Labour Disputes
Texto da decisão
REF. FPSD-12199
Decision of the
Dispute Resolution Chamber
passed on 7 March 2024
regarding an employment-related dispute concerning
the player Stefan Ashkovski
BY:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Mario FLORES CHEMOR (Mexico), member
Roy VERMEER (The Netherlands), member
CLAIMANT / COUNTER-RESPONDENT:
Stefan Ashkovski, Bulgaria
Represented by Georgi Gradev
RESPONDENT / COUNTER-CLAIMANT:
PAS LAMIA 1964 FC, Greece
INTERVENING PARTY:
FK Radnicki Nis, Serbia
pg. 2
REF. FPSD-12199
I. Facts of the case
1.
On 31 August 2022, the Bulgarian player, Stefan Ashkovski (hereinafter: Claimant/CounterRespondent or player) and the Greek club, PAS LAMIA 1964 FC (hereinafter: club or
Respondent/Counter-Claimant) concluded an employment contract (hereinafter: contract)
valid as from 1 September 2022 until 30 June 2024.
2.
According to the contract, the Respondent/Counter-Claimant undertook to pay the
Claimant/Counter-Respondent the following monies:
- EUR 800 as monthly salary:
- EUR 1,000 as bonus for “each goal and assist at the official games in Super League 1”.
3.
Moreover, according to the contract, the player was entitled to the following payments:
4.
On 10 July 2023, the club informed the player that he would be part of a separate training
group until 16 July 2023. More in particular, the club argued that the player would be part
of a “small training group (…) away from the trainings of the team”. This decision was
reportedly to bring that “small group” to the “appropriate level of fitness and readiness to rejoin the first team”.
5.
On 14 July 2023, the player put the club in default and requested payment of EUR 36,283
corresponding to outstanding salaries and bonuses, within 15 days. In this letter, the player
also requested to be reinstated in the first team.
6.
On 15 July 2023, the club remitted the amount of EUR 800.
7.
On 16 July 2023, the club extended the player’s training with the separate group until 23
July 2023.
8.
On 19 July 2023, the club replied to the default notice and promised to remit the
outstanding amounts until 31 July 2023. Regarding the separate training group, the club
clarified that “training in a group of first-team players under instruction of the fitness coach
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REF. FPSD-12199
and with all the facilities of the club available to them and all the required personnel present”.
Moreover, the club pointed out that the coach will decide upon reinstatement in the first
team.
9.
On 19 July 2023, the player requested clarifications regarding the duration of the exclusion
from the first team and he reiterated his request to be reinstated immediately.
10. On 23 July 2023, the club remitted the amount of EUR 10,000 to the player with the remark,
“payroll payment April 2023”. On the same day, the club informed the player that the next
day, on 24 May 2023, he would have to perform the “ergonomic tests”, that he would two
days off on 25 and 26 July 2023 and that he will then be informed “about the schedule for
the following days depending on the weather conditions”.
11. In reply to the player’s letter of 19 July 2023, on 24 July 2023, the club denied having banned
the player permanently from the first team and pointed out that he would be reintegrated
depending on his ergonomic test results.
12. On 24 July 2023, the player acknowledged receipt of the payments and reiterated his
complaints regarding the separate training group.
13. On 26 July 2023, the club extended the training plan with the separate group until 30 July
2023, day on which the player would “receive the training schedule of the next week”.
14. On 26 July 2023, the player objected to the extension of the training ban and requested to
be reinstated in the first team until 31 July 2023, otherwise he would terminate the contract.
15. On 31 July 2023, the club made two payments to the player (EUR 20,500 and EUR 3,400).
Furthermore, the club sent a letter to the player announcing that he is reinstated in the
first team as of 2 August 2023.
16. On 1 August 2023, the player sent a letter to the club stating that he expects “no sidelining
of any kind anymore”, otherwise he would terminate the contract without further warning.
17. On 2 August 2023, the player attended the first team training and according to him, he was
told by the head coach that he is no longer wanted in the team. The player further argued
that without having the possibility to warm up, he was excluded by the coach. The club
however rejected said allegations and held that he was given different tasks during the
second half of the training session due to his lack of fitness.
18. On 2 August 2023, the player terminated the contract with the club on the basis of art. 14
par. 2 RSTP. The player held that the club breached the contract for over 3 weeks when it
banned the player from the first team and when finally stating he would be reinstated, the
head coach told him that he was no longer needed.
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19. On 25 September 2023, the player signed an employment contract with the Serbian club,
FK Radnicki, valid as from 25 September 2023 until 31 May 2024, including a monthly salary
of EUR 1,500 (total: 8x EUR 1,500= EUR 12,000).
II. Proceedings before FIFA
20. On 13 October 2023, the Claimant/Counter-Respondent 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
21. In his claim, the player requested payment of the following monies:
- EUR 800 as outstanding salary of July 2023, plus 5% interest p.a. as of 1 August
2023;
- EUR 134,700 as compensation for breach of contract (residual value), plus 5%
interest p.a. as of 2 August 2023.
