Labour Disputes
Texto da decisão
REF FPSD-3683
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Igor
Jovanovic
COMPOSITION:
Clifford Hendel (USA/France), Deputy Chairperson
Stella Maris Juncos (Argentina), member
Alejandro Atilio Taraborrelli (Argentina), member
CLAIMANT:
Igor Jovanovic, Germany
Represented by Ivan Ostojic; Hrvoje Raic; Bruno Skelin
RESPONDENT:
AFC Astra Giurgiu, Romania
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REF FPSD-3683
I.
Facts of the case
1.
On an unspecified date, the German player, Igor Jovanovic (hereinafter: the Claimant), and
the Romanian club, AFC Astra Giurgiu (hereinafter: the Respondent) signed an employment
contract (hereinafter: the contract) valid as from 19 January 2021 until 30 May 2021.
Although the contract indicted the aforesaid term, the offer which the Claimant received
prior to conclusion of the contract, stipulated that the term of the contract would be 19
January to 30 June 2021, which was furthermore confirmed under the remuneration
provisions of the contract.
2.
In accordance with art. v of the contract, the Respondent undertook to pay to the Claimant
a monthly remuneration of EUR 7,500 net for the period 19 January 2021 until 30 June 2021.
3.
Additionally, art 4 (k) of the contract indicated that the Respondent will provide housing to
the Claimant to the limit of EUR 300.
4.
On 1 June 2021, the Claimant, sent a default letter to the Respondent and requested payment
of his outstanding remuneration in the total amount of EUR 16,200 net, corresponding to
the following:
-
EUR 300 net - January 2021 rent allowance
EUR 300 net - February 2021 rent allowance
EUR 300 net - March 2021 rent allowance
EUR 7,500 net - March 2021 remuneration
EUR 300 net - April 2021 rent allowance
EUR 7,500 net - April 2021 remuneration
5.
The Claimant granted to the Respondent a deadline of 15 days to comply with the terms of
the aforesaid letter, however to no avail.
6.
On 17 August 2021, the Claimant, sent a second default letter to the Respondent and
requested payment of his outstanding remuneration in the total amount of EUR 31,800 net,
corresponding to the following remuneration:
-
EUR 300 net - January 2021 rent allowance
EUR 300 net - February 2021 rent allowance
EUR 300 net - March 2021 rent allowance
EUR 7,500 net - March 2021 remuneration
EUR 300 net - April 2021 rent allowance
EUR 7,500 net - April 2021 remuneration
EUR 7,500 net - May 2021 remuneration
EUR 300 net - May 2021 rent allowance
EUR 7,500 net - June 2021 remuneration
EUR 300 net - June 2021 rent allowance
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7.
The Claimant granted the Respondent a deadline of 10 days to comply with the terms of the
aforesaid letter, however to no avail.
II. Proceedings before FIFA
8.
On 15 September 2021, the Claimant filed the claim at hand before FIFA
a. Position of the Claimant
9.
The requests for relief of the Claimant, were that the Respondent pay to the Claimant the
amount of EUR 31,800 net plus 5% interest p.a. from the respective due dates until the date
of effective payment.
10. Additionally, the Claimant requested that the Respondent pay all relevant taxes and
contributions in addition to the net amounts, and that sporting sanctions be imposed on the
Respondent.
b. Position of the Respondent
11. In its reply to the claim, the Respondent indicated that on 4 October 2021 insolvency
proceedings was instituted against the Respondent under case no. 1541/122/2021 in the
Giurgiu Court, Romania.
12. In this context the Respondent stipulated the following:
“This decision was issued based on the Law no. 85/2014 on insolvency prevention and
insolvency proceedings. Such decision is, according to art. 8 para 3 of the Law no. 85/2014,
enforceable.
13. According to art. 75 para. I of the Law no. 85/2014, enclosed hereto, in excerpt:
"From the date of opening the procedure, all judicial, extrajudicial actions or enforcement
measures for the realization of claims on the debtor's property shall be suspended by law.
The capitalization of their rights can be done only within the insolvency procedure, by
submitting the applications for admission of claims."
14. The Respondent therefore requested that the FIFA proceedings be suspended.
c. Romania FA
15. The Romanian FA confirmed that:
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“AFC Astra Giurgiu is still an affiliated member of the Romanian Football Federation and it
still actively participates in the National Championship Second League and in the National
Championships U19, U17 and U16.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 15 September 2021 and submitted for
decision on 12 November 2021. Taking into account the wording of art. 34 of the October
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.
