Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 23 April 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Jos é Luis Andrade (Portugal), member
S tijn Boey kens (Belgium ), member
on the dispute between the club,
Al Nas s r S ports Club, Oman
as Claimant 1 / Respondent 2
and the player,
Edin Junuzov ic, Croatia
represented by Mr Ivan Smokrovic
as Claimant 2 / Respondent 1
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 1 August 2019, the Croatian player Edin Junozovic (hereinafter: the player) and the
Omani club Al Nassr (hereinafter: the club) concluded an employment contract, valid as
from the date of signature until 30 April 2020.
2.
According to the contract the player was entitled to the following benefits:
-
an advance payment of USD 10,000;
a monthly salary of USD 6,000;
furnished accommodation;
round-trip air tickets Zagreb <> Salalah for the player and his family once during
the contract;
a car.
3.
On 4 December 2019, the player put the club in default of payment of his salaries of
September, October and November 2019, in the amount of USD 6,000 each, his salary
for August having been paid only in November 2019, and granting the club 15 days to
remedy the default.
4.
On 21 December 2019, the player terminated the contract with the club in writing,
mentioning art. 14bis of the RSTP and claiming the club had paid his salaries for
September and October 2019, but not for November 2019.
5.
On 25 December 2019, the club acknowledged receipt of the termination and warned
the player that the latter had been done without just cause.
6.
On 24 December 2019, the club lodged a claim against the player for breach of contract,
claiming that he had terminated the contract without just cause. According to the club,
on or about 20 / 21 December 2019 the player left the country without informing the
club’s administration. The club claims the player had no just cause as per art. 14bis of
the RSTP as only the November 2019 salary was outstanding when he terminated the
contract.
7.
In its claim the club requests that the player should be held liable to pay compensation
in the amount of USD 67,557, broken down as follows:
-
USD 64,000 “as full contract amount as physical effect on team during important
matches”
USD 1,558 as “apartment rent for remaining months as per the contract”;
USD 26 as cash invoice for translation of payment vouchers”
USD 571 as “ticket for player from Zagreb to Salalah;
USD 1,402 as “tickets for the player family from Zagredb-Salalah-Zagreb”.
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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8.
On 8 January 2020, the player lodged a claim against the club, claiming that the
termination was made with just cause. The player explains that he had not received his
salaries for September, October and November 2019 and thus put the club in default of
4 December 2019. He claims that after the default notice, the salaries for September and
October 2019 were paid but the one for November 2019 remained outstanding and
therefore on 27 December 2019 he still had a just cause as per art.14bis of the RSTP to
terminate the contract. According to a receipt provided by the club itself, the salary of
September 2019 was paid on 10 December 2019 and the one of October 2019 was paid
on 19 December 2019.
9.
In his claim, the player makes the following requests:
-
-
USD 36,600, corresponding to his monthly salaries from November 2019 to April
2020 (i.e. 6 months x USD 6,000) plus USD 600 as “additional damage”
corresponding to a ticket from Salalah to Zagreb, plus “statutory default interest
within 15 days”;
Procedural costs.
10.
In reply to the claim of the club, the player insisted on the arguments brought up in his
claim and emphasises that he had a just cause to terminate the contract as per art. 14bis
of the Regulations, since the club did not pay its debts in full and even admits in his
claim not having paid him the salary on November 2019.
11.
In spite of having been invited to do so, the club did not reply to the claim of the player,
within the granted deadline and the investigation was closed on 19 March 2020. On 24
March 2020, the club sent a letter to FIFA claiming to never have received the player’s
claim forwarded by FIFA on 27 January 2020. After a thorough check, FIFA informed the
club on 26 March 2020 that “both the player’s claim against you and your claim against
the player were properly notified to the respective parties on 27 January 2020 […] to
the same email address from which you sent your correspondence date 24 March 2020”.
In addition, FIFA enclosed to its letter of 26 March 2020 proof of delivery of its
correspondence of 27 January 2020.
12.
On 15 February 2020, the player signed a new employment contract with the
Uzbekistani club, Buxoro FC, valid as form the date of signature until 15 December 2020,
for a monthly salary of Uzbekistan Som (UZS) 52,805,000 (approx. USD 5,520). As per the
information provided by the player, he went on an unpaid leave from 20 March to 14
April 2020 and as from 15 April 2020 salary reduced to 50%.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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,
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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it took note that the present matter was first submitted to FIFA on 28 December 2019.
Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules
is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22
lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), 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 Croatian
player and an Omani club.
3.
Furthermore, 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 (2020), and considering
that the present claim was initially lodged on 28 December 2019, the October 2019
edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand
as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members of the
Chamber started by acknowledging the facts of the case, as well as the documentation
contained in the 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.
5.
In this respect, the Chamber first acknowledged that the player and the club signed an
employment contract valid as from 1 August 2019 until 30 April 2020, for the
remuneration detailed in point I.2 above.
