DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 19 novembre 2020 • Stagione sportiva: 2020/2021

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 19 November 2020

Decision of the

Dispute Resolution Chamber

passed on 19 November 2020

regarding an employment-related dispute concerning the player Danilo Pantic

COMPOSITION:

Geoff Thompson (England), Chairman

Michele Colucci (Italy), member

Daan de Jong (Netherlands), member

CLAIMANT:

Danilo Pantic, Serbia

Represented by SPFN

RESPONDENT:

Fehervar FC, Hungary

I. Facts

1. On 31 August 2019, the Serbian player, Danilo Pantic (hereinafter: the player or the Claimant) and the Hungarian club, Fehervar FC (hereinafter: the club or the Respondent) concluded an employment contract.

2. In relation to its period of validity, the contract stipulated the following:

“Duration of contract: from August 31, 2019 to June 30, 2023. Parties agree that in case of Employer contracts Employee on a permanent basis from July 1, 2020, according to the option stated in Employee's loan agreement, then the duration of this Contract is extended until June 30, 2023, without further legal acts.”

3. The contract stipulated the following financial conditions:

“Sum and currency of the Football Player's salary (gross / net): Personal gross monthly basic salary of the Employee shall be 9,769,000 HUF, namely Nine million seven hundred and sixty nine thousand Hungarian Forints.

The Parties - taking into consideration that the basic salary was calculated on the basis of the net amount of 25,000 EUR (…) -hereby clarify and affirm that the salary was fixed on a 331 HUF/€ (three hundred thirty one HUF/ one Euro) exchange rate.

(…) For the avoidance of doubt in case the Player shall be at no point have a lower net of any taxes salary than 25,000 Euro per calender month or its equivalent in HUF.

Date of salary payment: The Employer will pay the Employee's net monthly basic salary until the 10th day of the month following the accounting month (…).

4. Art. 49 of the contract stipulated the following:

“The Parties agree that they shall make efforts to settle their possible dispute in amicable way by negotiations. If these efforts fail -in case determined by the rules of MLSZ and FIFA -the Parties may turn to the organizational units of MLSZ or FIFA with jurisdiction, in case of employment-related disputes to the Administrative and Labour Court having competence and jurisdiction and in all other disputes arising out of their legal relationship the Parties stipulate the exclusive jurisdiction of the Sport Standing Arbitration Court based on the Article 47 of the Sports Law. The number of arbitrators is three, and the procedure is determined by the Procedural Rules of the Arbitration Court.”

5. According to the Claimant, on 22 January 2020, he asked permission to leave the club between 25 January 2020 until 2 February 2020, in order to attend family obligations in Serbia.

6. On 31 January 2020, the club sent a termination letter “with immediate effect to the player”, indicating, inter alia, the following:

“I hereby inform You, that You shall only be entitled to the following amounts with regard to the termination of your employment relationship:

his pro-rata salary until the Termination Date;

compensation for any vacation time proportional to the term of his employment relationship, that has not been previously allocated.

(…)

REASONING

(…)

Employer notified the Employee by a letter dated December 20, 2019 that the Employee had to return to pre-season training following the winter break on January 13, 2020 with the MOL Fehervar FC's second team.

(…)

Employee has still not appeared at the trainings and other preparation sessions of MOL Fehervar Fe's second team to date without prior notification and without Employer's consent.

(…)

Under Art 78 para (1) point a) of the Labour Code and point 38 of the Employment Contract declares that The Employer or the Employee may terminate the employment relationship with immediate effect, if the other party breaches its obligations in connection with the employment contract intentionally, or with gross negligence and seriously [ ... ]"

7. On 20 July 2020, the legal representative of the player sent the following correspondence to the club:

“On the day 31 January 2020, Fehervar K.C. Kft. terminated contract with player Mr. Danilo Pantic without just cause. In a case of a dispute is authorized FIFA DRC, because the Hungarian Football Federation does not meet the conditions provided by the FIFA Regulations on the Status and Transfer of Players 22b

I give you 10 days to find mutual solution with my client, otherwise I will start the legal process against your club on FIFA DRC.

I remind you that in FIFA and CAS practice Fehervar K.C Kft. terminated contract without just cause and we believe that you are aware of the consequences.”

8. On 27 July 2020, the club replied to the player, indicating, inter alia, the following:

“(.), I inform you that your Client committed a significant and intentional breach of contract, on the basis of which the termination of his employment relationship with immediate effect is legitimate!

