Labour Disputes
Texto da decisão
REF FPSD-8697
Decision of the
Dispute Resolution Chamber
passed on 1 March 2023
regarding an employment-related dispute concerning the player Sebastijan Antic
BY:
Philippe Diallo (France)
CLAIMANT / COUNTER-RESPONDENT:
Sebastijan Antic , Croatia
Represented by Georgi Gradev; Martin Kiss
RESPONDENT / COUNTER-CLAIMANT:
Menaa FC, Iraq
Represented by Mohamed Ammar Mohamed
REF FPSD-8697
I. Facts of the case
1.
On 22 August 2022, the Croatian player, Sebastijan Antic (hereinafter: player or Claimant /CounterRespondent) and the Iraqi club, Meena FC (hereinafter: club or Respondent/Counter-Claimant)
concluded an employment contract (hereinafter: contract) valid as from 1 September 2022 until 30
June 2023.
2.
According to clause 4 of the contract, the club undertook to pay the player the following:
“The value of the contract is (40,000) forty thousand dollars, received (10,000) ten thousand dollars after
passing the medical and physical test, and the remaining (30,000) thirty thousand dollars are distributed
in the form of monthly salaries due on 1/11/2022 for each month (3750) three thousand seven hundred
and fifty dollars”
3.
Clause 10 of the contract stipulates the following:
“The Iraqi Football Association shall be the final authority in the event of any dispute arising between the
two parties. If a solution cannot be reached, the international Football Association (FIFA) will be resorted
to.”
4.
On 15 September 2022, the player confirmed receipt of the amount of USD 10,000 from the club.
5.
On 29 October 2022, the player’s Iraqi visa expired.
6.
On 7 November 2022, the club allegedly informed the player in a meeting that the coach does not
count on his services and offered him USD 10,000 for severance pay.
7.
On 8 November 2022, the club allegedly took the player’s passport to get him a new visa and “was
later informed by his agent that the Iraqi authorities had fined him USD 500 for not having a visa.”
8.
On 21 November 2022, the player was allegedly assigned to train alone.
9.
On 1 December 2022, the player sent a default notice to the club for the outstanding amount of USD
7,500 net corresponding to his salaries of October and November 2022, setting a 15 days’ deadline
for the club to comply, additionally requesting to be immediately reinstated to the first team and for
the return of his passport.
10. On 1 December 2022, the club informed the player’s agent “that it would no longer count on the player
and would not reinstate him in the first team.”
11. On 19 December 2022, the player terminated the contract.
REF FPSD-8697
12. According to the information contained in the Transfer Matching System (TMS), the player signed an
employment contract with the Romanian club, CSM Focsani 2007 valid as from 2 February 2023 until
30 June 2023, for the total fixed remuneration of RON 58,750.
II. Proceedings before FIFA
13. On 31 December 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, the club failed to comply with its contractual financial obligations and
accordingly he had just cause to terminate the contract.
15. Moreover, the player indicated that “the club was not interested in his services and was looking to get
rid of him by not paying him, not arranging a new visa for him, not paying the visa fine of USD 500,
withholding his passport, assigning him to train alone on the false pretext that he was injured, and
offering him a severance pay to terminate the contract (which he rejected).”
16. The requests for relief of the player, were the following:
(a)
order the club to pay the player his outstanding salaries of USD 7,500 net, plus interest of 5% p.a. until
full payment
(b)
order the club to pay the player compensation for breach of contract of USD 22,500 net, plus interest of
5% p.a. from 19 December 2022, until full payment.
(c)
additional compensation of 6 months to be awarded to the player subject to the signing of a new contract.
b. Position of the club
17. In its reply, the club mentioned the following points:
1)
“The issue of excluding the player from the training sessions and participating with the team is subject to
technical considerations
2)
The club has never withheld the player's passport at all, but rather the passport was in the possession of
the competent authorities to issue official residence visas approved by the Iraqi government, and the club
is obligated to respect the directives and regulations of these authorities
3)
As soon as the player requested his passport, it was handed over to him according to an official session
minute and with an official video and in the same lobby of the hotel in which the player was staying with
the team members and in the presence of the training staff, the team captain and a number of
management members (note: copy of video on file – however no visual of passport/handover)
4)
The player informed the club of his desire to travel to his country to share with his family the Christmas
and New Year celebrations, and that he will start negotiations to return to the club or terminate the
contract amicably once he arrives in his country.
