Labour Disputes
Texto da decisão
REF 20-01358
Decision of the
Dispute Resolution Chamber Judge
passed on 10 March 2021
regarding an employment-related dispute concerning the player Hristiyan Denkovski
BY:
Pavel Pivovarov (Russia), DRC Judge
CLAIMANT:
Hristiyan Denkovski, Bulgaria
Represented by Deep Ray
RESPONDENT:
OFK Grbalj, Montenegro
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I.
FACTS OF THE CASE
1.
On 13 February 2020, the Bulgarian player, Hristiyan Denkovski (hereinafter: Player or
Claimant), and the Montenegrin club, OFK Grbalj (hereinafter: Respondent or Club) signed
an employment contract valid as from date of signature until 13 February 2021.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia a monthly net salary of EUR 300
3.
On the same date, and according to the Claimant’s allegations, the parties entered into a
supplementary agreement (hereinafter “the Second Contract”), according to which, a onetime signing bonus of EUR 1,000, plus an additional amount of EUR 700 per month shall
be paid by the Respondent to the Claimant.
4.
By correspondence dated 15 August 2020, the Claimant put the Respondent in default of
payment of the outstanding salaries corresponding to five months as per the employment
contract and the Second Contract, granting a 15 days’ deadline to remedy the default, to
no avail.
5.
On 31 August 2020, the Player sent a notice to the Respondent terminating the
employment relationship, claiming just cause.
II.
PROCEEDINGS BEFORE FIFA
6.
On 21 September 2020, the Claimant filed the claim at hand before FIFA.
7.
On 22 September 2020, FIFA Administration informed via the email addresses available for
the Respondent on the Transfer Matching System (TMS) of the claim filed against it, giving
it until 12 October 2020 to file an answer to the claim.
8.
On 10 December 2020, FIFA Administration closed the investigation of the matter with no
reply on file from the Respondent.
9.
On 15 December 2020, the Respondent sent a letter to FIFA providing its position.
10.
A brief summary of the position of the parties is detailed in continuation.
a.
11.
The claim of the Claimant
According to the Claimant, the Respondent had failed to pay the Claimant’s salary for 5
months.
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12.
Regarding the Second Contract, the Claimant submits that he was never given a copy. In
support of his allegations the Claimant provided a document which stated the following:
13.
Furthermore, the Claimant argued that the Respondent had the obligation to obtain a work
permit, so that he could legally stay in the country and continue to perform his obligations.
However, the Claimant argued that the Club failed to take any steps in that regard.
14.
According to the Claimant, he became aware that the Club had already started pre-season
training, and despite his Employment Contract being valid until the end of the 2020/2021
football season, the Player was not asked to join the pre-season. It became evident to the
Claimant, in his opiniuon, that the Club was no longer interested in his services, and had
no intention of providing him with a work permit.
15.
In the default notice dated 15 August 2020, the Player explained that the Club was
informed that five monthly salaries were due.
16.
The Claimant submits that the fact that the severance of the employment relationship falls
during the Protected Period is a gross aggravating circumstance.
17.
The requests for relief of the Claimant, were the following:
a. “The Respondent has failed to fulfil its contractual obligations towards the Player.
b. The Claimant terminated the Employment Contract with just cause on 31 August
2020.
c. The Respondent is obligated to pay the Claimant outstanding amounts as follows:
i. EUR 1,000 plus 5% p.a. from 1 April 2020 until the date of effective payment.
ii. EUR 1,000 plus 5% p.a. from 1 May 2020 until the date of effective payment.
iii. EUR 1,000 plus 5% p.a. from 1 June 2020 until the date of effective payment.
iv. EUR 1,000 plus 5% p.a. from 1 July 2020 until the date of effective payment.
v. EUR 1,000 plus 5% p.a. from 1 August 2020 until the date of effective
payment.
vi. EUR 1,000 plus 5% p.a. from 1 September 2020 until the date of effective
payment.
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d. The Respondent has to pay the Claimant compensation for breach of contract in the
amount of EUR 10,000 plus interest of 5% p.a. from 1 September 2020, until the date
of effective payment.
e. A ban on registering new players, either nationally or internationally, for two
registration periods, following the notification of the FIFA decision, shall be imposed
on the Respondent”.
b.
Position of the Respondent
18.
Despite being invited by FIFA to provide an answer to the claim on 22 September 2020, the
Respondent failed to submit its position within the deadline given.
19.
Nevertheless, on 15 December 2020, the Respondent filed its position with FIFA.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
20.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as 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 presented to FIFA on 23 September 2020 and
submitted for decision on 10 March 2021. Taking into account the wording of art. 21 of
the February 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
21.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition February 2021), he is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between a Bulgarian player and a Montenegrin club.
22.
Subsequently, the DRC 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 par.
1 and 2 of the Regulations on the Status and Transfer of Player (edition February 2021),
and considering that the present claim was lodged on 21 September 2020, the August
2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b.
23.
Burden of proof
The DRC Judge recalled 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. Likewise, the DRC Judge stressed
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the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
24.
In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
25.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
i. Main legal discussion and considerations
26.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the player filed the claim at hand requesting
outstanding remuneration and compensation for breach of contract.
27.
The DRC Judge was observant of the fact that, after having been granted a deadline until
12 October 2020 to file its position, and after the FIFA Administration closed the
investigation-phase of the matter on 10 December 2020, the Respondent filed on 15
December 2020 a late submission presenting its position.
28.
Bearing in mind the foregoing, the DRC Judge deemed it necessary to assess the
admissibility of the correspondence filed by the Respondent on 15 December 2020.
