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 12 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 12 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman José Luis Andrade (Portugal), member Johan van Gaalen (South Africa), member

on the matter between the coach,

Miljan Skrbic, Serbia

Represented by Mr Mustafa Melih Kuyucu

as Claimant

and the club,

Giresunspor Kulubu Dernegi, Turkey Represented by Ercan Sevdimbaş

as Respondent

regarding a dispute arisen between the parties

I. Facts of the case

1. The Serbian player, Miljan Skrbic (hereinafter: player or the Claimant), and the Turkish club, Giresunspor Kulubu Dernegi (hereinafter: club or the Respondent) concluded an employment contract (hereinafter: the contract), valid as of 31 January 2019 until 31 May 2020.

2. According to the contract, the Respondent undertook to pay the following monies:

- EUR 30,000 on 31 March 2019;

- EUR 30,000 on 31 May 2019;

- EUR 12,000 as monthly salary between September 2019 until June 2020 (10 times).

3. Art. 3 of the contract reads, inter alia, as follows: “Player and Club accepts and declares that, if Player is willing to terminate this Contract unilaterally for 2019/2020 football season, Player has to send a notice to the Club between the dates of 01.06.2019 – 30.06.2019”.

4. Furthermore, Moreover, art. 7 of the “special provisions” of the contract stipulated the following: “Payments made and to be made under the name of advance payment or monthly fee have advance value shall be accepted as a receivable payment in consequence of the duty of the Player by the Club until the end of the relevant season. In case of a termination of the contract before the duration of the contract (unilateral termination of the Player, unilateral termination of the Club or mutual termination), the account of the pro-rata shall be made.”

5. According to the player, the club failed to pay him any amount arising from the contract.

6. On 19 June 2019, the Claimant served a default notice via e-mail to the club in which he asked for the payment of the overdue amount and granted a deadline of 30 days for the full payment.

7. On 22 July 2019, the Claimant unilaterally terminated the contract.

8. On 26 September 2019, the player lodged a claim against the club and requested the payment of the following amounts:

- EUR 60,000 as outstanding remuneration, plus interest as from the due dates;

- EUR 120,000 as compensation for breach of contract without just cause and corresponding to the residual value of the contract, plus interest as from the date of termination of the contract;

- EUR 90,000 as additional compensation “with its interest according to art. 17/1-ii of RSTP”;

- EUR 90,000 “with its interest” according to “ScO Art. 337c/3”.

9. In its reply to the claim, the club stated that it is undisputed that the contract was terminated on 22 July 2019. In light of the above, the club referred to the contents of art. 7 of the contract and considered that, following said article, the player cannot claim any compensation “because of the provision of the pro-rata basis”.

10. In addition, the club argued that it paid the player the total amount of EUR 5,445, as follows:

- On 07.03.2019 in the amount of EUR 545.-,

- On 15.03.2019 in the amount of EUR 1.050.-,

- On 02.05.2019 in the amount of EUR 1.000.-,

- On 10.05.2019 in the amount of EUR 2.850.-

11. As a result, the club considered that the outstanding amount corresponds to EUR 54,555.

12. In addition, the club underlined that, following art. 3 of the contract, the player had to send a notice between 1 June 2019 and 30 July 2019.

13. As to the payable compensation, the club highlighted that draw that, according to the last sentence of the article 17 /ii of FIFA RSTP. the overall compensation may never exceed the rest value of the prematurely terminated contract.

14. In conclusion, the club requested “to refuse the Player's demand with regard to the termination compensations with regard to the art. 7 of the special provision and the special provision in the contract” as well as “to make a decision that the judicial costs and the attorneyship fees that the Respondent is faced with shall be paid by the Claimant.”

15. The player informed FIFA that he remained unemployed during the relevant period following the termination of the contract

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analyzed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 13 March 2018. Consequently, the 2018 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 and 2 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber shall adjudicate on employment-related disputes between a player and a club of an international dimension.

3. As a consequence, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation which involves a Serbian player and a Romanian club regarding an employment-related dispute.

4. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of clause 12 of the contract, alleging that the matter should be referred to the Romanian NDRC.

5. On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.

6. Taking into account all the above, the Chamber emphasized 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 the FIFA Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

7. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC is competent to settle an employment-related dispute between a club and a player of an international dimension, is that the jurisdiction of the relevant national arbitration tribunal or national court derives from a clear reference in the employment contract.

8. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute contained a clear jurisdiction clause.

9. Finally, art. 12 of the contract stipulated the following: “The present Convention will be governed and interpreted according to the Law no. 69/2000 of Physical Education and Sports, to OUG no. 205/2005, the Romanian Football Federation regulations. The disputes resulting from the execution of the present Convention, are to be solved in the following order:

- Amiably;

- By bringing the dispute to the justice institutions of the Romanian Football Federation and the Professional Football League.”

10. Having examined the relevant provision, the Chamber came to the unanimous conclusion that clause 12 of the contract does not constitute a clear jurisdiction clause in favour of one specific court or arbitration tribunal in Romania, since it only appears to be a generic reference to “the justice institutions of the Romanian Football Federation”. In particular, the Chamber highlighted that it remains unclear from the aforementioned stipulation whether said bodies are part either of the Romanian Football Association and/or the [Romanian] Professional Football League.

11. On account of all the above, the Chamber established that the aforementioned objection towards 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.

