Labour Disputes
Texto da decisão
REF FPSD-4202
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Mikkel
Rygaard Jensen
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
AWAD AL-THEBITY Khalid (Saudi Arabia), member
SARTORI Stefano (Italy), member
CLAIMANT:
Mikkel Rygaard Jensen, Denmark
Represented by Spillerforeningen
RESPONDENT:
LKS Lodz, Poland
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I.
Facts of the case
1.
On 2 January 2021, the Danish player Mikkel Rygaard Jensen (hereinafter: the Claimant or
the Player) and the Polish club L.K.S. Lodz Spolka Akcyjna (hereinafter: the Respondent or the
Club) signed and employment contract valid until 30 June 2024 (hereinafter: the Contract).
2.
Clause 5 “Remuneration” of the Contract reads inter alia as follows:
"In season 2021/2022 – EUR 9,300 net per month in Polish First League (1 Liga)
"PLN [ Polish Zloty] 3,000 net for each Clubs win in official league match (does not apply to
friendly matches or cups) in which the Player will play the minimum of 45 minutes of regular
time (based on the official match report in EXTRANET) in Polish First League (1 Liga)."
"Payment of individual remuneration shall be made in arrears to the 10th day of the next
month, by transfer to a bank account indicated in writing by the Player."
"Provided that the Parties sign herby Contract, the Player shall be paid an individual additional
prize in amount of:
(…)
b) EUR 20,000 netto payable by 15.09.2021
c) EUR 20,000 netto payable by 15.09.2022
d) EUR 20,000 netto payable by 15.09.2023"
3.
On 11 October 2021 the Claimant sent a default notice to the Respondent requesting the
following payments and granting 14 days to comply:
-
EUR 20,000 for the payment due on 15 September 2021
EUR 27,900 for the salaries of July, August and September 2021 (3 x EUR 9,300)
Zloty 3,000 for the win against Skra Czesto on 8 August 2021
Zloty 3,000 for the win against Sandecja on 26 September 2021
EUR 688 for the Foundation payments of July, August and September 2021
4.
On 15 October 2021 the Club paid the amount of EUR 9,300 to the Player.
5.
On 22 October 2021, the Claimant sent a default notice granting an extension of 5 days to
comply.
6.
On 2 November 2021 the Player sent a notice of termination (hereinafter: the Termination
Notice) to the Respondent adducing just cause.
7.
On the same day, after the receipt of the Termination Notice, the Respondent paid the
amount of EUR 9,300.
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8.
On 1 January 2022, the Player signed with an employment contract with the Swedish club
BK Hacken valid until 31 December 2023 (hereinafter: the Hacken Contract).
9.
According to Clause 5 of the Hacken Contract, the Claimant is entitled to the following fixed
remuneration
“5.1 The Player is entitled to a monthly gross salary of [Swedish Krona] SEK 100.000 during
the Term.
(…)
The Player is entitled a sign-on bonus amounting to SEK 1,100,000.”
II. Proceedings before FIFA
10. On 4 November 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
11. According to the Claimant, he has received the full salary, bonuses and sign-on fee for the
season 2020/2021 in correspondence with the Contract.
12. Moreover, the Claimant states that “on 8 August 2021 the Player played 63 minutes in the
game against Skra Czesto, which was won by the Club, and on 26 September 2021 the Player
played 54 minutes against Sandecja, which was also won by the Club”.
13. The Claimant states that in addition to the remuneration agreed in the contract, the
Respondent also paid a monthly fee named 'Foundation'. A monthly amount of 3,150 Zloty
(approximately 688 €) and that this fee is also outstanding for July, August and September
2021.
14. In the view of the Claimant, the Respondent has not honoured its' obligations to pay the
agreed salary, bonuses, individual additional prizes and 'Foundation', as agreed in the
Contract for several months.
