Labour Disputes
Texto da decisão
REF. FPSD-7861
Decision of the
Dispute Resolution Chamber
passed on 30 March 2023
regarding an employment-related dispute concerning the player Tarik Isic
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Dana MOHAMED AL-NOAIMI (Qatar), Member
Johan VAN GAALEN (South Africa), Member
CLAIMANT / COUNTER-RESPONDENT:
FK Kukesi, Albania
RESPONDENT 1 / COUNTERCLAIMANT:
Tarik ISIC, Bosnia and Herzegovina
Represented by Tarik Trbić (SPFBiH)
RESPONDENT 2:
Sogdiyona FK, Uzbekistan
pg. 2
REF. FPSD-7861
I. Facts of the case
1.
On 5 July 2022, the Albanian club, FK Kukesi (hereinafter: the club or the Claimant / CounterRespondent) and the Bosnian player, Tarik Isic (hereinafter: the player or the Respondent 1 /
Counterclaimant), concluded an employment contract valid “for 2 years, effective from the
date of entry into force” of the contract (hereinafter: the Employment Contract).
2.
Under article 2 of the Employment Contract, the club undertook to pay the player inter alia:
a.
b.
c.
d.
3.
EUR 500 as monthly salary, payable by the 10th day of the following month;
EUR 500 as bonus per full match played by the player and won;
EUR 5,000 as bonus if the club won the Albanian League; and
EUR 5,000 as bonus if the club won the Albanian Cup.
Article 7 of the Employment Contract reads as follows:
“Article 7 – Health Care
1. The club is obliged to carry out the player’s health insurance according to the
legislation in force in Albania according to the respective percentage defined in the
legislation in force, and undertakes to pay for the injury costs of the player when
they come as a result of sporting activity at the club.
2. The player undertakes to immediately notify in written the doctor and directors of
the club for any health problem that he may incur.
3. Before the start of every football season the player is obliged to perform health
examinations to verity his ability to perform the sport of football and to fulfill the
sporting activities near the club.
4. The player undertakes to implement to all medical instructions dictated by the
doctors authorized by the club, for the purpose of maintenance and improvement of
his sports form in accordance with the definitions of this contract.
5. If after signing the contract it is found that the player was injured before signing
this contract, but he didn’t make this fact known to the club, the player agrees that
the club wont pay him until his full rehabilitation.”
4.
Furthermore, articles 15 and 16 of the Employment Contract read as follows:
“Article 15 – Termination of contract by the player
pg. 3
REF. FPSD-7861
1. The player will be considered to have terminated the contract with the club due to
legitimate reasons by notifying the club in writing 15 days in advance if the club:
a) will be found guilty of serious and persistent violation of the terms and conditions of
this contract, or;
b) fails to pay any remuneration, or other payments, or bonuses that the club [owes] to
the player under this contract, for more than 15 days from the time when obligations
needed to be fulfilled.
2. If the club fulfills its own obligations within the period of notice of 15 days, then the
player shall not terminate the contract unilaterally due to legitimate reason, otherwise
the player accept to [continue] to play for the club.
3. For all the other cases of the contract settlement unpredictable in this article, the player
is obligated to notice the club 15 days before.
Article 16 – Termination of contract
1. This contract may be terminated before the term defined in this contract, by written
agreement between the parties.
2. Upon completion of the contract, the player is obliged to repay all obligations to the
club, including different payments made by the club and accepted by the player, advance
payments, if there exists, amounts given to the player in form of the loan etc. Together
with financial obligations will be paid the respective interests assessed by the club.
3. The club has the right to terminate the contract at any time without any financial, legal
or moral obligations towards the player in case that the last has violated the club
regulation and/or is not efficient in official matches. If the player [breaks] the contract
unilaterally before the term, without just cause, he shall pay to the club a penalty 130.000
Euro within 60 days. Upon completion of the contract, in any case, the player is obliged
to return to the club any property (including personal tools given in use), as well as all
material base given in use by the club”.
5.
In parallel, on 4 July 2022, the player and the club also signed an Image Rights Agreement
(hereinafter: the IR Agreement). It reads inter alia as follows:
“[The club] Payment
[The club] acknowledges that the amount to be reimbursed by the [the club] for the
use of the image rights shall be 50% of the gross revenue earned per month by the club
but not less than 4,500 Euros net per month for two years”.
pg. 4
REF. FPSD-7861
6.
On 10 July 2022, the player suffered a muscle injury during training.
7.
On 19 July 2022, the player travelled from Tirana (Albania) to Belgrade (Serbia) to diagnose
and treat his injury. He incurred in the following expenses in connection with the trip:
a.
b.
c.
d.
