Dispute Resolution Chamber
Texto da decisão
REF FPSD-278 / 20-01536
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Emir Azemovic
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
Emir Azemovic, MNE - Montenegro
Represented by Mirko Poledica
RESPONDENT:
RKS Rakow Czestochowa, POL - Poland
Represented by Maciej Bałaziński
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I.
FACTS OF THE CASE
1.
On 20 June 2019, the Montenegrin player, Emir Azemovic (hereinafter: Claimant), and the
Polish club, RKS Rakow Czestochowa (hereinafter: Respondent) signed an employment
contract valid as from 1 July 2019 until 30 June 2022.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant, inter alia, the following monthly remuneration (to be paid by the 10th day of the
successive month):
•
EUR 7,000 net for the season 2019/2020
•
EUR 7,500 net for the season 2020/2021 in case the Player would have played for
at least 1,800 minutes in the Ekstralasa (i.e. the Polish first division), otherwise EUR
7,000 only.
•
EUR 8,000 net for the season 2021/2022 in case the Player would have played for
at least 1,800 minutes in the Ekstralasa, otherwise EUR 7,500 only.
3.
Furthermore, clause 7 of the employment contract stipulated that: “Any disputes
concerning the validity, existence or termination of the Contract shall be settled by the
competent authorities of the Polish Football Association, acting in accordance with separate
regulations. Property disputes arising from this Contract shall be the competence of the
Football Arbitration Court”.
4.
Moreover, clause 8 of the employment contract refers to “..the rules governing the relations
between the sports clubs and a professional player, adopted by Resolution of the Polish
Football Association’s Board (III/ 54 27/03/2015) which is enclosed to this contract.”
5.
In this respect, pursuant to article 8 paragraph 4 of the above mentioned document
denominated “Minimum requirements for standard players’ contracts”, “The club has the
right to unilaterally terminate the Contract for reasons attributable to the Player through a
statement submitted to the Player in writing under pain of nullity if: ... (letter b)..the Player
has not been present at training sessions at least three times in a period of consecutive six
months (regardless of whether in a calendar year or in a Competition Season) without
presenting a written excuse to the Club within 7 days of the absence..”
6.
On 20 January 2020, the Respondent informed the Claimant that the latter would have
played for the second team of the Respondent.
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7.
By communication through the social media WhatsApp, on 21 February 2020, the
Respondent informed the Claimant of its decision to terminate the employment contract
immediately and offered him a compensation corresponding to two salaries, namely the
months of February and March 2020, but the Claimant declined the offer.
8.
On 12 March 2020, the Polish authorities suspended the sporting-related activities due to
Covid-19.
9.
On 13 March 2020, the Respondent offered once again the Claimant to terminate the
employment contract, however to no avail.
10.
Contextually, in the same period, the Claimant left Poland in order to drive his family to
Austria.
11.
On 1 April 2020, the Club informed the Player to have adopted, as of 14 March 2020, a
salary cut in the measure of 50% “pursuant to the provisions of generally applicable law in
the territory of the Republic of Poland..”
12.
Furthermore, within the same correspondence, the Respondent communicated that the
protracted condition of emergency in Poland led to an objective impossibility of complying
with the contractual obligations stipulated by the parties, hence why the Respondent could
not be held liable anymore for the Claimant’s remuneration.
13.
By letter dated 6 April 2020, the Respondent informed the Claimant of the following:
“Due to deteriorating economic situation caused by COVID-19 epidemic, on behalf of
Rakow Czestochowa Football Club, I would like to inform you, that the Club is not able to
bear the costs arising of your reduced remuneration.
For this reason, the Club is currently planning to pursue legal action to have the Professional
Football Contract signed on 20.06.2019 in Czestochowa between the Parties, legally
dissolved.”
14.
On 15 April 2020, the Claimant returned to Poland and due to the national healthcare
provisions in force, he had to subject himself to quarantine for a period of 14 days (i.e. until
29 April).
15.
By letter dated 18 April 2020, the Respondent informed the Claimant that he would have
been reinstated in the first team and that the training sessions will resume on 20 April 2020.
