Labour Disputes
Texto da decisão
REF 20-00911/lsk
Decision of the
Dispute Resolution Chamber
passed on 29 September 2020,
regarding an employment-related dispute concerning the player Sebastijan Antic
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
SEBASTIJAN ANTIC, Croatia
Represented by Mr Georgi Gradev
RESPONDENT:
CLUB SAHAB, Jordan
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I. FACTS OF THE CASE
1.
On 16 January 2020, the Croatian player, Mr Sebastijan Antic (hereinafter: the player or
Claimant) and the Jordanian club, Club Sahab (hereinafter: the club or Respondent)
signed an employment contract (hereinafter: the contract) valid as from 10 January 2020
until “the end of the season 2020 of first division”.
2.
According to the contract, the Respondent undertook to pay the Claimant, inter alia,
the total amount of USD 40,000, payable as follows:
USD 8,000 upon signature of the contract, corresponding to the monthly
salaries of January and February 2020;
USD 4,000 per month;
Bonus of USD 5,000 if the player “wins defender of the Jordanian league”
Bonus of USD 5,000 if the “team wins a cup competition any of the ones
participated in the player”.
3.
On 3 June 2020, the player sent a default letter to the club, granting the latter 15 days
to pay the total amount of USD 12,000 “for the salaries from March to May 2020”.
4.
On 13 June 2020, the club replied stating in particular that “(a)s you know the COVID19 situation has impacted the overall playing season and the financial situation of all
football clubs around the world. Although that does not exempt us from financial
obligations as I stated we treated [the player] with the same regard as our other players
and had agreed with him to pay fifty-percent (50%) of his salary while the COVID
situation is ongoing. We are unsure of what the future holds for our club as far as
operations and particularly from a financial stand point however as we stated we had
agreed to 50% of the salary per month during the ongoing pandemic”.
5.
Subsequently, by means of a letter dated 14 June 2020, the player maintained not
having accepted “a reduction of 50% of his monthly wage”. In this context, the player
further pointed out that “you have failed or omitted to adduce with your email to me
material evidence corroborating your allegation, which is hereby vehemently rejected by
[the player]”. Lastly, the player requested, once again, the payment of USD 12,000,
granting the club a 4-day deadline to remedy the default, i.e. until 18 June 2020.
6.
On 19 June 2020, the player terminated the contract with immediate effect and explicitly
requested the payment of the outstanding salaries as well as compensation for breach
of contract and interest of 5% p.a.
7.
On 26 June 2020, the Claimant lodged a claim against the Respondent in front of FIFA.
8.
In his claim, the player first held that he only received the amount of USD 8,000 “for the
January and February 2020 wages”.
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9.
In this context, the player requested the payment of outstanding remuneration in the
amount of USD 12,000, plus interest of 5% p.a. as follows:
On USD 4,000 as of 1 April 2020 until the date of effective payment;
On USD 4,000 as of 1 May 2020 until the date of effective payment;
On USD 4,000 as of 1 June 2020 until the date of effective payment.
10. Moreover, the player also requested the payment of USD 32,000 as compensation for
breach of contract, plus interest of 5% p.a. as from 19 June 2020 until the date of
effective payment.
11. Finally, the player asked that sporting sanctions pursuant to art. 17 par. 4 or art. 24bis
of the Regulations on the Status and Transfer of Players be imposed on the club.
12. Finally, upon request of FIFA, the player confirmed that he concluded an employment
contract with the Qatari club, Mesaimeer, valid as from 1 September 2020 until 30 June
2021. According to said employment contract, the player is entitled to a monthly salary
of Qatari Riyal (QAR) 29,200, a monthly housing allowance of QAR 20,000 and a
monthly car allowance of QAR 6,500.
13. In spite of being invited to do so, the Respondent did not reply to the claim.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or
the Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was first submitted to FIFA on
26 June 2020. Consequently, the June 2020 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 (August 2020
edition), it is competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a Croatian player
and a Jordanian club.
3.
Furthermore, the DRC analysed which edition of the Regulations should be applicable as
to the substance of the matter. In this respect, the Chamber confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations (August 2020 edition) and
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considering that the present matter was submitted to FIFA on 26 June 2020, the June
2020 edition of said Regulations is applicable to the present matter as to the substance.
4.
