Labour Disputes
Texto da decisão
REF FPSD-6130
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning
the player MARKO GAJIC
BY:
Frans de Weger (the Netherlands), Chairperson
Peter Lukasek (Slovakia), member
Jerome Perlemuter (France), member
CLAIMANT:
Marko Gajic, Serbia
Represented by SPFN Serbia
RESPONDENT:
U Craiova 1948 SA, Romania
Page 2
REF FPSD-6130
I. Facts of the case
1.
On, 22 July 2021, the Serbian player, Mr MARKO GAJIC (hereinafter: the player or the
Claimant) and the Romanian club U Craiova 1948 SA (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract), valid as from
23 July 2021 until 30 June 2022.
2.
In accordance with clause H.1 and H.4 of the contract, the club undertook to pay to the
player, inter alia, the following remuneration:
-
EUR 10,000 net as sign-on fee, payable within 10 days after the receipt of his working
visa;
EUR 7,000 net as monthly salary, payable by the 15th day of the relevant month.
3.
Under clause P of the contract, the parties agreed to settle any dispute in connection with
the contract “in accordance with the civil law provisions, and by FIFA, only after exhaustion
of all the internal remedies, according to the Statutes and Regulations of the RFF/PFL”.
4.
On 10 December 2021, while playing for the Respondent, the Claimant suffered an injury
and on 11 December 2022, the player traveled to Belgrade in order to treat his injury.
5.
Between 11 December 2021 and 17 December 2021, the player and the team’s manager
exchanged Whatsapp messages concerning the health status of the player and the date
when the player would be back in Craiova.
6.
On 17 December 2021, the club invited the player to a disciplinary hearing that would
take place on 20 December 2021.
7.
Again, on 21 December 2021, the Respondent initiated disciplinary proceedings against
the player and unilaterally terminated the contract on 29 December 2021.
8.
By means of his letter dated 4 January 2022, the Claimant put the Respondent in default,
requesting the latter to withdraw its termination letter.
9.
On 31 March 2022, the Respondent paid the amount of EUR 13,060 to the player,
corresponding to the salary of November 2021 (EUR 7,000) and the partial salary of December
2021 (EUR 6,060).
10. On 31 March 2022, the Respondent paid the amount of EUR 13,060 to the player,
corresponding to the salary of November 2021 (EUR 7,000) and the partial salary of
December 2021 (EUR 6,060)
Page 3
REF FPSD-6130
II. Proceedings before FIFA
a. Position of the Claimant
11. On 23 May 2022, the player lodged a claim against the club before the Football Tribunal,
requesting to be awarded outstanding remuneration and compensation for breach of
contract in the total amount of EUR 52,940, plus 5% interest p.a., broken down by the
Claimant as follows:
Outstanding remuneration: EUR 10,940, plus interest as from 15 January 2022
- EUR 10,000 corresponding to the sign-on fee;
- EUR 940 corresponding to the unpaid part of the salary of December 2021.
Compensation for breach of contract: EUR 42,000, plus interest as from 29 December
2021
- EUR 42,000 corresponding to the residual value of the contract (6 salaries of EUR 7,000
each, i.e. the salaries due between January and June 2022).
12. In his claim, the Claimant explained that the Respondent unlawfully initiated disciplinary
proceedings against him since it was no longer interested in his services and wished to
prematurely terminate the contract.
13. Moreover, the player argued that, during the hearing held on 20 December 2021, the club
informed the player that he was released from his contractual obligations and invited the
player to look for a new club by 3 January 2022.
14. In this context, the player maintained that the club unilaterally terminated the contract
even before any of the disciplinary proceedings passed a decision against him.
15. As for the outstanding moneys due to him, the player held that the club failed to pay the
sign-on fee in the amount of EUR 10,000.
b. Position of the Respondent
16. In its reply, the club held that “the Player was absent without leave and failed to report to
the training sessions and schedule of the team starting with 13 December 2021, according
to the report no. 800, dated 17 December 2021”.
Page 4
REF FPSD-6130
17. In connection with the conversations maintained between the player and the team’s
manager, the club argued the following: “the team manager has no prerogatives in that
respect, that is allowing the player to leave, the team manager only being in a position to
communicate to the club’s management the information and requests from the player.
The team manager could not therefore, and we emphasize that, approve the Player’s
absence from the team’s schedule”.
18. In this context, the club argued that following the player’s absences and in accordance
with arts. 61 and 247 of the Romanian Labour Code, “the Club imposed upon the Player
the disciplinary sanction in the form of the termination of the individual labour contract”.
19. In its request for relief, the club requested the claims of the Claimant be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 23 May 2022 and submitted
for decision on 24 November 2022. Taking into account the wording of art. 34 of the
October 2022 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.
2.
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 October 2022 edition), the
Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a Serbian player and a Romanian club.
3.
However, the DRC noted that the wording of clause P of the contract needed to be analyse
ex officio in order to establish whether FIFA in general and the Football Tribunal in
particular are competent to decide upon the present matter. In doing so, the Chamber
recalled that the said clause is a jurisdiction clause, granting competence to both, the civil
courts of Romania in the first place and to FIFA in the second place to decide upon any
contractual dispute arisen between the parties.
