Labour Disputes
Texto da decisão
REF. FPSD-14777
Decision of the
Dispute Resolution Chamber
passed on 8 August 2024
regarding an employment-related dispute concerning the player Nikola
Maksimovic
BY:
Clifford J. HENDEL (USA), Deputy Chairperson
Calum BEATTIE (Scotland), Member
Roy VERMEER (The Netherlands), Member
CLAIMANT:
Nikola Maksimovic, Serbia
Represented by Nihat Güman
RESPONDENT:
Atkas Hatayspor, Türkiye
Represented by Ismail Coskun
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REF. FPSD-14777
I. Facts of the case
1.
On 11 July 2024, the Serbian player, Nikola Maksimovic (hereinafter: the Claimant), and the
Turkish club, Atakas Hatayspor (hereinafter: the Respondent) signed an employment
contract valid (hereinafter: the Contract) as from 11 July 2023 until 30 June 2025.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the following payments:
•
For the season 2023/2024, the total amount of EUR 370,000 paid as follows:
o 31 August 2023: EUR 35,000
o 5 September 2023: EUR 20,000
o 30 September 2023: EUR 35,000
o 31 October 2023: EUR 35,000
o 30 November 2023: EUR 35,000
o 31 December 2023: EUR 35,000
o 31 January 2024: EUR 35,000
o 29 February 2024: EUR 35,000
o 31 March 2024: EUR 35,000
o 30 April 2024: EUR 35,000
o 31 May 2024: EUR 35,000
•
For the season 2024/2025, the total amount of EUR 550,000 paid as follows:
o 31 August 2024: EUR 50,000
o 5 September 2024: EUR 50,000
o 30 September 2024: EUR 50,000
o 31 October 2024: EUR 50,000
o 30 November 2024: EUR 50,000
o 31 December 2024: EUR 50,000
o 31 January 2025: EUR 50,000
o 28 February 2025: EUR 50,000
o 31 March 2025: EUR 50,000
o 30 April 2025: EUR 50,000
o 31 May 2025: EUR 50,000
3.
By correspondence dated 13 May 2024, the Claimant sent a default notice to the
Respondent requesting the following amounts of a total of EUR 105,000 net:
• EUR 35,000 for the salary of February 2024 due on 29 February 2024
• EUR 35,000 for the salary of March 2024 due on 31 March 2024
• EUR 35,000 for the salary of April 2024 due on 30 April 2024
4.
The Claimant gave the Respondent 15 days to comply with their default.
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REF. FPSD-14777
5.
On 29 May 2024, the Claimant sent a letter to the Respondent informing them that he
unilaterally terminated the Contract with just cause due to outstanding salaries.
II. Proceedings before FIFA
6.
On 29 May 2024, 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 Claimant
7.
According to the Claimant, at the time of the termination of the Contract on 29 May 2024,
the salaries of the total amount of EUR 140,000 remained outstanding, corresponding to
the months of February, March, April, and May 2024.
8.
In view of the above, the Claimant requested the total amount of EUR 140,000
corresponding to the overdue salaries from February to May 2024 plus 5% interest from
the due dates as well as compensation of EUR 550,000 corresponding to the residual
value of his Contract plus 5% interest as from 29 May 2024.
9.
In addition, the Claimant requested mitigated compensation of the amount of EUR
165,000 plus 5% interest as from 29 May 2024.
b. Position of the Respondent
10. In its reply, the Respondent alleged it had paid all the amounts claimed.
11. Therefore, the Respondent alleged that the unilateral termination of the Claimant as
without just cause since the latter has received all his salaries.
12. The requests for relief of the Respondent, are the following:
•
To dismiss the case on the grounds that the Claimant’s allegations cannot be accepted
in view of the Contract;
•
Provided that it does not imply acceptance, if the case is not dismissed, an equitable
reduction in the calculation of the mitigated and additional compensation;
•
Provided that it does not imply acceptance, if the DRC decides contrary to the above
situations, the Respondent requests a decision for an equitable reduction.
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REF. FPSD-14777
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Dispute Resolution Chamber (hereinafter: the 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 29 May 2024 and submitted for decision on 8
August 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.
14. 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
Regulations on the Status and Transfer of Players (June 2024 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 Serbian player
and a Turkish club.
15. 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 (June 2024 edition), and
considering that the present claim was lodged on 29 May 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
16. 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
17. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
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REF. FPSD-14777
i. Main legal discussion and considerations
18. The Chamber then moved to the substance of the matter, and took note of the fact that
the parties strongly dispute whether the Claimant had just cause to terminate the contract.
