Labour Disputes
Texto da decisão
REF FPSD-2976
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Edis Malijki
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
FK Kukesi, Albania
Represented by José C. Paez
RESPONDENT:
Edis Malijki, North Macedonia
Represented by Zvonimir Rajic
INTERVENING PARTY:
NK Lokomotiva Zagreb, Croatia
Represented by Marko Hrabar
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I.
Facts of the case
1.
On 4 June 2018, the Albanian club, FK Kukesi (hereinafter: the Claimant or the Club) and the
North Macedonian player, Edis Malikji (hereinafter: the Respondent 1 or the Player) signed an
employment contract, valid for “2 football seasons” (hereinafter: the contract).
2.
According to the information provided by the Albanian Football Association (AFF), the
sporting season 2019/2020 ran as from 24 August 2019 to 29 July 2020.
3.
According to the contract, the Player was entitled to a monthly salary of Albanian Lek (ALL)
50,000.
4.
Article 3. i) of the contract states that the football season starts on the official date declared
by the AFF and ends on the official date declared by the AFF.
5.
Clause 3, ii) of the contract reads as follows:
“The Player acknowledges and undertakes that he will continue to play with the same terms
even in the case of season term extension from AFF and/or qualification of the Club in
Europe’s cups or Champions League. In these cases, the contract’s terms are automatically
extended. In case where the Player is not present in the Club to participate in Europe’s Cups
or Champions League, the Player declares that he shall pay the Club up to EUR 50.000 within
30 days from the date of the written or verbal request from the Club and for every day of
delay the Player declares that he shall pay a penalty of 0.5% of the total amount for every
day the player is in delay with the payment of the mentioned amount of the penalty. The
Player declares that if he does not make the payment, this means that AFF, UEFA and FIFA
will not allow the Player to be transferred to other teams, domestic or foreign.”
6.
Clause 4, xiv) of the contract states as follows:
“The Player acknowledges that his card is in the ownership of Kukesi Club for (sic) three
seasons (sic) form the date of signing this contract. The Player acknowledges that he and the
Club which is interested for his transfer shall request a written approval of Kukesi Club, in
case that the Player wishes to be transferred to another domestic or foreign team (club). The
Player acknowledges that before his transfer, he shall pay Kukesi Club all the financial
obligations, which will be required by the Club as: the card value which will be decided by
the Club, the compensation fee, the investment made by Kukesi Club for the Player, the
missing profit, the amounts paid by the Club and acknowledged by the Player which are not
provided in the contract etc.”
7.
Clause 4, xv) of the contract stipulates the following:
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“The Player acknowledges that he will not engage in direct or indirect discussions with other
Clubs, domestic or foreign with the purpose of this transfer to these Clubs, without a written
approval by Kukesi Club (…)”.
8.
Clause 13, iv) of the contract states as follows:
“The Player accepts that the value of his card in an event of transfer to other domestic or
foreign clubs, will be paid 100% (one hundred percent) to Kukesi Club.”
9.
Clause 13, vi) of the contract holds the following clause:
“The Player acknowledges that if the manager or his representative secure his transfer to
another club, without the written approval of Kukesi FC, the Player will pay to Kukesi FC the
amount of EUR 100.000 within 30 days (…)”.
10. Clause 15 of the contract reads as follows:
“Article 15 Termination of the Contract by the Player
The player will be considered to have terminated his contract with the club for legitimate
reasons by notifying the club in writing 30 (thirty) days in advance if the club;
Will be found guilty of serious and persistent violation of the terms and conditions of this
contract, or;
Fails to pay any remuneration or other payments or bonuses that the Club is required to pay
to the Player under this contract for more than 90 days from the time the obligations were
to be fulfilled.
If the Club fulfils its obligations within the notice period of 30 days, then the Player will not
terminate the contract unilaterally for legal reasons otherwise the player decides to pay the
Club a compensation in the amount of 100.000 Euros. The player declares that he agrees
that if he does not make the payment within 30 days from the day Kukesi Club has made the
request in writing or by e mail, personally the player or AFF, this will make a condition for the
competent authorities of AFF, UEFA and FIFA not to allow the Player to be active in other
domestic or foreign clubs.
