DRC Overdue Payables
Texto da decisão
REF. FPSD-7750
Decision of the
Dispute Resolution Chamber
passed on 27 April 2023
regarding an employment-related dispute concerning
the player Goran Causic
BY:
Frans DE WEGER (The Netherlands), Chairperson
Laurel VAURASI (Fiji), member
Khadija TIMERA (Senegal), member
CLAIMANT:
Player Goran Causic, Serbia
Represented by Laffer Abogados
RESPONDENT:
FC Arsenal Tula, Russia
Represented by SILA International Lawyers
I. Facts of the case
pg. 2
REF. FPSD-7750
1. On 10 July 2019, the Serbian player Goran Causic and the Russian club, Arsenal Tula,
concluded an employment contract valid as from 10 July 2019 until 30 June 2022.
2. Following art. 8.1 of the contract, the player was entitled to a salary of EUR 51,724.14
gross or EUR 45,000 net, to be paid “in rubles at the exchange rate of the Central Bank of
the Russian Federation”.
3. Art. 8.3 stipulated the following payment schedule:
“Salary, including bonuses, allowances and other incentive payments (…), are paid at
least every half-month: advance payments not later than the 25th day of the current month,
and the 10th day following the month in which it was accrued. (…)”
4. Art. 7.2 of the contract stipulated the following:
“7.2. The Employee shall be entitled to an annual paid holiday amounting to 28 calendar
days; at this the holiday shall be given in accordance with the holiday schedule as approved
by the Employer, but only between football seasons.”
5. According to art. 8 par. 5 of the contract, the player was entitled to 4 return flight tickets,
economy class, for each season, for the journey Moscow-Belgrade-Moscow.
6. On 8 August 2022, the player, via his legal representative, sent a default notice to the
club, by means of which, he stated the following:
“On 25 July 2022, your club made a payment corresponding to EUR 25,800, by means of
which it partially paid the Player’s salary for May 2022, although it is uncontested that the
Player was providing his services until 21 May 2022. On the other hand, the Player’s salary
for June 2022 has completely remained unpaid. Therefore, the Club still owes to the Player
the amount of totally EUR 64,200 net (19,200 for May 2022 and EUR 45,000 for June 2022).
(…)
we herewith invite your Club to either send a reasonable settlement proposal, or pay to the
Player the amount of EUR 64,200 (with the default interest of 5% p.a. from 1 June 2022 and
1 July 2022 respectively) within 10 days from receipt of this notice.”
7. On 12 August 2022, the club replied to the player stating the following:
“The Club is deeply surprised by your claims and strongly disagrees with them because of
the following.
First and foremost, we repeatedly emphasize that you unilaterally stopped performing your
labor function contrary to several provisions of the Contract.
(…)
is crystal clear that from 21 May 2022 you completely stopped performing your duties under
the valid and binding Contract and did not return to Russia even after receipt of the Club's
letter on 27 May 2022
(…)
the Club denies these claims and reiterates that you do not have the right to claim
remuneration for the period from 22 May 2022 to 30 June 2022”
pg. 3
REF. FPSD-7750
8. On 19 July 2022, the player transferred “out of contract” from Arsenal Tula to the Thai
club, Buriram United (Ref. 529683).
9. The relevant transfer instruction in TMS contains a document issued by Arsenal Tula
on 30 June 2022, with an “Order To discontinue the effect of the labour agreement from
“10th” of July, 2019” in accordance with art. 77 of the Labour Code of Russian Federation
(expiration of term of a labor agreement).
II. Proceedings before FIFA
10. On 4 October 2022, the player lodged a claim before FIFA for outstanding remuneration
and requested the payment of EUR 64,200 net, plus 5% interest p.a. as from the due
dates, further detailed as follows:
- EUR 19,200 for the remaining part of May 2022;
- EUR 45,000 for June 2022.
11. As to the applicable interest, the player argued that “the second part of the salary for May
2022 should have been paid until 10 June 2022, so the interest shall be accrued from 11
June 2022. The first part of the June 2022 salary fell due on 25 June (hence the interest on
EUR 22,500 is payable as of 26 June), while the second part was to be paid by 10 July 2022
(and the interest accrues from 11 July on EUR 22,500).”
