Labour Disputes
Texto da decisão
REF FPSD-6392
Decision of the
Dispute Resolution Chamber
passed on 10 November 2022
regarding an employment-related dispute concerning the player Dorde
Ivanovic
COMPOSITION:
Lívia Silva Kägi (Brazil & Switzerland), Acting Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), Member
Stijn Boeykens (Belgium), Member
CLAIMANT:
Dorde Ivanovic, Serbia
Represented by Dejan Stefanovic
RESPONDENT:
FC Shakhtyor Soligorsk, Belarus
Represented by Darina Nikitina
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I. Facts of the case
1.
On 17 June 2021, the Serbian player, Mr Dorde Ivanovic (hereinafter: the player or the
Claimant), and the Belarussian club, FC Shakhtyor Soligorsk (hereinafter: the club or the
Respondent), concluded an employment contract valid as from the date of signature until
16 June 2022 (hereinafter: the employment contract).
2.
In accordance with clause 8.1.1 of the employment contract, the club undertook to pay
the player a monthly salary of BYN 15,000.
3.
Clause 8.1.5 of the employment contract read as follows: “wages and other payments
provided for in Appendix 1 to the agreement, which is an integral part of it, are paid to [the
player] regularly (on the 14th day of each month) in monetary units of the Republic of Belarus
and are transferred to the current (settlement) account of [the player]”.
4.
On 18 June 2021, the same parties signed a supplementary agreement valid until 21
December 2024 by means of which they, inter alia, amended the financial conditions
established in the employment contract (hereinafter: the first supplementary
agreement).
5.
In accordance with clause 2 of the first supplementary agreement, inter alia, the following
amendments / new provisions obligations were added to the employment contract:
a. clause 8.1.1 of the employment contract was amended as follows:
“The salary is 4 300 (four thousand three hundred) EUR (amount of payment after
tax and payment of deductions to FSZN) per month, which is 15 000 (fifteen
thousand) rubles, taking into account taxes and fees provided for by the
legislation of the Republic of Belarus, at the official rate of the National Bank of
the Republic of Belarus on the date of signing the contract. The salary structure
is established by the organization’s staffing table, approved by the director of
[the club] (salary premium is set at 50%). In case of changed in the current labor
legislation concerning salary increase (decrease), the structure of wages is
regulated by local regulatory acts of [the club] and does not require
amendments to the current labor contract” (emphasis in the original).
b. under clause 8.1.3, the club undertook to pay the player the following
additional amounts:
i. EUR 41,400 by 30 July 2021;
ii. EUR 50,000 by 30 August 2021;
iii. EUR 41,400 by 30 September 2021;
iv. EUR 41,400 by 30 November 2021;
v. EUR 41,400 by 30 January 2022;
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vi. EUR 50,000 by 28 February 2022;
vii. EUR 41,400 by 30 March 2022;
viii. EUR 41,400 by 30 May 2022;
ix. EUR 41,400 by 30 July 2022;
x. EUR 41,400 by 30 September 2022;
xi. EUR 41,400 by 30 November 2022;
xii. EUR 41,400 by 30 January 2023;
xiii. EUR 41,400 by 30 March 2023;
xiv. EUR 41,400 by 30 May 2023;
xv. EUR 41,400 by 30 July 2023;
xvi. EUR 41,400 by 30 September 2023;
xvii. EUR 41,400 by 30 November 2023;
xviii. EUR 41,400 by 30 January 2024;
xix. EUR 41,400 by 30 March 2024;
xx. EUR 41,400 by 30 May 2024;
xxi. EUR 41,400 by 30 July 2024;
xxii. EUR 41,400 by 30 September 2024; and
xxiii. EUR 41,400 by 30 November 2024.
c. the same clause 8.1.3 also read as follows: “payment of remuneration shall be
made provided that [the player] is in labour relations with [the club] on the date
of corresponding payment”; and
d. clause 8.1.9 stated as follows: “[the club] shall reimburse [the player] for the
costs of accommodation (rental housing) in the city of Soligorsk in Belarusian
rubles at the official rate of the National Bank of the Republic of Belarus on the
day of transfer at the rate of 200 (two hundred) US dollars (the amount of
payment after tax and payment of deductions to the FSZN) per month upon of
the relevant documents” (emphasis in the original).
6.
