Labour Disputes
Texto da decisão
REF FPSD-4981
Decision of the
Dispute Resolution Chamber
passed on 05 May 2022
regarding an employment-related dispute concerning the player Branco
Mihajlovic
COMPOSITION:
DE WEGER, Frans (the Netherlands), Chairperson
AWAD ALTHEBITY, Khalid (Saudi Arabia), Member
TIMERA, Khadija (Senegal), Member
CLAIMANT:
Club Diosgyor Futball Club KFT, Hungary
Represented by Szilárd Dányi
RESPONDENT:
Branco Mihajlovic, Serbia
Represented by Mirko Poledica
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I.
Facts of the case
1.
On 14 August 2018, the Hungarian club, Diosgyor Futball Club KFT (hereinafter: the club or
the Claimant) and the Serbian player, Mr Branco Mihajlovic (hereinafter: the player or the
Respondent) entered into an employment contract valid as from the date of signature until
30 June 2020 (hereinafter: the employment contract).
2.
On 2 February 2020, the club and the player concluded a termination agreement of the
employment contract (hereinafter: the termination agreement).
3.
In accordance with clause 4 of the termination agreement, the club undertook to pay the
player the total amount of HUF 2,699,000 by no later than 20 February 2020.
4.
Furthermore, clause 8 of the termination agreement read as follows:
“Both [the club] and [the player] expressly state that they have understood this
agreement and it contains their true intensions, and Parties made their statements and
representations freely from any influence, upon their free will. [The club] and [the
player] both state that they have settled all the respective issues between them
regarding the employment and the termination. Based on that [the player] and [the
club] shall have no further claims except those described in this Agreement.
[The club] states that in case [the player] completely fulfils his obligations set out in this
Agreement [the club] shall not submit any further claims in future at court or at any
other authority, and he herewith definitively waives such rights to any claims.
At the same time, [the player] also states that in case [the club] completely fulfils his
obligations set out in this Agreement [the player] shall not submit any further claims in
future at court or at any other authority, and he herewith definitively waives such rights
to any claims”.
5.
Finally, clauses 9 and 10 of the termination agreement established the following:
“9. Should any disputes arise between the Parties in relation to this Agreement, Parties
shall settle such issues by way of negotiation, in an amicable manner.
10. Regarding issues not stipulated herein, the provisions of the Hungarian Civil Code
shall apply.”
6.
On 19 February 2020, the club paid HUF 2,699,000 to the player (hereinafter: the first
payment).
7.
On 13 March 2020, the club paid another HUF 2,699,000 to the player (hereinafter: the
second payment).
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8.
In accordance with the club, on 15 February, 9 April, 14 April and 20 April 2021, a club
representative and the player exchanged messages via the electronic application WhatsApp.
Accordingly, the club’s representative requested the player to return it the amount of HUF
2,699,000 and the parties discussed the payment schedule. The player disputes the validity
of the messages.
9.
On 6 July 2021, the player supposedly requested more time to deliver the payment.
10. Subsequently, on 12 August 2021, the club’s representative reiterated his request for the
player to perform the payment, in verbis “Ok please try to start the transfer at least 25% now
and the others later and later”. The player, on the other hand, informed that he did not have
the money at that moment, and claimed that the mistake was attributable to the club. At the
end, he wrote as follows: “if is problem tell (sic) tham to go to the court”.
11. The club furthermore filed WhatsApp messages allegedly exchanged between the player and
the club’s representative in August, September, October, and November 2021.
II. Proceedings before FIFA
12. On 30 January 2022, the club filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the club
13. In its claim, the club informed that “due to an administrative error” the amount mentioned
in the termination agreement was transferred to the player twice. Consequently, the club
referred to the Hungarian Law (cf. clause 10 of the termination agreement) and argued that
the player should be liable to return the balance of the payment.
14. What is more, the club added that the player was already aware of his obligation but failed
to comply with the order – as per the WhatsApp messages exchanged between the parties.
