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 24 November 2020

Decision of the

Dispute Resolution Chamber

Passed on 24 November 2020,

regarding an employment-related dispute concerning the player Darko Markovic

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Roy Vermeer (Netherlands), member José Luis Andrade (Portugal), member

CLAIMANT:

DARKO MARKOVIC, Montenegro

Represented by Mr. Ivan Radulovic

RESPONDENT:

ERBIL SC, Iraq

Represented by Mr. Nezar Ahmed

I. FACTS OF THE CASE

1. On 27 January 2020, the Montenegrin player, Darko Markovic (hereinafter: the player or the Claimant) and the Iraqi club, Erbil SC (hereinafter: the club or the Respondent) concluded an employment contract, valid as from the date of its signature until 31 May 2020 (hereinafter: the contract).

2. Pursuant to the contract, the player was entitled, inter alia, to a sign-on bonus of USD 10,000 and a monthly salary of USD 7,000.

3. Clause 11 of the contract states that the player “is not allowed to leave the country without a written permission from [the club]”.

4. Clause 13 of the contract states as follows: “If the league finished before the (31/05/2020) [Respondent] can cancel this contract and the [Claimant] will receive his salary until the last day of the league”.

5. On 20 and 29 February 2020, the player contacted the club, requesting the latter to provide him with a signed specimen of the contract and to pay him the sign-on bonus in the amount of USD 10,000.

6. On four different occasions, i.e. on 12, 15, 27 and 29 March 2020, the player contacted the club in order to obtain some information about his situation and about whether the local competition would resume, since as from 15 March 2020 the Iraqi FA had apparently suspended the local tournaments on account of the COVID-19 Pandemic; however, to no avail.

7. Thereafter, on 25 May 2020, the player informed the club that he would leave Iraq and return to his own country, and requested assistance from the club in connection with the passport control at the airport, given that he had no work permit, stating that that is the very least they could do in view of the lack of payment of all of the instalments due to him as per the contract.

8. On 26 May 2020, the club replied to the player and told him that they would start negotiations in order “to fix the current situation”.

9. On 27 May 2020, the player requested the club to put in writing an alleged offer the club made to the player. Such offer allegedly reflected the club’s proposal to pay the player 30% of the sign-on fee and the salary of February 2020. Equally, in his letter, the player refused the offer and urged the club to pay the full sign-on bonus, as well as the monthly salary of February and half of the salary of March 2020; however, to no avail.

10. The player left Iraq on 28 May 2020.

II. PROCEEDINGS BEFORE FIFA

11. On 22 June 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

12. In his claim, the player explained that despite having complied with his contractual obligations, the club failed to provide him with his work permit, pay his salaries and sign-on bonus, reply to his correspondence, and provide him with the means to go back to his country.

13. According to the Claimant, the Respondent never provided him with the work permit in order for him to play for the club and stay in Iraq, despite it being the club’s responsibility.

14. In his request for relief, the player requested to be awarded outstanding remuneration in the amount of USD 38,856.88 plus 5% interest p.a. as of 1st June 2020, broken down by the player as follows:

a. USD 10,000 corresponding to the sign-on bonus;

b. USD 28,000 corresponding to the salaries of February, March, April and May 2020 in the amount of USD 7,000 each;

c. USD 633.88 (EUR 565) corresponding to the reimbursement of the flight ticket expenses;

d. USD 223 (RNL 959.64) corresponding to the taxi expenses in order to go from Bucharest to Belgrade.

b. Reply of the Respondent

15. The Respondent argued that due to the COVID-19 pandemic, the season 2019/2020 in Iraq was cancelled on 15 March 2020. The Respondent deems that such fact is not disputed by the player as per his statement of claim.

16. The Respondent argued that as per clause 13 of the contract “the Claimant is only entitled to remuneration up to 15 March 2020 since the IFA competitions were cancelled on 15 March 2020. Consequently, the Claimant is only entitled to (i) the salary of February in the amount of USD 7’000, (ii) half the salary of March in the amount of USD 3’500 and (iii) the one payment in the amount of USD 10’000 which was due upon the signing of the Contract, i.e. USD 20’500 in total”.

17. Moreover, the club adduced that the COVID-19 pandemic constitutes a force majeure situation according to which the contract could be terminated on the grounds of art. 43 i) of the Iraqi Labour Code which states as follows: “Article 43 –1- An employment contract shall be terminated in any of the following cases: (…) i- In case of force majeure”. In support of this allegation, the club provided a link to a PDF file found online, which allegedly corresponded to the English translation of the Iraqi Labour Code.

18. In continuation, the club submitted that “owing to i) the Covid-19 outbreak and (ii) the subsequent cancellation of IFA league competition on 15 March 2020, the Claimant agreed and accepted that his due remuneration would be only (a) the sign-on fee of USD 10’000, (b) February’s salary of USD 7’000 and (ii) half of March’s salary of USD 3’500, i.e. USD 20’500 in total”. The club further argued that such amount is fair considering that “the Claimant should be entitled to payment only for the time he actually provided his services to the Respondent”.

19. As to the air ticket and taxi fares sought by the player, the club argued that “it suffices to say that in accordance with the provisions of the Contract, the Claimant is not entitled for such reimbursement. Per se, such claim shall be rejected”.

20. Lastly, the Respondent argued that no default interest shall apply since the player did not put the Respondent in default with a deadline of 10 days pursuant to art. 12bis (3) of the Regulations on the Status and Transfer of Players (RSTP).