RSD 9,000 for exams in a clinic named Alfa Medica;
EUR 91,51 for the flight tickets paid on 19 July 2022;
RSD 22,443.20 for one night stay in a hotel in Belgrade; and
EUR 2,000 for four sessions of message therapy.
8.
Also on 19 July 2022, the player texted an alleged club’s representative via the electronic
application WhatsApp and informed of the diagnose of his injury.
9.
On 12 September 2022, the player via his legal representative put the club in default and
requested payment of EUR 10,000 within 15 days, corresponding to his remuneration of
July and August 2022.
10. According to the club, on 24 September 2022:
•
it replied to the player’s letter and stated inter alia as follows:
“Please send us the details of your bank account open in Albania either in Union Bank.
We are waiting for you to come into the club on Monday at 09:00 AM.
If you need help from us, don’t hesitate to tell us”.
•
it paid the player EUR 9,000 in cash. In support of this, the club filed a receipt
signed by the player with the following description: “Payment July + August 2022
according to the image rights agreement dated 04.07.2022”.
11. The player disputed both the delivery of the abovementioned correspondence and the
payment made by the club. Contextually, he deems that the cash receipt was forged.
12. On 24 September 2022, the player exchanged the following WhatsApp messages with an
alleged representative of the club, as follows:
Club Representative: “Broo go to the office
To take money
And you will open [a] bank account in union bank”
Player:
Ok
13. On 26 September 2022, the club allegedly sent the player another letter, the delivery of
which is dispute by the player. Said letter stated as follows:
pg. 5
REF. FPSD-7861
“Good Morning, Tarik
Please do not forget to open a bank account in Albania as we need it to make
payments to you as well as the payment of your social and health insurance to the
Albanian State Authorities.
We are waiting for the account.
If you need any help, we are here for you”.
14. On the same date, i.e., 26 September 2022, the player opened a bank account in Albania
and forwarded the banking data to the club via WhatsApp.
15. On 27 September 2022, the club allegedly replied to the player’s notice of 12 September
2022 and requested proof of representation as well as a breakdown of the amount claimed
(i.e., EUR 10,000). Contextually, the club acknowledged that the player had only opened a
bank account in Albania the previous day, hence the payment of ALL 116,640 (around EUR
1,000 i.e., the salaries of July and August 2022) could only be made at that date. The player,
again, disputes the delivery of the correspondence in question.
16. On 28 September 2022, the player and the same club’s representative mentioned in par.
12, supra, once again exchanged WhatsApp messages regarding inter alia the payment of
his salaries.
17. On 29 September 2022, the player notified the club of the termination of their employment
relationship due to overdue payables. He referred to his letter of 12 September 2022 which,
to his understanding, remained unanswered.
18. On 3 October 2022, the club responded to the termination letter of the player and argued
that no payments were outstanding. As such, it indicated that the termination by the player
took place without just cause.
19. On 31 October 2022, the player deposited EUR 4,000 to his bank account in Bosnia.
20. On 5 January 2023, the player entered into a new employment agreement with the
Uzbekistani club Sogdiyona FK (hereinafter: Sogdiyona FK or the Respondent 2) valid as from
2 January 2023 until 1 December 2023. Accordingly, the player would be entitled to a
monthly salary of USD 10,000 net.
21. On 26 January 2023, Sogdiyona FK entered the relevant transfer instruction in the TMS –
“Engage permanently (out of contract)” (TMS 633626) – and confirmed it on the same date
after having uploaded all relevant documents.
22. On 26 January 2023, the Uzbekistan Football Association (UFA) requested the player’s
International Transfer Certificate (ITC) from the Football Association of Albania (FSHF)
outside the registration period and under the pertinent “validation exception”, which was
subsequently rejected by the FSHF.
pg. 6
REF. FPSD-7861
23. On 23 February 2023, the Players’ Status Chamber of the Football Tribunal granted UFA’s
request for special exemption from the validation exception, and the player was registered
with Sogdiyona FK. Said decision was without prejudice of the employment-related dispute
pending before the FIFA Dispute Resolution Chamber (DRC).
II. Proceedings before FIFA
24. On 13 October 2022, the club filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the club
25. According to the club, there was a miscommunication between the player and his
representative during the exchange of correspondences by the parties, leading to an
unlawful termination by the player. The club explained that this was because at the time
the player issued the termination letter, no amounts were outstanding and, in any event,
they could not have been paid before because of the player’s failure to open a bank account
in Albania.
