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 January 2021
Decision of the
DRC Judge
Passed on 13 January 2021,
regarding an employment-related dispute concerning the player Serder SERDEROV
COMPOSITION:
Jon Newman (USA), DRC Judge
CLAIMANT:
Serder SERDEROV, Russia
Represented by Mr. Sergey Lysenko
RESPONDENT:
Respondent NK Inter Zaprešić, Croatia
I. FACTS OF THE CASE
1. On 14 January 2019, the Russian Claimant, Serder Serderov (hereinafter: Claimant), and the
Croatian Respondent, NK Inter Zaprešić (hereinafter: Respondent) signed an employment
contract (hereinafter: contract) valid as from as from 14 January 2019 until 15 June 2020.
2. The term of the contract was extended until 5 August 2020 due to the COVID-19 pandemic
in accordance with the Addendum to the contract dated 22 May 2020.
3. According to Article 9 of the contract, the Respondent had to pay to the Claimant a monthly
salary in the amount of EUR 6,000.
4. On 15 March 2020, the Croatian 1.HNL League was suspended due to the COVID-19
pandemic by means of the decision of the Croatian Football Federation (CFF). At the end of
May 2020, the CFF decided to resume the competition on 5 June 2020, and the parties
concluded an addendum as a result of such extension of the season.
5. On 10 July 2020, the Claimant sent a default notice to the Respondent granting it a deadline
of fifteen days to pay the overdue payables in the amount of EUR 36,000, i.e. six monthly
salaries, failing which the Claimant reserved his right to terminate the contract with just
cause.
6. On 14 July 2020, the Respondent sent a letter to the Claimant, by means of which it formally
invited the Claimant to “immediately, but no later that 10 (ten) days from the receipt of this
letter to come in Zaprešić (Croatia) and continue to fulfill your contract obligations”, failing
which the Respondent would unilaterally terminate the contract and sue the Claimant for
damages for the termination.
7. On 22 July 2020, the Claimant replied to the Respondent that they were responsible for the
fact that he could not travel to Croatia earlier. He referred in this context to his previous
default notice dated 10 July 2020.
8. On 25 July 2020, the Respondent terminated the contract in light of the Claimant’s absence.
9. Following the termination of the contract, the Claimant found employment only after the
original expiry of the contract.
II. PROCEEDINGS BEFORE FIFA
1. On 14 September 2020, the Claimant filed the claim at hand before FIFA. In spite of being
requested to do so, the Respondent did not reply to the claim.
2. A summary of the Claimant’s position is detailed below.
a. The claim of the Claimant
10. According to the Claimant, the Respondent stopped complying with its financial obligations
as from January 2020.
11. After the 1.HNL League was suspended, the Claimant was told by the representatives of
the Respondent to go back to his homeland, Russia, as the borders were closing and the
term of the contract was coming to an end anyway.
12. The Claimant’s work visa and residence permit were expiring on 29 April 2020 and these
documents had not been extended by the Respondent in advance.
13. After returning to Russia at the direction of the Respondent, the Claimant was not able to
return to Croatia given the restriction on non-essential travel to the European Union as
recommended by the European Commission and implemented by the Heads of State or
Government of the European Union on 17 March 2020. Such travel restriction was then
extended until 30 June 2020.
14. Accordingly, the Claimant’s entry to the European Union, including Croatia, was restricted
from the date of his residence permit’s expiry, i.e. 29 April 2020, until 30 June 2020 or until
he obtained a new valid residence permit issued by the Croatian authorities.
15. On 26 May 2020, the Embassy of Croatia notified the Claimant’s representative that it did
not accept applications for tourist visas at that moment and only Croatian nationals and
holders of a valid residence permit could enter Croatia. However, the Claimant’s residence
permit was not extended in due time.
16. The Respondent extended the Claimant’s work and residence permit only on 10 June 2020
until 5 August 2020 and arranged a meeting for the Claimant at the Embassy of Croatia in
Moscow on 15 June 2020. Given that there were no flights between Moscow and Croatia
at that time, the Respondent suggested that the Claimant come to Belgrade, Serbia and
then come to Croatia by car.
17. In order to travel the route as suggested by the Respondent, the Claimant had to hold a
valid Schengen visa. Therefore, on 8 June 2020, the Claimant applied for a Schengen tourist
visa at the Embassy of Italy, which was the only embassy accepting applications for tourist
visas, and after submitting the corresponding application, the Claimant was not able to
submit an application to the Embassy of Croatia on 15 June 2020 as suggested by the
Respondent, as his passport was at the Embassy of Italy. This fact was duly notified by the
Claimant to the Respondent’s President, Mr Branko Laljak, via Whatsapp.
