Labour Disputes
Texto da decisão
Decis ion of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 January 2020,
by
Geoff Thom ps on (England), Chairman
Daan de Jong (The Netherlands ), member
Alex andra Gom ez Bruinew ood (Uruguay ), member
on the matter between the player,
Dragan Bos kov ic, Montenegro
represented by Mr Daro Busic
as Claimant
and the club,
Thai Port FC, Thailand
represented by Mr Christophe Larrouilh
as Respondent
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 19 December 2017, the Claimant and the Respondent (hereinafter jointly referred to
as: the parties) concluded an employment contract (hereinafter: the contract), valid as
from 1st January 2018 until 30 December 2019.
2.
According to art. 3 of the contract, the Respondent undertook to pay to the Claimant a
net monthly salary of Thai Baht (THB) 1,700,000, as well as a net signing fee of
THB 3,000,000 per year, THB 40,000 net for accommodation and the following bonuses
based on the team’s performance:
-
“5. Personal Bonus on team Performance
For League: Winner = 2,000,000 THB.
2nd
= 1,000,000 THB.
rd
3
= 500,000 THB.
For Cup:
Winner = 1,000,000 THB.
2nd
= 500,000 THB.”
3.
In addition to the above, the Claimant was also entitled to four business class tickets
from Montenegro to Thailand during the term of the contract.
4.
Pursuant to art. 6 par. 3 of the contract, the Claimant undertook to comply with the rules,
regulations, orders, policies, practices and procedures of the Respondent and accepted to
be subject to sanctions by the Respondent in case of breach of said provision.
5.
Art. 6.4 and art. 6.7 of the contract provided that the Claimant guarantees that “he is in
good health with good strength and stamina and shall maintain and keep his fitness at
the level suitable to compete (…)” and “the player shall play in every Match with high
performance and quality”.
6.
Finally, art. 7.2 of the contract granted the Respondent the right to terminate the contract,
as follows:
“The Party is in breach or in violation of any Clause under this Agreement, Port F.C. shall
have the right to terminate the Agreement without any compensation and claim for any
damages from the Player.”
7.
On 19 July 2019, the Respondent notified the Claimant of the termination of the contract
(hereinafter: the termination letter). The reasons invoked by the Respondent in the
termination letter were mainly the Claimant’s poor sporting performances, his personal
lifestyle contrary to art. 6.4 and art. 6.7 of the contract, his refusal to move on loan to
another Thai club and his unacceptable behavior towards referees. The Respondent also
mentioned that the Claimant’s high salary and status of foreign player compelled him to
“a certain level of performance and a maximum level of discipline”.
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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8.
On 30 July 2019, the Claimant granted the Respondent ten days to pay the total amount
of THB 11,779,032, failing which he would submit a claim in front of FIFA.
9.
In said letter, the Claimant also stated that he was one of the best scorers in the history of
Thai football and that he was fully dedicated to his work and maintained a high level of
performance, in particular by hiring a personal fitness coach for the season 2019. The
Claimant also added that he had never received any warning or sanction from the
Respondent prior to the termination letter.
10. The Claimant further held that the Respondent had no right to transfer him to another
club, in particular given that the club was playing in Thai’s second division. In this regard,
the Claimant stated that he had only discussed a potential transfer over the phone with
the Respondent and that the latter had never presented him a written offer. Finally, the
Claimant held that he was never given the opportunity of discussing directly with the other
club.
11. Finally, the Claimant stated the following: “After the first half of the season you
announced my client that you will not use his service in TL1 matches, but in cup games. He
immediately offered to the Club the mutual termination of the agreement with only 4
salaries as severance. Club refuses his offer and he was told that he might be registered on
later stage. Only two days after transfer period finished on 17 th July 2019, you terminated
the Contract with Mr Boskovic on 19th July 2019, leaving him without possibility of finding
a new club in TL1 which we find very intentionally and severely compromised players sport
chances to continue his professional career.”
12. On 31 August 2019, the Claimant lodged a claim against the Respondent in front of FIFA.
On 8 November, the Claimant amended his claim, requesting the total amount of
THB 13,279,032, which may be broken down as follows:
12.1.
12.2.
12.3.
12.4.
12.5.
12.6.
12.7.
