Labour Disputes
Texto da decisão
REF FPSD-5034
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Petar
Gluhakovic
BY:
Frans de Weger (Netherlands), Chairperson
Stijn Boeykens (Belgium), member
Elvis Chetty (Seychelles), member
CLAIMANT:
Petar Gluhakovic, Austria
Represented by Kasalo & Raic Law Firm
RESPONDENT:
SC Dinamo 1948 SA, Romania
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REF FPSD-5034
I.
Facts of the case
1.
On 16 November 2021, the Austrian player Petar Gluhakovic (hereinafter: the player) and the
Romanian club SC Dinamo 1948 SA (hereinafter: the club) concluded an employment
agreement (hereinafter: the contract), valid between 12 November 2021 and 30 June 2022,
based on which the player was entitled to receive the following amounts:
•
•
EUR 2,000 as monthly salary in the period between 12 November 2021 and 31
December 2021;
EUR 5,000 as monthly salary in the period between 1 January 2022 and 30 June 2022.
2.
Art. 8.2 lit. c of the contract contains the following clause: ‘This Convention shall cease at the
initiative of the club on 31.12.2021 by written notification communicated to the player until
15.12.2021, with only the payment of due financial rights up to date’.
3.
On 15 December 2021, the club unilaterally terminated the contract with the player, invoking
art. 8.2 lit. c of the contract.
4.
On 21 December 2021, the player put the club in default for the outstanding amount of EUR
32,714.90, corresponding to outstanding remuneration in the amount of EUR 1,682.64 and
compensation for breach of contract in the amount of EUR 31,032.26, providing it a 15 days’
deadline to remedy its default, however to no avail.
5.
On 7 February 2022, the player signed a new contract with the Austrian club Stripfing
Weiden, valid between 7 February and 31 May 2022, based on which he was entitled to the
total amount of EUR 7,722.85 in the overlapping period.
II. Proceedings before FIFA
6.
On 3 February 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
7.
In is claim, the player explains that for the period between 1 November 2021 and 15
December 2021, a total amount of EUR 1,682.64 remained outstanding.
8.
What is more, the player is of the opinion that the club had terminated the contract without
just cause and that as a result, he is entitled to outstanding remuneration and compensation
for breach of contract.
9.
The requests for relief of the player were the following:
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•
•
•
•
•
to be awarded EUR 714.90 as pro rata outstanding salary for period between 12
November and 30 November 2021;
to be awarded EUR 967.74 as pro rata outstanding salary for the period between 1
December and 15 December 2021;
to be awarded EUR 31,032.26 as compensation for breach of contract, corresponding
to the residual value of the contract in the period between 16 December 2021 and 30
June 2022;
to be awarded 5% interest p.a. on the above amounts as from the respective due dates;
The club should be ordered to pay all relevant taxes, state contributions and surcharges,
on top off the abovementioned amounts.
b. Position of the club
10. In its reply, the legal administrator of the club confirmed that as from 28 June 2021, the club
was subjected to Insolvency Proceedings before the Bucharest Tribunal and that on 16
November 2021, the parties entered into an employment relationship.
11. What is more, the legal administrator deemed that it had just cause to terminate the contract
on 15 December 2021, as art. 8.2 lit. c of the contract provides for said option and because
the sporting performance of the player was not good enough to keep the contract in force.
12. In addition, the club argues that the value of the new contract of the player should be
deducted from any compensation granted, and also pointed out that the player effectively
refused the club’s offer to pay the salary for the period between 1 November 2021 and 15
December 2021.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 3 February 2022 and submitted for decision
on 24 March 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.
14. 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 (March 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between an Austrian player and
a Romanian club.
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15. 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 (March 2022 edition), and
considering that the present claim was lodged on 3 February 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
16. 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
17. 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
18. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether or not the unilateral
termination of the contract made by the club on 15 December 2021, was made with or
without just cause, and what the consequences of such termination would be.
19. In this context, the Chamber acknowledged that it its task was to determine whether the club
could have validly terminated the contract with the player based on the contents of art. 8.2
c) of the contract, in combination with the alleged poor sporting performance of the player.