18. On 25 June 2020, the Claimant obtained a Schengen visa from Italy, which was valid from
1 July 2020.
19. Nevertheless, on 30 June 2020, the advisor to the Respondent’s President, Mr Velibor
Kvrgic, told the Claimant in a WhatsApp chat that, according to the Respondent’s President,
there was no sense for the Claimant to return as the Respondent lost any possibility to stay
in the 1. HNL League.
20. The advisor sent a draft of an agreement on termination of the Contract to the Claimant,
according to which the Claimant would agree that he did not have any financial claims
towards the Respondent, whereas at that point the debt due to the Claimant by the
Respondent amounted to six monthly salaries, i.e. EUR 36,000. The Claimant refused to
sign said agreement.
21. According to the Claimant, the Respondent, apparently not willing to pay the outstanding
amounts as well as compensation for termination, decided to take advantage of the
situation regarding the COVID-19 pandemic by claiming that due to the Claimant’s absence
it had just cause to terminate the contract with just cause. Indeed, as a reacting to the
default notice dated 10 July 2020, the Respondent sent its letter dated 14 July 2020,
accusing the Claimant of being absent without authorisation and summoning him to return
within 10 days.
22. The Claimant replied to the Respondent’s default notice by explaining that it is the
Respondent’s fault that he could not travel to Croatia in a timely manner. Furthermore, the
Claimant reminded the Respondent of the outstanding amount of EUR 36,000 as indicated
in his default notice dated 10 July 2020.
23. Finally, on 25 July 2020 the Respondent terminated the contract in light of the Claimant’s
absence.
24. In light of the above-described circumstances, the Claimant deems that the Respondent
terminated the contract without just cause.
25. In this regard, the Claimant stated that the Respondent’s termination of the contract was
planned as a formality intended to avoid responsibility for failure to pay monthly salaries to
the Claimant and the Respondent did not intend to take any other measures other than
termination.
26. The Claimant referred to the DRC jurisprudence, according to which it is the Respondent’s
obligation to take all necessary measures to ensure that the Claimant has all the documents
required for his legal stay in the country.
27. In the case at hand, the Claimant’s work and residence permit expired on 29 April 2020
and it was extended only on 10 June 2020 but the Claimant was not able to get back into
Croatia.
28. The Claimant made every effort to return to Croatia before the restart of the 1. HNL League,
even when he did not have the work and residence permit extended, and then tried to
organize the trip to Croatia as proposed by the Respondent, i.e. through Serbia. However,
when the Claimant notified the Respondent that it was not possible to attend the
appointment at the Croatian embassy on the specific date provided by the Respondent,
because the Claimant was already in the process of making a Schengen tourist visa required
to cross the border between Serbia and Croatia and his passport was in the possession of
the Italian embassy, the Claimant was told that according to the President of the
Respondent there was no need to come already as the key games had already been lost.
29. According to the Claimant, the Respondent blatantly acted in bad faith by unilaterally
terminating the contract on the basis of a formal reason – absence, which was actually
caused by the Respondent itself with a clear goal to avoid payment of outstanding salaries
due to the Claimant.
30. In light of the above, the Respondent shall be deprived of the right to invoke the Claimant’s
absence as a just cause for termination of the contract.
31. As to the Respondent’s default notice, the Claimant held that the Respondent gave him
only 10 days to somehow arrange a trip to Croatia from Russia by himself, notwithstanding
the regime of closed international borders and restricted flights. It did not take any more
lenient measures, but immediately terminated the contract after one warning, obviously
hoping to prevent the Claimant from terminating the Contract with just cause for
outstanding salaries.
32. Finally, the Claimant underlined that the Respondent had, in any case, violated the contract
itself. In fact, prior to the Covid-19 outbreak, the Respondent had already been in default
of payment of his salaries of January and February 2020, which would have allowed the
Claimant to terminate the contract already in March 2020.
33. Finally, the Claimant referred to the fact that the Respondent, after initially extending his
contract with the addendum, issued a draft for the termination of the contract, showing
that it was not interested in the Claimant’s services anymore.