REF FPSD-8697
5)
The club booked the necessary travel ticket for the player and delivered him to the airport, accompanied
by the team manager
6)
After the player arrived in his country, he and his legal agent were contacted via WhatsApp by us, the
club's legal agents, to know his decision to return or terminate the contract by mutual consent.”
18. The club further argued that the player failed to comply with his contractual obligations - he failed
to return after his vacation. Moreover according to the club, it had an agreement with the player that
“he would receive another ten thousand dollars before his departure, if he was thinking of not returning
and terminating the contract by mutual consent with the club, if his desire was that, but the player told
us, several times, that he would think about the issue and that he would inform us of his final opinion
once his vacation with his family ends.”
19. In conclusion, the club requested the following:
1.
“considering the player Sebastijan a player of bad contractual intent
2.
Considering the player Sebastian as a fugitive from the implementation of his contract with Al Mina Club,
as an excuse for leaving to spend the Christmas and New Year holidays with his family, and he did not
return despite his many promises to remove all obstacles to the implementation of the contract through
amicable means.
3.
To oblige the player Sebastijan to return the amounts he received from Al Mina Club, the value of travel
tickets, as well as the value of hotel expenses shown in this document, and to pay compensation in the
amount of one hundred thousand US dollars as a result of the malfunction and damage that befell Al
Mina Club as a result of the player’s failure to return and his escape.”
c. Reply of the player to counterclaim of the club
20. The player, inter alia, indicated that the club did not contest that it did not pay the player the two
outstanding salaries as claimed.
21. Consequently, the club’s material breach of Clause 4 of the contract gave the player just cause to
terminate the contract on 19 December 2022.
22. Accordingly, the player requested that the club’s counterclaim be rejected without further
consideration.
d. Unsolicited comments of the club
23. On 9 February 2023, the club submitted correspondence after the closure of the submission phase
– hence said correspondence was not admitted to the file.
REF FPSD-8697
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Single
Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 31 December 2022 and submitted for decision
on 1 March 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.
2. Subsequently, the Single Judge 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 Single Judge is competent to deal with the matter at
stake, which concerns an employment-related dispute with an international dimension between a
player from Croatia and a club from Iraq.
3. The Single Judge recalled that clause 10 of the contract stipulates that the “Iraqi Football Association
shall be the final authority in the event of any dispute arising between the two parties. If a solution cannot
be reached, the international Football Association (FIFA) will be resorted to.” In this context the Single
Judge highlighted that the competence of FIFA was not contested by the club based on the aforesaid
provision, hence the Single Judge is competent, to consider the present matter as to the substance.
4. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (October 2022 edition) and considering that the
present claim was lodged on 31 December 2022, the October 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
5. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry
the respective burden of proof. Likewise, the Single Judge stressed the wording of art. 13 par. 4 of
the Procedural Rules, pursuant to which he may consider evidence not filed by the parties, including
without limitation the evidence generated by or within the Transfer Matching System (TMS).
c.
Merits of the dispute
6. His competence and the applicable regulations having been established; the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Single Judge
REF FPSD-8697
emphasised that in the following considerations he will refer only to the facts, arguments, and
documentary evidence, which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
7.
The foregoing having been established, the Single Judge moved to the substance of the matter and
took note of the fact that the parties strongly dispute the justification of the early termination of
the contract by the player, based on the alleged non-payment of certain financial obligations by
the club as per the contract, in accordance with art. 14bis of the Regulations.
8.
In this context, the Single Judge acknowledged that his task was to determine, based on the evidence
presented by the parties, whether the claimed amounts had in fact remained unpaid by the club
and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had in fact been fulfilled.
9.
The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance
with which, if a club unlawfully fails 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).
10. The Single Judge noted that the player mentioned that the club failed to pay his salaries for the
months of October and November 2022. Furthermore, the Single Judge noted that the player sent a
default notice to the club on 15 September 2022 granting the club 15 days to remedy the default
and that at the date of termination i.e., 19 December 2022, more than two monthly salaries
remained outstanding.
11. Moreover, the Single Judge pointed out that the club, failed to contest the claim of the player,
specifically in relation to the outstanding salaries and failed to provide conclusive documentary
evidence, on the basis of which it could be established that the club complied with its financial
obligations as per the contract or that it paid the amounts claimed as outstanding by the player.
