Labour Disputes
Texto da decisão
REF FPSD-3765
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Zoran
Kvrzic
COMPOSITION:
HENDEL, Clifford J. (USA & France), Deputy Chairperson
ATILIO TARABORELLI, Alejandro (Argentina), Member
MARIS JUNCOS, Stella (Argentina), Member
CLAIMANT:
Zoran Kvrzic, Bosnia and Herzegovina
Represented by Hrvoje Raić, Ivan Ostojić and Bruno Skelin
RESPONDENT:
Kayserispor Kulubu, Turkey
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REF FPSD-3765
I.
Facts of the case
1.
On 9 January 2020, the Bosnian player, Mr Zoran Kvržić (hereinafter: the player or the
Claimant), and the Turkish club, Kayserispor Kulubu (hereinafter: the club or the Respondent)
concluded an employment contract valid as from the date of signature until the end of
2021/2022 season (hereinafter: the employment contract).
2.
In accordance with article 6 of the employment contract, the club undertook to pay the player
the following amounts:
a. 2019/2020 season: the total amount of EUR 150,000 net, payable in 5 instalments of
EUR 15,000 net each, due by the last day of each relevant month from January 2020
to May 2020;
b. 2020/2021 season: the total amount of EUR 300,000 net, payable in 10 instalments of
EUR 30,000 net each, due by the last day of each relevant month from August 2020
to May 2021;
c. 2021/2022 season: the total amount of EUR 350,000 net, payable in 10 instalments of
EUR 35,000 net each, due by the last day of each relevant month from August 2021
to May 2022;
d. EUR 5,000 “for the expenses” during the 2019/2020 season;
e. EUR 10,000 “for the expenses” during the 2020/2021 season; and
f. EUR 10,000 “for the expenses” during the 2021/2022 season.
3.
On 26 August 2021, the club notified the player the unilateral termination of their
employment relationship.
4.
On 27 August 2021, the Turkish Football Federation (TFF) informed the player that the
employment contract had been terminated by the club.
5.
On 15 September 2021, the player signed a new employment agreement with the Croatian
club, NK Slaven Koprivnica (hereinafter: NKS Koprivnica), valid as from the date of signature
until 1 June 2022. Accordingly, the player would be entitled to a monthly remuneration of
HRK 27,152.38 gross.
II. Proceedings before FIFA
6.
On 15 September 2021, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a. Position of the player
7.
In his claim, the player held that the club terminated the employment contract without prior
notice, explanation or just cause. Therefore, he requested, inter alia, the following amounts,
plus interest of 5% p.a. as from the due dates:
a. EUR 54,354 net as outstanding remuneration, broken down as follows:
(i)
EUR 25,000 net as the salary of May 2021;
(ii)
EUR 29,354 net as part of the salary of August 2021 (i.e. pro rata until 26
August 2021).
b. EUR 330,646 net as compensation for breach of contract, broken down as follows:
8.
(i)
EUR 320,646 as residual salaries from 26 August 2021 (pro rata) until 31 May
2022; and
(ii)
EUR 10,000 for the expenses of 2021/2022 season.
Finally, the player also claimed that the club should be liable to pay “all relevant taxes and
contribution on top of the abovementioned net amounts”.
b. Position of the club
9.
In its reply, the club informed that the TFF amended its regulations governing the foreign
quota available to Turkish clubs, what “drastically” changed the conditions of the
employment relationship previously initiated with the player. Likewise, the club stated that it
had to reorganize its entire squad and, in doing so, was forced to terminate the employment
contract.
10. In light of the above, the club requested the player’s claim to be entirely dismissed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 23 September 2021 and submitted for
decision on 12 November 2021. Taking into account the wording of art. 34 of the October
2021 edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the
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Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
12. 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 competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Bosnian player and
a Turkish club.
13. 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 23 September 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
14. 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
15. 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
16. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that the case at hand pertains to a claim for outstanding remuneration and
compensation for breach of contract. Moreover, the Chamber acknowledged that the parties
dispute whether the club had just cause to terminate the employment contract and the
consequences that follow.
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17. In this context, the DRC firstly wished to recall the well-established jurisprudence of the
Football Tribunal according to which only a breach or misconduct that is of a certain severity
justifies the termination of a contract. In other words, only when there are objective criteria
which do not reasonably permit the expectation that the continuation of the employment
relationship between the parties can continue, a contract may be terminated prematurely.
Hence, if there are more lenient measures which can be taken in order for an employer to
ensure the employee’s fulfilment of his contractual duties, such measures must be taken
before terminating an employment contract. A premature termination of an employment
contract can only ever be an ultima ratio measure.
