Labour Disputes
Texto da decisão
REF FPSD-3470
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Armin
Hodzic
BY:
Frans de Weger (the Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Stefano Sartori (Italy), member
CLAIMANT:
Armin Hodzic, Bosnia and Herzegovina
Represented by Mr Dino Osmanovic
RESPONDENT:
A.D. Alcorcón SAD, Spain
Represented by Laffer Abogados
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I.
Facts of the case
1.
On 20 January 2020, the Bosnian player, Armin Hodzic (hereinafter: the player or the
Claimant) and the Spanish club, A.D. Alcorcón SAD (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: the contract), valid as from 1 July 2020 until
30 June 2024, i.e. for the seasons 2020/2021, 2021/2022, 2022/2023 and 2023/2024.
2.
In accordance with clause 6 of the contract, the club undertook to pay to the player, inter
alia, the following fixed remuneration:
- During the season 2020/2021: EUR 100,000 gross divided into 14 instalments of EUR 7,143
gross each (2 extra payments included).
- During the season 2021/2022: EUR 120,000 gross divided into 14 instalments of EUR 8,571
gross each (2 extra payments included).
- During the season 2022/2023: EUR 140,000 gross divided into 14 instalments of EUR 10,000
gross each (2 extra payments included).
- During the season 2023/2024: EUR 200,000 gross divided into 14 instalments of EUR 14,286
gross each (2 extra payments included).
3.
Clause 23 of the contract reads as follows: “LAW AND JURISDICTION: 23.1 For the
interpretation and/or execution of the present contract, the parties agree to submit any
dispute arisen in connection therewith to the Spanish Labour Courts, waiving the parties their
right to seek for redress before any other forum, being Spanish Law the applicable law” (free
translation from the original text in Spanish).
4.
On 2 October 2020, the Claimant, the Respondent and the Portuguese club, FC Estoril Praia
(hereinafter: Estoril), agreed to conclude an agreement over the loan transfer of the player
from the club of the Respondent to the Estoril (hereinafter: the loan agreement), as from 6
October 2020 until 30 June 2021.
5.
The player explained that, on 27 December 2020, when travelling back to Bosnia and
Herzegovina, he was arrested by the Austrian police at the passport inspection and was
“charged with criminal offences of sojourning without the title of residence, work permit and
for non-permitted entry and travel (through/inside EU), and was ordered to pay high fine [EUR
605] with threat of imprisonment while being forced to leave the territory of the EU holding
no proof of being eligible to live and work there”. In this regard, the Claimant states that he
reported the said incident to both, the Respondent and Estoril, but “both clubs totally ignored
his calls and remained silent”.
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6.
On 22 May 2021, the player was again arrested, this time by the German police at the
Frankfurt Airport when traveling through Germany and was charged, again, “with a criminal
offence of sojourning without the title of residence, work permit and for nonpermitted entry
and travel (through/inside EU), was ordered to pay high fine with threat of imprisonment and
was forced to leave the EU”.
7.
Subsequently, the Respondent sent a temporary contract to the Claimant (hereinafter: the
temporary contract) dated 31 May 2021, referring to the application for registration of the
temporary contract with the State Public Service of Employment and Ministry of Labour and
Social Security in Spain, indicating the transfer of the player from the Claimant to a third club,
Cultural y Deportiva Leonesa S.A.D. (hereinafter: CD Leonesa) competing in the third tier of
the Spanish football league; transfer with which the player did not agree.
8.
By means of his correspondence dated 6 August 2021, the player urged the Respondent to
provide him with the corresponding work and residence permits, as well as any other
necessary documentation in order for him to travel to Spain and render his services for the
club, thereby granting the club a 15 days’ deadline to do so.
9.
Thereto, the club replied on 22 August 2022, i.e. outside of the deadline granted by the
player, stating that “throughout this transfer market window we have discussed and explored
with you different professional scenarios in the form of a season, temporary loan in order to
compensate the development lost time due to your injuries last season. […] Unfortunately,
we have not been able to get a mutually satisfactory opportunity in the first period of the
summer market”. Moreover, the club stated that the “preseason of Club’s first team started
on July 7th, 2021. To date, you have not attended to any of the working sessions of this
season nor reported to the club for work as expected. This situation is of course intolerable,
and it cannot be extended in time”. The Respondent further stressed that it had tried to
contact the player on several occasions, to no avail, and urged the player to present himself
at the clubs’ facilities by no later than 24 August 2021. The club concluded its letter by stating
the following: “should your fail to appear on or before the provided deadline, the Club
reserves hereby the right, without any further notice, to terminate the employment
agreement and pursue legal actions before the competent courts”.
