Labour Disputes
Texto da decisão
REF FPSD-6986
Decision of the
Dispute Resolution Chamber
passed on 10 November 2022
regarding an employment-related dispute concerning the player DUSAN
CUBRAKOVIC
COMPOSITION:
Lívia Silva Kägi (Brazil), Acting Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stijn Boeykens (Belgium), member
CLAIMANT:
DUSAN CUBRAKOVIC, Serbia
Represented by Sasa VUKOJEVIC
RESPONDENT:
Nam Dinh, Vietnam
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I. Facts of the case
1.
According to the Serbian player, Dusan Cubrakovic (hereinafter: Claimant or player), on 14
June 2022, he received a document named “agreement contract” from the Vietnamese
club, Nam Dinh (hereinafter: club or Respondent) through a club representative, Mr
Nguyen Minh Chau, which the player signed:
2.
According to the “agreement contract”, the contractual relationship was valid for 1 July
2022 until 31 December 2023 and the Respondent undertook to pay to the Claimant a
monthly salary of USD 10,000.
3.
The “agreement contract” further establishes:
- “Art. 7: Nam Dinh club pays rent for players during the time the player works in Nam
Dinh. Nam Dinh Club pay air tickets for the player’s family as required. (Mr. Nguyen
Minh Chau will be responsible for paying these costs, based on the agreement in the
search contract of the two parties)”.
- “Art. 8 The player commits to provide all documents to the Nam Dinh club for the
club to complete the entry procedures to Vietnam such as: Certificate of vaccination,
Criminal record and contract liquidation paper. The deadline for providing the above
documents is 20/6/2022”.
- “Art. 9: Because the player is abroad, so the two parties will sign this memorandum
of understanding, accompanied by recording (video), to prove the truthfulness and
legality of this agreement”.
4.
On 27 June 2022, the Immigration department of Vietnam issued an entry VISA for two
players, (i.e. Fagan Andre Diego and Cubrakovic Dusan). The letter from the Vietnamese
Immigration department states: “In response to the letter number 21061/2022/XT-CV dated
21 June 2022 from CÔNG TY CỔ PHẦN BÓNG ĐÁ XUÂN THIỆN NAM ĐỊNH. Requesting
permission granted to 2 people to enter Viet Nam for the purpose of working […]”.
5.
On 15 July 2022, the player sent a letter to the club requesting it to send the promised
flight tickets for the player to travel to Vietnam within 3 days. In said letter, the player
stated that he complied with the “agreement contract” and provided the club with all
necessary documents. The player further stated that the VISA was issued in the
meantime.
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6.
On 19 July 2022, the player sent a letter to the club again and accused the Respondent of
breach of contract. In this context, the player terminated the “agreement contract” with
the club.
7.
On 20 July 2022, the club replied to the player and stated:
8.
On 21 July 2022, the player sent a letter to the club stating that the club confirmed that it
arranged the VISA and works with Mr. Nguyen Minh Chau. Therefore, the player
requested payment of compensation in the amount of USD 180,000.
9.
On 15 September 2022, the player signed an employment contract with the Serbian club,
GFK Sloboda, valid as from 15 September 2022 until 31 May 2023, including a monthly
salary of Serbian Dinars (RSD) 37,000 (approx. USD 310).
II. Proceedings before FIFA
10. On 8 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
11. In his claim, the Claimant requested payment of USD 120,000 as compensation for breach
of contract, plus 5% p.a..
12. In this context, the player held that the parties had a valid contractual relationship and
that the Respondent is liable to pay compensation for its breach of contract.
13. According to the player, he fulfilled his obligations from the “agreement contract” and
provided the Respondent with his criminal record, certificate of vaccination and the
documents related to his previous contract. The player also took a video of him signing
the “agreement contract”.
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14. The player further held that the club informed him that he had to wait for the flight ticket
until 15 July 2022, but that “everything was fine”. According to the player, the club
“confirmed to him the signature of the contract” and promised that an employment contract
would be signed when he arrives in Vietnam.
15. Moreover, the player held that the club organised the player’s entry VISA to Vietnam.
According to the player the other player also mentioned in the VISA correspondence,
Andre Diego Fagan, is currently under contract with the club.
