Labour Disputes
Texto da decisão
REF. FPSD-7011
Decision of the
Dispute Resolution Chamber
passed on 27 April 2023
regarding an employment-related dispute concerning the player Dominik
Kovacić
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Laurel Vaurasi (Fiji), member
Khadija Timera (Senegal), member
CLAIMANT:
U Craiova 1948 SA, Romania
RESPONDENT 1:
Dominik Kovacić, Croatia
Represented by Ivan Ostojic
RESPONDENT 2:
Kisvarda FC, Hungary
pg. 2
REF. FPSD-7011
I. Facts of the case
1.
On 22 June 2021, the Romanian club, U Craiova 1948 SA (hereinafter: Claimant) and the
Croatian player, Dominik Kovacić (hereinafter: Respondent 1) concluded an employment
contract (hereinafter: contract) valid as from 15 July 2021 until 30 June 2022.
2.
According to article V of the contract, the Claimant undertook to pay the player, the
following:
“V.
Consideration for the services performed by the player
1. For the services performed for the period 15.07.2021- 30.06.2022, the professional player
shall benefit from an annual fee of 120,000 EUR (one hundred twenty thousand) net, payable as
follows:
a) 20,000 EUR (twenty thousand) net, as a signing-on fee, paid within 10 (ten) working days from
the date the player the player receives the registration certificate/work authorization from the
police, this contract is registered with the LPF/FRF and the player is registered with the RFF/LPF
(cumulative conditions), payable in lei, at the official exchange rate of the BNR on the day of the
payment
b) 8,333 EUR (eight thousand three hundred and thirty three) net, as a monthly fee, paid on a
monthly basis, in lei, at the official exchange rate of the BNR on the day of the payment. The
date from which the player is eligible for payment of the consideration is the date from which
his contract is validly registered with the RFF/PFL.
The payment obligation of each instalment shall be due on the 15th of each month following the
month for which the instalment is paid (for July the payment instalment shall become due on 15
August, for August, the payment instalment shall become due on 15 September, etc).”
3. Article IX of the contract provided for the following:
“IX. The extension option
The company has the option to unilaterally extend the validity period of this contract for 2 (two)
years, from 01 July 2022 - 30 June 2024 by means of a written notification, sent to the RFF/PFL,
until 30 June 2022. In case the company takes up the right to extend the validity period of this
contract for 01 July 2022 - 30 June 2024, the parties negotiated the following financial terms:
a) for the period 01.07 .2022-30.06.2023, the player shall benefit from a monthly net fee of
10,000 EUR (ten thousand) net, payable in lei, at the official exchange rate of the BNR, on the
day of the payment;
b) for the period 01.07.2023-30.06.2024, the player shall benefit from a amonthly net fee of
10,000 EUR (ten thousand) net, payable in lei, at the official exchange rate of the BNR, on the
day of the payment.”
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REF. FPSD-7011
4.
On 16 May 2022, the Claimant sent a notification to the Romanian Professional Football
league in relation to the extension of the contract with Respondent 1, which notification
stipulated the following:
“The undersigned U CRAIOVA 1948 S.A., located at no. 1 Sf. Dumitru street, county, registered
with the Office of Trade Register attached to the Dolj Tribunal under no. ]16/475/2013, CUI
RO31376464, registered with the Sports Register under no. DJ/A3/00001/2015 - duly represented
by Mititelu Gigi Adrian - Administrator (hereinafter the Sporting structure), hereby activates the
option to extend the validity of contract no. 291/22.06.2021, registered with the PFL under no.
311/14.07.2021, made between U CRAIOVA 1948 S.A. and KOVACIC DOMINIK, according to point
IX -The extension option in the above-referenced contract, according to which the contract will
be extended for the period 01 July 2022-30 June 2024.”
5.
On 17 May 2022, the Claimant sent a copy of the aforesaid notification to Respondent 1 via
WhatsApp.
6.
On 19 May 2022, Respondent 1 informed the Claimant, that it considers the contract to
expire on 30 June 2022 and that he has no intention to extend the contract beyond its term,
inter alia, mentioning “that only Claimant has unilateral right to extend the Contract under the
same financial conditions as before and for a longer term than the original one and thus is of
potestative nature meaning that, is clearly invalid, null and void in the sense of the FIFA and CAS
jurisprudence and therefore, the Player considers that the Contract shall expire on 30 June 2022,
as agreed in clause IV. point 1. of the Contract and that the option that the Club exercised is
invalid, about which position the Club has been verbally informed by the Player several times”.
7. On 30 June 2022, Respondent 1 left the Claimant’s training camp in Austria.
8.
On 1 July 2022, the Claimant notified the Hungarian club, Kisvarda FC (hereinafter:
Respondent 2) that Respondent 1 was still under contract with it, “however they disregarded
our notification and registered the player, offering him a contract.”
9.
On 13 July 2022, Respondent 2 sent a letter to the Claimant confirming that it offered a
contract to the player.
