Labour Disputes
Texto da decisão
REF. FPSD-9924
Decision of the
Dispute Resolution Chamber
passed on 26 October 2023
regarding an employment-related dispute concerning
the player Frane Ikic
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), member
Stella Maris Juncos (Argentina), member
CLAIMANT / COUNTER-RESPONDENT:
Frane Ikic, Croatia
Represented by Dupovac Feđa
RESPONDENT / COUNTERCLAIMANT:
FK VELEŽ Mostar, Bosnia and Herzegovina
Represented by Sanel Masic
INTERVENING PARTY:
Buxoro FK, Uzbekistan
pg. 2
REF. FPSD-9924
I. Facts of the case
1.
On 1 July 2022, the Croatian player, Frane Ikic (hereinafter: Claimant / Counter-Respondent
or player) and the Bosnian club FK Velez Mostar (hereinafter: Respondent / Counter-Claimant
or club) concluded an employment contract (hereinafter: contract) valid as from 1 July 2022
until 31 May 2024.
2.
According to the contract (including the annex), the Respondent undertook to pay the
Claimant the following monies:
-
Bosnian Mark (BAM) 6,825 as monthly salary during 2022/2023 season;
BAM 8,775 as monthly salary during 2023/2024 season;
BAM 11,700 as signing bonus, payable until the start of the season:
BAM 5,850 as instalment due at the beginning of the second season.
3.
According to the contract, the monthly salary fell due on the “10th day of the month for the
previous month of work”.
4.
On 31 August 2022, the club’s president requested the club’s disciplinary commission to
implement “suitable sanctions” against the players and staff due to the poor sporting
results.
5.
On 1 September 2022, the disciplinary commission decided to sanction players and staff
with a reduction of 30% of the August 2022 salary due to the poor sporting results.
6.
On 2 September 2022, the decision was notified to players and staff and everyone accepted
it in writing, apart from the Claimant and another player.
7.
On 26 December 2022, the player contacted the club suggesting a mutual termination
against payment of all outstanding remuneration plus 4 salaries for 2023.
8.
Between 26 December 2022 and 29 December 2022 exchanged correspondence and
agreed on a meeting for 30 December 2022.
9.
On 18 January, according to the club, the player showed up at the club’s premises, but
refused to accept payment for his salary related to August 2022.
10. On 19 January 2023, the player put the club in default and requested payment of BAM
20,325, corresponding to partial salaries for August, November and December 2022 (3x
BAM 4,825) as well as a part of the sign-on fee (BAM 5,850). The Claimant requested
payment within 15 days.
pg. 3
REF. FPSD-9924
11. On 27 January 2023, according to the club, the player collected the salary related to
December 2022.
12. On 28 January 2023, according to the club, the player sent a draft of a modified annex to
the contract to the club.
13. On 10 February 2023, the player terminated the contract with the club due to the
outstanding remuneration and due to his demotion to the reserve team without
justification.
14. On 10 February 2023, the club replied to the player stating: “We are attaching an official note
related to the 08/22 salary. The amount of the salary for 11/22 is ready in the official premises
of the Club and the aforementioned can collect it whenever he wants. It was not paid because
at that moment the player was by the preparation process in Turkey. The salary for 01/23 will
be paid during this month, following the normal dynamics of salary payments in the Club”.
15. On 6 July 2023, the player signed an employment contract with the Uzbek club, Buxoro FK
valid as from 6 July 2023 until 21 December 2023, including a monthly salary of USD 8,000
(approx. BAM 14,000).
II. Proceedings before FIFA
16. On 13 April 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
17. the player lodged a claim against the FK Velez Mostar in front of FIFA and requested
payment of the following monies:
-
BAM 14,475 as outstanding remuneration (partial salaries for August, November 2022
and January 2023; 3x BAM 4,825);
BAM 5,850 as outstanding signing-bonus;
BAM 132,600 and EUR 3,000 as compensation for breach of contract (residual value).
The player requested interest of 5% p.a. as of the due dates.
18. In his claim, the player argued that he had just cause to terminate the contract as more
than two monthly salaries remained outstanding without justification.
