Labour Disputes
Texto da decisão
REF. FPSD-9718
Decision of the
Dispute Resolution Chamber
passed on 22 June 2023
regarding an employment-related dispute concerning
the player Vasilije Bakic
BY:
Omar Ongaro (Italy), Deputy Chairperson
André dos Santos Megale (Brazil), member
Stefano Sartori (Italy), member
CLAIMANT:
Vasilije Bakic, Serbia
Represented by Nir Inbar
RESPONDENT:
Hapoel Tel Aviv Football Club, Israel
Represented by Omri Applebaum
pg. 2
REF. FPSD-9718
I. Facts of the case
1.
In mid-January 2023, the Serbian player Vasilije Bakic (hereinafter the player or the Claimant)
was in negotiations with the Israeli club, Hapoel Tel Aviv Football Club (hereinafter the club
or the Respondent), to be temporarily transferred from the Serbian club, FK Kolubara
Lazarevac (hereinafter Kolubara), until May 2023 with a on option to permanently transfer.
2.
On 18 and 20 January 2023, the Respondent sent two different options for the permanent
transfer of the Claimant to the Respondent.
3.
On 23 January 2023, the Respondent sent to Kolubara a “Letter of Interest”, indicating that:
“Hapoel Tel Aviv Football Club would like to engage the palyer Mr. Vasilije Bakic, Serbia
citizen, born 24.5.2000, with professional contract with the club for the 22/23 and 23/24
seasons.
1. Hapoel shall get 100% of the player's economical and federative rights with 100,000 EURO
transfer fee. Hapoel shall pay 50,000 EURO after signing the contract with the player, and
50,000 EURO at 30.6.2023.
2. Hapoel shall pay to FC Kolubara 5% of the player's next transfer amount.
3. This offer is subjected to the execution of a valid employment agreement between Hapoel
andthe Player.
Given the above, we appreciate all cooperation possible, enabling the player to travel to
Israel.”
4.
On the same day, the Respondent sent an “Official Offer” to the Claimant.
5.
The Offer contained the following conditions:
“1. Hapoel offers to engage the Player for the 2022/23 and for 2023/24 seasons and until
10 of January 2025.
2. Hapoel shall pay 7,000 EURO net salary per month to the player at the 2022/23 season
(4 months and part of january). The club will pay to the player 7,500 EURO as a signing fee
on date of signature contract.
3. Hapoel shall pay 11,500 EURO net salary per month to the player at the 2023/24 season
and 12,500 EURO net per month until January 10, 2025 - during the 2024/25 season (from
the month of July 2025).
4. Hapoel shall have the option to extend the agreement for the rest of the 2024/25 season
with a salary of 12,500 EURO net per month until the end of the season, and a salary of 13,500
EURO net per month until 10 of January 2026 (from the month of July 2026). Hapoel shall
have the option to extend the agreement for the rest of the 2025/26 season with a 13,500
EURO net per month until 31 of May 2026.
5. During the contract period, in case the club will win the championship of the Israeli league,
the player will be paid a bonus of one month salary net.
pg. 3
REF. FPSD-9718
6. During the contract period, in case the club will qualify to European competitions, the
player will be paid a bonus of one month salary net.
7. During the contract period, in case the club will win the STATE CUP of Israel, the player will
be paid a bonus of one month salary net.
8. This is subjected to the execution of a valid employment agreement between Hapoel
and the Player for the seasons 22/23 and 23/24, and for a valid transfer agreement
between Hapoel and Tobol Kostanay FC.
9. During the term of the Agreement the Team will provide the Player apartment, car and
medical insurance, flight tickets for the player and his family, all according to its own
discretion (round trip).
10. this agreement is subjected to Player successfully passes medical examinations and
Physiological tests in Israel.
11. this offer will expire at 25/1/2023.” (emphasis added)
6.
