Labour Disputes
Texto da decisão
REF FPSD-4716
Decision of the
Dispute Resolution Chamber
passed on 13 October 2021
regarding an employment-related dispute concerning the player Sadik Vitija
BY:
Frans de Weger (the Netherlands), Chairperson
Laurel Vaurasi (Fiji), member
Stefano Sartori (Italy), member
CLAIMANT / COUNTER-RESPONDENT:
Club FK Kukesi, Albania
Represented by José Carlos Páez Romero (Nebot & Páez
Abogados)
RESPONDENT / COUNTER-CLAIMANT:
Sadik Vitija, Kosovo and Switzerland
Represented by Lucien Valloni
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REF FPSD-4716
I. Facts of the case
1.
On 2 October 2020, the Swiss player, Sadik Vitija (hereinafter: player or
Respondent/Counter-Claimant) and the Albanian club, FK Kukesi (hereinafter: club or
Claimant/Counter-Respondent) concluded an employment contract (hereinafter: contract)
valid as from the date of signature for “two years”.
2.
The email address of the player, [email protected], is indicated in the contract.
3.
According to the contract, the club, inter alia, undertook to pay the player the following
monies:
- EUR 2,000 as monthly salary during the season 2020/2021; payable on the 10th day of
the following month;
- EUR 3,000 as “signing fee”;
- EUR 150 for accommodation.
4.
The contract further establishes: “For second year the player will be paid 3,000 Euro net per
month provided that the player has played a minimum of 70% of the Official Championship
matches during the first year, otherwise the salary will be the same as the first year."
5.
Art. 11 of the contract states that “[i]f the Player violates any of his obligations specified in
this contract, the internal regulations of the Club integral part of this contract or does not fulfil
the annual objectives set case by case by club, or doesn’t represent a good sports form, the
Club can apply the penalties below, along with all the penalties and sanctions provided for in
this Contract, the regulations of the club:
(…)
b) Penalty, if not opposed by the Player within seven days of the notification of the penalty
on the Player’s email address or on the Club’s official website, shall be deemed accepted by
the Player.
(…)
d) Reduction of salary to the extent determined by the Technical Staff and the Administrator
of the Club according to the degree of fault for not participating in official matches due to
the Player’s poor physical, psychological and sports performance and as cause of the breach
of the Internal Regulation of the Club.
e) Reduction of salary to the extent determined by the Technical Staff and the Administrator
of the Club, according to the degree of fault of Player, for the violation of internal regulations
of the Club.
(…)”
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6.
Art. 15 of the contract reads as follows:
“1. The Player will be considered to have terminated the contract with the Club due to
legitimate reasons by notifying the club in writing 30 days in advance if the club:
a) will be found guilty of serious and persistent violation of the terms and conditions of
this contract; or
b) fails to pay any remuneration, or other payments, or bonuses that the Club (sic) ows
to the Player under this contract, for more than 90 days from the time when obligations
needed to be fulfilled.”
“2. If the club fulfils its own obligations within the period of notice of 30 days, then the player
shall not terminate the contract unilaterally due to legitimate reason, otherwise the Player
accept to pay to (sic) The Club a compensation.”
7.
Art. 16 of the contract establishes:
“1. This contract may be terminated before term defined in this contract, by written
agreement between parties.
2. The Club has the right to terminate the contract at any time without any financial, legal or
moral obligations towards the Player in case the that the last has violated the Club regulation
and/or is not efficient in official matches. If the Player break the contract unilaterally before
the term, he shall pay to the club a penalty from 200.000 Euro.”
8.
On 1 November 2020 and 4 November 2020, the player was part of the team for two
official matches of the club.
9.
On 5 November 2020, the player left Albania.
10. On 7 November 2020, the club issued a “notice” addressed to the lawyer of the club stating
that the player was absent from training as of 6 November 2020 without permission and
that the club requests “measures to be taken against the player”.