15. Based on the foregoing, the club requested to be awarded “HUF 2,699,000 and its annual
default interest of 5% calculated until the date of repayment”.
b. Reply of the player
16. In his reply, the player challenged FIFA’s competence to hear the dispute. Accordingly, he
referred to articles 9 and 10 of the termination agreement and pointed out that “by invoking
the Hungarian Labour Code, the Claimant clearly refers the resolution of this dispute to the
ordinary court and therefore FIFA cannot be competent under the circumstances, which is a
well-known FIFA practice”.
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17. Additionally, the player considered that at the time the second payment was performed (i.e.
13 March 2020), the obligations set out in the termination agreement had already been
settled and “there was no employment relationship on any grounds between the Claimant
and the Respondent”.
18. Based on the above, the player concluded that FIFA has no jurisdiction over the case at stake.
19. As to the substance, the player referred to clause 8 of the termination agreement and stated
that with the payment performed by the club on 19 February 2020 “all mutual obligations
and claims on any grounds ceased and […] both parties expressly waived the conduct of any
litigation after the fulfilment of mutual obligations and termination of the contract by
consent”.
20. In this context, the player acknowledged receipt of the payment performed by the club on
13 March 2020 but argued that “it represents a separate legal affair between the parties”. In
this respect, the player is of the opinion that the club’s argumentation is “frivolous and
fabricated”, as well as that “it is possible to make a mistake only in theory, whereas in
practice, such a possibility does not exist”.
21. In continuation, the player referred to article 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and stressed that he had never been contacted by the club prior to
the claim. In particular, he claimed to be “unaware” of any WhatsApp messages exchanged
between the parties, hence that “this kind of fabricated evidence must be rejected”.
Moreover, the player highlighted that the first message allegedly sent by the club was dated
more than one year after the second payment “which implies that this claim was filed in bad
faith”.
22. Lastly and alternatively, the player held that the club’s claim should be rejected.
c. Rejoinder of the club
23. In its rejoinder, the club opposed the player’s argumentation as to the lack of competence
and jurisdiction of FIFA. In particular, the club pointed out that the dispute is employmentrelated with international dimension, therefore falls within the scope of art. 22 of the FIFA
RSTP.
24. As to the substance, the club reiterated its allegations that the second payment was made by
mistake to the player, and the receipt was not disputed. In this respect, it maintained that
“there were no other agreements made between the two parties but the one enclosed to the
Claim of the Claimant” – allegedly confirmed by the fact that the player did not submit any
evidence on the contrary.
25. What is more, the club recalled that – conversely the player’s argumentation – the parties
exchanged several messages regarding the debt. The club provided a written statement of its
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representative in support of its allegations, as well as pointed out that the player did not
advance any “counter-evidence” to justify his position.
26. Finally, the club argued that the player was the one acting in bad faith and echoed its claim
for reimbursement and its prayers for relief.
d. Final comments of the player
27. In his final comments, the player reiterated its allegations as to the lack of jurisdiction of FIFA
as per his reply.
28. As to the substance, the player alleged that the club failed to meet its burden of proof in
connection with: (i) the existence of a separate verbal agreement between the parties capable
of justifying the payment of HUF 2,699,000; and (ii) the validity of the WhatsApp messages
supposedly exchanged between the parties i.e. the identity of the club’s representative and
contact information of the player.
29. What is more, the player referred to the Hungarian Law and claimed that the request for
reimbursement should have been made within 60 days after the payment – which was not
done.
30. In light of the foregoing, the player repeated that the club’s claim should be entirely rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. 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 30 January 2022 and submitted for decision
on 05 May 2022. 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.
32. 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 par 1. lit. b)
of the Regulations on the Status and Transfer of Players (March 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
Hungarian club and a Serbian player.
33. The Chamber noted however that the Respondent contested the competence of FIFA’s
deciding bodies based on the following allegations:
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a.
In accordance with clause 10 of the termination agreement, any dispute between the
parties should be referred to the Hungarian Courts; and
b.
At the time the relevant payment was made by the club to the player, there was no longer
an employment relationship between the parties (i.e. not employment-related for the
sake of the FIFA RSTP).
