Labour Disputes
Texto da decisão
REF. FPSD-13377
Decision of the
Dispute Resolution Chamber
passed on 3 April 2024
regarding an employment-related dispute concerning
the player Vukasin Jovanovic
BY:
Andre dos Santos Megale (Brazil), Single Judge
CLAIMANT:
Vukasin Jovanovic, Serbia
Represented by Hrvoje Raic
RESPONDENT:
Club Apollon Limassol, Cyprus
Represented by Alkis Papantoniou
pg. 2
REF. FPSD-13377
I. Facts of the case
1.
On 28 August 2021, the Serbian player Vukasin Jovanovic (hereinafter: the Player or the
Claimant) and the Cypriot club Apollon Limassol (hereinafter: the Club or the Respondent)
concluded an employment agreement together with a supplementary agreement, said
documents jointly constituting an “Employment Contract” valid from the said date until 30
June 2023 (hereinafter: the Employment Contract).
2.
In accordance with the Employment Contract, the Player was entitled inter alia to a monthly
net salary of EUR 10,000.
3.
On the same date, the Player and the Club (hereinafter jointly referred to as: the Parties)
concluded an additional agreement (hereinafter: the Supplementary Agreement) whereby
the Club undertook to pay the Player further amounts on top of the benefits provided by
the Employment Contract.
4.
Under Clause 8 of the Supplementary Agreement, the Club undertook to pay the Player:
“EUR 10,000 net as additional early salary for each football season if the Club qualifies to the
UEFA Conference League Group stage only if the Player played in 50% of the qualifying games
bracket the calculation will be based according to the total minutes of qualifying games). The
amounts shall be divided in 10 equal instalments of €1000 payable from 30 September to 30
June of each year”.
5.
At the end of the season 2021/2022, the Club won the Cypriot national championship (Cyta
Championship), thus being granted the access to the qualifying matches for the “UEFA
Champions League” first and, after losing the relevant match, to the “UEFA Europa League”
afterwards.
6.
Having competed in such qualifying stages by playing a total of four matches, the Club
failed to qualify both to the UEFA Champions League and the UEFA Europa League.
However, the Club automatically qualified to the group stage of the UEFA Conference
League as per the relevant competition regulations, i.e. without the need for playing any
further game.
7.
By correspondence dated 1 August 2023, the Player put the Club in default of payment of
EUR 56,000 as outstanding remuneration, granting a deadline of 10 days in order to
remedy the default.
8.
On 8 August 2023, the Club replied to the Player stating that it would not be able to settle
the relevant outstanding amounts due to financial problems. Accordingly, the Club
proposed the Player to conclude a mutual termination Agreement and contextually offered
the Player to sign also a financial agreement, both retro-dated 30 June 2023. The Player
never replied to the Club in that regard.
pg. 3
REF. FPSD-13377
9.
On 21 August 2023, the Club executed a payment in favour of the Player of EUR 9,735.
Subsequently, on 9 October 2023, the Club made another payment in the amount of EUR
9,735.
II. Proceedings before FIFA
10. On 16 January 2024, the Player 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 Player, the Club first failed to comply with its financial obligations under
the Employment Contract and subsequently tried to remedy it by offering the Player to sign
both the termination agreement and the financial agreement.
12. In this respect, the Player declared having refused to sign both the mentioned agreements
but acknowledged receipt of the two payments made by the Club, respectively on 21
August 2023 and 9 October 2023.
13. Notwithstanding the above, the Player argued that several salaries remained unpaid after
the expiry of the Employment Contract in June 2023, as well as part of the relevant bonus
stipulated under the Supplementary Agreement.
14. The requests for relief of the Claimant, accordingly, were the following:
“I. to condemn the Respondent to pay in favour of the Claimant overdue payables of net
EUR 36,736.00 (thirty-six thousand and seven hundred and thirty-six euros) which
matured as follows:
-
EUR 30,736.00, on 1/6/2023, and
EUR 6,000.00, on 1/7/2023, and
within 45 days as from the date of notification of the decision in the matter of the
reference to the Respondent; and
II. to condemn the Respondent to pay all relevant taxes, state contributions and
surcharges, on top of the above-mentioned net amounts, within 45 days as from the date
of notification of the decision in the matter of the reference to the Respondent; and
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REF. FPSD-13377
III. to condemn the Respondent to provide the Claimant with the corresponding tax
certificates concerning the payment of all the above specified net amounts alongside all
the net amounts already paid to the Claimant during the term of the Employment
Contract, within 45 days as from the date of notification of the decision in the matter of
the reference to the Respondent; and
IV. to condemn the Respondent to pay in favour of the Claimant default interest of 5% per
year on the aforementioned amounts starting from the respective date of maturity
stipulated in the point I. herein until the effective date of the payment, within 45 days as
from the date of notification of the decision in the matter of the reference to the
Respondent; (…).”
b. Position of the Respondent
15. In its reply, the Club acknowledged the existence of outstanding salaries in favour of the
Player but objected to the latter’s request regarding the relevant bonus for the team’s
qualification for the UEFA Conference League.