For all other cases of termination of the contract not provided in this article, the Player is
obliged to notify the Club 60 days in advance”.
11. Clause 16, i) of the contract states as follows:
“Unless in the last 7 days of the penultimate month of this contract, any of the parties makes
a written objection to the extension of the contract term, the parties agree on an automatic
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extension of the contract for two additional years, under the same conditions. The fee shall
be determined by the Club (hereinafter referred to as: Non-extension clause).”
12. Clause 16, iii) of the contract states the following:
“upon completion of the contract, the player is obliged to repay all obligations to the club,
including different payments made by the club and accepted by the player, advance
payments, if there exists, amounts given to the player in the form of the loan etc. Together
with financial obligations will be paid the respective interests assessed by the club”.
13. Clause 16, iv) of the contract reads as follows:
“If the player terminates the contract unilaterally before the deadline, he will pay the club a
penalty from 200.000 to 500.000 Euros, within 30 days. The player admits that for each day
of late payment, he will pay to the Club a late interest of 0.5% of the unsettled value. The
player declares that he agrees that if he does not pay within 30 days from the date that Kukesi
FC has made the request in writing, verbally or electronically to the e-mail address of the
player, personally to the player or AFF, this will make a condition for the competent authority
of AFF, UEFA and FIFA to not allow the player to be active in other domestic or foreign clubs
without first making the payment.”.
14. Clause 18 of the contract reads inter alia as follows:
“If the last 7 days of the penultimate month of the term of this contract neither of the parties
to this contract is expressed in writing against extension of the term for this contract the
parties acknowledge that this contract shall automatically enter into force for two other years
under the same conditions. Price shall be determined by the Club. The parties declare that
the entire notifications made before or after 7-days deadline as above defined are invalid”.
15. On 27 July 2020, the Player sent a letter to the Club, informing it of his decision to not renew
the contract pursuant to clauses 16 and 18 of the contract.
16. On 20 August 2020, the Club allegedly paid the Player the amount of EUR 6,500. The
corresponding receipt states that an amount of EUR 3,000 was paid as a first payment for
the 2020/2021 season and that another amount of EUR 3,500 was linked to the 2021/2022
season.
17. On 24 September 2020, the Player was apparently granted leave by the Club to go on holiday
until 28 September 2020.
18. On 1 October 2020, the Club sent a letter to the Player, reminding him of the consequences
of his unjustified absence and invited him to a meeting on 2 October 2020, to no avail.
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19. On 2 October 2020, the Player apparently signed a new contract with NK Lokomotiva Zagreb
(hereinafter: the Respondent 2), valid as from the date of signature until 15 June 2022.
20. On 5 October 2020, the Club sent a letter to the Player, informing him that he had been
issued with a fine of ALL 26,000 and once again summoned him to a meeting on 6 October
2020.
21. On 6 October 2020, the Club received an email from the Respondent 2, according to which
it appeared to request the issuance of the Player’s International Transfer Certificate (ITC).
22. On 7 October 2020, the Club sent a letter to the Player and his new club, urging the Player
to return by 10 October 2020 or he would face penalties and asked his new club to cease
negotiations or signing of a contract with the Player or it would face penalties.
23. On 15 October 2020, the provisional registration of the Player with the Respondent 2 was
completed in the Transfer Match System (TMS).
24. On 17 November 2020, the Club addressed to the Player and Respondent 2 a request for
compensation for breach of contract. In its request, the Club argued that the Player had
terminated the contract without just cause, within the protected period, and that, as a result,
both Respondents were jointly and severally liable for the payment of the overall
compensation in the amount of EUR 675,500.
