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 21 October 2020
Decision of the
DRC Judge
passed on 21 October 2020,
regarding an employment-related dispute concerning the player Marko Mihajlovic
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Marko Mihajlovic, Serbia
Represented by SPFN
RESPONDENT:
Ramtha Club, Jordan
I. FACTS OF THE CASE
1. On 5 December 2019, the Serbian player, Mr Marko Mihajlovic (hereinafter: the player
or Claimant) and the Jordanian club, Ramtha Club (hereinafter: the club or Respondent)
signed an employment contract (hereinafter: the contract) valid as from the date of
signature until the “last official match in football season 2020”.
2. According to the contract, the Respondent undertook, inter alia, to pay the Claimant
the total amount of USD 37,000, to be paid in 10 monthly instalments of USD 3,700, as
from 10 January 2020 until 1 November 2020.
3. Moreover, as per the contract, the Respondent also undertook to provide the Claimant
with the following:
Housing allowance;
Transportation allowance;
“Two tickets back and forth during the season”;
USD 5,000 “if the club wins the league championship”;
USD 5,000 “if the club wins the Jordan Cup”.
4. With regard to the termination of the contractual relationship, art. 28 of the contract
provided that “(i)f the first party wishes to terminate the contract, the second party shall
be paid two months’ salary”.
5. By means of a letter dated 19 February 2020, the Claimant asked the Respondent to
stop discriminating him and to allow him to train with the team. On the same day, the
Respondent replied alleging that the situation described by the Claimant was fictitious.
6. On 20 February 2020, the Claimant reiterated the content of his letter dated 19 February
2020.
7. On the same day, i.e. 20 February 2020, the Respondent notified the Claimant of the
termination of the contract.
8. On 2 March 2020, the Claimant lodged a claim against the Respondent in front of FIFA.
9. In his claim, the Claimant held that as from 10 February 2020, the Respondent prevented
him from training with the team, without any explanation. The Claimant further stated
that the Respondent started putting pressure on him in order to terminate the contract.
10. Having said this, the Claimant argued to have fulfilled his duties in accordance with the
contract and pointed out that the Respondent had never punished him or initiated any
disciplinary procedures against him.
11. In continuation, the Claimant acknowledged that the Respondent had paid him the
salaries of January and February 2020 and part of March 2020, in the amount of
USD 800.
12. In light of the above, the Claimant considered that the Respondent had terminated the
contract without just cause and requested the payment of compensation for breach of
contract in the amount of USD 29,002.30, plus 5% interest as from 24 February 2020,
broken down as follows:
USD 2,900 corresponding to part of the salary of March 2020;
USD 25,900 corresponding to salaries as from April to October 2020;
USD 202.30 corresponding to an unpaid flight after the termination of the
contract.
13. In its reply to the claim, the Respondent first held that the Claimant had simulated an
injury during an official match against the club Al Salt on 31 January 2020. In this regard,
the Respondent referred to the “Weekly Medical Report” prepared by the club’s Sport
Therapist, Mr Mohammad Al-Momani Albullaith, by means of which he stated that:
On 1 and 2 February 2020, the Claimant did not train due to his injury, even
though “there were not any sign the injury during the clinical diagnosis”; and
On 3 February 2020, “Getting all the player ready for the match except Marko,
who were the only absentee.”
14. The Respondent further stated that the Claimant had verbally expressed his wish to
terminate the contract on 2 February 2020 and that he then “started making problems
with a team mate and uttered obscene words with the team manager”. In this regard,
the Respondent held that as of 4 February 2020, the Claimant was often late and missed
many training sessions. Against such background, the Respondent claimed to have asked
the Claimant on 12 February 2020 to stop behaving in such way, especially in view of
an important semi-final match against the club Al Sareh.
15. Furthermore, the Respondent stated that he invited the Claimant to attend a meeting
on 19 February 2020, with the intention of maintaining the contractual relationship
between the parties, but to no avail. As a consequence, the Respondent notified the
Claimant on 20 February 2020 about its decision to unilaterally terminate the contract.
16. Having said this, the Respondent pointed out that it had paid the amount of USD 5,000
to the Claimant on 8 December 2019 and that the parties had agreed to deduct said
amount from the Claimant’s salaries. In continuation, the Respondent claimed to have
made another payment on 15 January 2020 to the Claimant, in the amount of
USD 2,272.