29.
The Respondent fails to present any argument as to why the submission dated 15 December
2020 should be taken into consideration. In this regard, the DRC Judge referred to art. 9
par. 4 of the Procedural Rules, according to which “parties shall not be authorised to
supplement or amend their requests or their arguments, to produce new exhibits or to
specify further evidence on which they intend to rely, after notification of the closure of the
investigation”.
30.
On account of the foregoing, the DRC Judge concluded that the correspondence of the
Respondent dated 15 December 2020 was filed late and thus is inadmissible.
31.
Furthermore, as a consequence of the aforementioned consideration, the DRC Judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a
decision upon the basis of the documents on file, in other words, upon the statements and
documents presented by the Claimant.
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32.
In continuation, the DRC Judge reverted to the player’s claim, according to which the
Claimant alleged the existence of two different contracts between the Claimant and the
Respondent, and at the time of the termination of the employment relationship, his
salaries for the months of March to August 2020 were yet to be paid by the Respondent.
33.
The DRC Judge further observed that on 15 August 2020, the player did put the club in
default granting a 15 days’ deadline to remedy the default, to no avail.
34.
In this regard, the DRC Judge noted that in support of his allegations the Claimant provides
a picture of a document under the title “salary payroll for the month of February”, which
enlists certain names, including the Claimant, and their alleged respective salaries.
35.
In this respect, the DRC Judge considered carefully the evidence provided by the player in
support of the alleged existence of the Second Contract and came to the conclusion that
the Claimant had not met his burden of proof regarding the execution of the Second
Contract.
36.
Based on the above, the DRC Judge determined that he would only take into consideration
the employment contract duly signed by both parties, which had been provided by the
Claimant.
37.
In this regard, the DRC Judge noted that it stands undisputed that the club had failed to
pay the player his remuneration for the months of June, July and August 2020, in the total
amount of EUR 900, as per the salary agreed by the parties in the employment contract,
and the amounts acknowledged as received by the Claimant.
38.
Therefore, when the employment relationship was terminated by the Claimant, more than
2 monthly salaries were outstanding. Hence, the DRC Judge determined that the Claimant
had just cause to terminate the employment relationship on the basis of art. 14bis of the
Regulations.
ii. Consequences
39.
Having stated the above, the DRC Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
40.
Hence, the DRC Judge decided on the basis of the principle pacta sund servanda that the
Respondent shall pay to the Claimant the outstanding remuneration at the moment of
termination, consisting of EUR 900.
41.
Having stated the above, the DRC Judge 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 DRC
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
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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.
42.
In application of the relevant provision, the DRC Judge held that he 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 DRC Judge
established that no such compensation clause was included in the contract at the basis of
the matter at stake.
43.
As a consequence, the DRC Judge 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.
44.
The DRC Judge then proceeded with the calculation of the monies payable to
the Claimant under the terms of the employment contract as from its date of termination
and at the salary enjoyed at the time of termination i.e. 31 August 2020 until 13 February
2021, and concluded that the player would have received in total EUR 1,650.
45.
In continuation, the DRC Judge 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.
46.
In the matter at hand the DRC Judge confirmed that the Claimant had signed with the
Italian club Real Agro Aversa with amateur status. Therefore, the DRC Judge confirmed that
no mitigation is to be considered.
47.
Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the DRC Judge decided that the club would be liable to pay EUR 1,650
to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
48.
In addition, taking into account the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber, the DRC Judge decided that the Respondent must pay to
the Claimant interest of 5% p.a. on outstanding remuneration as from due dates until the
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date of effective payment; and on the compensation for breach of contract, as from the
date of termination until the date of effective payment.
iii. Compliance with monetary decisions
49.
Finally, taking into account the consideration under numbers 40 and 44 above, the DRC
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.
50.
In this regard, the DRC Judge 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 and for the
maximum duration of three entire and consecutive registration periods.
51.
Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
52.
The DRC Judge recalled that the above-mentioned bans will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 3 of the Regulations.
53.
Lastly, the DRC Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
d.
Costs
54.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
55.
Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV. DECISION OF THE DRC JUDGE
1. The claim of the Claimant, Hristiyan Denkovski, is partially accepted.
2. The Respondent, OFK Grbalj, has to pay to the Claimant an amount of EUR 900 as
outstanding remuneration plus 5% interest p.a. as follows:
a. on EUR 300 from 1 July 2020 until the date of effective payment.
b. on EUR 300 from 1 August 2020 until the date of effective payment
c. on EUR 300 from 1 September 2020 until the date of effective payment
3. The Respondent, OFK Grbalj, has to pay to the Claimant an amount of EUR 1,650 as
compensation for breach of contract plus 5% interest p.a. as from 1 September 2020.
4. Any further claims of the Claimant are rejected.
5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the
email addresses as indicated on the cover letter of the present decision,
of the relevant bank account to which the Respondent must pay the amounts mentioned
under points 2 & 3 above.
6. The Respondent shall provide evidence of payment of the due amounts in accordance with
point 2 & 3 above to FIFA to the e-mail address [email protected], duly translated, if need
be, into one of the official FIFA languages (English, French, German, Spanish).
7. In the event that the amounts due plus interest in accordance with points 2 & 3 above are not
paid by the Respondent within 45 days as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from registering any
new players, either nationally or internationally, up until the due amounts are paid and for the
maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
8. The ban mentioned in point 7 above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
9. In the event that the aforementioned sums plus interest are still not paid by the end of the ban
of three entire and consecutive registration periods, the present matter shall be submitted,
upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
For the DRC 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:
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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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