16. In particular, according to the Club, the Player should have played at least 50% of the
minutes related to the relevant qualifying matches as per the wording of the
Supplementary Agreement. In this context, the Club emphasized that the Player
participated only in one match out of the four matches played in total by his team during
the qualifying games for the UEFA Champions League and UEFA Europa League, for a total
duration of 60 minutes out of the 360 minutes played by the rest of the team.
17. Accordingly, in the Club’s view, only the first of the two conditions have been met, i.e. the
Club’s qualification to the UEFA Conference League, while the Player failed to play a
sufficient number of minutes to be entitled to the relevant bonus.
18. Furthermore, the Club pointed out that even taking into account the matches played by
the Player in the Cyta Championship as if they were “qualifying matches”, he would have
not met the minimum threshold in terms of minutes entitling him to the bonus, namely as
the Player took part in only 618 minutes out of the total of 2,880 minutes corresponding to
the 32 matches played by the team during the relevant contractual period.
19. The Club therefore argued having made the two payments acknowledged by the Player in
his claim as partial settlement of the latter’s overdue salaries and not as bonuses, hence
the Club stated that the following sums shall be deducted from the total amount
outstanding in favor of the Player:
(a) “EUR 6,000 deducted from the amount claimed by the Player as bonus;
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REF. FPSD-13377
(b) EUR 4,000 deducted from the amount claimed by the Player as salaries because the Player
through his claim and arguments wrongly states that he has already received EUR 4,000
corresponding to the UECL Group Stage bonus, but these payments actually corresponded
to salaries and are not due to the Player anymore”.
20. The request for relief of the Respondent was therefore to limit the amounts awarded to
the Player to EUR 26,736.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether he was competent to deal with the case at hand.
In this respect, he took note that the present matter was presented to FIFA on 16 January
2024 and submitted for decision on 3 April 2024. 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.
22. Subsequently, the Single Judge 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 (February 2024 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Serbian player and a Cypriot club.
23. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition),
and considering that the present claim was lodged on 16 January 2024, the May 2023
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
24. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
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REF. FPSD-13377
c. Merits of the dispute
25. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments, and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
26. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the quantity of
outstanding amounts in favour of the Player based on the Employment Contract and the
Supplementary Agreement.
27. In this context, the Single Judge observed that the Club acknowledged the existence of
outstanding salaries in favour of the Player but objected to the latter’s entitlement to
receive certain amounts stipulated under the Supplementary Agreement.
28. With the foregoing in mind, the Single Judge acknowledged that his task was to determine,
based on the evidence presented by the parties, which of the claimed amounts had in fact
remained unpaid by the Club, whether the Player was entitled to receive the relevant bonus
claimed and, if so, whether the Respondent had a valid justification for not having complied
with its financial obligations.
29. In this respect, the Single Judge first observed that pursuant to the Employment Contract,
the Club had undertaken the obligation to pay the Player a total of EUR 10,000 as monthly
consideration for the Player’s professional services. Furthermore, the Single Judge recalled
that under the Supplementary Agreement the Player would be entitled to further benefits,
referred to as “additional yearly salary” or “bonus”, each subject to different conditions.
30. In the case at stake, the Single Judge assessed that the centre of the dispute concerns
clause 8 of the Supplementary Agreement, according to which the parties stipulated a
bonus of EUR 10,000 should the Player participate in at least 50% of the total number of
minutes composing the qualifying matches for the UEFA Conference League group stage
in the season 2022/2023. In this context, the Single Judge also noted that the relevant sum
would be broken down into 10 equal instalments of EUR 1,000 each and recalled that the
Player alleged having already received 4 instalments from the Club.
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REF. FPSD-13377
31. In this context, the Single Judge observed that, having the Club ranked 1st in the Cyta
Championship at the end of the season 2021/2022, it first played two matches in the UEFA
Champions League qualifying stage against Maccabi Haifa in August 2022, and having being
defeated in that playoff, subsequently, it participated in the UEFA Europa League qualifying
matches playing two additional games against Olympiakos Pireus, in which the Club was
also defeated. Accordingly, the Single Judge assessed that the total number of minutes
played by the Club would amount to 360 (i.e. 90 minutes each match).