34. The requests for relief of the Claimant were the following:
Outstanding remuneration: EUR 40,839 representing the salaries from January 2020
up to 25 July 2020 in the total amount of EUR (6 x EUR 6,000 + EUR 4,839 for the 25
days of July 2020),
Compensation: EUR 2,129 representing the salaries between 26 July 2020 and 5
August 2020,
5% interest p.a. on all amounts as from the respective due dates,
Sporting sanctions on the club.
III. CONSIDERATIONS OF THE DRC JUDGE
a. Competence and applicable legal framework
35. First of all, the Dispute Resolution DRC JudgeJudge (hereinafter: DRC Judge) 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 14 September 2020 and submitted for decision
on 13 January 2021. Taking into account the wording of art. 21 of the January 2021 edition
of the Rules Governing the Procedures of the Claimants’ Status Committee and the Dispute
Resolution DRC Judge(hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
36. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 and 2 in combination with art. 22 b) of the Regulations
on the Status and Transfer of Claimants (edition in force in the date of decision), he is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Russian player and a Croatian club.
37. Subsequently, the DRC Judge 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 Claimant (edition January 2021),
and considering that the present claim was lodged on 14 September 2020, the August
2020 of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
38. The DRC Judge 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.
39. In this respect, the DRC Judge 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
40. The competence of the DRC Judge and the applicable regulations having been established,
the latter judge entered into the merits of the dispute. In this respect, the DRC Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, he 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
41. The foregoing having been established, the DRC Judge moved to the substance of the
matter, and first took note of the fact that the Respondent did not reply to the claim. Thus,
the Respondent has renounced to its right of defence and accepted the Claimant’s
allegations.
42. Furthermore, as a consequence of the aforementioned consideration, the DRC Judge
pointed out that in accordance with art. 9 par. 3 of the Procedural Rules he shallpass a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
43. The main issue in the present matter is to determine whether the Respondent had just cause
to terminate the contract between the parties.
44. The DRC Judge first recalled that the Respondent had terminated the contract on 25 July
2020, alleging that the Claimant had been absent for ten days.
45. Looking at the chronology of events prior to the termination of the contract, the DRC Judge
recalled that the Respondent had requested the Claimant to return to his home country
since the Croatian League had been suspended due to the Covid-19 pandemic. Once the
League resumed, the parties signed an addendum in order to extend the contract until the
end of the season, i.e. until 5 August 2020.
46. This said, the Claimant encountered some difficulties in returning to Croatia, since his work
visa had expired on 29 April 2020 and he was not able to obtain a permit to travel to
Croatia, until the Respondent finally extended his visa on 10 June 2020. However, the
Claimant alleges that he was told not to travel to Croatia anymore by the club President,
since the Respondent could no longer improve its ranking in the League at this point in
time.
47. In this context, the DRC Judge also recalled that the Claimant had produced a copy of a
termination agreement issued by the Respondent and which was handed over to him on 1
July 2020. Such document provided that the parties have no further obligations towards
one another. The player refused to sign such document.
48. On 10 July 2020, the Claimant sent a default notice to the Respondent with respect to
unpaid salaries since January 2020.
49. Following this, the Respondent summoned the Claimant to return to Croatia, which the
Claimant refused to do, underlining the Respondent’s fault in not providing him a visa to
return to Croatia earlier as well as the outstanding salaries.
50. While analysing the above-described facts, the DRC Judge came to the conclusion that the
Respondent had lost interest in the Claimant’s services. Indeed, despite the Claimant’s best
efforts, he could not return to Croatia upon the Croatian League resuming, this due to the
fact that the Respondent failed to secure the Claimant’s visa to return to Croatia in a timely
manner. In this regard, the DRC Judge referred to the Dispute Resolution DRC Judge’s wellestablished
jurisprudence, according to which it is the club’s duty to ensure that the player
is in possession of a valid working visa which enables him to perform his services.
51. Equally, the Respondent presented the Claimant with a termination agreement, which can
only be interpreted as a will on the Respondent’s part to terminate the employment
relationship.
52. Furthermore, it remained uncontested that the Respondent’s President had informed the
Claimant that he no longer needed to come back to the club since the ranking in the League
could no longer improve.
53. Finally, the DRC Judge noted that the Respondent summoned the Claimant to return to the
club only after the Claimant had enquired about the payment of his salaries since January
2020.
54. In conclusion, the DRC Judge held that the Respondent terminated the contract without
just cause on 25 July 2020. Furthermore, it remained uncontested that the Respondent was
itself in breach of the contract at the time of terminating it, since it had not paid the
Claimant’s remuneration since January 2020 without any valid reason.