17. The Respondent also contested the Claimant’s request for the payment of a flight ticket,
arguing that it had provided him with two tickets, on 21 November 2019 and 25 May
2020 respectively.
18. Therefore, in view of the above, the Respondent requested that the claim be rejected
and “(t)o uphold that the Professional Player Contract was unilaterally terminated by the
Al Ramtha Club with just cause according to what we have explained above in
accordance with the rules and regulations of FIFA and Jordanian Football Association
(JFA) and according to the contract agreed upon by the two parties Art. 28 which entitles
the club to terminate the contract and pay the player two months’ salary along with the
total amount of 15,472 US dollar that he received which refutes the player claim of
receiving lesser that that.”
19. Finally, upon request of FIFA, the Claimant confirmed that he concluded an employment
contract with the Serbian club, FK Sloga Kraljevo, valid as from 1 August 2020 until
30 June 2021. According to said employment contract, the Claimant was entitled to a
monthly salary of Serbian Dinar (RSD) 60,000.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as the
judge or DRC judge) analysed whether he was competent to deal with the case at hand.
In this respect, he took note that the present matter was submitted to FIFA on
2 March 2020. Consequently, the 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 judge referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2020 edition), the Dispute
Resolution Chamber judge 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 Jordanian club.
3. Furthermore, the judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26
par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (October 2020
edition), and considering that the present claim was lodged on 2 March 2020, the March
2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
4. The competence of the DRC judge and the applicable regulations having been
established, the judge entered into the substance of the matter. In this respect, the judge
started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the judge emphasised that in the following
considerations, he will refer only to the facts, arguments and documentary evidence
which he considered pertinent for the assessment of the matter at hand. In particular,
the judge 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 FIFA Transfer
Matching System (hereinafter: TMS).
5. In this respect, the judge acknowledged that the Claimant and the Respondent had
signed an employment contract on 5 December 2019, valid as from the date of signature
until the “last official match in football season 2020”. Moreover, the judge took note
that according to the contract, the Claimant was entitled to receive a monthly salary of
USD 3,700 between 10 January and 1 November 2020 as well as “two tickets back and
forth during the season”.
6. In continuation, the judge noted that the Respondent terminated the contract on
20 February 2020.
7. In this regard and based on the documentation and information on file, the judge
pointed out that the Claimant contested the reasons invoked and considered that the
Respondent terminated the contract without just cause.
8. In view of the foregoing, the judge established that the main issue to be analysed in the
present case is whether the contract has been unilaterally and prematurely terminated
or not, if so with or without just cause. Subsequently, the judge shall establish the
financial and/or sporting consequences to be borne by the party found to be in breach
of contract.
9. In this respect, the judge was eager to emphasise that only a breach or misconduct which
is of a certain severity justifies the termination of a contract. In other words, only when
there are objective criteria which do not reasonably permit to expect a continuation of
the employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken, such
measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
10. Furthermore, the judge deemed it appropriate to recall 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.
11. At this point, the judge analysed the argumentation of the Respondent, in particular
with regard to the arguments raised in points I.13 to I.18 supra.
12. In particular, the judge recalled that the Respondent considered that the Claimant:
simulated an injury during an official match;
verbally expressed his wish to terminate the contract on 2 February 2020;
“started making problems with a team mate and uttered obscene words with the
team manager”.
was often late and missed many training sessions as of 4 February 2020.
13. With the above in mind and in accordance with the principle of the burden of proof, the
judge noted that the Respondent failed to provide any documentary evidence with
regard to the alleged behaviour of the Claimant.
14. In continuation, the judge emphasised that the Respondent could have taken more
lenient measures, such as a fine or a suspension, in order to sanction the alleged
behaviour of the Claimant. By failing to do so, the judge considered that the premature
termination of the contract by the Respondent was not an ultima ratio measure.
15. The judge also pointed out that according to the Respondent, it had made the following
payments to the Claimant:
USD 5,000 on 8 December 2019, the parties allegedly agreeing to deduct said
amount from the Claimant’s salaries;
USD 2,272 on 15 January 2020.
16. This being said, the judge observed that the amounts mentioned above were allegedly
paid by the Respondent prior to the unilateral termination of the contract by the latter.
As such, the judge considered that said payments could not be taken into account while
analysing the termination of the contract.
