Labour Disputes
Texto da decisão
REF. FPSD-7534
Decision of the
Dispute Resolution Chamber
passed on 20 April 2023
regarding an employment-related dispute concerning the player Marcos
Raphael Alvarez Giraldez
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia), member
Mario Flores Chemor (Mexico), member
CLAIMANT/COUNTER-RESPONDENT:
Marcos Raphael Alvarez Giraldez , Germany
Represented by Stankiewicz Law Firm
RESPONDENT/ COUNTER-CLAIMANT:
MKS Cracovia, Poland
Represented by WIKTOR ZIEŃ
pg. 2
REF. FPSD-7534
I. Facts of the case
1.
On 4 January 2020, the German player Marcos Raphael Alvarez Giraldez (hereinafter: the
player or Claimant/Counter-Respondent) and the Polish club MKS Cracovia (hereinafter: the
club or Respondent/ Counter-Claimant) concluded an employment contract (hereinafter: the
contract) valid as from 1 July 2020 until 30 June 2023.
2.
According to the contract, the club undertook to pay to the player the following
remuneration:
-
“in the period from July 1st 2020 until June 30th, 2021(i.e. within Tournament season 2020/2021)
the Service Provider shall receive the individual base remuneration in the total amount of
266.700,00 (say: two hundred sixty six thousand seven hundred) EUR + VAT tax payable in
monthly instalments in the amount of 22.225,00 (say: twenty two thousand two hundred twenty
five) EUR + VAT tax, for each month during which this Agreement stays in force.
-
in the period from July l 2021 until June 30, 2022 (i.e. within Tournament season 2021/2022) the
Service Provider shall receive the individual base remuneration in the total amount of
266.700,00 (say: two hundred sixty six thousand seven hundred) EUR + VAT tax payable in
monthly instalment<; in the amount of 22.225,00 (say: twenty two thousand two hundred twenty
five) EUR + VAT tax, for each month during which this Agreement stays in force subject to the
provisions of §5.2
-
in the period from July 1, 2022 until June 30th, 2023 (i.e. within Tournament season 2022/2023)
the Service Provider shall receive the individual base remuneration in the total amount of
266.700,00 (say: two hundred sixty six thousand seven hundred EUR+ VAT tax payable in
monthly instalments in the amount of 22.225,00 (say: twenty two thousand two hundred twenty
five) EUR + VAT tax, for each month during which this Agreement stays in force subject to the
provisions of §5.3”
3.
In accordance with article 12 par. 8 of the contract, the parties agreed that “Any disputes
arising out of the Agreement shall be finally settled by the Polish Football Association Dispute
Resolution Chamber (Izba ds.Rozwiqzywania Spor6w Sportowych PZPN) or Football Arbitration
Court of Polish Football Association (Pilkarski Sqd Polubowny PZPN) relevant to the competence
of this authorities.”
4.
On 15 March 2022, the player put the club in default and requested payment of his
outstanding remuneration in the amount of (Polish Zloty) PLN 266,253.47, setting a 14 days’
deadline in order to comply with payment of the outstanding amount.
5.
On 15 March 2022, the club paid an amount of PLN 10,0000 to the player.
6.
On 30 March 2022, the player terminated the contract with the club.
pg. 3
REF. FPSD-7534
7.
On 31 March 2022, the club replied to the termination notice of the player, inter alia,
mentioning that the unilateral termination of the contract, was completely ineffective, on
account of the following:
“First of all, it must be clearly pointed out that MKS Cracovia SSA has not received from the Player
any demand regarding payment of any outstanding amounts which would result in the
possibility of exercise by the Player the right to unilaterally terminate the Contract due to the
Club's fault and with just cause. I want to stress that above mentioned demand and granting an
additional deadline is a necessary prerequisite for exercising the right to unilateral termination
of the Contract not only under Art. 8.3.a of the Resolution No.III/54 of the Polish Football
Association Board - Minimum requirements for standard player contracts in the professional
football sector (the “Resolution”) but also under Article 14bis FIFA Resolution on the Status and
Transfer of Players (the “RSTP)
Moreover, it should be emphasized that the Club is nearly had a full two-month arrears
payments towards the Player. Hence, the Club never unlawfully failing to pay the Player at least
two months salaries on the due dates as indicated article 14 plus FIFA RTP. What is more all the
outstanding salary has been paid to the Player before the end of the March 2022. Thus the
condition regarding existence of such full two-month arrears provided for in a resolution and
FIFA RSTP has never exist. Due to this fact, the Player were not allowed to exercise the right of
unilateral termination of the contract not only based on the Resolution but also on FIFA RSTP”
8.
