Labour Disputes
Texto da decisão
REF. FPSD-11941
Decision of the
Dispute Resolution Chamber
passed on 13 November 2023
regarding an employment-related dispute concerning
the player Djordje Despotović
BY:
Frans de Weger (the Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Tomislav Kasalo (Croatia), member
CLAIMANT:
Djordje Despotović, Serbia
Represented by Go 4 Sports AG
RESPONDENT:
FC Arsenal Tula, Russia
pg. 2
REF. FPSD-11941
I. Facts of the case
1.
On 1 February 2021, the Serbian player Djordje Despotović (hereinafter: Claimant or player)
and the Russian club FC Arsenal Tula (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from 16 February 2021 until
31 December 2024.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
remuneration:
-
net monthly salary of RUB 5,000,000;
net signature bonus / “incentive payment” of RUB 15,000,000, by no later than
1 March 2022;
net signature bonus / “incentive payment” of RUB 10,000,000, by no later than
1 August 2022;
net signature bonus / “incentive payment” of RUB 15,000,000, by no later than
1 March 2023;
net signature bonus / “incentive payment” of RUB 10,000,000, by no later than
1 August 2023;
net signature bonus / “incentive payment” of RUB 15,000,000, by no later than
1 March 2024;
net signature bonus / “incentive payment” of RUB 10,000,000, by no later than
1 August 2024;
net accommodation allowance of RUB 60,000 per month; after payment thereof
occurred, the Claimant was contractually obliged to provide proof of payment of the
rental expenses.
3.
The Contract stipulated that all salary payments shall be remitted in half-monthly
increments.
4.
On 4 May 2023, the Claimant put the Respondent in default and requested payment of
RUB 40,000,000 net to be paid within 15 days.
5.
On 18 May 2023, the Respondent replied to the Claimant, stating that it acknowledged the
debt towards the Claimant, but that the non-payment was due to financial difficulties. The
Respondent further outlined that it would remit the outstanding amounts by 1 June 2023.
6.
On 31 May 2023, the Respondent made a payment of RUB 4,942,433.11.
7.
On 10 June 2023, the Claimant terminated the Contract.
pg. 3
REF. FPSD-11941
II. Proceedings before FIFA
8.
On 25 September 2023, 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
9.
The Claimant requested outstanding remuneration and compensation due to the unlawful
breach of contract purportedly committed by the Respondent.
10. In his claim, the player argued that the Respondent failed to remit several payments,
despite having been put in default. In particular, the following amounts were claimed as
outstanding:
-
Incentive bonus due 1 March 2023, pro-rata unpaid amount of RUB 7,556,572 net;
March 2023 salary, pro-rata unpaid amount RUB 2,937,035 net;
April 2023 salary, pro-rata unpaid amount RUB 5,000,000 net;
May 2023 salary, pro-rata unpaid amount RUB 5,000,000 net;
Accommodation allowances, 5x RUB 60,000 net = RUB 300,000 net.
11. The Claimant argued that he granted a deadline of 15 days, in vain. Thus, the Claimant
stated that he had just cause to terminate the Contract.
12. Therefore, the Claimant’s request for relief was as follows:
-
RUB 20,793,607 net outstanding remuneration;
RUB 130,000,000 net compensation;
Interest as from the respective due dates.
b. Position of the Respondent
13. In its reply, the Respondent briefly outlined that, whilst acknowledging the debt, it had
undergone a change in management, and thus was suffering financial difficulties.
14. The Respondent further described that it had deliberately not paid the Claimant the
accommodation allowance as he had not provided evidence of having incurred expenses
in the concept of rent, thus permitting it to withhold these amounts.
15. Lastly, the Respondent emphasised that the Claimant had never put the former in default
for failure to pay the rental instalments, and the failure to do so contradicted the present
request to include such payments in the compensation sought.
pg. 4
REF. FPSD-11941
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 25 September 2023 and
submitted for decision on 13 November 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.
17. 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 May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Serbian player and a Russian
club.
18. 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 (May 2023 edition), and
considering that the present claim was lodged on 25 September 2023, the May 2023 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
19. 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
20. 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.
pg. 5
REF. FPSD-11941
i. Main legal discussion and considerations
21. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the present dispute concerned the failure
of the Respondent to comply with certain financial obligations under the Contract, and the
lawfulness of the subsequent premature contractual termination by the Claimant.
22. In this context, the Chamber acknowledged that its task was to determine whether the
amounts in dispute had – with a valid justification – remained outstanding, and by
consequence, whether the Claimant had a just cause to terminate the Contract in
accordance with the relevant provisions outlined in the Regulations.
