Labour Disputes
Texto da decisão
REF FPSD-4710
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Tomasz
Kucz
BY:
Clifford J. Hendel (USA/France), Deputy Chairperson
Gonzalo de Medinilla (Spain), member
Jorge Gutierrez (Costa Rica), member
CLAIMANT:
Tomasz Kucz, Poland
Represented by Chrissa Sevastopoulou
RESPONDENT:
Kalamata FC, Greece
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REF FPSD-4710
I.
Facts of the case
1.
On 4 August 2018, the Polish player Tomasz Kucz (hereinafter: the player) and the Greek club
Kalamata FC (hereinafter: the club) concluded an employment agreement (hereinafter: the
contract), valid for the period between 8 August 2021 and 30 June 2023.
2.
Based on art. 4.1 of the contract, the player was entitled to receive from the club a monthly
salary of EUR 630 net, as well as one monthly salary as Christmas bonus, half of a monthly
salary as Easter bonus and half a monthly salary as leave allowance.
3.
Article 10 of the contract holds the following clause: ‘Any dispute between the parties is
resolved by the Primary Committee for the Resolution of Financial Disputes and in the second
instance by the Court of Arbitration of the HFF. Disputes concerning foreign football players
may be resolved by the relevant FIFA bodies’.
4.
On the same day, 4 August 2021, the player and club signed an additional agreement
(hereinafter: the private agreement), based on which the player was entitled to receive a total
amount of EUR 19,000 for the season 2021/2022, as follows:
•
•
•
EUR 3,000 as advance payment, payable on the date of the signature of the
agreement;
From the remaining amount of EUR 16,000 (EUR 19,000 -/- EUR 3,000), EUR 630 is
‘removed and being paid monthly’;
EUR 9,070 net, payable in instalments on the 30th day of the respective month in the
period between September 2021 and June 2022, however in the month of February
2022 payable on the 28th day;
For the season 2022/2023, the player was entitled to the following amounts:
•
•
•
5.
EUR 30,000 net in case the club would remain in the second football division of Super
League 2;
EUR 50,000 if the club would promote to the first division of Super League 1;
Also, the contract holds the following clause: ‘The abovementioned for the season
2022-2023 in terms of annual earnings they are valid in case the player has completed
the 60% of his participations with minimum 45 minutes in every official match. In
case that player has not completed these participations, this contract is being
terminated unless the club wishes to keep the player to its potential so what me
mentioned before the season 2021-2022 applies’.
Article 4 of the private agreement holds the following clause: ‘The parties agree as competent
authorities for the resolution of any dispute that might arise between the club and the player
from interpretation or implementation of this present private agreement, including financial
disputes, termination or suspension of the terms of this present, the sports, judicial and
arbitrative instruments of the Hellenic Football Federation or of any other competent
authority, according to Greek legislation and regulations’.
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6.
On 14 December 2021, the player puts the club in default for the payment of the outstanding
salaries of four months, i.e. the salaries for the period between August and November 2021,
in the total amount of EUR 5,241, providing a 15 days’ deadline to remedy its default.
7.
On 21 December 2021 the club reached out to the player and proposed to discuss the whole
situation and to find a settlement by means of which the club would pay half of the owed
amounts the next day.
8.
On 30 December 2021, the player unilaterally terminated the contract with the club, based
on the outstanding salaries, which had not been had not been paid to him until that moment.
9.
The player confirmed that after the unilateral termination of the contract, he had remained
unemployed.
II. Proceedings before FIFA
10. On 3 January 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
11. In his claim, the player explains that the club failed to pay any amount to him, except for the
amount of EUR 3,000, which was paid upon execution of the contract.
12. What is more the player is of the opinion that the club is in breach of its contractual
obligations for a significant period of time and hence, that he had just cause to terminate the
contract on 30 December 2021.
13. The requests for relief of the player, as amended, were the following:
Outstanding remuneration in the total amount of EUR 6,501, broken down as follows:
• EUR 3,150 as 5 monthly instalments of EUR 630 each for the period between August
and December 2021,
• EUR 2,721 as 3 monthly instalments of EUR 907 each, for the period between
September and November 2021;
• EUR 630 net as Christmas bonus.
• 5% interest p.a. on the above amounts as from the respective due date.
