Labour Disputes
Texto da decisão
REF. FPSD-8955
Decision of the
Dispute Resolution Chamber
passed on 15 March 2023
regarding an employment-related dispute concerning
the player Zvonimir Kozulj
BY:
Jon Newman (USA), Single Judge of the DRC
CLAIMANT:
Zvonimir Kozulj, Bosnia & Hercegovina
Represented by Mateusz Stankiewicz
RESPONDENT:
Nieciecza, Poland
Represented by Grzegorz Knap
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REF. FPSD-8955
I. Facts of the case
1.
On 13 January 2022, the Bosnian player, Zvonimir Kozulj (hereinafter: Claimant or player),
the Polish club, Nieciecza (hereinafter: club or Respondent) 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.
On 21 January 2022, the player suffered a season-ending injury during a training session
with the Respondent.
5.
On 4 February 2022, the Respondent entered a transfer instruction in TMS to engage the
player (no. 483529). No matching count-instruction was ever entered by Eyupspor. The
status of said instruction remains to date “Waiting for Eyupspor to enter a counter instruction”
in TMS.
6.
On 28 February 2022, Eyupspor sent a notice to the Respondent stating as follows:
“1-
[The Respondent] left the Club Eyupspor's forner 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.
2-
Also, 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 longterm 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
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REF. FPSD-8955
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.
7.
On 14 August 2022, the Single Judge of the DRC decided that the Respondent had to pay
the Claimant the outstanding salaries for January until June 2022 (FPSD-6260; FPSD-6840).
8.
On 18 November 2022, the Claimant put the Respondent in default and requested payment
of the medical costs incurred (EUR 29,587), within 10 days.
II. Proceedings before FIFA
9.
On 18 January 2023, 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
10. In his claim, the Claimant requested payment of the following monies:
- Bosnian Mark (BAM) 36,000 plus interest of 5% p.a. as of 29 November 2022;
- EUR 11,193.88 plus interest of 5% p.a. as of 29 November 2022.
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REF. FPSD-8955
11. The player argued that the club did not provide medical assistance after the injury
happened in its training and therefore he had to pay for the medical costs himself.
12. The player provided the following receipts:
-
EUR 7,817.88 for the surgery dated 8 February 2022 in Lyon;
Bosnian Mark (BAM) 36,000 for rehabilitation costs (physiotherapy between
February 2022 and June 2022)
Crotian Kuna 25,443.10 for medical equipment (approx. EUR 3,370).
b. Position of the Respondent
13. In reply to the claim, the Respondent held that because Eyupspor never entered a counterinstruction 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”.
14. On account of the above, the club rejected the claim and requested FIFA to significantly
reduce the amount of costs to be reimbursed by it.
15. The Respondent further held that it tried to arrange medical support but that the player
insisted on his own plans.
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REF. FPSD-8955
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge (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 18 January 2023 and submitted for decision on
15 March 2023. Taking into account the wording of art. 34 of the October 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.
17. 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 (October 2022),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from Bosnia & Hercegovina and
a Polish club.
18. 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 (October 2022 edition),
and considering that the present claim was lodged on 18 January 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
19. 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, the Single Judge
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
20. Its competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge 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-8955
i. Main legal discussion and considerations
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the player’s entitlement
to be reimbursed for his medical costs.
22. In this context, the Single Judge acknowledged that his task was to decide if the player is
entitled to be reimbursed for his medical costs in connection with an injury sustained
during a training session with the Respondent.
23. The Single Judge noted that the player submitted all the receipts related to the costs in
connection with the injury.
24. The Single Judge further acknowledged that the Respondent held that the player acted
without authorization as he did not follow up on the proposed medical treatment of the
club but organised his own.
25. In this context, and following the previous decisions about regarding the contractual
relationship between the parties in light of the special circumstances surrounding the
player’s contract and his registration, it appears that the player was under contract with
the Respondent when he sustained the injury.
26. Therefore, in accordance with the Football Tribunal’s jurisprudence in this regard, the
Single Judge decided to grant the reimbursement of the player’s medical costs.
ii. Consequences
27. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts,
of Bosnian Mark (BAM) 36,000 and EUR 11,193.88 as reimbursement of his medical costs.
28. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from 29 November 2022 until the date of
effective payment.
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REF. FPSD-8955
iii. Compliance with monetary decisions
29. 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.
30. 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.
31. 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.
32. 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.
33. 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
34. 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 Chamber decided that no procedural costs were to be
imposed on the parties.
35. 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.
36. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-8955
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Zvonimir Kozulj, is accepted.
2.
The Respondent, Nieciecza, has to pay to the Claimant, the following amount(s):
- Bosnian Mark (BAM) 36,000 and EUR 11,193.88 plus 5% interest p.a. as from 29
November 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:
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-8955
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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