Labour Disputes
Texto da decisão
REF 20-00886
Decision of the
Dispute Resolution Chamber
Passed on 24 November 2020,
regarding an employment-related dispute concerning the player Darko Markovic
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
DARKO MARKOVIC, Montenegro
Represented by Mr. Ivan Radulovic
RESPONDENT:
ERBIL SC, Iraq
Represented by Mr. Nezar Ahmed
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I. FACTS OF THE CASE
1.
On 27 January 2020, the Montenegrin player, Darko Markovic (hereinafter: the player or the
Claimant) and the Iraqi club, Erbil SC (hereinafter: the club or the Respondent) concluded an
employment contract, valid as from the date of its signature until 31 May 2020 (hereinafter: the
contract).
2.
Pursuant to the contract, the player was entitled, inter alia, to a sign-on bonus of USD 10,000 and
a monthly salary of USD 7,000.
3.
Clause 11 of the contract states that the player “is not allowed to leave the country without a
written permission from [the club]”.
4.
Clause 13 of the contract states as follows: “If the league finished before the (31/05/2020)
[Respondent] can cancel this contract and the [Claimant] will receive his salary until the last day of
the league”.
5.
On 20 and 29 February 2020, the player contacted the club, requesting the latter to provide him
with a signed specimen of the contract and to pay him the sign-on bonus in the amount of USD
10,000.
6.
On four different occasions, i.e. on 12, 15, 27 and 29 March 2020, the player contacted the club
in order to obtain some information about his situation and about whether the local competition
would resume, since as from 15 March 2020 the Iraqi FA had apparently suspended the local
tournaments on account of the COVID-19 Pandemic; however, to no avail.
7.
Thereafter, on 25 May 2020, the player informed the club that he would leave Iraq and return to
his own country, and requested assistance from the club in connection with the passport control
at the airport, given that he had no work permit, stating that that is the very least they could do
in view of the lack of payment of all of the instalments due to him as per the contract.
8.
On 26 May 2020, the club replied to the player and told him that they would start negotiations
in order “to fix the current situation”.
9.
On 27 May 2020, the player requested the club to put in writing an alleged offer the club made
to the player. Such offer allegedly reflected the club’s proposal to pay the player 30% of the signon fee and the salary of February 2020. Equally, in his letter, the player refused the offer and
urged the club to pay the full sign-on bonus, as well as the monthly salary of February and half of
the salary of March 2020; however, to no avail.
10. The player left Iraq on 28 May 2020.
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II.
PROCEEDINGS BEFORE FIFA
11.
On 22 June 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
12.
In his claim, the player explained that despite having complied with his contractual obligations,
the club failed to provide him with his work permit, pay his salaries and sign-on bonus, reply to
his correspondence, and provide him with the means to go back to his country.
13.
According to the Claimant, the Respondent never provided him with the work permit in order
for him to play for the club and stay in Iraq, despite it being the club’s responsibility.
14.
In his request for relief, the player requested to be awarded outstanding remuneration in the
amount of USD 38,856.88 plus 5% interest p.a. as of 1st June 2020, broken down by the player
as follows:
a. USD 10,000 corresponding to the sign-on bonus;
b. USD 28,000 corresponding to the salaries of February, March, April and May 2020 in the
amount of USD 7,000 each;
c. USD 633.88 (EUR 565) corresponding to the reimbursement of the flight ticket expenses;
d. USD 223 (RNL 959.64) corresponding to the taxi expenses in order to go from Bucharest
to Belgrade.
b.
Reply of the Respondent
15.
The Respondent argued that due to the COVID-19 pandemic, the season 2019/2020 in Iraq was
cancelled on 15 March 2020. The Respondent deems that such fact is not disputed by the player
as per his statement of claim.
16.
The Respondent argued that as per clause 13 of the contract “the Claimant is only entitled to
remuneration up to 15 March 2020 since the IFA competitions were cancelled on 15 March
2020. Consequently, the Claimant is only entitled to (i) the salary of February in the amount of
USD 7’000, (ii) half the salary of March in the amount of USD 3’500 and (iii) the one payment
in the amount of USD 10’000 which was due upon the signing of the Contract, i.e. USD 20’500
in total”.
