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

• Data decisione: 13 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 13 November 2020

Decision of the

Dispute Resolution Chamber

passed on 13 November 2020

regarding an employment-related dispute concerning the player Milos Nikolic

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Stijn Boeykens (Belgium), member

Daan de Jong (Netherlands), member

CLAIMANT:

Milos Nikolic, Serbia

Represented by Mr Dino Husak Osmanovic

RESPONDENT:

FC Kokand 1912, Uzbekistan

I. Facts

1. On 3 February 2019, the parties concluded an employment contract valid as from 4 February 2019 until 1 December 2019 (i.e. 10 months).

2. Following clause 7.1 of the contract, the player was entitled to a monthly salary of UZS (Uzbek So’m) 25,000,000.

3. On 21 February 2020, the player sent a “warning letter” to the club, and granting a deadline of 10 days for “the payment of the total amount on the name of the due salaries, amounting 250.000.000 (two hundred and fifty million) Uzbekistani Som, corresponding to the monthly salary of 25.000.000 (twenty five million) Uzbekistani Som for 10 months period, plus bonus payment of 20.000.000 (twenty million) Uzbekistani Som for two games class performance.“

4. The player sent an additional letter on 5 March 2020.

5. Following the player’s passport issued by the Football Association of Serbia, the player was registered on a permanent basis as an amateur with the Serbian club, GFK Sloboda – Uzice, from 28 August 2019 until 19 February 2020.

6. On 13 March 2020, the Claimant lodged a claim before FIFA and requested the payment of the total amount of 270,000,000 or EUR 26,000, plus 5% ”calculating due interest accordingly, detailed as follows:

25,000,000*10, corresponding to 10 monthly salaries;

10,000,000, as bonus “for one class performance”.

7. In its reply, the Respondent explained that the contract concluded with the player was mutually terminated on 20 May 2019 and provided a copy a termination agreement stipulating the following terms:

CLUB undertakes to pay its arrears in salary for April and May (on to May 20 2019) and the award fee for "Navbakhor" (drawn game) and "Kizilkum" (win game) on to August 01, 2019.”

8. In response to the Respondent’s reply, the Claimant denied the validity of the mutual termination agreement, noting the following:

“we cannot approach to examining the substance of the same since not even the minimum formal prerequisites of the document forwarded to us for inspection and comments are not satisfied. The document is not translated in the official language in which this matter is conducted nor in language understood by us or our Client, by the official and licensed translator, nor is there any sign of the ratification of this document by the corresponding football federation and the league. Consequently, authenticity and credibility of the document are not proven, thus also violating the procedural rules, and accordingly, this document must be rejected and not taken in consideration for decision making.”

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, such as the present one, which involves a Serbian player and an Uzbek club.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber 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 claim was lodged on 13 March 2020, the October 2019 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber noted that, on 3 February 2019, the parties concluded an employment contract valid as from 4 February 2019 until 1 December 2019, i.e. 10 months.

6. Subsequently, the Chamber observed that the player lodged a claim before FIFA and requested the payment of the total amount of 270,000,000 or EUR 26,000 and corresponding to 10 monthly salaries.

7. Conversely, the Chamber took note of the Respondent’s reply, according to which, on 20 May 2019, the contract was mutually terminated (cf. point I.7 above).

8. In relation to said alleged termination agreement, the Chamber also considered that the Respondent denied its validity arguing, inter alia, that “the document is not translated in the official language in which this matter is conducted nor in language understood by us or our Client, by the official and licensed translator, nor is there any sign of the ratification of this document by the corresponding football federation and the league

9. In view of the above, at this stage, the Dispute Resolution Chamber reminded the parties of the contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

10. In relation to the alleged mutual termination of the contract, the Chamber noted that the Respondent submitted a copy of the relevant document with a translation in an official FIFA language.

11. Moreover, in relation to the player’s argument, according to which said document was originally signed in a language he could understand, the Chamber recalled its longstanding jurisprudence in this respect, according to which a party signing a document of legal importance without knowledge of its precise content, as a general rule, does so on its own responsibility. As a result, the Chamber dismissed the player’s allegation in this respect.

