Labour Disputes
Texto da decisão
REF FPSD-5623
Decision of the
Dispute Resolution Chamber
passed on 1 September 2022
regarding an employment-related dispute concerning the player Igor Jelić
BY:
Frans de Weger (the Netherlands), Chairperson
Alexandra Gómez Bruinewoud (Uruguay & the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT / COUNTER-RESPONDENT:
Igor Jelić, Bosnia and Herzegovina
Represented by Tarik Trbić
RESPONDENT / COUNTER-CLAIMANT:
Thanh Hoa, Vietnam
Represented by Marc Cavaliero, Carol Etter and Jaime Cambreleng
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REF FPSD-5623
I.
Facts of the case
1.
On 15 July 2021, the Bosnian player, Igor Jelić (hereinafter: Claimant/Counter-Respondent or
player) and the Vietnamese club, Thanh Hoa (hereinafter: club or Respondent/Counter-Claimant)
concluded an employment contract (hereinafter: contract) valid as from the date of signature until
“the end National Champion League season 2022 and National Cup 2022”.
2.
According to information contained in the Transfer Matching System (TMS), the sporting season
2022 in Vietnam ends on 30 November 2022.
3.
Art. 5.2.2. of the contract reads as follows:
[…] “if the Player unilaterally terminate the Contract, he shall make compensation for the Club at
agreed amount of 500,000 USD (Five hundred thousand US Dollars)”.
4.
Annex 1 to the contract establishes the following salary arrangements:
Season 2021 (payable “between the 15th to the 20th of the next month”):
- Level 1: USD 6,500 per month;
- Level 2: USD 3,250 per month;
- Level 3: USD 1,300 per month;
- Level 4: USD 650 per month;
Season 2022 (payable “between the 15th to the 20th of the next month”):
- Level 1: USD 7,500 per month;
- Level 2: USD 3,750 per month;
- Level 3: USD 1,500 per month;
- Level 4: USD 750 per month.
5.
Moreover, annex 1 to the contract defined:
-
“Level 1: The Player ensures health, training and competition performance and does not
violate the rules and regulations of the Team, the Club and this Labor Contract.”
“Level 2: The player has an injury, illness, accident, after 30 days of treatment but has a
slow recovery, is not healthy enough to practice and compete.”
“Level 3: The player take a break in the middle of the period, off at the end of the season
without training or playing.”
“Level 4: The player violates the rules and regulations of the Team, Club and Labor
Contract, resulting in not being able to play. The Player voluntarily quits training and
playing at the Club. The player is not allowed to register to compete in the Tournament
according to the proposal and plan of the Coaching Committee.”
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6.
Moreover, according to annex 1, the Respondent undertook to pay the Claimant the following
monies:
- USD 30,000 as “contract fee” in 2021, payable in two instalments (50% at the beginning of
the season and 50% at the beginning of “phase 2” of the season);
- USD 75,000 as “contract fee” in 2022, payable in two instalments (50% at the beginning of
the season and 50% at the beginning of “phase 2” of the season).
7.
Annex 2 to the contract, establishes:
“Art. 1.2: “[i]n the event of early termination of the contract for any reason, the player must
refund the contracting fee equivalent to the remainder of the contract.”
“Art. 1.4. In case of natural disasters or epidemics leading to professional football
tournaments not being organized or stopping, the player is only entitled to receive fees
according to the playing time of that year and according to the payment term in section 1.1,
Article 1”.
8.
On 7 May 2021, the Vietnam Football Federation suspended the 2021 sporting season in Vietnam
due to COVID-19.
9.
On 14 August 2021, the player left Vietnam and returned to Serbia.
10. On 23 and 24 September 2021, the Vietnam Football Federation issued notifications to cancel the
2021 sporting season in Vietnam due to the impact of COVID-19.
11. On 19 November 2021, the player returned to Vietnam.
12. On 26 November 2021, the training of the club and the preparation for the season 2022 restarted.
13. On 25 February 2022, the player got a severe knee injury during a training session.
14. On 8 March 2022, the player put the club in default and requested payment of USD 95,000,
corresponding to three monthly salaries and the signing fee, within 15 days.
15. On 14 March 2022, the parties held a meeting to discuss the player’s medical condition.
16. On 25 March 2022, the player terminated the contract with the club due to the outstanding
remuneration.