Finally, clause 3 of the first supplementary agreement stated as follows: “[the club]
compensated [the player] for the costs for the purchase of 2 (two) air tickets (economy class)
on the route Minsk-Belgrade-Minsk during the year”.
7.
On 18 January 2022, the club and the Slovenian club, NK Maribor (hereinafter: Maribor),
concluded a loan agreement by means of which the player was temporarily transferred
from the club to Maribor between 20 January 2022 and 30 May 2022 (hereinafter: the
loan agreement).
8.
Clause 2 of the loan agreement read as follows:
“[the club] and [the player] who have a valid labor contract by mutual agreement for the
period of temporary transfer (transfer of the player to [Maribor] undertake to suspend this
labor contract and fulfil their mutual obligations under it (including obligations to pay wages
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and other payments), while [the club] undertakes to temporarily transfer the player to
[Maribor] for the period from 20.01.2022 to 31.05.2022”.
9.
Clause 3 of the loan agreement read as follows:
“[Maribor] undertakes, in accordance with the legislation of Slovenia, to hire the player as
temporary transfer and conclude a fixed-term employment contract with him for a period from
20.01.2022 to 31.05.2022 on mutually agreed terms. [Maribor] undertakes, during the term
of the fixed-term employment contract with the player, to pay him salary and other
remuneration in the manner and under the conditions determined by the fixed-term labor
contract, to be responsible for improper performance of its duties established by this transfer
contract, the fixed-term labor contract with [the player], the FIFA Regulations on the Status and
Transfer (Transfers) of Football Players and other FIFA Regulatory Documents. [Maribor] has
no right, without consent of [the club], to transfer the player to another employer or to
terminate the term of the fixed-term employment contract with [the player] ahead of schedule
(except for dismissal for disciplinary violations)”.
10. Also on 18 January 2022, the club and the player signed a second supplementary
agreement in order to address their residual obligations during the loan period
(hereinafter: the second supplementary agreement).
11. Clauses 1 and 2 of the second supplementary agreement read as follows:
“1. The parties agreed that for the rental period from 01/20/2022 to 05/31/2022 in
[Maribor], the total amount of guaranteed payments – wages and remuneration for
professional excellence, will be reduced by the amount of guaranteed payments received
by [the player] from the football club in which [the player] will be located under the
lease agreement. In this case, the total amount of guaranteed payments received by [the
player] from [the club] in this period should be 155.700 Euros (net), which will be
produces in equal parts in the period up to 30.06.2022.
2. The resulting debt to [the player] for 2021, [the club] undertakes to repay before
28.02.2022.
The rest of the terms of the above contract remain unchanged”.
12. On 19 April 2022, the player put the club in default and requested payment of EUR 92,400
net within 10 days, corresponding to “unpaid instalments (incomplete monthly salaries,
bonuses, apartment rent and airline tickets) for months between June 2021 and December
2021, which are overdue for more than 30 days”.
13. On 21 April 2022, the club replied to the player’s notice as follows:
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“Hope this email finds you well. We received your letter dated 19/04/2022 and in response to
it we can inform you that we knew about the resulting debt to debt. And we guarantee its
repayment when you return from loan and restore the contract with [the club]. At the moment,
we cannot repay the debt, as your contract with the club is suspended, and according to the
legislation of the Republic of Belarus, we cannot make payments on suspended contracts”.
14. On 6 May 2022, the player sent the club a second default notice requesting payment of
EUR 196,200 net within 15 days and under penalty of termination. The debt was broken
down by the player as follows:
e. EUR 92,400 net of “unpaid instalments (incomplete monthly salaries, bonuses,
apartment rent and airline tickets) for months between June 2021 and December
2021, which corresponds to more than two monthly salaries”; and
f.
EUR 103,800 net, corresponding to the instalments from January until April
2022 as per the second supplementary agreement (i.e. EUR 155,700 / 6 * 4).
15. On 20 May 2022, the club provided its reply to the player’s notice. In doing so, it (i)
informed that the total amount of EUR 145,988 had been paid to the player for the 2021
season, entailing that the remaining debt was EUR 54,012 and would be delivered “at the
earliest”; (ii) informed that the sum of EUR 155,700 would only be due on 30 June 2022 as
per the second supplementary agreement; and (iii) requested to be provided with a copy
of the player’s rent contract and air tickets to enable the reimbursement.
