Labour Disputes
Texto da decisão
REF. FPSD-13180
Decision of the
Dispute Resolution Chamber
passed on 14 February 2024
regarding an employment-related dispute concerning the player Nenad Lukic
COMPOSITION:
Martín AULETTA (Argentina), Deputy Chairperson
Jorge GUTIÉRREZ (Costa Rica), Member
Stella MARIS JUNCOS (Argentina), Member
CLAIMANT:
Nenad Lukic, Bosnia and Herzegovina
Represented by Dupovac Feđa
RESPONDENT:
Changchun Yatai FC, China PR
pg. 2
REF. FPSD-13180
I.
Facts of the case
1.
On 10 July 2023, the Bosnian player Nenad Lukic (hereinafter: the Player or the Claimant)
and the Chinese club Changchun Yatai FC (hereinafter: the Club or the Respondent)
concluded an employment contract valid as from 5 July 2023 until 31 December 2024
(hereinafter: the Contract).
2.
According to article 3 of the Contract, the Club undertook to pay to the Player inter alia the
following amounts:
• From 1 July 2023 until 31 December 2023: a total of EUR 480,000 net, payable as follows:
(i) EUR 180,000 net within 30 days as from the signature of the Contract; and (ii) EUR
300,000 net in 6 monthly instalments from 5 July 2023 until 31 December 2023.
• From 1 January 2024 until 31 December 2024: a total of EUR 960,000 net payable in 12
instalments of EUR 80,000 net from 1 January 2024 until 31 December 2024.
• For the duration of the Contract: match bonuses as follows, quoted verbatim:
“[The Club] shall pay [the Player] game bonus according to the nature of the game, the
result of the game and the playing time and performance of [the Player]:
In China Football Association League matches, the winning bonus is net 3,000.00 USD
(three thousand USD), the draw bonus is net 1,000.00 USD (one thousand and USD)
payable in 30 days after the game, and no bonus for lost matches days as from the end
of the season. The club will decide the amount of payment based on the playing time of
the players”.
3.
Pursuant to article 3, par. 4 of the Contract, the salaries would be payable every 20th day
of each subsequent month.
4.
Article 3, par. 5 of the Contract reads as follows, quoted verbatim:
“5. In addition to the salary stipulated in the paragraph 1 of this Article, [the Club] has
the right to determine whether to pay bonuses to [the Player] depending on
circumstances. The amount as well as the payment method of the bonuses shall be
determined according to the relevant bonus distribution plan of [the Club]. [The Club]
shall have the right to make the final decision on the amount and payment methos of
the bonuses. At the same time, the total amount of bonuses (before tax) paid by [the
Club] shall not exceed the maximum amount of bonus stipulated by regulations of
Chinese Football Association (CFA) and/pr the relevant League Management Council
(hereinafter referred to as LMC”.
pg. 3
REF. FPSD-13180
5.
The same article 3 of the Contract also established the following in its subsequent
paragraphs, quoted verbatim:
“3) If, in the end of 2024 season, [the Player] will shoot 20 (or more than 20) goals (two
assists equal one goal), that this contract will be continue one more year to 31st
December 2025 automatically. The salary will be 1677794 EURO (one million six hundred
and ninety-seven thousand seven hundred and ninety-four EURO) from 1st January 2025
until 31st December 2025 before tax, which shall amount to 960,000.00 EURO (nine
hundred and sixty thousand EURO) net, will be paid monthly: 80,000.00 EURO (eighty
thousand EURO) net per moth from 1st January 2025 until 31st December 2025”.
6.
Finally, article 9 of the Contract reads inter alia as follows, quoted verbatim:
“6. [The Player] has the right to terminate this Contract by notifying [the Club] in writing
if any of the following events occur:
6.1. [The Club] fails to pay salary to [the Player] for 3 (three) months and fails to remedy
such default within 15 (fifteen) days upon receipt of [the Player]’s notification”.
7.
On 5 October 2023, the Player put the Club in default and requested payment of EUR
330,000 as outstanding sign-on fee and salaries, as well as USD 15,000 as match bonuses.
The Player referred to inter alia art. 14bis of the FIFA Regulations on the Status and Transfer
of Players (RSTP) and urged the breach to be cured with the following 15 days.
8.
On 7 October 2023, the Club replied to the Player’s notice as follows, quoted verbatim:
“Firstly, we sincerely apologize for the delay in fulfilling payment obligations to [the
Player] in accordance with the relevant provisions of the employment contract signed by
both parties due to issues with the club’s financial account. The club is actively
coordinating and resolving the funding account issue in the near future. The club
promises to pay [the Player] the full amount payable in a lump sum by October 31, 2023.
If the commitment is not fulfilled by the deadline, the club is willing to bear all
responsibilities and consequences. We hope to receive the understanding and support of
Mr Tarik Trbic and [the Player] and we apologize again. We thank you for taking note of
the above and look forward to hearing from you”.
9.