17. Bearing in mind the foregoing, the judge emphasised that in any case, the Respondent
had failed to provide any corroborating evidence demonstrating that the Claimant had
agreed to deduct said amounts from his salaries.
18. In view of all of the above, and considering the situation at the time of termination, the
DRC judge came to the conclusion that the Respondent had terminated the contract on
20 February 2020, without just cause.
19. Having established that the Respondent is to be held liable for the early termination of
the employment contract, the judge focused his attention on the consequence of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the judge
decided that the Claimant is entitled to receive from the Respondent an amount of
money as compensation for breach of contract in addition to any outstanding payments
on the basis of the relevant employment contract.
20. First of all, the judge reverted to the Claimant’s claim and observed that the Claimant
did not request any outstanding remuneration.
21. In continuation, the judge focused his attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the judge 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.
22. In application of the relevant provision, the judge held that he first of all had to clarify
as to whether the pertinent 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 judge observed that the
contract contained such a provision, i.e. art. 28, by means of which the parties agreed
that “(i)f the first party wishes to terminate the contract, the second party shall be paid
two months’ salary”.
23. With the above in mind, the judge pointed out that he had to determine whether such
provision was valid or not, and the consequences thereof. In this context, the judge
noted that according to art. 28, the Respondent was entitled to terminate the contract
unilaterally and prematurely under the condition that it paid two months’ salaries to the
Claimant.
24. The judge however highlighted that the Claimant was not given the same opportunity
to terminate the contract unilaterally and prematurely. Against such background, the
judge considered that the compensation clause contained in art. 28 of the contract was
non-reciprocal and disproportionate, leading him to conclude that it should not be taken
into account as part of the calculation of the amount of compensation.
25. As a consequence, the judge 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 judge recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
26. Bearing in mind the foregoing as well as the claim of the Claimant, the judge proceeded
with the calculation of the monies payable to the Claimant under the terms of the
contract until its term, i.e. the “last official match in football season 2020”. According
to the information available in the TMS, the 2020 season in Jordan ended on
5 November 2020. In this regard, the judge noted that the Claimant, in his claim,
requested compensation until the month of October 2020.
27. Consequently, the judge concluded that the amount of USD 28,800 (i.e. part of the
salary of March 2020 in the amount of USD 2,900 and the monthly salaries of April to
October 2020) serve as basis for the determination of the amount of compensation for
breach of contract.
28. In continuation, the judge 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 able to reduce his loss of income. According to the constant
practice of the DRC judge, 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.
29. In this context, the judge noted that the Claimant had signed on 9 June 2020 an
employment contract with the Serbian club, Sloga Kraljevo, valid as from 1 August 2020
until 30 June 2021, by means of which he was entitled to receive a monthly salary of
RSD 60,000 (equivalent of USD 602). The judge noted that for the overlapping period,
the Claimant had been able to mitigate his damages in the amount of USD 1,806.
30. On account of all of the above-mentioned considerations and the specificities of the case
at hand, the judge decided that the mitigated compensation due to the Claimant was
USD 26,994.
31. In continuation, with regard to the Claimant’s claim pertaining to flight tickets on the
basis of the relevant terms of the contract and taking into account that the Respondent
provided evidence that it had provided the Claimant with a one-way ticket only, the
judge decided that the Respondent must pay to the Claimant the amount of USD 202.30
for the costs incurred by the latter.
32. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the judge decided that the Respondent must pay the
total amount of USD 27,196.30 to the Claimant, which was considered reasonable and
proportionate as compensation for breach of contract in the case at hand.
33. In addition, taking into consideration the Claimant’s request and the constant practice
of the DRC judge in this regard, the judge decided to award the Claimant interest on
the amount of USD 27,196.30 as from the date of the claim, i.e. 2 March 2020, until
the date of effective payment.
34. The DRC judge concluded his deliberations in the present matter by establishing that
any further request filed by the Claimant is rejected.
35. Furthermore, the judge 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.
36. In this regard, the judge 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.
37. Therefore, bearing in mind the above, the judge 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.
38. Finally, the judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amount, in accordance with art.
24bis par. 3 of the Regulations.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1. The claim of the Claimant, Marko Mihajlovic, is partially accepted.
2. The Respondent, Ramtha Club, has to pay to the Claimant, the following amount:
- USD 27,196.30 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 2 March 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.
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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