16. On 25 May 2022, the player contacted the club again and stressed that the amount of EUR
155,700 should be paid in instalments, therefore was partially overdue. Furthermore, he
granted the club an additional and final 5 days’ deadline to remedy the breach.
17. On 27 May 2022, the club replied to the player and stressed, inter alia, that “the payment
of EUR 155,700 provided in [the second supplementary agreement] will be paid to you in
due course as provided in mentioned agreement up to 30 June 2022”. Additionally, the club
provided tickets for the player to return from Belgrade to Minsk on 1 June 2022 (i.e.
following the end of the loan period).
18. On 1 June 2022, the player notified the club the termination of the employment contract
due to overdue payables (hereinafter: the termination letter).
19. On 2 June 2022, the club allegedly acknowledged receipt of the termination letter and
informed that the termination of the employment relationship by the player took place
without just cause. The club furthermore referred to art. 17 of the FIFA Regulations on the
Status and Transfer of Players (RSTP) and held that the player would be liable to the
consequences of his breach.
20. On 2 June 2022, the player entered into a new employment agreement with the Serbian
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club, FK Čukaričk, valid as from 1 July 2022 until 30 June 2026. Accordingly, the player
would be entitled to a monthly salary of EUR 10,000 plus a special fee amounting to EUR
120,000 (i.e. EUR 40,000 per season, for 3 seasons).
II. Proceedings before FIFA
21. On 17 June 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
22. In his claim, the player stated that he did not receive a substantial part of his salaries from
June until December 2021, amounting to EUR 59,100. In particular, he mentioned that
after his notice dated 6 May 2022, the club did only pay him EUR 32,400 out of a debt of
EUR 92,400. In addition, he pointed out that the amount of EUR 129,750 per the second
supplementary agreement was also not paid during the loan (i.e. only one monthly
payment out of six was delivered).
23. The player clarified that he was entitled to a pro rata monthly salary of EUR 27,380,
therefore the debt of the club at the time of the termination was higher than the threshold
of two monthly salaries mentioned in art. 14bis of the FIFA RSTP. Consequently, he had
just cause for the termination of the employment relationship.
24. In light of the above, the player requested to be awarded the following amounts:
a. EUR 59,100 net as the outstanding remuneration for the 2021 season (cf.
employment contract and first supplementary agreement);
b. EUR 129,750 net as the outstanding remuneration from January to May 2022
(cf. second supplementary agreement); and
c. EUR 355,950 net as compensation for breach of contract, corresponding to
the residual value of their contracts (EUR 775,950) minus EUR 420,000
earned with FK Čukarički.
25. Finally, the player requested to be awarded interest over the outstanding salaries as from
the respective due dates, and over the compensation as from 1 June 2022.
b. Reply of the club
26. On 11 July 2022, the club filed its reply to the player’s claim and strongly asserted that the
employment relationship with the player was terminated without just cause.
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27. Firstly, the club acknowledged that at the time of the termination by the player the
amount of EUR 53,310 was outstanding (i.e., EUR 200,000 for the period between June
and December 2021 minus EUR 146,689.04 that were effectively paid).
28. Having established the above, the club referred to art. 14bis, par. 2 of the FIFA RSTP and
pointed out that the player’s monthly remuneration should be calculated pro rata over a
12-month period (June 2021 to May 2022), totalling EUR 33,333.33.
29. As a result, the club concluded that the outstanding remuneration at the time of the
termination of the employment contract by the player amounted to less than 2 monthly
salaries, hence the player did not have just cause.
30. Additionally, the club argued that the amount of EUR 155,700 mentioned in the second
supplementary agreement should not be taken into consideration for the calculation of
its dues. This is because, in the club’s view, such amounts should be paid until 30 June
2022, therefore were not yet overdue neither by the time the notice was sent nor at the
time of the termination.
31. Finally, the club underlined that it sent the player flight tickets to return to Belarus on 1
June 2022, but the player unilaterally terminated the employment contract and on the
very next day signed with FK Čukaričk. For the club, it “shows that the player and his new
club had already agreed the terms much earlier before the effective termination with the club,
and the player had no real intention to execute the contract with [the club]”.
32. In light of the foregoing, the club concluded that “the player terminated the contract without
just cause, and, thus, no compensation is payable to the player”. On these grounds, it
requested FIFA to reject the claim.
