Labour Disputes
Texto da decisão
REF FPSD-6256
Decision of the
Dispute Resolution Chamber
passed on 6 September 2022
regarding an employment-related dispute concerning the player Dario
Kolobarić
BY:
Omar Ongaro (Italy), Deputy Chairperson
Daan de Jong (the Netherlands), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Dario Kolobaric, Slovenia
Represented by Gianpaolo Monteneri and Anna Smirnova
RESPONDENT:
FC Shakhtyor Soligorsk, Belarus
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REF FPSD-6256
I. Facts of the case
1.
On 26 July 2021, the Slovenian player Dario Kolobaric (hereinafter: the Claimant) and
the Belarusian club FC Shakhtyor Soligorsk (hereinafter: the Respondent) signed an
employment agreement (hereinafter: the Contract) valid for one season, i.e. until 20
July 2022.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia net monthly salary of BYN 8,000 (Belarusian roubles)
corresponding to about EUR 2,300.
3.
On 27 July 2021, by means of an additional contract (hereinafter: the Supplementary
Agreement), the parties agreed to extend the duration of the Contract until 31
December 2024.
4.
In this context, the parties stipulated that, in addition to the monthly salary of BYN
8,000, the Claimant would be entitled to the following net remuneration:
“(1) EUR 22,000 by 30 August 2021;
(2) EUR 50,000 by 30 September 2021;
(3) EUR 22,000 by 30 October 2021;
(4) EUR 22,500 by 30 December 2021;
(5) EUR 25,400 by 30 January 2022;
(6) EUR 50,000 by 28 February 2022;
(7) EUR 25,400 by 30 March 2022;
(8) EUR 25,400 by 30 May 2022;
(9) EUR 25,400 by 30 July 2022;
(10) EUR 25,400 by 30 September 2022;
(11) EUR 25,400 by 30 November 2022;
(12) EUR 25,400 by 30 January 2023;
(13) EUR 25,400 by 30 March 2023;
(14) EUR 25,400 by 30 May 2023;
(15) EUR 25,400 by 30 July 2023;
(16) EUR 25,400 by 30 September 2023;
(17) EUR 25,400 by 30 November 2023;
(18) EUR 35,400 by 30 January 2024;
(19) EUR 35,400 by 30 March 2024;
(20) EUR 35,400 by 30 May 2024;
(21) EUR 35,400 by 30 July 2024;
(22) EUR 35,400 by 30 September 2024;
(23) EUR 35,400 by 30 November 2024.”
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5.
Furthermore, pursuant to clause 8.1.4 of the Contract as amended by art. 2 of the
Supplementary Agreement, at the end of the sporting season 2021 the Claimant
would be entitled to USD 1,000 (US Dollars) net for each goal/assist realized in official
matches for the main team, to paid by or on 31 December 2021.
6.
In addition to the above, clause 8.1.12 of the Supplementary Agreement established
that the Respondent would reimburse the Claimant the cost of accommodation in
Belarusian roubles and amounting to the equivalent of USD 200 net per month upon
the submission of the relevant documents.
7.
On 15 April 2022, the Claimant put the Respondent in default of EUR 161,387.73,
specifying that the said amount corresponded to the remuneration payable under
clause 8.1.2 of the Contract as amended by Art. 2 of the Supplementary Agreement)
plus USD 1,000 as outstanding bonus for the season 2021 and USD 1,000 as housing
allowances. Contextually, the Claimant granted the Respondent 15 days to remedy
the breach.
8.
On 19 April 2022, the Respondent replied to the Claimant recognizing outstanding
amounts for EUR 160,654.02 and clarifying that such delay had been caused by the
lack of financial means.
9.
Contextually, the Respondent requested the Claimant to accept a postponement of
the payment’s deadline.
10. On 29 April 2022, the Respondent realized a payment in favour of the Claimant of EUR
15,062.61 as partial payment of the outstanding debts.
11. On 2 May 2022, the Claimant sent to the Respondent a letter whereby he recognized
the receipt of the last payment occurred on 29 April 2022 and contextually notified
the club about the immediate termination of the Contract for overdue payables;
meanwhile reiterating his request for the payment of the outstanding amounts.
12. On 16 June 2022 the Claimant signed a contract with the Slovenian club FC Koper, to
be valid until 31 December 2024.
II. Proceedings before FIFA
13. On 3 June 2022, 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
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14. In his claim, the Claimant stated that the Respondent failed to comply with its financial
obligations stipulated under the Contract.
15. In particular, the Claimant argued that the Respondent paid the Claimant EUR
15,062.61 only, against an outstanding debt of EUR 161,387.73 + USD 2,000, which
inter alia had been already acknowledged by the same Respondent in its letter dated
19 April 2022.
16. As a consequence, given the entity of the debts in question and the persisting default
of the Respondent, the Claimant is of the opinion that he had just cause to terminate
the Contract on 2 May 2022.