17. On 5 April 2022, the club remitted the salary for February 2022 (USD 7,500).
18. According to information contained in the TMS, the player remained unemployed up to date.
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II. Proceedings before FIFA
19. On 30 March 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
20. In his claim, the Claimant requested payment of the following monies:
- USD 102,600 as outstanding remuneration plus 5% interest p.a. as of the due dates;
- USD 97,500 as compensation, as residual value of the contract, plus 5% interest p.a. as
of 25 March 2022;
- USD 5,000 as legal costs.
21. In his claim, the player held having had just cause to terminate the contract as the amount of USD
102,500 remained outstanding:
b. Position of the club / Counterclaim
22. In its reply, the club rejected the player’s claim and lodged a counterclaim requesting the following
monies:
- USD 500,000 as compensation in accordance with art. 5.2.2. of the contract;
Alternatively:
- USD 138,292.40 as compensation for breach of contract.
23. The club maintained that the player had no just cause to terminate the contract on 25 March
2022.
24. In this context, the club referred to content of the contract and pointed out that the parties
expressly agreed to provide “four different levels of salary depending on the Player’s participation
into official competition”.
25. The club pointed out that at the time the contract was concluded, the season in Vietnam was
suspended due to COVID-19, which led the parties to agree on the four levels of salary.
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26. In this framework, the club held that it paid the player the following salaries in accordance with
the contract and taking into account the player’s absence as from 14 August 2021 until 19
November 2021:
- USD 3,250 for July 2021 (50% of Level 1 since contract was signed on 15 July 2021);
- USD 3,900 for August until October 2021 (3x USD 1,300; Level 3);
- USD 1,993 for November 2021 (USD 1,127 as Level 3 for 26 days and USD 867 as Level
1 for 4 days)
- USD 6,500 for December 2021 (Level 1);
The club argued that the player signed the receipts for the above-mentioned amounts and
never complained about the amounts.
27. Regarding the “contract fee” for 2021, the club held that, in accordance with art. 1.4 of annex 2,
the player was not entitled to any amount in 2021, as there were no matches played.
28. In this regard, the club maintained having fulfilled its financial obligations for the year 2021.
29. As to the salaries for 2022, the club held that the player’s salary for January 2022 (USD 7,500) was
duly paid, while the salary for February 2022 was remitted 16 days late, due to financial
difficulties.
30. Regarding the “contract fee” for 2022, the club held that it “could not organise the payment [of
the 50% due at the beginning of the season] since it was taking care of the Player’s health”.
Further, the club held that such portion of the fee “was not due before 1 March 2022 and is anyway
not due in case of a termination of contract for any reason whatsoever.”
31. Moreover, the club denied having received the playerr’s default notice dated 8 March 2022 as it
was allegedly sent to the “incorrect” email address ([email protected]), whereby the
official email address is [email protected]. Additionally, the club argued that the
default notice was ”vague, misleading and unsubstantiated” as the claimed amount was not
broken down and the salary for February 2022 was yet not due at this point.
32. Additionally, the club maintained that no opportunity was given to it to remedy its default.
33. The club also pointed out that the player did not mention the default notice during the meeting
dated 14 March 2022, when his medical situation was discussed.
34. On account of the above, the club held that the player had no just cause to terminate the contract
on 25 March 2022.
35. In case the DRC would decide that the club has to pay compensation to the player, it requested
that the accommodation costs for the player’s stay in a hotel between November 2021 and March
2022 (Vietnamese Dong 20,819,000 corresponding to approx. USD 900) as well as the flight tickets
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borne by the club (USD 1,193.20) would be deducted as the club was not obliged by the contract
to pay it.
36. The club requested payment of compensation and argued that art. 5.2.2. of the contract shall be
applied, possibly mitigated by the Chamber.
37. Alternatively, the club quantified its claim for compensation for USD 138, 292.40, corresponding
to the residual value of the contract and the costs for accommodation and air tickets.
c. Position of the player to the Counterclaim
38. In his reply to the counterclaim, the player rejected the counterclaim and reiterated his position.
39. The player rejected the club’s argumentation that he was not entitled to the full salaries. In doing
so, he referred to the wording of the “level 3” salary and he denied that he took “a break” as
defined there.
40. In fact, the player argued that he fully complied with “Level 1”, as he ensured his health, training
performance and fitness by himself and with the help of the Serbian assistant coach of the Club.
41. In this context, he pointed out that it was beyond his control that no matches could be played
during that time and that the club knew about the situation when the contract was signed.
42. Moreover, the player held that his absence from Vietnam was authorized by the club and that he
was in training at home.
