Labour Disputes
Texto da decisão
REF. FPSD-9113
Decision of the
Dispute Resolution Chamber
passed on 1 June 2023
regarding an employment-related dispute concerning
the player Lazar Jovanovic
BY:
Frans de Weger (the Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Calum Beattie (Scotland), member
CLAIMANT:
Lazar Jovanovic, Serbia
Represented by 14 Sports Law
RESPONDENT:
Maccabi Reine, Israel
Represented by Mr Boaz Sity
pg. 2
REF. FPSD-9113
I. Facts of the case
1.
On 15 August 2022, the Serbian player, Lazar Jovanovic (hereinafter the player or the
Claimant), and the Israeli club, Maccabi Reine (hereinafter the club or the Respondent)
concluded an employment contract (hereinafter the contract), valid as from 15 August 202
until 31 May 2023.
2.
As per clauses 6 and 9 of the contract, the player was entitled to the following benefits:
−
Israeli New Shekel (NIS) 34,000 as sign on fee, payable “after the reception of the
player’s ITC/TMS in the club and medical examination upon arrival (…)”;
−
“10 monthly wage payments of (including convalescence pay that is due to the player
under the extension order in the amount of [void]. I must be mentioned on the pay slip
that the wage includes convalescence pay. In the event that the amounts of the
convalescence pay pursuant to the extension order are revised, the abovementioned
total monthly wage will be updated accordingly, in relation to part of the total monthly
wage which reflects the convalescence pay included in the wage. (9,500 Euro)” [amount
handwritten]. The monthly wage is payable “according to law (up to (including)) 9th of
following month”; A handwritten note on the side of the page, contained both in the
version of the contract sent by the player as in that sent by the club, reads: “9,500
Euro net for month = [illegible] 32,395”;
−
“For European qualification the player will be entitled for subject to the player
participation in 65% of the games in the Cup/League: 34,000 NIS”;
−
“A fully furnished apartment from the club in Reineh, or 4,000 NIS for apartment that the
player choice”;
−
Flight tickets for the player from Serbia to Israel (round trip);
−
“5,000 Euro = 17,000 NIS net bonus for 7 goals/assists in the league [unclear handwriting]
matches without penalties”.
3.
Clause 6 of the contract also stipulates in fine that “All the above payments are gross payments
from which the club shall deduct income tax and national insurance as set down by law”.
4.
Clause 7. a. of the contract stipulates that “The Parties hereby agree that differences of opinion
between the Club and Player or between the Player and Club, in everything relating to the
provisions of this Agreement, shall be decided by an arbitrator, who will be appointed by virtue
of the of the Association’s Arbitration Institute Codex. b. The arbitration will be held in
accordance with the derivates of the Association’s Arbitration Institute Codex.”
5.
On 13 November 2022, the player wrote to the club, via his agent, explaining he had been
informed that the club was not certain whether it wished to retain his services, and was
thus considering his transfer to a new club. The player further explains having received
from the club earlier that day copies of 3 documents backdated September and
pg. 3
REF. FPSD-9113
October 2022, which he should sign in order to be allowed to travel on holidays. The player
refused to do so. He claims that also on 13 November 2022, the entire first team – but him
– was allowed to travel on holidays for a week. He would remain in Israel and train alone
every day for 1 week, in several different training sites, all of which about 45 minutes away
from where he was based, twice a day, at 08:00 a.m. and 05:00 p.m.. The player
understands the club was trying to force him to accept certain “unreasonable situations”
or make “the employment relationship unsteady”. Finally, he states he wishes to stay in the
club and urges it to “withdraw from all actions of pressure against [him] with immediate
effects”. In particular, he requests the club to grant him, by no later than 14 November 2022,
an authorization to travel, as the rest of the team.
6.
On 16 November 2022, the player sends the club a second communication, where he refers
to the content of his previous letter. He understands the situation the club has put him in
is “unreasonable and unjustifiable, and clearly consubstantiate serious breaches by the Club of
its obligations towards the Player”. Thus, he reiterates his requests for: “a) the Club to stop
and withdraw from all such unreasonable and unjustifiable actions with immediate effects; b)
the Club to authorize the Player to travel and to grant one (1) week of leave / holiday – i.e. same
treatment as all other players in the squad of the First Football Team. If the Club fails to address
the above, the Player will have no other alternative but to communicate with relevant authorities
and entities”.
7.