16.
On 19 April 2020, the Claimant replied to the Respondent, arguing that it will be impossible
for the former to take part in any training session until 29 April due to the mandatory
quarantine he was subject to and that the latter was well aware of that.
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17.
Furthermore, the Claimant contested the Respondent’s decision to cut 50% of his salary as
said solution was taken without the Claimant’s consensus, hence the former requested the
payment of the salary due for March 2020, which had become due as of 10 April 2020.
18.
On 20 April 2020, the Respondent informed the Claimant that the salary cut had been
operated as a consequence of the financial difficulties arisen with Covid-19 disruption and
that the Claimant intentionally put himself in the condition of not being able to resume on
time the training sessions with the team, as he had left Poland without the consent of the
Respondent.
19.
By means of the same correspondence, the Respondent summoned the Claimant for a
disciplinary hearing to be held on 23 April 2020 and having as object the outstanding salary
of March and the breach of contractual obligations by the Claimant.
20.
On 21 April, the Claimant once again replied to the Respondent, highlighting the
contradictory attitude held by the latter towards the former, since he was first excluded
from the first team to be then informed of the latter’s intention to proceed with the
termination of the employment contract and successively reinstated in the first team.
21.
In this regard, the Claimant accepted to participate to the meeting to be held on 23 April
2020 and contextually proposed to consider the Claimant’s days of absence from the first
team training sessions as paid leave, under the terms and conditions of the employment
contract.
22.
As the aforementioned disciplinary hearing was scheduled for 27 April 2020, the Claimant
requested, on 25 April 2020, to be provided with a copy of the Club Disciplinary Rules and,
contextually, offered the Respondent that he would have accepted a 20% salary cut in
relation to the months of April, May and June 2020, plus a 10% cut to be applicable as of
July 2020 until September 2020.
23.
On 30 April 2020, the Respondent issued a disciplinary sanction of 15,000 PLN (Polish złoty)
against the Claimant and subsequently, by separate letter issued 4 minutes later, notified
the latter to have unilaterally terminated the employment contract by decision dated 29
April 2020.
II.
PROCEEDINGS BEFORE FIFA
24.
On 21 October 2020, the Claimant filed a claim for breach of contract against the
Respondent before FIFA. A brief summary of the position of the parties is detailed in
continuation.
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a.
The claim of the Claimant
25.
According to the Claimant, the Respondent would have acted clearly in bad faith, as it first
attempted to induce the Player to terminate the employment contract by cutting the salary
in a significant amount without his consent and then found a specious ground for
unilaterally terminating the employment contract, adducing the absence of the Claimant
from the training sessions as a mere excuse.
26.
Moreover, the Claimant is of the opinion that the decisions issued by the Club’s Disciplinary
Committee shall not have any legal effect as the Player did not participate to the hearing
held on 27 April 2020 nor he was granted the right to be heard.
27.
In this regard, the Claimant disputed the nature of the meeting held on WhatsApp to which
he virtually participated on 27 April 2020, arguing that said meeting could not constitute a
proper disciplinary proceeding as neither the Club’s President nor the Club’s attorney were
supposed to participate as they are not officially members of the Disciplinary Committee.
28.
In light of the above, the requests for relief of the Claimant were the following:
EUR 4,000 as partial outstanding salary of March 2020 plus 5% interest p.a. as of
10 April 2020
EUR 7,000 as outstanding salary of April 2020 plus 5% interest p.a. as of 10 May
2020
EUR 14,000 as compensation for the remaining part of 2019/2020 season (May and
June 2020) plus 5% p.a. interest as of 30 April 2020
EUR 84,000 as compensation for the season 2020/2021 (period 1 July 2020 – 30
June 2021) plus 5% p.a. interest as of 30 April 2020
EUR 90,000 as compensation for the season 2021/2022 (period 1 July 2021 – 30
June 2022) plus 5% p.a. interest as of 30 April 2020
29. Furthermore, the Claimant acknowledged to have signed an employment contract with the
Slovenian club Aluminij FC, to be valid as of 4 August 2020 until 31 October 2022, and
disclosed to have agreed on a monthly fixed salary of EUR 1,500.