19. Firstly, the Chamber noted that the Parties concluded an employment contract valid as
from 11 July 2023 until 30 June 2025.
20. In this context and as a preliminary remark, the Chamber noticed that, in the Contract
provided by the Claimant, the starting date field is blank. However, in the copy available on
TMS, the starting date appears as 11 July 2023. In addition, the same date is mentioned in
the claim, and has not been disputed by the Respondent. Therefore, the Chamber
determined that the starting date of Contract is 11 July 2023.
21. Moreover, the Chamber observed that on 29 May 2024, the Claimant unilaterally
terminated the employment contract for overdue payables.
22. In particular, the Claimant alleged that he had not received his remuneration
corresponding to the months of February to April 2024, of a total of EUR 105,000 net, and
provided evidence of having put the Respondent in default on 13 May 2024, i.e., at least 15
days before unilaterally terminating the Contract on 29 May 2024.
23. In its reply, the Respondent alleged that the above-mentioned salaries had already been
paid; however, no evidence was provided in this regard.
24. In this context, the Chamber analysed the question whether the Claimant had just cause
to terminate his Contract with the Respondent.
25. In this regard, the Chamber referred to the wording of art. 14 bis par. 1 of the Regulations,
according to which, if a club illegitimately fails to pay a player at least two monthly salaries
on their due dates, the player shall be deemed to have just cause to terminate his
contract, provided that he has put the debtor club in default in writing and has
granted a deadline of at least 15 days for the debtor club to meet its financial obligations
in full.
26. In the case at hand, the Chamber concluded that the formal requirements of art. 14 bis
par. 1 of the Regulations have been fulfilled, meaning that (i) at least two monthly salaries
were due on the date of termination and (ii) the Claimant had notified the Respondent in
writing that it was in default and granted at least 15 days for the Respondent to fully comply
with its financial obligations.
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REF. FPSD-14777
27. Consequently, the Chamber concluded that, based on art. 14 bis par. 1 of the Regulations
and the evidence on file, the Claimant had just cause to terminate his Contract with the
Respondent.
ii. Consequences
28. 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
Respondent.
29. 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 4 monthly
salaries under the contract (i.e. February to May 2024), amounting to a total of EUR 140,000.
30. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e., EUR
140,000 (EUR 35,000 times 4 for the salaries of February to May 2024).
31. 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 follows:
•
•
•
•
5% interest p.a. over the amount of EUR 35,000 as from 1 March 2024 until the date
of effective payment;
5% interest p.a. over the amount of EUR 35,000 as from 1 April 2024 until the date
of effective payment;
5% interest p.a. over the amount of EUR 35,000 as from 1 May 2024 until the date
of effective payment;
5% interest p.a. over the amount of EUR 35,000 as from 1 June 2024 until the date
of effective payment.
32. 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.
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REF. FPSD-14777
33. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent 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 Contract at the basis of the matter at stake.
34. 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.
35. 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 550,000 (i.e., the residual value of the contract) serves
as the basis for the determination of the amount of compensation for breach of contract.
36. 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.
37. Nevertheless, the Chamber verified that the Claimant has not signed a new employment
contract and therefore, the compensation due to the Claimant will not be reduced.
38. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent must pay the amount of
EUR 550,000 to the Claimant (i.e. the residual value of the contract which corresponds to
EUR 50,000 times 11 months from August 2024 to June 2025), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
39. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as from 29 May 2024 (i.e., the date of termination) until
the date of effective payment.
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REF. FPSD-14777
iii. Compliance with monetary decisions
40. 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.
41. 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.
42. 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.
43. 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.
44. 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
45. 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.
46. 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.
47. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-14777
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nikola Maksimovic, is partially accepted.
2.
The Respondent, Atakas Hatayspor, must pay to the Claimant the following amount(s):
- EUR 140,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount EUR 35,000 of as from 1 March 2024 until the date of
effective payment;
- 5% interest p.a. over the amount EUR 35,000 of as from 1 April 2024 until the date of
effective payment;
- 5% interest p.a. over the amount EUR 35,000 of as from 1 May 2024 until the date of
effective payment;
- 5% interest p.a. over the amount EUR 35,000 of as from 1 June 2024 until the date of
effective payment.
- EUR 550,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 29 May 2024 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.
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REF. FPSD-14777
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
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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 Governing the Football
Tribunal).
CONTACT INFORMATION
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