DRC Overdue Payables
Texto da decisão
REF. FPSD-11564
Decision of the
Dispute Resolution Chamber
passed on 7 December 2023
regarding an employment-related dispute concerning
the player Jan Doležal
BY:
Alejandro Atilio Taraborelli (Argentina & Italy)
CLAIMANT:
Jan Doležal, Croatia
Represented by Loizos Hadjidemetriou & Associates LLC
RESPONDENT:
Pegeia 2014, Cyprus
Represented by Panayiotis Georgiou
pg. 2
REF. FPSD-11564
I. Facts of the case
1.
On 16 January 2023, the Croatian player, Jan Doležal (hereinafter: the Claimant or the player)
and the Cypriot club, Pegeia 2014 (hereinafter: the Respondent or the club) concluded an
employment contract (hereinafter: the contract) valid as from the date of signature until 31
May 2023.
2.
Clause 1 of the contract reads, inter alia, as follows:
“[…] 1.3 The Player’s gross remuneration shall be as follows:
1.3.1. From 16/01/202 until 30/04/2023, a monthly gross salary of €4,332 (€4,000 net).
All taxes payable to the Tax Department, as per the applicable legislation, shall be
paid by the Club,
1.4. Any other gross payments and bonuses shall be payable as follows:
- €4,000 PROMOTION BONUS
1.5. Any other benefits and/or allowances:
- FREE ACCOMODATION
- ONE FLIGHT TICKET WITH RETURN […]”.
3.
On 13 June 2023, the Claimant put the Respondent in default and requested payment of
EUR 4,000 net setting a 10 days’ time limit in order to remedy the default.
4.
On 16 June 2023, the Respondent send a correspondence stating that the Claimant owed
several amounts for different concepts and requested him to pay EUR 1,655.62 within 7
days.
II. Proceedings before FIFA
5.
On 30 August 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
pg. 3
REF. FPSD-11564
6.
In his claim, the Claimant stated that the fact that the contract does not specify a salary
for May 2023 is contrary to the Cyprus legislation as well as the FIFA regulations and
Swiss law “and hence illegal”. On this point, the Claimant sustained that “the Cyprus
Government has recently implemented a national minimum salary for all full time workers
in Cyprus”.
7.
In view of the foregoing, the Claimant indicated that he is entitled to the salaries of April
and May 2023.
8.
The Claimant also referred to the letter of the Respondent sent on 16 June 2023 and stated
that it was “nothing more than a malicious attempt to avoid its contractual obligations”. In
particular, the Claimant stated that:
“i. From the Respondent’s letter first paragraph, the latter alleges that the Claimant’s
salaries have been fully paid. This is not correct, since the April and May salaries have
not yet been settled.
ii. The Respondent’s allegations that the Claimant left Cyprus without settling the utility
bills and that he caused damage to the apartment provided to him by the Respondent,
is totally absurd. As expressly stated in the CoE, clause 1.5, the Respondent was to
provide the Claimant with free accommodation. It was never agreed that the Claimant
would have any contractual obligations towards the Respondent in respect of any
utility bills. This has been the case throughout the Claimant’s employment by the
Respondent since the Claimant had never paid or was requested to pay any utility
bills.
iii. The Respondent is not entitled to any amounts from the Claimant since the CoE
does not give the right to the Respondent to withhold any amounts from the Claimant’s
salary or pay any expenses on his behalf and then request reimbursement of these
expenses by the Claimant. As expressly stated in art. 232a of the S.C.O., an employer
may withhold part of the salary only if this is allowed by an individua or collective
agreement or custom. Withholding part of an employee’s salary is also prohibited
under the Cyprus law on Protection of Salaries, which also constitutes such
withholding a criminal offence.”
9.
The Claimant requested the following relief:
“i. EUR 4,000, plus legal interest since 01/05/2023, until full settlement.
ii. EUR 4,000 plus legal interest since 01/06/2023, until full settlement.”
b. Position of the Respondent
pg. 4
REF. FPSD-11564
10. In its reply, the Respondent stated that the 2nd National Division of Cyprus consisted “of
two phases: (a) regular season which takes place from September to January; (b) play-off and
play-out phase which takes place from January to 30 April of each respective year. Following the
unprecedent experience of Covid-19 pandemic, CFA strongly recommends the clubs
participating in 2nd National Division to include 30 of May or even June as the expiry date of
their respective employment contracts for to avoid confusing extensions and/or amendments in
case of unforeseeable events (i.e., extension of the sporting season as it did happen on 2020).