Compensation for breach of contract in the total amount of EUR 49,570, broken down as
follows:
• EUR 49,570 as the residual value of the contract in the period between 30 December
2021 and 30 June 2023, corresponding to:
18 monthly salaries of EUR 630 each (i.e. EUR 11,340);
the rest of agreed amount for the season 2021/2022 (i.e. EUR 6,340);
EUR 30,000 as bonus for the season 2022/2023;
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•
EUR 630 as Easter bonuses for 2022 and 2023;
EUR 630 as leave allowances for 2022 and 2023;
EUR 630 as Christmas bonus for 2023.
5% interest p.a. on the above amounts as from the date of claim, i.e. 2 January 2022.
b. Position of the club
14. In its reply, the club referred to the difficult period it is going through as a result of the COVID19 pandemic and injuries in its team.
15. Further, the club argued that the private agreement is to be seen as integral part of the
contract and that it follows from this reasoning that the competent body to decide on the
matter at hand is ‘the sports, judicial and arbitrative instruments of the Hellenic Football
Federation or of any other competent authority, according to Greek law and regulations’.
16. As to the substance, the club argues that the contract only lasted for one year, i.e. until 30
June 2022 as the player did not participate in a single official match.
17. Also, the club refers to potential negotiations between the player and the Greek club
Olympiakos Volou FC.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. 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 3 January 2022 and submitted for decision
on . Taking into account the wording of art. 34 of the October 2021 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.
19. 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 (August 2021 edition), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a Polish
player and a Greek club.
20. The Chamber further noted that the club contested the competence of FIFA’s deciding bodies
in favour of the National Dispute Resolution Chamber of Greece) (hereinafter: the NDRC of
Greece), alleging that the latter is competent to deal with any dispute deriving from the
relevant private agreement, in accordance with its article 4.
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21. Taking into account all the above, the Chamber emphasised that in accordance with 22 par.
1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such dispute
to be decided by an independent arbitration tribunal that has been established at national
level within the framework of the association and/or a collective bargaining agreement. Any
such arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent national arbitration tribunal
must guarantee fair proceedings and respect the principle of equal representation of players
and clubs. Equally, the Chamber referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
22. In this context, Chamber pointed out that it should first analyse whether the employment
contract and/or any other contracts at the basis of the present dispute contained a clear and
exclusive jurisdiction clause in favour of the NDRC of Greece.
23. In this respect, the Chamber noted that the private agreement concluded between the
parties, in its article 4, does indeed contain a jurisdiction clause whatsoever in favour of the
NDRC of Greece, i.e. the ‘sports, judicial and arbitrative instruments of the Hellenic Football
Federation or of any other competent authority, according to Greek legislation and
regulations’. However, the contract, on which the claim of the player is also based, on the
other hand, does also contain a jurisdiction clause, in its article 10, which gives jurisdiction to
the ‘Primary Committee for the Resolution of Financial Disputes and in the second instance
by the Court of Arbitration of the HFF’. For contractual disputes concerning foreign players ,
the contract states that such disputes ‘may be resolved by the relevant FIFA bodies’.
24. As a consequence, the Chamber was of the opinion that – given the contracting clauses in
the contract and the private agreement - the first pre-requisite for establishing the
competence of an NDRC was not met, i.e. a clear and exclusive jurisdiction clause in favour
of the NDRC of Greece, therefore, without the need to enter the analysis of any further
requirement, it established that the club’s objection to the competence of FIFA to deal with
the present matter has to be rejected and that the Dispute Resolution Chamber is competent,
on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present matter as to
the substance.
25. 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 (August 2021 edition), and
considering that the present claim was lodged on 3 January 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
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26. 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
27. 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
28. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute the justice of the early termination
of the contract by the player, based on the alleged non-payment of certain financial
obligations by the club as per the contract, in accordance with art. 14bis of the Regulations.
29. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the club and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had
in fact been fulfilled.
30. However, before entering into the substance of the matter at hand, the members of the
Chamber first wished to draw their attention to the duration of the contract. In this respect,
the members of the Chamber noted that the parties, in the private agreement, had agreed
upon an extension clause, which is dependent on the fact whether or not the player would
play in at least 60% of the matches of the club a minimum of 45 minutes.
31. In this context, the members of the Chamber highlighted that, in general, potestative clauses,
i.e. clauses that contain obligations which fulfilment are conditional upon an event that one
party entirely controls, can in general not be applied, since they limit the rights of the other
contractual party in an excessive manner and lead to an unjustified disadvantage of the latter
towards the other.