On 18 November 2022, the player replied to the club’s letter of 18 November 2022 (note:
not provided by any of the parties), denying his alleged absence to training on
17 November 2022. He claims he is being punished by the club for having refused to sign
3 backdated documents presented to him by the club. Specifically, he explains that “Each
day and for each separate training session, the Club sent to the Player specific instructions with
(i) Time and (ii) Location of the training. However, the Player did not receive any notification with
Time and Location to train in the morning of 17 November. In fact, the Club did notify the Player
to train in the evening of 17 November, with time and location. And the Player did appear to
train – as always”. Furthermore, he states having been instructed by the club to “to train
alone on the following days: 14, 15, 16. 17 (only in the evening), and 18 November 2022. And
today, the Club instructed the Player to train on 19 November in the morning. These training
sessions happened in the following conditions: (i) alone with no other players; (ii) in different
locations, including not in proper training grounds of the Club and also in public places; (iii) long
distances between the different locations, as distant from the home town; (iv) different times; (v)
no Fitness Coach present; and (vi) no Doctor and no Physio present”. He rejects the club’s
allegations that the individual training was aimed at improving his physical condition,
pointing out that no fitness coach, doctor or physiotherapist was present. He also points
out that the club did not reply to his letters of 13 and 16 November 2022, and confirms he
will be present at the meeting arranged by the club on 19 November 2022. Finally, the
requests “a) the Club to stop and withdraw from all unreasonable and unjustifiable actions
against the Player with immediate effects; b) the Club to cancel and withdraw the letter of 18
November in relation to an alleged unauthorized absence from training on 17 November by the
Player; c) the Club to authorize the Player to travel and to grant one (1) week of leave / holiday
pg. 4
REF. FPSD-9113
– i.e. same treatment as all other players in the squad of the First Football Team; d) the Club to
maintain a copy of this letter, as well as the letters that the Player sent on 13 and 16 November,
in the personal file of the Player.”
8.
On 8 January 2023, the player’s new legal representative wrote to the club, pointing out its
“severe and abusive” conduct towards the player. In particular, he pointed out that the club
suggested to find the player a new club, demonstrating that it wished to prematurely
terminate his contract. He also points out that the club tried to force the player to sign 3
backdated documents, containing unproven facts, which allegedly took player in
September and October 2022. The player rejects the content of such documents and
refused to sign them, which led the club to the abusive behaviour with a view to force the
termination of the contract. The player’s lawyer adds that “the Club organized a training
camp in Cyprus for the entire First Team Squad from 28 November to 2 December 2022, with
the exception of the Player who was forced to remain in Israel in order to attend to the separate
and individual training sessions, and (ii) upon the First Team Squad’s return, the Player was
prevented from training with his teammates, thus being forced to remain attending to the
separate training sessions until the present date”. He denies the club’s allegation that the
player is injured and therefore in need of individual training. He followed the club’s
instructions to train alone for the past months, despite his requests to be reintegrated. The
club also stopped paying the player’s salaries and verbally terminated his contract on
7 January 2023. In view of the foregoing, the player refers to art. 14 of the RSTP and requests
“(a) that the Club, within the next 24 (twenty-four) hours, immediately reinstate the Player to the
Club’s First Team Squad activities such as training sessions and matches; and (b) that the Club
immediately cease with all of its abusive actions towards the Player. Should the Club fail to
complete and discharge all the above requests as a matter of urgency, the Player reserves the
right to immediately terminate the Employment Agreement without any further notification, and
to initiate legal action with the purpose of securing the appropriate compensation as per the
relevant regulations. Finally, if the verbal communication of termination made by the President
of the Club yesterday (i.e. 7 January 2023), is indeed accurate we kindly request that the Club
sends an official letter in writing confirming such termination”.
9.
On 13 January 2023, the player once again contacted the club, via his legal representative,
acknowledging that the club failed to reply to his previous letter and to comply with the
requests therein contained. He points out that according to clause 6 of the contract he was
entitled to a total remuneration of EUR 105,000 net, allegedly corresponding to EUR 10,000
as sign-on fee and 10 monthly instalments of EUR 9,500, payable from 9 September 2022
to 9 June 2023. The club however failed to pay him his salaries for October, November and
December 2022, corresponding to EUR 28,500 net in total. The player puts the club in
default of payment of the aforementioned salaries, granting it a deadline of 15 days to
remedy the default. “Should the Club fail to comply with these terms within the stipulated time
frame, Mr. Jovanovic reserves the right to immediately terminate the Employment Agreement
without any further notification, and to immediately initiate legal action (…)”.
pg. 5
REF. FPSD-9113
10. On 16 January 2023, the club wrote to the player denying all accusations of abusive
behaviour and claiming the player was acting unprofessionally, by leaving the bench,
missing practices and ignoring the fact that he was deemed injured and unfit to play for a
“prolonged period”. As such injury was work related, the club urged the player to provide
the necessary documentation (not specified) to allow him to receive the injury allowance.