12. In addition, and referring to art. 12 par. 4 and 5 of the Procedural Rules, according to which, the DRC may also consider evidence not presented by the parties, as well as any documentation or evidence generated by or contained in TMS (in accordance with art. 6 par. 3 of Annexe 3 of the Regulations on the Status and Transfer of Players).

13. In view of the above, and taking into account the evidence gathered during the course of the investigation, the DRC observed that he player was registered on a permanent basis as an amateur with the Serbian club, GFK Sloboda – Uzice, from 28 August 2019 until 19 February 2020.

14. As a result, the Chamber understood that, given the above-mentioned registration of the player in Serbia since the end of August 2019, the player already left Uzbekistan at that stage.

15. In view of all of the above, the Chamber considered that the conclusion on 20 May 2019 of a mutual termination agreement between the parties appears to be plausible. In addition, and after duly taking into account the evidence provided by the Respondent, the Chamber was of the opinion that the latter sufficiently met its burden of proof by providing documentary evidence.

16. As a result, the Chamber considered that the mutual termination agreement of 20 May 2019 was fully valid and binding.

17. After establishing the foregoing, the Chamber went on to examine the consequences of said agreement.

18. In this respect, the Chamber observed that said agreement stipulated the following:

“1.1. PLAYER and CLUB (thereinafter - Parties) terminate the contract, concluded on February 4,2019 (…) between PLAYER and CLUB, and registered on February 25, 2019 by the Professional Football League in Uzbekistan. Under the abovementioned Contract the rights and duties of PLAYER and CLUB are terminated since May 20.2019. CLUB undertakes to pay its arrears in salary for April and May (on to May 20 2019) and the award fee for "Navbakhor" (drawn game) and "Kizilkum" (win game) on to August 01, 2019.”

19. In relation to the contents of said agreement, the Chamber understood that it can be clearly established that the contract was mutually terminated as from 20 May 2019 and that the Respondent committed to pay the player’s remuneration for the entire month of April 2019 as well as for the 20 first days of May 2019 and, in addition, two match bonuses.

20. In relation to the aforementioned payments, the Chamber noted that no convincing evidence was provided by the Respondent to establish that said amounts were effectively paid. Consequently, the Chamber had no other option than to deem that all the amounts stated in said termination agreement remained outstanding.

21. In this respect, the Chamber noted that the employment contract stipulated that the player was entitled to a monthly salary of UZS 25,000,000.

22. As a result, the Chamber observed that the Respondent owed to the Claimant the monthly salary of April 2019 (i.e. UZS 25,000,000), as well as a pro rata salary for the first 20 days of May 2019 (i.e. UZS 16,666,666).

23. In addition, and as to the bonuses stated in the termination agreement, the Chamber noted that the player requested the payment of “20.000.000 (twenty million) Uzbekistani Som for two games class performance.”

24. In relation to said amount, the Chamber observed that the termination agreement indeed stipulated that the player was entitled to two bonuses for two games, and that its quantification in the amount of UZS 10,000,000 for each (UZS 10,000,000) was fundamentally uncontested by the club. As a result, the Chamber understood that, following the termination agreement as well as the evidence available on file, the Respondent committed to pay the total amount of UZS 20,000,000 as bonuses (i.e. UZS 10,000,000*2) for the two applicable matches.

25. All in all, the Chamber understood that, from the termination agreement, the Respondent committed to pay the total amount of UZS 61,666,666 (UZS 16,666,666+25,000,000+20,000,000), and that said amount remained outstanding.

26. As a result, in accordance with the principle of pacta sunt servanda, the Chamber established that the Respondent shall pay to the Claimant, the total outstanding amount of UZS 61,666,666 and arising from the termination agreement.

27. In addition, taking into account the player’s request as well as the longstanding jurisprudence in this regard, the Chamber decided to award 5% interest p.a. over said amount as from the date of the claim.

28. 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.

29. 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.

30. 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.

31. 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.

32. The Chamber concluded its deliberations by rejecting any further claim lodged by the parties.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Milos Nikolic, is partially accepted.

2. The Respondent, FC Kokand 1912, has to pay to the Claimant, the following amount:

- UZS 61,666,666 as outstanding remuneration plus 5% interest p.a. as from 13 March 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:

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.

7. 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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