On 25 January 2023, the Respondent and Kolubara concluded a transfer agreement
(hereinafter the Transfer Agreement) pertaining the transfer of the Claimant. The Transfer
Agreement reads that it will be null and void if the employment contract between the
Claimant and the Respondent does not come into force. Based on the evidence on file, the
said document was signed by all parties.
7.
Allegedly, on the same day, the Claimant flew to Israel to conclude a medical examination
on 26 January 2023.
8.
On 27 January 2023, the Respondent requested the Claimant to sign “a more detailed
employment contract” and provided him with the “Player Agreement Form” (hereinafter the
Form).
9.
The Claimant asserted that the following changes were made:
a) The Respondent had an option to immediately terminate the Contract with immediate
effect prior to 31 May 2023 with just cause in case of "any change to the corporate and/or
ownership structure of Poaley Tel Aviv Holdings LTD, a company incorporated under the laws
of the state of Israel." (clauses 1.6-1.7).
b) The Contract shall be still subjected to several matters which were not related to the
Claimant 's act ions or behavior (clause 1.8).
c) The Claimant was obligated to pay by himself any amount of training compensation/
financial claims/demands by any third party that may be imposed on the Respondent related
to his transfer to the Respondent and any such obligations shall be deducted unilaterally from
his salaries (clause 2.4, 2.6).
d) Any case of an alleged not accurate medical representation shall be considered as
fundamental breach that shall entitle the Respondent to unilaterally terminate the Contract
with just cause (clause 9.1).”
pg. 4
REF. FPSD-9718
10. It appears from the evidence on file that it was the legal representative from the Claimant
who adapted the Form in track changes and sent it to the legal representative of the
Respondent.
11. In its reply thereto on 27 January 2023, the Respondent rejected the changes made by the
Claimant. In the same chain of emails, the Claimant noted that “none of the remarks changes
what that was already agreed in your offer to the Player”.
12. Allegedly, on 28 January 2028, “the Claimant was requested to join the Respondent 's first team
league game. Though he was not officially registered yet, he was instructed to join the team,
requested to choose new football boots, and had to join the team's gathering (…)”.
13. In parallel, a WhatsApp messages were exchanged concerning a potential amendment in
the duration of the contract.
14. Allegedly, on 29 January 2023, a meeting was held concerning the duration of the contact,
which the Claimant rejected. Allegedly, the Respondent asserted that the Claimant “shall
return in Serbia, as it will not complete his registration in the IFA, unless he agrees to the
mentioned new requests and conditions.”
15. The Claimant left to Serbia.
16. On 1 February 2023, the Respondent sent a letter to the Claimant dated 31 January 2023,
withdrawing its interest in engaging him in the club for the following reasons:
“The MRI's test results were not clear and unequivocal, and they were according to the report
the Club asked you to perform another tests -Echo and Holter monitor. Due to your sole
circumstances your refused to do such medical tests and alongside, to the best of the Club's
knowledge, your former club demanded from you to return back, and therefore the Club was
prevented to complete its medical examinations and was not able to ensure you are heathy
and in proper medical activity sate, before signing valid employment agreement.
Thus, due to the medical's findings and after reviewing your health situation, with no option
to complete all the relevant tests, the Club decided not to conclude an agreement and no valid
(or any) employment agreement was signed.”
17. On 9 February 2023, the Claimant sent a letter to the Respondent, claiming that a valid
contract has been concluded on 23 January 2023 and that by the above-mentioned letter
was a termination in bad faith. Consequently, the Claimant put the Respondent in default
of a payment of EUR 223,270 and the respective interest, corresponding to the residual
value of the contract until 10 January 2025.
pg. 5
REF. FPSD-9718
18. On 13 February 2023, the Respondent rejected the content of Claimant’s letter, asserting
that the Letter of Interest as well as the Offer were subjected to the following conditions:
“First, performing and successfully passing medical and physical examination by the Club;
Second, singing on a valid detailed employment agreement.”
