Labour Disputes
Texto da decisão
REF 20-01646
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 25 February 2021,
regarding an employment-related dispute concerning the player Luka KUKIC
COMPOSITION:
Geoff Thompson (England), Chairman
Stefano Sartori (Italy), member
Joseph Antoine Bell (Cameroon), member
CLAIMANT:
LUKA KUKIC, Croatia
Represented by Mr. Ivan Ostojic
RESPONDENT:
KORONA SPOLKA AKCYJNA, Poland
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I. FACTS
1.
On 30 April 2019, the Croatian player Luka Kukic (hereinafter: the player or Claimant) and the
Polish club Korona Spolka Akcyjna (hereinafter: the club or Respondent) signed an employment
agreement (hereinafter: the contract), valid between 17 June 2019 and 30 June 2022, as well as
amendment dated 30 March 2020.
2.
Based on the contract and the amendment, the player was entitled to a monthly salary of EUR
6,240.
3.
Art. 6.2 of the contract stipulates the following: ‘To all matters not settled in this contract –
agreement, appropriate provisions of the Polish law shall respectively apply especially appropriate
regulations of PZPN’.
4.
Article 6.4 of the contract holds – in English - the following clause: ‘All disputes matters concerning
the validity, existence or termination of the contract are settled by the proper PZPN and FIFA
authorities acting in accordance with separate regulations. Property disputes resulting from this
contract are submitted to the competence of the Football Arbitration Court acting at PZPN or the
competent authority of FIFA’.
5.
In Polish, art. 6.4 of the contract reads as follows:
6.
Article 6.8 of the contract stipulates that ‘In case of discrepancies, the Polish version of the contract
is binding’.
7.
Furthermore, art. 8 par. 5 sub c. of the Resolution No. III/54 (27 March 2015) contains the
following clause: ‘The Club is entitled to make a unilateral declaration to terminate the Contract
for reasons attributable to the Player, through a statement submitted to the Player in writing under
the pain of nullity, only in the following cases: […]c. after the Club has been relegated to a lower
division as a result of sports competition, provided that the declaration of termination of the
Contract is submitted by the 10th day after the end of the given season, the Club does not have
any arrears in the payment of the contracted salary towards the Player, and the Club pays
compensation to the Player in the amount equivalent to one month's individual salary due to the
Player for the professional football contract, unless the parties agree to change the terms of the
Contract.’
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8.
On 6 August 2020, the club unilaterally terminated the contract, according to the player based
on ‘article 8 sec. 5 point c) of the Resolution No. III/54 of 27 March 2015 of the Management
Board of the Polish Football Association - Minimum Requirements for Standard Player Contracts
in the Professional Football Sector (amended by the Resolution No. V/60 of 25 June 2020 of the
Management Board of the Polish Football Association on the amendment of the Resolution No.
III/54 of 27 March 2015 of the Management Board of the Polish Football Association - Minimum
Requirements for ‘Standard Player Contracts in the Professional Football Sector’.
9.
On 2 October 2020, the player put the club in default, explaining that he deems that the
termination was made without just cause and requesting the payment of the amount of EUR
7,447 as outstanding remuneration and EUR 142,313 as compensation for breach of contract.
10. On 11 November 2020, the player lodged a claim against the club, claiming the following
amounts:
Outstanding remuneration in the amount of EUR 7,447, plus 5% interest p.a. as from the
respective due dates, broken down as follows:
- EUR 6,240 as the July 2020 remuneration;
- EUR 1,207 as the remuneration between 1 August and 6 August 2020.
Compensation for breach of contract in the amount of EUR 142,313, plus 5% interest p.a. as
from the respective due dates, broken down as follows:
- EUR 142,313 as residual value of the contract between 6 August 2020 and 30 June 2022.
11. In his claim, the player explained that the club – in reply to his letter dated 2 October 2020 –
denied that the termination was made without just cause.
12. The player is of the opinion he could not know about a possible termination, as the contract did
not contain any reference to clause 8 of the Polish Resolution and that even if the clause would
be applicable, the club did not follow the deadline prescribed in said article 8.