11. On 9 November 2020, the club issued a second “notice” addressed to the lawyer of the
club stating that the player was still absent and missed an official match in the meantime
and that the club requests “measures to be taken against the player”.
12. On 9 November 2020, the club sent a “notice of penalty” to the player via email (to
[email protected]) imposing a fine of the salary for October 2020 (less the legal
minimum wage) for being absent as of 6 November 2020. In such notice, the club
requested the player to resume work on 12 November 2020.
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13. On 30 December 2020, the club sent another letter (to the previous email-address) to the
player stating that the player has not reacted to the club’s previous notification. In said
letter, the club requested compensation for breach of contract as follows from the player:
14. On 3 January 2021, the player sent a letter to the club stating that he: “herewith terminate
the contract we both signed on 2/10/2020 at the earliest date possible in order to find a new
club and to continue to play professional football.” He also stated that he “never received a
salary payment from FK Kukesi. The club did not even cover the cost of my stay in Tirana”. In
said letter, the player states that “Since my departure from Tirana three months ago nobody
from the club ever contacted me to convince me to return”. The email address
[email protected] is indicated under the signature of the player.
15. On 25 January 2021, the player sent a letter to FIFA requesting to “clarify” his “current status
and confirm that I am a free agent”.
16. On 15 February 2021, the player sent another letter to the club referring to his
termination dated 3 January 2021 and stating that the club did not react. The player
requested the club to confirm that he is a “free agent”.
17. On 23 February 2021, the player was registered with the German club, Spvg. WesselingUrfeld 1946, as an amateur.
II. Proceedings before FIFA
18. On 3 January 2022, 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 club
19. In its claim, the club requested payment of the following monies:
- EUR 200,000 as compensation for breach of contract, in accordance with art. 16, plus
5% interest p.a. as of the 29 January 2021;
Alternatively:
- EUR 48,000 as compensation for breach of contract, (“twice the annual
remuneration”), plus 5% interest p.a. as of the 29 January 2021;
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20. In this context, the club argued that the player had no just cause to terminate the contract
on 4 January 2021.
21. The club pointed out that it remitted the signing bonus to the player and therefore paid
all amounts due until the player left Albania.
22. Moreover, the club held that the player had no just cause to terminate the contract as he
was absent as from 6 November 2020.
23. The club further maintained that it immediately reacted by issuing a fine for the player’s
absence while requesting him to resume work.
24. On account of the above, the club deemed to be entitled to compensation for breach of
contract.
b. Position of the player / counterclaim
25. In his reply, the player rejected the club’s claim and lodged a counterclaim against it,
requesting the following monies:
- EUR 9,000, corresponding to the player’s salaries of October 2021 until 15 February
2022 (4x EUR 2000 and EUR 1,000);
- CHF 518 as reimbursement of the player’s hotel costs (note: no receipt on file).
The Respondent requested payment of interest of 5% p.a. as of 5 August 2021.
26. The player rejected the club’s claim and argued that it was his right to leave the club on 5
November 2020, after his salary and the hotel costs remained unpaid and due to the fact
that “false promises” were made to him before signing the contract.
27. In this regard, the player alleged that during the negotiations to the contract, he was
promised by an agent that the coach wants to sign him. After signing of the contract and
when he arrived for his first training session, he noticed that the coach did not know him
at all.
28. Furthermore, the player maintained that other players told him that they were not paid
for 5 months.
29. The player held that he was never contacted by the club after he left Albania.
30. In this context, the player argued that he had a new email address and that his father
gave the new email address to the club during a phone conversation on 10 November
2020. Therefore, the player denies having received any of the notifications of the club and
therefore, he concluded that the club was no longer interested in his services.
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31. The player also held that he was in financial difficulties after the club did not pay his salary
in October 2020 and also refused to reimburse the costs for the hotel.
32. According to the player, it was his right to refuse to render his work due to the lack of
payments from the club.
