F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 10 February 2020

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 10 February 2020,

by Daan de Jong (The Netherlands), DRC judge

on the claim presented by the player,

Tomas Majtan, Slovakia,

represented by Mr Peter Lukasek

as Claimant

against the club,

Mezokovesd Zsory FC Kft, Hungary

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 10 July 2017, the Slovak player, Tomas Majtan, (hereinafter: the Claimant), and the Hungarian club, Club Mezokovesd Zsory FC Kft, (hereinafter: the Respondent) concluded an employment contract valid as from 10 July 2017 until 30 June 2019 (hereinafter: the contract).

2. According to the contract, the Claimant was entitled to receive a monthly remuneration of Hungarian forint (HUF) 1,200,000 net per month payable on the “10 day of every month”.

3. On 7 December 2017, the Claimant, along with some of his teammates, attended a meeting with the Respondent. The Claimant declared that during this meeting they were informed that their services were no longer required and that they had to either agree to a termination against the payment of 1 month and a half salary, agree to be loaned for the remainder of the season 2017/2018 or to be demoted to the U19s team with a reduction of 50% of their salaries.

4. According to the Respondent, on the aforementioned date, the Claimant was only informed that his performances during the first part of the season were not good enough.

5. Furthermore, the Respondent stated that it addressed a letter to the Claimant on 7 December 2017, by means of which it informed the Claimant that there would not be any training between 7 December 2017 and 7 January 2018 and that he will receive from the team manager his training schedule accordingly in due course.

6. On 14 December 2017, a further meeting took place between the Claimant and the Respondent. The Claimant indicated that the coach of the Respondent was no longer interested in his services and that as they did not agree to a termination or a transfer, the Claimant was effectively demoted to the U19s and his salary reduced by 50%.

7. With regard to the above, the Respondent declared that during this meeting the Claimant was effectively demoted to the U19s based on his poor form, but that nothing else was discussed at its initiative. In this regard, the Respondent stated that the Claimant himself started to talk about termination of the contract and alleged that the parties agreed in principle on the mutual termination and that they would finalise the paperwork upon his return after the holiday break.

8. Subsequently, the Claimant was informed about his exclusion from the Respondent’s first team activities and was given an individual training regime that included up to 3 individual training sessions per day. The Claimant explained that these training sessions were often unattended by any of the Respondent’s staff, and it happened that when turning up to some of these sessions the Respondent’s facilities appeared to be closed.

9. On 10 and 18 January 2018, the Claimant sent two pieces of correspondence to the Respondent by means of which he requested the latter to stop breaching the terms of their contract by forcing him to train alone without any justification and requested to be reinstated to the first team’s activities.

10. On 22 January 2018, the Claimant was informed that he would train again with the first team, and was apparently told a few days later that he would not be travelling with the first team for its training camp in Turkey upon the Respondent’s first team coach’s decision.

11. On 1 February 2018, the Claimant sent a further notice to the Respondent for breach of contract and gave it 3 days to reinstate him with the first team.

12. The Respondent in response denied any wrongdoing and explained that the Claimant had been given his fair chance to prove himself but his level was not satisfactory hence his demotion to the U19s.

13. On 6 February 2018 the Claimant terminated his contract invoking just cause on the basis of the Respondent’s conduct, mainly by having excluded him from any first team activities “and as a consequence barred him from exercising his fundamental rights as a professional football player, in absolute manner”.

14. The Respondent for its part declared that the Claimant failed to reach an agreement with a new team and returned to the Respondent’s facilities with the purpose to put pressure on it in order to obtain compensation. In this respect, the Respondent alleged that the evidence produce by the Claimant contained false and/or impartial testimonies, pictures and videos taken out of context. What is more, the Respondent declared that it gave the Claimant the opportunity to individually train in order to rejoin the first team, after having only played for 160 minutes in the first part of the season, but that his performances, when briefly integrated to the first team at the end of January 2018, were once again not of the required level. The Respondent vehemently defended its rights to demote any player at its own will to its U19s team, and justified his downgrading based on the Claimant’s poor motivation and performances.

15. On 7 February 2018 the player signed an employment agreement with the Slovakian club, MFK Skalica, valid as from 7 February 2018 until 30 June 2018 and according to which he was entitled to receive a monthly remuneration of EUR 1,700 gross.

16. On 13 July 2018 the Claimant and the Austrian club, ASK-BSC Bruck an der Leitha, concluded an employment contract valid as from 1 July 2018 until 30 June 2019 and according to which he was entitled to receive a monthly remuneration of EUR 540.

17. On 30 April 2019, the Claimant lodged a claim against the Respondent in front of FIFA, claiming a total amount of EUR 54,703.28, plus 5% interest p.a. as from 7 February 2018. Moreover, the Claimant requested the imposition of disciplinary and sporting sanctions on the Respondent.

18. The Respondent, for its part, requested the claim of the Claimant to be rejected.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether it was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 30 April 2019 and decided on 10 February 2020. Taking into account the wording of art. 21 of the 2019 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.

2. Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which concerns an employment–related dispute with an international dimension between an Slovak player and a Hungarian club.

3. Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC judge confirmed that, in accordance with art. 26 par. 1 and par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 30 April 2019, the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the 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 DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC 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.

5. In this respect, the DRC judge acknowledged that, on 10 July 2017, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 30 June 2019, pursuant to which the Respondent undertook to pay the Claimant a monthly remuneration of HUF 1,200,000.

