Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 3 October 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
S téphane Burchkalter (France), member
Jérôm e Perlem uter (France), member
on the claim presented by the player,
Lov ro Medic, Croatia,
represented by Mr Davor Radic
as Claimant
against the club,
Boav is ta FC, Portugal,
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 1 July 2016, the Croatian player Lovro Medic (hereinafter; the Claimant) and
the Portuguese club, Boavista FC (hereinafter; the Respondent) (hereinafter
jointly referred to as the parties) signed an employment contract (hereinafter:
first contract) valid as from 1 July 2016 until 30 June 2019, as well as an alleged
“addendum” to said contract (hereinafter: annex).
2.
In accordance with the first contract and its annex, the Respondent undertook
to pay to the Claimant the following:
i. EUR 7,150, as a monthly salary payable each 15th day of the month in
accordance with the contract;
ii. EUR 350, as housing benefits in accordance with the annex.
3.
On 26 January 2017, the Respondent signed a statement declaring that “For dual
effects, it declared that, despite the [first contract] concluded with [the
Respondent], being terminated, [the Claimant] will continue to receive a
monthly salary until 15 June 2017.”
4.
On 1 July 2017, the parties signed a second employment contract (hereinafter:
second contract) valid as from as from 1 July 2017 until 30 June 2019 according
to which the Respondent undertook to pay the Claimant EUR 7,150 as a monthly
salary, payable each 15th day of the month.
5.
By correspondence dated 26 January 2018, the Claimant put the Respondent in
default of payment of EUR 67,250, corresponding to outstanding salaries and
housing benefits as from February 2017 until March 2018 in accordance with the
first contract, the annex and the second contract, setting a 10 days’ time limit in
order to remedy the default.
6.
On 6 March 2018, the Claimant unilaterally terminated the second contract.
7.
On 23 March 2019, the Claimant lodged a claim against the Respondent in front
of FIFA requesting, as outstanding payments and compensation for breach of
contract, the following monies :
a. EUR 83,002 as outstanding payments composed of:
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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i. EUR 27,300 as the salaries from February to May 2017;
ii. EUR 51,433.87 as the salaries from August 2017 to March 2018
composed of :
- EUR 7,150 as seven monthly salary from August 2017 to February
2018;
- EUR 1,383.87 as the salary for March 2018.
iii. EUR 4,267.74 as 13 monthly housing benefits.
b. EUR 96,816.13 as compensation for breach of contract equal to the residual
value of the contract.
The player also requested interests at a rate of 5% p.a. on both amounts as of
the respective due dates.
8.
In his claim, the Claimant explained that the Respondent did not fulfil all its
financial obligations in accordance with both contracts and the annex which had
as a direct consequence the termination of the second contract.
9.
Moreover, the Claimant added that after the termination of the first contract,
he got loaned to a Portuguese club in the third league, after which, he started
the sporting season 2017-2018 with the Respondent, until its termination, by
training and being registered with the second team of the Respondent instead
of the first team, thus, “notwithstanding the [Claimant]’s objection and
demands that he be allowed to train and play with the rest of the team.”
10.
As a consequence, the Claimant deemed that such behaviour from the
Respondent justified as well the termination of the contract.
11.
In reply to the claim, the Respondent alleged that it had appealed to a
Portuguese judicial proceeding in order to recover economically and financially.
In support of its allegations, the Respondent provided with the “Portuguese
Court decision accepting the appeal to this Special Revitalization Plan”, dated
22 May 2018. Therefore, according to the Respondent, “all debt payment actions
are immediately suspended”. The Respondent did not provide comments as to
the substance.
12.
Finally, the Claimant informed FIFA that, on 22 August 2018, he was registered
as an amateur player with the Croatian club NK Zagreb until today.
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, it took note that the present matter was submitted to FIFA on 23
March 2019. Consequently, the DRC concluded that the 2018 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber, (hereinafter: the Procedural Rules), is applicable to the
matter at hand (cf. art. 21 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 2 and 3 of the
Procedural Rules and confirmed 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 of October 2019), the Dispute Resolution Chamber is competent
to deal with the present matter, which concerns an employment-related dispute
with an international dimension between a Croatian player and a Portuguese
club.
3.
Furthermore, the Chamber analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the
matter. In this respect, the Chamber confirmed that in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition of
October 2019) and considering that the present claim was lodged in front of
FIFA on 23 March 2019, the June 2018 edition of the Regulations on the Status
and Transfer of Players (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
4.
At this point, the DRC took note that the Respondent requested FIFA to suspend
the current proceedings, alleging that, in view of its financial difficulties, it had
resorted to the “revitalization plan” in order to recover economically and
financially, and, as a consequence, said proceedings having been accepted by
“the Portuguese Court”, “all debt payment actions are immediately
suspended”.
5.