32. In this respect, the members of the Chamber wished to point out that the decision on the
lining-up of a player in a match is normally left fully to the discretion of the club. As such, the
player had no influence on the question of whether or not he would be fielded in a specific
number of matches in the relevant season.
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33. Having taken into account the previous considerations, the Chamber decided that the clause
stipulating that the contract would only be valid for the 2022/2023 season in case the player
would play in at least 60% of the matches of the club a minimum of 45 minutes, cannot be
validly upheld. In line with the Chamber’s jurisprudence in this respect, the members of the
Chamber came to the conclusion that the private agreement is to be considered valid until
the end of the 2022/2023 season, i.e. 30 June 2023.
34. Having established the foregoing, the Chamber then referred to the wording of art. 14bis
par. 1 of the Regulations, in accordance with which, if a club unlawfully fails to pay a player
at least two monthly salaries on their due dates, the player will be deemed to have a just
cause to terminate his contract, provided that he has put the debtor club in default in writing
and has granted a deadline of at least 15 days for the debtor club to fully comply with its
financial obligation(s).
35. The Chamber noted that the player claims not having received his remuneration
corresponding to the total amount of EUR 6,501, i.e. the remuneration for the biggest part
of the period between August and December 2021, as well as a Christmas bonus.
Furthermore, the Chamber noted that the club did not deny owing said payment to the
player, and it also noted that the player has provided written evidence of having put the club
in default on 14 December 2021, i.e. at least 15 days before unilaterally terminating the
contract on 30 December 2021.
36. The Chamber also noted that in the case at hand the club bore the burden of proving that it
indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the allegations submitted by the club (namely the alleged fact that it was in
financial difficulties as a result of the outbreak of the COVID-19 pandemic) do not exempt it
from complying with its financial obligations.
37. Thus, the Chamber concluded that the player had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
ii. Consequences
38. 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 club.
39. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the salaries and
additionally agreed payments for almost 5 months under the contract and the private
agreement, amounting to EUR 6,150 in total.
40. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e. EUR 6,150.
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41. In addition, 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 at the rate of 5%
p.a. on the outstanding amounts as from the respective due dates until the date of effective
payment.
42. 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.
43. 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.
44. 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.
45. 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 10,579 for the season 2021/2022 (i.e. the total amount of EUR
19,000 -/- EUR 3,000 (amount paid) -/- EUR 3,150 (awarded as outstanding remuneration) /- EUR 2,721 (awarded as outstanding remuneration) + EUR 315 (Easter bonus) + EUR 315
(leave allowance) and the amount of EUR 38,820 for the season 2022/2023 (EUR 30,000
(guaranteed payment) + EUR 315 (Easter bonus) + EUR 315 (leave allowance) + EUR 630
(Christmas bonus) + EUR 7,560 (12 monthly salaries of EUR 630 each), i.e. the total amount
of EUR 49,579, serves as the basis for the determination of the amount of compensation for
breach of contract. However, the Chamber, already at this point, wished to address that the
player had limited his claim to the total amount of EUR 49,570.
46. 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
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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.
47. However, in this respect, the members of the Chamber noted that the player was not able to
find a new club and sign a new employment contract, and was thus not able to mitigate his
damages. Therefore, the Chamber concluded that no further mitigation shall apply and that
no additional compensation shall be granted to the player.
48. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, as well as the claim of the player, the Chamber decided that the club
must pay the amount of EUR 49,570 to the player, 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 claim, i.e. 3 January 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 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 club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the
decision, failing which, at the request of the player, 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 club in accordance with art.
24 par. 2, 4, and 7 of the Regulations.
53. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
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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, Tomasz Kucz, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Kalamata FC, has to pay to the Claimant, the following amount:
- EUR 6,501 as outstanding remuneration plus 5% interest p.a. until the date of effective
payment as follows:
• on the amount of EUR 630 as from 1 September 2021;
• on the amount of EUR 1,537 as from 1 October 2021;
• on the amount of EUR 907 as from 31 October 2021;
• on the amount of EUR 630 as from 1 November 2021;
• on the amount of EUR 1,537 as from 1 December 2021;
• on the amount of EUR 630 as from 27 December 2021;
• on the amount of EUR 630 as from 1 January 2022
- EUR 49,570 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 3 January 2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
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 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.
7. 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.
8. 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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