On 1 April 2022, the club paid part of the outstanding salary of April to the player, however
the player indicated that an amount of PLN 3,458.50 remained outstanding.
9.
On 11 April 2022, the club sent a notice to the player, requesting the reason for his
“unjustified absence in training”, further mentioning the following:
Acting on behalf of the Miejski Klub Sportowy Cracovia Sportowa Sp6tka Akcyjna with its
registered seat in Krakow (hereinafter referred to as "MKS Cracovia SSA" or "Club"), we hereby
call you to properly perform the obligations arising from the contract on professional football
playing concluded between you and MKS Cracovia SSA of January 4, 2020 (the "Contract").
Please be informed that the Management Board of MKS Cracovia SSA has received information
that you did not attend the training session conducted during the period of 31 March 2022 - 11
April 2022 without any justification. Such an unexcused absence must be considered as a
material breach of the Contract. Therefore, please provide the Club immediately with an
explanation regarding your absence.
Notwithstanding the foregoing, it must be pointed out that your further failure to fulfill and/or
improper perform of the obligations under the Contract may result in negative consequences as
provided for in the provisions of the Contract and the provisions of the Polish Football
Association rules and regulation.
pg. 4
REF. FPSD-7534
Moreover, we would like to inform you that MKS Cracovia SSA has exercised its right resulting
from the provisions of the Polish Football Association rules and regulations and the Club has
brought to Football Arbitration Court of Polish Football Association ("FAC") a claim regarding
establishing the ineffectiveness of your statement of March 30, 2022.
10. In regard to the claim lodged by the club at the Polish Football Association, the player
indicated that he “changed the attorney in August 2022 and got to know that the PFA Court
does not meet the requirements of FIFA and does not constitute the independent tribunal under
FIFA RSTP regulations”.
11. On 25 August 2022, the player sent a notice to the club, informing the club:
- that its termination notice is considered effective and lawful
- that the Polish Football Association Football Tribunal does not meet the requirements of an
independent Tribunal to pay him the amount of EUR 410,051.25 as compensation for breach
of contract as residual value, setting a 10 days’ deadline to comply
12. According to the information available in TMS, on 21 January 2023, the player concluded an
employment contract with the club SV Meppen valid from 23 January 2023 until 30 June
2024, entitling him to a monthly salary of EUR 5,300 per month from 23 January 2023 until
30 June 2023 and EUR 7,000 per month from 1 July 2023 until 30 June 2024.
II. Proceedings before FIFA
13. On 20 September 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Player
14. According to the player, he terminated the contract with just cause as the club failed to pay
his salaries for January and February 2022 and it effectively placed the club in default
without it complying with the terms of his default notice.
15. Moreover, the player argued that he had just cause to terminate the contract in accordance
with art. 14 of the Regulations as “(i) he was bullied for three months; (ii) the illegitimate
pressure was put on him in order to leave the Club; (iii) he was not taken to the training camp;
(iv) he was put in the second team which played in the Ill league in Poland {IV tier) in which he
could have hardly improve its abilities as a player who had appearance e.g. in Bundesliga and
2. Bundesliga; and (v) finally the unpaid remuneration was another way of the club to force the
player to leave.”
pg. 5
REF. FPSD-7534
16. The requests for relief of the player, were the that the club pay him the total amount of
EUR 410,051.25 corresponding to residual value of the contract plus 5% interest p.a. as
from 5 September 2022 until the date of payment.
b. Position of the Club and Counterclaim
17. In its reply, the club firstly mentioned that the FIFA DRC does not have jurisdiction to hear
this dispute.
18. In continuation, the club indicated that if the FIFA DRC decides that it has jurisdiction then
it hereby requests the DRC to:
(i)
dismiss the Claim and adjudicate that the Player did not have just cause to terminate the
Contract; and
(ii) to accept the counterclaim of the Club against the Player.