25. On 16 December 2020, the Respondent 2 replied to the request for compensation and
rejected all allegations. In particular, it argued that the Player “approached it with documents
proving he has terminated his contract after two years in accordance with the Player contract
which gave both parties a unilateral termination option after two years, excluding the
automatic extension of the Player contract”. And, therefore, it “has [not] violated any article
of FIFA RSTP, nor induced the player to terminate the contract”.
26. On 21 December 2020, the Respondent 2 contacted the Club requesting a meeting with it.
II. Proceedings before FIFA
27. On 5 July 2021, the Club 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
28. The Club requests that the DRC finds as follows:
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a. admit the present claim against both Respondents;
b. declare the validity of Clauses 16, i) and 18, second paragraph, of the contract;
c. in the alternative, to declare the validity of Clause 3.ii) and 16.iii) of the contract;
d. in the alternative, to declare that the Player’s continued participation in training sessions
as well as friendly and official matches, until 24 September 2020, i.e. well into the
2020/2021 season, must amount to his agreement to the extension of the contract for
at least the 2020/2021 season;
e. to declare that the Player’s failure to resume work on 29 September 2020, after his
authorized leave, and his subsequent signing of a contract with the Respondent 2 must
be deemed an abandonment of work amounting to an early termination of the contract
without just cause;
f. to declare that the Respondent 2 is jointly and severally liable for the payment of any
monies that the Player is ordered to pay as a result of his early termination without just
cause of the contract;
g. order the Player to pay the Club as follows:
i.
EUR 500,000, or if less, no less than EUR 200,000, as penalty, in accordance with
Clause 16, iv) of the contract;
ii.
EUR 100,000 as penalty in accordance with Clause 13, vi) of the contract;
iii.
0.5% over the amounts indicated above per day of late payment from 5 November
2020 or, in the alternative, 18% as late payment interest per annum from 5
November 2020.
h. pursuant to Clause 16, iii) of the contract, order the Player to reimburse EUR 3,000,
corresponding to the first monthly salary of the 2020/2021 season, and EUR 3,500,
corresponding to the first monthly salary of the 2021/2022 season, i.e. the EUR 6,500
advance payment received on 20 August 2020; and
i.
to order the Player to abide by the undertakings set out in Clause 16, iv) of the contract
and refrain from registering with any club until full settlement of the payments due to it
or, alternatively, impose sporting sanctions on him for breach of contract during the
protected period.
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29. According to the Club, notwithstanding the Player’s failed attempt to prevent the renewal of
the contract by serving it with a non-renewal notice on 27 July 2020, at the same time the
Player apparently approached the Club to negotiate his remuneration for the following two
seasons, i.e. after the expiry of the Initial Term. However, in the end, the Club submits that it
could not meet the Player’s financial demands, which would have meant agreeing to a
monthly salary in the amount of EUR 4,300. Therefore, the negotiations broke down.
30. Following the failed talks between the parties to renegotiate the terms of the contract, the
Club submits that on 10 August 2020, the Player sent a new notice to the Club insisting on
his position as set out in the first non-renewal notice dated 27 July 2020.
31. Nonetheless, the Club submits that the Player continued to participate in matches for the
Club and that the continued participation of the Player results from, first, the negotiations
between the parties that resumed following the second non-renewal notice dated 10 August
2020 and the agreement reached on the remuneration for the renewed term of the contract:
EUR 3,000 per month for the 2020/2021 season; and EUR 3,500 per month for the
2021/2022 season, as evidenced by the advance payment made on 20 August 2020.
32. According to the Club, the Player was granted leave until 28 September 2020, but he did not
resume work after the authorised period.
33. The Club states despite its default notice to the Player, he did not respect its request to return
and as a result, it issued him with a fine in the amount of ALL 26,000 and once again
summoned him to a meeting on 6 October 2020.
34. According to the Club, the Player did not respect its several requests and proceeded to be
registered with a new club, despite it issuing a warning to both parties in this regard. The
Club adds that this is unacceptable as the new club was informed that the Player was still
under contract and this is a clear breach of the Regulations on the Status and Transfer of
Players (RSTP).