In this respect, the members of the DRC first wished to stress that when deciding
a dispute before the DRC, FIFA’s regulations prevail over any national law
chosen by the parties. In this regard, the Chamber emphasized that the main
objective of the different FIFA Regulations is to create a standard set of rules to
which all the actors within the football community are subject to and can rely
on. This objective would not be achievable if the DRC would have to apply the
national law of a specific party on every dispute brought to it. Therefore, the
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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Chamber deemed that it is not appropriate to apply the principles of a particular
national law to a dispute brought before it but rather the Regulations on the
Status and Transfer of Players, general principles of law and, where existing, the
Chamber’s well-established jurisprudence.
6.
With respect to the request put forward on behalf of the Respondent to suspend
the proceedings in which the Respondent is involved due to the ongoing
“revitalization plan”, the Chamber stressed that in accordance with the
jurisprudence of both the DRC and the Court of Arbitration for Sport,
bankruptcy/insolvency procedures do not affect procedures in front of the DRC.
In fact, the Chamber wished to outline that it is only requested to address the
recognition of the Claimant’s claim and not the execution of a possible debt.
What is more, the members of the Chamber noted that according to the
correspondence received on 7 March 2019 from the Federação Portuguesa de
Futbol (FPF), the Respondent remains affiliated to the FPF and is participating
in the FPF competitions. Consequently, the Chamber decided that there is no
reason to suspend the proceedings and that such request has to be dismissed
and the claim of the Claimant considered as admissible.
7.
The competence of the Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect,
the Chamber started by acknowledging the above-mentioned facts as well as
the documentation contained in the 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.
8.
Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well as the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
9.
In this respect and first of all, the members of the Chamber acknowledged that,
on 1 July 2016, the Claimant and the Respondent had concluded an employment
contract valid as from 1 July 2016 until 30 June 2019 as well as an alleged annex
to the contract, which provided the following monies :
i. EUR 7,150, as a monthly salary payable each 15th day of the month in
accordance with the contract;
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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ii. EUR 350, as housing benefits in accordance with the annex.
10.
Moreover, the Chamber observed that on 26 January 2017, despite the first
contract being terminated, the Respondent undertook to continue paying a
salary amounting to EUR 7,150 until 15 June 2017. In continuation, the DRC also
acknowledged the signature of the second contract on 1 July 2017, valid as from
the date of its signature until 30 June 2017 and providing a monthly payment
of EUR 7,150, payable each 15th of the month.
11.
Within the above in mind, the Chamber observed that the Claimant held that
he had been temporarily loaned to a club of a lower league as from January
2017 until July 2017 and, subsequently, that he had been registered with the
second team of the Respondent until termination, albeit his various requests to
reintegrate the first team. In addition, the DRC took note as well that, according
to the Claimant, despite having put the Respondent in default of payment for a
considerable amount, i.e. EUR 67,250, the Respondent did not react.
12.
The Chamber further acknowledged that according to the Claimant, he had just
cause to unilaterally terminate the contract on 6 March 2018, due to the fact
that the Respondent failed to remit his salaries and housing benefits due as of
February 2017 until March 2018 in spite of having been put in default of
payment, as well as to the Respondent’s behavior towards him.
13.
On account of the above, the Chamber highlighted that the underlying issue in
this dispute was to determine as to whether the contract had been terminated
by the Claimant with just cause and, subsequently, to determine the
consequences thereof.
14.
Having said that, the Chamber held that, on the date of termination of the
contract by the Claimant, i.e. 6 March 2018, the Respondent had allegedly failed
to pay the Claimant’s remuneration and housing benefits due as from February
2017, i.e. approximately 13 monthly salaries and housing benefits. In addition,
the Chamber held as well that the Respondent also allegedly sent the Claimant
to its second team after having him loaned to a third division club, which can be
considered as an abusive behavior.
15.
Furthermore, the DRC noted that the Respondent had been given the
opportunity to reply to the claim submitted by the Claimant, but that the
Respondent had failed to present its response as to the substance in this respect,
referring only as to its request to suspend the current proceedings. In this way,
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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the DRC deemed that the Claimant’s allegations as to the substance remained
undisputed and therefore, that the Respondent accepted said allegations.
16.
On account of the preceding consideration, the Chamber stated that the
Respondent had seriously neglected its contractual obligations towards the
Claimant. Therefore, the Chamber concluded that the Respondent was found to
be in breach of the contract and that, in line with the Chamber’s longstanding
and well-established jurisprudence the breach was of such seriousness that the
Claimant had just cause to unilaterally terminate the employment contract with
the Respondent on 6 March 2018. Consequently, the Chamber decided that the
Respondent is to be held liable for the early termination of the contract with
just cause by the Claimant.
17.
In continuation, prior to establishing the consequences of the termination of
the contract with just cause by the Claimant, the Chamber decided that the
Respondent must fulfil its obligations as per the contract in accordance with the
general legal principle of “pacta sunt servanda”.
18.
On account of the aforementioned considerations, the DRC established that the
Respondent is liable to pay to the Claimant outstanding remuneration, in
particular, as agreed upon the first contract, its annex and the second contract.
19.