30. As a consequence, the Claimant proposed that the claimed compensation for breach of
contract by the Respondent shall be mitigated accordingly and reduced to a total of EUR
153,500 plus the alleged interests.
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b.
Position of the Respondent
31. In its reply to the claim, the Respondent argued that FIFA has no competence to assess the
matter at hand..
32. In this context, the Respondent stated that clause 7 of the employment contract shall be
applicable as it represents an explicit arbitration clause which defers the present matter to
the competence either of the Chamber for Resolution of the Sports-related Disputes or to
the Football Court of Arbitration of the Polish Football Association (“PZPN FCA”), depending
on the nature of the dispute itself.
33. In support of the above, the Respondent explained that at the time of signing the
employment contract, there were two different judicial bodies acting in accordance with the
regulations of the Polish FA:
•
the Chamber for Resolution of the Sports-related Disputes, competent to
solve disputes concerning the validity, existence or termination of professional
football contracts;
•
the PZPN FCA, competent over property and non-property disputes arisen in
relation to practising, popularization and development of football, including
pecuniary disputes such as the present one.
34.
In this regard, the Respondent observed that as of 17 April 2020, the Chamber for
Resolution of the Sports-related Disputes has been dissolved, rendering the PZPN FCA
competent for any dispute.
35.
Therefore, according to the Respondent, the fact that the Parties agreed on the above
mentioned arbitration clause 7 at the moment of signing the employment contract, clearly
confirmed the intention of both to submit any potential dispute arising in connection with
the contract exclusively to the judicial bodies of the Polish FA.
36.
In conclusion, the Respondent is of the opinion that the PZPN FCA perfectly meets all the
procedural standards required by FIFA Regulations and FIFA Circular n.1010, being it
independent from the Polish FA as well as equally representative of each stakeholder, and
provided FIFA Administration with a deep illustration of the PZPN FCA Regulations as
translated into English.
37.
In a subsidiary way, for what concerns the substance of the case, the Respondent rejected
the claim and declared that while each of its affiliated players negotiated a salary reduction
in view of the pandemic, the Claimant was the only one who did not make any concession
on the reduction of the salary, leaving the territory of Poland in March without the
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permission nor the knowledge of the Respondent, and intentionally putting himself in a
condition of risk and potential inability to return to Poland.
38.
For said reasons, the Respondent maintained to have been obliged to apply a salary
reduction of 50% during the entire period of actual or legal inability to provide professional
football services (i.e. as of 14 March 2020).
39.
In support of the above, the Respondent invoked the relevant principle extracted from the
Polish Civil Code, according to which “if the services of one party have become impossible,
such party loses the right to the corresponding part of the reciprocal service”, therefore he
cannot demand its performance to the other party.”
40.
As to what pertains the disciplinary sanction of PLN 15,000 imposed on the Claimant, the
Respondent recalled the provisions contained in the Disciplinary Regulations of the Polish
Football Association (DR PZPN) as well as those set by the Disciplinary Regulations of the
Club, according to which a fine may be imposed for “unsportsmanlike lifestyle or violation
of public order” (art. 74 DR DZPN) as well as “In case of the failure to perform or improper
performance of the obligations set out in the Statutes of the Polish Football Association,
resolutions, decisions or guidelines of the bodies of the Polish Football Association,
professional league or other entities within the structures of the Polish Football Association,
violation of moral and ethical standards applicable in football, and the failure to execute or
improper execution of decisions issued by public administration bodies in relation to
football..”
41.
Therefore, according to the Respondent, “..the Claimant’s failure to be at disposition of the
Club on 20 April 2020 in compliance with the obligations set out by the Ekstraklasa, PZPN
and Ministry of Sport, violates decisions and guidelines issued thereby as well as breaches
moral and ethical standards applicable to players practising football professionally and
representing football clubs in professional competitions” and these would represent the
grounds for which the Player has been sanctioned with decision notified to the Player on
date 30 April 2020 .
42.