6. Moreover, the DRC judge took note that on 6 February 2018, the Claimant unilaterally terminated the contract invoking just cause on the basis of the Respondent’s conduct, mainly by having excluded him from any first team activities.

7. Having recalled the above, the DRC judge observed that, the Claimant, in his claim, requested the amount of EUR 54,703.28 plus 5% interest p.a. as from 7 February 2018.

8. The DRC judge further took note that the Respondent, for its part, requested the claim of the Claimant to be rejected, justifying the Claimant’s downgrading due to his poor motivation and performances.

9. In this context, the DRC judge established that the main issued he would have to examine in the present case was whether the reasons put forward by the Claimant could justify the termination of the contract with effect as from 6 February 2018.

10. In this respect, the DRC judge acknowledged the documentation provided by the Claimant, consisting of letters of the Claimant dated 10 January 2018, 18 January 2018 and 1 February 2018, regarding his exclusion from the trainings of the first team. The Chamber further noted that the Claimant claims that the training schedules established by the Respondent happened to consist of individual training, in the absence of a coach.

11. The DRC judge equally noted that the Respondent did not contest the allegations of the Claimant regarding his exclusion from the first team and his assignment to individual trainings. In fact, the DRC judge noted that the Respondent deems that by performing individual trainings the player could maybe reach again the level of the first team.

12. Bearing in mind the aforementioned allegations of the parties, the DRC judge further observed that the Claimant’s exclusion from the first team occurred for at least the period comprised between the 7 December 2017 and the 6 February 2018, as it can be inferred from the documentation on file in this regard. The indicated period forms part of what is considered to be an important phase during the season, during which all players are required to display their performance, in order to be able to undergo a selection by the club’s coach for the remaining part of the season.

13. It was during this highly important phase that the Claimant was not only excluded from the trainings of the first team, but was also demoted and obliged to train individually and without a coach.

14. In view of the aforementioned facts, the DRC judge was of the opinion that the Claimant had founded reasons to believe that the Respondent was no longer interested in his services for the upcoming season.

15. As a consequence of all the aforementioned allegations combined with the documentation provided by the Claimant, the DRC judge considered that the Respondent was to be considered responsible for the breach of contract without just cause, consisting of the Claimant’s exclusion from trainings and from the first team. Consequently, the DRC judge concluded that the Claimant had a valid reason to terminate his contractual relationship with the Respondent and that it should be considered as a well-founded just cause.

16. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences of the Respondent’s breach of the contract without just cause.

17. Having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the DRC judge focussed his attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC judge decided that the Claimant is entitled to receive an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

18. But before entering the calculation of the amount of compensation due to the Claimant by the Respondent, the DRC judge first established the amount of outstanding remuneration due to the player by the time of termination. In accordance with the general legal principle of pacta sunt servanda, the DRC judge decided that the Respondent is liable to pay to the Claimant the amount of HUF 1,200,000, corresponding to his salary of January 2018, plus 5% interest p.a. as from 7 February 2019 – as requested – until the date of effective payment.

19. In continuation, the DRC 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 DRC 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 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.

20. In application of the relevant provision, the DRC judge held that he 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 DRC judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

21. As a consequence, the DRC 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 DRC 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

22. The DRC judge then turned his 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 him to be essential. The DRC judge deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows him to take into account both the existing contract and the new contracts in the calculation of the amount of compensation.

23. Bearing in mind the foregoing, the DRC judge proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its date of termination with just cause by the Claimant, i.e. 6 February 2018, until the end of the contract, and concluded that the Claimant would have received in total HUF 20,400,000 as remuneration had the contract been executed until its expiry date. Consequently, the DRC concluded that the amount of HUF 20,400,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

24. In continuation, the DRC 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 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.

25. The DRC judge recalled that the Claimant concluded two employment contracts. The first one on 7 February 2018 with the Slovakian club, MFK Skalica, valid as from date of signature until 30 June 2018 and according to which he was entitled to receive a monthly remuneration of EUR 1,700 gross. The second one, concluded with the Austrian club, ASK-BSC Bruck an der Leitha, valid as from 1 July 2018 until 30 June 2019 and according to which he was entitled to receive a monthly remuneration of EUR 540. These two employment contracts enabled the Claimant to mitigate his damages by HUF 3,977,030 during said period of time.

26. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand as well as the Claimant’s general obligation to mitigate his damage, the DRC judge decided to partially accept the Claimant’s claim and that the Respondent must pay the amount of HUF 16,422,970, plus 5% interest p.a. as from 30 April 2019 until the date of effective payment as compensation for breach of contract in the case at hand.

27. The DRC judge concluded its deliberations in the present matter by establishing that any further request filed by the Claimant is rejected.

28. Furthermore, taking into account the consideration under number II./3. above, the DRC 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.

29. In this regard, the DRC 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.

30. 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, 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.

31. Finally, the DRC judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. Decision of the DRC judge

1. The claim of the Claimant, Tomas Majtan, is partially accepted.

2. The Respondent Mezokovesd Zsory FC Kft, has to pay to the Claimant the amount of HUF 1,200,000, plus 5% interest p.a. as from 7 February 2019 until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of HUF 16,422,970, plus 5% interest p.a. as from 30 April 2019 until the date of effective payment.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts plus interest mentioned under points 2. and 3. above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due in accordance with points 2. and 3. above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

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

9. In the event that the amounts due in accordance with points 2. and 3. above are still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the publication:

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

Note related to the appeal procedure:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer