Labour Disputes
Texto da decisão
REF 20-00910
Decision of the
Dispute Resolution Chamber (DRC) Judge
passed on 23 September 2020,
regarding an employment-related dispute concerning the player Besir Demiri
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
BESIR DEMIRI, North Macedonia
Represented by Kasalo & Raic
RESPONDENT:
MŜK ŽILINA, Slovakia
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I. FACTS OF THE CASE
1.
On 14 June 2019, the North Macedonian player, Mr Besir Demiri (hereinafter: the player
or Claimant) and the Slovakian club, MŜK Žilina (hereinafter: the club or Respondent)
signed an employment contract (hereinafter: the contract) valid as from 15 June 2019
until 30 June 2022.
2.
According to the contract, the club undertook, inter alia, to pay the player a monthly
salary of EUR 6,000 net, to be paid on the fifteenth day of the following month.
3.
In addition, art. III of the contract stipulated the following:
“1) For the purposes of this article the term "championship match" means match in the
top domestic competition in category of adults (Fortuna liga) or the match in UEFA
competitions (Champions League, Europa League) and the player plays at
least 45 minutes in the match. In case the player plays less than 45 minutes in the match
it is considered as½ of the match.
2) After every 15 championship matches played the club will increase the basic monthly
salary of the pla0yer by 500,- EUR (…) from the following month.
3) After 10 won championship matches that the player plays during the course of a
season the club will pay a one-time bonus to the player in the sum of 5.000,- EUR (…)
4) After 20 won championship matches that the player plays during the course of a
season the club will pay a one-time bonus to the player in the sum of 8.000,- EUR (…).
5) After 30 won championship matches that the player plays during the course of a
season the club will pay a one-time bonus to the player in the sum of 10.000,- EUR
(…).
6) The club will pay the player a sign-on bonus for signing of this contract in the sum
of 25.000,EUR net ( …) within 10 days following the signing of this contract.
7) In case the player is still employed by the club on 30 June 2020 the club will pay the
player a sign-on bonus in the sum of 10.000,- EUR net (ten thousand EUR)
on 15 July 2020.
8) One-time bonuses stipulated in Art. Ill sec. 3 to 5 are payable on the nearest payment
term in line with Art. It sec. 2 in the month following after the criteria for its payment is
fulfilled.”
4.
With regard to the termination of the contractual relationship, art. VII of the contract
read as follows:
“1) The present contract expires upon the expiry of the time for which it was concluded.
2) The contract may be terminated before its expiration by the mutual agreement of the
contractual parties in written form.
(…)
5) The club has a right to unilaterally terminate the present contract in accordance
with§ 40 sec. 4 of the act no. 440/2015 Coll. on Sport.
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6) The player has a right to unilaterally terminate the present contract in accordance
with § 40 sec. 5 of the act no. 440/2015 Coll. on Sport.
7) Unless the applicable laws and regulations of Slovak Republic or regulations of SFZ
state otherwise the termination period in case of termination of the present agreement
is one month and it starts on the first day of the calendar month following the service
of notice of termination to the other contracting party.
8) The notice of termination of the contract shall be executed in written form and it shall
contain the grounds of the termination otherwise it is invalid and null.”
5.
Art. IX sec. 1 of the contract provided the following:
“The contractual parties agree that their mutual rights and obligations shall be exercised
under the regulations of Slovak Football Association, UEFA and FIFA. Determining law
shall be the law of Switzerland. The contractual parties agreed that disputes arising from
the present contract shall be solved mainly by the agreement. In case it is not possible
to reach the agreement the disputes shall fall under jurisdiction of the Dispute Resolution
Chamber of Slovak Football Association, that is governed by their its statute and
regulations. The contractual parties agreed to subjugate the statute and procedural rules
of Dispute Resolution Chamber of Slovak Football Association valid at the time of
beginning of the arbitration proceedings, unless the transitive regulations state
otherwise.”
6.
On 27 March 2020, the club issued a unilateral termination notice of the contract
(hereinafter: the termination notice), indicating that in accordance with art. 40 sec. 5
let. c) of the Act No. 440/2015 Coll. on sport and on amendment of other acts
(hereinafter: the Act on Sport), sports organisations have a right to terminate a contract
based on professional performance in the event that said sports organisations are
disestablished.
7.
On 4 May 2020, the club reiterated that the contract was duly terminated as per art. 40
sec. 5 let. c) of the Act on Sport.
8.
On 26 June 2020, the Claimant lodged a claim against the Respondent in front of FIFA.
9.
In his claim, the Claimant held that the Respondent had terminated the contract without
just cause, and requested the payment of compensation in the amount of
EUR 180,009.50, plus 5% interest as from “the respective date of maturity”, i.e.
27 March 2020, corresponding to the residual value of the contract. In this respect, the
Claimant requested that the amounts must be paid net as per the contract.
10. Furthermore, the Claimant argued that on 9 November 2019, he fulfilled the conditions
set out in art. III. 2 of the contract, namely to have participated in 15 Championship
matches. Consequently, the Claimant held that his monthly salary was increased by
EUR 500, for a total of EUR 6,500 net per month.
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11. In its reply to the claim, the Respondent first contested the competence of FIFA to deal
with the present matter. In particular, the Respondent considered that the Dispute
Resolution Chamber of the Slovak Football Association is competent on the basis of
art. IX sec. 1 of the contract (cf. point I.5. above).
12. The Respondent further specified that the Dispute Resolution Chamber of the Slovak
Football Association is established in accordance with par. 52 et seq. of the Act on Sport
and with art. 59 sec. 4 of the Statutes of the Slovak Football Association, which provides
that “the Dispute Resolution Chamber is composed of chairman, vice-chairman and
equal number of the members representing players and clubs”.
13. With regard to the substance of the case, the Respondent held that it terminated the
contract with just cause, considering that it was in liquidation as defined in par. 190 seq.
1 of the Slovak Commercial Code.
14. Moreover, the Respondent argued that it had the right to unilaterally terminate the
contract in accordance with art. 40 sec. 5 let. c) of the Act on Sport and that the parties
had agreed on this specific point, as per art. VII sec. 5 of the contract (cf. point I.4.
above).
15. The Respondent further noted that, at the time of termination, the football competitions
in Slovakia were suspended and that it was uncertain whether and when they would be
resumed due to the covid-19 pandemic.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as the
judge or DRC judge) analysed whether he was competent to deal with the case at hand.
In this respect, he took note that the present matter was submitted to FIFA on
26 June 2020. Consequently, the June 2020 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.
Subsequently, the judge referred to art. 3 par. 1 of the Procedural Rules and confirmed
that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (September 2020 edition), the Dispute
Resolution Chamber judge would, in principle, be competent to deal with the matter at
stake, which concerns an employment-related dispute with an international dimension
between a North Macedonian player and a Slovakian club.
3.
However, the judge acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the grounds of art. IX sec. 1 of the contract, according to
which:
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“The contractual parties agree that their mutual rights and obligations shall be exercised
under the regulations of Slovak Football Association, UEFA and FIFA. Determining law
shall be the law of Switzerland. The contractual parties agreed that disputes arising from
the present contract shall be solved mainly by the agreement. In case it is not possible
to reach the agreement the disputes shall fall under jurisdiction of the Dispute Resolution
Chamber of Slovak Football Association, that is governed by their its statute and
regulations. The contractual parties agreed to subjugate the statute and procedural rules
of Dispute Resolution Chamber of Slovak Football Association valid at the time of
beginning of the arbitration proceedings, unless the transitive regulations state
otherwise.”
4.
In this regard, the judge 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 he was competent to hear the present matter, the
DRC judge considered that he should, first and foremost, analyse whether the contract
at the basis of the present dispute contained a clear and specific jurisdiction clause.
6.
Having examined the relevant provision, the judge came to the conclusion that art. IX
sec. 1 of the contract constitutes a clear jurisdiction clause in favour of the “Dispute
Resolution Chamber of [the] Slovak Football Association”.
