Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 28 February 2020,
by
John New m an (USA)
on the claim presented by the player,
Radov ic Bals a, Montenegro,
represented by Mr Mr Hrvoje Raic
as Claimant
against the club,
KS Luftetari, Albania,
represented by Mr Konstantinos Zemberis
as Respondent
regarding an employment-related dispute
between the parties
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I.
Facts of the cas e
1.
On 15 August 2018, the Montenegrin player Radovic Balsa (hereinafter: the Claimant or the
player) and the Albanian club KS Luftetari (hereinafter: the Respondent or the club)
concluded an employment contract (hereinafter: the contract), valid as from 15 August 2018
until 30 June 2019.
2.
According to clauses 3 and 4 of the contract, the player, inter alia, was entitled to receive a
remuneration scheduled as follows:
- EUR 1,000 “at the moment of signing”;
- EUR 1,000 as monthly salary payable “for the first six months of the (…) contract” at the
10th day of the month at the latest;
- EUR 3,000 monthly salary payable “for the remaining time” of the contract.
3.
According to clause 17 of the contract, “the player and the club agree to respect the rules,
regulations and by-laws of Albanian Football Association and FIFA. In the event of a dispute
regarding the execution of the terms of the present contract, the applicable law will be the
FSHF regulation and the applicable court will be the court of Albanian Football Association
exclusively”.
4.
On 7 January 2019, the player put the club in default in the amount of EUR 4,000
corresponding to the overdue signing-on fee as well as the salaries of October, November
and December 2018. The player gave a deadline of 15 days for the club to comply.
5.
On 23 January 2019, the player unilaterally terminated his contract on the basis that the club
failed to pay him the signing-on fee along with the salaries of October 2018, November
2018, December 2018 and January 2019.
6.
On 18 April 2019, the player lodged a claim for breach of contract without just cause and
requested the payment of the following amounts, plus 5% interest p.a. as from the due
dates:
- EUR 1,000 as the signing-on fee that fell due on 15 August 2018;
- EUR 4,000 corresponding to the monthly salaries of October 2018, October 2018,
November 2018, December 2018 and January 2019 that fell due on the 10th of each
month;
- EUR 14,000 corresponding to the residual value of the contract at the date of termination
plus interests as from 24 January 2019.
7.
The player further requested the imposition of sporting sanctions against the club.
8.
In his claim, the player explained that the club failed to respect the terms of the contract by
not paying the signing-on fee along with 4 monthly salaries at the date of termination.
9.
As such, the player argued that he had just cause to terminate the contract.
10.
In its reply, the club contested FIFA’s competence in favour of that of the Albanian NDRC.
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11.
In particular, the club argued that in line with clause 17 of the contract, FIFA has no
jurisdiction over the matter, as the parties agreed that the only competent court to hear any
contractual dispute between them is the FSHF court (hereinafter: the Albanian NDRC). In
support of its argument, the club provided a translated copy of the statues of the Albanian
NDRC, according to which said court comply with the requirements of art. 22b of the FIFA
RSTP. Thus, the club claims that the player’s claim should be considered inadmissible.
12.
In his replica, the player stated that although the Albanian NDRC rules foresee that an equal
number of players’ and clubs’ representatives shall be elected, these member are “elected
from a voting session organised by the Albanian Football Association, which means that the
football association is actually influencing on voting the players’ representative”. As per the
player, these proceedings are against the FIFA NDRC standards set out in FIFA circular 1010
according to which players’ representatives must be chosen upon proposal of the players’
union affiliated to FIFPro or upon a pool selected by FIFA and FIFPro when no such
organisation exists.
13.
In it duplica, the club rejected the player’s allegation regarding the rejection of the
competence of the Albanian NDRC, stating that its representatives “are elected from a
group of players constituted by the captain and the oldest player of all professional clubs,
following a voting organized by the Albanian Football Association.”
14.
Finally, the club pointed out that the FIFA NDRC requirements were “at the end of the day,
recommendations and it is possible for an association to deviate from such regulations
provided that the main principles of independence and fair proceedings are respected and
protected.”
15.
Upon FIFA’s request, the player indicated that he is currently unemployed and plays as an
amateur in Albania.
II.
Cons iderations of the Dispute Resolution Chamber (DRC) judge
1.