12. Taking the above into account, the Single Judge concluded, that the player had just cause to
unilaterally terminate the contract, based on art. 14bis of the Regulations.
13. At this point, the Single Judge rejected the counterclaim of the club.
ii. Consequences
14. Having stated the above, the members of the Single Judge turned his attention to the question of
the consequences of such unjustified breach of contract committed by the club.
15. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the club is liable to pay to the player the amounts which were outstanding
REF FPSD-8697
under the contract at the moment of the termination, i.e., USD 7,500 (i.e., USD 3,750 times 2),
corresponding to:
-
USD 3,750 as October 2022 salary
USD 3,750 as November 2022 salary
16. In addition, taking into consideration the player’s request, the Single Judge decided to award the
player interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates
until the date of effective payment.
17. Having stated the above, the Single Judge turned to the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, the Single Judge 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.
18. In application of the relevant provision, the Single Judge held that it first of all had to clarify as to
whether the pertinent employment 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 Single Judge established that no such compensation
clause was included in the employment contract at the basis of the matter at stake.
19. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
20. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded with the
calculation of the monies payable to the player under the terms of the contract from the date of its
unilateral termination until its end date. Consequently, the Single Judge concluded that the amount
of USD 22,500 (i.e., the residual value of the contract – January until June 2023) serves as the basis
for the determination of the amount of compensation for breach of contract.
21. In continuation, the Single Judge verified as to whether the player 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 Dispute
Resolution Chamber as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a
new employment contract shall be taken into account in the calculation of the amount of
REF FPSD-8697
compensation for breach of contract in connection with the player’s general obligation to mitigate
his damages.
22. Indeed, the player found employment with the Romanian club, CSM Focsani 2007 valid as from 2
February 2023 until 30 June 2023. In accordance with the pertinent employment contract, the player
was entitled to the total fixed remuneration of RON 58,750 approximately USD 12,877.88.
23. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which
a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Single Judge confirmed that the contract termination took place
due to said reason i.e., overdue payables by the club, and therefore decided that the player shall
receive additional compensation.
24. In this respect, the Single Judge decided to award the amount of additional compensation of USD
11,250, i.e., three times the monthly remuneration of the player (USD 3,750 x 3).
25. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Single Judge decided that the club must pay the amount of USD 20,872.12 to the
player (i.e., USD 22,500 minus USD 12,877.88 plus USD 11,250), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present matter.
26. Lastly, taking into consideration the player’s request, the Single Judge decided to award the player
interest on said compensation at the rate of 5% p.a. as of 19 December 2022 until the date of
effective payment.
iii. Compliance with monetary decisions
27. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1 and
2 of the Regulations, which stipulate that, with his 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.
28. In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players, either
nationally or internationally, up until the due amounts are paid. The overall maximum duration of
the registration ban shall be of up to three entire and consecutive registration periods.
29. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of the
decision, failing which, at the request of the player, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive registration
periods shall become immediately effective on the club in accordance with art. 24 par. 2, 4, and 7 of
the Regulations.
REF FPSD-8697
30. The club shall make full payment (including all applicable interest) to the bank account provided by
the Claimant in the Bank Account Registration Form, which is attached to the present decision.
31. The Single Judge 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. 24 par. 8 of the
Regulations.
d. Costs
32. The Single Judge 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, or match agent”.
Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.
33. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules and decided that no procedural compensation shall be awarded in these
proceedings.
34. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-8697
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant /Counter-Respondent, Sebastijan Antic, is partially accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Menaa FC is rejected.
3.
The Respondent / Counter-Claimant, Menaa FC, has to pay to the Claimant/Counter-Respondent,
the following amount(s):
(a) USD 7,500 as outstanding remuneration plus 5% interest p.a. as from the respective due dates
until the date of effective payment as follows:
-
On the amount of USD 3,750 as from 2 November 2022
On the amount of USD 3,750 as from 2 December 2022
(b) USD 20,872.12 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 19 December 2022 until the date of effective payment.
4.
Any further claims of the Claimant/Counter- Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment (including
all applicable interest) is not made within 45 days of notification of this decision, the following
consequences shall apply:
1. The Respondent/Counter-Claimant shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum duration of the ban
shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the
event that full payment (including all applicable interest) is still not made by the end of the three
entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant/Counter-Respondent
in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-8697
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 Governing the Football
Tribunal).
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