35. The Club submits that two sets of events that happened constituted a breach of contract (a)
the Player’s abandonment of work, resulting from his failure to resume work with the Club
following his authorization for leave for family reasons from 24 to 28 September 2020; and
(b) the Player’s subsequent move to the Respondent 2.
36. According to the Club, the above breaches taken together, amounted to a clear case of early
termination of the renewed contract without just cause and thus entitled it to claim
compensation against the Player pursuant to Clause 16, iii) for an amount of at least EUR
200,000 and a maximum of EUR 500,000.
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37. As to the clarity of the terms of the automatic renewal, the Club submits that its terms are
sufficiently clear and set a final deadline for the parties to reject the automatic renewal on
the last day of the penultimate month of the two-season term, in particular, in the present
case since the AFF did not change the start and end dates of the 2019/2020 season.
Therefore, the Club stresses that it cannot in any event be argued that uncertainty exists due
to “inexact expressions or designations”.
38. In anticipation of the Player’s arguments to justify its conduct, the Club warns against the
Player’s attempt to mislead the Dispute Resolution Chamber (DRC) by putting forward an
interpretation of the conditional, automatic extension clause 3, ii), which provides for an
extension of the contract only for as long as the season is extended or the Club plays in UEFA
club competitions.
39. The Club recalled the approach of FIFA, which supported the will of the parties to the contract
to regulate their contractual obligations in the event of a season extension and delay of official
competition matches beyond the season end, as it was the case in 2019/2020 season in the
AFF. However, the Club pointed out that this is not the case where the event triggering the
renewal of the term is the qualification to participate in a UEFA club competition. In this case,
the renewal of the contract term must be at least for one season, in accordance with article
18, par. 2 of the FIFA RSTP.
40. According to the Club, if the DRC was to consider that the term of the contract may not be
extended by operation of the automatic renewal, the continued participation of the Player
with the Club beyond the expiry of the initial term amounts to confirmation of the parties’
agreement to extend the contract.
41. The Club adds that - seeing as the Player continued to provide his services to the Club until
28 September 2020 - should the DRC consider that (i) the clauses providing for the automatic
renewal of the contract for two seasons are invalid or that the Player gave notice timely, and
(ii) the term of the contract cannot be extended by operation of the Conditional, Automatic
Term Extension (CATE), then the Player’s continued participation with the Club, in training
sessions as well as friendly and official matches, well into the 2020/2021 season must amount
to the Player’s agreement to the extension of the contract for at least the 2020/2021 season,
which thus was already underway by the time the Player failed to return from his authorized
leave on 29 September 2020.
42. Therefore, since the Player failed to give notice in accordance with Clauses 16, i) and 18,
second paragraph, his lack of action must be construed as the Player’s desire to renew the
contract for an additional two-season term, until the end of the 2021/2022 season. The Club
adds that there is no doubt that this would have been the Player’s contention if the Club had
tried to terminate the contract early after having allowed the contract to be renewed by not
giving notice.
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43. In conclusion, the Club submits that when the Player failed to resume work on 29 September
2020 after his authorized leave, the Player was bound by an extended valid contract either
for the 2020/2021 and 2021/2022 seasons, pursuant to the automatic renewal, or for the
2020/2021 season. Therefore, the departure of the Player without permission and his
subsequent signing of a contract with the Respondent 2 must be considered as an
abandonment of work amounting to an early termination of the contract by the Player
without just cause.
44. In addition, the Club submits that it unfortunately did not qualify for any UEFA club
competitions; this being due, to a great extent, to a number of players having terminated
their contracts early without just cause at the end of the 2019/2020 or at the beginning of
the 2020/2021 seasons. It adds that the financial consequences of its failure to secure a better
place in the national competitions and to qualify to the UEFA club competitions are obvious:
the loss of financial compensation, economic prizes as well as the lack of opportunity to yield
any revenue through its participation in those competitions.
b. Position of the Respondent 1
45. The Player in his response started by stating that he fully disputes the merits and the amount
of the claim, and also opposes all allegations and evidence stated in the claim as false,
inaccurate and unfounded.