43. Additionally, the player held that the wording of the contract does not refer to the “suspension of
the competition”. If the club wanted to remunerate differently in such a case, the club should have
inserted such wording in the contract.
44. The player further denied that his signature on the payment slips means that he agreed to the
amounts. According to the player, this signature simply acknowledges receipt of the amounts, but
nothing more.
45. Furthermore, the player argued that the salary arrangements in annex 1 are “excessive and
potestative”, since it grants the club arbitrary power to amend the remuneration unilaterally
depending on the club’s situation. According to the player, such possibility to reduce the salary
shall be null and void.
46. Moreover, the player held that art. 1.4 of annex 2 is potestative as well and shall also be declared
null and void.
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47. The player pointed out that COVID-19 is no case of force majeure and that it does not exempt the
club from paying the player’s remuneration. Especially, since the club knew at the time of the
conclusion of the contract that such situation was possible.
48. In this regard, the player insisted that he is entitled to receive the “contract fee” for 2021, as well
as 2022, from which 50% fell due on 1 January 2022.
49. Regarding the just cause, the player pointed out that he is not solely relying on art. 14bis RSTP,
but also art. 14 RSTP.
50. The player pointed out that the email address [email protected] was publicly
available and that he sent the termination letter, which was received by the club, was sent to the
same email address.
51. He insisted that he correctly put the club in default, but argued that he had just cause to terminate
the contract even without such default notice, as the club failed to remit his salaries for more than
two months.
52. Moreover, the player held that the club lost interest in the player after his injury, since a new
player was hired.
53. The player rejected the club’s request to take into account the accommodation and air ticket
costs, as such amounts were voluntarily paid by the club.
54. In case the DRC decides that the player had no just cause to terminate the contract, he requests
that no compensation shall be payable “since the Club contributed to the termination by not
paying a substantial number of salaries”.
55. In this context, the player argued that art. 5.5.2. of the contract is not reciprocal and completely
disproportionate. Such clause shall be disregarded.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
56. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 30 March 2022 and submitted for decision on 1
September 2022. Taking into account the wording of art. 34 of the June 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.
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57. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (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 player from Bosnia & Hercegovina and a Vietnamese club.
58. 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 30 March 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
59. 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
60. 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 abovementioned 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
61. The foregoing having been established, the DRC moved to the substance of the matter, and took
note of the fact that the parties dispute the justice of the early termination of the contract by the
player.
62. In this context, the Chamber acknowledged that its task was to determine if the contract was
terminated with or without just cause and to decide on the consequences thereof.
63. The DRC noted that the player argued that he had just cause to terminate the contract on 25
March 2022 due to outstanding remuneration of more than two months. Therefore, he claims his
outstanding dues as well as compensation for breach of contract.
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64. Furthermore, the Chamber acknowledged that the club argued that the player had no just cause
since there was only one monthly salary outstanding at the moment of termination (February
2022), which was paid in the meantime. Therefore, the club claims compensation for breach of
contract from the player.
65. In this context, the Chamber first of all wished to establish what amounts the player was entitled
to receive from the club. Therefore, the members of the Chamber started analysing the content
of the contract with focus on the salary arrangements (Level 1 to 4) as well as the “contract fee”
for 2021 and 2022.
66. The DRC concluded that the wording of the salary arrangements in annex 1 (Level 1 to 4) appears
to be vague and does not refer to the suspension of the competition due to COVID-19. Indeed,
the Chamber established that the club agreed that the player left Vietnam between 14 August
2021 and 19 November 2021 and, taking into account that the player was actually training during
that period, it does not seem accurate that the club reduced the salary to level 3, which in view
of the Chamber did not reflect the actual situation. Furthermore, the DRC wished to emphasize
that such arrangement appears to be arbitrary and shall not be taken into account. Therefore, the
Chamber took into account the level 1 salaries for 2021 and 2022.
67. In this regard, the members of the Chamber also rejected the club’s argument that the player
accepted the lower salary by signing the receipts, since such signature solely proofs that he
received the amount, not that he agreed to it.
68. Taking into account the above, the DRC established that the player was entitled to USD 6,500 per
month between August and December 2021 (total amount of USD 32,500). From the
documentation on file, it appears that the club remitted the amount of USD 12,400 (3x USD 1,300,
USD 2,000, USD 6,500). Therefore, the members of the Chamber concluded that the player
remained entitled to receive the amount of USD 20,100 for the salaries related to 2021.
69. Further, the DRC noted that the salary for January 2022 was remitted on time and that the salary
of February 2022 (USD 7,500) was remitted after the termination on 5 April 2022.