First of all, the Dispute Resolution Chamber judge (hereinafter: the DRC Judge) analyzed
whether he was competent to deal with the case at hand. In this respect, he referred to the
wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules)
as well as to the fact that the present matter was submitted to FIFA on 23 January 2019 and
decided on 28 February 2020. Therefore, the DRC Judge concluded that the 2019 edition of
the Procedural Rules is applicable to the matter at hand.
2.
Furthermore, the DRC Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players, and considering that the
present claim was lodged on 23 January 2019, the June 2018 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the substance.
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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3.
Subsequently, the DRC Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and
confirmed that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b of
the Regulations, he is principle competent to adjudicate on the present employment-related
dispute between a Montenegrin player and an Albanian club.
4.
However, the DRC Judge acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the basis of art. 17 of the contract, which stipulated the following:
“the player and the club agree to respect the rules, regulations and by-laws of Albanian
Football Association and FIFA. In the event of a dispute regarding the execution of the terms
of the present contract, the applicable law will be the FSHF regulation and the applicable
court will be the court of Albanian Football Association exclusively”.
5.
On the other hand, the DRC Judge noted that the Claimant insisted on the competence of
the FIFA DRC to adjudicate on the claim lodged by him against the Respondent.
6.
Taking into account all the above, the DRC Judge emphasized that in accordance with art.
22 lit. b) of the Regulations on the Status and Transfer of Players he 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. With regard to the standards to be
imposed on an independent arbitration tribunal guaranteeing fair proceedings, the DRC
Judge referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the DRC
Judge referred to the principles contained in the FIFA National Dispute Resolution Chamber
(NDRC) Standard Regulations, which came into force on 1 January 2008.
7.
Considering the aforementioned criteria, the DRC Judge observed the documentation
provided by the Respondent in relation to the Albanian NDRC, and noted that it provided a
copy of the “Regulations of AFA’s National Dispute Resolution Chamber”.
8.
In relation to said document, the DRC Judge noted that its art. 4 established that the
aforementioned Chamber is composed as follows:
2. The Chamber shall be composed of:
a) The Chairman and two deputy Chairman unilaterally elected by the members of the
dispute resolution chamber, based on the proposals of the Clubs and player’s assembly for
the Chairman and the Deputy Chairman;
b) Five members, player representatives elected from a voting session organized by AFA,
with the participation of two players for each professional team, one of which should be
the captain of the team and the other one should be the oldest player. Player representatives
also review coaches' disputes.
c) Five members, club representatives which are elected or appointed on the proposal of the
clubs of the Albanian Superliga, First Division and Second Division.
5. The Chamber shall meet with a minimum number of 3 members, including the Chairman
or the deputy Chairmen. In all cases, the number of the club representative members shall
be equal to the number of player representative members. The members of the trial shall
be elected by Iottery.”
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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9.
Concerning the above, and more specifically in relation to the “voting session” mentioned
in art. 4 par 2 b) of the “Regulations of AFA’s National Dispute Resolution Chamber”, the
DRC Judge further noted that the club explained that the representatives of the Albanian
NDRC “are elected from a group of players constituted by the captain and the oldest player
of all professional clubs, following a voting organized by the Albanian Football Association”
and that “at the end of the day, recommendations and it is possible for an association to
deviate from such regulations provided that the main principles of independence and fair
proceedings are respected and protected.”
16.
In addition, the DRC Judge also took note of the player’s allegations, who stated that it
cannot be established that the Albanian NDRC guarantees for equal representation of
players and clubs. In particular, the Claimant stated that the players’ representatives must
be chosen upon proposal of the players’ union affiliated to FIFPro or upon a pool selected
by FIFA and FIFPro when no such organisation exists, which is not the case in the Albanian
NDRC.
10.
Given the aforementioned arguments and evidence provided by the parties, the DRC Judge
referred to art. 12 par. 3 of the Procedural Rules, which establish that “any party claiming a
right on the basis of an alleged fact shall carry the burden of proof”.
11.
In application of the aforementioned provision, the DRC Judge understood that, in the
matter at stake, it is up to the Respondent to prove that the Albanian NDRC effectively
guarantees fair proceedings and respects the principle of equal representation of players
and clubs.
12.
In this respect, and after observing the evidence provided by the parties, the DRC Judge
noted that the Respondent did not provide any evidence on the effective and actual
composition of the Albanian NDRC, or that said body is operative.
13.
In addition, the DRC Judge further noted that the player argued that no player’s union was
involved in the election of the NDRC members.
14.