19. Moreover, the player held that as of 10 January 2023, he had been forced to train alone,
without a coach or a “tailored training program”.
pg. 4
REF. FPSD-9924
b. Position of the Respondent / Counterclaim
20. In its reply, the club rejected the player’s claim and lodged a counterclaim against the player
requesting payment of BAM 17,211 as compensation for breach of contract, plus 5%
interest p.a. as of 10 February 2023.
21. The club denied that at least two monthly salaries were outstanding at the moment of the
termination.
22. In this regard, the club pointed out that the default notice referred to the salary of
December 2022, whereby the termination notice listed January 2023 as outstanding, which
only fell due on 10 February 2023 and was therefore not yet “overdue”.
23. As to the salary for August 2022, the club pointed out that the reduction of 30% was
imposed, which shall be deducted. Further, the club maintained that this amount (BAM
2,493.50) was available to him but he “refused to pick it up”.
24. Additionally, the club held that the player is only entitled to half of the sign-on fee claimed
as the other half was remitted on 22 July 2022.
25. Taking into account the above, the club acknowledged a debt in the amount of BAM 10,325,
which is less than two monthly salaries and therefore no just cause to terminate the
contract.
26. Subsequently, the club denied that the player was demoted to a reserve team stating that
the club does not have a reserve team. Furthermore, the club pointed out that the player
was part of the team in the training camp in January 2023 and early February 2023, which
shows that he was not demoted.
27. Moreover, the club pointed out that the player submitted a modified annex to “activate” the
second year of the contract, which was “conditional”. According to the club, the annex was
only valid until 31 May 2023, and a possible compensation shall therefore be limited to a
total amount of BAM 33,293.
c. Player’s reply to the counterclaim
28. In his reply to the counterclaim, the player rejected the club’s claim and reiterated his
position.
29. The player argued that the club did not dispute that the salaries for August and November
2022 remained outstanding.
pg. 5
REF. FPSD-9924
30. As to the difference from the default notice to the termination notice, the player held that
the obligation of the club was to fully remedy the default, which it failed to do so. Payment
of one monthly salary does not make a difference.
31. Furthermore, the player stated that the salary of January 2023 also fell due in the
meantime.
32. The player rejected the deduction of his salary for August 2022. He requested that the
decision of the disciplinary committee shall be disregarded as it did not follow due process.,
failed to proof that he was indeed notified and is disproportionate.
33. The player insists that he remained entitled to the claimed sign on fee (BAM 5,850) since
the alleged proof for payment does not refer to such payment.
34. Moreover, the player insisted that he was demoted to the reserve team, even though he
was part of the training camp.
35. The player stated that the wording of the contract is clear and that the contract would run
until 31 May 2024.
d. Position of the new club
36. Buxoro FK submitted its position and rejected the club’s counterclaim.
37. In its submission, Buxoro FK endorsed the player’s position and argued that he terminated
the contract with just cause since it neglected is primary duty of remitting the player’s
remuneration.
38. Furthermore, Buxoro FK pointed out that it did not induce the player to the alleged breach
of contract while referring to the gap between the termination and the conclusion of the
contract with the player.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
39. 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 13 April 2023 and submitted
for decision on 26 October 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.
pg. 6
REF. FPSD-9924
40. 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 (May 2023 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 a player and a club.
41. 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 (May 2023 edition), and
considering that the present claim was lodged on 13 April 2023, the October 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
42. 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
43. 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
44. 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 the circumstances of the
player’s contract termination.
45. In this context, the Chamber acknowledged that its task was to decide if the player had just
cause to terminate the contract on 10 February 2023 or not, and to decide on the
consequences thereof.
pg. 7
REF. FPSD-9924
46. The members of the DRC noted that the matter at hand concerns a claim of a player against
a club for breach of contract, including a counterclaim of the club.
47. The Chamber duly noted, that according to the player, he terminated the contract with just
cause due to outstanding remuneration and since he was demoted to the reserve team.
48. The DRC took also notice of the club’s argumentation that less than 2 monthly salaries were
outstanding at the moment of termination and that the player had therefore no just cause.
The club denied having demoted the player to the reserve team.
49. In this framework, the Chamber started to analyse the alleged outstanding remuneration
at the moment of termination (10 February 2023).
50. The player argued that the following amounts were outstanding:
- BAM 4,825 (partial salary of August 2022): Club argued that this salary was reduced
by 30% due to the decision of the club’s disciplinary committee.
- BAM 4,825 (partial salary of November 2022): Acknowledged by the club.