17.
Moreover, the club adduced that the COVID-19 pandemic constitutes a force majeure situation
according to which the contract could be terminated on the grounds of art. 43 i) of the Iraqi
Labour Code which states as follows: “Article 43 –1- An employment contract shall be
terminated in any of the following cases: (…) i- In case of force majeure”. In support of this
allegation, the club provided a link to a PDF file found online, which allegedly corresponded to
the English translation of the Iraqi Labour Code.
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18.
In continuation, the club submitted that “owing to i) the Covid-19 outbreak and (ii) the
subsequent cancellation of IFA league competition on 15 March 2020, the Claimant agreed and
accepted that his due remuneration would be only (a) the sign-on fee of USD 10’000, (b)
February’s salary of USD 7’000 and (ii) half of March’s salary of USD 3’500, i.e. USD 20’500 in
total”. The club further argued that such amount is fair considering that “the Claimant should
be entitled to payment only for the time he actually provided his services to the Respondent”.
19.
As to the air ticket and taxi fares sought by the player, the club argued that “it suffices to say
that in accordance with the provisions of the Contract, the Claimant is not entitled for such
reimbursement. Per se, such claim shall be rejected”.
20.
Lastly, the Respondent argued that no default interest shall apply since the player did not put
the Respondent in default with a deadline of 10 days pursuant to art. 12bis (3) of the
Regulations on the Status and Transfer of Players (RSTP).
21.
The requests for relief of the Respondent were as follows: “hold that Claimant is entitled to a
due remuneration only in the amount of USD 20’500 (TWENTY THOUSAND FIVE HUNDRED
USD) devoid of any default interest”.
c.
Rejoinder of the Claimant
22.
The player reiterated his position and outlined that the club had 45 days before the pandemic
started to pay the sign-on fee of USD 10,000, which it did not do. The player further outlined
that the club also never paid his salaries.
23.
Lastly, the player explained that he left Iraq since he had no choice due to the expiry of his visa
and the fact that he spent two and a half months without any response from the club despite
his numerous attempts to speak with the club’s manager.
d.
Final comments of the Respondent
24.
The Respondent argued that in its rejoinder the Claimant did not raise any new legal or factual
argument, and therefore referred the DRC to its statement of defence.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
25.
Competence and applicable legal framework
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 22 June 2020 and submitted for decision on
24 November 2020. Taking into account the wording of art. 21 of the June 2020 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
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Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules
is applicable to the matter at hand.
26.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (edition October 2020), 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 Montenegrin player and an Iraqi club. The
competence of the DRC is in any case not contested by the parties.
27.
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 (edition October 2020), and considering that
the present claim was lodged on 22 June 2020, the June 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b.
Burden of proof
28.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12
par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the
parties.
29.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of
the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to
the application of the Regulations, any documentation or evidence generated by or contained
in TMS.
c.
30.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the DRC
entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
DRC 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
31.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the player’s claim pertains to outstanding remuneration only, and
that, absent a correct default notice on file awarding the club 10 days to cure its alleged
contractual breach, the claim does not meet the criteria of art 12bis of the Regulations.
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32.
In continuation, the DRC proceeded to examine the position of the parties, and noted that the
following amounts are not disputed:
a. USD 10,000 as sign-on fee;
b. USD 7,000 as salary of February 2020;
c. USD 3,500 as half the salary of March 2020.
33.
In continuation, the DRC focused on the amounts disputed by the parties, and wished to
highlight that it was well-aware of the circumstances regarding the COVID-19 pandemic.
34.
In this context, the Chamber wished to highlight that FIFA issued a set of guidelines, the COVID19 Guidelines, which aim at providing appropriate guidance and recommendations to member
associations and their stakeholders, to both mitigate the consequences of disruptions caused
by COVID-19 and ensure that any response is harmonised in the common interest. Moreover,
on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ,
which provides clarifications on the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
35.
The DRC also wished to refer to the fact that said guidelines – as per the explicit wording of
FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only applicable to
“unilateral variations to existing employment agreements”. Therefore, except where a
termination of a contract occurred following a unilateral variation made as a result of COVID19 (in which case the validity of the variation must first be assessed under the guidelines), said
guidelines do not apply to assess unilateral terminations of existing employment agreements.