16. The Claimant held that in the correspondence sent on 20 July 2022, the club
acknowledged that it “used the services of Mr Nguyen Minh Chau” and that it will do so in
the future.
17. On account of the above, the player argued that the club acted in bad faith and gave the
player “false information”, which was jeopardizing the Claimant’s career since he “missed
opportunities” to sign for other clubs.
b. Position of the Respondent
17. The Respondent failed to reply to the claim.
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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 08 August 2022 and submitted
for decision on 10 November 2022. Taking into account the wording of art. 34 of the July
2022 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 July 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 Serbian player
and a Vietnamese club.
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 (July 2022 edition), and
considering that the present claim was lodged on 08 August 2022, the July 2022 edition
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).
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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
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, and took note of the fact that the matter at hand concerns an alleged breach of
contract by the Respondent, which led to the early termination by the Claimant.
7.
In this context, the Chamber acknowledged that its task was to determine as to whether
a binding contract was concluded between the parties and in the affirmative, if the
contract was terminated or without just cause and to decide on the consequences
thereof.
8.
The Respondent, for its part, failed to present its response to the claim of the player, in
spite of having been invited to do so. In this way, the Chamber considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
10. In this framework, the DRC started to assess whether the parties indeed signed a valid
and binding employment contract since the “agreement contract” on file was not signed
by the club.
11. By doing so, the members of the Chamber recalled the jurisprudence of the Football
Tribunal, which indicates that in order for the Chamber to be able to assume that the
Claimant and the Respondent had indeed been bound by an employment contract with
the terms as described by the Claimant, it had to be established, to the comfortable
satisfaction, that said parties had indeed entered into a labour agreement, and, if so,
under which terms.
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12. This jurisprudence further establishes that the DRC must be very careful with accepting
documents other than the employment contract duly signed by the parties, as evidence
for the conclusion of a contract.
13. Bearing in mind the above, the Chamber analysed the concrete elements in the matter at
stake:
a) The Respondent failed to contest the allegations of the Claimant.
b) The Respondent appears to have organised the entry VISA for the player. The
document of the Vietnamese Immigration authorities confirm that the request was
placed by “CÔNG TY CỔ PHẦN BÓNG ĐÁ XUÂN THIỆN NAM ĐỊNH”, which appears to be
the legal name of the club;
c) The Respondent confirmed in its correspondence dated 20 July 2022 to work with
Mr. Nguyen Minh Chau;
d) The “agreement contract” was drafted on the club’s letterhead;
14. The members of the Chamber further pointed out that the “agreement contract” contains
the essentialia negotii, the duration, function and remuneration.
15. Taking into account all the elements above, the DRC concluded that the club indeed gave
its consent to the terms of the “agreement contract”. Furthermore, the Chamber held that
the club started to execute such agreement when it organised the player’s VISA.
16. Consequently, the contract was valid and was terminated at the fault of the club without
just cause.
ii. Consequences
17. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
18. The Chamber observed that no remuneration remained outstanding at the time of
termination.
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19. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria, including
in particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
20. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of
which the parties had beforehand agreed upon an amount of compensation payable by
the contractual parties in the event of breach of contract. In this regard, the Chamber
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
21. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
22. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 180,000 (i.e. July 2022 until December 2023, 18x EUR
10,000) serves as the basis for the determination of the amount of compensation for
breach of contract.
23. In continuation, the Chamber verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
24. Indeed, the player found employment with GFK Sloboda. In accordance with the pertinent
employment contract, the player was entitled to approximately USD 310 per month.
Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of USD 2,790 (9x USD 310).
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25. However, the DRC noted that the Claimant in his request limited his claim to USD 120,000
as compensation for breach of contract.
26. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 120,000 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
27. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 08 August 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
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d. Costs
33. 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.
34. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, DUSAN CUBRAKOVIC, is accepted.
2.
The Respondent, Nam Dinh, has to pay to the Claimant, the following amount(s):
- USD 120,000 as compensation for breach of contract plus 5% interest p.a. as from 08
August 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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