DRC - Preliminary Decisions
Texto da decisão
REF FPSD-14552
Decision of the
Dispute Resolution Chamber
passed on 22 May 2024
regarding an employment-related dispute concerning
the player Marko Milovanovic
BY:
Frans de Weger (The Netherlands), Chairperson
CLAIMANT:
Marko Milovanovic, Serbia
Represented by David Sanz Garcia
RESPONDENT:
FK Partizan, Serbia
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I. Facts of the case
1.
On 27 April 2021, the Serbian minor player Marko Milovanovic (hereinafter: the Claimant or
the Player), assisted by his father, and the Serbian club FK Partizan (hereinafter: the Respondent
or the Club), affiliated to the Serbian Football Federation (FSS) concluded an employment
contract (hereinafter: the contract), valid as from 1 May 2021 until 30 June 2025.
2.
The Player was born on 4 August 2003 and therefore was 17 years old by the time he signed
the contract.
3.
Under article 3.1. of the contract, the Respondent undertook to pay the Claimant a monthly
remuneration of RSD 37,436.14 net, payable no later than the 30th day of the following month.
4.
In addition, article 3.2. of the contract set forth that the Respondent should pay a signing-fee
to the Claimant of EUR 150,000 net, payable in RSD according to the average exchange rate of
the Serbian National Bank at the payment date. The Respondent undertook to pay this
signing-fee in monthly consecutive instalments of EUR 3,000 net from May 2021 to June 2025,
payable no later than the 30th day of the following month.
5.
The same article of the contract also had a provision regarding a possible future transfer of
the player that reads as follows (freely translated to English):
“The contracting parties agree that in the event of a transfer of the player Marko Milovanovic
from FK Partizan to any other national or foreign club, the player Marko Milovanovic shall
be entitled to the net amount of the 20% (with letters: twenty percent) of the total net value
of such transfer, including here the training compensation, after deducting: the solidarity
contribution as defined in article 21 of the FIFA Regulations on the Status and Transfer of
Players, the intermediation fee, which may not exceed the maximum commission
established by the Football Association of Serbia regulations in force at the time of the
transfer, and minus 3% of the transfer price as compensation provided for in Article 72 of
the FSS Regulations on the registration, status and transfer of players.”
6.
Finally, article 13.5. of the contract had a jurisdiction clause that reads as follows (freely
translated to English):
“In case of dispute, the contracting parties agree to submit to the decisions of the Arbitral
Tribunal of the FSS. The club and the player undertake not to resolve disputes arising from
this contract before ordinary courts and tribunals.”
7.
On 7 July 2022, the Player, the Club, and the club Union Deportiva Almeria S.A.D. concluded a
transfer agreement, by which the latter acquired the federative and economic rights of the
Claimant in exchange for the amount of EUR 3,500,000 plus variable payments. Due to this
transfer agreement, the contract was terminated.
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8.
On 7 September 2022, the Respondent paid the Claimant the amount of RSD 7,275,638, which,
at the date of the payment, was equivalent to EUR 62,017.53.
9.
By correspondence dated 11 January 2024, the Claimant put the Respondent in default for
the payment of overdue remuneration. In such notice, the Claimant formally requested for
the payment of EUR 36,000 within a time limit of 10 days.
II. Proceedings before FIFA
10. On 3 May 2024, the Player lodged a claim before FIFA against the Club. In his claim, he argued
that the Respondent committed several breaches of the contract.
11. In light of the above, he requested to be awarded with the following amounts:
a) RSD 158,395 net as outstanding monthly remuneration, corresponding to the periods
from March 2022 until 7 July 2022.
b) EUR 24,000 net as outstanding monthly instalments of the signing-fee, corresponding to
the periods from April 2022 until June 2022. Regarding this claimed amount, the Claimant
argued that on 2 March 2022 the contract was novated, and the Respondent undertook
to increase the amount of the monthly instalments of the signing-fee from EUR 3,000 net
to EUR 8,000 net, payable from March 2022 until 30 June 2025. It is to be noted that the
Claimant stated he is not in possession of said document.
c)
EUR 637,982.47 net as outstanding transfer share.
12. The Player furthermore claimed to be entitled to 5% interest p.a. over the abovementioned
amounts as from the respective due dates until the date of effective payment.
13. Likewise, the Claimant requested the Dispute Resolution Chamber (DRC) to declare his right
to perceive the net 20% of any other amount that the Respondent receives according to the
transfer agreement and asked for sporting sanctions to be imposed on the club.
14. As to the jurisdiction, and although acknowledging that both parties share the same
nationality, the Claimant argued that the DRC is competent to hear the dispute based on the
following aspects:
a) The jurisdiction clause set forth in article 13.5. of the contract does not exclude FIFA’s
jurisdiction, but only excludes the ordinary courts’ jurisdiction;
b) The Arbitral Tribunal of the FSS referred to in article 13.5. of the contract is inactive and
inoperative since January 2024 and it has only 2 members at the time of lodging the claim,
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which does not permit to solve any dispute. In any case, this arbitral tribunal does not
comply with FIFA requirements to be considered as an independent arbitral tribunal, since
there is no guarantee of independence and impartiality and the principle of equal
representation between employers and employees is not respected;
c) The international dimension requirement is complied, due to the special circumstances of
the case: (i) currently, the player is registered in a club affiliated to a different member
association than the Respondent, (ii) the employment contract was terminated due to an
international transfer, (iii) a relevant part of the amount claimed is consequence of the
transfer agreement, and (iv) since there is no arbitral tribunal within the FSS that complies
with the principles and objectives established by FIFA, FIFA is obligated to act as a
guarantor of those principles and objectives.
15. Finally, the Player stated that, in case of declining competence, FIFA would incur in a denial of
justice, since he cannot lodge a claim to any other national or international body.
