Labour Disputes
Texto da decisão
REF. FPSD-9625
Decision of the
Dispute Resolution Chamber
passed on 8 June 2023
regarding an employment-related dispute concerning
the player Yani Atanasov
BY:
Clifford J. Hendel (USA & France)
Alexandra Gómez Bruinewoud (the Netherlands)
Khalid Awad Al-Thebity (Saudi Arabia)
CLAIMANT:
Yani Atanasov, North Macedonia & Bulgaria
Represented by Ruiz-Huerta & Crespo
RESPONDENT:
MKS Cracovia SSA, Poland
pg. 2
REF. FPSD-9625
I. Facts of the case
1.
On an unspecified date, during the contractual negotiations, the Polish club MKS Cracovia
SSA (hereinafter the Respondent or the club) sent the following offer (hereinafter the Offer)
to the Macedonian/Bulgarian player Yani Atanasov (hereinafter the Claimant or the player):
“On behalf of MKS Cracovia SSA I confirm our offer for the player.
Salary:
2022/23: €14000 months/net invoice till 30/06/2023:
2023/24: salary from season 2022/23 + €2,500 if player plays at least 50% minutes in season
2022/23 (= max. 16500€ from 01/07/2023)
2024/25: salary from season 2023/24 + €2,500 if player plays at least 50% minutes in season
2023/24 (= max. 19000€)
2025/26: salary from season 2024/25 + €2,500 if player plays at least 50% minutes in season
2024/25 (= max. 21500€)”
2.
On 23 January 2023, the Claimant and the Respondent concluded an Employment
Agreement (hereinafter the Employment Agreement) valid as from 23 January 2023 until
30 June 2026.
3.
Pursuant to Clause 5 of the Employment Agreement, the Claimant and the Respondent
(jointly referred to as the parties) agreed, inter alia, upon the following financial conditions:
“in the period from 23 January 2023 until 30 June 2023 (i.e. within Tournament season
2022/2023) the Service Provider shall receive the individual base remuneration in the total
amount of 74 064,00 (say: seventy-four thousand sixty-four) EUR + VAT tax payable in monthly
instalments in the amount of 14.000 (say: fourteen thousand) EUR + VAT tax, for each full
month during which this Agreement stays in force and the Service Provider provide services
to the Customer, including the amount of 4 064,00 EUR (four thousand sixty-four) for the
providing services in January 2023.”
4.
Pursuant Clause 11 of the Employment Agreement, the Parties stipulated:
“Due to provisions of § 1.6 of this Agreement and 3. the fact that the Parties do not constitute
any relationship that would result in the Customer's (i.e. the Respondent’s) obligation to
accrue and / or to pay for the Service Provider (i.e. the Claimant) any tax and social insurance
contributions, the Customer is not obliged to pay for the Service Provider any such
contributions or to settle Service Provider of tax receivables. All the above-mentioned
contributions and receivables the Service Provider is obliged to charge and discharge on their
own.”
5.
In the definitions 8 and 9 of the Employment Agreement, the Parties defines gross and net
amounts as follows:
“Remuneration Net - shall mean the remuneration of the Service Provider containing the
amount of the remuneration including all duties under public law excluding VAT tax.
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REF. FPSD-9625
Remuneration Gross - shall mean the remuneration of the Service Provider containing the
amount of the remuneration with the VAT tax.”
6.
On 21 February 2023, the legal representative of the Claimant sent the following e-mail to
the Respondent:
“We are afraid Jani Atanasov was informed by the Polish accountant assigned to him by the
Club, that his current salary of EUR 14,000 net; is unfortunately not really net, as he shall pay
taxes over it (up to 15%-these not being subject to deduction) despite the agreement
between the Parties was always that said salary would be net and so we were
guaranteed by the Club, i.e. that the Player would receive the entire EUR 14,000 after
taxes and all expenses of whatsoever kind.
Moreover, it has been implied that said accountant related services shall be paid by the Player
as well, whereas again, the Parties had agreed otherwise, in line with the FIFA RSTP.
We are confident that this situation can be clarified, and the difference of 15% together with
any related administrative burdens covered by the club, so the Player can receive his first
salary in full within the shortest deadline.”
7.
In reply thereto, the Respondent argued that the amounts payable to the Claimant are
gross and explained that the applicable personal tax “15% from netto amount from invoice”
is “paid monthly to the tax office” along with further costs (fees of the accountant and health
insurance). The Respondent provided for further specification and calculations.
II. Proceedings before FIFA
8.
On 16 March 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
The requests for relief of the Claimant, were the following:
“1. To accept this claim;
2. To order the Club to pay the Player the following amounts which remain unpaid, as
explained above in paragraphs 27 and 28, page 7 above:
2.1. his full salary for January 2023.
➢ Be it NET EUR 4,064.00/- (four thousand sixty-four Euro) OR the gross amount of 29%
of (EUR 19,803.00/) + 1,558.98 zł = EUR 5,742.87/- + 1,558.98 zł;
2.2. his full salary for February 2023.