On 23 October 2023, the Player notified the Club the termination of the Contract due to
overdue payables.
10. On 4 January 2024, the Player entered into a new employment agreement with the
Hungarian club, ETO Futball Sportszervező És Szolgáltató KFT valid as from the date of
signature until 30 June 2024, with two extension options: the first until June 2025 and the
second until June 2026.
pg. 4
REF. FPSD-13180
11. According to the abovementioned agreement, the Player would be entitled inter alia to the
following fixed amounts:
• EUR 20,000 as sign-on fee;
• EUR 11,500 net as monthly remuneration from January until June 2024 (i.e., EUR
67,887.09 in total).
II. Proceedings before FIFA
12. On 28 December 2023, 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
13. In his claim, the Player argued that the Club failed to pay him a significant part of his
remuneration, namely the entire sign-on fee, three salaries (i.e., July, August, and
September 2023), and match bonuses. He moreover referred to his default notice and
alleged that the default was not timely cured, hence giving cause to the termination of the
Contract in line with art. 14bis of the FIFA RSTP.
14. Given the above, the Player requested to be awarded the following amounts:
• EUR 330,000 and USD 15,000 as outstanding remuneration plus 5% interest as from
the respective due dates, broken down as follows:
o EUR 180,000 as the sign-on fee;
o EUR 50,000 as the salary of July 2023;
o EUR 50,000 as the salary of August 2023;
o EUR 50,000 as the salary of September 2023;
o USD 15,000 as match bonuses. It has to be noted that the Player submitted an
extract of the website Transfermarkt.com in support of his argumentation.
Furthermore, he explained that the amount corresponded to the 3 matches
drawn and the 6 matches won by the Club’s team.
• EUR 2,216,691 as compensation for breach of contract plus 5% interest as from the
date of termination of the Contract, broken down as follows:
pg. 5
REF. FPSD-13180
o EUR 518,897 for the season 2023/2024; and
o EUR 1,697,794 for the season 2024/2025.
• Additional compensation amounting to 6 salaries in case he was able to mitigate the
damages.
b. Position of the Club
15. The Club failed to submit its reply to the claim despite being invited to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 28 December 2023 and
submitted for decision on 14 February 2024. Taking into account the wording of art. 34 of
the March 2023 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
17. Furthermore, 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 par. 1 lit. b) of the FIFA
RSTP (May 2023 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 Chinese club.
18. 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 FIFA RSTP (May 2023 edition) and considering that the present claim was
lodged on 28 December 2023, the May 2023 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
19. 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
pg. 6
REF. FPSD-13180
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
20. Its competence and the applicable regulations having been established, the 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
21. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the case at hand pertains to a claim by the Player for
outstanding remuneration and compensation for the breach of the Contract, prematurely
terminated on 23 October 2023.
22. Likewise, the DRC took into account that the Club, for its part, failed to present its response
to the claim of the Player, in spite of having been invited to do so. In this way, the DRC
considered that the Club renounced its right to defence and thus accepted the allegations
of the player. It equally confirmed that it shall make its decision on the basis of the evidence
and argumentation presented by the Player in line with art. 14 par. 1 of the Procedural
Rules.
23. Against this background, the DRC acknowledged that the Player advanced evidence of
having put the Club in default when at least two of his monthly salaries were outstanding.
Furthermore, he granted the Club with a reasonable deadline (i.e., 15 days) to remedy its
breach, to no avail.
24. Consequently, the Chamber was firm to determine that such persistent and substantial
non-compliance of the contractual obligations by the Club can justify the unilateral
termination of the Contract as well as it can hold the latter liable for breach of contract in
line with art. 14bis of the Regulations. For completeness, the DRC highlighted that such
conclusion was irrespective of the existence of a contractual provision increasing the
threshold of outstanding salaries capable of justifying the termination, such as article 9 of
the Contract.
25. Based on the factual and contractual situation, the DRC decided that the Player terminated
the Contract with just cause, hence the club shall be liable to the consequences that follow.
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REF. FPSD-13180
ii. Consequences
26. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Club.
27. The Chamber firstly observed that the Player claimed to be entitled to a sign-on fee,
salaries, match bonuses, and compensation for breach of contract. The DRC made the
following remarks in this respect.
Sign-on fee and salaries
28. The Chamber outlined that the Player’s claim is contractually based, hence it was for the
Club to prove that it complied with its financial obligations, to no avail. Consequently, the
DRC decided that the Player should be awarded the amounts sought based on the principle
of pacta sunt servanda.
29. 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, as follows:
• EUR 180,000 net as the sign-on fee plus 5% interest p.a. as from 10 August 2023 (i.e.,
the 31st day following the signature of the Contract);
• EUR 50,000 net as the salary of July 2023 plus 5% interest p.a. as from 21 August 2023;
• EUR 50,000 net as the salary of August 2023 plus 5% interest p.a. as from 21 September
2023;
• EUR 50,000 net as the salary of September 2023 plus 5% interest p.a. as from 21
October 2023;
• EUR 50,000 net as the full salary of October 2023 plus 5% interest p.a. as from 23
October 2023. For completeness, the Chamber clarified that as the termination took
place on 23 October 2023, the full salary of October 2023 should be factored as part of
the outstanding remuneration in line with the standard approach of the Football
Tribunal.