12. The player further considered that the Respondent should pay any taxes.
13. The Claimant requested the application of a sanction in accordance with art. 12 bis of
the Regulations.
14. On 28 October 2022, the club replied to the claim and simultaneously lodged a
counterclaim.
15. According to the club, the player terminated the contract without just cause on 22 May
2022.
16. As a result, the club requested the payment of the amount of EUR 63,767.94 net as
compensation for breach of contract plus 5% interest p.a. as from 29 October 2022.
17. In addition, the club acknowledged that it deducted RUB 35,144 for flight tickets.
18. The club noted that the exchange rate on 31 May 2022 was EUR 1 = RUB 64,7170, and
referred to site of the Central Bank of Russia.
19. In his replica, the Claimant acknowledged that he left Russia on 22 May 2022, after the
last official match of the season and following the verbal consent of the club.
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REF. FPSD-7750
20. In this respect, the player stressed that contract entitled him to 28 calendar days of
annual paid holiday, in addition to other holidays. He explained that he should have in
any case taken 35 days off between 21 May and 30 June, 2022.
21. The player considered that, in any case, if the Club actually did not know his location,
they would have tried to contact him earlier, but the Club only reach him when all the
players were on holidays.
22. The claimant argued that his departure from Russia after the last official match of the
season was not exclusive to him, as more than half of the foreign players on the team
also left.
23. The player further argued that the Club unduly deducted expenses related to flight
tickets that shall be reimbursed to him.
24. The Claimant amended his claim and requested the payment of the following amounts,
as well as the payment of the legal costs:
- EUR 19,200 plus 5% interest since 11 June 2022;
- EUR 22,500 plus 5% interest since 26 June 2022;
- EUR 22,500 plus 5% interest since 11 July 2022;
- RUB 35,144, as recognized in par. 87 of the club’s counterclaim. The player noted
that as per the contract (art. 8.5) he was entitled to 4 return flight tickets.
25. In its duplica, the Respondent argued that the Player’s departure from Russia was not
permitted.
26. The club argued that the player failed to provide evidence to support his claim of
receiving verbal permission to leave Russia on 23 May 2022.
27. In the opinion of the club, the player took more vacation than he was entitled to and
failed to attend pre-season training sessions.
28. As a result, the club considered that the player de facto terminated the Contract on 22
May 2022 by leaving Russia and failing to return to the Club’s premises in June 2022.
29. The club further argued that ceasing to pay remuneration after (i) non-authorized
departure from the country, (ii) absence from the training session scheduled in
advance, (iii) failure to return in June 2022 and work until the expiry of the term of the
Contract was in line with the principle of proportionality.
pg. 5
REF. FPSD-7750
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 4 October 2022 and submitted
for decision on 27 April 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.
2.
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 (March 2022 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 Russia.
3.
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 (March 2023 edition), and
considering that the present claim was lodged on 4 October 2022, 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
4.
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
5.
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
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REF. FPSD-7750
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
6.
The foregoing having been established, the Chamber moved to the substance of the
matter.
7.
In doing so, the Chamber first noted that the parties concluded an employment contract
valid as from 10 July 2019 until 30 June 2022.
8.
Subsequently, the Chamber observed that the player lodged a claim against the club for
outstanding remuneration arising from said contract and that, in reply to said claim, the
club lodged a counterclaim, as it argued that the player de facto terminated the contract on
22 May 2022, as he was absent as from said date.
9.
Therefore, the Chamber understood that its first task was to determine whether the
contract was terminated prior to its term, and if that is the case, which are the
consequences of such termination.
10. In this respect, the Chamber analysed the information on file and underlined once again
that following art. 13 par. 4 of the Procedural Rules, it may consider evidence not filed by
the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
11. The Chamber focused in this respect that, following the TMS, the player transferred “out of
contract” from Arsenal Tula to the Thai club, Buriram United (Ref. 529683). The Chamber in
particular noted that the relevant transfer instruction in TMS contains a document issued
by Arsenal Tula on 30 June 2022, with an “Order To discontinue the effect of the labour
agreement from “10th” of July, 2019” in accordance with art. 77 of the Labour Code of Russian
Federation (expiration of term of a labor agreement). (underline added).