Duly justified reasons led to the termination of the employment relationship of your Client as a professional athlete {football player), therefore, we are not able to make any offer to your Client.

9. The player informed FIFA that he remained unemployed between 31 January 2020 until 30 June 2020.

10. In addition, the player explained that, on 11 August 2020, he concluded an employment contract with the Serbian club, FC Cukaricki, valid as from the date of signature until 30 June 2021.

11. On 1 October 2020, the Claimant lodged a claim for breach of contract without just cause.

12. In this respect, the Claimant requested the payment of the total amount of EUR 132,000, detailed as follows: amounts

Outstanding amounts before the termination (resp. 31 January 2020):

The part of salary for January 2020 in amount of EUR 7,000 with 5% interest starting from 31 January 2020

EUR 125,000 as compensation, plus 5% interest from 31 January 2020, detailed as follows:

Compensation after termination (from 31/01/20- 30/06/20)

a) The salary for February 2020 in amount of EUR 25,000

b) The salary for March 2020 in the amount of EUR 25,000

c) The salary for April 2020 in the amount of EUR 25,000

d) The salary for May 2020 in the amount of EUR 25,000

e) The salary for June 2020 in the amount of EUR 25,000

13. The Claimant explained that, prior to the termination of the contract, the Respondent never initiated any disciplinary proceedings against him, nor did they punish him on any grounds. The Claimant further noted the Respondent never issued any prior warning.

14. In its reply to the claim, the Respondent contested the competence of FIFA and referred to point 49 of the contract.

15. The Respondent referred in this respect to “Article XXVIII of the FUNDAMENTAL LAW OF HUNGARY”, which declares that "Everyone shall have the right to have any charge against him or her, or his or her rights and obligations in any litigation, adjudicated within a reasonable time in a fair and public trial by an independent and impartial court established by an Act."

16. As to the substance, the Respondent argued that “the Claimant has not proved to date that the termination of Claimant's employment relationship with immediate effect would have been unlawful; he only proved that he did not comply with his main obligation arising from his employment relationship between 27 January 2020 and 31 January 2021, that is, he did not attend the preparation sessions without prior notification and consent of the Respondent.”.

17. The Respondent insisted that “between 27 January 2020 and 31 January 2020 the Claimant did not attend the trainings of the second team of MOL Fehervar FC and other preparation sessions (…), without any prior notification and the Respondent's consent and despite the program plan which was known to him.”

18. The Respondent underlined that the player “did not respond to the Respondent's multiple attempts to contact him between 27 January 2020 and 31 January 2020, he did not make a statement to the Respondent about his absence; he simply disappeared and ceased all kind of communication”.

II. Considerations of the Dispute Resolution Chamber

1. 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. 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.

2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised 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, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs.

3. Consequently, the Dispute Resolution Chamber would, in principle, be competent to decide on the present litigation which involves a Serbian player and a Hungarian 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 art. 49 of the contract.

5. In this respect, the Chamber first referred that, following the contents of art. 22 of the Regulations on the Status and Transfer of Players, the competence of FIFA is “without prejudice to the right of any player or club to seek redress before a civil court for employment-related dispute.”

6. Yet, in relation to the above, the Chamber 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.

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

8. In particular, the Chamber then turned its attention to the invoked art. 49 of the contract, which stipulated the following:

9. Having examined the aforementioned provisions, the Chamber observed that they do not constitute a clear jurisdiction clause in favour of one specific court or arbitration tribunal in Hungary, and noted that, in fact, they potentially grant jurisdiction to “the organizational units with MLSZ or FIFA scope of authority”. Thus, the Chamber understood that, in fact, the parties agreed on the possibility of submitting the matter to FIFA.

10. In view of the above, the Chamber rejected the allegations of the Respondent as to the competence.

11. Furthermore, 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 Players, and considering that the present claim was lodged on 1 October 2020, the June 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

12. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. 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. Moreover, the DRC recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

13. Entering into the substance of the matter, the Chamber recalled that the player and the club concluded an employment contract valid as from 31 August 2019 and, in principle and subject to a possible extension, until 1 July 2020 and that, accordingly, the player was entitled to a monthly salary in the equivalent amount of EUR 25,000 (cf. point I.3 above).