19. What is more, the letter read that it was the Claimant who “refused” to do an additional
medical test, i.e. the Respondent was unable to complete the medical examination.
20. The Respondent further denied signing the transfer Agreement, i.e. “The Club did not breach
any contract, it did not terminate any contract and above all the Club did not act in bad faith.”
21. On 2 February 2023, the Claimant renewed his contract with Kolubara until 30 June 2024.
The financial terms were agreed as follows: “until 01.07.2023. in the amount of
RSD 200,000.00 and from July 2, 2023. until 30.06.2024. in the amount of RSD 220,000.00”.
II. Proceedings before FIFA
22. On 23 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
23. The requests for relief of the Claimant were the following:
“1. FIFA DRC shall accept the claim of the Claimant.
2. FIFA DRC shall order the Respondent to pay to the Claimant EUR 221,631 net as
Compensation, plus 5% interest p.a. as from 1 February 2023 until the date of effective
payment.
3. FIFA DRC shall impose sportive sanctions on the Respondent.”
24. The Claimant argued that the Offer shall be considered a valid employment agreement
since it contains all essentialia negotii, i.e.
− “The date 23 January 2023.
− The subject offer for the professional player Vasilije Bakic + his date of birth.
− The duration of the Contract – seasons 2022/23, 2023/24 and 2024/25(until 10 January 2025).
− The remuneration and details of payments to be paid by the Respondent to the Claimant for
each season specifically.
− Additional bonuses and complementary terms (including flights, apartment, car, medical
insurance) agreed by the parties.
− Official page of the Respondent containing its logo, its main sponsor and its official contact
info.
− Official signature of the Respondent 's CEO including an official stamp of the Respondent.
− Signature of the Claimant.”
pg. 6
REF. FPSD-9718
25. Furthermore, the Claimant argued that a medical examination cannot be considered as a
valid condition of the contract. As to any allegation of the Club that the player was
supposed to undergo another examination, the player argued that there was no request
from the club.
26. In order to support his position, the Claimant further argued that also the Transfer
Agreement was duly signed by the Parties.
27. Consequently, since there was a valid Employment Contract in the matter, the Claimant
was of the opinion that the Respondent terminated the contract by the letter of
1 February 2023 and shall pay a compensation in accordance with art. 17 par. 1 of the
Regulations, i.e. EUR 221,631 (residual value of the contract of EUR 252,666 minus the
current contract value EUR 31,035).
b. Position of the Respondent
28. The Respondent rejected the claim in its entirety, arguing that:
“1. To declare that the Respondent and the Claimant did not enter in to a binding and
valid employment contract.
2. Accordingly, to dismiss the Claimant's Claim in its entirety.
3. Alternatively, and even if the DRC finds that the Respondent had a final, binding and
valid employment contract - to declare that Player breached the contract by refusing to
complete the medical tests in order to receive a permit to participate in football activities
organized by IFA, allowing the Club to terminate the agreement with just cause;
Or to decide that the contract was null and void since the Player did not pass the
mandatory
medical examination and could not be registered in IFA.
4. Alternatively to the alternative, decide that the Player is not entitled to any
compensation further than the compensation for the 2022/23 season and that he is also
not entitled to any interests.
5. In any event: to Order the Claimant to reimburse the Respondent all and any amount
of legal fees and any other costs and expenses incurred by the Respondent in these
proceedings.”
29. In support of its allegations above, the Respondent firstly argued that “the negotiations did
not mature to a final employment agreement. The [Claimant] continues to play for his team
under the same contract he had, which is still valid until July 2023 and he did not suffer any
damage” and that “the Claimant did not play nor even train once with the team”.
30. Whereas the Respondent did not contest that there were negotiations happened, yet it
disputed that any employment contract has been signed, “mainly because the Claimant did
pg. 7
REF. FPSD-9718
not pass the required medical tests and refused to undergo another test that would remove the
doubt about his health and fitness.”
