Labour Disputes
Texto da decisão
REF FPSD-1919
Decision of the
DRC Judge
passed on 18 August 2021
regarding an employment-related dispute concerning the player Stjepan Babić
BY:
CLAIMANT:
Stjepan Babić, Croatia
Represented by Branimir Pocrnic
RESPONDENT:
Ethnikos Achnas FC, Cyprus
Represented by George Christofides
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I.
FACTS OF THE CASE
1.
On 20 January 2020, the Croatian player, Stjepan Babić (hereinafter: Claimant), and the
Cypriot club, Ethnikos Achnas FC (hereinafter: Respondent) signed an employment contract
(hereinafter: contract) valid as from the date of signature until 31 May 2020.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of EUR 889.
3.
On 20 January 2020, the parties concluded a supplementary agreement (hereinafter:
supplementary agreement), which refers to the contract.
4.
According to the supplementary agreement, the Respondent undertook to pay the
Claimant a monthly salary of EUR 2,800 in addition to the contract, payable on the first day
of the following month.
5.
Furthermore, art. 7 of the supplementary agreement reads as follows: “If the team remains
in the A’ division at the end of season 2019-2020, the Player’s contract will be renewed for
another year. For season 2020-2021 the player will receive a monthly salary of € 4000 for
10 months, from August 2020 until May 2021. […].”
6.
On 3 May 2020, the parties concluded a “private agreement” (hereinafter: additional
agreement), in which the player agreed to waive certain payments related to the season
2019/2020 due to the impact of COVID-19.
7.
After a match on 1 February 2020, the player faced medical problems and subsequently
underwent medical treatment in Croatia, before returning to Cyprus on 17 February 2020.
8.
On 13 March 2020, the Croatian Football Federation suspended the football season due to
COVID-19.
9.
On 23 May 2020, the player left Cyprus and went to Croatia.
10.
Towards the end of July 2020, the player started medical treatment in Croatia.
11.
The club authorized the player to stay in Croatia until 12 August 2020.
12.
Subsequently, the player underwent treatment in a hospital until 11 August 2020, where
he was diagnosed with multiple sclerosis.
13.
On 14 August 2020, the player informed the club about his diagnosis.
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14.
On 20 August 2020, the club sent the player plane tickets to return to Croatia on 25 August
2020.
15.
On 21 August 2020, the player replied and explained that he is facing a serious treatment,
which he already started and that he is not able to return on 25 August 2020.
16.
On 9 September 2020, the club requested the player to return to Cyprus to undergo medical
examinations.
17.
On 11 September 2020, the player replied that he is not able to travel at the moment. He
enclosed a medical certificate confirming said allegation.
18.
On 17 September 2020, the club replied and argued that according to its doctors the player
is able to fly and should return to Cyprus.
19.
On 24 September 2020, the player sent more information about his medical condition to
the club and requested payment of his salary of August 2020. The player also revealed
contact information of his doctors for the club to clarify possible questions.
20.
On 4 October 2020, the club sent a letter to the player reiterating its stance about the
player’s return to Cyprus without commenting on the player’s request regarding the salary
of August 2020.
21.
On 8 October 2020, the player reiterated his request for payment of his salary of August
and now September 2020 and stated that he will travel to Cyprus as soon as he is fit to fly.
22.
On 29 October 2020, the player informed the club that he was tested positive for COVID19 in Croatia.
23.
On 23 November 2020, the club sent a letter stating the player “omit to disclose
information” regarding his medical condition and that he is violating his contract.
24.
On 30 November 2020, the player replied and denied having omitted any information as
he was constantly updating the club with all the information available.
25.
On 9 December 2020, the club stated that the player was absent as from 4 February 2020
and requested the player to submit a “proposal”, “to avoid further proceeding and litigation
in this matter”.
26.
On 17 December 2020, the player replied insisting that he is conducting therapy in Croatia
and that he is entitled to receive his salary, as there is a contract in force until 31 May 2021.
27.
On 29 December 2020, the club replied and pointed out that he did not perform any
contractual duties lately. It requested the player to return to Cyprus until 8 January 2021.
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28.
On 5 January 2021, the player insisted that he is not able to travel during his treatment, as
already stated by his doctors.
29.
On 14 January 2021, the club terminated the contractual relationship with the player due
to his absence and since it was not updated about his medical progress since November
2020.
30.
On 5 February 2021, the player sent a letter to the club stating that the contract was
terminated without just cause and requesting payment of his outstanding remuneration
(EUR 40,000) as well as compensation for breach of contract (EUR 40,000).
31.
According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed until 31 May 2021.
II.
PROCEEDINGS BEFORE FIFA
32.
On 3 March 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
33.