17. 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 German player and
a Romanian club.
18. 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 15 September 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
19. 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
20. 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,
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arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
21. The foregoing having been established, the Chamber took note of the fact that, on 17 August
2021, the Claimant send a final default notice to the Respondent requesting payment of his
outstanding remuneration in the amount of EUR 31,800 net, corresponding to the period
January until June 2021, setting a time limit of 10 days in order to remedy the default, which
the Respondent failed to comply with.
22. In this context, the DRC noted that, on 15 September 2021, the Claimant lodged a claim
against the Respondent, requesting that the Respondent pay the aforesaid outstanding
remuneration.
23. The DRC further noted that the Respondent, for its part, argued that it had entered into
insolvency proceedings and, therefore, the FIFA DRC proceedings should be suspended. In
this context, the DRC observed that the Respondent held that, according to Romanian law art. 75 para. I of the Law no. 85/2014:
"From the date of opening the procedure, all judicial, extrajudicial actions or enforcement
measures for the realization of claims on the debtor's property shall be suspended by law.
The capitalization of their rights can be done only within the insolvency procedure, by
submitting the applications for admission of claims."
24. The Chamber, stressed that, in accordance with the jurisprudence of both the DRC and the
Court of Arbitration for Sport, bankruptcy/insolvency procedures do not affect procedures in
front of the DRC. In fact, the DRC wished to outline that it if a club is still affiliated to the
respective member association, the matter can still be assessed by FIFA as such, the insolvency
proceedings are not sufficient to terminate the FIFA DRC proceedings or in the matter at hand
suspend the proceedings as requested by the Respondent. Moreover, the DRC remarked the
Romanian Football Association confirmed that the Respondent is still an affiliated member of
the association.
25. The Chamber was of the opinion that the Respondent cannot use its situation of insolvency,
for which the Claimant holds no liability, as an exemption to avoid complying with its financial
obligations towards the Claimant. Moreover, the Chamber held that the Respondent could
not sufficiently demonstrate that it could not comply with payment of the Claimant’s
outstanding remuneration as a result of the said situation of insolvency.
26. As a result of the foregoing, the members of the Chamber came to the conclusion that
argument of the Respondent cannot be upheld.
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27. Considering the above and the documentation presented by the Claimant, the members of
the Chamber concluded that the Claimant had sufficiently substantiated its claim pertaining
to his outstanding remuneration
ii. Consequences
28. Having stated the above, the members of the Chamber decided that the Respondent must
fulfil its obligations in accordance with the general legal principle of “pacta sunt servanda”
and explicitly agreed to the applicability of art.24 of the Regulations.
29. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant his
outstanding remuneration, in the amount of EUR 31,800 net, corresponding to:
-
EUR 300 net payable on 15 February 2021
EUR 300 net as from 15 March 2021
EUR 300 net as from 15 April 2021
EUR 7,500 net as from 15 April 2021
EUR 300 net as from 15 May 2021
EUR 7,500 net as from 15 May 2021
EUR 7,500 net as from 15 June 2021
EUR 300 net as from 15 June 2021
EUR 7,500 net as from 15 July 2021
EUR 300 net as from 15 July 2021
30. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the DRC decided to award the Claimant interest at the rate of
5% p.a. on the above amounts as from the respective due dates until the date of effective
payment
iii. Compliance with monetary decisions
31. 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.
32. 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.
33. 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
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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.
34. 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.
35. 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
36. 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.
37. 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.
38. 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, Igor Jovanovic, is accepted.
2.
The Respondent, AFC Astra Giurgiu, has to pay to the Claimant, the amount of EUR 31,800
net as outstanding remuneration plus 5% interest p.a. as from the respective due dates until
the date of effective payment as follows:
-
▪
On the amount of EUR 300 net as from 16 February 2021
On the amount of EUR 300 net as from 16 March 2021
On the amount of EUR 300 net as from 16 April 2021
On the amount of EUR 7,500 net as from 16 April 2021
On the amount of EUR 300 net as from 16 May 2021
On the amount of EUR 7,500 net as from 16 May 2021
On the amount of EUR 7,500 net as from 16 June 2021
On the amount of EUR 300 net as from 16 June 2021
On the amount of EUR 7,500 net as from 16 July 2021
On the amount of EUR 300 net as from 16 July 2021
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
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 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.
5. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6. 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).
CONTACT INFORMATION
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