22. In this framework, the player argued that he had just cause to terminate the contract on 2
August 2023 due to the exclusion from the first team.
23. The player maintained that he was very clear in the default notices and clarification
requests that he would “no longer tolerate such unlawful behaviour and bullying”. In this
sense, he held that he had no other option than to terminate the contract as the coach was
clear that he was no longer needed.
24. According to the player, the club acted in an abusive manner since he was banned from
the first team without any reason.
25. The player argued that as a professional player he must have the possibility to train at the
highest level with his fellow team mates and compete in matches, in order to retain his
market value.
26. The player pointed out that the reinstatement on 2 August 2023 did not happen as the
coach did not accept him and he was not allowed to take part.
27. Furthermore, the player held that the club’s allegation that the ban was a provisional
measure and that he would be reinstated was wrong, as the coach confirmed that he is no
longer planning with the player.
28. Moreover, the player brought forward that his salaries were paid with a considerable delay.
29. In addition, he held that the salary of July 2023 remained outstanding.
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REF. FPSD-12199
b. Position of the club / counterclaim
30. In its reply, the club rejected the player’s claim, lodged a counterclaim against him and
requested payment of EUR 40,000 as compensation for breach of contract.
31. In its submission, the club stated that the coach told the player that he would not be in the
starting eleven of the team anymore, after which the player allegedly stated that he would
try to find another club.
32. The club contests the player’s version of the training session dated 2 August 2023.
According to the club, the player showed up and “tried to create some tension and
disturbance in the locker rooms, by putting very loud music”.
33. Subsequently, the player trained with the team during the complete first part of the training
session (warm-up, tactical exercises with ball as well as other exercises).
34. Since the player missed the training for a “considerable period of time”, due to the fact that
the ergometric test showed a “certain lag in physical condition” and since he had a minor
knee injury which he was recovering from, it was deemed appropriate, also by the medical
staff, to train separate during the second part of the training.
35. According to the club, the player had several physiotherapy sessions between 12 July 2023
and 2 August 2023.
36. Such measure had the intention to protect the player since the team had a second training
session on the same day.
37. The club argued that the videos submitted by the player are no reliable evidence as it is
unclear when such sequences were recorded.
38. Furthermore, the club pointed out that it fulfilled the financial obligations by remitting all
outstanding salaries on 31 July 2023 and also committed to reinstate him in the first team
after he was for short period of time training with the fitness coach.
39. According to the club, the player tried to create a scenario in which he could terminate the
contract or be released.
40. On account of the above, the club maintained that the player had no just cause to
terminate the contract on 2 August 2023. The termination was not the ultima ratio.
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c. Reply of the player to the counterclaim
41. In his reply to the counterclaim, the player reiterated his position and rejected the
counterclaim.
42. He pointed out that the club confirmed that the coach “had no interest in him” for the
upcoming season.
43. The player also held that the club confirmed that he was not training with the first team
during July 2023.
44. Moreover, the player rejected the allegation that he wanted to leave the club during
summer 2023. He had a successful season and no intention to leave.
45. According to the player, it was the club who tried to convince him to start looking for a new
club.
46. The player also contested that his physical shape needed training in a separate training
group. He pointed out that the club did not make an ergonomic test at the beginning of
July 2023.
47. The player confirmed that he had to undergo physiotherapy sessions due to a minor knee
injury sustained in the last match of the previous season. However, he denied that this
prevented him from training with the team.
48. The player held that the ban of the first team was “permanent” as the head coach had
evidently no more interest in the player’s services.
49. Further, the player reiterated that the club failed to fully reintegrate him in the team on 2
August 2023.
50. The player also contested that he took part in the first half of the training session with the
team on 2 August 2023.
51. According to the player, the contract termination was an ultima ratio measure, as he had
sent several default notices/warnings before.
d. Position of the new club
52. The new club failed to provide its comments to the matter at hand.
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REF. FPSD-12199
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
53. 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 13 October 2023 and submitted
for decision on 7 March 2024. Taking into account the wording of art. 34 of the March 2023
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.
54. 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 February 2024 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 and a club.
55. Subsequently, 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 (February 2024 edition), and
considering that the present claim was lodged on 13 October 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
56. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it 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
57. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
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REF. FPSD-12199
i. Main legal discussion and considerations
58. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for breach of contract, including a counterclaim of the club against the player.
59. In this context, the Chamber acknowledged that its task was to decide if the player had just
cause to terminate the contract on 2 August 2023 or not, and to decide on the
consequences thereof.
60. In this framework, the DRC noted that according to the player, the coach told him that he
was no longer needed at the beginning of the season 2023/2024 and subsequently, the
player had to train with a separate group of players without access to the first team.
Moreover, the members of the Chamber acknowledged that the player put the club in
default for his outstanding remuneration and requested to be reinstated in the collective
training sessions of the first team. The player further rejected the allegation that he wanted
to leave the club in the summer of 2023. However, he stated that he had no other option
than to terminate the contract after the coach told him that he was no longer needed on 2
August 2023. The player argued having had just cause to terminate the contract based on
art. 14 par. 2 RSTP.