15. The Claimant filed the following requests for relief:
“1. For the NET sum of EUR 32,674 owed from 1 September 2021 until 30 October 2021
plus 5% interest rate as from the relevant due dates as follows:
-
EUR 20,000 as the lump sum payment, plus 5% interest as from 16 September 2021
EUR 9,300 for the salary of September plus 5% interest as from 11 October 2021
EUR 655 (Zloty 3,000) for the win against Skra Czesto on 8 August 2021 plus 5% interest
as from 9 August 2021
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-
EUR 655 (Zloty 3,000) for the win against Sandecja on 26 September 2021 plus 5%
interest as from 27 September 2021
EUR 688 for the Foundation payments of July 2021 plus 5% interest as from 1 August
2021
EUR 688 for the Foundation payment of August 2021 plus 5% interest as from 1
September 2021
EUR 688 for the Foundation payment of September 2021 pus 5% interest as from 1
October 2021
2. Additionally, the Player should be compensated in accordance with the full length of the
Contract. From 1 October 2021 and until 30 June 2024, the Player was to receive in total of
net€: 368,916 which must therefore be awarded by the FIFA DRC as the amount due as
compensation for breach of contract, plus 5% interest as from 1 November 2021. This
amount of compensation for breach of contract is calculated as follows:
- 32 months x EUR 9,300 for salary from October 2021 until 30 June 2024 = EUR 297,600
NET plus 5% interest from the due dates
- Individual additional prize of EUR 20,000 NET of 15 September 2022 plus 5 % interests from
the due date
- Individual additional prize of EUR 20,000 NET of 15 September 2023 plus 5 % interests from
the due date
- 32 months x EUR 688 for Foundation from October 2021 until 30 June 2024 = 22,016 EUR
NET plus 5% interest from the due dates
3. Therefore, the total amount for which the DRC should award the Player salary, bonusses,
individual additional prize and 'Foundation' plus compensation for the remaining contract
period amounts to a total NET amount of EUR 392,290 (EUR 32,674 plus EUR 359,616) plus
interest.
4. All payments should be awarded as NET payments, as specifically agreed between the
parties in the contract.”
b. Position of the Respondent
16. The Respondent replied to the claim on the following terms.
17. The Respondent states that “even after the official termination documents were filed, the
Club still transferred to the Players bank account portion of the overdue remuneration with
clear intention of maintaining contractual stability and preventing early termination of the
Contract”.
18. The Respondent further states that the Claimant “refused to attempt an amicable settlement
of the dispute proposed by the Clubs officials, that was solely aimed at maintaining the
contractual stability during harsh economic situation of the Club.”
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19. The Respondent argues that “according to information posted on official Instagram profile
of the Players former team - FC Nordsjaelland, the Claimant is currently training with its
Superliga squad”.
20. Lastly, the Respondent underlines that the Claimant has a duty to mitigate his losses.
21. The Respondent filed the following requests for relief:
“I. the claim to be rejected in full with the exception of the part of the claim that is not
contested by the Club (that is: "32,674 euro net owed from 1st September 2021 to 30th
October 2021").
Alternatively, in case that the Football Tribunal does not find grounds for rejection of the
claim in the part stated above, the Club asks for:
I. the claim to be rejected in the part concerning remuneration referred to by the Claimant as
the "Foundation", as the Club is not responsible for the payment of abovementioned
amounts, and they are not due on the basis of professional football contract binding the Club
with the Respondent that was attached to the claim.
II. mitigate the compensation asked by the Claimant based on the traditional notion of
damage considering the Players potential earnings, as the Claim was submitted before the
Player took action aimed at finding new employment, alternatively should the Player find new
employment based on the Players earnings received from the new employer.”
c. Unsolicited correspondence of the Claimant
22. On 29 November 2021, FIFA general secretariat closed the investigation phase of the
proceeding and informed the parties that no further submissions would be admitted to the
file.
23. On 6 December 2021, the Claimant submitted a picture of the alleged contract with the
“Foundation”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 4 November 2021 and submitted for
decision on 16 February 2022. Taking into account the wording of art. 34 of the October
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2021 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
25. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Danish player and a
Polish club.
26. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 04 November 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
27. 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
28. 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. Admissibility of the Claimant’s unsolicited submission
29. On a preliminary note, the Chamber found that the submission filed by the Claimant on 6
December 2021 cannot be taken into account by the Chamber. In support of this view, the
Chamber relied on the clear wording of art. 23 par. 1 of the Procedural Rules, according to
which the parties may not supplement or amend their submissions or request for relief after
the closure of the investigation by FIFA general secretariat. The Chamber recalled to this end
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that on 30 November 2021, the FIFA general secretariat had closed the investigation-phase
of the matter in accordance with art. 23 of the Procedural Rules.
ii. Main legal discussion and considerations
30. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the existence of just cause for the
contractual termination carried out by the Claimant.