7.
In this respect and regardless of the fact that the relevant employment contract contains
this specific jurisdiction clause, the judge referred to the well established jurisprudence
of the Dispute Resolution Chamber according to which, in general, in employmentrelated disputes between a club and a player that have an international dimension, i.e.
the parties do not belong to the same country, both parties were entitled to refer the
dispute to FIFA’s bodies, unless an independent arbitration tribunal respecting the
principle of equal representation of players and clubs with an independent chairman has
been established at national level.
8.
The DRC judge acknowledged that, in the case at hand, the Respondent failed to provide
the relevant documentation, i.e. in particular the Act on Sport, and thus failed to prove
that an independent arbitration tribunal in compliance with the requirements of the FIFA
regulations has been established in Slovakia. As a consequence, the judge established
that the Respondent’s objection to the competence of FIFA to deal with the present
matter has to be rejected and that the DRC judge 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.
9.
In continuation, the judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26
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par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (September
2020 edition), and considering that the present claim was lodged on 26 June 2020, the
June 2020 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
10. The competence of the DRC judge and the applicable regulations having been
established, the judge entered into the substance of the matter. In this respect, the judge
started by acknowledging all the above-mentioned facts as well as the arguments and
documentation on file. However, the judge emphasised that in the following
considerations, he will refer only to the facts, arguments and documentary evidence
which he considered pertinent for the assessment of the matter at hand.
11. In this respect, the judge acknowledged that the Claimant and the Respondent had
signed an employment contract on 14 June 2019, valid as from 15 June 2019 until
30 June 2022. Moreover, the judge took note that according to the contract, the
Claimant was entitled to receive a monthly salary of EUR 6,000. In this respect, the judge
observed that pursuant to art. III.2 of the contract, the Claimant had the possibility to
increase his salary by EUR 500, following his participation in 15 Championship matches,
thereby entitling him to a monthly salary of EUR 6,500.
12. In continuation, the judge noted that the Respondent terminated the contract on
27 March 2020, based on art. 40 sec. 5 let. c) of the Act on Sport. In this regard, the
judge took note of the Respondent’s position according to which it was in liquidation as
defined in par. 190 seq. 1 of the Slovak Commercial Code. The judge further observed
that the Respondent argued that, at the time of termination, the football competitions
in Slovakia were suspended and that it was uncertain whether and when they would be
resumed due to the covid-19 pandemic.
13. In view of the foregoing, the judge established that the main issue to be analysed in the
present case is whether the contract has been unilaterally and prematurely terminated
or not, if so with or without just cause. Subsequently, the judge shall establish the
financial and/or sporting consequences to be borne by the party found to be in breach
of contract.
14. In this respect, the judge was eager to emphasise that only a breach or misconduct which
is of a certain severity justifies the termination of a contract. In other words, only when
there are objective criteria which do not reasonably permit to expect a continuation of
the employment relationship between the parties, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken, such
measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
15. Furthermore, the judge deemed it appropriate to recall the basic principle of burden of
proof, as stipulated in art. 12 par. 3 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.
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16. In this regard and based on the documentation and information on file, the judge
pointed out that the Claimant contested the reasons invoked in the termination notice
and considered that the Respondent terminated the contract without just cause.
17. At this point, the judge analysed the argumentation of the Respondent, in particular
with regard to its alleged liquidation pursuant to the Slovakian Commercial Code.
18. In this context, the judge recalled that the Respondent considered to have terminated
the contract with just cause, in accordance with art. VII sec. 5 of the contract, which
read as follows:
”5) The club has a right to unilaterally terminate the present contract in accordance
with§ 40 sec. 4 of the act no. 440/2015 Coll. on Sport.”
19. With the above in mind and in accordance with the principle of the burden of proof, the
judge noted that the Respondent failed to provide any documentary evidence with
regard to the content of the Act on Sport and the Slovakian Commercial Code.