61. The Chamber subsequently analyzed the club’s arguments, which rejected the player’s
claim. It acknowledged having had delays in payment of his remuneration. The club held
that the player wanted to find a new club after the coach told him that he would not be in
the starting eleven for the upcoming season. The club pointed out that all outstanding
remuneration was remitted on 31 July 2023 and that the player was reinstated on 2 August
2023 after his training with a separate group in order to get fit again.
62. Taking into account the documentation on file, the members of the Chamber pointed out
that the claimed outstanding remuneration from the default notice was remitted by the
club in different payments, latest on 31 July 2023.
63. In this scenario, the Chamber recalled its long-standing jurisprudence, according to which
only a breach or misconduct which is of a certain severity justifies the termination of a
contract without prior warning. In other words, only when there are objective criteria which
do not reasonably permit to expect the 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 employee to assure the employer’s
fulfilment of its contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be an
ultima ratio.
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REF. FPSD-12199
64. In this framework, the Chamber analysed the different elements and established that the
club acted if not in bad faith, at least recklessly, when it banned the player from the first
team without revealing the exact reason for it. In fact, when assessing the exchange of
correspondence between the player and club, the Chamber took note that while the player
various times requested specific clarifications around the separate training regime, in
particular the reasons for - and the duration of - said regime, the club repeatedly replied in
generic terms without providing the desired clarifications. Looking at the documentation
on file, the Chamber was not convinced that the separate training regime was indeed
needed for rehabilitation purposes, as claimed by the club. The club failed to meet its
burden of proof in this regard. The DRC wished to emphasise that, in specific
circumstances, it may be legitimate for a club to assign alternative training to a player if
there are sound and valid reasons to do so, for instance a player returning from a longlasting injury. However, in casu, the club simply alluded to general “fitness issues” without
specifying them and how the alternative training was supposed to assist the player with
returning to full fitness. In addition, the Chamber did not understand why the club
continuously gave the player “weekly schedules” when it should have been able to inform
him clearly and unambiguously until when the alternative training was going to last. The
Chamber considered that clubs need to be particularly diligent in this respect in order for
the player to be fully aware of (i) the reasons for which the alternative training is needed;
and (ii) the expected duration.
65. The above taken together with the fact that during July 2023 there was a substantial debt
towards the player resulted, in the Chamber’s view, in a situation by means of which the
player could indeed genuinely doubt the intentions of the club to honour their future
obligations under the contract. As to the training session that took place on 2 August 2023,
while the DRC is unable to conclude with certainty what happened during said training, it
is undisputed between the parties that the player was not fully incorporated in said training
session and that again there had been little to no clear communication from the club in
that regard. Against the background of the preceding weeks, the Chamber concluded that
by that time, the player could indeed rightly have lost confidence in the club’s intentions
with him.
66. Thus, the separation from the first team without a sound reason and defined duration in
combination with the outstanding amounts at the time, from which a considerable part
was paid only after the deadline given in the default notices made the Chamber decide that
the player had a just cause to terminate the contract on 2 August 2023.
67. On account of the above, the members of the Chamber partially accepted the player’s claim
and rejected the club’s counterclaim.
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ii. Consequences
68. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the
Respondent/Counter-Claimant.
69. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to the salary of July
2023.
70. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player the amount which was
outstanding under the contract at the moment of the termination, i.e. EUR 800.
71. In addition, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the player interest at the rate of
5% p.a. on the outstanding amount as from 1 August 2023 until the date of effective
payment.
72. Having stated the above, the Chamber 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
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.
73. In application of the relevant provision, the Chamber held that it first of all had to clarify
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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
74. 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.
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REF. FPSD-12199
75. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber
concluded that the amount of EUR 133,800 serves as the basis for the determination of the
amount of compensation for breach of contract.
76. In continuation, the Chamber 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
DRC 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
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
77. Indeed, the player found employment with the Serbian club, FK Radnicki. In accordance
with the pertinent employment contract, the player was entitled to approximately EUR
1,500 per month. Therefore, the Chamber concluded that the player mitigated his damages
in the total amount of EUR 12,000, that is, 8 times EUR 1,500.
78. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 121,800 to the player (i.e. EUR 133,800 minus EUR 12,000), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
79. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 2 August 2023 until the date of effective payment.
iii. Compliance with monetary decisions
80. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
81. In this regard, the DRC 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.
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82. Therefore, bearing in mind the above, the DRC 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 Respondent in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
83. 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.
84. The DRC 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
85. 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,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
86. 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.
87. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-12199
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Stefan Ashkovski, is partially accepted.
2.
The Respondent / Counter-Claimant, PAS LAMIA 1964 FC, must pay to the Claimant /
Counter-Respondent the following amount(s):
- EUR 800 as outstanding remuneration plus 5% interest p.a. as from 1 August 2023 until
the date of effective payment;
- EUR 121,800 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 2 August 2023 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The claim of the Respondent / Counter-Claimant is 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 / CounterRespondent 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
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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).
CONTACT INFORMATION
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