26. Given the above, the club requested to be awarded compensation for breach of contract,
as follows:
•
initially, it recalled the wording of article 16 of the Employment Contract
according to which the player should be liable to pay him EUR 130,000 within 60
days of the unlawful termination;
•
alternatively, it referred to article 17 of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and claimed that the player should pay him EUR
114,000 as compensation for breach of contract, corresponding to the residual
value of the Employment Contract and IR Agreement combined; and
•
in any event, it maintained that the sum of EUR 4,000 should also be returned by
the player, corresponding to the amount paid to his agent for the intermediation
of the hiring.
27. The requests for relief of the club were as follows, quoted verbatim:
“On account of all the foregoing, FK Kukesi respectfully requests the FIFA Dispute
Resolution Chamber to issue a decision ruling that:
I. The present claim filed by FK Kukesi is admissible.
pg. 7
REF. FPSD-7861
II. Mr Tarik Isic is ordered to pay to FK Kukesi the amount of EUR 134,000 as
compensation for breach of contract plus 5% interest as of 13 October 2022.
In the alternative
III. Mr Tarik Isic is ordered to pay to FK Kukesi the amount of EUR 114,000 as
compensation for breach of contract plus 5% interest as of 13 October 2022.
In all cases
IV. Mr Tarik Isic shall contribute towards the legal expenses of FK Kukesi in an amount of
not less than CHF 5,000”.
b. Reply and counterclaim of the player
28. On 18 November 2022, the player submitted his reply to the club’s claim and lodged a
counterclaim against it.
29. Accordingly, the player pointed out that the only amounts received from the club for the
duration of their employment relationship were the following:
•
•
EUR 1,000 via bank transfer on 27 September 2022; and
EUR 4,000 in cash on 28 September 2022.
30. As such, the player argued that the club forged his signature in the cash receipt dated 24
September 2022, as well as produced the emails allegedly exchanged with his
representative. Furthermore, the player pointed out that the club paid part of his dues in
cash, entailing that the argumentation regarding the mandatory use bank account was
irrelevant.
31. In addition to the above, the player outlined that his termination letter was clear to
establish that no payment had been received to that date and all the other elements
mentioned in the club’s claim were inaccurate. Likewise, he argued that the club showed
no support for the treatment of his injury and tried to force a mutual agreement via his
agent.
32. In this context, the player claimed to have terminated the employment relationship with
the club with just cause, hence being entitled to the following amounts:
a. EUR 5,000 as the salary due on 10 September 2022 (from 5 August until 4
September) plus 5% interest as from the due date;
b. EUR 91.51 as the reimbursement of the flight ticket from Tirana to Belgrade;
pg. 8
REF. FPSD-7861
c. EUR 2,000 plus RSD 31,443.20 as reimbursement of medical expenses; and
d. EUR 110,000 as compensation for breach of contract in line with art. 17 of the
FIFA RSTP plus 5% interest as from 29 September 2022.
33. The requests for relief of the player were as follows, quoted verbatim:
“60. As a result of all of the above, the Player is requesting the FIFA DRC to:
- Reject the Club’s claim in its entirety.
- Accept the counterclaim in its entirety by ruling that the Player terminated the
employment relationship with the Club with just cause on 29 September 2022 and to
order the Club to pay him the following amounts:
o EUR 5 000 as outstanding salaries + 5% interest as from the relevant payment dates
until the date of effective payment.
o EUR 91,51€ for the Flight Ticket
o EUR 2.000€ + RSD 31.443,20 of Medical Expenses
o EUR 110 000 as the amount due as compensation for breach of contract + 5%
interest as from 29 September 2022 until the date of effective payment.
- Request that all original versions of all of the Club’s exhibits are provided by the Club
and made available to FIFA, and in particular Exhibit 05.
- To impose sporting sanctions on the Club for breach of contract, for the latter’s breach
of contract within the protected period and the repeated offense”.
c. Reply to the counterclaim of the club
34. On 12 December 2022, the club filed its reply to the counterclaim of the player.
35. Firstly, the club disputed the player’s allegations as to the forgery and fabrication of
documents. It both argued that the player did not meet his burden of proof to this extent,
and filed an original copy of the emails sent on 24 and 26 September 2022 to further
support its position.
36. As to the payment receipt, the club argued that the signature of the player was almost
identical to that found in other documents, hence clearly original. Likewise, it explained
that the sum was paid with the amount earned from “one of its subsidiaries” on 23
September 2022.
pg. 9
REF. FPSD-7861
37. As a consequence of the above, the club insisted that there was not any outstanding salary
at the time of the termination by the player. In particular, it stressed that the player had
already acknowledged receipt of EUR 5,000, entailing that there were less than two salaries
outstanding in any event. Thus, the club reiterated its position as to the compensation
owed by the player.
