Labour Disputes
Texto da decisão
REF FPSD-6260
Decision of the
Dispute Resolution Chamber
passed on 14 August 2022
regarding an employment-related dispute concerning the player Zvnonimir
Kozulj
BY:
Jorge GUTIERREZ (Costa Rica)
CLAIMANT:
Zvonimir Kozulj, Bosnia & Herzegovina
Represented by Mateusz Stankiewicz
RESPONDENT:
Club Nieciecza, Poland
Represented by Rafał Rajchel
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REF FPSD-6260
I. Facts of the case
1.
On 13 January 2022, the Bosnian player, Zvonimir Kozulj (hereinafter: the Claimant or the
player), and the Polish club, Club Nieciecza (hereinafter: the Respondent or the club) and
the Turkish club, Eyupspor, signed a loan transfer agreement by means of which the
player’s services were transferred temporarily from Eyupspor to the Respondent until 30
June 2022 (hereinafter: the loan agreement).
2.
On the same date, the Claimant and the Respondent concluded an employment contract
(hereinafter: the contract), valid as of the same date until 30 June 2022.
3.
Under the contract, the Respondent undertook to pay to the Claimant EUR 6,000 + VAT
as monthly salary, no later than the 10th day of following month, and “on the basis of a
correctly issued VAT invoice”.
4.
Art. 3 par. 11 of the contract states as follows: “This Contract shall terminate without the
need to submit any additional statements by any of the Parties, if the PZPN does not register
the Player as a player of the Sports Club, according to the applicable regulations”.
5.
On 21 January 2022, the player suffered a season-ending injury during a training session
with the Respondent.
6.
On 4 February 2022, the Respondent entered a transfer instruction in the Transfer
Matching System (TMS)to engage the player (no. 483529). No matching counterinstruction was ever entered by Eyupspor. The status of said instruction remains to date
“Waiting for Eyupspor to enter a counter instruction” in TMS.
7.
On 28 February 2022, Eyupspor sent a notice to the Respondent stating as follows:
“1[The Respondent] left the Club Eyupspor's former notices unanswered. As you are
well aware, today (28.02.2022) is the last day in Polish Football Association of the transfer
widow to register a new player or request ITC regarding new players.
Please be advised that the Club Eyupspor is ready to follow the necessary steps to accept
the ITC request of the [Respondent] in case the [Respondent] request the ITC of the Player as
a permanent transfer before the ending of the transfer widow which will be terminated
today (28.02.2022). This steps will be followed by the Club Eyupspor considering the benefit
of the [Respondent]. This is the only way to ensure the registration of the Player in favor of
the [Respondent] because of the reasons which was explained in the former notice of Club
Eyupspor dated 09.02.2022
2Also, in our notice dated 09.02.2022 it is clearly stated that the Club Eyupspor has
made a research and learned that the Player was injured and disabled in a serious and
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long-term way, during the trainings of the [Respondent]. Even this fact explain the bad-faith
of the [Respondent] that the [Respondent] does not fulfilled its contractual obligation about
the ITC of the Player because of his injury. It should be underlined hat the [Respondent] has
not informed Eyupspor from this serious and long-term disability, even it is undertaken with
the agreement, to avoid its contractual obligation toward the Player the Club Eyupspor.
Even in the date of this notification, the [Respondent]has not give any details and
information of regarding the injuries and disabilities of the Player.
Briefly, the Club Eyupspor suffered damage due to the negligence of the
[Respondent]because Eyupspor had to sign an additional protocol with the Player to
terminate the contract mutually because of there was no another way to solve the
registration of the replacement player Stephane Badji.
To show the good-faith of the Club Eyulpspor, in the notice dated 09.02.2022, we offered to
the [Respondent] to conclude an additional protocol on which the parties agrees for a
permanent transfer with the same condition of the "Agreement For Loan Transfer Of
Professional Player dated 13.01.2022" which was signed and undertaken by the Parties. For
one more time, in this situation, the Club Eyupspor said that the Club was ready lo lake all
the necessary contractual steps included the steps to be taken on FIFA TMS for the
permanent register (considering that there is no way to register the player on loan in FIFA
TMS) of the Player with the same term and conditions in the loan agreement which was
already agreed by the Parties valid until 30.06.2022 be ensured on behalf of [the
Respondent].
As consequences, the Club Eyupspor request from the [Respondent]for the permanent
transfer of the Player be requested by the [Respondent]before the end of the deadline of the
transfer widow which is today (28.02.2022 - 23.59) for the Polish Football Association. In
other cases, please be advised that the [Respondent]will be responsible against Club
Eyupspor and the Player for its bad-faith attitudes which are mentioned above and in the
notices dated 09.02.2022 and 03.02.2022 of the Club Eyupspor”.
8.
By correspondence dated 25 April 2022, the Claimant put the Respondent in default of
payment of EUR 22,283.23 gross broken down as follows. The player did not set a specific
time limit for the Respondent to remedy the default:
a.
b.
c.
d.
EUR 4,523.23 gross as remuneration from 13 to 31 January 2022;
EUR 7,380 gross as salary of February 2022;
EUR 7,380 gross as salary of March 2022;
EUR 300 “under article 10 sec. 1 point 3 of act against delays in commercial
transactions”
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9.
By correspondence dated 10 May 2022, the Respondent replied to the aforementioned
notice and denied that any payment obligation had been undertaken by the Respondent.