46. According to the Player, on 27 July 2020, he notified the Club against the extension of the
contract clearly stating the following:
- In reference to articles 16, i) and 18, ii) of the contract, he does not wish to extend the
contract;
- He strongly opposed the extension of the contract and said that the contract should be
terminated;
- He notified the Club that he would perform his duties in strict and professional manner for
the remaining duration of the contract.
47. The Player further states that it is indisputable between the parties that the Club received the
notification on 27 July 2020. The Player adds that he notified the AFF on 10 August 2021
that he did not extend his contract with the Club.
48. The Player submits that the 2019/2020 football season was a particular season due to the
COVID-19 outbreak in the middle of the season. As it was an unprecedented event, the Player
informed that some of the federations did not officially change the dates of the
beginning/ending of the season 2019/2020 but, in reality, the seasons predominantly lasted
longer than visible in the TMS.
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49. According to the Player, the AFF did not change the end date of the 2019/2020 season in the
TMS, stating that the new 2020/2021 season started on 1 July 2020. The last official match
of the season in which the Club participated was indeed on 29 June 2020 but on the other
hand, the last match of the 2019/2020 season of the Albanian Superliga was held on 2
August 2020.
50. The 2020/2021 season of Superliga ended, in accordance with the dates provided in the TMS,
on 30 June 2021 but the Club played its last match on 26 May 2021. Therefore, it is clear,
according to the Player, that the playoff round relegation match of the Albanian Superliga is
always played as the last match of the current season.
51. The Player further submits that the contract was terminated in accordance with article 3, 16
and 18 of the contract. He however adds that article 3, i) is not applicable to the 2019/2020
season, due to the COVID-19 pandemic as the actual situation on ground was not reflected
in the TMS as indicated above.
52. In regards to article 16, i) and 18, ii) (i.e. non-extension clause), the Player submits that seeing
as the 2019/2020 season ended in August 2020, the last 7 days of the penultimate month of
the end of the term of the contract were dates from 25 July to 31 July 2020.In other word,
the notification to the Club dated 27 July 2020 was expressed in due time in accordance with
article 16 and article 18 of the contract.
53. The Player adds that this is the only logical conclusion keeping in mind the date of the last
match played in the season, and especially if one should apply the principles of Swiss Law
"contreproferentem" and "in dubio contra stipulatorem'.
54. Therefore, according to the Player, the uncertainty of the 2019/2020 season has to be taken
into consideration when interpreting the non-extension clause. Meaning, the uncertainty of
the ending of the season has clearly affected the non-extension clause and therefore should
affect the flexibility of its interpretation.
55. The Player further submits that there was a mutual agreement of the parties that the contract
was terminated with just cause and in accordance with the non-extension clause.
56. In response to the Club’s claim that the renewal of the contract is valid due to the fact that
both parties had the power to decide not to extend it, the Player submits that the parties
were not equal in their right to terminate the contract, which Ieads to the conclusion that the
vague and not applicable non-extension clause, written by the Club, could and did harm be
to his detriment.
57. In regards to his appearances in the UEFA club competitions, the Player recalls that article 3,
ii) of the contract states that the player will continue playing under the same conditions in
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case of extension of the football season and/or the qualification of the Club in the European
cups. He adds that it was his interpretation that the contract extends for a specific time frame
(until the season ends or the CIub plays in the European cup). Therefore, he played all the
European cup matches for the Club, but also only European matches, and not a single official
match outside the European qualification rounds.
58. The Player adds that article 3, ii) of the contract is vague, null and void, as well as it is
contradictory to the non-extension clause and stipulates an unreasonably high amount of
penalty for the player if he does not appear for the Clubs European cup matches, even if he
has decided not to extend the contract. According to the Player, if interpreted as in the claim,
it is an eternal clause. In other words, if the Club would have qualified for the European cup
matches year by year, the contract would automatically extend "indefinitely".