38. Alternatively, and in case the FIFA DRC understood that the player had just cause to
terminate the employment relationship, the club highlighted that the player shall not be
entitled to the reimbursements claimed as they were not included in the Employment
Contract nor agreed upon by the parties.
d. Final comments of the player
39. The player failed to file his final comments on this matter despite being invited to do so by
the FIFA general secretariat.
e. Position of Sogdiyona FK
40. On 27 January 2023, the club acknowledged that the player was into a new employment
relationship with Sogdiyona FK and requested the latter to be considered as a party to the
proceedings (cf. art. 17, par. 2 of the FIFA RSTP).
41. Consequently, and on the basis of art. 9 par. 4 of the Procedural Rules Governing the
Football Tribunal, Sogdiyona FK was invited to file its position to the claim on 30 January
2023, to no avail.
f. Original document provided by the club
42. In light of the player’s allegations of forgery concerning the payment receipt filed by the
club and dated 24 September 2022, the latter was requested by the FIFA general secretariat
to file the original copy of such document via courier in line with art. 23 par. 2 of the
Procedural Rules Governing the Football Tribunal.
43. On 1 March 2023, the FIFA general secretariat received the requested documentation from
the club.
pg. 10
REF. FPSD-7861
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
44. 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 October 2022 and submitted
for decision on 30 March 2023. 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.
45. 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 par. 1 lit. b)
of the FIFA RSTP (October 2022 edition), the DRC is in principle competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
dimension between a Bosnian player, an Albanian club, and an Uzbekistani club.
46. At this point and the sake of completeness, the DRC acknowledged that the dispute at hand
pertains to both the Employment Contract and the IR Agreement. In this respect, the
Chamber highlighted that it remained undisputed that the Employment Contract and the
IR Agreement are closely connected and shall be read as a single document governing the
relationship between the player and the club. Consequently, the DRC confirmed that it has
jurisdiction over both the claim of the club and the counterclaim of the player in line with
art. 22, par. 1, lit. b) of the FIFA RSTP.
47. 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 FIFA RSTP (October 2022 edition), and considering that the present claim was
lodged on 13 October 2022, the July 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
48. 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
pg. 11
REF. FPSD-7861
49. 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
50. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it consists of a claim for breach of contract lodged by
the club against the player, with a corresponding counterclaim.
51. In particular, the DRC acknowledged that the player terminated the employment
relationship with the club on 29 September 2022, alleging having to overdue payables (cf.
art. 14bis of the Regulations and art. 15 of the Employment Contract). The club disputes
the justice of such termination, in contrast, by alleging that it fully remedied the breach
following the player’s default notice of 12 September 2022, hence no amount was
outstanding at the time of the termination.
52. On this note, the DRC considered that its task was to determine whether the Employment
Contract (and, consequently, the IR Agreement) were terminated by the player with just
cause, and the consequences that follow.
53. In doing so, the members of the Chamber firstly turned their attention to the
documentation on file and established that the following events and supporting
documentation were decisive to the assessment of the matter:
Date
4 and 5 July 2022
12 September 2022
24 September 2022
Event
Signature of the Employment
Contract and the IR Agreement,
valid for 2 years.
Default notice sent by the player to
the club for overdue payables
amounting to EUR 10,000 (i.e., his
salaries and image rights for July
and August 2022). 15 days’
deadline granted to the club to
remedy the breach.
The club urged the player to open a
bank account to pay his salaries.
Furthermore, it allegedly paid the
player EUR 9,000 ref. to the image
Evidence
Undisputed, as well as copies of
the relevant contracts on file.
Undisputed. Default notice on
file. The club acknowledges
receipt of such correspondence.
Disputed, as follows:
•
Email from the club on
file but disputed by the
pg. 12
REF. FPSD-7861
rights for July and August 2022.
24 September 2022
26 September 2022
27 September 2022
29 September 2022
3 October 2022
13 October 2022
31 October 2022
The player exchanged WhatsApp
messages
with
a
club
representative, who requested him
to avail himself at the club’s
premises and “take money”.
The club insisted that the player
should open a bank account to
receive the outstanding payments.
The club paid approximately EUR
1,000 to the player via bank
transfer.
Termination of the employment
relationship by the player based on
overdue payables.
The
club
challenged
the
termination notice issued by the
player and informed that no
amount was outstanding.
The club lodged the claim at hand
against the club
The player cashed an amount of
EUR 4,000 in his bank account in
Bosnia, allegedly received by the
club on 28 September 2022.
player. Original email also
provided by the club in
.msg format, and no
further comments by the
player in this respect
were filed.
•
Cash receipt provided by
the club including the
signature of the player.