33. Additionally, the player rejected having been informed about any disciplinary fine.
34. Moreover, the player held that the contractual penalty shall be disregarded as it is not
proportionate and not reciprocal.
35. According to the player, the club lost interest in his services and until 15 February 2021,
which is the point the tacit mutual contract termination occurred, the club had to pay the
player’s salary.
c. Club’s reply to the counterclaim of the player
36. In reply to the player’s claim, the club refuted the player’s allegations and requested to
dismiss the counterclaim.
37. The club pointed out that the player did not submit evidence to support his allegations.
38. As to the player’s allegations regarding the “false promises”, the club pointed out that none
of these allegations were mentioned in the contract.
39. Further, the club contested that it was notified of a change of the email address of the
player. In this regard, it pointed out that such email address was mentioned in the
contract (in October 2020) and is also mentioned by the player in his letter dated 3 January
2020.
40. Moreover, the club denied having had the obligation to pay the expenses of the player’s
hotel, as the contract establishes a monthly fee for the accommodation (EUR 150).
41. In this context, the club reiterated its position and held that no remuneration was
outstanding when the player left on 6 November 2020 (since the salary fell due on the
10th day of the following month).
42. Additonally, the club held that the penalty is not excessive as the contract value was EUR
60,000 and therefore the penalty only about 3 times such amount.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 03 January 2022 and
submitted for decision on 13 October 2022. Taking into account the wording of art. 34 of
the June 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.
2.
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 (July 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 Kosavar/Swiss
player and an Albanian club.
3.
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 (July 2022 edition), and
considering that the present claim was lodged on 03 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
4.
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
5.
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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i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties dispute the justice of the early
termination of the contract.
7.
In this context, the Chamber acknowledged that its task was to determine as to whether
the contract was terminated by one party with or without just cause and to decide on the
consequences thereof.
8.
The members of the Chamber duly noted both parties’ arguments and their respective
claims. While analysing the circumstances of the contract termination, the DRC
established that the player left Albania on 5 November 2020, after having spent one
month with the club.
9.
The club alleged that it imposed a fine (equal to his monthly salary in October 2020) and
requested the player to return within a few days as well as having contacted the player
again on 30 December 2020.
10. The player denies having been contacted by the club at any moment before his letter
dated 3 January 2021, where he requested to terminate the contract at the earliest
possible date.
11. The Chamber wished to emphasize that the actions of both parties raise certain
questions. However, the DRC noted that player alleged that his email address was
changed in November 2020, whereby he referred to the same email address again in his
letter on 3 January 2021.
12. Said contradictory behaviour of the player led the members of the Chamber to conclude
that the disputed notifications allegedly sent by the club to the player in November and
December 2020 were addressed to the correct email address, as it appears that such
email was still active in January 2021.
13. From that point of the view, the DRC pointed out that the club had taken the right steps
when it requested the player to return to work, after he had left the country.
14. Moreover, the Chamber wished to emphasize that at the moment when the player left
the club, on 5 November 2020, no salaries were outstanding, as the October salary would
have fallen due on 10 November 2020 only.
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15. Based on the documentation on file, the DRC decided by majority, that the player had no
just cause to terminate the contract on 5 November 2020, when leaving the club for good,
taking into account that he had only been with the club for one month.
ii. Consequences
16. 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
player.
17. 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 one salary
(October 2020) under the contract, amounting to EUR 2,000.
18. In this regard, the Chamber wished to point out that the fine imposed by the club shall
not be taken into account as it remained unclear if the due process of disciplinary
proceedings was followed. Furthermore, the DRC established that fines shall not be used
to set off any debts towards the player.
19. 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 amount
which was outstanding under the contract at the moment of the termination, i.e. EUR
2,000.
20. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from 11 November 2020 until the
date of effective payment.
21. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the club by the player 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, the fees and expenses paid or incurred by the former club
(amortised over the term of the contract) and depending on whether the contractual
breach falls within the protected period.