55. As a consequence, the Respondent shall be held liable for breach of contract without just
cause.
ii. Consequences
56. Having stated the above, the DRC Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
57. In this regard, the DRC Judge first held that Respondent must fulfil its obligations towards
the Claimant up until the date of termination of the contract in accordance with the general
legal principle of pacta sunt servanda.
58. On this basis, the DRC Judge decided that the Respondent is liable to pay the Claimant the
salaries that were outstanding at the time of the termination, i.e. the amount of EUR 36,000
representing six monthly salaries from January to June 2020.
59. In addition, taking into account the Claimant’s claim as well as the DRC’s longstanding
jurisprudence in this respect, the DRC Judge decided to award the Claimant interest of 5%
p.a. as of the day following the respective due dates of payment, as follows:
5% on the amount of EUR 6,000 as from 1 February 2020 until effective payment,
5% on the amount of EUR 6,000 as from 1 March 2020 until effective payment,
5% on the amount of EUR 6,000 as from 1 April 2020 until effective payment,
5% on the amount of EUR 6,000 as from 1 May 2020 until effective payment,
5% on the amount of EUR 6,000 as from 1 June 2020 until effective payment,
5% on the amount of EUR 6,000 as from 1 July 2020 until effective payment.
60. In continuation, the DRC Judge decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive compensation for breach of contract from
the Respondent in addition to outstanding remuneration on the basis of the relevant
employment contract.
61. In this context, the DRC Judge outlined that, in accordance with said provision, 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.
62. In application of the relevant provision, the DRC Judge held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in
the event of breach of contract. In this regard, the DRC Judge established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
63. Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the DRC Judge took into account the remuneration due to the Claimant in
accordance with the contract as well as the time remaining on the same contract, along
with the Claimant’s employment situation after the early termination occurred. In this
respect, the DRC Judge pointed out that at the time of the termination of the employment
contract on 25 July 2020, the contract would run until 5 August 2020, this is, for less than
a month. Consequently, taking into account the financial terms of the contract, the DRC
Judge concluded that the remaining value of the contract as from its early termination by
the player until the regular expiry of the contract amounts to EUR 6,968, this is, the salary
of July 2020 and 5 days of August 2020. Such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
64. In continuation, the DRC Judge remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant found new employment only after the expiry of the employment contract at the basis of the present
dispute. As a result, the Claimant was not able to mitigate his damages.
65. In view of all of the above, the DRC Judge decided that the Respondent must pay the
amount of EUR 6,968 to the Claimant as compensation for breach of contract without just
case, which the DRC Judge considered to be a reasonable and justified amount.
66. In addition, taking into account the Claimant’s claim, the DRC Judge decided to award the
Claimant interest on the compensation of 5% p.a. as from 14 September 2020, i.e. as from
the date on which the claim was filed.
67. The DRC Judge concluded his deliberations by rejecting any of the Claimant’s further claims.
iii. Compliance with monetary decisions
68. Finally, taking into account the consideration under number 54. above, the DRC
Judgereferred 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.
69. In this regard, the DRC Judge highlighted that, against Respondents, the consequence of
the failure to pay the relevant amounts in due time shall consist of a ban from registering
any new Claimants, either nationally or internationally, up until the due amounts are paid
and for the maximum duration of three entire and consecutive registration periods.
70. Therefore, bearing in mind the above, the DRC Judge 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 Claimants,
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.
71. The DRC Judge 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.
IV. DECISION OF THE DRC JUDGE
1. The claim of the Claimant, Serder Serderov, is partially accepted.
2. The Respondent, NK Inter Zaprešić, has to pay to the Claimant, Serder Serderov, the following
amounts:
- EUR 36,000 as outstanding remuneration plus 5% interest p.a. as follows:
o 5% on the amount of EUR 6,000 as from 1 February 2020 until effective
payment,
o 5% on the amount of EUR 6,000 as from 1 March 2020 until effective payment,
o 5% on the amount of EUR 6,000 as from 1 April 2020 until effective payment,
o 5% on the amount of EUR 6,000 as from 1 May 2020 until effective payment,
o 5% on the amount of EUR 6,000 as from 1 June 2020 until effective payment,
o 5% on the amount of EUR 6,000 as from 1 July 2020 until effective payment.
- EUR 6,968 as compensation for breach of contract plus 5% interest p.a. as from 14
September 2020 until 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 Claimants).
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).
CONTACT INFORMATION:
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