Finally, the club reminded the player that his salaries for October and November 2022 are
waiting to be collected at the club.
11. On 18 January 2023, the player once again wrote to the club, referring to his previous letters
of 8 and 13 January 2023, as well as to the club’s letter of 16 January 2023, which allegedly
contains “a completely distorted version of the facts occurred on 13 January 2023, which the
Player utterly rejects”. In particular, he states he was invited to a meeting with the club on
13 January 2023, during which he was presented with a termination agreement and a
receipt, both of which he refused to sign. Contrary to what the club states in its
correspondence of 16 January 2023, he claims he refused to receive the payment of his
outstanding salaries per cheque, and requested that such payment be made by bank
transfer. The player claims that, following his refusal to sign the proposed documents, the
club representatives adopted an aggressive behaviour, forcing him out of the club’s
premises and stating “he should never go back to the Club’s premises again as he was not
considered a player of the Club anymore and, in addition, (…) threatening the Player to evict him
from his apartment”. The player claims to have been physically assaulted by the club’s
president on 17 January 2023, as he tried to access the club’s premises to train. Accordingly,
he pressed charges against him at the police station. Based on the foregoing and on the
facts described in his previous letters, the player terminated the employment contract with
the club unilaterally with immediate effect.
12. The player remained unemployed up until this date.
II. Proceedings before FIFA
13. On 31 January 2023, 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
14. According to the Claimant, the club breached the respective employment contract.
15. Preliminarily, he referred to clause 7 of the employment contract and pointed out that such
clause should be considered as invalid, due “its ambiguity and extremely broad wording”. In
particular, he claims that “said contractual provision does not clearly and specifically render
jurisdiction upon any particular and competent arbitration tribunal”. He refers to the decision
in case FPSD-23661 [sic], “wherein an exactly similar arbitration clause as the aforementioned,
pg. 6
REF. FPSD-9113
was determined to be not valid”. Thus, he understands the claim should be considered
admissible.
16. As to the substance, the player explains that the club was no longer interested in his
services and tried to force the amicable termination of the contract, without the payment
of any compensation or outstanding remuneration. As the player refused to sign some
backdated documents, allegedly containing facts he does not acknowledge, the club
adopted an abusive behaviour, with a view to force the termination (note: these documents
are not provided by the player, but refer to the club’s reports dated 17 September 2022, 8
and 29 October 2022, enclosed to the club’s reply). In particular, it prevented him – as the
only player of the team – to leave on holidays and assigned him to unsupervised, individual
training, in several different venues and times. Despite his warnings – which remained
unanswered by the club – his situation remained unchanged and progressively became
unbearable. Not only the player was separated from training with his teammates, but he
was also excluded from a training camp organised in Cyprus between 28 November and 2
December 2022 for all players of the first team, but him. The player claims that on 1 January
2023 he was informed verbally by the club’s president that his contract was terminated, to
which he allegedly replied he would consider the contract as valid and ongoing, as long as
he did not receive any official written termination from the club.
17. The player further claims that the club was in breach of its financial obligations towards
him, and never remedied the default despite his reminders. The situation escalated on 13
January 2023, as the club invited the player for a meeting and once again tried to force him
to sign certain documents and accept a cheque for the payment of his outstanding salaries.
As the player refused such proposal, the club’s president adopted a physically aggressive
behaviour towards him. The same happened on 17 January 2023, as the player tried to join
the training sessions. The player was then forced to press charges against the club’s
president at the police.
18. As per the player, “In light of all of the above, and especially considering (i) the Club’s gross and
repeated breaches of Mr. Jovanovic’s right to play since November 2022, materialized in
Maccabi’s decision to prevent the Player from attending training sessions or even being present
at the Club, in addition to (ii) the repeated delay in the payment of the Player’s remuneration,
and more specifically the non-payment of the salaries of October, November and December
2022, and finally (iii) the physical assaults suffered by Mr. Jovanovic on 17 January 2023, on 18
January 2023, the Player unilaterally terminated the Employment Relationship with just cause
and with immediate effects”.
