Labour Disputes
Texto da decisão
REF FPSD-4850
Decision of the Single Judge of
the DRC
passed on 6 April 2022
regarding an employment-related dispute concerning the player Marek
Duben
BY:
Mr Tomislav Kasalo (Croatia), Single Judge of the DRC
CLAIMANT:
Marek Duben, Slovakia
Represented by Svetozar Pavlovic
RESPONDENT:
FC Mauerwerk, Austria
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REF FPSD-4850
I.
Facts of the case
1.
On 26 June 2021, the Slovakian player Marek Duben (hereinafter: player or Claimant) and
the Austrian club, FC Mauerwerk (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from 1 June 2021 until 31 May 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of EUR 1,440 (payable 14 times during the year) as well as a bonus of EUR 250 for every
victory of the team.
3.
On 21 December 2021, the Claimant put the Respondent in default and requested payment
of five monthly salaries as well as the bonus payments (note: no amount defined) within 15
days.
4.
On 6 January 2022, the Claimant put the Respondent in default and requested payment of
five monthly salaries as well as the bonus payments (note: no amount defined) until 10
January 2022, 10:00 CET.
5.
On 10 January 2022, the player terminated the contract with the club due to the outstanding
remuneration.
6.
According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed up to date.
II. Proceedings before FIFA
7.
On 18 January 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
8.
In this claim, the Claimant requested payment of the following monies:
- EUR 17,280 corresponding to the residual value of the contract, plus 5% interest p.a.
“since non-compliance”;
- EUR 500 corresponding to two victory bonuses plus 5% interest p.a. “since noncompliance”;
- EUR 4,320 as “additional compensation”;
- EUR 2,000 as legal fees.
9.
The player held that he had just cause to terminate the contract on 10 January 2022, after
having put the club in default before.
10. The player maintained that he only received the salaries for the months of June and July 2021.
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b. Position of the Respondent
11. The Respondent failed to reply to the claim within the time-limit provided by FIFA.
III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
12. 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 18 January 2022 and
submitted for decision on 6 April 2022. Taking into account the wording of art. 34 of the
October 2021 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.
13. 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 Regulations on the Status and Transfer of Players (August 2021 edition),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Slovakian player and an Austrian club.
14. 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 Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 18 January 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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 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 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
16. Its competence and the applicable regulations having been established, the Single Judge
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 Single Judge 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
17. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the Claimant’s argumentation that he terminated the contract with
just cause on 10 January 2022, after more than 5 monthly salaries remained outstanding
despite a default notice.
18. 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.
19. 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.
20. In this context, the Single Judge acknowledged that the Claimant’s allegations remained
uncontested. Taking into account art. 14bis of the Regulations and in view of the outstanding
remuneration of more than 5 monthly salaries as well as the default notice sent, the Single
Judge concluded that the Claimant had just cause to terminate the contract with the
Respondent on 10 January 2022.
ii. Consequences
21. Having stated the above, the members of the Single Judge turned his attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
22. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 5 monthly salaries
(August until December 2021) as well a bonus payment in the amount of EUR 500 under the
contract, amounting to EUR 7,200.
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23. In accordance with the above-mentioned considerations, the Single Judge decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is liable
to pay to the Claimant outstanding remuneration in the total amount of EUR 7,700, plus 5%
interest as of the respective due dates.
24. Having stated the above, the Single 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 Single
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 years, and
depending on whether the contractual breach falls within the protected period.
25. In application of the relevant provision, the Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
26. As a consequence, the members of the Single 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 Single 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 player, the Single Judge 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 Single Judge
concluded that the amount of EUR 10,080 (i.e. 7x EUR 1,440) serves as the basis for the
determination of the amount of compensation for breach of contract.
28. In continuation, the Single 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.
29. In this respect, the Single Judge noted that the Claimant had not found new employment
and therefore was not able to mitigate his damages.
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30. Consequently, on account of the above-mentioned considerations, the Single Judge decided
that the Respondent must pay the amount of EUR 10,080 as compensation for breach of
contract to the Claimant, which is considered by the Single Judge to be a fair and reasonable
amount.
31. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 10 January 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
32. 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.
33. 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 overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
34. 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.
35. 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.
36. 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.
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d. Costs
37. 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 Chamber decided that no procedural costs were to
be imposed on the parties.
38. 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.
39. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Single Judge of the DRC
1.
The claim of the Claimant, Marek Duben, is partially accepted.
2.
The Respondent, FC Mauerwerk, has to pay to the Claimant, the following amount(s):
- EUR 1,440 as outstanding remuneration plus 5% interest p.a. as from 1 September 2021
until the date of effective payment;
- EUR 1,440 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021 until
the date of effective payment;
- EUR 1,440 as outstanding remuneration plus 5% interest p.a. as from 1 November 2021
until the date of effective payment;
- EUR 1,440 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021
until the date of effective payment;
- EUR 1,440 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022 until
the date of effective payment;
- EUR 500 as outstanding remuneration plus 5% interest p.a. as from 10 January 2022 until
the date of effective payment;
- EUR 10,080 as compensation for breach of contract plus 5% interest p.a. as from 10 January
2022 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 (August 2021
edition), 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. Respondent to FIFA (cf. note relating to the payment
of the procedural costs below).
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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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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