The player alleges that it
was forged.
•
Original
document
provided by the club via
courier.
Undisputed. The WhatsApp
conversation was filed by the
player.
Disputed. The player challenged
the delivery of the email. In
contrast, the original email in
.msg format was filed by the
club.
Undisputed.
The
player
acknowledged receipt of such
amount.
Undisputed. A copy of the
termination letter is on file.
Undisputed. Letter on file.
Disputed. Banking invoice on file
confirming the deposit by the
player. However, no evidence of
the payment allegedly made by
the club on 28 September 2022.
It alleges, contrarily, that such
pg. 13
REF. FPSD-7861
amount corresponded to part of
the payment delivered on 24
September 2022 and challenged
by the player.
54. Against this background, the DRC observed that at the time the player put the club in
default (i.e., 12 September 2022) two of his monthly remunerations (i.e., EUR 1,000 as
salaries plus EUR 9,000 as image rights fees) were outstanding. Consequently, the
underlying aspect of the dispute was to determine whether the club fully cured its breach
within the 15 days’ deadline granted, namely until 27 September 2022.
55. While considering the above, the Chamber acknowledged that it remained undisputed
between the parties that a payment of EUR 1,000 was made by the club to the player on 27
September 2022, corresponding to the two outstanding salaries (i.e., EUR 500 each). As
such, it was also clear and unequivocal that such concepts were paid within the deadline
granted by the player and set out in art. 14bis of the Regulations.
56. Consequently, the DRC pointed out that the controversy between the parties relied on the
assessment as to whether the image rights fees (i.e., EUR 9,000) were properly paid by the
club. The Chamber took due consideration that the parties submitted conflicting
argumentation to this extent, as follows:
•
According to the club, a payment of EUR 9,000 was made in cash to the player on
24 September 2022. To support its position, it initially filed a digital copy of the
cash receipt including the signature of the player and, upon challenge of its
validity, additional banking documentation indicating the origin of such credit,
and the original copy of the cash receipt.
•
According to the player, the payment alleged by the club was never made and
the cash receipt was forged. On the contrary, a lump sum of EUR 4,000 was
received on 28 September 2022 (leaving a balance of EUR 4,000 unpaid), but no
written evidence was produced by the parties at the time to demonstrate the
above.
57. In parallel and bearing the player’s position on the forgery in mind, the DRC observed that
the his signatures in the documents on file were inter alia as follows:
Document
Signature
Passport
pg. 14
REF. FPSD-7861
Employment Contract
IR Agreement
Cash Receipt
Power of Attorney
FIFA Bank Account
Registration Form
58. In view of the dissent between the parties, the DRC firstly recalled that in line with its longstanding jurisprudence, the club bore the burden of proof to demonstrate that it complied
with its financial obligations (cf. art. 13, par. 5 of the Procedural Rules). Furthermore, the
Chamber also deemed noteworthy that clubs must be diligent when paying players in cash,
and to record the correspondent cash payment receipt. In the absence of a clear
confirmation that the signature found in the specimen in the receipt is authentic, it falls on
the club to further prove its position – for instance by filing additional documentation, such
as balances or internal accounting documents, to demonstrate that the payments were
performed.
59. The DRC stressed that the above is particularly important when considering that FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the one
of alleged falsified signatures of documents, and that such affairs fall into jurisdiction of
the competent national criminal authority. Thus, it is up to the relevant chamber of the
Football Tribunal to take a decision vis-à-vis the other elements of the case.
60. On this note and having carefully analysed the documentation on file, the DRC initially
considered that, under a technical point of view, the player seemed to have used different
signatures at different times. Furthermore, in the Chamber’s view, the signature included
in the cash receipt was sufficiently similar to the other ones, entailing that it could not be
deemed straightaway forged or fake, such as suggested by the player. The Chamber was
furthermore comforted with this conclusion due to the fact club did also file the original
copy of the cash receipt, which perfectly meets the digital one incorporated to the case file,
hence corroborating its position.