Furthermore, the Respondent rejected the allegations of the Claimant according to which,
the latter would have never participated to the disciplinary hearing as the meeting held via
WhatsApp on 27 April 2020 could not be considered having such nature.
43.
In this context the Respondent recalled art. 121 of the DR PZPN, according to which the
management board of a club constitutes a “disciplinary authority competent to rule on
disciplinary matters in the first instance...”, hence - being the Club’s President also the sole
member of the Club Management Board - he was then entitled to act accordingly and issue
disciplinary decisions.
44.
Moreover, the Respondent noted that the Claimant was previously informed about the
Management Board acting as the Disciplinary body of first instance, by letter dated 24 April
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2020 and that during the meeting held on 27 April 2020, the latter never raised questions
concerning the nature of said hearing nor the composition of the disciplinary body.
45.
Lastly, the Respondent observed that as the Claimant did not appeal the aforementioned
decision, it became final and binding.
46.
In regard to the unilateral termination of the employment contract, the Respondent stated
that as per art. 8 par. 4 of the Resolution of the Polish Football Association’s Board (III/ 54
27/03/2015), enclosed to the employment contract and denominated Minimum
requirements for standard players’ contracts, “The club has the right to unilaterally
terminate the Contract for reasons attributable to the Player through a statement submitted
to the Player in writing under pain of nullity if: ... (letter b)..the Player has not been present
at training sessions at least three times in a period of consecutive six months (regardless of
whether in a calendar year or in a Competition Season) without presenting a written excuse
to the Club within 7 days of the absence..”
47.
According to the Respondent, the non-justified absence of the Player protracted for one
month as well as his attitude towards the Club had contributed to render his performance
impossible and to make the Club lose its trust in a successful continuation of the labour
relationship, hence the Club’s decision to terminate the employment contract in addition
to the previous disciplinary sanction.
48.
In support of the above, the Respondent submitted evidence of the large correspondence
exchange occurred between the Parties on this matter, while contextually highlighting that
the Claimant failed to provide any proof of having informed the Club about his departure
from Poland in March 2020.
49.
Furthermore, and against the Claimant’s allegations, the Respondent produced evidence of
an ongoing negotiation held between the Parties on WhatsApp regarding the termination
of the employment contract and from which - according to the Respondent - it would
appear clear that the Player was openly considering the idea of terminating the contract as
he was not satisfied with his relegation to the second team of the Club.
50.
Finally, the Respondent questioned also the authenticity of the declared value of the new
employment contract signed by the Player, assuming that it would appear excessively low
in consideration of the fact that the new club of the Claimant (namely Alumnij FC) plays in
the Slovenian First professional division.
51.
The requests for relief of the Respondent, were the following:
•
To find that the claim of the Claimant is inadmissible due to lack of
jurisdiction of FIFA DRC; or
•
To find that the termination of the contract by the Respondent has been
made with just cause;
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•
To find that the Claimant is not entitled to receive remuneration for the part
of March and whole April 2020; and
•
To find that the Claimant is not entitled to receive compensation for
termination of the contract without just cause.
•
If FIFA DRC found that the Claimant is nevertheless entitled to receive
compensation from the respondent:
1. An official list of salaries to which all current players of NK Aluminij
are entitled in 2020/2021 and 2021/2022 football season
(anonymized, if necessary),
2. A proof of payments executed by Nk Aluminij to the Claimant since
August 2020 to date, and to include Respondents remarks to the
amount of the compensation which might be due.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
52.
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 21 October 2020 and submitted
for decision on 6 May 2021. Taking into account the wording of art. 21 of the January 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the edition of June 2020
of the Procedural Rules is applicable to the matter at hand.
53.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
an Montenegrin player and a Polish club.
54.
However, the Chamber acknowledged that the Respondent, in view of clause 8 of the
employment contract, contested the competence of FIFA’s deciding bodies as, according to
the Respondent, the present matter shall be adjudicated by the Football Court of Arbitration
of the Polish Football Association (“PZPN FCA”).
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55.