The Claimant lodged a claim against the Respondent, requesting payment of the following
monies:
- EUR 20,000 as outstanding remuneration corresponding to the salaries of August until
December 2020 (5x EUR 4,000);
- EUR 20,000 as compensation corresponding to the residual value.
The player requested interest of 5% p.a. as of the respective due dates, respectively as
from the termination for the compensation.
34.
In his claim, the player stated that the club had no just cause to terminate the contract, as
he had “every right to be absent” as he was not allowed to travel back for medical reasons.
35.
Furthermore, the Claimant held that he always kept the club up to date and revealed all the
information available.
36.
The player held having acted in good faith all the time. In this regard, he referred to his
agreement to waive certain salary due to COVID 19.
b.
37.
Position of the Respondent
In its reply, the club rejected the claim and contested FIFA’s competence to deal with the
matter at hand since the player allegedly had no valid contract with the club anymore for
the season 2020/2021.
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38.
Further, the club argued according to the regulations in Cyprus, the employment contracts
must be registered with the Federation. Since the player did not return to Cyprus to sign
the official contract, the club did not register the player for the season 2020/2021 and
therefore, there was no valid employment relationship anymore.
39.
Furthermore, the Respondent argued, that the extension of the contract was influenced by
force majeure due to COVID-19 and shall therefore not be taken into account.
40.
According to the club, no standard employment contract could be signed since he did not
return to Cyprus and therefore no insurance was concluded.
41.
Further, the club held that it requested the player several times to return, as it had no chance
“to object” to the medical diagnosis of the player.
42.
The club argued not having had full disclosure and therefore the claim shall be rejected
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
43.
First of all, the DRC Judge (hereinafter also referred to as the Judge) analysed whether he
was competent to deal with the case at hand. In this respect, it took note that the present
matter was presented to FIFA on 3 March 2021 and submitted for decision on 18 August
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 aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
44.
Subsequently, the DRC Judge 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 DRC Judge
is, in principle, competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player and a club.
45.
However the Judge acknowledged that the Respondent contested the competence of FIFA’s
deciding bodies as, allegedly no contract existed anymore between the parties and the
matter therefore could not be qualified as employment related dispute.
46.
On account of the above, the DRC Judge wished to point out that the question if a valid
employment contract existed for the relevant season will be examined by the DRC Judge in
the substance of the matter. The fact that the player lodged a claim based on an
employment contract qualifies the dispute as employment related dispute.
47.
In light of the above, the DRC Judge acknowledged its competence in the matter at hand.
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48.
Subsequently, the DRC Judge 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 3 March 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
49.
The DRC Judge 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 Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
50.
In this respect, the DRC Judge 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.
51.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC Judge emphasised that in the following
considerations he 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
52.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute if the Respondent had
just cause to terminate the contract on 14 January 2021 or not.
53.
In this context, the DRC Judge acknowledged that it his task was to determine whether
such termination of contract was issued with or without just cause and to decide on the
consequences thereof.
54.
First of all, the DRC Judge acknowledged that the parties concluded a contract valid as of
20 January 2020 until 31 May 2020. Subsequently, the parties signed a supplementary
agreement which inter alia established an extension option until 31 May 2021, in case the
Respondent was not relegated.
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55.
In this respect, the DRC Judge wished to point out that it remained undisputed that the
Respondent was not relegated during the season 2019/2020 and that the option therefore
was triggered.
56.
The DRC Judge started to analyse the Respondent’s argument that no valid employment
contract was concluded for the season 2020/2021 since the contract could not be registered
with its Federation.
57.
In this respect, the DRC Judge considered relevant to recall the DRC jurisprudence in
accordance with which the validity of an employment contract cannot be made conditional
upon the execution of (administrative) formalities, such as, but not limited to, the
registration of the relevant contract with its Federation, which is the sole responsibility of a
club and on which a player has no influence.
58.
On account of the above, in view of the clear jurisprudence, the DRC Judge rejected the
Respondent’s argument. Furthermore, the DRC Judge pointed out that the club did the club
not act as no contract had been established for said season during the extensive exchange
of correspondence, and especially when terminating the contract on 14 January 2021.
59.
The DRC Judge noted the Respondent’s argument that the extension was “influenced by
force majeure due to COVID-19” and shall therefore not be taken into account.
60.
Having said that, the DRC Judge 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.
61.
For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as
the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any
specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
62.
In this context, the DRC considered that the arguments raised by the Respondent cannot
be considered a valid reason to not take into account the extension.
63.
Therefore, the DRC Judge established that a valid contract was concluded between the
parties until 31 May 2021.
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64.
Subsequently, the DRC Judge turned his attention to the Respondent’s termination of the
contract on 14 January 2021 due to the player’s absence and since it allegedly was not
updated about his medical progress since November 2020.