59. In regards to the penalty clause, the Player submits that such amount is excessive, set too
high and disproportionate to the value of the contract since the total amount of the contract
is approximately EUR 9,600. As a result, he argues that clause 16 should be declared null and
void.
60. In regards to the value of the contract, the Player submits that in accordance with article 2 of
the contract, ALL 50,000 per month (approximately EUR 400) if multiplied by 24 months (2
seasons) amounts to EUR 9,600. He adds that any additional bonus, not related to a player
performance but depended on the results of the team, is not part of the sum when
determining the value of the contract.
61. In regards to the penalty under article 13, vi), the Player submits that it is unclear as to the
Club’s legal grounds for claiming such amount or why said clause is relevant in this case.
According to the Player, the only possible way the quoted clause could be applicable, is in
case of a transfer under a valid contract. Even if such clause was envisaged as buy-out clause,
it is impossible for it to be applied due to the fact that such a delicate clause should be drafted
in a completely transparent way and it should at least define clear legal consequences for
both parties. As this clause is completely unclear, it should not and cannot be applied.
62. In view of all the above, the Player submits as follows:
- The parties were not equal in the possibility of terminating the contract;
- Regardless of the fact that the non-extension clause is vague and not applicable during the
COVID-19 pandemic, he expressed in writing against the extension of the contract within 7
days of the penultimate month of the end of contract;
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- The parties agreed on the fact that the Player terminated the contract with just cause and
in accordance with articles 16 and 18 of the contract, and consequently the parties initiated
negotiations for agreeing conditions for a possible new contract;
- Article 3, ii) is adversarial in regards to articles 16, i) and 18, ii) of the contract and provides
for a penalty in the amount of EUR 50,000 if the player does not appear in the European
match games, regardless of the possible non extension of the contract;
- Clause 16, iv) of the contract is disproportionate and unilateral, it is contrary to contractual
stability and labour law and should be declared null and void;
- The latter penalty according to the Player is “even more absurd and disproportional” if it
is taken into consideration that the value of the contract was EUR 9,600 for two seasons;
- Article 13, vi) of the contract is completely unclear and unilateral and the Club does not
provide a single sentence as to why this clause is relevant;
- The way the contract is drafted implies a set-up which disproportionately favours the Club
and constitutes an easy way for it to terminate the contract at any moment, whereas the
Player in turn does not have such equal possibility.
63. In conclusion, the player requests that the claim be rejected.
c. Position of the Respondent 2
64. The Respondent 2 submits that the current claim against it is unfounded, as the Player
approached it with documents undeniably proving that he terminated his contract with the
Club after 2 years.
65. The Respondent 2 explains that it signed a contract with the Player on 2 October 2020 which
is more than 2 months after the Player’s notice of termination to the Club.
66. During this time, the Respondent 2 submits that it sent a request of proof of no Third Party
Ownership (TPO) document from the Club and that it apparently refused, but that on 17
November 2020, it received a claim for compensation from the Club.
67. The Respondent 2 submits that it did not influence in anyway the Player’s decision to
terminate the contract with the Club. It adds that after analysing the documentation
submitted to it by the Player, it established that the Player had terminated his contract in
accordance with clauses 3, i) and 16, i).
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68. Having ascertained that the Player had correctly terminated his contract with the Club, the
Respondent 2 submits that it proceeded to sign a contract with the Player and that it is clear
through the pre-litigation communications from the Club that it had the intention to claim
unrightful compensation.
69. The Respondent 2 denies that it attempted to settle the claim with the Club.
70. The Respondent 2 further states that the Player’s contract with the Club is vague with several
null clauses, written with the sole purpose to give unilateral rights to the Club and that it
seems that the Club drafted the contract with a clear agenda of pressuring the Player and
claiming unrightful compensation from a future club.
71. It submits that article 3 is null and void and that the Club “forgot” to translate the last part
of the quoted paragraph. It adds that if one compares the original contract in Albanian with
the translation to English, one would see that there is a missing sentence in clause 3, ii) of
the English translation that states “until the Club is disqualified from such competition”.