31. The Respondent further argued that the said medical examination is a pre-requisite based
on the IFA Regulations.
32. In view of the above, the Respondent argued that the relevant pre-requisite was not
fulfilled and, hence, there is no valid and binding contract. In its further support, the
Respondent added that neither other document relevant for the respective transfer were
duly signed.
33. As to the validity of the medical examination, the Respondent pointed to the jurisprudence
of CAS which mentions that pre-contract can be subjected to medical examinations.
34. In case the DRC believes that there was a valid contract, the Respondent asserted that the
Claimant breached it by his “refusal to continue with the necessary heart tests (Echo, Holter
and MRI)”.
35. Alternatively, if the DRC would decide that the Claimant should receive compensation, it
shall consider that the Claimant should “find other clubs that will agree to pay similar
amounts, and by doing so to mitigate, or eliminate his damages (which are in any case denied).”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
36. 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 23 March 2023 and submitted
for decision on 22 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.
37. 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 (May 2023 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 Serbia
and a club from Israel.
pg. 8
REF. FPSD-9718
38. 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 (May 2023 edition), and
considering that the present claim was lodged on 22 March 2023, the March 2023 edition
of said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
39. 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
40. 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
41. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note that this is a dispute between a player and a club concerning a
validity of a contract.
42. The DRC recalled the main arguments of the Parties: The Respondent argued that it did not
enter in to a binding and valid employment contract as “the negotiations did not mature to a
final employment agreement”, whereas the Claimant was of the opinion that already the
Offer forms a binding contract.
43. In this context, the Chamber noted that the only signed document between the Parties is
indeed the Offer and, hence, the DRC started by recalling the well-established
jurisprudence which dictates that, in order for an employment contract to be considered
valid and binding, apart from the signature, it should contain the essentialia negotii of an
employment contract, such as the parties to the contract and their role, the duration of the
employment relationship and the remuneration payable by the employer to the employee.
pg. 9
REF. FPSD-9718
44. After thoroughly analysing the documentation on file, the DRC noted that the Offer was
very detailed and the following essential elements of a contract described above are
present in the Offer: Duration of the agreement, subordination of the employee to the
employer, personal performance, wages as well as the signature of both Parties.
45. In view of the above, the Chamber concluded that the Offer indeed represents a valid and
binding employment contract.
46. For the sake of completeness, the DRC nonetheless wished to address the arguments of
the Respondent that the final contract was never signed “mainly because the Claimant did
not pass the required medical tests and refused to undergo another test that would remove the
doubt about his health and fitness.”
47. By recalling art. 18 par. 4 of the Regulations, which reads that “[t]he validity of the contract
may not be made subject to a successful medical examination and/or the grant of a work
permit”, the Chamber rejected the arguments of the Respondent.
48. The DRC therefore concluded that by its correspondence of 1 February 2023, the
Respondent terminated the employment relationship without just cause.
ii. Consequences
49. 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.
50. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
51. 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
pg. 10
REF. FPSD-9718
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
52. 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 242,838.70 serves as the basis for the determination of
the amount of compensation for breach of contract.
53. 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.
54. Indeed, the player found employment with Kolubara. In accordance with the pertinent
employment contract, the player was entitled to approximately RSD 3,640,000 for the
overlapping period. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of EUR 31,042.
55. 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 211,796.70 to the player (i.e. EUR 242,838.70 minus EUR 31,042), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
56. 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 1 February 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
57. 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.
58. 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
pg. 11
REF. FPSD-9718
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
59. 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.
60. 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.
61. 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
62. 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.
63. 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.
64. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-9718
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Vasilije Bakic, is partially accepted.
2.
The Respondent, Hapoel Tel Aviv Football Club, must pay to the Claimant the following
amount(s):
- EUR 211,796.70 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 1 February 2023 until the date of 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
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REF. FPSD-9718
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
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
pg. 14