10. On 23 August 2021, the player unilaterally terminated the contract in writing, “due to long
lasting and severe infringements of the contractual obligations from the side of the Club in
form of not providing any proof to the Player of being eligible to live and work in his place of
employment, no visa, work and residence permit, for using coercive methods to ban the
Player from the team and his place of employment, for causing the irreparable harm, for
overdue payables, violation of basic rights to work, play and training, and for abusive conduct
of aiming at forcing the Player to terminate or change the terms of the Contract”.
11. Thereto, the Respondent replied by means of its letter dated 24 August 2021, stating -againthat the player had breached his obligations by not presenting himself at the club’s facilities
and that the club “cannot tolerate grounds delivered on your termination letter, the rationale
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therein determined is false and bogus, aiming to ending your rapport with the Club without
no justified reason”.
II. Proceedings before FIFA
12. On 30 August 2021, 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
13. On 30 August 2021, the Claimant lodged a claim against the Respondent before FIFA,
requesting to be awarded outstanding remuneration and compensation for breach of
contract in the total amount of EUR 540,000, plus 5% interest as from the respective due
dates, broken down by the Claimant as follows:
Outstanding remuneration: EUR 48,571
- EUR 14,286, corresponding to the 2 extra payments due for the season 2020/2021, in the
amount of EUR 7,143 each;
- EUR 17,143, corresponding to the 2 extra payments due for the season 2021/2022, in the
amount of EUR 8,671 each;
- EUR 17,142, corresponding to the instalments due on July and August 2021, in the amount
of EUR 8,671 each.
Compensation for breach of contract: EUR 491,429
- EUR 491,429, corresponding to the residual value of the contract, i.e. EUR 102,857 (12
instalments of EUR 8,571 each – residual value of the season 2021/2022, as per the
Claimant), EUR 160,000 (14 instalments of EUR 10,000 each, plus 2 extra payments –
residual value of the 2022/2023 season, as per the Claimant) and EUR 228,572 (14
instalments of EUR 14,286 each, plus 2 extra payments - residual value of the 2023/2024
season, as per the Claimant).
14. The player maintained that, upon his loan transfer to Estoril, he was soon moved to Estoril’s
team of under 23 (U-23), “competing in the Youth league, which was not in accordance with
his status as a professional football player and loan terms”. In this context, the player
explained that, on an unspecified date and due to the disagreement of his status within the
team of Estoril, the parties to the loan agreement “parted ways” and the Claimant returned
to the Respondent, his parent club, in order to resume his professional obligations towards
the Respondent.
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15. In his claim, the player argued that he was not provided with the “mandatory and
fundamental prerequisites by the Respondent in order to perform his employment and
sporting duties and activities, as he was not provided with the necessary visa and
work/residence permit”. What is more, the player referred to the incidents that took place in
Austria (cf. points 5 and 6 supra) and held that he found himself “stuck” in Bosnia and
Herzegovina having no chance to solve the aforesaid issue on his own, since he lacked
knowledge on the matter and on “foreign languages, procedures and systems”. In order to
be able to enter the EU territory again and access his residence in Spain, pointed out the
player, the Claimant needed to initiate -twice and on his own- the proceedings to acquire the
“Spanish short-term work visa”.
16. In this context -held the Claimant-, he returned to Spain with such first visa and, in March
and April 2021, he went to Madrid to finish the procedures related to his eligibility to live and
work in Spain and obtain his residence permit. The player argues that the Respondent
informed him that “all the procedures were completed and the Claimant was just supposed
to wait to receive the permits and ID card which the Respondent said he will forward to the
Claimant as soon as they are finished”. According to the Claimant, the Respondent “assured
the Claimant that he will not have any further issues with authorities”.
17. Notwithstanding the above, the player explained that the same incident occurred again in
Germany, on 22 May 2021, when he was again arrested by the German police at the
Frankfurt Airport (cf. point 6 supra) and found himself unable to go to Spain and render his
services for the Respondent. It is in this context and given the lack of solutions provided by
the club that the player argues that he had no alternative but to terminate the contract on
23 August 2021, since the Respondent was ignoring him and disregarding his notices, “giving
him no hope that the problems will be resolved”.