The Chamber further noted that, conversely, the Claimant rejected the position of the
Respondent as to FIFA’s lack of jurisdiction and argued that the PZPN FCA does not comply
with the minimum procedural standards for the independent arbitration tribunal as laid
down by art. 22 b) of FIFA RSTP, therefore, fair proceedings for foreign players could not
be granted.
56.
With the aforementioned considerations in mind, and prior to entering into the analysis of
its competence, the Chamber wished to recall that in accordance with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, without prejudice to the right of any
player or club to seek redress before a civil court for employment-related disputes, it is
competent to deal with a matter such as the one at hand, unless an independent arbitration
tribunal, guaranteeing fair proceedings and respecting the principle of equal representation
of players and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement.
57.
In relation to the above, the Chamber also deemed it vital to outline that one of the basic
conditions that needs to be met in order to establish that another organ than the DRC can
settle an employment-related dispute between a club and a player of an international
dimension, is that the competence of the relevant arbitration tribunal derives from a clear
reference in, inter alia, the employment contract at the basis of the dispute.
58.
Therefore, while analysing whether it was competent to adjudicate the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse whether
the employment contract at the basis of the present dispute actually contained a clear and
exclusive jurisdiction clause in favour of the PZPN FCA.
59.
In this respect, the Chamber was of the unanimous opinion that the aforementioned clause
does not appear sufficiently clear, as it solely refers to the competent bodies of the Polish
Football Association, withoutspecifying which one of them would be effectively competent
in case of dispute.
60.
In view of the above, the Chamber established its competence over the present matter.
61.
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 Player (edition February 2021), and
considering that the present claim was lodged on 21 October 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
62.
Burden of proof
The Chamber recalled 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. Likewise, the DRC stressed the
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wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
63.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
64.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
65.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant strongly disputes the unilateral termination of
the employment contract by hand of the Respondent.
66.
In this context, the Chamber acknowledged that its task was to establish whether the
Respondent had in fact just cause to unilaterally terminate the employment contract
stipulated with the Claimant.
67.
In this context, the Chamber observed that the decision taken by the Club to unilaterally
terminate the employment contract shall be deemed as reasonable and with just cause only
if it constituted the sole valid option at disposal of the concerned party at the moment of
said decision, as it certainly represents the “ultima ratio” in such contexts.
68.
With the above in mind the Chamber took note that the Claimant left the territory of Poland
after the suspension of the football-related activity in March 2020 and that, by coming back
on 15 April 2020, the latter was not able to resume his duties with the Respondent until 29
April 2020 due to the compulsory 14-days self-isolation regime prescribed in accordance
with the decision issued by the Polish Minister of Health on date 15 March 2020.
69.
In this regard, the Chamber noted also that the Respondent resumed its training activities
only on 20 April 2020, from which it results that the Claimant did not take part in 10
training sessions.
70.
In this perspective, the Chamber assumed that the Claimant did not request any permission
from the Club prior to his departure from Poland as he failed to provide evidence of having
properly informed the Respondent about his intention to travel to Austria in March 2020.
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71.
However, the Chamber noted also that the Respondent did not object to the Claimant’s
absence at the time, but instead it reinstated the latter in the first team and only later
contested the fact that the same was not present at the resumption of the football-activity
on 20 April 2020.
72.
In this regard, the Chamber is of the opinion that the club’s decision to terminate the
employment contract appears not proportionate to the actual gravity of the situation.
73.
In particular, the Chamber observed that apparently it was the first time that the Claimant
had been absent without a justified reason.
74.
Moreover, the Chamber recalled that the Claimant was sanctioned with a fine of 15,000
PLN by the Disciplinary Committee of the Club.
75.
With the all the above in mind, and considering the evident Claimant’s will to keep playing
for the Respondent, the Chamber is of the opinion that the unilateral termination of the
employment contract by the Respondent did not represent, at the time, the sole valid option
and the ultima ratio at disposal of the latter to solve the dispute with the Claimant.
76.
Therefore, the Chamber established that the Respondent terminated the employment
contract without just cause.
ii. Consequences
77.
Having stated the above, and before entering the analysis of the consequences of the
unjust termination of contract on the part of the Respondent, the Single Judge
deemed it appropriate to first assess whether any outstanding remuneration was still due
by the Respondent to the Claimant.