13. What is more, the player explains that he deems that clause 8 of the Polish Resolution is anyway
invalid and cannot be upheld. In this respect, the player refers to a decision passed by the DRC on
7 June 2018, in which the Panel allegedly analysed the validity of said clause of the Polish FA
Regulations, and concluded amongst others the following:
“(...)according to clause 8.5 of the Rules, the Respondent may terminate the contract
unilaterally, if “The [the Respondent] is entitled to a unilateral declaration without fault
of [the Claimant] (…) after transfer of [the Respondent] to a lower competition class due
to sporting competition, provided that notice of termination of the Contract shall be
made until 10 July(…).”,
In this respect, the Chamber were of the opinion that clause 8.5 of the Rules consists in
a relegation clause and against such background, the members of the DRC unanimously
concurred that a clause of such high importance had to be inserted in the contract itself.
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“What is more, the members of the Chamber deemed that a mere referral to such clause
is not sufficient.”
Furthermore, the Chamber examined the clause and noted that the clause did not fulfil
the requirement of reciprocity, as it provides for a unilateral termination right to the
benefit of the Respondent only.” , and
“Therefore, the Chamber decided that the Respondent could not legitimately terminate
the contractual relation with the Claimant by making use of clause 8.5 of the Rules and
as a consequence, the members of the DRC arrived to the unanimous conclusion that
the Respondent did not have just cause to terminate the contract(...)”,
14. In its reply to the claim, the club argued that the player, on 30 April 2019, signed a separate
declaration, confirming that he received a copy of the Resolution III./54. According to the club,
the player was very well aware of the content of said document.
15. Further, the club explains that on 6 August 2020, the player was informed about the fact that
due to the relegation of the club, his contract would be terminated.
16. In addition, the club argued that based on Resolution IV/48 of 12 May 2020, it had until the 10th
day after the end of a given to season, to terminate the player’s contract. The club explains that,
since the 2019/2020 season was extended to 31 July 2020 and because the contract was
terminated on 6 August 2020, the club resected the deadline.
17. Finally, the club confirms that it paid the amounts of EUR 6,240 and EUR 1,248 ‘after deducting
insurance contributions and tax’.
18. What is more, the club contests the competence of FIFA, indicating that the Football Court of
Arbitration operating at the Polish Football Association should be competent to deal with the
matter at hand.
19. The club further argues that, since the Polish version of the contract is leading, the contract is
clear that Polish law applies and that the Football Court of the PZPN is competent.
20. The club explains that the Football Court of Arbitration guarantees fair proceedings and respects
the principle of equal representation between players and clubs.
21. Additionally, the club also submitted an extract of the Status of the PZPN, the Regulations of the
PZPN Football Court of Arbitration and Resolution No. III/54 (27 March 2015) and Resolution IV/48
(12 May 2020) of the Management Board of PZPN.
22. After being invited to do so, the player replied and confirmed to FIFA that the club had paid him
an amount of EUR 6,376.07, by means of two payments made on 26 November 2020. According
to the player, this means that the club paid his July 2020 remuneration and ‘balance of August
2020’ remuneration, however leaving the compensation in the amount of EUR 142,313 unpaid.
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23. Consequently, the player wishes to receive from the club the total amount of EUR 142,313, as
well as 5% interest p.a. as from the due date.
24. On 16 September 2020, the player signed a new contract with the Bosnian club FK Sloboda Tuzla,
valid for the period between 16 September 2020 and 31 May 2021, based on which he was
entitled to receive a monthly amount of BAM 500 (approximately EUR 255). For the overlapping
period between 16 September 2020 and 31 May 2021, this corresponds to EUR 4,250.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
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 submitted to FIFA on 12 November 2020. Taking into account the wording
of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (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. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition August 2020), the Dispute Resolution
Chamber is in principle competent to deal with the matter at stake. The matter concerns an
employment-related dispute with an international dimension between a Croatian player and a
Polish club.
3.
However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s
deciding bodies on the basis of clause 6.4 of the employment contract and alleging that the
Football Arbitration Court acting at PZPN should be competent to deal with the matter at hand.
4.
In this respect, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2012 edition
of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such
as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs, has been established at
national level within the framework of the Association and/or a collective bargaining agreement.
With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing
fair proceedings, the DRC referred to FIFA Circular no. 1010 dated 20 December 2005. In this
regard, the DRC judge further referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
5.
