Labour Disputes
Texto da decisão
REF. FPSD-12785
Decision of the
Dispute Resolution Chamber
passed on 8 February 2024
regarding an employment-related dispute concerning
the player Amar Kovcic
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Andre DOS SANTOS MEGALE (Brazil), member
Stijn BOEYKENS (Belgium), member
CLAIMANT:
Amar Kovcic, Bosnia and Herzegovina
Represented by Sanel Masic
RESPONDENT:
NK Trnje, Croatia
pg. 2
REF. FPSD-12785
I. Facts of the case
1.
Allegedly on 13 July 2023, the player Amar Kovcic from Bosnia & Herzegovina (hereinafter:
Claimant or player) and the club NK Trnje from Croatia (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from the same date until
the end of the season 2023/2024.
2.
As evidence of the above, the player presented an affidavit with the following contents:
“I, Amar Kovcic, born on 27/11/2000, holder of the Bosnian Passport No B2611846 hereby
certify that the following information is exact, and that I will confirm this information in a
hearing in the event that I am requested to do so.
I joined the Croatian club NK Trnje Zagreb on 13 July 2023.
Even if I joined as a football player, they made me sign an employment contract for field
maintenance and did not even give me a copy of signed employment contract.
I did not care much because the club had promised me that everything would be fine with my
working and residence visa, I was registered with the Croatian Football Federation, and I had
a monthly salary of EUR 700 as well as food and accommodation according to the contract.
I found out that the club had never applied for a work and residence permit for me when I
was notified from the Ministry of Interior Affairs with an “Obavijest” on 06 October 2023.
Indeed, NK Trnje Zagreb did not provide to the authority the relevant documents for me to
get a working residence visa and thus, the Ministry of Interior Affairs notified me with an
“Obavijest”, considering that I committed the offense of failure to register a tourist stay in the
Republic of Croatia and because I did not have a registered permanent residence in the
Republic of Croatia in accordance with Croatian law.
On 09.10.2023, my address of residence was registered, with a period of stay until 04.11.2023,
in order to regularise my situation, after which I had to leave the Republic of Croatia if my
situation was not regularised.
Given that the club has never submitted a request to the authorities of the Republic of Croatia
for the issuance of a work and residence permit, and that foreigners as tourists can stay in
the Republic of Croatia continuously for a maximum of 90 days with an official application,
and the club terminated unilaterally my employment contract on 12 October 2023 without
any ground, I had to leave Croatia on 12 October 2023, i.e 90 days after my entrance on 13
July 2023.
Made in Tuzla, Bosnia and Herzegovina on 15 November 2023”.
pg. 3
REF. FPSD-12785
3.
In accordance with the information recorded in the Transfer Matching System (TMS), the
player was registered with the Respondent as an amateur on 25 August 2023.
4.
The player played in these 6 matches for the club:
a.
b.
c.
d.
e.
f.
Vs. NK Karlovac 1919 on 26.08.2023
Vs. NK Bjelovar on 02.09.2023
Vs. NK Jadran-Porec on 09.09.2023
Vs. NK Kustosija on 16.09.2023
Vs. NK Belisce on 23.09.2023
Vs. NK Marsonia on 07.10.2023
5.
On 6 October 2023, the player received a letter from the Croatian Ministry of Interior stating
that he had committed an offense/misdemeanor with regards to “art. 177. par. 4. ill.
According to Art. 251. par. 4. t. 24. of the Law on Foreigners”.
6.
On 12 October 2023, the Croatian Football Association (HFF) issued a release letter with the
following contents:
“RELEASE
Football Club: NK Trnje (Z), Zagreb
Address: Trg Kardinala Franje Sepera 9
Contact: email: [email protected]
Year of “release”: 2023 Date of “release”: 12.10.2023
Player: Kovcic Amar
Date and place of birth: 27.11.2000, Tuzla
OIB:
Date of registration and eligibility to play: 24.08.2023
The club from where the player came from: FK Buducnost, Banovici
The player spent a period from: 25.08.2023 until 12.10.2023
Date of the last appearance in an official match: 07.10.2023 15:00 NK Trnje (Z) – NK Marsonia
Whether the player is under penalty of playing ban or under suspension, imposed by the
competent disciplinary body: NO
Does the player have to serve a suspension due to 3 (three) warnings in cup or championship
matches: NO
Does the player have a warning in the cup games: NO
Does the player have a warning in the championship games: NO
Player status at the club: AMATEUR
The contract between the player and the club was conducted on: _______ until ________
The contract between the player and the club has ceased to be valid on: ______________”.
7.
Following his release from the Respondent, the Claimant remained unemployed.
pg. 4
REF. FPSD-12785
8.
On 22 November 2023, the Claimant lodged a claim against the Respondent in front of FIFA.
9.
In his claim, the player argued as follows:
•
The player argues that despite not having a physical copy of the contract due to the
club’s bad faith, the contract’s validity and enforceability are beyond doubt. In his view,
this is supported by the player’s registration with the club, his participation in six
matches for the club, and the club’s waiver of rights for its entitlement to training
compensation for the player. The player also received payments from the club, further
indicating a valid contract.
•
The player asserts that FIFA is competent to hear the dispute due to its international
dimension, as the player is of Bosnian nationality and the club is affiliated to the HFF.