61. The above being said, the DRC turned to other elements of the case file and deemed that
the factual framework of the case was pivotal in solving the dispute. In this respect, the
Chamber found it decisive that:
pg. 15
REF. FPSD-7861
•
the player claimed that for the duration of the Employment Contract, he only
received two payments: (i) EUR 1,000 on 27 September 2022 via bank transfer;
and (ii) EUR 4,000 on 28 September 2022. As to this last payment, the player
argued that no document was produced by the parties at the time and the only
evidence advanced in this respect was the deposit made in his Albanian bank
account on 31 October 2022 i.e., almost 20 days after the submission of the claim
of the club and after being summoned to file his reply;
•
despite acknowledging receipt of EUR 5,000 as described above, the player did
not make any reference in this regard in his termination letter. Likewise, he did
not advance any evidence capable of corroborating his position that only a
partial payment was made (e.g., any type of cash receipt or further
correspondence exchanged between the parties regarding the outstanding
debt);
•
conversely, in trying to substantiate his position as to the receipt of such partial
payment, the player filed a WhatsApp conversation with an unspecified club
representative (cf. §§12 and 16, supra) that does not bear a clear link with his
argumentation as it seems to refer to the undisputed payment of EUR 1,000
made by the club on 27 September 2022. Contrario sensu, by filing such a
screenshot from WhatsApp, he confirmed that on 24 September 2022 he was
called up by the club to collect some cash at its premises, which also supports
the position of the club;
•
on top of the above, while addressing the non-replied correspondences sent by
the club following his default notice, the player limited himself to stress that such
letters were never received. Nevertheless, upon being provided with the original
copies of the messages filed by the club, the player did not present further
comments or explanations. In fact, the player failed to submit his final comments
on this matter, entailing that the club’s reply to the counterclaim remained fully
unchallenged;
•
the player did also not dispute the club’s narrative on the issue concerning the
opening of the bank account in Albania. As such, considering that a bank account
was undisputedly opened on 27 September 2022 by the player and the salaries
were wired to by the club to the player on the same date, it seems illogical that
the club would only on 28 September 2022 (i.e., one day after the opening of the
bank account and one day after the expiry of the deadline granted by the player
in his default notice) deliver a substantial sum in cash and without any type of
track record. The player did also not advance any further explanation in this
regard; and
•
besides of the original copy of the cash receipt, the club also advanced proof of
receivables in cash from the third parties to explain the origin of the sum paid to
pg. 16
REF. FPSD-7861
the player, as well as to corroborate its argumentation as to the date of payment.
62. Taking all the above into consideration, the DRC was of the opinion that the timeline and
the specific background of the case played a fundamental role in favour of the
argumentation of the club whereas the behaviour of the player – and, in particular, the lack
of any convincing documentation capable to balance the scale towards him – go against his
own narrative. Put differently, while analysing the documentation brought forward by the
parties, the Chamber considered that the club’s version of the facts was credible, whereas
the player’s version lacked substantiation.
63. Therefore, the DRC concluded the club could establish to a comfortable satisfaction degree
that it complied with its financial obligations within the deadline granted by the player.
Consequently, the Chamber decided that at the time of the termination by the player there
were no overdue payables, hence the contractual relationship was terminated without just
cause.
64. It followed, in the DRC’s view, that the player shall be liable to the consequences of such
termination, as follows.
ii. Consequences
A. Outstanding remuneration due by the club to the player
65. Notwithstanding the assessment as to the (lack of) just cause for the termination of the
employment relationship by the player, the Chamber recalled that the club should be liable
to pay him any amounts which were outstanding under the Employment Contract and/or
the IR Agreement at the time of the termination in line with the principle pacta sunt
servanda.
66. In this respect, the DRC recalled that the club was considered to have complied with the
financial duties towards the player for July and August 2022.
67. Accordingly, bearing in mind that the termination took place on 29 September 2022, the
Chamber deemed that the player should also be entitled to his salary and image rights fee
for September 2022, amounting to EUR 5,000. The DRC established that such conclusion
was without prejudice of the assessment as to the justice of the termination, insofar as the
Employment Contract was still in force, meaning that the player should be remunerated
accordingly. To this end, the Chamber reiterated that by the time of the termination, the
salary of September 2022 was not yet due, and therefore could not be raised by the player
in support of his termination.
68. Furthermore, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award him interest at the rate of 5%
pg. 17
REF. FPSD-7861
p.a. as from the date of the termination (i.e., 29 September 2022) until the date of effective
payment.
69. Thereafter, the DRC also noted that the player requested to have his expenses with flight
tickets and medical treatment reimbursed by the club. In this respect, the player explained
that he suffered an injury during the training session and was forced to fly to Serbia and
undergo medical treatment at his own.
70. In this context, the Chamber acknowledged that the club did not dispute the occurrence of
the player’s injury itself, but rather the whereabouts of the treatment and expenses
incurred. On the other hand, the player could not demonstrate: (i) the context of the injury;
(ii) the reason why such injury was treated in Serbia; and (iii) the authorization of the club
for the injury to be treated abroad.
71. In light of the above, the majority of the DRC was not persuaded that the club fulfilled its
duty to provide the player with the adequate medical treatment. Consequently, the
majority of the DRC decided that the player should be exclusively entitled to the
reimbursement of the expenses incurred with the medical examinations, amounting to
RSD 9,000 plus 5% interest as from 22 July 2022 until the date of effective payment by the
club.