II. Proceedings before FIFA
10. On 9 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
11. According to the Claimant, Respondent 1 is in breach of the provisions of Art. 16 of the FIFA
RSTP and that Respondent 2 by its attitude, induced the player to terminate his contract
with the Claimant without just cause.
12. The Claimant further mentioned that “during 15th of July 2021-30th of June 2022, for the
season 2021/2022, we have paid the Player the amount of EURO 117.000 We equally paid the
player’s agent the amount of EURO 14.200 for the signing of the player”.
13. The requests for relief of the Claimant were the following:
(a) payment of the amount of EUR 131,200 from Respondent 1 and Respondent 2, mentioning
that they were jointly and severally liable for payment of the aforesaid amount in
accordance with article 17, para. 4 of the Regulations.
(b) in addition to ordering the two Respondents to jointly and severally pay us the amount of
EUR 131,200, we request (i) on the basis of Art. 17, para. 3, suspension of player for a
period of 6 months and, (ii) on the basis of Art. 17, para. 4, suspension of the right of
Respondent 2 to register new players, nationally and internationally, for two entire and
consecutive transfer periods.
b. Position of Respondent 1
14. In its reply, Respondent 1 stated that the player “shall primarily state that all the arguments
on merits of the case raised by the Claimant, which were not explicitly accepted in this answer,
shall be considered as rejected by the Player”.
15. Furthermore, Respondent 1 mentioned that the Claimant “failed to provide any legal
explanation whatsoever as to why it considered that the Option Clause would have to be deemed
as valid, but simply stipulated that the player terminated the employment contract without just
cause and that he should bear consequences for his actions, i.e. that he and Second Respondent
should be jointly and severally liable to pay the Claimant amount of EUR 131,200.00 and that
the Player should be suspended for period of 6 months”.
16. Respondent 1 indicated that he did not terminate the contract, but “duly informed the
Claimant, on two occasions, that he has no intention to extend the contract beyond its original
term”.
17. Respondent 1 argued that the option clause “was of potestative nature meaning that it was
clearly invalid, null and void in the sense of the FIFA and CAS jurisprudence and therefore the
Employment contract was not effectively extended”. In this context, the player mentioned:
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REF. FPSD-7011
-
-
“financial terms of the extension period of the Employment contract were not better than
the first year of the said contract, but such terms were in fact even from the financial perspective
worse for the Player since the Bonuses specified in clause V. points 2., 3. and 4. of the
Employment contract referred only to season 2021/2022, and
the extension period arising from Option Clause of two additional years is clearly
disproportionate to the main initial period of the Employment contract which has a duration of
one year”.
18. In conclusion, Respondent 1 requested that the FIFA Football Tribunal reject all reliefs
sought by the Claimant in its prayers for relief stipulated in the claim.
c. Position of Respondent 2
19. In its reply, Respondent 2 supports the position of Respondent 1 and rejects the accusation
of the Claimant that it induced Respondent 1.
20. Respondent 2 further mentioned that “it has no responsibility or liability whatsoever in
relation to this case, even if FIFA would conclude that Player acted in an improper way towards
Player's former club, and thus no sporting sanctions should be lawfully applied against it in
terms of the case at hand”.
21. In conclusion, Respondent 2 requested that the Honourable Dispute Resolution Chamber
would completely reject the claims of the Claimant and that it should be made liable for
the settlement of all costs occurring in relation to this proceeding.
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REF. FPSD-7011
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 9 August 2022 and submitted
for decision on 27 April 2023. Taking into account the wording of art. 34 of the July 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.
23. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
Romanian and a club from Croatia.
24. 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 (October 2022 edition), and
considering that the present claim was lodged on 09 August 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
25. 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
26. 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.
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REF. FPSD-7011
i. Main legal discussion and considerations
27. The foregoing having been established the Chamber moved to the substance of the matter
and took note of the fact that the controversy at the basis of the aforementioned dispute
lies fundamentally on the validity of the unilateral extension of the contract.
28. In this context, the Chamber acknowledged that its task was to analyse the circumstances
under which the unilateral extension of the contract was executed and, consequently, to
reach a conclusion whether the extension of the contract as per article IX of the contract
could be validly upheld.
29. Subsequently, the Chamber took note that the Claimant argued that; (i) it sent an official
notification to Respondent 1 regarding the exercise of the extension option of the contract
as well as to the Romanian Professional Football league, and therefore, holds that the
contract was validly extended until 30 June 2024; (ii) considering that the contract was
validly extended, Respondent 1 breached the contract by concluding an employment
contract with Respondent 2, while being contractually bound to the Claimant; and that (iii)
Respondent 2 must be considered jointly and severally liable for the payment of
compensation for breach of the contract.
30. The Chamber further noted that Respondent 1 on his account argued (i) that his contract
with the Claimant expired on 30 June 2022, as originally agreed and that he exercised his
right to refuse the unilateral extension as indicated by the Claimant therefore, he did not
terminate the contract without just cause and (ii) that the Claimant’s attempt to extend the
contract was based on a unilateral clause that cannot be considered valid.