19. Consequently, the player requests the DRC to:
−
“Determine that the Claimant terminated the Employment Agreement with just cause;
−
Order the Respondent to proceed with the payment of the total sum of € 76.000,00
(Seventy-Six Thousand Euros) which corresponds on the one hand, to the outstanding
salaries agreed upon under Clause 6 of the Employment Agreement, plus the residual
pg. 7
REF. FPSD-9113
value (Additional Compensation) of the Employment Agreement signed between the
Parties as compensation due under Article 17 FIFA RSTP; (note: the aforementioned
amount is broken down as follows: EUR 28,500 as outstanding salaries of October,
November and December 2022, and EUR 47,500 as compensation, corresponding
to the player’s salaries from January to May 2023)
−
Order the Respondent to pay 5% interest p.a. calculated over each outstanding amount,
as of the day after each amount became due until the date of effective payment;
−
Impose the appropriate sporting sanctions to the Respondent”.
b. Position of the Respondent
20. In its reply, the club first contested the admissibility of the claim in front of FIFA and the
jurisdiction of the latter, claiming that:
−
−
−
The parties are compelled by Israeli law to bring their disputes in from of the Israel
Football Association (IFA);
The contract contains a clear and valid arbitration clause;
A similar dispute is ongoing before the IFA Arbitration Institute.
21. As per the club, “The player, essentially, determined he wishes to leave his club prior to the
expiration of his contract, but instead of reaching a settlement with the club for the mutual
termination of his contract – the player decided to try and create an illusion of just cause for the
termination of his contract”. The club entirely denies the player’s allegations and
understands he terminated the contract without just cause.
22. The club admits that the parties had a valid employment contract, according to which the
player was entitled to a total remuneration of EUR 95,000, payable in 10 instalments of EUR
9,500 each. According to the club, the player adopted an unprofessional attitude as from
September 2022. In particular, the club claims that “On September 17, 2022, in a league
fixture against Sports Club Ashdod FC, the Player was substituted in the 62nd minute of the
game. The Player then left straight to the locker room, instead of remaining on the bench with
his fellow teammates. The Club notified the Player that such behavior is unacceptable and
constitutes a violation of its disciplinary code. On October 10, 2022, in a game against Maccabi
Haifa FC, the Player was substituted in the 64th minute of the game, and – again – left the pitch
straight to the locker room, refusing to remain on the bench with his fellow teammates. On
October 29, 2022, in a game against Maccabi Netanya FC, the Player did not start and was
asked by the Club’s fitness coach, Mr. Tarek Natur, to worm up during the half-time break.
However, the Player refused to do so and replied to the fitness coach in a rude and disrespectful
manner”.
23. The club further states that in November 2022 the player complained he could not properly
train due to soreness in his groin. The club claims that the player then stopped attending
training, in spite of the club’s reminders of 28 November 2023, via messages and calls.
pg. 8
REF. FPSD-9113
A medical appointment was scheduled for the player for 4 December 2022, which he
allegedly did not attend, without any prior explanation or notice. On 5 December 2022, the
player attended a medical appointment, during which a hernia was identified. To avoid
surgery, the doctor in a medical report of 14 December 2022 suggested “Straight exercise,
electrotherapy, and hydrotherapy for about 3 months to avoid surgery. Meanwhile, intense
football activity in the group should be stopped”.
24. The club claims that on 31 December 2022, the player surprisingly alleged he was not
injured and insisted on training and playing with the team. The club claims it was “eligible
to receive injury allowance from the National Security Institute (NSI) to cover part the Player’s
salary during his absence. Such allowance, if received, would have been offset against the
Player’s remuneration paid by the Club. In January 2023 the Player was repeatedly asked to fill
out and file the required documents required to receive such compensation, but the Player
refused to do so, claiming he is not injured and is fit to train or play. The Club sought to assist
the Player in filling the necessary forms, and even attained a lawyer, specializing in social
security, to assist the Player in the procedural process. However, the Player, again, denied the
explicit medical reports which showed that he is injured in his groin and is not fit to play
professional football for a period of approximately 3 months”.