20. The Chamber first of all took note of the club’s argument – disputed by the player –, according
to which it was allowed to unilaterally terminate the contract based on the contents of art.
8.2 c) of the contract, in combination with the player’s unsatisfactory performance. The
aforementioned clause stipulates the following:
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‘This Convention shall cease at the initiative of the club on 31.12.2021 by written notification
communicated to the player until 15.12.2021, with only the payment of due financial rights
up to date’.
21. At this point and before analysing the validity of the aforementioned clause, the Chamber
was eager to emphasise that, in accordance with its well-established jurisprudence, only a
breach or misconduct which is of a certain severity justifies the termination of a contract. In
other words, only when there are objective criteria which do not reasonably permit to expect
the continuation of the employment relationship between the parties, a contract may be
terminated prematurely. Hence, if there are more lenient measures which can be taken in
order to ensure the fulfilment of the contractual duties by the counterparty, such measures
must be taken before terminating an employment contract. A premature termination of an
employment contract can only ever be an ultima ratio measure.
22. Furthermore, the Chamber recalled in line with its long-standing jurisprudence, that a player’s
unsatisfactory performance cannot be a valid reason for an employer to cease paying due
salaries or terminate an employment contract, as this is a purely unilateral and subjective
evaluation by the club.
23. Subsequently, the Chamber referred to its jurisprudence related to potestative clauses, i.e.
clauses dependent on an event which can only be triggered by one of the contractual parties
and upon the latter’s wish. Such potestative clauses can in general not be applied, as they
limit the rights of the contractual counterparty in an excessive manner and lead to an
unjustified disadvantage of the latter.
24. Bearing in mind the foregoing and analysing the particular circumstances of the present case,
the Chamber concluded that clause 8.2 c) of the contract is of a clearly potestative nature, as
it leaves the decision of terminating the employment contract at the sole discretion of the
club. What is more, the club’s assessment the performance of the player as unsatisfactory.
25. In spite of the fact that the aforementioned clause is included in a valid employment contract
voluntarily signed by both parties, the Chamber acknowledges the usual imbalance in the
bargaining power of the employer and of the employee and therefore decided that such
clause has a clearly abusive nature and shall not have any legal effect in the relevant
employment relationship.
26. On account of the aforementioned, the Chamber decided that the club had unlawfully
terminated the employment contract with the player on 15 December 2021 and should be
held liable for such breach.
ii. Consequences
27. 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.
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28. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 2 partial
outstanding salaries under the contract, amounting to Eur 714.90 for the month of November
2021 and EUR 967.74 for the month of December 2021.
29. 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. EUR 1,682.64.
30. 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 their respective due dates until the date of
effective payment.
31. 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.
32. 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.
33. 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.
34. 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 31,032.26 serves as the basis for the determination of the amount
of compensation for breach of contract.
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35. 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.
36. Indeed, the player found employment with the Austrian club Stripfing Weiden, where he
signed a contract valid between 7 February and 31 May 2022. In accordance with the
pertinent employment contract, the player was entitled to approximately EUR 7,722.85
during the duration of the contract. Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of EUR 7,722.85.
37. 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
23,309.41 to the player (i.e. EUR 31,032.26 minus EUR 7,722.85), which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
38. 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 the date of claim, i.e. 3 February 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
39. 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.
40. 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.
41. 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.
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42. 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.
43. 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
44. 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.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Petar Gluhakovic, is partially accepted.
2.
The Respondent, SC Dinamo 1948 SA, has to pay to the Claimant, the following amount:
- EUR 1,682.64 as outstanding remuneration plus 5% interest p.a. until the date of effective
payment as follows:
• on the amount of EUR 714.90 as from 1 December 2021;
• on the amount of EUR 967.74 as from 16 December 2021.
- EUR 23,309.41 as compensation for breach of contract without just cause, plus 5% interest
p.a. as from 3 February 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 the ban shall
be of 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 article 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
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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
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