In this respect, the DRC held that the Respondent failed to pay the Claimant EUR
27,300 as the salaries from February to May 2017, EUR 50,050 as the salaries from
August 2017 to February 2018 and EUR 1,383.87 as the salary for March 2018,
each due on the 15th of each month. In addition, the DRC decided that the
Respondent is obliged to pay as well EUR 4,268.13 corresponding to the housing
benefits, from February 2017 until termination. Consequently, the DRC
concluded that, in accordance with the general legal principle of “pacta sunt
servanda”, the Respondent is liable to pay the Claimant the total amount of EUR
83,002.
20.
In continuation and with regard to the Claimant's request for interest, the DRC
decided that the Claimant is entitled to receive interest at the rate of 5% p.a.
on the outstanding partial amounts as follows:
i.
ii.
iii.
iv.
v.
as from 16 June 2017 on the amount of EUR 27,300;
as from 16 September 2017 on the amount of EUR 7,150;
as from 16 October 2017 on the amount of EUR 7,150;
as from 16 November 2017 on the amount of EUR 7,150;
as from 16 December 2017 on the amount of EUR 7,150;
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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vi.
vii.
viii.
ix.
x.
as from 16 January 2018 on the amount of EUR 7,150;
as from 16 February 2018 on the amount of EUR 7,150;
as from 16 March 2018 on the amount of EUR 7,150;
as from 16 April 2018 on the amount of EUR 1,383.87;
as from 16 January 2018 on the amount of EUR 4,268.13.
21.
Having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the
Chamber further decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to the aforementioned
outstanding remuneration.
22.
In this context, the Chamber outlined that in accordance with said provision 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 Claimant 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.
23.
In application of the relevant provision, the Chamber held that it first of all had
to clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation
payable by the contractual parties in the event of breach of contract. In this
regard, the Chamber established that no such compensation clause was included
in the contract at the basis of the matter at stake.
24.
As a consequence, the members of the Chamber determined that the amount
of compensation payable by the Respondent to the Claimant had to be assessed
in application of the other parameters set out in art. 17 par. 1 of the Regulations.
The Chamber recalled that said provision provides for a non-exhaustive
enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable. Therefore, other objective criteria may be
taken into account at the discretion of the deciding body.
25.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant under the existing contract and/or the
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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new contract, which criterion was considered by the Chamber to be essential.
The members of the Chamber deemed it important to emphasise that the
wording of art. 17 par. 1 of the Regulations allows the Chamber to take into
account both the existing contract and the new contract in the calculation of
the amount of compensation.
26.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment
contract as from its termination and concluded that the Claimant would have
received EUR 96,816.13 as remuneration had the employment relationship been
executed until its regular expiry date of 30 June 2019, i.e. the monthly salaries
and housing benefits as from 7 March 2018 until 30 June 2019. Consequently,
the Chamber concluded that the amount of EUR 96,816.13 serves as the basis
for the final determination of the amount of compensation for breach of
contract in the case at hand.
27.
In continuation, the Chamber assessed as to whether the Claimant has signed
an employment contract with another club during the relevant period of time,
by means of which he would have been able to reduce his loss of income.
According to the constant practice of the DRC, such remuneration under a new
employment contract(s) 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.
28.
The Chamber recalled that, after termination of the contract, the Claimant was
not able to mitigate his damages, as he concluded an employment contract as
an amateur.
29.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 96,816.13 to the Claimant as compensation for breach
of contract.
30.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount
of compensation as of the date on which the claim was lodged, i.e. 23 March
2019, until the date of effective payment.
31.
The DRC concluded its deliberations in the present matter by establishing that
any further claims lodged by the Claimant are rejected.
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Lovro Medic, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Boavista FC, has to pay to the Claimant, w ithin 30 day s as
from the date of notification of this decision, outstanding remuneration in the
amount of EUR 83,002, plus interest at the rate of 5% p.a. until the date of
effective payment, as follows :
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
xviii.
xix.
xx.
as from 16 June 2017 on the amount of EUR 27,300;
as from 16 September 2017 on the amount of EUR 7,150;
as from 16 October 2017 on the amount of EUR 7,150;
as from 16 November 2017 on the amount of EUR 7,150;
as from 16 December 2017 on the amount of EUR 7,150;
as from 16 January 2018 on the amount of EUR 7,150;
as from 16 February 2018 on the amount of EUR 7,150;
as from 16 March 2018 on the amount of EUR 7,150;
as from 16 April 2018 on the amount of EUR 1,383.87;
as from 16 January 2018 on the amount of EUR 4,268.13.
4.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date
of notification of this decision, compensation for breach of contract in the
amount of UER 96,816.13, plus interest at the rate of 5% p.a. until the date of
effective payment as of 23 March 2019.
5.
In the event that the amounts plus interest due to the Claimant in accordance
with the above-mentioned numbers 3. and 4. are not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
6.
Any further claim lodged by the Claimant is rejected.
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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7.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
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or the DRC. Where such decisions contain confidential information, FIFA may decide,
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the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber).
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). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision
and shall contain all the elements in accordance with point 2 of the directives issued
by the CAS. Within another 10 days following the expiry of the time limit for filing
the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Lovro Medic, Croatia / Club Boavista FC, Portugal
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