4.
In this respect, the Chamber deemed it important to note that the said clause does not
contain any choice of law and, whereas one could argue that, indirectly, by establishing a
jurisdictional hierarchy, the parties opted for the prevalence of Romanian law over the
Page 5
REF FPSD-6130
FIFA Regulations, this argument is not invoked by the parties and the Respondent failed
to provide any specimen of the eventually applicable national law.
5.
Therefore and insofar as the Respondent is not challenging the jurisdiction of FIFA to hear
the present dispute but only argues that the Romanian Labour Code applies to the case
at hand, which cannot be contemplated as an implicit challenge of FIFA’s jurisdiction, the
DRC determined that the Football Tribunal is competent to hear the present dispute and
that the Regulations on the Status and Transfer of Players are the applicable law to the
dispute at hand.
6.
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 (October 2022 edition)
and considering that the present claim was lodged on 23 May 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
7.
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
8.
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.
i. Main legal discussion and considerations
9.
The foregoing having been established, the Chamber moved to the substance of the
matter and recalled that the Claimant is requesting to be awarded outstanding
remuneration and compensation for breach of contract from the club in the total amount
of EUR 52,960, plus 5% interest p.a.
10. In particular, the Chamber observed that, in his claim, the player argued that the club,
which was in default of payment of the sign-on fee (EUR 10,000) and the salary of
Page 6
REF FPSD-6130
December 2021 (partially), unilaterally terminated the contract without just cause on 29
December 2021 on the grounds of the player’s absences, which were motivated by the
injury suffered by the player on 10 January 2021, while playing for the Respondent club.
11. On its part, continued the Chamber, the club rejected the claim of the Claimant and
argued that it duly terminated the contract on 29 December 2021 in accordance with the
provisions the Romanian Labour Code (arts. 61 and 247 of the said code).
A.) Did the club terminate the contract with just cause on 29 December 2021?
12. Considering that the only material law that can apply to the present dispute are the FIFA
Regulations, the DRC determined that the club terminated the contract without just cause on
29 December 2021, insofar as the club is basing the contractual termination on the player’s
absence since 11 December 2021. This argument, explained the Chamber, cannot be upheld
insofar as the player provided sufficient evidence to demonstrate that he counted with the
club’s consent (see Whatsapp messages exchanged in December 2021) and insofar as the
termination of the contract is an ultima ratio measure.
13. The Chamber deemed it important to stress the bad faith of the club, insofar as the latter
initiated 2 consecutive disciplinary proceedings against the player despite never having put
the player in default urging the player to join the club and resume his obligations. In addition,
the Chamber acknowledged that the player’s absence was consented (as per the
documentation on file) and was motivated by an injury of which the player also provided
evidence. What is more, stressed the DRC, the conduct of the club -intending to be lawfully
terminating a contract only 18 days after the player’s motivated absence in trainings- needs
to be considered as an unacceptable behaviour of the club.
ii. Consequences
14. 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.
15. In this context, the Chamber underscored that, since it remained uncontested that the
Respondent failed to pay the outstanding remuneration requested by the Claimant (sign-on
fee and partial salary of December 2021), by virtue of application of the legal principle pacta
sunt servanda, the Claimant shall be awarded EUR 10,940 as outstanding remuneration.
16. 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 15 January 2022 (as requested
until the date of effective payment.
Page 7
REF FPSD-6130
17. In connection with the interest, although the contract states that the respective salaries
are payable on the 15th day of the relevant month, the Claimant requests to be awarded
interest as from the 15th day of the subsequent month. Thus, and in order not to
contravene the legal principle ne ultra petita, the interest requested is the one that shall
be awarded.
18. 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.
19. 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.
20. 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.
21. 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 EUR 42,000 (i.e. the residual value of the contract) serves as
the basis for the determination of the amount of compensation for breach of contract.
22. 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.
Page 8
REF FPSD-6130
23. Indeed, the player found employment with the Serbian club, RADNIČKI 1923. In accordance
with the pertinent employment contract, the player was entitled to approximately RSD
38,000 per month, which corresponds to EUR 323. Therefore, the Chamber concluded that
the player mitigated his damages in the total amount of EUR 1,615, that is, 5 times EUR
323.
24. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber observed that the contract
termination did not occur due to the aforementioned reason and concluded that,
consequently, no additional compensation can be awarded to the Claimant.
25. 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 amount
of EUR 40,385 to the player (i.e. EUR 42,000 minus EUR 1,615), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
26. 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 of 23 May 2022 until the date of effective payment.
iii. Compliance with monetary decisions
27. 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.
28. 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.
29. 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
Page 9
REF FPSD-6130
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.
30. 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.
31. 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
32. 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.
33. 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.
34. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 10
REF FPSD-6130
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, MARKO GAJIC, is partially accepted.
2.
The Respondent, U Craiova 1948 SA, has to pay to the Claimant, the following amount(s):
- EUR 10,949 as outstanding remuneration plus 5% interest p.a. as from 15 January 2022
until the date of effective payment;
- EUR 40,385 as compensation for breach of contract plus 5% interest p.a. as from 23
May 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, 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.
Page 11
REF FPSD-6130
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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
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
Page 12