33. No counterclaim was filed by the club against the player.
c. Rejoinder of the player
34. On 17 July 2022, the player filed his comments on the club’s reply. In doing so, he firstly
disputed the proof of payments filed by the club together with its reply and held that the
club’s outstanding debt at the time of the termination corresponded to: (i) EUR 60,000 for
the period between June and December 2021; and (ii) EUR 129,750 for the period between
January and May 2022.
35. Even if considered that the outstanding debt at the time of the termination amounted to
EUR 53,310, as suggested by the club, the player argued that he would still have just cause
to terminate the employment contract on the basis of art. 14bis of the FIFA RSTP. This is
because the club did not comply with its dues “in full”, as required in such provision.
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36. Subsequently, the player referred to content of the second supplementary agreement
and disagreed with the club’s interpretation. In particular, the player insisted that – as the
payments should be made “in equal parts” – the club was not allowed to only pay the full
amount on 30 June 2022 at the latest. On the contrary, the player considered that the
“intention” of the parties was clear, meaning that the club was supposed to deliver equal
monthly instalments.
37. Finally, the player disputed the club’s allegations as to the flight ticket and the return to
Belarus. In this respect, the player held that he “was under no obligation to return as the
club was already in default of its obligations”.
38. In light of the foregoing, the player reiterated his claim and argued that the club’s position
should be entirely rejected.
d. Final comments of the club
39. On 25 July 2022, the club filed its final comments on the matter at hand.
40. The club submitted further evidence on the payments made to the player and reiterated
that a total of EUR 146,689.04 was wired. Furthermore, the club also pointed out that the
player contradicted himself as to the outstanding debt: (i) in his statement of claim, the
player claimed that EUR 33,300 were paid by the club on 20 May 2022 i.e. the debt
amounted to EUR 53,310; and (ii) in his rejoinder, the player claimed that only EUR 32,400
were paid by the club on 20 May 2022 i.e. the debt amounted to EUR 60,000.
41. In light of the above, the club inter alia concluded that “the delayed payment to the player
to the date of termination of EUR 53,310 was obviously less than two average monthly
remunerations of the player under the contract. Therefore, the player did not have just cause
to terminate the contract under par. 2, art. 14bis of FIFA RSTP”.
42. Lastly, the club confirmed its request for the claim to be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
43. 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 17 June 2022 and submitted
for decision on 10 November 2022. Taking into account the wording of art. 34 of the June
2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
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Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
44. 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 (July 2022 edition), the Dispute Resolution Chamber is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Serbian player and a Belarusian club.
45. 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 (July 2022 edition), and
considering that the present claim was lodged on 17 June 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
46. 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
47. 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
48. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for outstanding remuneration
and compensation for breach of contract lodged by the player against the club.
49. The player terminated the employment contract on 1 June 2022; and the parties strongly
dispute whether he had just cause to do so, as well as the consequences that follow.
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50. In this context, the DRC initially recalled its well-established jurisprudence according to
which only a breach or misconduct that is of a certain severity justifies the termination of
a contract. In other words, only when there are objective criteria which do not reasonably
permit the expectation that the continuation of the employment relationship between
the parties can continue, a contract may be terminated prematurely. Hence, if there are
more lenient measures which can be taken in order for an employer to ensure the
employee’s fulfilment of his contractual duties, such measures must be taken before
terminating an employment contract. A premature termination of an employment
contract can only ever be an ultima ratio measure.
51. With the above in mind, the members of the Chamber observed that the player based the
termination on the fact that the club had systematically failed to pay him part of his
remuneration. On the other hand, the Chamber also observed that the club challenged
the quantum claimed by the player as well as underlined that the termination took place
only two days after their employment relationship had been resumed, hence without just
cause.
52. In this context, the DRC deemed that the relevant events of this case could be
summarized as follows:
Date
17/18 June 2021
18 January 2022
19 April 2022
21 April 2022
6 May 2022
20 May 2022
25 May 2022
Event
The player and the club initiated an employment relationship valid
until 21 December 2024 (cf. employment contract and first
supplementary agreement).
The player was loaned to Maribor from 20 January 2022 to 30 May
2022. The employment contract and the first supplementary
agreement were suspended.
The parties concluded a second supplementary agreement to
establish their pending financial duties towards each other during the
loan period.