In this respect, the DRC Judge recalled the contents of art. 3 b) of the NDRC Standard
Regulations, according to which the NDRC shall be composed, from the side of the player’s
representative side, by a number of representatives who are elected or appointed either on
the proposal of the players’ associations affiliated to FIFPro, or where no such associations
exist, on the basis of a selection process agreed by FIFA and FIFPro.
15.
As a result, the DRC Judge considered in this respect that the existence of an organized labor
association of professional football players is a fundamental pillar for the effective
functioning of the principle of equal representation of players and clubs.
16.
However, the DRC Judge observed in this respect that no evidence was provided as to the
existence of an organized association of professional football players operating within the
scope of the Albanian NDRC and/or The Football Association of Albania. Moreover, the DRC
Judge further noted that the Respondent did not allege nor prove (in the sense of art. 3 b)
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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of the NDRC Standard Regulations that, in the absence of said association, the player’s
representatives are appointed on the basis of a selection process agreed by FIFA and FIFPro.
17.
In view of the above, the DRC Judge arrived to the conclusion that it cannot be established
that the player’s representation rights could be effectively safeguarded within the scope of
the Albanian NDRC. In particular, the DRC Judge understood that, from the evidence on file
that was gathered within the course of the present investigation, it cannot be established
that the Albanian NDRC respects the principle of equal representation of players and clubs
in the sense of art. 22 lit. b) of the Regulations and other supplementary rules, such as the
NDRC Standard Regulations. Thus, the Respondent’s objection to FIFA’s competence cannot
be upheld and the claim of the player is admissible.
18.
His competence and the applicable regulations having been established, the DRC Judge
entered into the substance of the matter, by acknowledging the above-mentioned facts as
well as the documentation contained in the file in relation to the substance of the matter.
However, the DRC Judge emphasised that in the following considerations he will refer only
to the facts, arguments and documentary evidence which he considered pertinent for the
assessment of the matter at hand.
19.
In this respect, the DRC Judge recalled that the player and the club concluded an
employment contract valid as from 15 August 2018 until 30 June 2019, according to which
the player was entitled to a sign on fee of EUR 1,000, a monthly salary in the amount of EUR
1,000 for the first 6 months of contract and of EUR 3,000 for the remaining duration of the
contract.
20.
Subsequently, the DRC Judge noted that the player, after having put the club in default of
payment of the sign on fee and 3 monthly salaries on 7 January 2019, unilaterally terminated
the contract on 23 January 2019 and lodged a claim against the club for breach of contract,
claiming outstanding monies and compensation.
21.
On the other hand, the DRC Judge noted that the club only contests FIFA’s competence of
deal with the present dispute, but does not dispute the substance of the case.
22.
At this point, the DRC Judge deemed it appropriate to refer to the principle of burden of
proof, as reflected in art. 12 par. 3 of the Procedural Rules, according to which “any party
claiming a right on the basis of an alleged fact shall carry the burden of proof”.
23.
Furthermore, the DRC Judge referred to the wording of art. 14bis par. 1 of the Regulations
in accordance with which “in the case of a club unlawfully failing to pay a player at least
two monthly salaries on their due dates, the player will be deemed to have a just cause to
terminate his contract, provided that he has put the debtor club in default in writing and
has granted a deadline of at least 15 days for the debtor club to fully comply with its
financial obligation(s)”.
24.
Bearing in mind the foregoing, the DRC Judge noted that it remained undisputed by the
Respondent that the Claimant had put it in default of payment of the sign on fee and 3
monthly salaries on 7 January 2019, granting it 15 days to remedy the default, and that in
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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view of the lack of payment of the claimed amounts, the player unilaterally terminated the
contract on 23 January 2019. The DRC Judge observed that the present situation meets all
the formal requirements of art. 14bis and therefore concluded that the player terminated
the contact with just cause on 23 January 2019, on the basis of the aforementioned article,
and that the club is to be held liable for the early termination of the contract with just cause
by the player.
25.
In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the DRC Judge decided that, in
accordance with art. 17 par. 1 of the Regulations, the club is liable to pay compensation to
the player.
26.
However, before entering into the calculation of the payable compensation, the DRC Judge
underlined that the player is also entitled to his outstanding remuneration.
27.
In particular, and as established above, the DRC Judge observed that, on the date of
termination of the contract, the club had an outstanding debt towards the player in the
amount of EUR 5,000, corresponding to the sign on fee of EUR 1,000 and 4 outstanding
salaries for October 2018 to January 2019 in the amount of EUR 1,000 each, payable on the
10th day of each month.