21. The requests for relief of the Respondent were as follows: “hold that Claimant is entitled to a due remuneration only in the amount of USD 20’500 (TWENTY THOUSAND FIVE HUNDRED USD) devoid of any default interest”.

c. Rejoinder of the Claimant

22. The player reiterated his position and outlined that the club had 45 days before the pandemic started to pay the sign-on fee of USD 10,000, which it did not do. The player further outlined that the club also never paid his salaries.

23. Lastly, the player explained that he left Iraq since he had no choice due to the expiry of his visa and the fact that he spent two and a half months without any response from the club despite his numerous attempts to speak with the club’s manager.

d. Final comments of the Respondent

24. The Respondent argued that in its rejoinder the Claimant did not raise any new legal or factual argument, and therefore referred the DRC to its statement of defence.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

25. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) 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 22 June 2020 and submitted for decision on 24 November 2020. Taking into account the wording of art. 21 of the June 2020 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.

26. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition October 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Montenegrin player and an Iraqi club. The competence of the DRC is in any case not contested by the parties.

27. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition October 2020), and considering that the present claim was lodged on 22 June 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

28. The Chamber 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.

29. In this respect, the Chamber 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 by or contained in TMS.

c. Merits of the dispute

30. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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

31. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the player’s claim pertains to outstanding remuneration only, and that, absent a correct default notice on file awarding the club 10 days to cure its alleged contractual breach, the claim does not meet the criteria of art 12bis of the Regulations.

32. In continuation, the DRC proceeded to examine the position of the parties, and noted that the following amounts are not disputed:

a. USD 10,000 as sign-on fee;

b. USD 7,000 as salary of February 2020;

c. USD 3,500 as half the salary of March 2020.

33. In continuation, the DRC focused on the amounts disputed by the parties, and wished to highlight that it was well-aware of the circumstances regarding the COVID-19 pandemic.

34. In this context, the Chamber wished to highlight that FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

35. The DRC also wished to refer to the fact that said guidelines – as per the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only applicable to “unilateral variations to existing employment agreements”. Therefore, except where a termination of a contract occurred following a unilateral variation made as a result of COVID-19 (in which case the validity of the variation must first be assessed under the guidelines), said guidelines do not apply to assess unilateral terminations of existing employment agreements. The Chamber further noted that for the assessment of disputes that are presented before the FIFA judicial bodies concerning the unilateral termination of a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber shall apply.

36. In the case at hand, the DRC concluded that there was neither a unilateral variation of the contract, nor an explicit termination of the contract by either of the parties. Consequently, the DRC confirmed that said Guidelines and FAQ shall not apply, only the FIFA Regulations as well as the established jurisprudence of the Chamber.

37. For the sake of completeness and in any event, the DRC wished to point out that the mere referral by the Respondent to the alleged article 43 i) of the Iraqi Labour Code and without further detailing how the pandemic would, under Iraqi law, constitute force majeure, would in any case, i.e. even if Iraqi law would need to be considered as per the COVID-19 Guidelines, quod non, not serve as a basis to justify the club’s failure to pay the player’s remuneration.

38. Having so found, the Chamber subsequently took due note of the Respondent’s argument that because the local league was cancelled on 15 March 2020, and on the grounds of clause 13 of the contract, the player was not entitled to any remuneration due after such date.

39. In this respect, the DRC observed the contents of said clause 13, and confirmed that its clear wording pertained to the possibility by the club to “cancel” the contract if the local league finished before 31 May 2020. Accordingly, and without entering into the question of whether such clause can be considered valid, the Chamber held that since the club did not invoke clause 13 to “cancel” the contractual relationship during the term of the contract, the contract was never prematurely terminated and the Respondent’s argumentation therefore cannot be followed. It suffices therefore that the clause in question cannot apply to the matter at hand. The pertinent contractual relationship expired ordinarily on 31 May 2020 as per the terms of the contract.

40. Consequently, the Chamber found that the reasons brought forward by the Respondent cannot justify the non-payment of the player’s remuneration. He is hence entitled to his salaries of March, April and May in full.

41. For the sake of good order, the DRC finally rejected the club’s allegation that, following the outbreak of the pandemic and the cancellation of the league, the player had agreed and accepted that his due remuneration would be limited to the sign-on bonus, the salary of February 2020 and half the salary of March 2020. In the Chamber’s view, the evidence provided pertains to respective negotiations, but it does not show that an agreement was ultimately found on this basis.

42. Finally, the DRC noted the player’s claim for travel expenses, and decided to reject it on the grounds of lack of contractual entitlement to such amounts.

43. Based on the foregoing and giving due consideration to the principle of pacta sunt servanda, the DRC decided to award the total amount of USD 38,000 as outstanding remuneration to the player, comprising his salaries between February and May 2020, i.e. USD 28,000, as well as the sign-on fee of USD 10,000. Furthermore, as per the longstanding practice of the Dispute Resolution Chamber coupled with the player’s specific requests for relief, the DRC decided that interest of 5% p.a. shall apply on the aforementioned amount as from 1 June 2020 until the date of effective payment. In fact, in absence of a different agreement, wages due under an employment contract become due at the end of each month and at the latest upon expiry of the contract, without the need of an additional default notice.

ii. Compliance with monetary decisions

44. Finally, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

45. In this regard, the DRC highlighted 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.

46. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amounts due to the player within 45 days as from the moment in which the player communicates the relevant bank details to the club, provided that the decision is final and binding, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

47. The DRC 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.

48. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

49. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

50. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, DARKO MARKOVIC, is partially accepted.

2. The Respondent, ERBIL SC, has to pay to the Claimant the following amount:

- USD 38,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 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.

7. The decision is rendered free of costs.

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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