In this respect, the members of the Chamber pointed out that the Respondent was unable to prove that, in fact, the Greek deciding bodies currently meet the minimum procedural standards for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status and Transfer of Players, in FIFA Circular no. 1010 as well as in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations.

6. In view of all the above, the DRC established that the club’s objection to 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.

7. 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 June 2020), and considering that the present claim was lodged on 27 May 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

8. 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.

9. First of all, the members of the Chamber recalled that, on 23 January 2018, the parties concluded a contract, valid as of 23 January 2018 until 30 June 2022, taking into account the amendment.

10. In continuation, the DRC noted that the Claimant lodged a claim against the Respondent maintaining that he had terminated the contract with just cause on 26 May 2020 since the club failed to remit remuneration in the total amount of EUR 21,030, corresponding to 5 monthly salaries. Consequently, the Claimant asks to be awarded his outstanding dues as well as the payment of compensation for breach of the employment contract.

11. The Respondent, for its part, rejected the claim and held that the player terminated the contract without just cause. In its argumentation it held that certain payments were not payable due do the Covid-19 pandemic.

12. Having said this, the DRC acknowledged that the central issue in the matter at stake was to determine as to whether the contract was terminated by the Claimant with or without just cause and to decide on the consequences thereof.

13. With the above in mind, 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.

14. Subsequently, the DRC recalled that the Claimant put the Respondent in default twice, i.e. on 10 March 2020 and 10 April 2020, giving the Respondent 15 days to remedy its default, before he terminated the contract on 26 May 2020 by means of a letter, referring to outstanding remuneration.

15. In this context, the members of the Chamber established that the Respondent failed to proof that it actually remitted the amounts claimed by the player. In this context, the DRC pointed out that the Respondent failed to submit any evidence regarding the claimed payments and that it solely relied on the argumentation that certain amounts were not due based on the COVID-19 pandemic.

16. As such, the members of the Chamber noted that even though the default notices were sent during the period of the COVID-19 outbreak, as invoked by the Respondent in order to contest the Claimant’s request, said outstanding remuneration was almost exclusively due prior to said the period of COVID-19.

17. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, 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 clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

18. For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as the FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a player’s salary.

19. On account of the above, the DRC rejected the Repsondent’s argumentation. As such, considering the outstanding monthly payments upon termination, we would suggest that the Claimant terminated the contract with just cause on 26 May 2020.

20. Consequently, considering that the Respondent had thus repeatedly and for a significant period of time been in breach of its contractual obligations towards the Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the employment contract on 26 May 2020 and that, as a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

21. Subsequently, prior to establishing the consequences of the termination of the employment contract with just cause by the Claimant in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it, in general, had to address the issue of unpaid remuneration at the moment when the contract was terminated by the Claimant.

22. Bearing in mind the considerations above, and in accordance with the general legal principle of pacta sunt servanda, the Chamber established that the Claimant is entitled to EUR 21,957.74, corresponding to award 5 monthly salaries of EUR 628.68 each (November 2019 to March 2020), i.e. EUR 3,143.40, plus one easter bonus amounting to half a salary as stipulated in the contract (EUR 314.34) as well as to 5 monthly instalments of EUR 3,700 each (November 2019 to March 2020), i.e. EUR 18,500.

23. In addition, taking into consideration the player’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as requested, as of the date of claim, i.e. 27 May 2020.

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

25. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant 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.

26. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

27. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. In this regard, the Dispute Resolution Chamber emphasised beforehand that each request for compensation for contractual breach has to be assessed by the Chamber on a case-by-case basis taking into account all specific circumstances of the respective matter.

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

29. 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 the date of termination with just cause by the Claimant until its natural expiration. Furthermore, the Chamber took into account the amount claimed by the player and consequently, the Chamber concluded that the amount of EUR 110,654 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 verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

31. In this respect, the Chamber noted that the Claimant had not found new employment.

32. Consequently, on account of the above-mentioned considerations, the Chamber decided that the Respondent must pay the amount of EUR 110,654 as compensation for breach of contract to the Claimant, which is considered by the Chamber to be a fair and reasonable amount.

33. In addition, taking into consideration the player’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the date of the claim, i.e. 27 May 2020, until the date of effective payment.

34. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

35. The DRC concluded its deliberations by rejecting any further claim of the Claimant.

36. Furthermore, taking into account the consideration under number II./7. 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.

37. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the Respondent. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.

38. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount 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.

39. Finally, the Chamber recalled that the above-mentioned sanction 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, Aleksandar Gojkovic, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Larissa FC, has to pay to the Claimant, the following amount:

- EUR 21,957.74 as outstanding remuneration plus 5% interest p.a. as from 27 May 2020 until the date of effective payment.

- EUR 110,654 as compensation for breach of contract plus 5% interest p.a. as from 27 May 2020 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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.

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).

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