70. Regarding the “contract fee”, the Chamber started to analyse if such fee was due in 2021, in light
of art. 1.4 of annex 2 of the contract, since no competition could be played. Since the wording of
this clause is rather clear, the DRC concluded that the contract fee is not due for 2021
71. The Chamber further established that 50% of the contract fee was due at the beginning of the
season 2022. The exact due date was disputed, but taking into account the unclear wording of the
annex, the members of the Chamber concluded that such fee (USD 37,500) was due on 1 January
2022.
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72. In order to establish if the player had just cause to terminate the contract, the circumstances of
the default notice sent on 8 March 2022 had to be analysed by the Chamber. The club held that
such notice was sent to an incorrect email address and therefore was not received by the club.
However, the player held that it was one of the official email addresses and that he sent the
termination letter (which remained undisputed) to the same email address. Further, the DRC
noted that the email address appears in TMS and was used by the FIFA administration (amongst
others) to notify the present claim to the club. Therefore, DRC decided that the default notice
was correctly sent to the club.
73. On account of the above, the DRC concluded that the club had outstanding remuneration of USD
65,100 (USD 20,100 from the salaries of 2021; USD 37,500 from the first part of the contract fee
2022 and USD 7,500 from the salary of February 2022) at the time of the termination.
74. Consequently, on account of the above, considering that the club had thus repeatedly and for a
significant period of time been in breach of its contractual obligations towards the player, the DRC
decided that the player had just cause to unilaterally terminate the employment contract on 25
March 2022 and that, as a result, the Respondent is to be held liable for the early termination of
the employment contact with just cause by the player.
75. Taking into account the above, the DRC rejected the club’s counterclaim.
ii. Consequences
76. 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.
77. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant the amount of USD 57,600
which is the outstanding amount under the contract at the moment of the termination, i.e. USD
65,100, less the salary for February 2022 (USD 7,500) which was remitted in the meantime.
78. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5%
p.a. on the outstanding amounts as from the respective due dates until the date of effective
payment.
79. 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
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contract up to a maximum of five years, and depending on whether the contractual breach falls
within the protected period.
80. 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.
81. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the club to the player had to be assessed in application of the other parameters set
out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
82. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract from the date of
its unilateral termination until its end date. In order to evaluate the residual value of the contract,
the DRC started to analyze if the residual contract fee for 2022 (USD 37,500) is due to the player,
in light of art. 1.2 of annex 2 of the contract. In doing so, the Chamber established that such clause
is unclear as it refers to a refund for the remainder of the season. Therefore, the DRC did not take
it into account and decided to award the full amount of the contract fee 2022 to the player.
83. Consequently, the Chamber concluded that the amount of USD 105,000 (i.e. USD 67,500 as
salaries; 9x USD 7,500; March to November 2022 / plus the residual contract fee of USD 37,500)
serves as the basis for the determination of the amount of compensation for breach of contract.
84. 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.
85. Indeed, the player did not find new employment and was therefore not able to mitigate his
damages.
86. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of USD 105,000 to the
player, which was to be considered a reasonable and justified amount of compensation for breach
of contract in the present matter.
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87. 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 30 March 2022 until the date of effective payment.
iii. Compliance with monetary decisions
88. 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.
89. 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.
90. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision,
failing which, at the request of the player, 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.
91. The club 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.
92. 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
93. 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.
94. 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.
95. 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 / Counter-Respondent, Igor Jelić, is partially accepted.
2.
The Respondent / Counter-Claimant, Thanh Hoa, has to pay to the Claimant / Counter-Respondent,
the following amount(s):
- USD 5,200 as outstanding remuneration plus 5% interest p.a. as from 21 September 2021 until
the date of effective payment;
- USD 5,200 as outstanding remuneration plus 5% interest p.a. as from 21 October 2021 until the
date of effective payment;
- USD 5,200 as outstanding remuneration plus 5% interest p.a. as from 21 November 2021 until
the date of effective payment;
- USD 4,500 as outstanding remuneration plus 5% interest p.a. as from 21 December 2021 until the
date of effective payment;
- USD 37,500 as outstanding remuneration plus 5% interest p.a. as from 21 February 2022 until the
date of effective payment;
- USD 105,000 as compensation for breach of contract plus 5% interest p.a. as from 30 March 2022
until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision, the
following consequences shall apply:
- The Respondent-Counter-Claimant shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum duration of the
ban shall be of up to three entire and consecutive registration periods.
- The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status
and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
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