25. The club rejects all accusations of the player that it engaged in abusive behaviour in order
to terminate the contract and states that the player refused to collect his remuneration for
October and November 2022. In view of the player’s unfounded accusations and the false
charges against its president, the club allegedly filed a complaint against him on 22 January
2023 in front of the IFA Arbitration Institute, for breach of contract without just cause. On
16 February 2023, the player approached the arbitrator and rejected the competence of
the IFA to adjudicate the case, based on the unclear wording of the arbitration clause in
the contract and on the pending proceedings before FIFA. On 2 March 2023, the arbitrator
held the IFA competent to hear the dispute, in accordance with the Israeli Sports Law, 57481988 and the corresponding IFA regulations. Additionally, the arbitrator determined that
the arbitration clause in the contract is sufficiently clear. Therefore, the club deems that
the player’s claim in front of FIFA is inadmissible due to litispendens, as an ongoing claim
with the same parties and the same object in pending in front of the IFA. Alternatively, the
club claims that FIFA is not competent to deal with the present claim, as the contract
contains a clear and exclusive arbitration clause, and the IFA Arbitration Institute (Israel
NDRC) is an independent arbitration tribunal, which guarantees fair proceedings and
respects the principle of equal representation of players and clubs. Furthermore, the Israeli
sports law is applicable to the present case and defines the IFA’s exclusive jurisdiction to
deal with such kind of dispute.
26. The club deems that the player’s claim should be rejected also as to the substance, since
he does not provide any evidence of the club’s allegedly abusive behaviour with a view to
force the termination. It specifically points out that the reports dated 17 September 2022,
8 and 29 October 2022 describe facts which occurred on those dates and do not require
the player’s signature to have its content recognised as authentic. The player merely
pg. 9
REF. FPSD-9113
refused to acknowledge their receipt. The club also points out that the player’s allegations
that he was excluded from the team and forced to train alone are completely out of
context, and claims that such measures were part of a special program conceived in order
to improve his poor physical condition. The club claims that the player was in fact
requested to train with the second team, but refused to do so and asked to train alone.
The alternative training sites were assigned, because the grass in the regular stadiums
needed to recover. Furthermore, the club claims the player was always accompanied by
the assistant coach and that the objective was that he could again join the first team after
the break. The club also denies having forbidden the player to go on holidays, but believed
the player would understand the need of extra training in view of his poor physical
condition. The player indeed could not join the training camp in Cyprus, as his medical
examinations detected a hernia and the need to avoid intense group training. The episode
of alleged physical aggression involving the club’s president is also misrepresented, as per
the club, and the DRC should in any case not adjudicate on criminal matters. The club also
points out that the player refused to receive his salaries for November and December 2022
and that cheques are usual and broadly accepted payment methods.
27. In view of the foregoing, the club deems that the player acted in bad faith and had no just
cause to terminate the contract on 18 January 2023. Nevertheless, in case FIFA deems that
the player had a just cause to terminate the contract, the amount of compensation should
be limited to a maximum of EUR 41,990, i.e. his salaries for February to May 2023 (4 x EUR
9,500) plus 42% of his salary of January 2023 (EUE 3,990). As per the Israeli law, several
deductions should be made as per Israeli law, as the player was injured and the club should
have been compensated by the insurance. Thus, a maximum of EUR 20,615 should be paid
out to him as compensation. As the player’s outstanding salaries for October, November
and December 2022 are waiting to be collected at the club, no interest should be applied
on them. The club also deems no sporting sanction should be imposed.
28. Based on the foregoing, the club requests FIFA to “declare the Player’s claim inadmissible, or
alternatively, reject the Claimant’s claim in its entirety”.
c. Replica
29. Having been requested to provide his comments on the club’s objection to FIFA’s
competence to deal with the present matter, the player insisted on his initial opinion that
FIFA should retain competence over the case.
30. In particular, the player reiterated that “the jurisdiction clause inserted in the Employment
Agreement is unequivocally invalid due to its ambiguity and extremely broad wording, as already
duly recognized in multiple FIFA decisions”. In the event that FIFA considers the jurisdiction
clause as valid, the player claims that the Israel NDRC “does not fulfil, at least, 3 (three) out
of the 5 (five) criteria established under FIFA Circular no. 1010, in order to be recognized as an
“independent national arbitration tribunal” that guarantees fair proceedings and respect the
principle of equal representation of players and clubs, for the purposes of the FIFA regulations”.
pg. 10
REF. FPSD-9113
Finally, the player deems that the “lis pendens issue raised within the Respondent’s answer
shall not affect FIFA’s jurisdiction in the present dispute”.
31. As to the jurisdiction clause, the player again points out its unprecise wording and the
principle of “in dubio contra proferentem”. The player particularly points out that “one cannot
unequivocally conclude that the sentence ‘the differences of opinion between the Club and Player
(…) shall be decided by an arbitrator’ refers specifically to a member of the Association’s
Arbitration Institute”. Finally, the player understands that the clause cannot be understood
as exclusive as “it fails to explicitly exclude the jurisdiction of any other dispute resolution body
-such as the FIFA DRC- to settle any dispute between the Parties”.
