Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 5 December 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Alex andra Góm ez Bruinew oud (Uruguay ), member
S tijn Boey kens (Belgium ), member
S tefano La Porta (Italy ), member
Abu Nay eem S hohag (Banglades h), member
on the claim presented by the club,
MKS Cracov ia, Poland
as Claimant
against the player,
Miros lav Cov ilo, Bosnia and Herzegovina
represented by Mr Kai Ludwig
as Respondent I
and the club,
FC Lugano, Switzerland
represented by Mr Luca Tettamanti
as Respondent II
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 12 August 2014, the player Miroslav Covilo (hereinafter: player or
Respondent I) and the Club (hereinafter: club or Claimant) signed an
employment contract (hereinafter: the contract) valid as from 12 August 2014
until 30 June 2016. According to the contract, “the Player shall receive the
base remuneration in the amount of EUR 7,700 gross for each month during
which this agreement stays in force”.
2.
On 30 April 2015, the Player and the Club concluded Annex no. 1 to the
contract which provided that “this agreement shall be concluded for a
specified period of time: August 12, 2014 till June 30, 2018”. According to
Annex no. 1, the monthly basic remuneration of the Player increased to EUR
10,700 gross and the parties agreed that “The Player shall be entitled to the
additional remuneration in the amount of EUR 24,000 gross which shall be
paid no later than May 8, 2015.”
3.
On 30 June 2016, the Player and the Club concluded Annex no. 2 to the
contract which provided that “this agreement shall be concluded for a
specified period of time: July 1st, 2016 till June 30, 2020”. According to Annex
no. 2, “the Player shall be entitled to the additional remuneration in the
amount of EUR 50,000 gross which shall be paid no later than August 31
2016”.
4.
On 25 July 2018, the Club sent a letter to the Player releasing him from the
“obligations to participate in trainings, camps and league matches of the 1st
senior team of Cracovia from July 25th 2018 to August 6th 2018”.
5.
On 30 July 2018, the Club authorized the Player in writing to “start contract’s
negotiations with FC Lugano and proceed with the medical tests from
30.07.2018”.
6.
On 8 August 2018, the Player sent a termination notice to the Club.
7.
On 9 August 2018, the Player concluded an employment contract with FC
Lugano (hereinafter: Lugano or Respondent II), valid as from said date until 30
June 2020. According to said contract, the Player is entitled to a sign-on fee in
the amount of CHF 100,000 payable on 31 August 2018, as well as an annual
salary of CHF 140,000 for the 18/19 season and CHF 240,000 for the 19/20
season.
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland
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8.
On 27 August 2018, the Single Judge of the PSC passed a decision which
authorized the Swiss Football Association to provisionally register the Player
for Lugano with immediate effect.
9.
On 28 August 2018, the Club concluded an employment contract with the
player, Janusz Gol. The agreement is valid from 29 August 2018 until 30 June
2020 and entitles the player to receive a monthly remuneration of EUR 25,000.
10.
On 14 November 2018, the Club lodged a claim in front of FIFA against the
Player and Lugano. The Club requested that the player and Lugano be held
jointly and severally liable to pay the amount of EUR 664,000 “as
compensation for unilateral termination (breach) of contract” and provided
the following breakdown:
EUR 314,000 as compensation for replacement of the Player by a new player,
i.e. Janusz Gol. This amount represents the difference between the total
basic remuneration due to Mr Gol (EUR 25,000 per month) and the
remuneration due to the Player under the Contract (EUR 10,700 per month)
for the period of 22 months (1 September 2018 until 30 June 2020);
EUR 50,000 as a return of the sign-off remuneration for prolongation of the
contract resulting from Annex no. 2 to the contract;
EUR 300,000 as an equivalent of the transfer fee which would be due to the
Club in the event of a transfer of the Player to another club, calculated as
half of the alleged current market value of the Player in accordance with the
website transfermarkt.ch (note: evidence provided).
11.
Additionally, the Club requests interest of 5% p.a. “on the total amount of
compensation as of the date on which the claim was lodged, until the date of
effective payment”.
12.
According to the Club, since May 2018, the Player has been “conducting illegal
negotiations with Lugano regarding the possibility of conclusion the
employment agreement” without the Club’s consent and knowledge, thereby
breaching art. 18 par. 3 RSTP. The Club claims that, during a phone call
between representatives of the two clubs on 22 July 2018, the Director of
Lugano “confirmed that negotiations between the Player and Lugano were
undergoing since May 2018”.
13.