10. On 3 June 2022, the Claimant lodged a claim against the Respondent in front of FIFA asking
that the Respondent be ordered to pay to him overdue payables in the amount of EUR
26,663.23, with interest of 5% p.a. on the said amount, corresponding to the following:
a. EUR 4,523.23 gross as remuneration from 13 to 31 January 2022, with interest
as of 11 February 2022 until the date of payment;
b. EUR 7,380 gross as salary of February 2022, with interest as of 11 March 2022
until the date of payment;
c. EUR 7,380 gross as salary of March 2022, with interest as of 11 April 2022 until
the date of payment;
d. EUR 7,380 gross as salary of April 2022, with interest as of 11 May 2022 until the
date of payment.
11. In reply to the claim, the Respondent held that because Eyupspor never entered a
counter-instruction in TMS, the player was never registered with the Respondent. The
Respondent argued that “Eyupspor did not enter the counter instruction because it wanted
to force a definitive transfer of the Claimant to the Respondent until the last minute due to the
Claimant's injury which eliminated the Claimant from participation in the competition in
season 2021/2022”.
12. As such, the Respondent referred to clause 3 par. 11 of the contract, and argued that the
contract never entered into force. It equally stated that the player never established his
“business activity in Poland”, which is further proof that the contract was never valid.
13. The Respondent also argued that the player is in bad faith demanding payment of net
obligation “increased by VAT” which he did not pay to the Polish Tax authority.
14. The Respondent requested the claim to be dismissed.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as 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 3 June 2022
and submitted for decision on 14 September 2022. Taking into account the wording of
art. 34 of the June 2022 edition of the Procedural Rules Governing the Football Tribunal
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(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
16. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (July 2022
edition), he 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 Polish club.
17. 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 (July 2022 edition), and
considering that the present claim was lodged on 3 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
18. 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, he 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 TMS.
c. Merits of the dispute
19. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
he 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
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties dispute the payment of certain financial
obligations by the Respondent as per the contract, namely his salaries of January (prorata) to April 2022.
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21. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact
remained unpaid by the Respondent and, if so, whether the latter had a valid justification
for not having complied with its financial obligations.
22. The Single Judge first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties.
23. Nonetheless, the Single Judge noted that the evidence and the argumentation advanced
by the Respondent for non-payment are not valid since administrative formalities do not
affect the validity of a labour agreement per the solid jurisprudence of the Football
Tribunal. It should also be noted that the Respondent undertook the necessary steps to
hire the player in TMS, which denotes its interest in the player’s services, but failed to
make any payment (even when prompted to do so by means of the notices of 25 April
2022).
24. The Single Judge underlined that in line with the contents of art. 18 par. 4 of the
Regulations, as well as the jurisprudence of FIFA, the validity of an employment contract
cannot be made conditional upon the execution of (administrative) formalities, such as,
but not limited to, the registration procedure in connection with the international transfer
of a player, which are of the sole responsibility of a club and upon which a player has no
influence. As the club is supposedly interested in acquiring the rights of the player and in
benefiting from his services, it is also expected to act accordingly and execute the
administrative formalities in view of obtaining, for instance, the player’s International
Transfer Certificate (ITC) and his subsequent registration with the engaging member
association. Consequently, the registration or not of the contract is irrelevant in
determining if the contract was a valid and binding document.
25. It follows that the Respondent must pay the amount outstanding to the Claimant. The
Single Judge underlined that the subsequent question, however, is the quantum due, since
the Claimant requests gross amounts, with VAT, but provides no evidence of this
calculation. In this respect, the Single Judge found that since VAT is to be paid to the Polish
Tax Authority and not to the player, and because the contract provides EUR 6,000 plus
VAT as the player’s salary, the outstanding amounts should be awarded net.
26. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt
servanda, which in essence means that agreements must be respected by the parties
in good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the contract concluded between the parties, namely:
a. EUR 3,483.87 net as pro-rata salary of January;
b. EUR 18,000 net as salaries from February, March and April.
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27. Lastly, taking into consideration the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Single Judge decided to award the
player interest on said amounts at the rate of 5% p.a. as of their due dates until the date
of effective payment.
ii. Art. 12bis of the Regulations
28. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
29. To this end, the Single Judge confirmed that the player put the club in default of payment
of the amounts sought, which had fallen due more than 30 days before, but did not grant
any specific deadline to cure such breach of contract. It followed that the criteria
enshrined in art. 12bis of the Regulations was not met in the case at hand.
iii. Compliance with monetary decisions
30. 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
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
31. 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.
32. 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.
33. 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.
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34. 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
35. 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.
36. 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.
37. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for
relief made by any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Zvnonimir Kozulj, is partially accepted.
2.
The Respondent, Club Nieciecza, has to pay to the Claimant the following amount(s):
a. EUR 3,483.87 net as outstanding remuneration plus 5% interest p.a. as from 11
February 2022 until the date of effective payment;
b. EUR 6,000 net as outstanding remuneration plus 5% interest p.a. as from 11 March
2022 until the date of effective payment;
c. EUR 6,000 net as outstanding remuneration plus 5% interest p.a. as from 11 April 2022
until the date of effective payment;
d. EUR 6,000 net as outstanding remuneration plus 5% interest p.a. as from 11 May 2022
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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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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