78.
In this respect, the Chamber noted that the Respondent acknowledged to have purposely
reduced the Claimant’ salary for the month of March 2020 and to have notified such
decision to the latter only by means of letter dated 1 April 2020.
79. 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.
80. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA
FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country
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or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a
player’s salary.
81.
In this regard, the DRC recalled that, in line with the well-established jurisprudence, the
retroactive application of a salary reduction is not allowed, therefore the Respondent was
not entitled to operate said cut and the Claimant shall be entitled to the residual value of
the salary due for March 2020, i.e. EUR 4,000.
82.
Subsequently, the Chamber turned its attention to the question concerning the suspension
by the Respondent of the salary due to the Claimant for April 2020.
83.
In this context, the Chamber noted that the Respondent once again applied a unilateral
amendment to its contractual obligations towards the Claimant by simply referring to a
generic principle contained in the Polish Civil Code but it nevertheless failed in providing
clear evidence that in the specific case said unilateral suspension would have been allowed
by the Polish law.
84.
Furthermore, the Chamber observed that the Respondent did not even attempt to negotiate
the above amendments with the Claimant nor it sought for the latter’s consent.
85.
In view of the above, the Chamber is of the opinion that the salary suspension for the month
of April was not justified and that consequently the Claimant shall be entitled to receive the
correspondent amount of EUR 7,000.
86.
Having stated the above, the members of the Chamber turned their attention to the
consequences of the unjustified breach of contract committed by the Respondent during
the protected period.
87.
In this respect, the Chamber underlined the absence of any compensation clause included
in the contract. Consequently, the DRC held that no compensation clause being
applicable to the case at hand, the compensation can be assessed on the basis of the
residual value of the contract in line with the jurisprudence of the Dispute Resolution
Chamber.
88.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the employment contract as from the date of
termination without just cause by the Respondent until its natural expiration. Bearing this
in mind, the Chamber deemed that the Claimant would have received in total EUR 188,000
as remuneration for the period as from May 2020 until June 2022.
89.
Consequently, the DRC concluded that the amount of EUR 188,000 serves as the basis for
the final determination of the amount of compensation for breach of contract in the case
at hand.
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90.
Equally, the Chamber verified as to whether the Claimant had signed a new
employment contract after having been dismissed by the Respondent on 30 April 2020 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, such remuneration under a new
employment contract would be taken into account in the calculation of the amount
of compensation for breach of contract in connection with the Claimant’s general
obligation to mitigate his damages.
91.
In this respect, the Chamber recalled that, after the termination of the contract, the
Claimant signed an employment contract with the Slovenian club Aluminij FC, to be valid
as of 4 August 2020 until 31 October 2022, and for a monthly fixed salary of EUR 1,500.
92.
With the above in mind, the Chamber assessed that for the residual period of validity of the
terminated contract, namely until 30 June 2022, the Claimant would perceive the total
amount of EUR 34,500.
93.
Therefore, the DRC established that the total compensation to which the Claimant is
entitled shall be mitigated to the final amount of EUR 153,500.
94.
In line with the DRC jurisprudence, the Chamber decided also to apply a 5% interest p.a.
on the awarded amounts as of the relevant due dates.
iii. Compliance with monetary decisions
95.
Finally, 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.
96.
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 and for the maximum
duration of three entire and consecutive registration periods.
97.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
98.
The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
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99.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
100. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
101. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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REF FPSD-278 / 20-01536
IV. DECISION OF THE Dispute Resolution Chamber
1.
The claim of the Claimant, Emir Azemovic, is accepted.
2.
The Respondent, RKS Rakow Czestochowa, has to pay to the Claimant, the following amount:
EUR 4,000 as outstanding remuneration plus 5% interest p.a. as from 11 April 2020 until the
date of effective payment.
EUR 7,000 as outstanding remuneration plus 5% interest p.a. as from 11 May 2020 until the
date of effective payment.
EUR 153,500 as compensation plus 5% interest p.a. as from 21 October 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.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-278 / 20-01536
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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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