14. Subsequently, the Chamber noted that the player lodged a claim against the club for breach of contract without just cause, arguing that the club sent him a notice on 31 January 2020, by means of which the club terminated the contract with immediate effect due to the fact that the player failed to ” return to pre-season training following the winter break on January 13, 2020 with the MOL Fehervar FC's second team. “

19. In relation to said termination, the Chamber noted that the Respondent insisted that “between 27 January 2020 and 31 January 2020 the Claimant did not attend the trainings of the second team of MOL Fehervar FC and other preparation sessions (…), without any prior notification and the Respondent's consent and despite the program plan which was known to him.”

15. In view of the above, the Chamber considered that the main legal issue at stake consists in establishing whether the club had just cause to terminate the contract on 31 January 2020.

16. In this respect, and as a preliminary note, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria, which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to ensure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can only ever be an ultima ratio measure.

17. In this respect, the Chamber noted that the main reason provided by the club refers to an absence of 4 days, noting that no clear evidence was provided as to the player having been effectively warned about the possible consequences of his absence.

18. Moreover, and even though the termination letter referred to a four-day absence, the Chamber observed that, de facto, the player appears to have been absent for 18 days

19. Under any circumstance and bearing in mind the criteria of ultima ratio, the Chamber was of the firm opinion that, even if the player would have been absent for a few days in early January 2020, in any case, said absences could not justify an early termination of the contract, particularly considering that they occurred in a period that traditionally overlaps with the winter break. In addition, the Chamber noted that the club did not provide any convincing evidence to prove that the player was effectively warned about the possible consequences of his absences. In the opinion of the Chamber, the Respondent could have undertaken more lenient measures prior to the unilateral termination of the contract.

20. In view of all of the above, and in accordance with its well-established jurisprudence for similar cases, the Chamber unanimously concluded that the club terminated the contract without just cause and that the club is to be held liable for the early termination of the contract.

21. In continuation, having established that the Respondent is to be held liable for the termination of the contract with just cause by the Claimant, the Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the club is liable to pay compensation to the player.

22. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

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

24. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber 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.

25. The members of the Chamber then turned their attention to the remuneration and other benefits due to the player under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its date of termination without just cause on 30 January 2020 until 1 July 2020 (i.e. the original date of expiration of the contract), and concluded that the Claimant would have received in total EUR 125,000 (i.e. EUR 25,000*5).

27. Consequently, the Chamber concluded that the amount of EUR 125,000 serves as the basis for the determination of the amount of compensation for breach of contract in the case at hand.

28. In continuation, the Chamber 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.

29. The Chamber observed, as mentioned above that the player appears to have been unemployed from the termination of the contract until 1 July 2020, i.e. during the remaining period of the contract with the Respondent. The Chamber then noted that the player concluded an employment contract with the Serbian club, FC Cukaricki, valid as from 11 August 2020 until 30 June 2021.

30. Consequently, on account of all of the above-mentioned considerations, the Chamber understood that the player failed to mitigate his damages during the remaining period of the contract with the Respondent.

31. In sum, the Chamber decided that the club must pay the amount of EUR 125,000 to the player as compensation for breach of contract without just cause.

32. In addition, taking into account the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the club must pay to the player interest of 5% p.a. on the payable compensation as from the date of the claim until the date of effective payment.

33. In addition, the Chamber further noted that, in addition to compensation, the player is entitled to the payment of his outstanding remuneration until the date of termination of the contract.

34. In this respect, the Chamber noted that, according to the Claimant, a remaining part of his salary for January 2020 in amount of EUR 7,000, remained outstanding.

35. In relation to said amount, the Chamber observed that said portion of the player’s salary for January 2020 was uncontested by the Respondent. Accordingly, the Chamber could only confirm that said amount remained outstanding.

36. Consequently, in accordance with the principle of pacta sunt servanda, the Chamber decided that the Respondent shall pay to the Claimant the outstanding amount of EUR 7,000.

37. In addition, taking into account the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the club must pay to the player interest of 5% p.a. on the payable outstanding amount as from the due date until the date of effective payment.

38. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claims lodged by the parties are rejected.

39. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

40. In this regard, the Dispute Resolution Chamber 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.

41. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

42. Finally, the Dispute Resolution Chamber 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 Dispute Resolution Chamber

1. The claim of the Claimant, Danilo Pantic, is admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Fehervar FC, has to pay to the Claimant, the following amounts:

- EUR 7,000 as outstanding remuneration plus 5% interest p.a.as from 1 February 2020 until the date of effective payment.

- EUR 125,000 as compensation for breach of contract without just cause plus 5% interest p.a.as from 1 October 2020 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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:

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).

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.

8. This decision is rendered without 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).

CONTACT INFORMATION:

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