17. Accordingly, the requests for relief of the Claimant, were the following:
“(..) Outstanding salaries
a) EUR 22,445.16 net (corresponding to the salary for August 2021 and the payment due
on 30.08.2021 under clause 8.1.2 of the Contract as amended by Art. 2 of the
Supplementary Agreement) plus 5% interest p.a. as from 31 August 2021;
b) EUR 50,166.75 net (corresponding to the salary for September 2021 and the payment
due on 30.09.2021 under clause 8.1.2 of the Contract as amended by Art. 2 of the
Supplementary Agreement) plus 5% interest p.a. as from 1 October 2021;
c) EUR 1,663.517 net (corresponding to the outstanding payment due on 30.10.2021 under
clause 8.1.2 of the Contract as amended by Art. 2 of the Supplementary Agreement) plus
5% interest p.a. as from 31 October 2021;
d) EUR 10,433.80 net (corresponding to the salary for December 2021 and the payment
due on 30.12.2021 under clause 8.1.2 of the Contract as amended by Art. 2 of the
Supplementary Agreement) plus 5% interest p.a. as from 31 December 2021;
e) EUR 18,623.11 net (corresponding to the salary of January 2022 and the payment due
on 30.01.2022 under clause 8.1.2 of the Contract as amended by Art. 2 of the
Supplementary Agreement) plus 5% interest p.a. as from 31 January 2022;
f) EUR 42,021.56 net (corresponding to the salary of February 2022 and the payment due
on 28.02.2022 under clause 8.1.2 of the Contract as amended by Art. 2 of the
Supplementary Agreement) plus 5% interest p.a. as from 1 March 2022;
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g) EUR 3,271.24 net (corresponding to the payment due on 30.03.2022 under clause 8.1.2
of the Contract as amended by Art. 2 of the Supplementary Agreement) plus 5% interest
p.a. as from 30 April 2022;
h) USD 1,000 net corresponding to a bonus due to the Claimant under clause 8.1.4 of the
Contract as amended by Art. 2 of the Supplementary Agreement for a goal scored on 31
October 2021 (this payment matured on 31 December 2021) plus 5% interest p.a. as from
1 January 2022;
i) USD 1,200 net corresponding to housing allowances for six months.
(..) Compensation for the termination of the contract without just cause
Month
May 2022
June 202222
July 2022
August 2022
September 2022
October 2022
November 2022
December 2022
January 2023
February 2023
March 2023
April 2023
May 2023
June 2023
July 2023
August 2023
September 2023
October 23
November 2023
December 2023
January 2024
February 2024
March 2024
April 2024
May 2024
June 2024
Salary net
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
Remuneration net
EUR 25,400
EUR 25,400
EUR 25,400
EUR 25,400
EUR 25,400
EUR 25,400
EUR 25,400
EUR 25,400
EUR 25,400
EUR 25,400
EUR 35,400
EUR 35,400
EUR 35,400
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July 2024
August 2024
September 2024
October 2024
November 2024
December 2024
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 2,300
EUR 35,400
EUR 35,400
EUR 35,400
Intermediary total:
EUR 73,600
EUR 466,400
Total: EUR 540,000 net
(..) plus 5% interest p.a. as from 3 May 2022 until the date of effective payment;”
b. Position of the Respondent
18. In spite of having been invited to do so, the Respondent did not provide its position
on the matter.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 03 June 2022
and submitted for decision on 6 September 2022. Taking into account the wording of
art. 34 of the June 2022 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.
20. 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
b) of the Regulations on the Status and Transfer of Players (edition July 2022), 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
Slovenian player and a Belarusian club.
21. 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 (July 2022),
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and considering that the present claim was lodged on 03 June 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
22. 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
23. 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
24. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that on 26 July 2021 the Claimant and the
Respondent concluded an employment agreement, subsequently amended by both
parties on 27 July 2021 to be valid until 31 December 2024.
25. In this context, the DRC acknowledged that on 2 May 2022 the Claimant prematurely
terminated the employment agreement because the Respondent had allegedly failed
to comply with the majority of its financial obligations.
26. In this respect, the Chamber noted that the Respondent failed to present its response
to the claim of the Claimant, in spite of having been invited to do so. By not presenting
its position to the claim, the Chamber was of the opinion that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
27. As a consequence of the aforementioned consideration, the DRC concurred that in
accordance with art. 21 par.1 of the Procedural Rules, it shall take a decision upon the
basis of the documentation already on file; in other words, upon the statements and
documents presented by the Claimant.
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28. With the above in mind, the Chamber focused its attention on the circumstances of
the termination in order to assess whether on 2 May 2022 the Claimant had just cause
to unilaterally interrupt the employment relationship with the Respondent.
29. In this respect, the Chamber observed that on 15 April 2022, the Claimant sent a letter
to the Respondent to put the latter in default of EUR 161,387.73 plus USD 2,000 as
outstanding amounts.