32. For the sake of clarity, the Single Judge wished to emphasize that, in line with the relevant
UEFA competitions’ regulations (one which the Single Judge recalled was not disputed by
the parties), the particular setup of the qualification for such continental competitions
meant that the Club would first play two matches to try to reach the UEFA Champions,
failing which it would then play two matches to try to reach the Europa League, and failing
which it would have a spot secured for the UEFA Conference League. This de facto means
that the Club, by winning its local league, had already secured a spot in the UEFA
Conference League.
33. The Single Judge was however not oblivious to the fact that such specific scenario applying
to the access of Cypriot clubs to UEFA continental tournaments did not depart from the
parties’ original understanding agreed in the Supplementary Agreement, whereby the
Player would be remunerated for his contribution in the Club’s sporting success, provided
a certain threshold of minimum matches was played.
34. Be as is may, the Single Judge remarked that the claim of the Player in respect of the bonus
cannot succeed, irrespective if he considered the continental playoffs or the Cypriot league
as the “qualifying matches”, for the reasons outlined in continuation. The Single Judge
confirmed therefore that such issue can remain open.
35. With the above in mind, the Single Judge thoroughly analysed the documents submitted by
the Parties and in particular the screenshots captured from the website “Transfermarkt” in
order to verify the Player’s participation to the relevant games.
36. In this respect, the Single Judge observed that according to the abovementioned
documents, the Player indeed played 60 minutes only in the UEFA continental qualifying
playoffs, which approximately correspond to 17% of the total number of minutes played
by his team.
37. As a consequence, the Single Judge determined that, in principle, the Player would not be
entitled to the claimed bonus.
38. In addition, the Single Judge remarked that by computing the whole number of games
played by the Player during the entire season 2021/2022, the arithmetical result would
have not changed. In fact, the Single Judge ascertained that the Player had played only 618
minutes out of the total of 2,880 minutes comprised in the said period.
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REF. FPSD-13377
39. In this context, the Single Judge remarked that in the case at hand the Player bore the
burden of proving that it indeed met the conditions to be entitled to the relevant bonus.
However, based on the evidence on file, the Single Judge decided that the Player’s position
could not be upheld, because while the first condition of qualification to the UEFA Europa
League was met, the minimum playing time established under the Employment Contract
was not.
40. On account of the above, the Single Judge decided to reject the Player’s claim regarding the
bonus under clause 8 of the Supplementary Agreement.
41. As a consequence, the Single Judge concluded that the amounts allegedly received by the
Player as part of the mentioned bonus could only be computed in the balance of the
Player’s overdue salaries, and as such the Single Judge upheld the position of the
Respondent.
42. The Single Judge therefore decided that the outstanding remuneration in favour of the
Player amounts to EUR 26,736 (i.e. EUR 30,736 – EUR 4,000). These amounts shall be paid
net of taxes in Cyprus in line with the contractual arrangement of the parties.
43. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Club is liable to pay to the Player a total of EUR 26,736
net.
44. In addition, taking into consideration the Player’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Player interest at the rate
of 5% p.a. on the outstanding amounts as from 1 June 2023 until the date of effective
payment.
45. Lastly, the Single Judge turned to the issue of the tax certificates requested by the Claimant.
In that there is no contractual stipulation to this effect neither in the Employment Contract
nor in the Supplementary Agreement, the Single Judge found that the Player’s claim in this
respect lacks contractual basis. He therefore dismissed this part of the Player’s petitum.
46. By way of conclusion, the Single Judge ruled that the claim of the Player is partially
accepted, and the Club shall pay him EUR 26,736 net as outstanding remuneration plus 5%
interest p.a. over said amount as from 1 June 2023 until the date of effective payment.
ii. Compliance with monetary decisions
47. Finally, taking into account the applicable Regulations, the Single Judge 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
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REF. FPSD-13377
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
48. In this regard, the Single Judge 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.
49. Therefore, bearing in mind the above, the Single Judge 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.
50. 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.
51. The Single Judge 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
52. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
53. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
54. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
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REF. FPSD-13377
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Vukasin Jovanovic, is partially accepted.
2.
The Respondent, Apollon Limassol, must pay to the Claimant the following amount(s):
EUR 26,736 net as outstanding remuneration plus 5% interest p.a. as from 1 June
2023 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13377
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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