Nonetheless, the last salary instalment of the employee’s remuneration is always agreed to be
paid by no later than 30 April, which constitutes the practical end of the sporting season of the
above-mentioned league.”
11. The Respondent further stated that in the player’s default notice, he did not refer to May
salary. Moreover, “as per Clause 1.5 of the Employment Agreement, the Club undertook the
obligation to secure the accommodation of the Player. Nonetheless, the latter had to pay the
utility bills during the term of the agreement. In the Statement of Claim, the Player expressly
confirmed that he failed to pay any such amount (see par. 14.ii & 14.iii) while the Club proved
that it was forced to proceed to the payment of these bills. Hence, these amounts shall be
deducted from the last instalment of the Player’s salary and therefore the latter shall be
considered entitled to receive the total amount of EUR 2.344,38”.
12. In the view of the Respondent the dispute shall be resolved based on the principle of pacta
sunt servanda. As such, the Claimant’s considerations regarding the national law “shall be
rejected as clearly irrelevant and inapplicable”.
13. According to the Respondent:
“the Parties mutually agreed on the pre-contract that the Player’s total remuneration
shall amount to EUR 16.000; they stipulated in the Employment Agreement that the
Player’s total remuneration shall amount to EUR 16.000; the Player expressly
confirmed in the Default Notice that his total remuneration amounts to EUR 16.000.
Nonetheless, in the Statement of Claim at hand, the Player suddenly decided that his
total remuneration shall amount to EUR 20.000!
As such, in addition to the blatant violation of the legal principle of pacta sunt
servanda, the Player also violates the legal principle of venire contra factum
proprium.”
14. The Respondent requested the following relief:
(i)
“Enforce its jurisdiction over the dispute at stake;
(ii)
Reject the Statement of Claim filed on behalf of Mr. Jan Dolezal;
pg. 5
REF. FPSD-11564
(iii)
Order Pegeia 2014 to immediately proceed to the effective payment of the
amount of EUR 2.344,38 with 5% interest p.a. as from 1 May 2023;
(iv)
Order Mr. Jan Dolezal to bear any and all costs incurred as to the present
proceedings.”
c. Rejoinder of the Claimant
15. In his rejoinder, the Claimant rejected all the Respondent’s allegations. In particular, he
stated that (i) the contract does not make any reference to the total amount of the
Claimant’s agreed remuneration; (ii) the Cypriot Football Association never advised second
division clubs to finish the contracts in May; and (iii) in accordance with the Transfer
Matching System (TMS), the season 2022/2023 ended on 31 May 2023. Moreover, as per
art. 18.2 of the Regulations on the Status and Transfer of Players (RSTP), the minimum
length of a contract is until the end of the season which means until 31 May 2023.
16. In the Claimant’s view, as to the application of applicable law, “the Claimant does not
necessarily disagree on this. But he is not requesting the FIFA DRC to decide the present dispute
by applying any Cyprus legislation. What the Claimant is calling the FIFA DRC to note is the fact
that, due to the existence of national law on minimum salary, which the Respondent confirms,
he is entitled to an additional salary for May. Since it is against the law for an employee to work
without any salary at all.”
17. Finally, as to the salary deductions, the Claimant was never asked to pay those amounts
and it was only brought when the player requested his salary and that even if the
deductions exist, the club had no right to deduct the player’s salary.
d. Final comments of the Respondent
18. In its final comments, its position remained unchanged. In particular, the Respondent
stated as to the applicable law, that FIFA Status and regulations apply and in case of lacune
Swiss law applies. Moreover, the club stated that “given that the total Player’s remuneration
amounted to EUR 16.000 while the relevant minimum wage for the same period amounts
between EUR 1.858,50 – EUR 1.975,50, it is evident that the employment relationship was in
complete compliance with the national labor legislation”.