The player argued that the FIFA Football Tribunal should apply the FIFA Regulations
primarily and Swiss Law subsidiarily.
•
The player alleges that the club unilaterally terminated the contract without just cause
on 12 October 2023, forcing the player to leave not only the club but also the country of
Croatia. This termination occurred during the protected period, which according entitles
the player to compensation and the club to be imposed sporting sanctions upon.
•
The player seeks damages and compensation for the club’s unilateral termination of the
contract. The player deems he is entitled to the full residual value of his contract,
mitigated by the value of his new contract, according to Article 17 of the FIFA Regulations
on the Status and Transfer of Players (RSTP). The player also claims entitlement to
additional compensation and 5% interest per annum on the due amount from the date
it became due until the date of effective payment, based on FIFA’s well-established
jurisprudence and Article 104 par. 1 of the Swiss Code of Obligations.
10. The Respondent did not file its position as to the Claimant’s claim.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 22 November 2023 and
submitted for decision on 8 February 2024. Taking into account the wording of art. 34 of
the March 2023 edition of the Procedural Rules Governing the Football Tribunal
pg. 5
REF. FPSD-12785
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
12. 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
RSTP (May 2023), 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 Bosnian player and a Croatian club.
13. 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 RSTP (May 2023 edition), and considering that the present claim was lodged
on 22 November 2023, the said edition of the RSTP (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
14. 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
15. The 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
16. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning
the alleged existence of a contract and its ensuing termination, as well as the consequences
thereof.
17. As a departure point, the Chamber highlighted that the Respondent has failed to present
its position to the claim. Accordingly, the DRC must decide based on the documentation
and evidence presented by the Claimant alone in line with art. 14 and 21 of the Procedural
Rules, in that the Respondent has waived its right to present a defence.
pg. 6
REF. FPSD-12785
18. In this context, the Chamber acknowledged that although there is no reply by the club on
file, its first task was to determine, based on the evidence on file, whether an employment
contract was indeed concluded between the player and the club.
19. In this respect, and while underlying that the burden of proof to this effect lied with the
Claimant, the DRC noted that he has not advanced a copy of any document concluded with
the club, even less an employment contract. The DRC equally noted that the player did not
present default notices exchanged with the club, or any documentation to this effect, aside
from the release letter of the HFF and the relevant 6 match reports.
20. In addition, and despite not having a signed copy of the said contract, the DRC proceeded
to examine if mutual consent could have been established between the Parties to the effect
that the player had been hired as a professional with the club, proving thus the contractual
relationship by and between employer and employee. In this regard, referring to art. 13
par. 5 of the Procedural Rules and the principle of the burden of proof, the DRC however
was of the opinion that the Claimant did not meet his burden of proof in order to
demonstrate his link to the club.
21. In fact, the DRC found that very little documentation was made available by the Claimant
to support his arguments. In order words, while the DRC was comforted to establish that
the player indeed played for the club, it could not be determined with the require degree
of satisfaction under which capacity.
22. At this point, the DRC pointed out that under art. 2 par. 1 and 2 of the Regulations, players
participating in organised football are either amateurs or professionals; no other status
shall be recognised. A professional is a player who has a written contract with a club and is
paid more for his footballing activity than the expenses they effectively incur. All other
players are amateurs, and there is nothing in between.
23. Along these lines, the DRC recalled that the Commentary to the RSTP (ed. 2023) shed
further light regarding the matter (p. 29 et seq.):
(…) in assessing the status of a player, any contract must be measured against the article 2
paragraph 2 criteria only, irrespective of any designation or categorisation used within the
contract, and irrespective of the status under which a player may have been registered by the
member association concerned. Given that article 2, Regulations is binding at national level,
any divergent national regulations are also considered irrelevant to a player’s status. (…)
Another important factor that can be extracted from the relevant jurisprudence is that the
financial threshold arising out of the article 2 paragraph 2 criteria is relatively low. Article 2
paragraph 2 does not require a player to make a living from their footballing activity in order
to qualify as a professional. A player can qualify as a professional even if they need to pursue
other work to earn a living. If the remuneration they receive from their club exceeds the
expenses they effectively incur to provide their footballing services, they are a professional
pg. 7
REF. FPSD-12785
player. It is, however, not possible to set a global figure as to the amount a player must be
paid to be deemed a professional. As such, when considering whether a player is a
professional or an amateur, the specific circumstances of each individual case must be
considered, including the circumstances in the country concerned and any non-financial
benefits to which the player is entitled.
24. Having the above in mind, the Chamber found that the player’s claim is not sufficiently
grounded since it lacked evidence to support his professional status at the club. The DRC
ruled thus that the threshold of comfortable satisfaction is not reached to establish the
contractual relationship between the Parties in order to determine that the criteria under
art. 2 of the Regulations is met. In particular, the DRC found that an affidavit from the
Claimant himself to the effect that he was hired and paid by the club is not sufficient as it
was not accompanied by the corroborating evidence, moreover in light of the evidence to
the contrary as seen in TMS and also presented by the Claimant: the release letter in fact
confirms his registration status as amateur.
25. Therefore, the Chamber decided that no valid and biding employment contract had been
concluded between the club and the player and the latter’s claim had no legal basis. It was
accordingly rejected.
d. Costs
26. 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.
27. 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.
28. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-12785
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Amar Kovcic, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-12785
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10