➢ Be it NET EUR 14,000.00/- (fourteen thousand Euro) + 1,558.98 zł OR the gross amount
of EUR 19,803.00/ + 1,558.98 zł;
2.3. his full salary for March 2023.
➢ Be it NET EUR 14,000.00/- (fourteen thousand Euro) + 1,558.98 zł OR the gross amount
of EUR 19,803.00/ + 1,558.98 zł.
pg. 4
REF. FPSD-9625
3. To order the Respondent to pay the Claimant an interest rate of 5% per annum over the
outstanding amounts indicated above, as of their due date and until its effective payment.”
10. The Claimant based his claim on the legal principle pacta sunt servanda and argued that the
amounts payable to him are net, as explicitly stipulated in the Employment Agreement.
b. Position of the Respondent
11. In its reply to the claim, the Respondent argued “that the Player’s claim is totally groundless
and unjustified. Therefore, the Claim shall be dismissed in its entirety.”
12. In support of its argumentation, the Respondent argued that the Claimant is employed with
the club as a self-employed person, who is, consequently responsible for the payment of
the taxes, as stipulated in the Employment Agreement.
13. The Respondent consequently argued that the claim represents venire contra factum
proprium of the Claimant as the Employment Agreement “does not contain any wording
indicating that the amount of the remuneration is free of any taxes, levies and compulsory
health insurance contributions and/or that the Club shall pay such taxes, levies and
contributions on behalf the Player” and that this problematic was not raised by the Claimant
within the contractual negotiations.
14. In this respect, the Respondent specified that “All of the abovementioned facts leads to the
conclusion that the Player and its intermediary as well as the Player's attorney were fully aware
of the provisions of the Contract and has accepted the fact that net remuneration is the
remuneration including all taxes, levies and health insurance contributions under Polish law,
excluding VAT. It was also no doubts that the Player will be responsible to charge and pay such
taxes and contributions on his own.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 16 March 2023 and submitted
for decision on 8 June 2023. 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.
pg. 5
REF. FPSD-9625
16. 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 (March 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
Macedonia / Bulgaria and a club from Poland.
17. 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 (March 2023 edition), and
considering that the present claim was lodged on 15 March 2023, 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
18. 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
19. 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.
i. Main legal discussion and considerations
20. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that is a claim of a player for outstanding remuneration based on
the Employment Agreement.
21. The DRC noted that whereas it remained uncontested that the amounts of January –
March 2023 remained outstanding, the crux of this dispute lies in the interpretation of the
contractual provisions as to the amounts that shall be payable to the Claimant.
pg. 6
REF. FPSD-9625
22. In this respect, the Chamber recalled the arguments of the Parties: the Claimant asserted
that he is entitled to the net amounts as per the Clause 5 of the Employment Agreement,
whereas the Respondent argued that those amounts are gross.
23. In this context, the Chamber acknowledged that it its task was to establish if the amounts
stipulated in the Employment Agreement are net or gross.
24. At this point, the DRC closely looked into the Offer sent by the Respondent and concluded
that the said document is clear in stipulating that the amounts payable are net.
25. Whereas the Chamber noted that the contractual provisions are unclear in this respect, it
pointed out that the Respondent failed to provide substantiated evidence proving that the
respective amounts are not net in accordance with art. 13 par. 5 of the Procedural Rules.
26. In view of the above, the Chamber concluded that it shall interpret the provision in light of
the Offer, i.e. the outstanding amounts must be paid net.
ii. Consequences
27. The Chamber observed that the financial obligations deemed as outstanding in the present
case correspond to EUR 32,064 net (EUR 4,064 net plus EUR 14,000 net plus
EUR 14,000 net).
28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the said amount
claimed as outstanding under the contract.
29. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. as follows:
−
EUR 4,064 net plus interest of 5% p.a. as from 1 February 2023 until the date of
the effective payment;
−
EUR 14,000 net plus interest of 5% p.a. as from 1 March 2023 until the date of the
effective payment;
−
EUR 14,000 net plus interest of 5% p.a. as from 1 April 2023 until the date of the
effective payment.
iii. Compliance with monetary decisions
30. 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
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REF. FPSD-9625
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
31. 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.
32. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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.
33. The Respondent 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.
34. 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
35. 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.
36. 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.
37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-9625
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yani Atanasov, is accepted.
2.
The Respondent, MKS Cracovia, must pay to the Claimant the following amount(s):
-
EUR 4,064 net as outstanding remuneration plus interest of 5% p.a. as from
1 February 2023 until the date of the effective payment;
EUR 14,000 net as outstanding remuneration plus interest of 5% p.a. as from
1 March 2023 until the date of the effective payment;
EUR 14,000 net as outstanding remuneration plus interest of 5% p.a. as from
1 April 2023 until the date of the effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-9625
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10