72. Finally, the player’s claim regarding the reimbursement of the flight tickets,
accommodation expenses and message therapy was however rejected due to the lack of
substantiation and, in particular, because the player could not corroborate that the club
was duly notified and/or that a proper administrative iter was pursued in line with art. 7 of
the Employment Contract.
B. Compensation for breach of contract due by the player and Sogdiyona FK to the club
73. Subsequently, the members of the Chamber turned their attention to the question of the
consequences of such unjustified breach of contract committed by the player. Specifically,
the Chamber seek to establish the amount of compensation payable to the club by the
player 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, the fees and expenses paid or incurred by
the former club (amortised over the term of the contract) and depending on whether the
contractual breach falls within the protected period.
74. In this regard, and as raised by the club, the Chamber recalled the wording of art. 15 and
16 of the Employment Contract, quoted verbatim:
pg. 18
REF. FPSD-7861
“Article 15 – Termination of contract by the player
1. The player will be considered to have terminated the contract with the club due to
legitimate reasons by notifying the club in writing 15 days in advance if the club:
c) will be found guilty of serious and persistent violation of the terms and conditions of
this contract, or;
d) fails to pay any remuneration, or other payments, or bonuses that the club [owes] to
the player under this contract, for more than 15 days from the time when obligations
needed to be fulfilled.
2. If the club fulfills its own obligations within the period of notice of 15 days, then the
player shall not terminate the contract unilaterally due to legitimate reason, otherwise
the player accept to [continue] to play for the club.
3. For all the other cases of the contract settlement unpredictable in this article, the player
is obligated to notice the club 15 days before.
Article 16 – Termination of contract
1. This contract may be terminated before the term defined in this contract, by written
agreement between the parties.
2. Upon completion of the contract, the player is obliged to repay all obligations to the
club, including different payments made by the club and accepted by the player, advance
payments, if there exists, amounts given to the player in form of the loan etc. Together
with financial obligations will be paid the respective interests assessed by the club.
3. The club has the right to terminate the contract at any time without any financial, legal
or moral obligations towards the player in case that the last has violated the club
regulation and/or is not efficient in official matches. If the player [breaks] the contract
unilaterally before the term, without just cause, he shall pay to the club a penalty 130.000
Euro within 60 days. Upon completion of the contract, in any case, the player is obliged
to return to the club any property (including personal tools given in use), as well as all
material base given in use by the club”.
75. After analysing the content of the aforementioned provisions, the Chamber concluded that
they only established the quantum of compensation due by the player to the club in case
the employment relationship was terminated without just cause. As such, the DRC decided
that said provision is clearly non-reciprocal, therefore could not be applied in line with the
longstanding jurisprudence of the Football Tribunal.
pg. 19
REF. FPSD-7861
76. Consequently, the Chamber determined that the amount of compensation payable by the
player to the club had to be assessed in application of the other parameters set out in art.
17 par. 1 of the Regulations and recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
77. The Chamber then proceeded with the calculation of the monies payable to the player
under the terms of the Employment Contract and the IR Agreement until their term. In
doing so, the Chamber concluded that the amount of EUR 110,000 (i.e., the salaries and
image rights fees from October 2022 until July 2024) serves as the basis for the
determination of the amount of compensation for breach of contract.
78. In continuation, the Chamber verified whether the player had signed an employment
contract with another club during the relevant period of time. According to art. 17 par. 1 of
the Regulations as well as the constant practice of the DRC as described in the Commentary
to the FIFA Regulations on the Status and Transfer of Players (p. 150 et seqq.), such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract due by a player to his
former club. In particular, the Chamber explained that its standard practice is to calculate
the average between the player’s remuneration with his former club and his remuneration
with the new club, for the exact same period of time comprised between the early
termination of the employment contract with the old club and the original expiry date of
such contract. In case substantial evidence thereof is provided by the club, the Chamber
might additionally grant the damaged club the non-amortised transfer fees paid for the
player in breach and/or the actual costs incurred by the damaged club in order to replace
the leaving player.
79. At this point, the DRC acknowledged that on 5 January 2023, the player entered into a new
employment agreement with Sogdiyona FK valid as from 2 January 2023 until 1 December
2023 for a monthly salary of USD 10,000 net.
80. Bearing in mind that the term of the abovementioned contract and the ones binding the
player and the club (i.e., the Employment Contract and the IR Agreement) were not the
same and, in particular, the new contract was signed for a shorter period, the DRC
considered that the contract with Sogdiyona FK should be fictionally extended to meet the
duration of the Employment Contract and the IR Agreement (i.e., from January 2024 until
July 2024) so that the calculation was done properly.