12. Therefore, given that Arsenal Tula issued an official document acknowledging that the
contract expired on its term, the Chamber understood that in reality the parties accepted
that the contract expired on its original term of 30 June 2022. The Chamber also remarked
that the potential termination without just cause was only brought by the club at the
present proceedings before FIFA, and said issue does not appear to have been risen in the
earlier correspondence between the parties.
13. Given the information available in TMS, the Chamber understood that any argument as to
the alleged early termination of the contract became irrelevant since the contract clearly
expired on 30 June 2022.
pg. 7
REF. FPSD-7750
14. The foregoing being established, the Chamber turned its attention to the claim of the player
(and adjusted request in his replica), by means of which he requested the payment of his
salaries, as follows:
-
EUR 19,200 for the remaining part of May 2022;
EUR 45,000 for June 2022.
15. After duly analysing the documentation on file, and underlining once again that the
contract expired on 30 June 2022, the Chamber noted that there is no evidence that the
player was remunerated for the claimed period, while also noted that the club had no valid
reason to not pay the player’s salary until the end of the contract. The Chamber thus
established that the player is entitled to the outstanding remuneration of EUR 64,200 net
for the months of May (partial, EUR 19,200) and June 2022 (full, EUR 45,000), as per Article
8.3 of the contract.
16. Nevertheless, the Chamber observed that in accordance with article 8.1 of the contract, the
salaries are required to be paid in Russian rubles (RUB), with the exchange rate being based
on the Central Bank of Russia's official rates. The Chamber observed that, in compliance
with this provision, provided a hyperlink to the relevant official website, which offers a
currency converter tool. Accordingly, the Chamber established that the applicable
exchange rates are as follows:
- EUR 19,200 equivalent on 10 June 2022 to 62.09 RUB per EUR (RUB 1,192,128)
- EUR 22,500 equivalent on 25 June 2022 to 55.96 RUB per EUR (RUB 1,259,100)
- EUR 22,500 equivalent on 10 July 2022 to 62.04 RUB per EUR (RUB 1,395,900)
Total: RUB 3,847,128
17. In view of the above, in strict application of the principle of pacta sunt servanda, the
Chamber established that the player is entitled to the outstanding amount of RUB
3,847,128, as detailed above.
18. In addition and in accordance with the longstanding jurisprudence of the DRC, the
Chamber decided to award 5% interest p.a., as from their respective due dates (i.e., every
next half-month).
19. Furthermore, the Chamber awarded to the player the amount of RUB 35,144 as
reimbursement for air tickets, which the club acknowledged that it deducted from his
remuneration, without valid reason. The Chamber underlined that according to art. 8 par.
5 of the contract, the player was entitled to 4 return flight tickets, economy class, for each
season, for the journey Moscow-Belgrade-Moscow.
20. In continuation, the Chamber referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
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REF. FPSD-7750
21. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the club
a 10-day deadline to cure such breach of contract.
22. Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
23. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the first offense by the club within the last two years, the Chamber decided to
impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
24. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
ii. Compliance with monetary decisions
25. 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.
26. 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
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
27. 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.
28. 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.
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REF. FPSD-7750
29. 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
30. 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.
31. 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.
32. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-7750
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Goran Causic, is partially accepted.
2.
The Respondent, FC Arsenal Tula, must pay to the Claimant the following amounts:
- RUB 3,847,128 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount RUB 1,192,128 of as from 11 June 2022 until the date of effective payment;
- 5% interest p.a. over the amount RUB 1,259,100 of as from 26 June 2022 until the date of effective payment;
- 5% interest p.a. over the amount RUB 1,395,900 of as from 11 July 2022 until the date of effective payment;
- RUB 35,144 as reimbursement for air tickets.
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.
8.
A warning (art. 12 bis of the Regulations) is imposed on the Respondent,
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-7750
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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