34. In this context, the Chamber initially emphasised that in accordance with art. 22, par. 1 caput
and 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 state courts in any relevant jurisdiction.
35. In this context, DRC pointed out that it should first analyse whether the contracts at the basis
of the present dispute contained a clear and exclusive jurisdiction clause in favour of the
Hungarian Courts.
36. In this respect, the Chamber referred to clauses 9 and 10 of the termination agreement. In
doing so, the DRC acknowledged that said clauses do not make any clear reference to the
Hungarian Courts. In particular, the DRC determined that clause 9 refers to dispute resolution
in a general manner and neither specifically nor exclusively establishes jurisdiction in favour
of the Hungarian Courts. What is more, the Chamber underlined that clause 10 of the
termination agreement is not a jurisdiction clause, rather establishes a choice of law.
37. In light of the above and having in mind its longstanding jurisprudence, the DRC decided that
there is no clear and exclusive contractual clause in favor of the Hungarian Courts, hence that
the player’s first objection to FIFA’s jurisdiction had to be rejected. For the sake of
completeness, the Chamber highlighted that the same conclusion was reached in in CAS
2020/A/7605, also involving a Hungarian club.
38. Having established the above, the DRC moved to the analysis of the second argument raised
by the player: the employment-related nature of the dispute at hand.
39. To this end, the Chamber recalled the conclusion reached in CAS 2019/A/6312 - Ailton José
Almeida v. Al Jazira Football Sports Company & FIFA, to which it adheres:
“Article 22(b) FIFA RSTP applies not only to employment disputes between a club and
a player in the narrow meaning of the term, which would refer only to disputes arising
exclusively out of an employment agreement, but it also covers disputes between
clubs and players that are related to the employment in general. As a matter of
fact, employment relations are wider than employment agreements and may cover
areas that are not referred to in the written employment contract. Therefore, the notion
of "employment-related disputes", as clearly stipulated in this relevant article of the FIFA
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RSTP, includes by all means a much wider range of disputes than just disputes arising
over employment agreements. Consequently, the scope of Article 22 FIFA RSTP
includes also disputes that may arise after the termination of the employment
relationship and are "employment related" [...]. Pursuant to this approach, CAS
jurisprudence requires the arbitral tribunal to consider the overall nature of the
dispute, in light of the circumstances of the employment relationship, for the
sake of establishing whether the dispute is related with the employment
relationship (cf. CAS 2015/A/3923)” (emphasis added).
40. Based on the abovementioned considerations and contrary to the argumentation brought
forward by the player, the DRC did not see any reason to derogate FIFA’s competence to hear
the case sub judice due to the fact that it constitutes an employment-related dispute (in
general) of an international dimension between a Serbian player and a Hungarian club related
to the termination of an employment relationship previously maintained by them.
41. Consequently, the members of the Chamber unanimously concluded that this case falls
within the competence ratione materiae of art. 22, par. 1, lit. b) of the FIFA Regulations on
the Status and Transfer of Players. As such, the DRC is competent to hear the dispute.
42. Lastly, 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 Players (March 2022 edition), and considering that
the present claim was lodged on 30 January 2022, the August 2021 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
43. 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
44. 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.
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i. Main legal discussion and considerations
45. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that the case at hand pertains to a claim for reimbursement of the amount of
HUF 2,699,000, corresponding to a payment undisputedly made by the club to the player on
13 March 2020.
46. In accordance with the club, the payment mentioned in the termination agreement was made
twice, due to an administrative mistake. On the other hand, the player held that: (i) the sum
transferred by the club was connected to other legal affairs between the parties, hence was
not made “by mistake”; (ii) the amount had never been claimed by the club prior to this claim
and the evidence provided in this regard is false; and (iii) clause 8 of the termination
agreement unequivocally established that the parties did not have any residual obligation
towards each other.
47. Against this background and by referring to the clear wording of art. 13, par. 5 of the
Procedural Rules, the Chamber determined that it was up to the player to prove that the
“separate verbal agreement” or “legal affairs” on the basis of which he claims to be entitled
to the second payment indeed existed.