THB 449,032 corresponding to part of the salary of July 2019;
THB 8,500,000, corresponding to the residual value of the contract, i.e. until
December 2019;
THB 200,000, corresponding to accommodation as per art. 3.3 of the contract;
THB 330,000, corresponding to three airfare tickets as per art. 4 of the contract;
THB 1,500,000, corresponding to bonuses as per art. 5 of the contract, following the
Respondent’s performances during the 2019 season, i.e. 3rd position in final
standings of the Thai League 1 and winner of the FA Cup;
THB 2,000,000, corresponding to the damage caused to the Claimant’s professional
and private image;
THB 300,000, corresponding to the costs for a fitness coach and sport accessories.
13. In his claim, the Claimant simply referred to the content of his letter to the Respondent
dated 30 July 2019.
14. In its reply, the Respondent first contested the admissibility of the claim, considering that
FIFA is not competent.
15. According to art. 8 of the contract, “(t)his Agreement shall be construed and interpreted
in accordance with and governed by the laws of Thailand the parties hereto agree to
submit to the jurisdiction of the competent court in Thailand”.
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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16. In light of the aforementioned provision, the Respondent considered that the parties
voluntarily agreed to submit disputes arising from the contract to Thai courts. This said,
the Respondent added that in the event that the Dispute Resolution Chamber decided it
was competent, the dispute should be decided in accordance with Thai law, in particular
the Thai Labor Protection Act (hereinafter: the TLPA), rather than FIFA Regulations.
17. The Respondent argued that according to the TLPA, it was entitled to terminate the
contract without any justification, and the Claimant was not entitled to a severance pay,
given that the player performed his duty dishonestly, intentionally caused damage to the
club and committed negligent acts. The Respondent held that even in the event where
compensation would be awarded to the Claimant, he should only be entitled to a
maximum of three months of salary according to the TLPA.
18. The Respondent emphasised the Claimant’s behaviour, which led to the termination of the
contract. In this context, the Respondent held that the Claimant’s poor performances were
necessarily due to his personal lifestyle.
19. Furthermore, by asking the Claimant to move on loan to another club, the Respondent
was of the opinion that said loan should be assimilated to a “relocation” in the sense of
the TLPA, i.e. a change of the Claimant’s workplace rather than a change of employer. As
such, the Respondent claimed that “an employee has to accept any relocation if it is not
affects his ordinary way of living” and that “by refusing it he has committed a fault
equivalent to an act of insubordination that could not make it possible the pursuit of the
contractual relationship”.
20. Finally, the Respondent challenged the bonuses requested by the Claimant, given that he
“was no more belonging to Port FC when it reached the 3rd position of the Thai League 1
ranking and when it winned the Thai FA Cup”.
II. Cons iderations of the Dis pute Res olution Cham ber
1. First, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the matter at stake. In this
respect, it took note that the present matter was submitted to FIFA on 31 August 2019.
Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2. With regard to the competence of the Dispute Resolution Chamber, art. 3 par. 1 of the
Procedural Rules states that the DRC shall examine its jurisdiction in the light of art. 22 to
24 of the Regulations on the Status and Transfer of Players (edition 2020). In accordance
with art. 24 par. 1 in combination with art. 22 lit. b) of the aforementioned Regulations,
the Dispute Resolution Chamber would, in principle, be competent to deal with the matter
at stake, which concerns an employment-related dispute with an international dimension
between a Montenegrin player and a Thai club.
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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3. However, the Chamber acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the grounds that the contract concluded with the Claimant
established the “competent court in Thailand” as the competent body to deal with the case.
4. In this regard, the Chamber 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 is competent to
settle an employment-related dispute between a club and a player of an international
dimension is that the jurisdiction of the relevant national arbitration tribunal or national
court derives from a clear reference in the contract.
5. Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse whether
the contract at the basis of the present dispute contained a clear and specific jurisdiction
clause.
6. In this respect, the Chamber recalled that art. 8 of the contract stipulates that “(t)his
Agreement shall be construed and interpreted in accordance with and governed by the
laws of Thailand the parties hereto agree to submit to the jurisdiction of the competent
court in Thailand”.