31. In this context, the Chamber acknowledged that it its task was to ascertain whether the
Claimant had just cause for termination the Contract and the consequences arising thereof.
32. The Chamber observed that based on the evidence available and the aforementioned
considerations, at the time of the Termination Notice the Respondent owed to the Claimant the
amount of EUR 39,910, composed as follows:
a. EUR 20,000 as agreed bonus due on 15 September 2021
b. EUR 18,600 for the salaries of August and September 2021 (2 x EUR 9,300)
c. PLN 6,000 as outstanding match bonuses (equal on 26 Jan 22 to EUR 1,310)
33. The DRC noted that the said amount consisted of more than approximately 4 monthly salaries
of the Claimant. Furthermore, the Chamber observed that the Claimant had put the
Respondent in default granting a deadline of 14 days to remedy the default.
34. The Chamber also noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties. Nonetheless, the Respondent has not submitted evidence of the full payment of the
amounts claimed as outstanding by the Claimant.
35. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14 of the Regulations.
iii. Consequences
36. 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.
37. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player and the last payment made by the
Respondent, amounting to EUR 29,300 and PLN 6,000.
38. Notwithstanding the above, the Chamber further noted that the Respondent had admitted
owing to the Claimant the amount of EUR 32,674.
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39. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
and the Respondent’s admission of debt, the Chamber decided that the Respondent is liable
to pay to the Claimant the amounts which were outstanding under the contract at the
moment of the termination, i.e. EUR 32,674.
40. 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 due dates of the different concepts until
the date of effective payment.
41. 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.
42. 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.
43. 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.
44. 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. Consequently, the Chamber concluded
that the amount of EUR 337,600, consisting on the salaries from October 2021 until June
2024 and the bonuses agreed in art. 5.3 of the Contract, serves as the basis for the
determination of the amount of compensation for breach of contract.
45. 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
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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.
46. Indeed, the player found employment with the Swedish club Hacken. In accordance with the
pertinent employment contract, the player was entitled to approximately SEK 100,000 gross
per month and a sign-on bonus of SEK 1,100,000 gross. Therefore, the Chamber concluded
that the player mitigated his damages in the total amount of SEK 3,500,000, that is,
approximately EUR 333,772.
47. At this point, the Chamber recalled that the remuneration in the Contract was agreed in net
and the remuneration in the Hacken Contract was negotiated in gross terms. However, the
Chamber referred to art. 13 par. 5 of the Procedural Rules and underscored that the Claimant
had failed to submit any supporting evidence on his net remuneration with Hacken and
therefore the DRC had no other option but to consider the gross figures as per the Hacken
Contract for the purposes of mitigation.
48. 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.
49. In this respect, the DRC decided to award the amount of additional compensation of USD
EUR 27,900, i.e. three times the monthly remuneration of the player.
50. 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 EUR 31,728
to the player (i.e. EUR 337,600 minus EUR 333,772 plus EUR 27,900), which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
51. 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. 4 November 2021) until the date of
effective payment.
iv. Compliance with monetary decisions
52. 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.
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53. 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.
54. 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.
55. 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.
56. 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
57. 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.
58. 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.
59. 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, Mikkel Rygaard Jensen, is partially accepted.
2.
The Respondent, LKS Lodz, has to pay to the Claimant, the following amount(s):
- EUR 32,674 as outstanding remuneration plus 5% interest p.a. as follows:
On EUR 20,000 from 16 September 2021 until the date of effective payment;
On EUR 9,300 from 11 October 2021 until the date of effective payment;
On EUR 688 from 1 August 2021 until the date of effective payment;
On EUR 688 from 1 September 2021 until the date of effective payment;
On EUR 688 from 1 October 2021 until the date of effective payment;
On EUR 655 from 10 August 2021 until the date of effective payment;
On EUR 655 from 27 August 2021 until the date of effective payment.
- EUR 31,728 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 4 November 2021 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 / art. 8 of Annexe 2 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 the ban shall
be of 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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with
article 24 par. 7 and 8 / art. 8 par. 7 and 8 of Annexe 2 and art. 25 of the Regulations on the
Status and Transfer of Players.
7.
This decision is rendered without costs.
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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).
CONTACT INFORMATION
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