32. Regards the compliance of the Israel NDRC with Circular 1010, the player claims that prior
to the club’s reply, “no regulation of the IFA or of the IFA Arbitration Institute were made
available to [him] in order to assess whether such jurisdictional body would indeed comply with
the criteria required by FIFA, nor such documentation can be found in the IFA’s website or in any
other relevant website on the publicly available sources”. He also points out that the club failed
to comment on the denial of his request to receive the documentation of the alleged local
proceedings in English, which severely restricted his ability to examine and reply to the
allegations made against him. From the documentation related to the Israeli NDRC
provided by the club in its reply, specifically Chapter 1 section B of the Codex, he noted that
“the player’s organization is only one out of the six authorities that can participate in establishing
the list of arbitrators”. Thus, the requirement of equal representation of players and clubs
is not met. This is in line with the DRC’s current jurisprudence. The player also points out
that the Codex does not foresee the possibility of rejecting the appointment of an
arbitrator, that the parties do not have the effective right to contentious proceedings and
equal treatment, as the proceedings are conducted in Hebrew only.
33. As to the local proceedings initiated by the club, the player deems they do not cause litis
pendens, as he explicitly rejected the jurisdiction of the Israel NDRC, from the very
beginning. In this respect, it refers to the FIFA commentary and explains that neither the
contract contains a clear and exclusive arbitration clause, neither the Israel NDRC meets
the Circular 1010 requirements. Therefore, even though the 2 proceedings have the same
parties and object, the litis pendens cannot be established.
34. Finally, the player entirely rejected the club’s argument that as per Israeli law all
employment disputes must be submitted to the IFA, as Israeli law does not primarily apply
to the present case and the Israeli FA accepted and abides by the international dispute
resolution system of FIFA.
35. Thus, FIFA is competent to deal with the present case.
pg. 11
REF. FPSD-9113
d. Duplica
36. In its final comments, the club insists on the competence of the Israel NDRC to decide on
the present matter. It accuses the player of forum shopping, claiming he filed a claim
against the club before FIFA and on 22 March 2023 filed his reply on the substance of the
local claim of the club. In this respect, the club indicates that the player even filed a
counterclaim against it before the Israel NDRC, with the following request for relief:
“85. In the light of all of the above, Mr. Jovanovic respectfully requests the FIFA Football
Tribunal to:
− Decline jurisdiction to hear the present matter and consequently, refrain from
deciding upon the Claim filed by the Club Maccabi Bnei Reineh.
In the alternative, in case the IFA Arbitral Tribunal decides that it has jurisdiction to hear the
present dispute,
− Determine that the Club grossly violated its contractual obligations and the terms of
the Employment Agreement;
− Determine that the Player terminated the Employment Agreement with just cause and
consequently, reject the Claim filed by the Club Maccabi Bnei Reineh;
− Order the Club Maccabi Bnei Reineh to proceed with the payment of the total sum of
€ 76.000,00 (Seventy-Six Thousand Euros) which corresponds on the one hand, to the
outstanding salaries agreed upon under Clause 6 of the Employment Agreement, plus
the residual value (Additional Compensation) of the Employment Agreement signed
between the Parties as compensation due under Article 17 FIFA RSTP;
− Order the Club Maccabi Bnei Reineh to pay 5% interest p.a. calculated over each
outstanding amount, as of the day after each amount became due until the date of
effective payment;
− Order the Club to pay all arbitration costs of the present proceedings as well as a
contribution towards the Player’s legal expenses in the amount of EUR 4000 (four
thousand euros)
− Impose the appropriate sporting sanctions to the Club Maccabi Bnei Reineh”.
37. The club also deems that the Israel NDRC meets the requirements of Circular 1010.
Specifically, it claims that holding proceedings in English is not a barrier to the right to
contentious proceedings. It also claims that the Hebrew version of the NDRC Regulations
is published on the IFA’s website and the player should bear the consequences of having
chosen a foreign lawyer to represent him.
38. The club additionally points out that Circular 1010 does not require from an NDRC to
guarantee the possibility of a litigant to object to an arbitrator, and states that such
possibility does exist in the Israel NDRC Codex (no specific provision indicated) and
indirectly in the Israeli arbitration law (5728-1968, art. 11).
pg. 12
REF. FPSD-9113
39. Furthermore, the club indicates that the NDRC regulations indicate that “arbitrators are
appointed by a committee comprised of the following: 1) The chief justice of the IFA’s Supreme
Tribunal. 2) A member of the presidium of the IFA’s Supreme Tribunal. 3) A representative of the
Player’s organization (players). 4) A representative of the League Administration (clubs). 5) The
Director General of the IFA. 6) The Chairman of the IFA’s Arbitration and Mediation Institute”.