The Chamber further noted that for the assessment of disputes that are presented before the
FIFA judicial bodies concerning the unilateral termination of a contract, the FIFA Regulations as
well as the established jurisprudence of the Chamber shall apply.
36.
In the case at hand, the DRC concluded that there was neither a unilateral variation of the
contract, nor an explicit termination of the contract by either of the parties. Consequently, the
DRC confirmed that said Guidelines and FAQ shall not apply, only the FIFA Regulations as well
as the established jurisprudence of the Chamber.
37.
For the sake of completeness and in any event, the DRC wished to point out that the mere
referral by the Respondent to the alleged article 43 i) of the Iraqi Labour Code and without
further detailing how the pandemic would, under Iraqi law, constitute force majeure, would in
any case, i.e. even if Iraqi law would need to be considered as per the COVID-19 Guidelines,
quod non, not serve as a basis to justify the club’s failure to pay the player’s remuneration.
38.
Having so found, the Chamber subsequently took due note of the Respondent’s argument that
because the local league was cancelled on 15 March 2020, and on the grounds of clause 13 of
the contract, the player was not entitled to any remuneration due after such date.
39.
In this respect, the DRC observed the contents of said clause 13, and confirmed that its clear
wording pertained to the possibility by the club to “cancel” the contract if the local league
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finished before 31 May 2020. Accordingly, and without entering into the question of whether
such clause can be considered valid, the Chamber held that since the club did not invoke clause
13 to “cancel” the contractual relationship during the term of the contract, the contract was
never prematurely terminated and the Respondent’s argumentation therefore cannot be
followed. It suffices therefore that the clause in question cannot apply to the matter at hand.
The pertinent contractual relationship expired ordinarily on 31 May 2020 as per the terms of
the contract.
40.
Consequently, the Chamber found that the reasons brought forward by the Respondent cannot
justify the non-payment of the player’s remuneration. He is hence entitled to his salaries of
March, April and May in full.
41.
For the sake of good order, the DRC finally rejected the club’s allegation that, following the
outbreak of the pandemic and the cancellation of the league, the player had agreed and
accepted that his due remuneration would be limited to the sign-on bonus, the salary of
February 2020 and half the salary of March 2020. In the Chamber’s view, the evidence provided
pertains to respective negotiations, but it does not show that an agreement was ultimately
found on this basis.
42.
Finally, the DRC noted the player’s claim for travel expenses, and decided to reject it on the
grounds of lack of contractual entitlement to such amounts.
43.
Based on the foregoing and giving due consideration to the principle of pacta sunt servanda,
the DRC decided to award the total amount of USD 38,000 as outstanding remuneration to the
player, comprising his salaries between February and May 2020, i.e. USD 28,000, as well as the
sign-on fee of USD 10,000. Furthermore, as per the longstanding practice of the Dispute
Resolution Chamber coupled with the player’s specific requests for relief, the DRC decided that
interest of 5% p.a. shall apply on the aforementioned amount as from 1 June 2020 until the
date of effective payment. In fact, in absence of a different agreement, wages due under an
employment contract become due at the end of each month and at the latest upon expiry of
the contract, without the need of an additional default notice.
ii. Compliance with monetary decisions
44.
Finally, the Chamber referred to par. 1 and 2 of art. 24bis 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.
45.
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 and for the maximum duration
of three entire and consecutive registration periods.
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46.
Therefore, bearing in mind the above, the DRC decided that, in the event that the club does
not pay the amounts due to the player within 45 days as from the moment in which the player
communicates the relevant bank details to the club, provided that the decision is final and
binding, a ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall become effective
on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.
47.
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. 3 of
the Regulations.
48.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
d.
Costs
49.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance of
contractual stability as well as international employment related disputes between a club and a
player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
50.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4
of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
2.
The claim of the Claimant, DARKO MARKOVIC, is partially accepted.
The Respondent, ERBIL SC, has to pay to the Claimant the following amount:
- USD 38,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until the
date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA
languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant bank
details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7.
The decision is rendered free of costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 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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