23. Prior to entering the analysis of the matter at stake, the Chamber recalled the arguments
presented by the parties, beginning with the Claimant, according to whom the Contract
was terminated with just cause, as the formal requirements of art. 14bis were met.
24. On the other hand, the Chamber noted that the Respondent acknowledged its failure to
comply with the terms of the Contract, on account of financial difficulties, and merely
contested its liability to have to remit certain rental payments for which the Claimant failed
to corroborate having incurred any expense.
25. Having established the above, the Chamber wished to recall the wording of art. 14bis
par. 1 of the Regulations, in accordance with which a player may lawfully terminate his
employment contract prematurely where he is not paid at least two monthly salaries and
provides proof of having put the club in default of payment, granting a deadline of at least
15 days to comply with its financial obligations.
26. In the case at hand, the Chamber was able to confirm that the Claimant had indeed been
owed in excess of two monthly salaries, as well as having duly put the Respondent in
default of payment of these amounts, granting a 15-day deadline, to no avail.
27. Furthermore, the assertion of the Respondent – i.e. that it was unable to comply with the
terms of the Contract due to financial hardship – remained unsubstantiated. In this respect,
the Chamber wished to point to the wording of art. 13 par. 5 of the Procedural Rules, in
accordance with which parties that wish to rely on certain facts also bear the burden of
proving their veracity.
28. The Chamber lastly wished to address the line of reasoning provided by the Respondent in
the context of the rental payments which the latter claimed it was able to withhold. In this
respect, the Chamber concurred with the fact that the Claimant had not provided evidence
of having incurred any expenses as to his accommodation, contrary to his obligation under
the Contract.
pg. 6
REF. FPSD-11941
29. Consequently, the Chamber opined that the Respondent had the right to withhold the
amounts, and that the monthly payment of RUB 60,000 net would not be included in the
calculation of amounts payable to the Claimant.
30. Based on all the above, in particular that the formal requirements of art. 14bis of the
Regulations had been met in the case at hand, the Chamber concluded that the Claimant
had a just cause to terminate the Contract prematurely.
31. The consequences of such unlawful breach of contract will be outlined below.
ii. Consequences
32. 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.
33. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounted to RUB 20,493,607 net
– i.e. the amount of RUB 20,793,607 net acknowledged by the Respondent, with the
deductions of RUB 300,000 net on account of the uncorroborated accommodation
expense.
34. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e.
RUB 20,493,607 net.
35. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the following dates:
-
On the amount of RUB 7,556,572 net, as from 2 March 2023 until the date of effective
payment;
On the amount of 437,035 net, as from 16 March 2023 until the date of effective
payment;
On the amount of 2,500,000 net, as from 1 April 2023 until the date of effective payment;
On the amount of 2,500,000 net, as from 16 April 2023 until the date of effective
payment;
On the amount of 2,500,000 net, as from 1 May 2023 until the date of effective payment;
On the amount of 2,500,000 net, as from 16 May 2023 until the date of effective
payment;
On the amount of 2,500,000 net, as from 1 June 2023 until the date of effective payment.
pg. 7
REF. FPSD-11941
36. 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.
37. 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.
38. 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.
39. 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 RUB 130,000,000 net (i.e. the residual value of the Contract)
serves as the basis for the determination of the amount of compensation for breach of
contract.
40. 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. In the case at hand, as the Claimant had not found new employment
following the contractual termination, the Chamber concluded that he had not been able
to mitigate his damages.
41. 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 net
pg. 8
REF. FPSD-11941
amount of RUB 130,000,000 to the player, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
42. 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 from 12 June 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
43. 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.
44. 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.
45. 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.
46. 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.
47. 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
48. 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.
pg. 9
REF. FPSD-11941
49. 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.
50. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-11941
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Djordje Despotović, is partially accepted.
2.
The Respondent, FC Arsenal Tula, must pay to the Claimant the following amount(s):
- RUB 20,493,607 net as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount of RUB 7,556,572 net as from 2 March 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of RUB 437,035 net as from 16 March 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of RUB 2,500,000 net as from 1 April 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of RUB 2,500,000 net as from 16 April 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of RUB 2,500,000 net as from 1 May 2023 until the date
of effective payment;
- 5% interest p.a. over the amount of RUB 2,500,000 net as from 16 May 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of RUB 2,500,000 net as from 1 June 2023 until the date
of effective payment.
- RUB 130,000,000 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 12 June 2023 until the date of effective payment.
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.
pg. 11
REF. FPSD-11941
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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-11941
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
pg. 13