The club points out that the requirement of equal representation is met as both clubs and
players have one representative each on the aforementioned list.
40. Finally, the club insists that the jurisdiction clause contained in the contract is perfectly
clear and exclusive. Thus, the claim of the player should be considered as inadmissible.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
41. 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 31 January 2023 and submitted
for decision on 1 June 2023. Taking into account the wording of art. 34 of the March 2023
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.
42. 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 Regulations on the Status and Transfer of Players (March 2022 edition), the Dispute
Resolution Chamber is – in principle – competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
player from Serbia and a club from Israel.
43. At this point, the DRC observed the argumentation of the club that it lodged a claim against
the player at the Israel National Dispute Resolution Chamber (NDRC), before the player
lodged his claim at FIFA, and that both claims involve the same parties and the same object.
The Chamber club also understood that the player accepted the competence of the NDRC.
44. The Chamber then recalled that, on the basis of the principle of lis pendens, a decisionmaking body is not in a position to deal with the substance of a case, which has already
been brought before and is still pending at another – competent – deciding body. The
principle of lis pendens is applicable if cumulatively and necessarily the parties to the disputes
and the object of the matter in dispute are identical.
pg. 13
REF. FPSD-9113
45. Bearing in mind the foregoing, the Chamber started to analyse the documentation
provided by the Respondent in support of the allegation of lis pendens. Analysing the
evidence on file, the DRC summarized that:
-
Even though it appears that both proceedings have the same parties and the same
object, this cannot be properly verified, as the club did not provide a full copy of the
statement of claim allegedly lodged against the player locally, but only a short
summary of it, containing only a few keywords and the request for relief, and no date
at all.
-
The document dated 22 January 2023, is a letter from the IFA informing the parties
about the opening of proceedings, but it does not contain a copy of the full statement
of claim;
-
The player objected from the very beginning to the competence of the NDRC and
maintained his objection in his writings even after the local preliminary decision
stating the competence of the NDRC to deal with the claim.
46. In view of the above, in particularly since the club failed to provide sufficient evidence, the
DRC concluded that lis pendens cannot be established and the claim is, therefore,
admissible.
47. In continuation, the Chamber analysed whether the objection of the club to FIFA’s
competence can be upheld.
48. In this respect, the Chamber referred to Clause 7. a. of the contract, according to which:
“The Parties hereby agree that differences of opinion between the Club and Player or between
the Player and Club, in everything relating to the provisions of this Agreement, shall be decided
by an arbitrator, who will be appointed by virtue of the of the Association’s Arbitration Institute
Codex. b. The arbitration will be held in accordance with the derivates of the Association’s
Arbitration Institute Codex.” The Chamber after analysing the wording of the jurisdiction
clause, concluded that such clause did not clearly and exclusively establish the competence
of the NDRC of Israel, in accordance with art. 22 lit. b) of the aforementioned Regulations.
49. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need to
enter the analysis of any further requirement, it established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be rejected and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of
the Regulations, to consider the present matter as to the substance.
50. 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 (March 2023 edition), and
considering that the present claim was lodged on 31 January 2023, the October 2022
pg. 14
REF. FPSD-9113
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
51. 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
52. 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
53. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the player on the one hand deems that the club lost
interest in his services and, in view of his denial to sign certain documents and accept the
mutual termination, started to act in an abusive manner as to force the termination. Based
on the foregoing and on the lack of payment of 3 monthly salaries despite his default
notice, the player deems to have had a just cause to terminate the contract on
18 January 2023.
54. On the other hand, the Chamber noted that the club rejects the player’s accusations of
abusive behaviour and claims he was the one trying to forge a just cause for termination.
Not only his individual training was justified by his unprofessional behaviour and his injury,
but also, he was the one rejecting to receive his salaries of October, November and
December 2022, the payment of which was offered by the club.
55. At this point, the Chamber closely looked at the situation between the parties prior to the
termination of the employment relationship by the player and recalled that termination is
an ultima ratio measure and only when there are objective criteria which do not reasonably
permit to expect the continuation of the employment relationship between the parties, a
contract may be terminated prematurely. Hence, if there are more lenient measures which
pg. 15
REF. FPSD-9113
can be taken in order for an employer to assure the employee’s fulfilment of his contractual
duties, such measures must be taken before terminating an employment contract.