18. The Claimant further argued that the bad faith showed by the Respondent was blatant, proof
of which is that the latter urged the player -in both, its letters dated 22 and 24 August 2021to return to Spain and render his contractual obligations, granting the Claimant extremely
short deadlines to do so, “knowing that that could cause serious harm and sanctions towards
the Claimant, even long term imprisonment and long term ban from entering the EU, i.e.
irreparable harm, since Claimant did not receive any proof of being eligible to live and work
in Spain, with COVID-19 restrictions also imposed making the travel in such short notice
almost impossible”.
b. Position of the Respondent
As to the competence:
19. In its reply to the claim, the Respondent referred to clause 23 of the contract and held that,
in accordance with the said clause, all disputes related to the interpretation and or execution
of the contract, as the present one, can only be lodged in front of the Spanish Labour Courts,
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not only due to the validity and application of the said law, but also because labour disputes
in Spain cannot be ruled but by the Spanish labour courts.
20. In particular, the Respondent referred to the wording of clause 23 of the contract, which
explicitly refers to the application of Spanish Law and to the Spanish Labour Courts as forum
that shall adjudicate on any dispute of this nature.
21. The Respondent further stressed that, as per the said clause, the competence of the Spanish
Labour Courts to hear the present dispute is exclusive, since the parties waived their right to
seek for redress before any other deciding-body. Moreover, the Respondent cited art. 9 of
the Spanish Judicial Law, in accordance with which employment disputes derived from a
contractual relationship that was performed in Spain must be heard by the Spanish Labour
Courts.
22. In view of all of the above, the Respondent referred to the Royal Decree 2/2015 and requested
FIFA to determine that the claim of the Claimant is inadmissible. What is more, the
Respondent argued that on 10 September 2021, due to the breaches committed by the player
(cf. points below), the Respondent initiated the corresponding disciplinary proceedings
against the player, without the latter providing his allegations to the said proceedings.
As to the substance:
23. Subsidiary to the above, the Respondent rejected the argumentation of the Claimant and
argued that it was the player who breached the contract by failing to present himself at the
club’s facilities, being absent in trainings and official matches and ignoring the club’s default
notices.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. 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 30 August 2021 and submitted for decision
on 25 November 2021. 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.
25. 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 (August 2021 edition), the Dispute
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
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concerns an employment-related dispute with an international dimension between a Bosnian
player and a Spanish club.
26. 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 Player (August 2021 edition) and
considering that the present claim was lodged on 30 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
27. Notwithstanding the above-mentioned considerations, the Chamber pointed out, as a
preliminary issue at to the admissibility of the claim lodged by the Claimant, that the
Respondent club argues that FIFA is not competent to adjudicate upon the present dispute,
insofar as it is not FIFA but the corresponding Spanish labour courts that should hear the
present dispute ex. clause 23 of the contract and the Spanish Royal Decree 2/2015.
28. After a careful analysis of the documentation on file, the Chamber stressed that, in
accordance with the right reserved to the parties under art. 22 of the Regulations, players,
clubs, coaches or associations may bring actions before the ordinary courts. Under this
provision and in accordance with what was agreed between the parties in clause 23 of the
contract, i.e. to be governed by Spanish Law in case of disputes arisen in connection with the
contract and the Spanish labour courts holding exclusive jurisdiction to adjudicate on the said
disputes, the Chamber underscored that the parties expressly submitted to the jurisdiction of
the Spanish labour courts, considering the clear wording of clause 23 of the contract and the
application of both, art. 22 of the Regulations and the legal principle of autonomy of the will
of the parties.
29. Thus, the Chamber stated that It must therefore be considered that the Claimant, by signing
the employment contract, accepted the jurisdiction of the Spanish labour courts as an
exception to the jurisdiction of FIFA (in accordance with the mechanism provided by article
22 of the Regulations), over any contractual dispute that may arise between the parties as to
its interpretation and or execution.
30. In conclusion, the Chamber decided that the claim of the Claimant is inadmissible and, as
such, the DRC would not enter into an assessment of the matter at hand as to the substance.
b. Costs
31. 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.
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32. 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.
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Armin Hodzic, is inadmissible.
2. 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).
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