19. The club argued that it never received the default notice of the player and that his
termination notice of 30 March 2022 was the first formal notice received by the player
regarding the outstanding salaries, accordingly the said termination notice should be
“declared null, void and ineffective.
20. Accordingly, as soon as the club “received the termination notice, it immediately – on the 1
April 2022 (two days after the receipt of the Termination Notice) – paid to the outstanding
salaries, apologizing for the delay.”
21. The club indicated that the player unilaterally terminated the contract as per his notice
“pursuant to Article 8.3,para. a) of the Resolution No. III/54 and not on the basis of Article
14bis of the FIFA RSTP, however that he did not have just cause to terminate the contract
neither on the basis of Article 14 of the RSTP nor on the basis of Article 14bis of the RSTP,
therefore terminating an employment contract without just cause is that the party in
breach is required to pay a compensation, as foreseen in Article 17 para. 1 of the RSTP.
22. As to the overdue payables, the club mentioned that it “has never concealed that in some
cases there may be minimal delays in payments due to the high financial burden related to the
construction of a new training center of Cracovia, which was put into operation in 2021 and a
financial blow resulting from COVID-19 outbreak.”
23. The club further emphasized that it fully paid the outstanding remuneration of the player
less the amount of PLN 3,458.50 resulted from “the amount that the player owed the club for
the sports equipment ordered by him in Cracovia’s official shop.”
24. Furthermore, the club referred to proceedings before the Polish Football Association
Tribunal and mentioned the following:
pg. 6
REF. FPSD-7534
(a) as a direct consequence of the submission of the termination notice by the Player, the Club
decided – pursuant to the Agreement and to Article 8.8 of the Resolution No. III/54 – to file on 5
April 2022 a claim before PSP PZPN requesting the court to declare the Termination Notice
ineffective (hereinafter: the “PSP Claim of the Respondent”).
(b) On 19 April 2022, the player filed a response on the merits to the Claim of the Respondent
(c) the player nominated Mr. Jarosław Zubrzycki as an arbitrator to the proceeding (an arbitrator
recommended by the Polish Footballers’
(d) lodged a request for interim relief on 19 April 2022, requesting the release of the Player form its
duty to participate in trainings and matches in the Club
COUNTER-CLAIM
25. In the present dispute, the club held that the player is in clear breach of the contract during
the Protected Period, therefore, it is seeking a minimum amount of compensation from the
player of EUR 1,500,000.
26. The club requested the following relief:
“Primarily:
To reject the Player’s Claim against Cracovia on the basis that the FIFA DRC does not have
jurisdiction to hear this dispute.
Alternatively:
That the Player’s Claim against Cracovia should be rejected as being inadmissible on the basis
that the Player accepted the jurisdiction of PSP PZPN (both explicitly and implicitly), defended
his position on the merits/substance of the dispute and has not contested or challenged the
jurisdiction of PSP PZPN until 24 October 2022, i.e., a day before the final hearing in the SPk
4/2022 case.
In the further alternative:
In the event that the FIFA DRC considers that it does have jurisdiction to hear this dispute, and
the Player’s Claim is admissible, Cracovia hereby respectfully requests the FIFA DRC to rule as
follows:
(i) that the Player’s Claim against Cracovia should be dismissed in its entirety;
(ii) that the Player did not, in fact, have just cause to terminate the Contract on 30 March 2022;
(iii) that Cracovia’s counter-claim to the DRC against the Player is admissible;
(iv) that the Player is liable to pay Cracovia a minimum amount of EUR 1,500,000, as
compensation for breach of the Contract pursuant to Article 17 of the RSTP;
(v) that the Player is liable to pay Cracovia interest of 5% per annum on any amount awarded
by the FIFA DRC from 31 March 2022, until the date of effective payment;
pg. 7
REF. FPSD-7534
(vi) that the Player should be imposed with sporting sanctions pursuant to Article 17 para. 3 of
the RSTP a 4-month playing ban;
In any case:
(i) that the player shall bear all legal and procedural costs of the entire proceeding related to
the present proceeding, if any;
(ii) The Respondent reserves its right to amend- and/or expand- and/or submit new- statements,
allegations, claims and explanation related to the present proceeding, including its request for
relief, depending on the further submission of the Parties, including responses to the present
Answer.