19. The Respondent also mentioned that FIFA has already decided in similar cases and did not
apply national law and awarded the last instalment of remuneration (FPSD-11819 and
FPSD-11820).
20. The request for relief of the Respondent remained unchanged.
pg. 6
REF. FPSD-11564
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single 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 30 August 2023
and submitted for decision on 7 December 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.
22. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the RSTP (May 2023), he is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Croatian player and a Cypriot club.
23. Subsequently, the Single 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 RSTP (May 2023 edition) and considering that the present claim was lodged
on 30 August 2023, the May 2023 edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
24. For sake of clarity, the Single Judge remarked that the Claimant referred in his submissions
that Cypriot law to support his position. In this respect, the Single Judge wished to recall
that when deciding a dispute before the Dispute Resolution Chamber, FIFA’s regulations
prevail over any national law that the parties might have chosen. In this regard, the Single
Judge emphasised that the main objective of the FIFA regulations is to create a standard
set of rules to which all the actors within the football community are subject to and can rely
on. This objective would not be achievable if the Single Judge would have to apply the
national law of a specific party on every dispute brought to it. By the same token, the Single
Judge wished to point out that it is in the interest of football that the decisions are based
on uniform criteria rather than on provisions of national law that may vary considerable
from country to country. Therefore, the Single Judge deemed that it is not appropriate to
apply the principles of a particular national law but rather the Regulations, general
principles of law and, where existing, the Dispute Resolution Chamber well-established
jurisprudence.
b. Burden of proof
25. The Single Judge 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
pg. 7
REF. FPSD-11564
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
26. The competence and the applicable regulations having been established; the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single 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
27. The foregoing having been established; the Single Judge moved to the substance of the
matter and took note of the fact that the parties strongly dispute the payment of certain
financial obligations by the Respondent as per the contract.
28. On the one hand, the Single Judge observed that the Claimant claims the salaries for April
and May 2023 and in support of his position, the Claimant referred to the minimum wage
regulations of national law.
29. In this context, the Single Judge acknowledged that the contract clearly specified that the
last salary would be paid on 30 April 2023. Thus, the Single Judge confirmed that the
Claimant was entitled only to the amounts agreed under the contract, and thus decided
that the claim of the Claimant in this respect had to be rejected since they lacked
contractual basis.
30. Having established the above, the Single Judge turned to the Respondent’s argumentation
regarding certain deductions made on the Claimant’s dues. The Single Judge underlined
that based on the specific terms of the contract, the Respondent agreed to provide
accommodation to the Claimant. Moreover, the Single Judge underscored there was no
provision in the contract allowing the Respondent to deduct any amounts. Furthermore,
the Respondent lacked standing to claim or deduct from the Claimant any amount which
would be due to a third party (i.e., the accommodation provider or the utility company).
Furthermore, the Single Judge stressed that no evidence in this respect was submitted by
the Respondent. Thus, the Single Judge decided that the Claimant is entitled to the amount
unduly deducted by the Respondent.
31. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
pg. 8
REF. FPSD-11564
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely EUR 4,000.
32. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge decided to award the
Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 1 May 2023
until the date of effective payment.
ii. Art. 12 bis of the Regulations
33. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
34. To this end, the Single Judge confirmed that the player put the club in default of payment
of the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
35. Accordingly, the Single Judge confirmed that the club had delayed a due payment without
a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
36. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the second offense by the club within the last two years (i.e., previous one
being under case ref. FPSD-11094), the Single Judge decided to impose a reprimand on the
club in accordance with art. 12bis par. 4 lit. b) of the Regulations.
37. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
38. Finally, taking into account the applicable Regulations, the Single Judge 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.
39. In this regard, the Single 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. The
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REF. FPSD-11564
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
40. Therefore, bearing in mind the above, the Single Judge 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.
41. 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.
42. The Single Judge 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
43. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
44. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
45. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-11564
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jan Doležal, is partially accepted.
2.
The Respondent, Pegeia 2014, must pay to the Claimant the following amount(s):
- EUR 4,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 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.
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.
8.
A Reprimand is imposed on the Respondent (cf. art 12bis of the Regulations on the Status
and Transfer of Players).
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-11564
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
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
pg. 12