Match bonuses
30. Regarding the match bonuses, the Chamber noted that the Contract was not entirely clear
as to the conditions that needed to be met to trigger the payments. In the DRC’s view, the
Contract firstly suggests that the Player would be entitled to the amounts per win/draw;
pg. 8
REF. FPSD-13180
however, it also establishes that such bonuses could be reviewed by the Club based on the
Player’s performance et al.
31. While assessing the above, the Chamber found it essential that the Player’s request was
supported by documentary evidence corroborating the outcome of the matches and his
participation. Furthermore, the DRC highlighted that: (i) the USD 15,000 claimed by the
Player as match bonuses were expressly mentioned in his default notice; (ii) such default
notice was textually answered by the Club, who limited itself to acknowledge its debt
without any reservation of rights; and (iii) the Club also failed to file its reply to the claim,
therefore tacitly consenting with the Player’s allegations.
32. Consequently, and based on the factual background of the case, the DRC decided that the
Player should also be awarded the USD 15,000 net claimed.
33. Nevertheless, due to the unclear content of the Contract in combination with the Player’s
failure to properly break down his claim for interest, the Chamber established that the
default interest of 5% p.a. should be applied over the entire amount as from the date of
termination of the Contract (i.e., 23 October 2023) until the date of effective payment.
Compensation
34. 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.
35. 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.
36. 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.
pg. 9
REF. FPSD-13180
37. 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 1,060,000 net serves as the basis for the determination
of the amount of compensation for breach of contract, broken down as follows:
•
EUR 100,000 net as the remaining salaries for 2023 (i.e., November and December
à EUR 50,000 net each); and
•
EUR 960,000 net as the full remuneration for 2024.
38. 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.
39. Indeed, the Player found employment with ETO Futball Sportszervező És Szolgáltató KFT.
In accordance with the pertinent employment contract, the Player was entitled to EUR
20,000 net as sign-on fee, as well as total remuneration of EUR 67,889.09. Therefore, the
Chamber concluded that the Player mitigated his damages in the total amount of EUR
87,887.09.
40. At this point, the Chamber confirmed that the potential extension of the contract between
the Player and ETO Futball Sportszervező És Szolgáltató KFT was not taken into
consideration for the calculation, because speculative. The same rationale was applied
mutatis mutandis to the potential the automatic extension of the Contract as mentioned in
its article 3.
41. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a Player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e., overdue payables by the Club, and therefore
decided that the Player shall receive additional compensation.
42. In this respect, the DRC decided that the Player should in principle receive EUR 150,000 net
as additional compensation, i.e., three times his monthly remuneration at the time of the
termination.
pg. 10
REF. FPSD-13180
43. The Chamber stressed however that per art. 17 of the Regulations the total amount of
compensation awarded (including any mitigation and additional compensation) cannot
exceed the original residual value of the early terminated contract. As such, the Chamber
award EUR 87,887.09 to the Player as additional compensation. The DRC equally confirmed,
for completeness, that the threshold of egregious circumstances was not met in the case
at hand.
44. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Club must pay the amount of EUR
1,060,000 net to the Player (i.e., EUR 1,060,000 net minus EUR 87,887.09 plus EUR
87,887.09), which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
45. 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 23 October 2023 until the date of effective
payment.
46. For the sake of completeness and bearing in mind the Club’s liability to pay the amounts
fixed in the Contract net of any taxes, the Chamber wished to outline that in case the Player
incurs in any additional costs before tax authorities in connection with the amounts
awarded in this decision, he shall be entitled to seek relief against the Club before the
competent courts.
iii. Compliance with monetary decisions
47. 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.
48. 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.
49. 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.
pg. 11
REF. FPSD-13180
50. The Club 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.
51. 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
52. 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.
53. 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.
54. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-13180
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nenad Lukic, is partially accepted.
2.
The Respondent, Changchun Yatai FC, must pay to the Claimant the following amount(s):
- EUR 180,000 net as outstanding remuneration plus 5% interest p.a. as from 10 August
2023 until the date of effective payment;
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 21 August
2023 until the date of effective payment;
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 21
September 2023 until the date of effective payment;
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 21 October
2023 until the date of effective payment;
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 23 October
2023 until the date of effective payment;
- USD 15,000 net as outstanding remuneration plus 5% interest p.a. as from 23 October
2023 until the date of effective payment; and
- EUR 1,060,000 net as compensation for breach of contract without just cause plus
5% interest p.a. as from 23 October 2023 until 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 of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
pg. 13
REF. FPSD-13180
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-13180
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 15