Furthermore, the Club claims that, despite an offer for increased terms of his
contract, the Player declared that he wanted to leave the Club for free, that
he resigned as team captain and made “defamatory statements” regarding
the Club and its employees in the media.
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland
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14.
The Club explained that it authorized the player to leave until 6 August 2018
in order negotiate terms with Lugano and to undergo medical tests. At the
same time, the club presented to the Player the conditions under which it
would be willing to conclude a transfer with Lugano, including a EUR 50,000
transfer compensation, apologies from the player for his recent behaviour as
well as a waiver for his remuneration for the month of July 2018. However,
according to the club, “the negotiations between Cracovia and Lugano has
not been finalized and the transfer agreement has not been concluded”.
15.
According to the Club, the player did not attend its training sessions on 7 and
8 August 2018 before terminating the contract unilaterally on 8 August 2018.
16.
The Club claims that none of the reasons enumerated in the termination
notice of the Player can be considered as infringements or misconducts of the
Club and in particular as a just cause for termination of the contract. In
particular, the Club stated that it is “not true that Cracovia disclosed the
details of the Contract to public”.
17.
In its reply to the claim, Lugano explained that the clubs started negotiations
for the player’s transfer in July 2018. According to Lugano, after having
exchanged several draft agreements by email, on 31 July 2018 the clubs
reached a full agreement on the terms of the player’s transfer. However, on
the same day, after Lugano had already sent a signed version of the final draft
agreement to the Club, the latter stated that it did not want to proceed with
the transfer anymore.
18.
In continuation, Lugano stated that, on 1 August 2018 and contrary to the
latest email exchange of the previous day, the club’s representative exchanged
text messages with Lugano’s representative regarding the method of payment
of the transfer compensation. On 2 August 2018, Lugano warned the club and
summoned it to implement the reached agreement. Furthermore, according to
Lugano, on 3 August 2018, the club “falsely” informed the Player’s legal
representative that the negotiations between the clubs had not “been
officially finished” and that a deal would only be possible if the Player
renounced to his July salary and apologized for his actions.
19.
Lugano continued by stating that the Club had not provided any conclusive
evidence in support of its allegation that negotiations between Lugano and
the Player had started already in May 2018. Furthermore, Lugano sustained
that the Club’s allegations are contradictory to its conduct during the
negotiations about the Player’s transfer.
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland
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20.
According to Lugano, the clubs had validly concluded a transfer agreement for
the player’s transfer. In this respect, Lugano explained that the Club’s
representative, Mr Baldys, had conducted all negotiations with Lugano and
never made any reference to any authorization that would be needed from
the club’s board to finalize the deal, until his email in the evening of 31 July
2018 when, according to Lugano, the clubs had already agreed on all the
terms of the transfer.
21.
As to the conclusion of the transfer agreement, Lugano referred to Swiss law
and maintained that the Club had sent its written, full and unconditional
acceptance of the offer to Lugano on 31 July 2018 (at 20:31). According to
Lugano, the subsequent withdrawal (at 21:26) of the acceptance made by the
Club has no legal effect under Swiss law.
22.
Furthermore, Lugano stated that the mere lack of signature of a transfer
agreement entails the impossibility for the clubs to comply with the TMS
procedure while it does not entail that a transfer agreement does not exist at
all.
23.
As to the replacement costs included in the compensation claimed by the Club,
Lugano held that the Club did not provide any evidence to support its
allegation that the player Gol covered the same position as the Player.
Moreover, Lugano pointed out that the Club did not pay a transfer fee for the
player Gol as well as that it is “highly unlikely that a replacement earns more
than double than the salary of the player he replaces”. Furthermore, Lugano
argued that the Club saved an amount of EUR 11,900 on match bonuses that
would be payable to the Player.
24.
In continuation, Lugano stated that the sign-on fee of EUR 50,000 was paid to
the player in 2016 in view of the prolongation of the employment contract
and was not linked to any obligation of the Player to remain with the Club.
Moreover, as to the claimed loss of a potential transfer fee, Lugano sustained
that the amount of EUR 300,000 is speculative, especially considering the
Club’s acceptance of Lugano’s offer of EUR 50,000 for the Player’s transfer.
25.