81. Thus, the Chamber concluded that the average between the player’s remuneration with
the club and Sogdiyona FK amounts to EUR 144,657.20 net (i.e., EUR 110,000 plus EUR
179,314.40 divided by 2).
82. Furthermore, the Chamber noted that, according to the copy of the intermediation
agreement concluded for hiring the player, the club paid agency fees of EUR 4,000 and
pg. 20
REF. FPSD-7861
subsequently concluded with him the Employment Contract and the IR Agreement valid for
24 months. As the contracts were prematurely terminated without just cause by the player
in September 2022 (i.e., after only 3 months of the date of signature), the Chamber
concluded that the amount of EUR 3,500 corresponds to the non-amortised part of the fees
incurred by the club. Thus, the majority of the Chamber decided that such amount should
also be added to the average remuneration of the player in order to establish the total
amount of compensation due by the player to the club.
83. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the majority of the Chamber decided that the player would
be – in principle – liable to pay the amount of EUR 148,157.20 net to the club (i.e. average
remuneration plus non-amortised intermediation fees). Nevertheless, the Chamber noted
that club limited its claim to EUR 134,000 net, which was then awarded by the DRC in line
with the principle of ne ultra petita.
84. Additionally, taking into consideration the club’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the club interest on said
compensation at the rate of 5% p.a. as of the date of the termination (i.e., 29 September
2022) until the date of effective payment.
85. Lastly, in accordance with the unambiguous contents of article 17 paragraph 2 of the
Regulations, the Chamber established that the player’s new club (i.e., Sogdiyona FK) should
be jointly and severally liable for the payment of compensation. In this respect, the
Chamber was eager to point out that the joint liability of the player’s new club is
independent from the question as to whether the new club has committed an inducement
to contractual breach or any other kind of involvement by the new club.
86. The majority of the Chamber also decided that no sporting sanctions should be imposed
on the player and Sogdiyona FK due to the particularities of the case.
iii. Compliance with monetary decisions
87. 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.
88. In this regard, the DRC highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official
matches up until the due amounts are paid and for the maximum duration of six months.
89. Therefore, bearing in mind the above, the DRC decided that, in the event that the player
does not pay the amounts due to the club within 45 days as from the moment in which the
pg. 21
REF. FPSD-7861
club communicates its relevant bank details, provided that the decision is final and binding,
a restriction on playing in official matches, for the maximum duration of six months shall
become effective on the player in accordance with article 24 paragraphs 2 and 4 of the
Regulations.
90. In parallel, 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.
91. Therefore, bearing in mind the above, the DRC decided that the club and Sogdiyona must
pay the full amount due (including all applicable interest) to the respective creditor within
45 days of notification of the decision, failing which, at the request of the respective
creditor, 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.
92. The parties shall make full payment (including all applicable interest) to the bank account
provided in the Bank Account Registration Form, which are attached to the present
decision.
93. The DRC recalled that the above-mentioned restrictions 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
94. 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.
95. 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.
96. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 22
REF. FPSD-7861
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, FK Kukesi, is partially accepted.
2.
The Respondent 1 / Counterclaimant, Tarik Isic, must pay to the Claimant / CounterRespondent EUR 134,000 net as compensation for breach of contract without just cause
plus 5% interest p.a. as from 29 September 2022 until the date of effective payment.
3.
The Respondent 2, Sogdiyona FK, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
The counterclaim of the Respondent 1 / Counterclaimant is partially accepted.
5.
The Claimant / Counter-Respondent, must pay to the Respondent 1 / Counterclaimant the
following amounts:
-
RSD 9,000 outstanding remuneration plus 5% interest p.a. as from 22 July 2022 until
the date of effective payment; and
-
EUR 5,000 net as outstanding remuneration plus 5% interest p.a. as from 29
September 2022 until the date of effective payment.
6.
Any further claims of the parties are rejected.
7.
Full payment (including all applicable interest) shall be made to the bank accounts indicated
in the enclosed Bank Account Registration Forms.
8.
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:
On the Claimant / Counter-Respondent:
1. The Claimant / Counter-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.
pg. 23
REF. FPSD-7861
On the Respondent 1 / Counterclaimant:
1. The Respondent 1 / Counterclaimant shall be imposed with a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of
the restriction shall be of up to six months on playing in official matches.
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 six months.
On the Respondent 2:
1. The Respondent 2 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.
9.
The consequences shall only be enforced at the request of the respective creditor in
accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and
Transfer of Players.
10. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 24
REF. FPSD-7861
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
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
pg. 25