65.
The DRC Judge examined the extensive exchange of correspondence between the parties
and noted that the player provided the club with regular updates as well as the possibility
to contact his doctors in Croatia. What is more, the player submitted medical certificates
that he was not able to fly and therefore to return to Cyprus.
66.
Therefore, due to the constant contact of the parties and based on the documentation on
file, the club’s argument that he was able to fly was rejected by the DRC Judge.
Consequently, he established that the player, due to his treatment for a serious illness, had
to stay in Croatia and was not able to return to Cyprus, as requested by the Respondent.
67.
On account of the above, the DRC Judge established that the Respondent had no just cause
to terminate the contract on 14 January 2021.
ii. Consequences
68.
In accordance with the above-mentioned considerations, the DRC Judge decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is liable
to pay to the Claimant outstanding remuneration in the total amount of EUR 20,000,
corresponding to the player’s salaries of August 2020 until December 2020, plus 5%
interest as of the respective due dates.
69.
Having stated the above, the members of the DRC Judge turned his attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
70.
Taking into consideration art. 17 par. 1 of the Regulations, the DRC Judge decided that the
Claimant is entitled to receive compensation for breach of contract from the Respondent.
71.
In continuation, the DRC Judge focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the DRC 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 Claimant 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.
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72.
In application of the relevant provision, the DRC Judge held that it first of all had to clarify
as to whether the pertinent employment contract contains 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 DRC Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
73.
As a consequence, the DRC Judge determined that the amount of compensation payable
by the Respondent to the Claimant had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The DRC 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. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body. In this
regard, the DRC Judge emphasised beforehand that each request for compensation for
contractual breach has to be assessed on a case-by-case basis taking into account all specific
circumstances of the respective matter.
74.
The DRC Judge then turned his attention to the remuneration and other benefits due to
the Claimant under the existing contract and/or the new contract, which criterion was
considered to be essential. The DRC Judge deemed it important to emphasise that the
wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both
the existing contract and the new contract, if any, in the calculation of the amount of
compensation.
75.
Bearing in mind the foregoing, the DRC Judge proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from the date of
termination without just cause by the Respondent until its natural expiration, i.e. 31 May
2021. Therefore, the DRC Judge concluded that the amount of EUR 20,000 serves as the
basis for the final determination of the amount of compensation for breach of contract in
the case at hand.
76.
In continuation, the DRC Judge verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the constant
practice of the DRC, such remuneration under a new employment contract shall be taken
into account in the calculation of the amount of compensation for breach of contract in
connection with the player’s general obligation to mitigate his damages.
77.
In this respect, the DRC Judge noted that the Claimant had not found new employment
and therefore was not able to mitigate his damages.
78.
Consequently, on account of the above-mentioned considerations, the DRC Judge decided
that the Respondent must pay the amount of EUR 20,000 as compensation for breach of
contract to the Claimant, which is considered by the Chamber to be a fair and reasonable
amount.
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79.
In addition, taking into consideration the player’s claim, the DRC Judge decided to award
the Claimant interest at the rate of 5% p.a., as of the date of the claim.
80.
As a conclusion the DRC Judge decided to partially accept the player’s claim.
iii. Compliance with monetary decisions
81.
Finally, taking into account the consideration under number 48. above, the DRC Judge
referred to par. 1 lit. 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.
82.
In this regard, the DRC 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.
83.
Therefore, bearing in mind the above, the DRC Judge 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. 24bis par. 2, 4, and 7 of the Regulations.
84.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
85.
The DRC 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. 24bis
par. 8 of the Regulations.
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d.
Costs
86.
The DRC Judge 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 DRC Judge decided that
no procedural costs were to be imposed on the parties.
87.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
88.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Stjepan Babić, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Ethnikos Achnas FC, has to pay to the Claimant, the following amount:
- EUR 20,000 as outstanding remuneration, plus 5% interest p.a. until the date of effective
payment as follows:
on the amount of EUR 4,000 as from 1 September 2020;
on the amount of EUR 4,000 as from 1 October 2020;
on the amount of EUR 4,000 as from 1 November 2020;
on the amount of EUR 4,000 as from 1 December 2020;
on the amount of EUR 4,000 as from 1 January 2021.
- EUR 20,000 as compensation for breach of contract, plus 5% interest p.a. as from 3 March
2021 until the date of effective payment.
4.
Any further claims of the 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 article 24 bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 the ban shall be of
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 paid by the end of
the of the three entire and consecutive registration periods.
7. The consequences shall only be enforced at the request of the Claimant in accordance with
article 24 bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer
of Players.
8. This decision is rendered without costs.
For the DRC Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
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