With the above having been established, the 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 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. In particular, the
Chamber recalled that, in accordance with art. 6 par. 3 of Annex 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 FIFA Transfer
Matching System (hereinafter: TMS).
5.
In this respect, the Chamber firstly acknowledged that it was undisputed that the
Claimant and the Respondent had signed an employment contract valid as from
10 January 2020 until “the end of the season 2020 of first division”. In continuation, the
Chamber noted that it was also undisputed that the Claimant was entitled, inter alia, to
a remuneration as set out at point I./2. above.
6.
What is more, the Chamber further noted that the Claimant terminated the contract on
19 June 2020.
7.
Subsequently, the Chamber noted that the Respondent failed to provide its reply to the
claim, in spite of having been invited to do so. By not presenting its position to the claim,
the Chamber was of the opinion that the Respondent renounced its right of defence
and thus, in principle, accepted the allegations of the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a
decision upon the basis of the documentation already on file; in other words, upon the
statements and documents presented by the Claimant.
9.
In view of the foregoing, the Chamber established that the main issue to be analysed in
the present case is whether the contract was unilaterally and prematurely terminated
with or without just cause by the Claimant on 19 June 2020. Subsequently, the Chamber
shall establish the financial and/or sporting consequences to be borne by the party found
to be in breach of contract.
10. In this respect, 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,
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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.
11. Furthermore, the members of the Chamber deemed it appropriate to recall 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.
12. In this regard, the Chamber pointed out that the Claimant deemed to have terminated
the contract with just cause on 19 June 2020. In this respect, the Claimant underlined
that the Respondent had only paid him the amount USD 8,000 due upon signature of
the contract, corresponding to the monthly salaries of January and February 2020,
thereby failing to pay him the monthly salaries of March, April and May 2020.
13. On the other hand, the Chamber noted that by means of its letter dated 13 June 2020,
the Respondent referred to the worldwide COVID-19 outbreak, stating that “(a)s you
know the COVID-19 situation has impacted the overall playing season and the financial
situation of all football clubs around the world. Although that does not exempt us from
financial obligations as I stated we treated [the player] with the same regard as our other
players and had agreed with him to pay fifty-percent (50%) of his salary while the COVID
situation is ongoing. We are unsure of what the future holds for our club as far as
operations and particularly from a financial stand point however as we stated we had
agreed to 50% of the salary per month during the ongoing pandemic”.
14. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, 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 clarification about the most relevant questions in
connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
15. Furthermore, the Chamber recalled that the aforementioned COVID-19 documents
issued by FIFA - 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 members of
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.
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16. Following these general observations, the members of the Chamber deemed it
important to outline that it remained uncontested that the Respondent had not fulfilled
its financial obligations set forth in the employment contract signed between the parties
and that it had failed to pay to the Claimant the salaries for March, April and May 2020
in the amount of USD 4,000 each.
17. Bearing in mind the above considerations, the DRC recalled that the Respondent had
failed to provide its reply to the claim and that the Claimant had contested ever having
agreed to any salary variation. Therefore, the Chamber came to the conclusion that the
Respondent had not provided any valid justification for the non-payment of the amounts
that were outstanding at the time of the unilateral termination of the contract by the
Claimant.
18. Subsequently, the Chamber underlined that the Claimant had unilaterally terminated
the contract on 19 June 2020, after he had put the Respondent in default on 3 June
2020 and granted a deadline of 15 days for the Respondent to comply with its financial
obligations. In this respect, reference was made to art. 14bis par. 1 of the Regulations,
which, inter alia, stipulates that, in the case of a club unlawfully failing to pay a player
at least two monthly salaries on their due dates, the player will be deemed to have a just
cause to terminate his contract, provided that he has put the debtor club in default in
writing and has granted a deadline of at least 15 days for the debtor club to fully comply
with its financial obligation(s).
19. On account of all the above-mentioned considerations, specifically considering that,
when the Claimant terminated the contract, more than two salary payments were due
despite the fact that the Claimant provided the Respondent with 15 days to remedy the
default, the Chamber decided that the Claimant had just cause to unilaterally terminate
the employment relationship on 19 June 2020 based on art. 14bis par. 1 of the
Regulations. Consequently, the Respondent is to be held liable for the respective
consequences.
20. Having established that the Respondent is to be held liable for the early termination of
the employment contract, the Chamber focused its attention on the consequence of
such termination. Taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the Claimant is entitled to receive from the Respondent an
amount of money as compensation for breach of contract in addition to any outstanding
payments on the basis of the relevant employment contract.