(iii)In accordance with Article 18 para. 1 f) of the of the FIFA Procedural Rules, as the Exhibit No.
23, the Respondent submits the Bank Account Registration Form.”
c. Player’s reply to the counterclaim of the club
27. In his replica, the player requested to:
1) declare the Club's counterclaim inadmissible in its entirety or in case the honourable Tribunal
decides it's request for relief does meet the requirements set in procedural rules
2) reject the Club's counterclaim in its entirety.
d. Additional comments of the player
28. Regarding the outcome of the proceedings conducted at the Polish NDRC, the player
provided the following update:
“The Player denied the jurisdiction of the Polish Football Association Tribunal ("PFAT") and
amended his position so that he denied being a part of these proceedings and withdrew all the
statements as for the substance matter.
The Player did not take part in PFAT proceeding especially in any hearing or any other activities
at PFAT and was not served with any judgment or decision.
Please note that in spring 2022 the Player moved out from the territory of Poland and came back
to Germany to permanently live there.
Please note also that the proceedings before PFAT were of a different subject matter than these
proceedings before the Honourable Tribunal. Before PFAT the Club wanted to establish that the
declaration of the Player was ineffective (the Club being the Claimant and the Player was
presented as the Respondent) whereas before the Honourable Tribunal the Player as a Claimant
pursue a claim for compensation against the Club as a Respondent due to breach of contract.
Therefore, the conclusions are the following:
pg. 8
REF. FPSD-7534
1) there were never two proceedings regarding the same subject matter (lis pendens);
2) the Player denied the PFAT jurisdiction, did not take part in PFAT proceedings and after
his above-mentioned letter was never informed about any outcome of the PFAT
proceedings;
3) as the proceedings before PFAF were pursued for the purpose of declaring the Player's
statement ineffective such judgment (decision) would never be effective in the present
case anyway as it is contrary to the principle that contracts may be terminated by either party
without consequences where there is just cause which should be considered at the national level
(article 1 sec. 3 let. c) and article 14 of FIFA RSTP) and therefore cannot be recognised by FIFA
itself; no one can legally (even PFAT) prevent and employee from terminating the contract were
there is just cause. Such declaration is always effective and effects in termination of the contract.
If it was ungrounded the consequences set in article 17 of FIFA RSTP shall apply.”
e. Additional comments of the club
29. Regarding the outcome of the proceedings conducted at the Polish NDRC, the club
provided the following update:
I would like to kindly inform the honourable Tribunal that the proceeding No. SPk 4/2022
conducted before PSP PZPN has been closed and the ruling has been issued by PSP PZPN on 25
October 2022 (the “Ruling”). The Ruling became legally valid on 30 January 2023.
I would like to kindly emphasise that the Club expected for the Ruling to become legally valid
due to PSP PZPN’s proceedings regulations based on which the Player could appeal against the
Ruling. The Player’s appeal could be sent, inter alia, by post, and therefore PSP PZPN had to
withhold to confirm the legal validity of the Ruling by the period required by PSP PZPN’s
proceedings regulations (i.e. until the date of expiry of the time limit for filing an appeal and an
additional period for delivery of any mail) in order to have the power to issue the decision on
the Ruling legal validity.
Furthermore, I would like to inform the honourable Tribunal that the Player has no further rights
of appeal in relation to the Ruling and the Ruling is legally valid and immediately enforceable.
I would like to kindly draw the attention of the honourable Tribunal that as disclosed in the
Ruling, the Player actively participated in the case conducted before PSP PZPN by, inter alia, (i)
nomination of the arbitrator Mr Jarosław Zubrzycki to the proceeding conducted before PSP
PZPN, (ii) filing a response on the merits to the Club’s claim, (iii) requesting for interim relief, and
(iv) exchange of the correspondence between the Club, the Player and PSP PZPN.
pg. 9
REF. FPSD-7534
III. Considerations of the Players Status Chamber
a. Competence and applicable legal framework
30. 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 23 September 2022 and
submitted for decision on 20 April 2023. Taking into account the wording of art. 34 of the
October 2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter:
the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to
the matter at hand.
31. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), 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 player from
Germany and a club from Poland.
32. However, the Chamber acknowledged that the club, firstly, contested the competence of
FIFA’s deciding bodies based on article 12 par.8 of the contract, which mentions that “any
disputes arising out of the Agreement shall be finally settled by the Polish Football Association
Dispute Resolution Chamber (Izba ds.Rozwiqzywania Spor6w Sportowych PZPN) or Football
Arbitration Court of Polish Football Association (Pilkarski Sqd Polubowny PZPN) relevant to the
competence of this authorities.”
33. Secondly, the Chamber observed that the club indicated that a claim with the same object
has already been lodged at the Polski Związek Piłki Nożnej (hereinafter: Polish NDRC) prior
to the lodgement of the claim at FIFA.
34. The Chamber noted that in this regard the player replied to the claim of the club and
presented his position at the Polish NDRC, without contesting the jurisdiction of the said
body.
35. In this context, the DRC referred to the active participation of the player to the said
proceedings i.e., filing a response to the claim and the submission of request for injunctive
relief, both dated 19 April 2022.
36. In continuation, the DRC duly observed that on 24 October 2022, a day before the hearing
of the case at the Polish NDRC, the player informed the body that it objects to its
jurisdiction, moreover, he failed to attend the hearing.
37. Subsequently, the Chamber noted that on 25 October 2022, the Polish NDRC, continued
with the scheduled hearing attended by the club in the absence of the player, and that the
pg. 10
REF. FPSD-7534
said body reached the following decision which ruling of the hearing was confirmed on 30
January 2023:
“1. determine that the statement of Mareos Raphael Alvarez Giraldez submitted to Miejski Klub
Sportowy Cracovia Sportowa Spółka Akcyjna in Krakow on 30 March 2022 to terminate the
professional footballer’s contract dated 4 January 2020 is ineffective,
2. award from the defendant – Marcos Raphael Alvarez Giraldez in favour of the Plaintiff – Miejski
Klub Sportowy Cracovia Sportowa Spółka Akcyjna the amount of PLN 1,000 as reimbursement
of legal representation costs.”
38. In this regard the Chamber recalled that in general if no objection is raised before the Polish
NDRC, the Football Tribunal cannot hear the claim.
39. Bearing in mind the foregoing, the Chamber turned its attention to occurrence of events
prior to the lodgement of the claim at FIFA and in doing so it considered the following; (i)
the club lodged a claim against the player at the Polish NDRC requesting a declaration that
the termination of his contract be ineffective; (ii) on 19 April 2022, the player submitted his
reply to the said claim arguing that the termination of the contract was valid and at the
same time requesting injunctive relief from the said body; (iii) on 24 October 2022, the
player objects to competence of the Polish NDRC; (iv) on 25 October 2022 a decision with
the ruling confirmed on 30 January 2023 was issued by the Polish NDRC in terms of which
the body upheld the claim of club.
40. Having established that a claim had indeed been lodged at the Polish NDRC, prior to the
one at FIFA and following the above events, the Chamber considered that the player’s
objection to the Polish NDRC only occurred months after the lodgement of the initial claim
and that he clearly failed to at first object to the jurisdiction of the Polish NDRC, moreover
he was fully aware of the proceedings being conducted before the said body, actively
participating thereto, which rendered a final decision on 30 January 2023.
41. The Chamber indicated that FIFA is not in a position to deal with the substance of a case in
the event that another deciding body has already dealt with the same matter by passing a
final and binding decision on it.
42. Taking the above into account, the Chamber pointed out that the abovementioned
considerations suffice to determine that the Football Tribunal does not have jurisdiction to
decide over the present matter, which include both the claim of the player and the
counterclaim of the club.
b. Costs
43. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
pg. 11
REF. FPSD-7534
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
44. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-7534
Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant/CounterRespondent, Marcos Raphael Alvarez Giraldez.
2.
The Football Tribunal does not have jurisdiction to hear the counterclaim of the
Respondent/Counter-Claimant, MKS Cracovia.
3.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-7534
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14