7. Having examined the relevant provision, the Chamber came to the unanimous conclusion
that art. 8 of the contract does not constitute a clear jurisdiction clause in favour of one
specific court in Thailand, since it is drafted in a generic manner and even fails to mention
the relevant national court. In this context, the Chamber understood that the parties
actually never clearly and undisputedly agreed upon a specific jurisdiction. Consequently,
the Chamber established that the Respondent’s objection towards the competence of FIFA
to deal with the present matter has to be rejected, and that the Dispute Resolution
Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and
Transfer of Players, to consider the present matter as to the substance.
8. Subsequently, the Chamber analysed which edition of the Regulations on the Status and
Transfer of Players should be applicable as to the substance of the matter. In this respect,
the Chamber referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (edition 2020) and, on the other hand, to the fact that the
present claim was lodged on 31 August 2019. The Dispute Resolution Chamber concluded
that the June 2019 version of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
9.
In this context, the Chamber also recalled that in accordance with art. 25 par. 6 the
Regulations, the DRC shall apply the Regulations whilst also taking into account relevant
arrangements, laws and collective bargaining agreement that exist at national level, as
well as the specificity of sport.
10. The competence of the Dispute Resolution Chamber and the applicable regulations having
been established, the Chamber entered into the substance of the matter. In this respect, it
started by acknowledging all the above-mentioned facts, the arguments and the
documentation submitted by the Claimant and the Respondent. However, the Chamber
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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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.
11. First, the Dispute Resolution Chamber noted that the parties entered into an employment
contract valid as from 1st January 2018 until 30 December 2019, according to which the
Respondent undertook to pay the Claimant a monthly salary of THB 1,700,000, a net
signing fee of THB 3,000,000 per year, THB 40,000 net for accommodation, as well as
bonuses based on the Respondent’s performances in the league and the cup.
12. Second, the Chamber noted that according to art. 6.3 of the contract, the Claimant
undertook to abide by the rules and regulations of the Respondent and to accept any
related sanction. Moreover, the Chamber took good note of art. 6.6 and 6.7 of the contract,
according to which the Claimant undertook to remain in good health and fitness as well
as to perform in games at his highest level.
13. The Chamber also observed the Respondent’s right to terminate the contract in the case of
a breach of the Claimant, as set out at art. 7 of the contract.
14. In this respect, the Chamber observed that, on 19 July 2019, the Respondent unilaterally
terminated the contract alleging, in particular, that the performances of the Claimant were
insufficient, that his personal lifestyle was contrary to art. 6.4 and art. 6.7 of the contract,
that he refused to move on loan to another Thai club and that his behavior towards
referees was unacceptable.
15. In continuation, the Chamber noted that the Claimant lodged a claim against the
Respondent maintaining that the Respondent had terminated the contract without just
cause. Consequently, the Claimant requested outstanding remuneration and compensation
for breach of contract in the total amount of THB 13,279,032.
16. Having established the aforementioned, the Chamber deemed that the underlying issue in
the present dispute was to determine whether the contract had been unilaterally
terminated with or without just cause by the Respondent on 19 July 2019 and the
consequences thereof.
17. In this context, the Chamber observed that in the termination letter, the Respondent
explicitly invoked the poor performances of the Claimant to justify the termination of the
contract. The DRC considered that poor performance is a purely subjective appreciation, as
it is left to the full discretion of the Respondent. This led the Chamber to recall the constant
jurisprudence of the Dispute Resolution Chamber and of the Court of Arbitration for Sport
(CAS), according to which a player’s poor performance may not constitute a valid reason to
unilaterally terminate an employment contract.
18. The DRC further noted that the Respondent did not provide any tangible evidence attesting
to any reprehensible conduct or breach of the contract committed by the Claimant, whether
within the context of his lifestyle or his behaviour towards referees.
19. As regards the Claimant’s refusal to move to another Thai’s club on loan, the DRC recalled
that pursuant to art. 25 para. 6 of the Regulations, it shall apply the Regulations in place or
any national law invoked by the parties. In this context, the Chamber recalled that in
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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accordance with fundamental principles of labour law, a club may in no event force the
loan of a player to another club, without the prior consent of the player. In these
circumstances, the refusal of the player to move to another club on loan, may not constitute
just cause for the Respondent to terminate the contract.
20. As a general rule and notwithstanding the above, the DRC recalled that the termination of
a contract should only be an ultima ratio. In the present matter, the Chamber noted that
the Respondent did not alert, warn or sanction the Claimant for his poor performances or
his behaviour, prior to terminating the contract.