21. First of all, the members of the Chamber concurred that the Respondent must fulfil its
obligations towards the Claimant as per the employment contract up until the date of
termination of the contract in accordance with the general legal principle of “pacta sunt
servanda”.
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22. On this basis, the Chamber decided that the Respondent is liable to pay to the Claimant
the salaries that were outstanding at the time of the termination, i.e. the amount of
USD 12,000, consisting of the monthly salaries of March, April and May 2020, in the
amount of USD 4,000 each.
23. In addition, taking into account the Claimant’s claim as well as the Chamber’s
longstanding jurisprudence in this respect, it was decided to award the Claimant interest
of 5% p.a. on the aforementioned amount, as follows:
on USD 4,000 as from 1 April 2020 until the date of effective payment;
on USD 4,000 as from 1 May 2020 until the date of effective payment;
on USD 4,000 as from 1 June 2020 until the date of effective payment.
24. 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.
25. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent contract contained 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
the contract did not contain such a provision.
26. 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. 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.
27. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the terms
of the contract until its term, i.e. “the end of the season 2020 of first division”. In this
regard, the Chamber observed that according to the information available in the TMS,
the 2020 season in Jordan ended in October 2020.
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28. Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the amount of USD 20,000, i.e. salaries of June 2020 to October 2020,
serve as basis for the determination of the amount of compensation for breach of
contract.
29. 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 able 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.
30. In this context, the Chamber noted that the Claimant had signed an employment
contract with the Qatari club, Mesaimeer, valid as from 1 September 2020 until 30 June
2021, by means of which the Claimant is entitled to a monthly remuneration in the total
amount of QAR 55,700 (equivalent to USD 15,228), broken down as follows:
Monthly salary of QAR 29,200;
Monthly housing allowance of QAR 20,000;
Monthly car allowance of QAR 6,500.
31. In light of the foregoing, the DRC concluded that the player had remained unemployed
from June until August 2020 and that he had been able to mitigate his damages for the
months of September and October 2020, in the amount of USD 8,000.
32. In view of all of the above, the Chamber decided that the Claimant was entitled to
receive the amount of USD 12,000 as mitigated compensation for breach of contract
without just cause.
33. Having established the above and taking into account art. 17 par.1 (ii), the DRC recalled
that it had found that the player had unilaterally terminated the contract due to overdue
payables and took note that the player had been able to mitigate his damages partially.
Consequently, the Chamber decided that the Claimant should in principle be entitled to
an additional compensation in the amount of USD 12,000 corresponding to the
equivalent of 3 monthly salaries.
34. This being said, the Chamber recalled that pursuant to art. 17 par. 1 (ii), the “overall
compensation may never exceed the rest value of the prematurely terminated contract.”
Considering the residual value of the contract in the amount of USD 20,000 (cf. point
II./28.), the members of the Chamber emphasised that the overall compensation due to
the Claimant may not exceed said amount.
35. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
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the total amount of USD 20,000 to the Claimant, which was considered reasonable and
proportionate as compensation for breach of contract in the case at hand.
36. In addition, taking into account the constant practice of the Dispute Resolution Chamber
in this regard, the Chamber decided that the Respondent must pay to the Claimant
interest of 5% p.a. on the amount of USD 20,000, as of the date of claim, i.e. 26 June
2020, until the date of effective payment.
37. The Dispute Resolution Chamber concluded its deliberations in the present matter
stipulating that any further claim lodged by the Claimant is rejected. In conclusion, the
Claimant’s claim is partially accepted.
38. Furthermore, taking into account the consideration under point II./3. above, 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.
39. In this regard, the DRC 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.
40. Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amount 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.
41. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amount, in accordance with art.
24bis par. 3 of the Regulations.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Sebastijan Antic, is partially accepted.
2. The Respondent, Club Sahab, has to pay to the Claimant, the following amounts:
- USD 12,000 as outstanding remuneration plus 5% interest p.a. as follows:
o on USD 4,000 as from 1 April 2020 until the date of effective payment;
o on USD 4,000 as from 1 May 2020 until the date of effective payment;
o on USD 4,000 as from 1 June 2020 until the date of effective payment;
- USD 20,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 26 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 [email protected], 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.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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