18. With the above in mind, the Chamber turned its attention to the documentation on file and
took due note that the club based its argumentation on the impacts caused by the
amendments allegedly made by the TFF in its regulations governing the foreign quota
available to Turkish clubs.
19. In this respect, the DRC found it noteworthy that the club did not advance any evidence in
support of its allegations, hence failing to meet its burden of proof in accordance with article
13, par. 5 of the Procedural Rules.
20. Notwithstanding the above, the Chamber also wished to outline its long-standing
jurisprudence which establishes that the validity of an employment contract cannot be made
conditional upon the execution of (administrative) formalities, such as, but not limited to, the
registration procedure in connection with the international transfer of a player, considered to
be of the sole responsibility of a club and on which a player has no influence. With this in
mind, the DRC confirmed that equally a termination of a contract on the grounds of changes
in rules regarding registration or eligibility of player cannot be accepted.
21. In light of the above, the members of the Chamber were of the opinion that the club’s
position as to the legitimacy of the termination of the employment contract could not be
upheld.
22. Therefore, the members of the DRC unanimously decided that the club terminated the
employment contract with the player without just cause, hence that it shall be liable to the
consequences the follow.
ii. Consequences
23.
Having stated the above, the members of the Chamber went on analysing the
consequences of such unjustified breach of contract committed by the club.
24.
In this regard, the DRC sought to establish the remuneration that had remained outstanding
at the time of the termination.
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25.
With due consideration of the above, the DRC noted that the player asserted that at the
time of the premature termination of the employment contract, the player’s salary of May
2021 was outstanding, as well as a significant part of his salary from June 2021.
Accordingly, the Chamber unanimously agreed that both amounts have a solid contractual
basis and, in accordance with the general principle of pacta sunt servanda, shall be awarded
to the player.
26.
With regard to the claimed interest, the members of the Chamber, applying the constant
practice of the DRC decided to award the player 5% interest p.a. on said amounts as from
their due dates (i.e. the following day upon which they fell due) until the date of effective
payment.
27.
Bearing the previous considerations in mind, the members of the Chamber moved to deal
with the consequences of the early termination of the contract with just cause by the player.
In this context, the DRC decided that, taking art. 17 par. 1 of the Regulations into
consideration, the player is entitled to receive compensation for breach of contract from
the club, in addition the aforementioned outstanding remuneration and its respective
interest.
28.
To this extent, the Chamber outlined that in accordance with the aforementioned 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 coach 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.
29.
In application of the relevant provision, the DRC held that it first had to clarify whether the
contract contained any clause by means of which the parties had previously agreed on
compensation payable by the contractual parties in the event of breach. 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.
30.
Subsequently, and in order to evaluate the compensation to be paid by the club, the DRC
took into account the remuneration due to the player in accordance with the employment
contract as well as the time remaining on the same contract, along with the professional
situation of the player after the early termination occurred.
31.
For the sake of clarity, the members of the Chamber emphasized that in line with the
player’s claim and with the evidence on file, the residual value of the employment contract
amounted to EUR 325,000 (i.e. salaries from September 2021 until May 2022, plus the
reimbursement of expenses for the 2021/2022 season). Therefore, the DRC considered that
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such amount should serve as the basis for the final determination of the amount of
compensation due for breach of contract.
32.
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
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.
33.
Indeed, the player found employment with NKS Koprivnica. In accordance with the
pertinent employment agreement in combination with the player’s additional comments on
the matter, the Chamber considered that he was entitled to a total remuneration of approx.
EUR 25,623 during the overlapping period of his new employment relationship and the one
previously established with the club.
34.
Therefore, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber unanimously decided that the club must pay the amount of
EUR 299,377 net to the player (i.e. EUR 325,000 minus EUR 25,263) for breach of contract
in the present matter.
35.
With regard to the claimed interest, the Chamber, applying the constant practice of the
DRC, decided to award the player 5% interest p.a. on the said amount as from the date of
the claim (i.e. 23 September 2021).
36.
Finally, as regards to the player’s claim for taxes and contribution, the Chamber determined
that it should be rejected insofar as it lacks of specification and contractual basis.
iii. Compliance with monetary decisions
37. In continuation, 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.
38. 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.
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39. Therefore, bearing in mind the above, the DRC 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.
40. 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.
41. 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
42. 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.
43. 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.
44. 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, Zoran Kvrzic, is partially accepted.
2.
The Respondent, Kayserispor Kulubu, has to pay to the Claimant, the following amounts:
-
EUR 25,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment;
-
EUR 35,000 net as outstanding remuneration plus 5% interest p.a. as from 1 September
2021until the date of effective payment; and
-
EUR 299,377 net as compensation for breach of contract plus 5% interest p.a. as from 23
September 2021until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration 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.
6. 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.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
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