31. In view of the aforementioned facts, the Chamber highlighted that it is clear that the parties
have fundamentally divergent positions and therefore deemed it important to analyse the
provisions of article IX of the contract which, stipulates that, “the company [club] has the
option to unilaterally extend the validity period of this contract for 2 (two) years, from 01 July
2022 - 30 June 2024 by means of a written notification, sent to the RFF/PFL, until 30 June 2022.
In case the company [club] takes up the right to extend the validity period of this contract for 01
July 2022 - 30 June 2024, the parties negotiated the following financial terms:
a) for the period 01.07 .2022-30.06.2023, the player shall benefit from a monthly net fee of
10,000 EUR (ten thousand) net, payable in lei, at the official exchange rate of the BNR, on the
day of the payment
b) for the period 01.07.2023-30.06.2024, the player shall benefit from a monthly net fee of
10,000 EUR (ten thousand) net, payable in lei, at the official exchange rate of the BNR, on the
day of the payment.”
32. By entering into the analysis of the alleged unilateral extension clause, the Chamber
deemed that – in line with the jurisprudence of the Chamber and the Court of Arbitration
for Sport (CAS) in this respect, in combination with the criteria developed in the legal
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REF. FPSD-7011
literature – the complete circumstances under which the clause was agreed upon should
be taken into account. At this point, the members of the Chamber deemed it appropriate
to recall the elements, which it deemed relevant for the assessment whether the unilateral
extension option, in the current matter, can be validly upheld:
•
the potential maximal duration of the employment contract shall not be excessive;
•
the unilateral extension option must be exercised by the club within an acceptable
deadline, before expiry of the current employment contract;
•
the salary reward derived from the option right must be defined in the original contract
and must correspond to a ‘substantial salary increase’;
•
one party may not be at the complete mercy of the other party in regards to the contents
of the employment contract;
•
the option must be clearly established and emphasized in the original contract, so that the
player is aware of it at the time of signing the contract;
•
The extension option should be proportional to the main contract;
•
It would be advisable to limit the number of extensions to one sole extension.
33. In view of the above, the Chamber finds that the above elements give helpful guidance as
to the question whether or not the option clause at stake is valid or not, as will be set out
below. However, for the sake of completeness, it must be underlined that the overall
package of elements is decisive in order to assess the validity of such clause. The specific
circumstances of each and every case are always decisive.
34. Having the above-mentioned elements in mind and specifically looking at the parties’
arguments, the Chamber held that the extension option does not seem to be proportional
to the original contract, in that the duration of the original contract was only for a period
of one year, however, to be extended for a disproportionate period of two years.
35. Furthermore, the Chamber wished to explicitly refer to the fact that the contract would
expire on 30 June 2022 and that therefore, the player was only made aware of the potential
extension of the contract at short notice i.e., 17 May 2022. In other words, the Chamber
finds that the option was not exercised by the club in a timely manner, i.e., within an
acceptable deadline before the expiry of the current employment contract.
36. Consequently, the player was placed at a disadvantage to seek alternative employment or
enter into negotiations for a new contract. In this regard, the Chamber also observes that
the employment contract prescribes that any such notification must be made per post or
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REF. FPSD-7011
email, whilst the notification in the case at hand was made per WhatsApp (and only after
the RFF was already informed).
37. Moreover, and specifically looking at the criterion of the substantial salary reward, the
Chamber observes that also this element was not met as the salary would remain the same
and was similar as to that was agreed upon under the initial term, i.e. a monthly fee of
EUR 10,000.
38. Further to this and having the specific circumstances of this case in mind, the Chamber also
wishes to note that it speaks in favour of Respondent 1 that he immediately objected
against the option clause as soon as it was lifted by the Claimant. Also, the Chamber takes
note that the Claimant issued the International Transfer Certificate of the player to
Respondent 2 without any reservation enabling the registration of the player in favour of
Respondent 2.
39. Taking the above into account, the Chamber was therefore of the opinion that the
extension clause, i.e., article IX of the contract, is excessively restrictive, potestative and
shall not be considered as being legally binding on Respondent 1.
40. Consequently, the Chamber deemed that the contract between the Claimant and
Respondent 1 naturally expired on 30 June 2022 and that in the period thereafter,
Respondent 1 was free to sign with another club.
41. In this regard, the Chamber held that Respondent 1 and Respondent 2 concluded an
employment contract on 1 July 2022, after the expiration of the contractual relationship
between the Claimant and Respondent 1, therefore neither Respondent 1 nor Respondent
2 shall bear any liability towards the Claimant.
42. Bearing all the above into account, the Chamber decided to reject the claim of the Claimant.
d. Costs
43. 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.
44. 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.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-7011
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, U Craiova 1948 SA, is rejected.
2.
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 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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