The player put the club in default for outstanding remuneration
amounting to EUR 92,400 net, all referring to the pre-loan period.
The club replied to the player’s notice and informed that any pending
amounts would be paid as soon as he returned from loan.
The player put put the club in default for the second time and granted
a 15 days’ deadline to pay him EUR 196,200 net as outstanding
remuneration from both 2021 (EUR 92,400) and the second
supplementary agreement (EUR 103,800 net).
The club acknowledged a debt of EUR 54,012 towards the player for
the 2021 season and confirmed that said sum would be delivered as
soon as the player was back from loan. Moreover, it informed that the
amounts provided for in the second supplementary agreement were
not yet due and would be paid up to 30 June 2022.
The player granted the club a final deadline of 5 days to remedy the
breach under penalty of termination.
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27 May 2022
1 June 2022
2 June 2022
The club insisted that the amounts provided for in the second
supplementary agreement were not overdue and provided the player
with his flight tickets to return to Belarus on 1 June 2022.
The player terminated his employment relationship with the club.
The player signed with FK Čukaričk, valid as from 1 July 2022.
53. Against this background, the DRC turned its attention to the club’s allegations that: (i) the
outstanding remuneration for 2021 could not be paid because the employment
relationship with the player was suspended; and (ii) the remuneration mentioned in the
second supplementary agreement was not be due up until 30 June 2022.
54. At this point, the Chamber initially took due consideration that the employment contract
and the first supplementary agreement were suspended during the term of the loan.
Nevertheless, the Chamber was also observant that at the exact same date that the
parties concluded the loan agreement, the club also acknowledged a debt towards the
player from the previous season and undertook to pay him the overdue amounts by
February 2022 plus the additional remuneration throughout the term of the loan, in line
with the second supplementary agreement.
55. In light of the above, the DRC was convinced that despite of the player not being rendering
services to the club because of the loan, the constellation of agreements signed between
the parties establish that the club would still have to comply with specific financial duties.
As such, the Chamber concluded that the club could not benefit from its own tort by
committing to financial duties and subsequently departing from its obligation by alleging
that the employment contract was suspended. This is also without forgetting that the club
did not advance any proof that it was prevented from performing payments because of
the national law, as suggested in its correspondences sent to the player and its
submissions in these proceedings.
56. As a consequence of the above, the DRC determined that the club’s argumentation in this
regard should be set aside, meaning that the club should have delivered the player the
outstanding remuneration for 2021 as stipulated in the second supplementary
agreement.
57. In continuation, the Chamber was also mindful of the parties’ dissent regarding the
quantum outstanding. In this respect, the DRC considered that the player filed
contradictory allegations and could not substantiate the amount claimed of EUR 60,000.
Therefore, it decided that the outstanding remuneration for the 2021 season
corresponded to the challenged amount of EUR 54,012 – as confirmed by the club and
not specifically disputed by the player in his rejoinder.
58. Having determined the above, the Chamber moved to the analysis of the remuneration
under second supplementary agreement and noted that the parties also disputed
whether there was any outstanding amount at the time of the termination. In this
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connection, the DRC carefully analysed the wording of the last sentence of clause 1 of said
contract, in verbis: “the total amount of guaranteed payments received by [the player] from
[the club] in this period should be 155.700 Euros (net), which will be produced in equal parts
in the period up to 30.06.2022” (emphasis added).
59. Accordingly, the DRC firstly considered that the wording of said clause should be
entertained by seeking the true intention of the parties. As opposed on the club’s
argumentation on this topic, the Chamber deemed that by referring to a payment
“produced in equal parts in the period up to 30.06.2022”, it could be clearly established that
the parties had in fact agreed that the EUR 155,700 should be delivered in a monthly basis
during the term of the loan agreement i.e. starting on January 2021 and finishing in June
2022, being 6 instalments of EUR 25,950 net each. The DRC felt furthermore comforted
with this conclusion when considering that said payments were indeed a “reduction” of
the guaranteed payments previously stipulated in the employment contract, which were
also paid in instalments.
60. It followed from the above, in the Chamber’s view, that at the time the player terminated
his employment relationship with the club, the club had failed to pay him a total amount
of EUR 183,762, corresponding to the debt for 2021 plus the instalments of the second
supplementary agreement that felt due from January until May 2022. Furthermore, the
DRC was also observant that the player put the club in default three different times,
having granted it with a reasonable deadline to remedy the breach, to no avail.