56. Having thoroughly analysed the argumentation of the parties and the documentation on
file, the DRC noted that:
-
The club has not provided substantial evidence of the player’s alleged unprofessional
behaviour, as the only documentation submitted in this respect are 3 reports issued
by the club, with designated space for the club’s and the player’s signature, but
without the latter. The player rejected the content of such documents and even
deems they were backdated and presented to him at a later stage. The club however
presented no evidence of disciplinary warnings, procedures, and decisions in this
respect.
-
The club’s argument related to the player’s injury and his exclusion from the group
trainings do not make chronological sense, as the medical report is dated
14 December 2022 and the exclusion of the player from group training happened
undisputedly as from November 2022.
-
No documentation providing for the limited duration of such measure was provided
by the club.
-
The player provided evidence of having contacted the club several times regarding
his exclusion from group trainings and received no reply from the club.
-
The club admits not having paid the player’s salaries for October, November and
December 2022; its argument that the player refused to receive them lacks evidence
and logic, thus cannot be upheld.
-
The player provided copies of an unsigned mutual termination agreement and an
acknowledgement of receipt both dated 13 January 2023, which state the payment
of amounts admittedly not paid by the club and an inexistant mutual agreement.
57. In light of the above, in particular the player’s warnings of 13 November 2022,
16 November 2022, 18 November 2022 and 8 January 2023, which remained unanswered
by the club, his admitted (by the club) but not properly justified exclusion from the first
team and the group training, the unproved allegations of the club regarding disciplinary
infringements, and the presentation of documents which do not represent the reality of
facts for his signature on 13 January 2023, the DRC concluded that the player could
reasonably expect that the continuation of the employment relationship with the club was
no longer possible and he had a just cause to terminate the contract on 18 January 2023.
In this respect, the Chamber understood that the termination was made in ultima ratio,
after several attempts on the part of the player to save the contractual relationship.
58. For the sake of completeness, the DRC wished to mention that the player effectively put
the club in default of payment of three outstanding salaries, on 13 January 2023, granting
it 15 days to remedy the default. The player however terminated the contract on
pg. 16
REF. FPSD-9113
18 January 2023, which implies that the formal pre-requisites of art. 14bis of the
Regulations were not met.
59. In view of all the above, the DRC decided that the termination occurred in the basis of
art. 14 of the Regulations.
ii. Consequences
60. 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.
61. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to fours salaries
under the contract, amounting to USD 9,500 each.
62. 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 amounts
which were outstanding under the contract at the moment of the termination,
i.e. USD 38,000 (i.e. USD 9,500 times 4).
63. 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 follows:
−
over the amount of EUR 9,500, 5% interest p.a. as from 10 November 2022 until the
date of effective payment;
−
over the amount of EUR 9,500, 5% interest p.a. as from 10 December 2022 until the
date of effective payment;
−
over the amount of EUR 9,500, 5% interest p.a. as from 10 January 2023 until the
date of effective payment;
−
over the amount of EUR 9,500, 5% interest p.a. as from 18 January 2023 until the
date of effective payment.
64. 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
pg. 17
REF. FPSD-9113
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
65. 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.
66. 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.
67. 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 USD 38,000 (i.e. USD 9,500 times 4) serves as the basis for
the determination of the amount of compensation for breach of contract.
68. 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.
69. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
70. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
71. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of USD 38,000 as the residual value of the contract.
72. 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
pg. 18
REF. FPSD-9113
compensation at the rate of 5% p.a. as of 18 January 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
73. 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.
74. 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.
75. 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.
76. 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.
77. 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
78. 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.
79. 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.
pg. 19
REF. FPSD-9113
80. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 20
REF. FPSD-9113
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Lazar Jovanovic.
2.
The claim of the Claimant is admissible.
3.
The claim of the Claimant is partially accepted.
4.
The Respondent, Maccabi Reine, must pay to the Claimant the following amount(s):
- EUR 9,500 as outstanding remuneration plus 5% interest p.a. as from
10 November 2022 until the date of effective payment;
- EUR 9,500 as outstanding remuneration plus 5% interest p.a. as from
10 December 2022 until the date of effective payment;
- EUR 9,500 as outstanding remuneration plus 5% interest p.a. as from 10 January 2023
until the date of effective payment;
- EUR 9,500 as outstanding remuneration plus 5% interest p.a. as from 18 January 2023
until the date of effective payment;
- EUR 38,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 18 January 2023 until the date of effective payment.
5.
Any further claims of the Claimant are rejected.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
7.
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.
8.
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.
pg. 21
REF. FPSD-9113
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 22
REF. FPSD-9113
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 23