6.
In addition, the Chamber noted that on the one hand the player lodged a claim against
the club, claiming to have terminated the contract with just cause on 21 December 2019
based on art. 14bis of the Regulations, and that on the other hand the club also lodged
a claim against the player, claiming the contract was terminated without just cause as
only the November 2019 salary was outstanding by the time of termination.
7.
In view of the foregoing and of the diverging opinions of the parties, the Dispute
Resolution Chamber was of the opinion that the issue at stake considering the
argumentation of both parties, was to determine whether the employment contract
had been unilaterally terminated by the player with or without just cause on 21
December 2019, and which party was responsible for the early termination of the
contractual relationship in question.
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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8.
The DRC also underlined that, subsequently, if it were found that the employment
contract was breached by one of the parties without just cause, it would be necessary
to determine the consequence for the party that caused the unjust breach of the
relevant employment contract.
9.
Subsequently, the DRC observed that the club, for its part, in spite of having been invited
to do so, failed to present its response to the claim of the player within the relevant
time-limit. In fact, in spite of the fact that the player’s claim and the club’s claim were
forwarded to the relevant parties simultaneously and to the email address used by the
club to communicate with FIFA, a reaction from the club to the player’s claim was only
received after the investigation-phase of the matter had already been concluded.
10.
As a result, considering that the claim of the player was duly communicated to the club,
the DRC decided not to take into account the reply of the club and established that, in
accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the
basis of those documents on file that were provided prior to the closure of the
investigation-phase, in casu, upon the statements and documents presented by the
player and the claim of the club.
11.
Having established the foregoing, the DRC deemed it appropriate to recall the content
of art. 12 par.3 of the Procedural Rules, according to which any party claiming a right
on the basis of an alleged fact shall carry the respective burden of proof.
12.
Bearing in mind the foregoing, the Chamber noted that the club bore the burden of
proving that it indeed paid the amounts due to the player in accordance with the
employment contract or that it had a valid reason not to have done so. In this respect,
the DRC noted that the club itself admits that the salary of November 2019 remained
outstanding by the time of termination.
13.
In addition, the Chamber noted that the player had put the club in default of payment
on 4 December 2019, for the payment of his salaries for September, October 2019 and
November 2019, granting the club 15 days to remedy the default. The Chamber also
noted that the player unilaterally terminated the contract on 21 December 2019,
mentioning art. 14bis of the RSTP and claiming the club had still not paid his salary for
November 2019.
14.
At this point, the Chamber deemed it appropriate to remind the parties of the wording
of art. 14bis par. 1 of the Regulations, according to which: “In the case of a club
unlawfully failing to pay a player at least two monthly salaries on their due dates, the
player will be deemed to have a just cause to terminate his contract, provided that he
has put the debtor club in default in writing and has granted a deadline of at least 15
days for the debtor club to fully comply with its financial obligation(s)”. (emphasis
added)
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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15.
Bearing in mind the foregoing, the DRC noted a) that the player acted in accordance
with art. 14bis of the Regulations, b) that after the default notice the club only partially
paid the outstanding remuneration claimed and c) that the termination of the contract
de facto only occurred more than 15 days after the default notice was given. Thus, the
DRC concluded that the player had a just cause to terminate the contract.
16.
As a result, the club is to be held liable for the early termination of the employment
contact with just cause by the player.
17.
In continuation, the Chamber focused its attention on the consequences of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber
decided that the player is entitled to receive from the club an amount of money as
compensation for breach of contract in addition to any outstanding payments on the
basis of the relevant employment contract.
18.
In this regard, the DRC first addressed the issue of unpaid remuneration at the moment
when the contract was terminated by the player and decided that, in accordance with
the general legal principle of pacta sunt servanda, the club is liable to pay to the player
outstanding remuneration corresponding to USD 6,000 as his salary of November 2019
and USD 600 corresponding to the reimbursement of a flight ticket, foreseen in the
contract and for which the player provided evidence.
19.
In addition, taking into consideration the player’s claim, the DRC decided to award him
interest at the rate of 5% p.a. on the respective amounts due as from the date of claim,
i.e. as from 8 January 2020, until the date of effective payment.
20.
In continuation, having established that the club is to be held liable for the early
termination of the employment contract with just cause by the player, the DRC focused
its attention on the consequences of such termination. Taking into consideration art. 17
par. 1 of the Regulations, the DRC decided that the player is entitled to receive an
amount of money from the club as compensation for the termination of the contract
with just cause in addition to any outstanding payments on the basis of the relevant
employment contract.
21.
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
members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of
the Regulations, the amount of compensation shall be calculated, in particular and
unless otherwise provided for in the contract at the basis of the dispute, with due
consideration for the law of the country concerned, the specificity of sport and further
objective criteria, including in particular, the remuneration and other benefits due to
the player under the existing contract and/or the new contract, the time remaining on
the existing contract up to a maximum of five years, and depending on whether the
contractual breach falls within the protected period.