16. On 15 May 2024, the FIFA general secretariat informed the Claimant that the claim raised a
preliminary procedural matter. Therefore, the case was referred directly to the Chairperson
of the DRC for an expedited decision.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Chairperson of the DRC (hereinafter: the Chairperson) analysed whether he was
competent to deal with the case at hand.
18. In this respect, he took note that the present matter was presented to FIFA on 3 May 2024
and submitted for a preliminary decision on 15 May 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.
19. The Chairperson confirmed that, in accordance with art. 19 par. 1 and 2 of the Procedural
Rules, he is competent to decide, in an expedited manner, whether the case at stake is
affected by any preliminary procedural matter (i.e. if the Football Tribunal obviously does not
have jurisdiction or if the claim is obviously time-barred). Likewise, the Chairperson
highlighted that, in case the claim is not affected by any preliminary procedural matters, the
FIFA general secretariat would be ordered to continue the procedure (cf. art. 19 par. 3 of the
Procedural Rules).
20. Subsequently, the Chairperson 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
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the Status and Transfer of Players – RSTP (February 2024 edition), the DRC is competent to
hear employment-related disputes between a club and a player of an international dimension.
The wording of the article in question clearly implies that the first condition that needs to be
compulsorily fulfilled in order for FIFA to be competent to hear an employment -relat ed
dispute between a club and a player is that said dispute has an international dimension.
21. In particular, the Chairperson noted that the present dispute does not appear to have an
international dimension, since the claim at hand is a contractual dispute between a Serbian
player and a Serbian club. This fact is confirmed by the Player in his statement of claim.
22. In this sense, the Chairperson first highlighted that, regarding to the competence of FIFA in
general, the Commentary on the RSTP (2023 edition, p. 444) states:
“First and foremost, FIFA’s jurisdiction is focused on disputes with an international
dimension. As a fundamental principle, an international element is required for any dispute
to fall within FIFA’s jurisdiction. Article 22 then provides an exhaustive list of the types of
disputes FIFA is competent to hear. It is important to emphasise that the scope of FIFA’s
jurisdiction is not open to the parties’ discretion; it derives from the FIFA Statutes and
regulations, and not from private agreements between parties.”
23. Additionally, the Chairperson noted that, according to the well-established jurisprudence of
the DRC, this means that FIFA is only competent to hear an employment -related dispute
between a player and a club when the parties have different nationalities. Without this, the
international element of the dispute is not fulfilled.
24. Taking the above into consideration, and since it is evident that the parties at stake share the
same nationality as both the Claimant and the Respondent are from Serbia, which as
highlighted before has also been acknowledged by the Claimant, the Chairperson concluded
that the relevant dispute must be considered a purely national matter.
25. Although the foregoing would already suffice to deny jurisdiction, for the sake of
completeness the Chairperson also addressed the arguments of the Claimant.
26. In this sense, the Chairperson emphasised that, whether in this case the clause established in
article 13.5 excludes or not FIFA’s jurisdiction, or if the arbitral tribunal chosen by the parties
is inactive or not, is not relevant to determine FIFA’s competence. Those elements, even if they
were as stated by the Claimant, do not imply that the Football Tribunal is competent in that
FIFA can only hear disputes that fall within the scope of art. 22 of the RSTP and the fact that a
national dispute resolution body is allegedly not operative cannot overcome this definition.
Indeed, the fact that the parties have chosen a national dispute resolution mechanism is
further evidence that the dispute does not enjoy international status.
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27. Additionally, and contrary to the Claimant’s statement, the Chairperson did not consider that
in the case at stake the international dimension requirement is fulfilled due to the special
circumstances. Neither of all arguments mentioned by the Claimant can change the fact that
the parties share the same nationality, which - the Chairperson insisted - is the key element to
be analysed as the international dimension is related to the national status of the parties and
thus to the competence of FIFA.
28. The Chairperson further pointed out that the Commentary on the RSTP (2023 edition, p.
444/445) also indicates that:
“In other words, contrary to standards that may apply under international private laws, it
is not the domicile of the player that is decisive, but only their nationality. This conclusion is
in line with CAS case law, which holds that “…the international dimension is related to the
national status of the parties and not to the national status of the dispute”. In a 2016 award,
CAS considered that a dispute between a player and a club should generally be assumed to
have an international dimension within the meaning of the Regulations, unless the parties
share the same nationality. (…) In summary, a dispute between a player and a club is
deemed to be international whenever the player and the club are of different nationalities .
If the player holds dual nationality, the dispute will be deemed to have an international
dimension if the player is registered by their club under their “foreign” nationality (e.g. a
Brazilian/Italian player playing for a Brazilian club is registered to play as an Italian). This
is because players registered as locals as a result of their “shared” nationality with the club
cannot be deemed to be international players.”
29. Finally, the Chairperson wanted to remark that declining competence in this case is not a
denial of justice, since the claim does not fall within the scope of FIFA’s jurisdiction and is not
possible for FIFA to hear national disputes. The alleged impossibility of the Claimant to lodge
a claim before any other national or international body is not a reason for FIFA to contravene
the RSTP and the Football Tribunal’s well-established jurisprudence and assume competence
in a case where there is a lack of international dimension. Simply put, FIFA cannot assume in
lieu the jurisdiction of a national body for a national dispute simply because the parties,
willingly or not, have chosen national fora which apparently is no longer operative.
30. In view of the aforementioned considerations, the Chairperson concluded that the present
claim lacks international dimension. As such, the Football Tribunal does not have jurisdiction
to hear the claim of the Claimant.
b.
Costs
31. The Chairperson 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 Chairperson decided that no procedural costs were to be
imposed on the Claimant.
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IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Marko
Milovanovic.
2. 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).
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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