- BAM 4,825 (partial salary of January 2023): Acknowledged by the club. The club only
held that it was not “overdue” since it became due on 10 February 2023 only.
- BAM 5,850 as outstanding signing bonus: The club held that it remitted half of the
claimed fee on 22 July 2022.
51. Regarding the alleged fines imposed on the player, the DRC wished to emphasize that there
is no evidence on file, that a due disciplinary process was followed by the club and that the
player’s right to be heard was respected.
52. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point
out that the imposition of a fine, or any other available financial sanction in general, shall
not be used by clubs as a means to set off outstanding financial obligations towards
players. Consequently, the DRC decided to reject the club’s argument in this connection.
53. Due to the receipt submitted by the club, the Chamber decided to take into account the
partial payment of the sign-on fee on 22 July 2022.
54. Taking into account the above, a total amount of BAM 18,050 remained outstanding at the
moment of the termination.
55. It has to be noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the club failed to submit proof for the above-mentioned amount.
pg. 8
REF. FPSD-9924
56. Consequently, on account of the above, considering that the club had thus repeatedly and
for a significant period of time been in breach of its contractual obligations towards the
player, we propose to decide that the player had just cause to unilaterally terminate the
employment contract on 10 February 2023 and that, as a result, the club is to be held liable
for the early termination of the employment contact with just cause by the player.
57. The allegation of the player that he was demoted to the reserve team is not substantiated
enough as there is no supporting evidence on file and the club denied it.
58. On account of the above, the Chamber decided to reject the club’s counterclaim.
ii. Consequences
59. 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.
60. The Chamber observed that the outstanding remuneration at the time of termination,
amount to BAM 18,050 (as established above).
61. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e. BAM 18,050.
62. In addition, 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 at the rate of
5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
63. 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.
pg. 9
REF. FPSD-9924
64. 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.
65. 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.
66. 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.
67. Before calculation the compensation for breach of contract, the DRC wished to establish
the duration of the contract as the club held that the second year was “optional”. The DRC
analysed the wording of the contract, which is clearly referring to 31 May 2024 as the end
date and the annex also contains provisions for the season 2023/2024. The Chamber
pointed out that in case the parties wished to limit the duration to 31 May 2023, they should
have clearly stated so. Taking into account the contract, the Chamber concluded that the
parties were bound until 31 May 2024.
68. Consequently, the Chamber concluded that the amount of BAM 126,500 serves as the basis
for the determination of the amount of compensation for breach of contract. Such amount
corresponds to:
- BAM 24,125 as salaries as of February 2023 until June 2023;
- BAM 58,500 (salaries July 2023 and December 2023, and instalment 2nd season);
- BAM 43,875 (Salaries as of January 2024 until May 2024);
69. 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.
70. Indeed, the player found employment with Buxoro FK. In accordance with the pertinent
employment contract, the player was entitled to approximately BAM 14,000 per month.
Therefore, the Chamber concluded that the player mitigated his damages completely
between July and December 2023. Therefore, the Chamber deducted BAM 58,500.
pg. 10
REF. FPSD-9924
71. 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 confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
72. In this respect, the DRC decided to award the amount of additional compensation of BAM
20,475, i.e. three times the monthly remuneration of the player.
73. 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 BAM 88,475 to the player (i.e. BAM 126,500 minus BAM 58,500 plus BAM 20,475), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
74. 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 10 February 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
75. 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.
76. 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.
77. 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.
pg. 11
REF. FPSD-9924
78. 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.
79. 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
80. 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.
81. 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.
82. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-9924
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Frane Ikic, is partially accepted.
2.
The Respondent / Counter-Claimant, FK Velez Mostar, must pay to the Claimant the
following amount(s):
- Bosnian Mark (BAM) 8,400 as outstanding remuneration plus 5% interest p.a. as from
11 September 2022 until the date of effective payment;
- BAM 4,825 as outstanding remuneration plus 5% interest p.a. as from 11 December
2022 until the date of effective payment;
- BAM 4,825 as outstanding remuneration plus 5% interest p.a. as from 11 February 2023
until the date of effective payment;
- BAM 88,475 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 10 February 2023 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 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.
The claim of the Respondent / Counter-Claimant is rejected.
6.
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 / Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-9924
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
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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
pg. 14