72. In conclusion, the Respondent 2 submits that the Club obviously acted in bad faith from the
beginning of its business relationship with the Player. Firstly, by drafting a contract in an
imprecise manner with different unilateral, disproportionate, vague and contradictory clauses
and secondly by trying to pressure the Player to play for it for an indefinite period of time
despite the fact that the Player had expressed his wish to terminate the contract. Furthermore,
it adds that the Club tried to “extort money from it and continues to do so by dragging it
into this matter, invoking vague clauses unilaterally drafted by the Club”.
73. Consequently, the Respondent 2 submits that the claim of the Club is unfounded and should
be rejected in its entirety.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
74. 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 5 July 2021 and submitted for decision on
28 October 2021. Taking into account the wording of art. 34 of the October 2021 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.
75. 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
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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 Albanian club and a
North-Macedonia player, with the involvement of a Croatian club.
76. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 5 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
77. 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
78. 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
79. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the main issue at the centre of the dispute is whether the Player
legally terminated the contract in accordance with clauses 16 and 18 of the contract and if
not, to determine whether the Club is entitled to compensation for breach of contract from
the Player and the Respondent 2. Additionally, the DRC was also mindful of the dispute
regarding the reimbursed of the alleged advance payment of EUR 6,500 made by the Club.
80. In this context, and before going into the analysis of the termination, the DRC wished to point
out that that the Claimant submitted a translation of the initial contract that appears to omit
or alter specific key paragraphs. By way of example, article 3, ii) of the translation states that
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the Club was entitled to EUR 100,000 in case the Player is not present to participate in
Europe’s cups or Champion’s League. However, the original contract in Albanian states that
such amount is in fact EUR 50,000.
81. Additionally, and based on the submissions on file, it also appears to the DRC’s eyes that the
Club may have omitted specific parts of some paragraphs in its translated version of the
contract. At the same time, the DRC observed that the other parties to the current dispute
submitted certified translations of the contract that appear to contain all the relevant
elements.
82. As a result, the DRC decided to disregard the Club’s version and use the Respondents’ version
of the translated contract.
83. Moving on to the core issue of the matter, the DRC referred to clause 16 of the contract,
which states that “Unless in the last 7 days of the penultimate month of this contract, any of
the parties makes a written objection to the extension of the contract term, the parties agree
on an automatic extension of the contract for two additional years, under the same conditions
(…)”.
84. The DRC also noted that clause 18 of the contract follows the same line as the above: “If the
last 7 days of the penultimate month of the term of this contract neither of the parties to this
contract is expressed in writing against extension of the term for this contract the parties
acknowledge that this contract shall automatically enter into force for two other years under
the same conditions. Price shall be determined by the Club. The parties declare that the entire
notifications made before or after 7-days deadline as above defined are invalid”.
85. It stood undisputed that on 27 July 2020, the Player sent a letter to the Club informing it of
his decision to not renew his contract, pursuant to clauses 1, i) and 18 of the contract.
Additionally, the DRC was mindful of the fact that on 10 August 2020, the Player also sent a
letter to the AFF informing confirming the same information.
86. According to the information on file, the 2019/2020 sporting season in Albania ended on 29
July 2020. Taking into account the wording of clauses 16 and 18 of the contract, the Player
was in principle obliged to send his notice of non-renewal the latest on 23 May 2020 (i.e. 7
days before the penultimate month of the season).
87. However, it was also not disputed by the parties that the 2019/2020 season was extended
due to the COVID-19 pandemic. To this end, the last game for the 2019/2020 season was
played on 2 August 2020 as per the evidence provided by the Player.
88. Considering the specific circumstances of the case, the DRC noted that, in principle, the player
would have served his non-extension notice later than the contractual stipulation.