48. On this note, the DRC carefully analysed the documentation advanced by the parties and
confirmed that, despite the player’s allegations in this regard, they have never drafted nor
concluded a written contract (other than the employment contract and the termination
agreement). What is more, the Chamber observed that the player did not advance any
documentary evidence in support of his position, hence failing to meet his burden of proof.
Consequently, the DRC was firm to determine that his argumentation on this matter shall be
rejected.
49. The foregoing having been established, the DRC moved to the analysis of the second issue:
the communication between the parties. In this respect, the members of the Chamber
concurred with the player’s position according to which the club did not undoubtedly
demonstrate that the WhatsApp messages were validly exchanged between the parties – for
example with proofs of delivery and confirmation of contact information. Nevertheless, the
Chamber was not convinced either that the player was not aware of the debt. In particular,
the DRC noted that the content of such messages matches the timeline of the case, as well
as it includes personal information of the player, such as the documentation involving his new
club. Furthermore, the DRC was also observant that the player, on the other hand, did not
specifically challenge any of the events.
50. In parallel, the Chamber also deemed that even if the player had not been properly notified
by the club, said circumstance would not constitute an acceptance of the player’s entitlement
taking into consideration that the club sought relief before FIFA within the deadline stipulated
in art. 23, par. 5 of the Regulations. Furthermore, the DRC was also of the opinion that the
content of clause 8 of the termination agreement is not sufficient per se to justify the player’s
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entitlement to the second payment as it refers to a general discharge of obligations for both
of the parties and, accordingly, the player would not be entitled either to any additional
amount rather than the first payment.
51. In addition to the above, the Chamber underlined that with regards to the Hungarian law, its
long-standing jurisprudence denotes that the FIFA regulations prevail over another national
law chosen by the parties. In line with this reasoning, the objective of the Regulations on the
Status and Transfer of Players, and the FIFA regulations in general, is to create a standard
regulatory framework to which all actors within the football community are subject to and
can trust. This approach has been confirmed in multiple occasion by the Court of Arbitration
for Sport, for instance, in case CAS 4471. In addition, the DRC remarked that no copy of the
pertinent national law was provided by either of the parties (cf. art. 13, par. 5 of the
Procedural Rules).
52. By way of conclusion and taking all the above into consideration, the DRC decided that the
player could not establish to a comfortable satisfaction degree that the second payment was
due or, at least, that it did not constitute an administrative oversight. Therefore, the Chamber
concurred that allowing the player to retain the second payment would amount to unjust
enrichment, as per the solid jurisprudence of the Football Tribunal.
53. Therefore, the Chamber determined that the club should be entitled to the reimbursement
sought. In addition, taking into consideration the club’s request as well as the constant
practice of the DRC in this regard, the latter decided to award the club interest at the rate of
5% p.a. on the outstanding amounts as from the day after the date of payment (i.e. 14 March
2020) until the date of effective payment.
ii. Compliance with monetary decisions
54. Finally, the Chamber referred to par. 1 and 2 of art. 24 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.
55. 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 and for the maximum duration of six months.
56. Therefore, bearing in mind the above, the DRC decided that, in the event that the player does
not pay the amounts due to the club within 45 days as from the moment in which the club
communicates its relevant bank details, provided that the decision is final and binding, a
restriction on playing in official matches, for the maximum duration of six months shall
become effective on the player in accordance with art. 24 par. 2 and 4 of the Regulations.
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57. The player shall make full payment (including all applicable interest) to the bank account
provided by the club in the Bank Account Registration Form, which is attached to the present
decision.
58. The DRC recalled that the above-mentioned restrictions will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24 par. 3
of the Regulations.
d. Costs
59. 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.
60. 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.
61. 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, Diosgyor Futball Club KFT, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Branco Mihajlovic, has to pay to the Claimant, the following amount:
- HUF 2,699,000 as outstanding remuneration plus 5% interest p.a. as from 14 March 2020
until the date of effective payment.
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 restricted 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.
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.
8.
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.
9.
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).
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