Furthermore, the members of the Chamber observed that the English version of article 6.4 of the
employment contract is not exclusive, as it refers to two different deciding bodies, namely the
Football Arbitration Court and FIFA. Therefore, the members of the Chamber deemed that said
clause could not serve as the basis on which the Football Arbitration Court of the Polish Football
Association should be declared the arbitration tribunal competent to decide on the present
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dispute, since the relevant clause did not contain an exclusive reference granting jurisdiction to
said arbitration tribunal.
6.
However, the Chamber also noted that art. 6.8 of the contract stipulates that ‘In case of
discrepancies, the Polish version of the contract is binding’.
7.
Subsequently, the Chamber referred to art. 9 par. 1 lit. e) of the Procedural Rules which stipulates
that all documents of relevance to the dispute shall be submitted in the original version as well as
translated into one of the official FIFA languages. In this respect, the Chamber noted that noted
that the English version of article 6.4 of the contract allegedly does not match with the Polish
version of said article, as in the Polish version the word “FIFA” is not mentioned. However, since
no explanation or literal translation of said articles was provided, said circumstances cannot be
upheld against the Claimant, who had no influence on the drafting and wording of the contract.
8.
What is more, the Chamber acknowledged that based on the documents provided by the
Respondent, it could not be established with certainty that the Football Arbitration Court complies
with the standards of an independent arbitration tribunal guaranteeing equal representation and
fair proceedings. The members of the Chamber emphasised that from the documents, it follows
from art. 11 par. 1 and art. 11 par. 2 of the respective Regulations, that the Management Board
of the PZPN is fully responsible for the appointment and dismissal of the 32 arbitrators elected.
What is more, the entities referred to as “league player community” and “Chair of the Court” are
not clearly defined. Based on these articles, the Chamber concluded that the election of the
Chairman is allegedly not made by consensus and it could not be excluded that the Management
Board of the PZPN has decisive influence over the list of arbitrators.
9.
As a result, and taking into consideration all of the above circumstances, the Dispute Resolution
Chamber concluded that the Respondent’s objection to the competence of FIFA to hear the
present dispute has to be rejected, and that the Dispute Resolution Chamber is therefore
competent, on the basis of art. 22 b) of the Regulations on the Status and Transfer of Players, to
consider the present matter as to the substance.
10. In continuation, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of
the Regulations on the Status and Transfer of Players (August 2020 edition), and considering that
the claim was lodged on 12 November 2020, the October 2020 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
11. The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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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12. First of all, the members of the Chamber acknowledged that, on 30 April 2019, the Claimant and
the Respondent had concluded an employment contract valid as from 17 June 2019 and 30 June
2022.
13. The Chamber further observed that the Claimant lodged a claim in front of FIFA against the
Respondent seeking payment of the total amount of EUR 142,313 in respect to compensation for
breach of contract, asserting that the Respondent had terminated the contract without just cause
on 6 August 2020.
14. Along this Iine, the Chamber noted that the unilateral termination of the contract on 6 August
2020 had remained uncontested by the Respondent however, according to the Respondent, it
had just cause to terminate the contract on the basis of clause 8.5 of the Rules.
15. At this stage, the members of the Chamber considered important to highlight that said clause is
only included in the so-called Rules, but not in the contract.
16. Having established the aforementioned, the Chamber deemed that the underlying issue in this
dispute to determine whether the employment contract had been unilaterally terminated with or
without just cause by the Respondent and to determine the financial consequences for the party
that is to be held liable for the early termination of the pertinent employment contract.
17. Along this line, the Chamber turned its attention to clause 8.5 of the Rules, which was invoked
by the Respondent as the basis of the unilateral termination.
18. In this respect, according clause 8.5 of the Rules, the Respondent may terminate the contract
unilaterally as follows: ‘The Club is entitled to make a unilateral declaration to terminate the
Contract for reasons attributable to the Player, through a statement submitted to the Player in
writing under the pain of nullity, only in the following cases: […] c. after the Club has been
relegated to a lower division as a result of sports competition, provided that the declaration of
termination of the Contract is submitted by the 10th day after the end of the given season, the
Club does not have any arrears in the payment of the contracted salary towards the Player, and
the Club pays compensation to the Player in the amount equivalent to one month's individual
salary due to the Player for the professional football contract, unless the parties agree to change
the terms of the Contract.’