20. Consequently, the judge decided that the argumentation of the Respondent could not
be upheld, since it had not been demonstrated that the Respondent was in fact in
liquidation as per the Slovakian Commercial Code and that it had indeed terminated the
contract with just cause in accordance with the Act on Sport.
21. In view of all of the above, and considering the situation at the time of termination, the
DRC judge came to the conclusion that the Respondent had terminated the contract on
27 March 2020, without just cause.
22. Having established that the Respondent is to be held liable for the early termination of
the employment contract, the judge focused its attention on the consequence of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the judge
decided that the Claimant is entitled to receive from the Respondent an amount of
money as compensation for breach of contract in addition to any outstanding payments
on the basis of the relevant employment contract.
23. First of all, the judge reverted to the Claimant’s claim and observed that the Claimant
did not request any outstanding remuneration.
24. In continuation, the judge focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the judge firstly
recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including, in particular,
the remuneration and other benefits due to the player under the existing contract and/or
the new contract, the time remaining on the existing contract up to a maximum of five
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years, and depending on whether the contractual breach falls within the protected
period.
25. In application of the relevant provision, the judge held that it first of all had to clarify as
to whether the pertinent 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 judge established that the
contract did not contain such a provision.
26. As a consequence, the judge 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 judge recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
27. Bearing in mind the foregoing as well as the claim of the Claimant, the judge proceeded
with the calculation of the monies payable to the Claimant under the terms of the
contract until its term, i.e. the months of March, April, May and June 2020 as well as
the seasons 2020/2021 and 2021/2022.
28. Consequently and taking into account that the Claimant had demonstrated that his
salary had been increased to EUR 6,500 as from 9 November 2019 following the
fulfillment of the conditions set out in art. III.2 of the contract, the Chamber concluded
that the amount of EUR 182,000 serves as basis for the determination of the amount of
compensation for breach of contract.
29. In continuation, the judge verified as to whether the Claimant had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been able to reduce his loss of income. According to the constant
practice of the DRC judge, such remuneration under a new employment contract shall
be taken into account in the calculation of the amount of compensation for breach of
contract in connection with the player’s general obligation to mitigate his damages.
30. In this context, the judge observed that the Claimant remained unemployed to this day
and was thus not able to mitigate his damages.
31. With the above being established, the judge recalled the Claimant’s claim and noted
that the latter had deliberately limited the total amount claimed to EUR 180,009.50.
Taking into account the request of the Claimant, as well as the principle of non ultra
petita, the DRC judge considered that he could not award more than the total amount
claimed, i.e. EUR 180,009.50.
32. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay
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the total amount of EUR 180,009.50 to the Claimant, which was considered reasonable
and proportionate as compensation for breach of contract in the case at hand.
33. In addition, the judge observed that the Claimant requested the payment of 5% interest
as from “the respective date of maturity”. However, taking into consideration the
constant practice of the DRC judge in this regard, the judge decided to award the
Claimant interest of 5% on the amount of EUR 180,009.50 as from the date of claim,
i.e. 26 June 2020.
34. The DRC judge concluded his deliberations in the present matter by establishing that
any further request filed by the Claimant is rejected.
35. Furthermore, the judge referred to par. 1 and 2 of art. 24bis of the Regulations, which
stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
36. In this regard, the judge pointed out that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any new
players, either nationally or internationally, up until the due amounts are paid and for
the maximum duration of three entire and consecutive registration periods.
37. Therefore, bearing in mind the above, the judge decided that, in the event that the
Respondent does not pay the amount 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.
38. Finally, the judge 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.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1. The claim of the Claimant, BESIR DEMIRI, is admissible.
2. The claim of the Claimant is partially accepted.
3. The Respondent, MŠK ŽILINA, has to pay to the Claimant the following amount:
- EUR 180,009.50 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 26 June 2020 until the date of effective payment.
4. Any further claims of the Claimant are rejected.
5. The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
6. The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
7. In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the due
amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is 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 the FIFA Disciplinary Committee.
8. The decision is pronounced free of costs.
For the Dispute Resolution Chamber judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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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) 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
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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