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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22.
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.
23.
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.
24.
The DRC then turned its attention to the remuneration and other benefits due to the
player under the existing contract and/or the new contract, which criterion was
considered by the DRC to be essential. The DRC deemed it important to emphasise that
the wording of art. 17 par. 1 of the Regulations allows the DRC to take into account
both the existing contract and the new contract, if any, in the calculation of the amount
of compensation.
25.
Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to him under the terms of the employment
contract from its date of termination with just cause by the Claimant, i.e. 21 December
2019 until 30 April 2020 and concluded that the player would have received in total USD
30,000 as remuneration had the contract been executed until its expiry date.
Consequently, the Chamber concluded that the amount of USD 30,000 serves as the basis
for the determination of the amount of compensation for breach of contract.
26.
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, 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.
27.
The Chamber noted that the player signed a new employment contract with Buxoro FC,
valid as from 15 February 2020 until 15 December 2020. The Chamber further noted that
the player provided documentation confirming that he went on an unpaid leave from
20 March to 14 April 2020 and as from 15 April 2020 salary reduced to 50%. Thus, the
Chamber concluded that the player managed to mitigate his damages in the amount of
USD 7,701, 1/2 February 2020 (USD 2,760) + 20 days in March (USD 3,561) + 1/2 April at
50% (USD 1,380). Thus, the mitigated compensation amounts to USD 22,299.
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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28.
Subsequently, the Chamber referred to art. 17 par. 1 point ii. and established that, since
the termination was due to overdue payables, the player should also be entitled to
additional compensation in the amount of 3 monthly salaries, which amounts to USD
18,000.
29.
Bearing in mind that “The overall compensation may never exceed the rest value of the
prematurely terminated contract”, the Chamber established that the player would be
entitled to receive compensation from the club in the total amount of USD 30,000.
30.
In addition, taking into account the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the DRC decided that the club must pay
to the player interest of 5% p.a. on the amount of compensation as of the date of the
claim, i.e. 8 January 2020 until the date of effective payment.
31.
Furthermore, taking into account the consideration under number II./3. above, the DRC
referred to par. 1 and 2 of art. 24bis 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 pointed out 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 and for
the maximum duration of three entire and consecutive registration periods.
33.
Therefore, bearing in mind the above, the DRC decided that, in the event that the club
does not pay the amounts due to the player within 45 days as from the moment in which
the player, following the notification of the present decision, communicates the
relevant bank details to the club, a ban from registering any new players, either
nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become effective on the club in accordance with art. 24bis par.
2 and 4 of the Regulations.
34.
Finally, 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.
24bis par. 3 of the Regulations.
35.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that the player’s claim is partially accepted and the club’s claim is rejected.
*****
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant 1 / Respondent 2, Al Nassr Sports Club, is rejected.
2.
The claim of the Claimant 2 / Respondent 1, Edin Junuzovic, is partially accepted.
3.
Al Nassr Sports Club has to pay to Edin Junuzovic the amount of USD 6,000 as outstanding
remuneration plus interest at the rate of 5% p.a. as from 8 January 2020 until the date
of effective payment.
4.
Al Nassr Sports Club has to pay to Edin Junuzovic the amount of USD 600 as
reimbursement of a flight ticket plus interest at the rate of 5% p.a. as from 8 January
2020 until the date of effective payment.
5.
Al Nassr Sports Club has to pay to Edin Junuzovic the amount of USD 30,000 as
compensation plus interest at the rate of 5% p.a. as from 8 January 2020 until the date
of effective payment.
6.
Any further claim lodged by Edin Junuzovic is rejected.
7.
Edin Junuzovic is directed to inform Al Nassr Sports Club, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present decision,
of the relevant bank account to which Al Nassr Sports Club must pay the amounts
mentioned under points 3, 4 and 5 above.
8.
Al Nassr Sports Club shall provide evidence of payment of the due amounts in accordance
with points 3, 4 and 5 above to FIFA to the e-mail address [email protected], duly
translated, if need be, into one of the official FIFA languages (English, French, German,
Spanish).
9.
In the event that the amount due plus interest in accordance with points 3, 4 and 5 above
is not paid by Al Nassr Sports Club w ithin 45 day s as from the notification by Edin
Junuzovic of the relevant bank details to Al Nassr Sports Club, Al Nassr Sports Club shall
be banned from registering any new players, either nationally or internationally, up until
the due amount is paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
10.
The ban mentioned in point 9 above will be lifted immediately and prior to its complete
serving, once the due amount is paid.
11.
In the event that the aforementioned sum plus interest is still not paid by the end of the
ban of three entire and consecutive registration periods, the present matter shall be
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal
decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note relating to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following
the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief
stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne, Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected] / www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Club Al Nassr Sports Club, Oman / Player Edin Junuzovic, Croatia
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