61. Based on all the abovementioned considerations and while considering its long-standing
jurisprudence on the matter, the members of the Chamber were satisfied with the
conclusion that such persistent and substantial non-compliance of the financial
obligations by the club could justify the unilateral termination of the contract as well as it
could hold the club liable for breach of contract. Thus, based on the specific factual and
contractual situation, the Chamber decided that the player had just cause to terminate
the employment relationship with the club.
62. For the sake of completeness, the DRC also considered that the fact that the player
entered into a new employment agreement with FK Čukaričk right after the termination
could possibly suggest (as raised by the club) that he was not interested in continuing with
their employment relationship. However, the Chamber concluded that this fact alone
does not affect its previous conclusion on the just cause because at the time the player
was supposed to return to Belarus, the club was already in breach of its duties for around
six months, hence he could legitimately question its commitment in the long run. As such,
the DRC pointed out that the timeline of the case could not be held against the player and
the club should be liable to the consequences of the unlawful termination.
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ii. Consequences
63. 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.
64. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to the outstanding
remuneration for the pre-loan period (2021) plus the five last instalments under the
second supplementary agreement.
65. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda and the constant practice of the Chamber in this regard, the latter decided that
the club is liable to pay to the player the amounts which were outstanding at the moment
of the termination plus interest at the rate of 5% p.a. as from each respective due date
until the date of effective payment, as follows:
a. EUR 54,012 net as the outstanding remuneration for 2021, plus 5% interest p.a. as
from 1 March 2022 (cf. clause 2 of the second supplementary agreement); and
b. EUR 129,750 net as the first five instalments of the second supplementary
agreement, plus 5% interest p.a. as from the first day of each subsequent month.
66. 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.
67. 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.
68. 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
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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.
69. 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
employment contract and the supplementary agreements, from the date of the unilateral
termination until the end date. Consequently, the Chamber concluded that the amount
of EUR 775,950 net serves as the basis for the determination of the amount of
compensation for breach of contract, broken down as follows:
•
EUR 25,950 as the last instalment of the second supplementary agreement due
in June 2022;
•
EUR 129,000 as the salaries from July 2022 until December 2024 (i.e. 30 months);
•
EUR 621,000 as the guaranteed payments from June 2022 until December 2023
(i.e. EUR 41,400 * 15).
70. 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.
71. Indeed, the player found employment with FK Čukaričk. In accordance with the pertinent
employment contract, the player was entitled to EUR 10,000 per month and an additional
payment of EUR 40,000 per season. Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of EUR 420,000, that is, the salaries from July
2022 until December 2024 and the special fees for the relevant seasons.
72. 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.
73. In this respect, the DRC decided to award the amount of additional compensation of EUR
108,250.82 net, i.e. three times the average monthly remuneration of the player (EUR
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36,083.61), considering both his salary and the guaranteed payments under clause 8.1.3
of the first supplementary agreement.
74. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the player would be in
principle entitled to an overall compensation of EUR 464,200.82 net (i.e. EUR 775,950
minus EUR 420,000 plus EUR 108,250.82), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
75. Nevertheless, while recalling the player’s submissions, the DRC acknowledged that he
limited his request for compensation to a sum of EUR 355,950 net. Therefore, the
Chamber referred to the general legal principle of ne ultra petita and decided to award
exactly the amount claimed by the player as compensation for breach of contract.
76. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of the claim (i.e. 17 June 2022) until the
date of effective payment.
iii. Compliance with monetary decisions
77. 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.
78. 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.
79. 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.
80. 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.
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REF FPSD-6392
81. 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
82. 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.
83. 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.
84. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Dorde Ivanovic, is partially accepted.
2.
The Respondent, FC Shakhtyor Soligorsk, has to pay to the Claimant the following
amounts:
-
EUR 25,950 net as outstanding remuneration plus 5% interest p.a. as from 1 February
2022 until the date of effective payment;
-
EUR 75,962 net as outstanding remuneration plus 5% interest p.a. as from 1 March
2022 until the date of effective payment;
-
EUR 25,950 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of effective payment;
-
EUR 25,950 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
-
EUR 25,950 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2022
until the date of effective payment; and
-
EUR 355,950 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 17 June 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban
shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
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REF FPSD-6392
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-6392
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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