19. In this respect, the Chamber were of the opinion that clause 8.5 of the Rules consists in a
relegation clause and against such background, the members of the DRC unanimously concurred
that a clause of such high importance had to be inserted in the contract itself. What is more, the
members of the Chamber deemed that a mere referral to such clause is not sufficient
20. Furthermore, the Chamber examined the clause and noted that the clause did not fulfil the
requirement of reciprocity, as it provides for a unilateral termination right to the benefit of the
Respondent only. In particular, it appears that in case of relegation of the Respondent due to
Sporting merits, only the Respondent has the right to unilaterally terminate the contract and such
right is not granted to the Claimant.
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21. Therefore, the Chamber decided that the Respondent could not legitimately terminate the
contractual relation with the Claimant by making use of clause 8.5 of the Rules and as a
consequence, the members of the DRC arrived to the unanimous conclusion that the Respondent
did not have just cause to terminate the contract on 6 August 2020.
22. On account of the above, the Chamber decided that the Respondent had no just cause to
unilaterally terminate the contract between the Claimant and the Respondent on 6 August 2020
and that, consequently, the Respondent is to be held liable for the early termination of the
employment contact without just cause.
23. Bearing in mind the previous considerations, the Chamber went on to deal with the consequences
of the early termination of the employment contract without just cause by the Respondent.
24. First of all, the members of the Chamber concurred that the Respondent must fulfill its obligations
as per employment contract up until the date of termination of the contract in accordance with
the general legal principle of “pacta sunt servanda”. In this respect, the Chamber however noted
that the Claimant confirmed having received all the outstanding remuneration, as an amount of
EUR 6,376.07 was paid to him during the course of the proceeding at hand. Consequently, the
Chamber decided that no outstanding remuneration is payable to the Claimant.
25. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of
contract in addition to any outstanding salaries on the basis of the relevant employment contract.
26. In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
27. In application of the relevant provision, the Chamber held that it first of all had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a 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.
28. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in accordance
with the employment contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In this respect, the
Chamber pointed out that at the time of the termination of the employment contract on 6 August
2020, the contract was supposed to run until 30 June 2022, in which a total amount of EUR
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142,313 were still to be paid. Consequently, taking into account the financial terms of the
contract, the Chamber concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract amounts to EUR 142,313
and that such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
29. In continuation, the Chamber remarked that following the early termination of the employment
contract at the basis of the present dispute the Claimant had found new employment with two
clubs.
30. In this respect, the Claimant signed an employment contract with the Bosnian club FK Sloboda
Tuzla, valid for the period between 16 September 2020 and 31 May 2021, based on which he
was entitled to receive a monthly amount of BAM 500, corresponding to approximately EUR 255).
For the overlapping period between 16 September 2020 and 31 May 2021, the Claimant was
thus entitled to mitigate his damages with EUR 4,250.
31. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and
the general obligation of the Claimant to mitigate his damages, such remuneration under the new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract.
32. In view of all of the above, the Chamber decided that the Respondent must pay the amount of
EUR 138,063 to the Claimant as compensation for breach of contract without just case, which is
considered by the Chamber to be a reasonable and justified amount as compensation.
33. What is more, based on the Chamber’s longstanding jurisprudence, the Chamber decided to
award 5% interest p.a. on the amount of EUR 138,063 as from the date of claim, i.e. 12 November
2020.
34. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
35. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an additional compensation of three monthly salaries,
subject to the early termination of the contract being due to overdue payables. In case of
egregious circumstances, the additional compensation may be increased up to a maximum of six
monthly salaries, whereby the overall compensation may never exceed the rest value of the
prematurely terminated contract.
36. With the above in mind, the Chamber however decided to not award the Claimant additional
compensation, as the termination of the contract in the matter at hand was not made by the
Claimant due to overdue payables, but by the Respondent, because of the relegation of its club.
37. Furthermore, taking into account the consideration under number II./3. above, the Chamber
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision,
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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.
38. In this regard, the Chamber pointed out 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 and for the maximum duration of
three entire and consecutive registration periods.
39. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amounts due to the Claimant within 45 days as from the moment in which the
Claimant, following the notification of the present decision, communicates the relevant bank
details to the Respondent, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
40. Finally, the Chamber 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. 24bis par. 3
of the Regulations.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Luka Kukic, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Korona Spolka Akcyjna, has to pay to the Claimant, the following amount:
- EUR 138,063 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 12 November 2020 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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
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