DRC Overdue Payables
Texto da decisão
REF. FPSD-8047
Decision of the
Dispute Resolution Chamber
passed on 15 March 2023
regarding an employment-related dispute concerning the player
Stefan Marinovic
BY:
Jon NEWMAN (USA)
CLAIMANT:
Stefan Marinovic, New Zealand
Represented by New Zealand Professional Footballers’ Association
RESPONDENT:
Hapoel Nof Hagalil, Israel
Represented by Mr. Ofer Ben-Assa
pg. 2
REF. FPSD-8047
I. Facts of the case
1.
On 29 June 2021, the New Zealander player Stefan Marinovic (hereinafter: the Player or the
Claimant) and the Israeli club Hapoel Nof Hagalil (hereinafter: the Club or the Respondent)
concluded an employment contract (hereinafter: the contract), valid as from 1 August 2021
until 31 May 2022.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant ILS
35,100 net per month.
3.
In accordance with page 1 of the contract:
“Whereas: The club is a member of the Israeli Football Association (which shall be called “The
Association”); and
Whereas: The player is a regular member of the Club and no obstacle applies to him that
prevents him from playing on the club and being active in it; and
Whereas: The club wishes the player to play in the framework of the club and no obstacle
applies to the club that prevents it from doing so; and
Whereas: The parties wish to specify the rights and obligations of each party towards the
other, all subject to the codices of the Association;”
4.
In accordance with clause 3.d of the contract:
“The Player’s obligations… To follow completely and exactly the instruction of the coach
and/or the Club's management and/or any holder of a position who wilI be appointed on
behalf of the Club's management, in everything relating to his activities on the Club”.
5.
In accordance with clause 6f of the contract, the salary is paid until the 9th day of the
following month.
6.
In accordance with clause 7 of the contract:
“Arbitration:
a. The parties hereby agree that differences of opinion between the Club and player or
between the Player and the Club, in everything relating to the provisions of this Agreement,
shall be decided by an arbitrator, who will be appointed by virtue of the of the Associations
Arbitration Institute Codex.
b. The arbitration will be held in accordance with the directives of the Association's Arbitration
Institute Codex”.
7.
In accordance with clause 8 of the Contract, the Disciplinary code is an integral part of the
agreement. Said document is intended to regulate the disciplinary rules between a player
and his club.
pg. 3
REF. FPSD-8047
8.
On an unspecified date, the Player informed the Club’s goalkeeper coach Tom Almadon
(hereinafter: the Coach) that his wife was pregnant and that his daughter was due around
mid to late May.
9.
On 9 May 2022, the Player and the Coach exchanged the following voice messages via the
electronic application WhatsApp, inter alia:
The Player to the Coach
“Yeh Tom it looks like my wife is in labor. And is going to give birth soon, today or tomorrow.
So I really need to fly out to be with her, but I need to talk to the club and I was hoping you
could help me.”
The Coach to the Player:
“For sure yeh. Speak with your woman. I will speak with Gil and everybody and tell them that
I released you. I want you to go to your wife to be in the hospital. I hope that you catch then
moment of birth you catch the flight soon if possible. You can fly. For now ticket, find
something. I will help you to release from the game and everything, and hope everything will
be good. We see after what will be”
“But now, try to catch as soon as possible the flight to succeed to come to the birth.”
10. On the same date, 9 May 2022, the Player and the Club’s manager exchanged the following
messages via the electronic application WhatsApp, inter alia:
“Hey Sharon. I know it's bad timing for the club, but my wife is going to give birth soon. I want
to fly as soon as possible to Germany. Can we organize flight with Adir? I have spoken with
Tom and he will speak with Shay (…)
Hey Sharon. My flight you be with el Al at 1515 today. Can you get Adir to book this with 4
suitcases please?
Also do you know someone who could drive me to the airport for a good price? I will come to
nof hag 0 in 2 hours (…)”
11. On 9 May 2022, the Player travelled from Israel to Germany, to attend the birth of his child.
12. On 14 May 2022, the Player and the Coach exchanged the following voice messages via the
electronic application WhatsApp, inter alia:
The Player to the Coach
“Hey Tom, I hope everything is ok. I just wanted to confirm with you that the club doesn’t want
me to come back for the game tomorrow. Can you just confirm that for me or do they want
me back?”
The Coach to the Player:
“We don’t want to bring you to a game for something that we don’t have something to fight
about. So relax with your family now. Be ok. Organise your things. We will see what happens
now after the game. Who will be the coach. What happens with your contract (...)”
pg. 4
REF. FPSD-8047
13. On 22 July 2022, the Claimant put the Respondent in default of payment of ILS 35,100
corresponding to May salary setting a 10 days’ time limit in order to remedy the default.
II. Proceedings before FIFA
14. On 31 October 2022, 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
15. The Claimant lodged a claim against the Respondent in front of FIFA asking that the
Respondent be ordered to pay to him overdue payables in the amount of ILS 35,100
corresponding to May salary.
16. As to the absence of the Claimant as of 9 May 2022, the Claimant stated that the
Respondent approved the Player’s absence. The Player supported this allegation on the
WhatsApp communications between the Player and Coach.
17. Moreover, and pursuant to clause 8 of the Contract, the Claimant stated that the
Respondent may only withhold payment, or otherwise seek to impose a sanction against
the Player, in accordance with the provisions (and procedures) set out in the Israel Football
Association Disciplinary Regulations.
18. The Claimant requested the following relief:
“a. award the Player ILD 35,100.00 in consideration of the Outstanding May Salary (plus 5%
interest pa. from 9 June 2022 until the date of effective payment);
b. impose the appropriate sanction(s) on the Club in accordance with art. 12 bis of the RSTP;
and
c. award any additional, further or other remedy that the DRC deems appropriate”.
b. Position of the Respondent
19. In reply to the claim, the Respondent rejected it entirely.
20. The Respondent contested the competence of FIFA and referred to the page 1 of the
contract and clause 7 of the contract. In this respect, the Respondent indicated that clause
7 of the contract is clear and that the parties have accepted the exclusive jurisdiction of the
IFA arbitration Tribunal. It also indicated that the IFA Arbitration Tribunal meets the
requirements contained in Regulations on the Status and Transfer of Players (RSTP) and
supported this statement on a precedent from the Court of Arbitration for Sport (CAS).
pg. 5
REF. FPSD-8047
21. As to the merits, the Respondent indicated that the Claimant left the Respondent’s
premises without an authorisation which according to the Respondent, the only person
that can grant permissions is the CEO of the Club; this according to the Respondent was
well known by the Claimant.
22. Moreover, the Respondent based on the WhatsApp communications, argued that, the
Coach did not release the Claimant, on the contrary, the Claimant asked the Coach to assist
him in order to get an authorisation to be absent. It is pointed by the Respondent that the
Claimant did not wait for an update, “he simply and immediately booked his flight…”.
23. The Respondent, argued that the Player’s intention was to leave the Club premises without
returning and support this assertion on the fact that the player asked to book 4 suitcases
(the Respondent referred to the WhatsApp communication between the Player and the
Club’s manager).
24. The Respondent further indicated that “the player position is a goalkeeper and unlike other
positions it is very difficult to use a second goalkeeper and expect to have the same results,
especially once the Club was in a very difficult situation”.
25. The Respondent concluded as follows:
“47. The Club’s objection to the competence of FIFA to deal with the present matter has to be
accepted and the DRC must confirm that it is not competent, on the basis of art. 22 lit. b) RSTP,
to consider the present matter as to the substance given that:
47.1 The arbitration clause contained in the Employment Contract is clear and valid;
47.2 The IFA Arbitration Tribunal meets all the requirements listed in art. 22 lit. b)RSTP.
48 Alternatively, in case the DRC considers that it is competent, the DRC should rule that the
Player left the Club without a proper permission and/or should not be paid for the time of his
absence (i.e until 31 May 22).
49. Finally, given the particular circumstances of this case in which the Player left the Club for
personal reasons without an approval and or without an agreement for the salary then the
imposition of sporting sanctions on the Club is not warranted”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
pg. 6
REF. FPSD-8047
26. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, it took note that the present matter was presented to FIFA on 31 October 2022
and submitted for decision on 15 March 2023. Taking into account the wording of art. 34
of the October 2022 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.
27. Subsequently, Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (October 2022 edition), the Dispute Resolution
Chamber is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from New
Zealand and a club from Israel.
28. The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies in accordance with its clause 7 of the contract in favour of the arbitration
bodies of the Football Federation of Israel (hereinafter: NDRC of Israel) . In this context, the
Single Judge referred to clause 7 of the contract concluded between the parties, according
to which:
” Arbitration:
a. The parties hereby agree that differences of opinion between the Club and player or
between the Player and the Club, in everything relating to the provisions of this Agreement,
shall be decided by an arbitrator, who will be appointed by virtue of the of the Associations
Arbitration Institute Codex.
b. The arbitration will be held in accordance with the directives of the Association's Arbitration
Institute Codex”.
29. Taking into account all the above, the Single Judge emphasised that in accordance with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established at
national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Single Judge referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
pg. 7
REF. FPSD-8047
30. In this respect, the Single Judge noted that the Respondent failed to provide any
documentary evidence which could prove that the NDRC of Israel meets the requirements
established in art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players,
detailed in the FIFA Circular no. 1010. On account of the above, and referring to the
principle of burden of proof contained in art. 13 par. 5 of the Procedural Rules, the Single
Judge established that the Respondent’s objection towards the competence of FIFA to deal
with the present matter must be rejected, and FIFA has jurisdiction, on the basis of art. 22
par. 1 lit. b) of the Regulations, to consider the present matter as to the substance.
31. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 31 October 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
32. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
33. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single started by acknowledging
all the above-mentioned facts as well as the arguments and the documentation on file.
However, the Single Judge emphasised that in the following considerations he will refer
only to the facts, arguments and documentary evidence, which he considered pertinent for
the assessment of the matter at hand.
i. Main legal discussion and considerations
34. The Single Judge moved to the substance of the matter and took note that the Claimant
lodged the claim at hand against the Respondent seeking payment of his May salary
amounting to ILS 35,100.
35. On the other hand, the Single Judge was also mindful of the Respondent’s position
according to it, the Claimant left the Club’s premises without any authorization and thus
the Player is not entitled to any salary. The Single Judge observed that the Respondent
pg. 8
REF. FPSD-8047
supported this statement considering that 1) the Claimant did ask for support to the Coach
and did not request a permission to leave; 2) the only person that can authorise a Player
to leave is the CEO and not the Coach and 3) the Player was not planning to return to the
Club’s premises.
36. In this context, the Single Judge acknowledged that his task was to determine, based on
the arguments presented by the parties, whether the Respondent had a valid justification
for not having complied with its financial obligation.
37. The Single Judge point out that it is undisputed that until 9 May 2022, the Claimant was at
the Club’s premises, and consequently, the salary for that period is due to the Claimant.
38. Between 10 May and 31 May, the Single Judge took note of the argumentation of the parties
and stated that from the contract, it cannot be stablished that only the CEO is entitled to
grant an authorisation to request an absence. In particular, the Single Judge mentioned
clause 3d of the Contract according to which the Player must follow the instructions of the
Coach:
“The Player’s obligations… To follow completely and exactly the instruction of the coach
and/or the Club's management and/or any holder of a position who wilI be appointed on
behalf of the Club's management, in everything relating to his activities on the Club”
(emphasis added).
39. The Single Judge further observed that both parties used the WhatsApp communications
between the Coach and the Player to justify their dissenting position: 1) from the Player’s
perspective, such conversation determined that he was released, and 2) from the Club’s
perspective, the Player had not been released and only asked for support.
40. While noting these complete opposite position, the Single Judge referred to the WhatsApp
communications dated 9 May 2022 according to which:
“The Player to the Coach:
Yeh Tom it looks like my wife is in labor. And is going to give birth soon, today or tomorrow.
So I really need to fly out to be with her, but I need to talk to the club and I was hoping you
could help me.”
The Coach to the Player:
“For sure yeh. Speak with your woman. I will speak with Gil and everybody and tell them
that I released you. I want you to go to your wife to be in the hospital. I hope that you catch
then moment of birth you catch the flight soon if possible. You can fly. For now ticket, find
something. I will help you to release from the game and everything, and hope everything will
be good. We see after what will be”
“But now, try to catch as soon as possible the flight to succeed to come to the birth.”
(emphasis added)
pg. 9
REF. FPSD-8047
41. From the conversation, the Single Judge is in the opinion that the Coach unequivocally
released the Player to attend the birth of his child. In particular, the Single Judge considered
that no other reasonable meaning can be understood from the phrases “I will tell them (…)
that I released you” and “catch as soon as possible the flight to succeed to [attend] to the
birth”.
42. The Single Judge further observed that since 9 May 2022, and in case the Club considered
that the Player left the club without any permission, no formal notice or communication to
the Player was provided in order to request him to return. On the contrary, the Single Judge
noted that on 14 May 2022, the Player asked the Coach if he needed to return, and no such
request was made.
43. As a consequence, the Single Judge found that the Player had been authorised by the Club
to travel and therefore his absence was fully justified, and does not merit any deduction in
his payments.
44. In view of the foregoing, and bearing in mind the basic legal principle of pacta sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the Contract concluded between the parties, namely ISL 35,100.
45. In addition, taking into account the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amount as from 10 June 2022
ii. Art. 12bis of the regulations
46. In continuation, the Single Judge referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
47. To this end, the Single Judge confirmed that the Claimant put the Respondent in default of
payment of the amounts sought, which had fallen due form more than 30 days, and
granted the club with 10 days to cure such breach of contract.
48. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. On account of the above and
bearing in mind that this is the second offense by the club within the last two years, the
Single Judge decided to impose a reprimand on the Respondent in accordance with art.
12bis par. 4 lit. a) of the Regulations.
pg. 10
REF. FPSD-8047
49. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
50. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
51. In this regard, the Single Judge 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.
52. Therefore, bearing in mind the above, the Single Judge 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.
53. 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.
54. The Single Judge 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
55. The Single Judge 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 single Judge decided that no procedural costs were to be
imposed on the parties.
56. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
pg. 11
REF. FPSD-8047
57. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 12
REF. FPSD-8047
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Stefan Marinovic.
2.
The Respondent, Hapoel Nof Hagalil, has to pay to the Claimant, the following amount:
- ILS 35,100 as outstanding remuneration plus 5% interest p.a. as from 10 June 2022 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-8047
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14