12. The competence having been established, the Chamber decided thereafter to analyse 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, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the present matter was submitted to FIFA on 13 March 2018, the January 2018 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

13. Having established the foregoing, and entering into the substance of the matter, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. 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.

14. In this respect, the Chamber acknowledged that, on 30 June 2017, the player and the club had signed an employment contract, valid as of 1 July 2017 until 30 June 2018.

15. In continuation, the members of the Chamber noted that the player lodged a claim against the club maintaining having had just cause to terminate the contract on 13 March 2018 since he was excluded from the club’s training and not provided with adequate training. In this context, the player requested payment of his salary of February 2018 as well as compensation for breach of contract.

16. Furthermore, the DRC acknowledged that the club rejected such argumentation and held that the player received his salary, the individual training schedule was only temporary and that the player was provided with adequate “training facilities / equipment”. Therefore, the club lodged a counterclaim against the player, requesting payment of compensation for breach of contract.

17. On account of the above, the members of the Chamber highlighted that the underlying issue in this dispute, considering the diverging position of the parties, was to determine as to whether the player terminated the employment contract on 13 March 2018 with or without just cause and to decide on the consequences thereof.

18. In this context, 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.

19. In this framework, the Chamber analysed the player’s termination of the contract on 13 March 2018, in which he maintained that club failed to “meet its obligations” the club “has unilaterally terminated” the contract “without just cause”. Said letter must be put in the context of the events as of 28 February 2018, when the player was informed about his individual training. It remained undisputed that the club ordered the player to train individually, apart from the team’s training as of 1 March 2018.

20. Furthermore, the Chamber noted that the player contacted the club on 1 March 2018 and 5 March 2018 in order to request access to the team’s training, but to no avail.

21. Moreover, the DRC observed that the club did not contest the player’s exclusion from the first team’s training, but held that such measure was only temporary and that it adequate “training facilities / equipment”. In this regard, the members of the Chamber deemed that the player was excluded from any team’s training and that the training schedule of the player did not include training session with a ball. Therefore, the Chamber concluded that the club failed to explain how the player would possibly benefit from such training.

22. Furthermore, DRC recalled that the contract stipulated that “the football activity developed as a professional player, which includes the participation to the training sessions (trainings) and the effective participation to the football games played by the first Club team”.

23. In light of the above, first of all, the members of the Chamber considered important to point out, as has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches.

24. In view of the aforementioned facts, the DRC was of the opinion that the player had founded reasons to believe that the club was no longer interested in his services.

25. On account of the above-mentioned considerations, since the club undisputedly excluded the player from any team’s training and failed to provide evidence that the player received adequate training possibilities as of 1 March 2018, taking into account the player’s complaints to the club in this regard, the Chamber concluded that the player had just cause to terminate the contract on 13 March 2018.

26. Subsequently, prior to establishing the consequences of the termination of the employment contract with just cause by the player in accordance with art. 17 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.

27. In this context, the Chamber took note of the player’s claim regarding the salary of February 2018. Based on the documents on file, the DRC established that said amount was remitted by the club to the player. Therefore, the Chamber rejected said part of the claim of the player in light of the fact that no further outstanding remuneration was due until the termination of the contract.

28. Having established the above, the Chamber turned its attention to the question of the consequences of the termination of the contract with just cause by the player on 13 March 2018. In continuation and having established the above, the Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract.

29. In this context, the Chamber 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 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.

30. In application of the relevant provision, the Chamber 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 Chamber established that no such compensation clause was included in the contract at the basis of the matter at stake.

31. 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. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract as from its termination and concluded that the Claimant would have been entitled to receive EUR 14,000 as remuneration had the employment contract been executed until its regular expiry date, i.e. 30 June 2018.

32. Consequently, the Chamber concluded that the amount of EUR 14,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

33. In continuation, the Chamber assessed as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract(s) 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.

34. In respect of the above, the Chamber recalled that the player had not found new employment during the relevant period of time.

35. Consequently, on account of the above-mentioned considerations, the DRC decided that the club must pay the amount of EUR 14,000 as compensation for breach of contract to the player, which is considered by the Chamber to be a fair and reasonable amount.

36. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the aforementioned amount of compensation as of the date on which the claim was lodged, i.e. 13 March 2018, until the date of effective payment.

37. The DRC decided that the claim of the player is partially accepted and concluded its deliberations by rejecting any further claim of the Claimant. Furthermore, the members of the Chamber rejected the club’s counterclaim.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Miljan Skrbic, is partially accepted.

2. The Respondent, Giresunspor Kulubu Dernegi, has to pay to the Claimant, the outstanding amount of EUR 60,000, plus interest calculated as follows:

- 5% interest p.a. over the amount EUR 30,000 of as from 1 April 2019 until the date of effective payment;

- 5% interest p.a. over the amount EUR 30,000 of as from 1 June 2019 until the date of effective payment.

3. The Respondent has to pay to the Claimant, compensation for breach of contract without just cause in the amount of EUR 120,000, plus 5% interest p.a. as from 26 September 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, of the relevant bank account to which the Respondent must pay the amount mentioned above.

6. The Respondent shall provide evidence of payment of the due amounts plus interest FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due 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 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The aforementioned ban will be lifted immediately and prior to its complete serving, once the due amount is paid.

9. In the event that the aforementioned sum 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. 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 Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer