Labour Disputes
Texto da decisão
REF. FPSD-13166
Decision of the
Dispute Resolution Chamber
passed on 28 February 2024
regarding an employment-related dispute concerning
the player Ivaylo Borislavov Markov
BY:
Dana MOHAMED AL-NOAIMI (Qatar), Single Judge of the DRC
CLAIMANT:
Ivaylo Borislavov Markov, Bulgaria
Represented by Georgi Gradev
RESPONDENT:
UTA ARAD, Romania
pg. 2
REF. FPSD-13166
I. Facts of the case
1.
On 3 July 2023, the Bulgarian player, Ivaylo Borislavov Markov (hereinafter: Claimant or
player) and the Romanian club, UTA Arad (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from 3 July 2023 until 15 June 2024.
2.
According to the contract, the Respondent undertook to pay the Claimant, inter alia, a
monthly salary of Romanian New Lei (RON) 34,000, payable until the 25th day of the
following month.
3.
On 7 December 2023, the Claimant put the Respondent in default and requested payment
of RON 68,000, corresponding to the salaries of September and October 2023, within 15
days.
4.
On 22 December 2023, the club sent an offer to mutually terminate the contract, which
was rejected by the player.
5.
On 23 December 2023, the player terminated the contract with the club due to the
outstanding remuneration.
6.
The player did not find new employment until today.
II. Proceedings before FIFA
7.
On 25 December 2023, 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
8.
In his claim, the Claimant requested payment of the following monies:
- RON 34,000 as outstanding salary September 2023, plus 5% interest p.a. as of 25
October 2023;
- RON 34,000 as outstanding salary October 2023, plus 5% interest p.a. as of 25
November 2023;
- RON 34,000 as outstanding salary November 2023, plus 5% interest p.a. as of 23
December2023;
- RON 221,000 as compensation for breach of contract (residual value), plus 5%
interest p.a. as of 23 December 2023;
- RON 204,000 as additional compensation, plus 5% interest p.a. as of 23 December
2023.
pg. 3
REF. FPSD-13166
9.
In his claim, the player argued that the club failed to remit the outstanding remuneration,
even after his default notice and that he therefore had just cause to terminate the contract
on 23 December 2023.
10. Moreover, the player argued that the club deregistered him.
b. Position of the Respondent
11. The club failed to reply to the claim.
pg. 4
REF. FPSD-13166
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge (hereinafter also referred to as Single Judge) analysed whether
she was competent to deal with the case at hand. In this respect, she took note that the
present matter was presented to FIFA on 25 December 2023 and submitted for decision
on 28 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.
13. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (May 2023), she
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player and a club.
14. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 25 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
15. 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 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
16. Her competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge 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 it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
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REF. FPSD-13166
i. Main legal discussion and considerations
17. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note that the matter at hand concerns claim of a player against a club for
breach of contract.
18. In this context, the Single Judge acknowledged that her task was to decide if the player had
just cause to terminate the contract or not, and to decide on the consequences thereof.
19. According to the Claimant, he terminated the contract with just cause due to outstanding
remuneration.
20. The Respondent, 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 Chamber considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
21. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
22. The Single Judge further noted that the Claimant maintained not having received his
remuneration corresponding to RON 68,000 (salaries of September and October 2023).
Furthermore, the Claimant has provided written evidence of having put the Respondent in
default on 7 December 2023, i.e. at least 15 days before unilaterally terminating the
contract on 23 December 2023.
23. It has to be noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the Respondent failed to submit any evidence in this regard.
24. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally
terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
25. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
26. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to 3 monthly
salaries under the contract, amounting to RON 102,000.
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REF. FPSD-13166
27. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge 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. RON 102,000 (i.e. 3 times RON 34,000).
28. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date
of effective payment.
29. Having stated the above, the Single Judge 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.
30. In application of the relevant provision, the Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
31. As a consequence, the members of the Single Judge 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 Single Judge recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
32. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge
concluded that the amount of RON 221,000 (i.e. 6.5x RON 34,000, December 2023 until 15
June 2024) serves as the basis for the determination of the amount of compensation for
breach of contract.
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REF. FPSD-13166
33. In continuation, the Single Judge 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.
34. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
35. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
36. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of RON 221,000, i.e. 6.5 times RON 34,000, as the residual value of
the contract.
37. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the Single Judge decided to award the player interest on said
compensation at the rate of 5% p.a. as of 23 December 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
38. 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 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.
39. 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.
pg. 8
REF. FPSD-13166
40. 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.
41. 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.
42. 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
43. 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.
44. 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.
45. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-13166
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ivaylo Borislavov Markov, is partially accepted.
2.
The Respondent, UTA ARAD, must pay to the Claimant the following amount(s):
- Romanian New Lei (RON) 34,000 as outstanding remuneration plus 5% interest p.a.
as from 26 October 2023 until the date of effective payment;
- RON 34,000 as outstanding remuneration plus 5% interest p.a. as from 26 November
2023 until the date of effective payment;
- RON 34,000 as outstanding remuneration plus 5% interest p.a. as from 23 December
2023 until the date of effective payment;
- RON 221,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 23 December 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.
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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REF. FPSD-13166
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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