Finally, Lugano held that it did not induce the Player to terminate the
employment contract with the Club. In particular, Lugano stated that the
termination was for reasons that occurred before it was in contact with the
Player. Furthermore, Lugano pointed out that the Club authorized the Player
to travel to Lugano, to negotiate terms and to undergo medical tests. In
addition, unlike in other cases, Lugano entered into a transfer agreement with
the Club and was ready to pay the agreed transfer fee. Moreover, Lugano
argued that it did not enter into negotiations with the Player before
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland
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contacting the Club, and that it concluded an employment contract with the
Player only when it had already fully agreed upon the terms of the transfer
with the Club. Lugano added that, “After Cracovia illegitimately refused to
sign and send back the transfer agreement, FC Lugano contacted the Player
and, following his autonomous and fully justified decision to terminate the
contract with Cracovia and taking also into consideration the behaviour of the
same Cracovia towards it, the latter decided to register the Player as a free
agent”.
26.
In his reply to the claim, the player started by denying several allegations
made by the Club. In particular, the Player stated that his monthly
remuneration under the terminated contract was EUR 9,000 net, with the Club
covering all taxes. Furthermore, the Player denied that he started negotiating
with Lugano in May 2018. In continuation, the Player admitted having denied
certain false allegations of the club by means of a statement on Facebook on
21 July 2018, but contested having defamed the club and held that no
evidence was provided in support of that allegation by the club.
27.
The Player continued to explain that the club failed to comply with its
obligations under the contract, in particular when it failed to pay him the
taxes promised, when his family was not assisted in obtaining a residence
permit, when he was obliged to play despite an injury which was not properly
treated by the club and by repeatedly promising him a transfer. In view of the
elements, the Player held that “any basis of trust was completely destroyed”,
especially after having been informed by Lugano that an agreement on the
transfer was reached by the club, and that he could not be expected to return
to the club on 7 August 2018.
28.
Furthermore, the Player explained that his legal representative sent several
emails to the club on 2, 4 and 5 August 2018, opposing to the presentation of
the facts made by the club, offering to waive half of his July salary in order to
find an amicable solution in order to finalize his transfer and reserving his
right to terminate the contract if the blackmailing by the Club continued.
29.
As a consequence of the foregoing and with reference to DRC jurisprudence as
well as Swiss law, the Player held that he had a just cause to terminate the
employment contract on 8 August 2018. The Player added that the club
endangered his health and violated his personality rights by publicly harassing
him. Moreover, the player argued that the club contradicted its own
behaviour by creating the legitimate expectation towards the Player and
Lugano that a transfer would be concluded.
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland
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30.
As to the amount of compensation claimed, the player stated that the club
should have replaced the player in any event if the latter had agreed to the
conditions for his transfer to Lugano and, therefore, the club did not suffer
any damage when it contracted a new player.
31.
Finally, the Player requested the claim to be rejected or eventually to partially
uphold it and to order the Respondents to pay the Club compensation in the
amount of EUR 50,000 without interest.
32.
In its replica, the club insisted that the transfer agreement was never signed by
all parties and, consequently, no valid transfer was concluded. Furthermore,
with regard to the negotiations between Lugano and the Player that started
in May 2018, the Club submitted audio recordings of the phone conversation
between representatives of the clubs. In this respect, the Club argued that
recordings of phone conversations are permitted under Polish law.
33.
With regard to the alleged tax issues raised by the Player, the Club pointed
out that the contract clearly provides for a gross salary and that the Player has
always been responsible for the payment of taxes during the employment
relationship with the Club. Furthermore, the Club stated that it has assisted
the Player in obtaining residence permits for his family and provided
documentation in this regard. In addition, the Club stated that it has provided
the Player with the necessary medical care after he sustained a head injury in
February 2017 and that it covered all related costs.
34.
Finally, the club reiterated its position as well as its request for relief.
35.
In its final comments, Lugano referred to the audio recording submitted by
the club and held that such evidence is inadmissible under Swiss law,
considering the lack of consent of Mr Manna for the recording and for the
submission in the present proceedings, and only shows the bad faith of the
club. Moreover, Lugano argued that the content of the phone recording is
irrelevant considering that, even if Lugano was in contact with the Player in
May 2018 which it denies, the club subsequently continued to carry out
negotiations with Lugano, without making any complaint about the alleged
negotiations with the Player, and authorized the player to do the same, which
eventually resulted in the agreement on the player’s transfer.
36.
Finally, Lugano reiterated its position and requested the claim to be rejected.
37.
In his final comments, the player argued that a valid transfer agreement had
been concluded between the clubs based on the principle of offer and
acceptance under Swiss law.
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland
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38.
Furthermore, the Player referred to the audio recordings as being illegal, and
stated that nothing what was said during the relevant phone call suggests
that contract negotiations had taken place between Lugano and the Player in
May 2018.
39.
In continuation, the player stated that the club had only assisted him and his
family in obtaining tourist visas rather than residence permits, and maintained
that he had forwarded the bills for medical treatment to the club but
ultimately had to pay them himself.
40.
Finally, the Player referred to the arguments put forward in his reply to the
claim and reiterated his request for the claim to be dismissed or, alternatively,
only partially upheld.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 matter
at hand. In this respect, it took note that the present matter was submitted to
FIFA on 14 December 2018. Consequently, the Rules governing the procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (edition
2018; hereinafter: Procedural Rules) are applicable to the matter at hand (cf.
art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par.
2 in combination with art. 22 lit. b of the Regulations on the Status and
Transfer of Players (edition October 2019) the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Polish club, a
Bosnian player and a Swiss club.
3.
Furthermore, the DRC 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 par. 2 of the Regulations on the Status and Transfer of
Players (edition October 2019), and considering that the present claim was
lodged on 14 December 2018, the June 2018 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland
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4.
The competence of the Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect,
the members of the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation submitted
by the parties. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary
evidence, which he considered pertinent for the assessment of the matter at
hand.
5.
Having said that, the members of the Chamber acknowledged that, on 12
August 2014, the Claimant and the Respondent signed an employment
contract, valid as from 12 August 2014 until 30 June 2016.
6.
Furthermore, the DRC noted that on 25 July 2018, the player was authorized
by the Claimant to travel to Lugano in order to negotiate terms of a potential
employment contract and to undergo a medical examination. According to
the Claimant, the negotiations between the clubs about the possible transfer
of the player were not finalized and a transfer agreement was not concluded.
Consequently, the Claimant held that the player terminated the contract on 8
August 2018 without just cause.
7.
Subsequently, the Chamber took notice of the argumentation of Lugano and
the player, according to which the clubs reached an agreement on the terms
of the player’s transfer through an exchange of emails on 31 July 2018, by
means of which the Claimant accepted the offer made by Lugano. Lugano
argued that the subsequent withdrawal of the acceptance by the Claimant has
no legal effect.
8.
In light of the above, the DRC observed that the pivotal issue in this dispute,
considering the diverging position of the Claimant and the two Respondents,
was to determine as to whether the clubs had indeed validly agreed upon the
terms of the player’s transfer and the second issue is whether the player had a
just cause to terminate the contract with the Claimant on 8 August 2018.
9.
With the above in mind, the Chamber proceeded with an analysis of the
circumstances surrounding the present matter, the parties’ arguments as well
the documentation on file, bearing in mind art. 12 par. 3 of the Procedural
Rules, in accordance with which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland
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10.
Having stated the above, the DRC started to examine the circumstances of the
transfer negotiations between the Claimant and Respondent II and wished to
emphasise that it appears that the Claimant had accepted the final terms
offered by Respondent II, after having requested amendments as to the
payment dates of the transfer fee.
11.
In this respect, the Chamber turned its attention to the Claimant’s email to
Lugano on 31 July 2018, which inter alia reads as follows: “we are able to
accept following but under condition that we do not make any amendments
to final version of the transfer agreement that we sent (except payment
dates)”. In the DRC’s opinion this email can be considered as the acceptance of
Lugano’s offer. Subsequently, the Claimant changed its mind, but only after
the Respondent II proceeded to send the final transfer agreement.
12.
Moreover, the DRC turned its attention to the player’s position and noted that
he was informed by Lugano that the clubs had agreed on the terms of the
transfer. On 3 August 2018, the Claimant requested further conditions for the
transfer to go through, expecting the player to apologize publicly for his
behaviour as well as to waive his July salary. The members of the Chamber
noted that the player then sent several emails to the club trying to settle the
matter at hand in an amicable way, until he finally decided to terminate the
contract.
13.
Considering all documents on file, the Chamber concluded that the clubs had
indeed agreed on the terms of the transfer, and consequently, the player
could rely in good faith that the transfer agreement between the Claimant
and the Respondent II was concluded on 31 July 2018 as a result of which he
terminated the contract with just cause on 8 August 2018.
14.
Therefore, the Chamber concluded that the Claimant failed to submit
corroborating evidence that the transfer agreement between the clubs was
not yet finalized and subsequently, the Claimant’s arguments have to be
rejected.
15.
All the above led the DRC to conclude that the claim of the Claimant has to be
rejected.
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland Page 10 of 11
III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, MKS Cracovia, is rejected.
*****
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 related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). 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 (cf. point 4 of
the directives).
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
Club MKS Cracovia, Poland / Player Miroslav Covilo, Bosnia and Herzegovina / Club FC Lugano, Switzerland Page 11 of 11