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89. Both clauses 16 and 18 in the DRC’s view provide for a unilateral extension option (even if
automatic) insofar as they would allow the parties to decide, without the need of further
consent (other than the one given at the time of entering into the employment agreement)
to lengthen their labor relationship. In particular, they call for the parties to withdraw their
consent, otherwise the extension of the contract would materialize; the DRC found this to be
similar to stating that they wished for the relationship to continue, only with a different action
(i.e. not objecting).
90. The DRC jurisprudence teaches that clauses such as the ones at stake must be examined on
a case-by-case basis, considering all factors such as reasonability and proportionality. Along
the same lines, the jurisprudence of the Court of Arbitration for Sport (CAS) refers to aspects
which also must be examined carefully, for instance whether the total duration of the
contractual relationship is reasonable and according with the applicable regulations; and
whether the ensuing terms and conditions of employment are fair and adequately reflect the
right that the player has granted to the club without the need of further negotiation. These
include, inter alia, the remuneration of the player during new contract term.
91. By examining these aspects, the extension option would prolong the contract for additional
two years, that is, would double the original the original term of the contract. At the same
time, the player would not receive any raise or additional remuneration with regards to the
following two seasons in case the extension was triggered.
92. The DRC found that clauses such as the ones at stake need to be read in a careful manner
and construed in a way which permits both parties to know, beforehand, for how long they
will be bound by one another, and how/when they can exercise their option. Such is not the
case of the contract in the Chamber’s opinion. Parties must exercise a higher degree of
caution when agreeing clauses which automatically extend contracts. The DRC could not
overlook the fact that the season was extended and even matches were played after the
supposed end date informed by the AFF. The conditional nature of the clauses at hand
coupled with the uncertainty of the 2019/2020 season due to COVID-19 made it impossible
for the Player to know when to legally terminate the contract. As such, the DRC found that
it would be potestative and excessively burdensome on the Player to uphold the contractual
extension.
93. Combining these two factors, namely the contents of the clauses pertaining to the extension
option together with the uncertainty regarding the end of the season (and thus the precise
determination of when the window to exercise the option was), the DRC felt comfortable to
establish that no breach occurred – which leads to the conclusion that no compensation is
payable to the Club. Accordingly, this part of the Claimant’s claim was rejected.
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94. Subsequently, the DRC turned to the Club’s request for reimbursement of EUR 6,500
allegedly paid in advance to the Player. The DRC was especially mindful that the Player did
not contest in his reply having received such monies or made any submissions in this regard.
Simply put, the Player was silent on it. As such, the DRC inevitably found that the payment
of EUR 6,500 stood undisputed.
95. Because of its previous finding that no extension of the contract took place and it ended
together with the season 2019/2020 in Albania, the DRC confirmed that no amounts were
due by the Club to the Player for he was no longer contractually bound to the latter, and no
services were rendered. As such, allowing the Player to retain such monies would, in the
DRC’s opinion, amount to unjust enrichment.
96. Consequently, the DRC decided to accept this part of the Claimant’s claim and determined
that the Player must reimburse EUR 6,500 to the Club.
ii. Compliance with monetary decisions
97. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
98. In this regard, the DRC highlighted that, against players, the consequence of the failure to
pay the relevant amounts in due time shall consist of a restriction on playing in official matches
up until the due amounts are paid. The overall maximum duration of the restriction shall be
of up to six months on playing in official matches.
99. Therefore, bearing in mind the above, the DRC decided that the Respondent 1 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 playing
for the maximum duration of six months shall become immediately effective on the
Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
100.The Respondent 1 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.
101.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. 24bis par. 8 of
the Regulations.
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d. Costs
102.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.
103.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.
104.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, FK Kukesi, is partially accepted.
2.
The Respondent 1, Edis Malijki, has to pay to the Claimant, EUR 6,500 as reimbursement of
the advance payment for the 2020/21and 2021/22 seasons.
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. 24bis 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. Against the Respondent, a restriction on playing in official matches up until the
due amounts are paid. The overall maximum duration of the restriction, including
possible sporting sanctions, shall be of six months on playing in official matches.
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 art. 24bis par. 7 and 8 and art. 24ter 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).
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
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