21. In light of the above, the Dispute Resolution Chamber decided that the Respondent
terminated the contract without just cause and that it should thus be held liable for the
early termination of the contract.
22. First, the DRC noted that outstanding remuneration was still due to the Claimant. Given
that the Respondent did not provide any tangible evidence attesting that the outstanding
remuneration had been paid to the Claimant, the DRC concluded that the payment of THB
1,700,000 corresponding to the salary of July 2019 had not been made and that
consequently, that amount was overdue.
23. Having established that the Respondent is to be held liable for the early termination of the
contract without just cause, the Chamber focused its attention on the consequences of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided
that the Claimant is entitled to receive from the Respondent an amount of money as
compensation for breach of contract.
24. In these circumstances, the Chamber focused its attention on the calculation of the amount
of compensation for breach of contract 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 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.
25. In application of the relevant provision, the Chamber 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 established
that no such compensation clause was included in the contract at the basis of the matter at
stake.
26. As a consequence, the Chamber 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 Chamber recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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27. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded
with the calculation of the monies payable to the Claimant under the terms of the contract
until 30 December 2019. In view of the foregoing, the DRC observed that the residual value
of the contract is THB 8,500,000, corresponding to five monthly salaries of THB 1,700,000,
which shall serve as the basis for the final determination of the amount of compensation
for breach of contract.
28. In continuation, the Chamber 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 able to reduce his loss of income. According to art. 17 par. 1
point ii) of the Regulations, such remuneration under a new employment contract shall be
deducted from the residual value of the contract that was terminated early, in the
calculation of the amount of compensation for breach of contract (“the mitigated
compensation”).
29. In this respect, the Chamber noted that the Claimant had not concluded any new
employment contract.
30. Having established the above, the Chamber took note of the Claimant’s request of
THB 200,000, corresponding to accommodation as per art. 3.3 of the contract and of
THB 330,000, corresponding to three airfare tickets as per art. 4 of the contract.
31. In relation to the airfare tickets, the DRC observed that this constituted a benefit which
would have been paid by the Respondent on behalf of the Claimant for the duration of the
contract. In these circumstances, the Chamber decided that the Claimant is entitled to
USD 8,400, corresponding to the value of three airfare tickets from Bangkok (Thailand) to
Podgorica (Montenegro) in business class (one-way ticket), based on a determined average
amount.
32. In this context and upon analysis of art. 3.3 of the contract, the DRC also decided to accept
the Claimant’s request for THB 200,000, corresponding to accommodation.
33. The Chamber then addressed the request of the Claimant for the payment of bonuses in
the amount of THB 1,500,000. In this regard, the Chamber observed that although the
Claimant did not provide any evidence attesting to the sporting results of the Respondent,
the Respondent itself confirmed the latter in its reply. Considering that it is not contested
that the Respondent won the National Cup and was ranked third in the League, the DRC
concluded that the Claimant should be entitled to the payment of THB 1,500,000, as
bonuses contractually agreed.
34. Finally, due to the absence of any contractual provision and the lack of evidence provided,
the Chamber decided to reject the Claimant’s request for compensation for image and sport
damages, as well as costs for a private fitness coach and sport accessories, in the total
amount of THB 2,300,000.
35. Consequently, in view of all of the above, the Dispute Resolution Chamber decided that the
Respondent must pay the amounts of THB 11,900,000 and USD 8,400 to the Claimant.
36. In light of the above, the DRC concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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37. Furthermore, 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.
38. In this regard, the Chamber 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.
39. 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, 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.
40. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amount, in accordance with art.
24bis par. 3 of the Regulations.
III. Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Dragan Boskovic, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Thai Port FC, has to pay to the Claimant outstanding remuneration in
the amount of THB 1,700,000.
4.
The Respondent has to pay to the Claimant compensation for breach of contract in the
amounts of THB 10,200,000 and USD 8,400.
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 mentioned under
points 3. and 4. above.
7.
The Respondent shall provide evidence of payment of the due amounts 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 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 amount
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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is 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 are paid.
10.
In the event that the aforementioned sums 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
DRC. 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).
Note relating 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). 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. 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.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
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:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Dragan Boskovic, Montenegro / Club Thai Port FC, Thailand
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