28.
In view of the above, and in accordance with the principle of pacta sunt servanda, the DRC
Judge unanimously established that the club has to pay to the player the total amount of
EUR 5,000 as outstanding remuneration.
29.
In addition, taking into account the Claimant’s request as well as the constant practice of
the DRC Judge in this regard, the Chamber decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the aforementioned amount as of the date on which each
relevant amount became outstanding.
30.
In continuation, the DRC Judge focused his 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 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.
31.
In application of the relevant provision, the DRC Judge held that he 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.
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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32.
As a consequence, the DRC Judge 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 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.
33.
The DRC Judge then turned his attention to the remuneration and other benefits due to the
player under the existing contract and/or the new contract, which criterion was considered
by the DRC Judge to be essential. The DRC Judge deemed it important to emphasise that
the wording of art. 17 par. 1 of the Regulations allows the DRC Judge to take into account
both the existing contract and the new contract in the calculation of the amount of
compensation.
34.
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 its date of
termination with just cause, i.e. 23 January 2019 until 30 June 2019, and concluded that the
Claimant would have received in total EUR 15,000 considering the monthly salary of EUR
3,000 for the second half of the contract, but limited his request to EUR 14,000.
Consequently, the DRC Judge concluded that the amount of EUR 14,000 serves as the basis
for the final determination of the amount of compensation for breach of contract in the
case at hand.
35.
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 Judge, 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.
36.
In this respect, the Chamber observed that the player informed FIFA that after the
termination of the contract he only played as an amateur and is currently unemployed.
37.
Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the DRC Judge decided to partially accept the player’s claim and that
the club must pay the amount of EUR 14,000 as compensation for breach of contract in the
case at hand.
38.
In addition, taking into account the Claimant’s request as well as his constant practice in this
regard, the DRC Judge decided that the Respondent must pay to the Claimant interest of
5% p.a. on the aforementioned amount as of the date of the claim.
39.
Furthermore, taking into account the consideration under number II./2. above, the DRC
Judge 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.
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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40.
In this regard, the DRC Judge pointed out 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.
41.
Therefore, bearing in mind the above, the DRC Judge 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, following the notification of the present decision,
communicates the relevant bank details to the Respondent, 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.
42.
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.
3 of the Regulations.
43.
The DRC Judge concluded his deliberations in the present matter by establishing that any
further claims lodged by the player are rejected.
***
III. Decision of the Dis pute Res olution Cham ber (DRC) Judge
1.
The claim of the Claimant, Radovic Balsa, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, KS Luftetari, has to pay to the Claimant the amount of EUR 5,000, plus
interest as follows:
a. 5% interest p.a. on the amount of EUR 1,000 as from 16 August 2018 until the date of
effective payment;
b. 5% interest p.a. on the amount of EUR 1,000 as from 11 October 2018 until the date of
effective payment;
c. 5% interest p.a. on the amount of EUR 1,000 as from 11 November 2018 until the date
of effective payment;
d. 5% interest p.a. on the amount of EUR 1,000 as from 11 December 2018 until the date
of effective payment;
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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e. 5% interest p.a. on the amount of EUR 1,000 as from 11 January 2019 until the date of
effective payment;
4.
The Respondent has to pay to the Claimant compensation for breach of contract in the
amount of EUR 14,000, plus 5% interest p.a. as from 18 April 2019 until the date of effective
payment.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent, immediately and directly, preferably to
the e-mail address as indicated on the cover letter of the present decision, of the relevant
bank account to which the Respondent must pay the amounts plus interest mentioned under
points 3. and 4. above.
7.
The Respondent shall provide evidence of payment of the due amounts plus interest in
accordance with points 3. and 4. above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French, German,
Spanish).
8.
In the event that the amounts due plus interest in accordance with points 3. and 4. above
are not paid by the Respondent w ithin 45 day s as from the notification by the Claimant of
the relevant bank details to the Respondent, the Respondent shall be banned 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
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
9.
The ban mentioned in point 8. above will be lifted immediately and prior to its complete
serving, once the due amounts plus interest are paid.
10.
In the event that the aforementioned amounts plus interest are 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 FIFA’s Disciplinary Committee for consideration and a formal
decision.
***
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
Dispute Resolution Chamber. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto.
Within another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with
the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber (DRC) Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Radovic Balsa, Montenegro / Club KF Luftetari, Albania
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