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22. 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.
23. In this regard, the Chamber took note of the wording of clause 16 of the contract, which,
inter alia, established that “The Club has the right to terminate the contract at any time
without any financial, legal or moral obligations towards the Player in case the that the last
has violated the Club regulation and/or is not efficient in official matches. If the Player break
the contract unilaterally before the term, he shall pay to the club a penalty from 200.000 Euro.”
24. After analysing the content of the aforementioned clause, the Chamber concluded that it
did not fulfil the criteria of reciprocity and proportionality, in line with the Chamber’s
longstanding jurisprudence, and therefore could not be taken into account for
establishing the amount of compensation payable to the club by the player.
25. As a consequence, the Chamber determined that the amount of compensation payable
by the player to the club 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.
26. Bearing in mind the foregoing as well as the claim of the club, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
until its term. Consequently, the Chamber concluded that the amount of EUR 46,000 (i.e.
23x EUR 2,000) serves as the basis for the determination of the amount of compensation
for breach of contract.
43. In continuation, the Chamber verified whether the player had signed an employment
contract with another club during the relevant period of time. According to the constant
practice of the Chamber as well as art. 17 par. 1 of the Regulations, such remuneration
under a new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract due by a player to his former club. In
particular, the Chamber explained that its standard practice is to calculate the average
between the player’s remuneration with his former club and his remuneration with the
new club, for the exact same period of time comprised between the early termination of
the employment contract with the old club and the original expiry date of such contract.
In case substantial evidence thereof is provided by the club, the Chamber might
additionally grant the damaged club the non-amortised transfer fee paid for the player in
breach and/or the actual costs incurred by the damaged club in order to replace the
leaving player.
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44. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
45. Thus, the Chamber concluded that between the date of early termination of the player’s
contract with his former club and its original expiry date, the average between his
remuneration with the former club and his current remuneration amounts to EUR 2,000.
46. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the player must pay the
amount of EUR 46,000 to the club, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
47. Lastly, taking into consideration the club’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the club interest on said
compensation at the rate of 5% p.a. as of 03 January 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
27. 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.
28. 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.
29. 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 Respondent
in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
30. In the other hand, the Chamber highlighted that, against players, the consequence of the
failure to pay the relevant amounts in due time shall consist of a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of the
restriction shall be of up to six months.
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31. Therefore, bearing in mind the above, the Chamber decided that the player must pay the
full amount due (including all applicable interest) to the club within 45 days of notification
of the decision, failing which, at the request of the club, a restriction on playing in official
matches for the maximum duration of six months shall become immediately effective on
the player in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
32. The parties shall make full payment (including all applicable interest) to the respective
bank account provided in the Bank Account Registration Form, which is attached to the
present decision.
33. 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
34. 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.
35. 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.
36. 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 / Counter-Respondent, FK Kukesi, is partially accepted.
2.
The Respondent / Counter-Claimant, Sadik Vitija, has to pay to the Claimant / CounterRespondent, the following amount:
- EUR 46,000 as compensation for breach of contract plus 5% interest p.a. as from 03
January 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counter-Claimant is partially accepted.
5.
The Claimant / Counter-Respondent, Sadik Vitija, has to pay to the Respondent / CounterClaimant, the following amount:
- EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 11 November 2021
until the date of effective payment.
6.
Any further claims of the Respondent / Counter-Claimant are rejected.
7.
Full payment (including all applicable interest) shall be made to the bank accounts
indicated in the enclosed Bank Account Registration Forms.
8.
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/Counter-Claimant shall be imposed with a restriction on playing in
official matches up until the due amounts are paid. The overall maximum duration of
the restriction shall be of up to six months on playing in official matches.
2. The Claimant/Counter-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
3. 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 six months or at the end of the three registration periods.
9.
The consequences shall only be enforced at the request of the respective party in
accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and
Transfer of Players.
10. 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).
CONTACT INFORMATION
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