30. In this context, the Chamber observed that the Claimant granted 15 days to the
Respondent in order to remedy the breach.
31. Moreover, the Chamber noted that by means of correspondence date 19 April 2022,
the same Respondent acknowledged the existence of overdue payables towards the
Claimant for an amount of EUR 160,654.02 and justified such delay by simply invoking
financial problems internal to the club.
32. Subsequently, the Chamber observed that on 29 April 2022 the Respondent paid EUR
15,062.61 to the Claimant.
33. In this respect, the DRC assessed that at the time of terminating the Contract, the
Respondent was aware of carrying outstanding debts for a sum larger than EUR
145,000, which correspond to several salaries of the Claimant. The Chamber equally
observed that in spite of having been put in default in accordance with art. 14bis of
the Regulations, the Respondent failed to pay the entire debt owed to the Claimant.
34. As a consequence, the Chamber concluded that on 2 May 2022 the Claimant had just
cause to terminate the Contract because of the Respondent’ significant breach on the
basis of art. 14bis of the Regulations.
ii. Consequences
35. 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.
36. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, amounted to EUR
148,625.137 (i.e. the unpaid salaries) plus USD 2,200 (i.e. goal bonus and housing
allowances).
37. 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
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the amounts which were outstanding under the contract at the moment of the
termination, i.e. EUR 148,625.137 + USD 2,200.
38. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as from the relevant due
dates until the date of effective payment.
39. In this context, the Chamber wished to remark that no interest shall be charged on
the amounts requested as housing allowance, namely because it was not requested
by the Claimant, hence any additional interest would violate the principle of “ne ultra
petita”.
40. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the
law of the country concerned, the specificity of sport and further objective criteria,
including in particular, the remuneration and other benefits due to the player under
the existing contract and/or the new contract, the time remaining on the existing
contract up to a maximum of five years, and depending on whether the contractual
breach falls within the protected period.
41. 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.
42. 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.
43. Bearing in mind the foregoing as well as the claim of the player, the Chamber
proceeded with the calculation of the monies payable to the player under the terms
of the contract from the date of its unilateral termination until its end date.
Consequently, the Chamber concluded that the amount of EUR 540,000 (i.e. the
residual value of the Contract) serves as the basis for the determination of the amount
of compensation for breach of contract.
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44. 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.
45. Indeed, the player found employment with the Slovenian club FC Koper. In
accordance with the pertinent employment contract, the player was entitled to
approximately EUR 2,000 net per month, namely from 16 June 2022 until 31
December 2024. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of EUR 61,000.
46. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an amount corresponding to three monthly
salaries as additional compensation should the termination of the employment
contract at stake be due to overdue payables. In the case at hand, the Chamber
confirmed that the contract termination took place due to said reason i.e. overdue
payables by the club, and therefore decided that the player shall receive additional
compensation.
47. In this respect, the DRC decided to award the amount of additional compensation of
EUR 6,900, i.e. three times the basic monthly salary of the player.
48. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the
amount of EUR 485,900 to the player (i.e. 540,000 minus 61,000 plus 6,900), which was
to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
49. Lastly, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of termination, i.e. 2 May 2022 until
the date of effective payment.
iii. Compliance with monetary decisions
50. 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
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the concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
51. 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.
52. 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.
53. 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.
54. 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
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Dario Kolobarić, is accepted.
2.
The Respondent, FC Shakhtyor Soligorsk, has to pay to the Claimant, the following
amount:
EUR 22,445.16 as outstanding remuneration plus 5% interest p.a. as from 31
August 2021 until the date of effective payment;
EUR 50,166.75 as outstanding remuneration plus 5% interest p.a. as from 1
October 2021 until the date of effective payment;
EUR 1,663.51 as outstanding remuneration plus 5% interest p.a. as from 31
October 2021 until the date of effective payment;
EUR 10,433.80 as outstanding remuneration plus 5% interest p.a. as from 31
December 2021 until the date of effective payment;
EUR 18,623.11 as outstanding remuneration plus 5% interest p.a. as from 31
January 2022 until the date of effective payment;
EUR 42,021.56 as outstanding remuneration plus 5% interest p.a. as from 1 March
2022 until the date of effective payment;
EUR 42,021.56 as outstanding remuneration plus 5% interest p.a. as from 30 April
2022 until the date of effective payment;
USD 1,000 as outstanding bonus plus 5% interest p.a. as from 1 January 2022 until
the date of effective payment;
USD 1,200 as outstanding housing allowance;
EUR 485,900 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 2 May 2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not made within 45 days of notification
of this decision, the following consequences shall apply:
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1. The Respondent shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid. The maximum
duration the ban shall be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still
not made by the end of the three entire and consecutive registration periods.
5. The consequences shall only be enforced at the request of the Claimant in
accordance with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and
Transfer of Players.
6. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 17 of the Procedural Rules).
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