Labour Disputes
Texto da decisão
REF. FPSD-6799
Decision of the
Dispute Resolution Chamber
passed on 8 March 2023
regarding an employment-related dispute concerning
the player MIHAILO MILUTINOVIC
BY:
Frans de Weger (the Netherlands), Chairperson
Andre Megale dos Santos (Brazil), member
Khadija Timera (Senegal), member
CLAIMANT:
Mihailo Milutinovic, Serbia
Represented by Tijana Zivkovic
RESPONDENT:
FC Samtredia, Georgia
Represented by Martynas Kalvelis
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REF. FPSD-6799
I. Facts of the case
1.
On 14 February 2021, the Serbian player Mihailo Milutinovic (hereinafter: Claimant or
player) and the Georgian club FC Samtredia (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as the said date until 30 November 2021.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of USD 1,000 net and one ticket for a roundabout flight.
3.
Furthermore, pursuant to clause 4.2 of the contract, “both parties have an option to cancel
the contract, without compensation in June 2021”.
4.
Lastly, clause 12 of the contract established that:
“(12.1) ...If the Player, while implementing his official duties receives trauma, which will not
enable him to implement the obligations undertaken due to the Agreement, the latter will be
liable to undergo medical control with the physician assigned by the Club. As such control is
carried out with the demand of the Club, the expenses of such control shall be paid by the
same Club.
(12.2) If the medical control of the Player confirms that has received trauma during
implementation of the official duties and he requires treatment or rehabilitation, the Club
undertakes the liability to pay full treatment or rehabilitation expenses for the Player”.
5.
On 18 March 2021, during a training session, the Claimant got injured to his toe and was
transferred to a local hospital in Georgia for the relevant medical exams.
6.
Having the local doctor ascertained the injury of the Claimant, the latter underwent an
operation in Georgia on 19 March 2021.
7.
Contextually, on the same date and before the operation had taken place, the Claimant
requested authorization from the Respondent to fly to Serbia in order to proceed with the
post-operatory rehabilitation in Belgrade.
8.
On 5 May 2021, while staying in Serbia, the Claimant was diagnosticated an infection of the
injured toe by a local doctor, thus he informed the Respondent accordingly.
9.
On the same date, the Respondent sent a letter to the Claimant requesting his return to
Georgia, which was originally scheduled on 28 April, and requested the Claimant to refrain
from undergoing further manipulations and exams without the previous consent of the
Respondent’s doctor.
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10. Accordingly, the Respondent requested the Claimant to come back to Georgia by no later
than 10 May 2021 in order to be re-examined by the Respondent’s doctor in Georgia and
so as to undergo a further operation if necessary.
11. Having remained in Serbia, on 11 May 2021 the Claimant underwent a further surgery in
Belgrade, at his own expenses.
12. Afterwards, on a non-specified date between the abovementioned operation and 19 May
2021, the Claimant’s attorney sent a letter to the Respondent, informing the latter that he
would have not been able to come back to Georgia because of his precarious medical
conditions and the relevant doctor’s prescriptions.
13. On 19 May 2021, the Respondent acknowledged receipt of the Claimant’s attorney’s letter
and requested to be informed about the return date of the Claimant, as failure to do so
would entitle the Respondent to terminate the Contract with cause.
14. Later, on 9 June 2021, the Respondent notified the Claimant the unilateral termination of
the Contract, namely activating the clause 4.2 of the contract. Contextually, the Respondent
also remarked that misconduct held by the Claimant by not informing his club about the
date of return to Georgia in spite of the two warning letters sent on 5 and 19 May 2021.
15. After the termination, the Claimant remained unemployed until date.
II. Proceedings before FIFA
16. On 22 July 2022, 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
17. According to the Claimant, the Respondent failed to comply with its contractual obligations,
namely regarding the medical assistance and care to be guaranteed to players.
18. In particular, the Claimant argued that the Respondent (i) chose a cheaper doctor in
Georgia to save money, (ii) failed to provide the Claimant with the necessary medications
after the first operation in Georgia and (iii) did not reimburse any of the expenses incurred
by the Claimant for his medical treatment in Serbia.
19. Furthermore, the Claimant objected to the Respondent’s unilateral termination of the
Contract on 9 June 2021 as having occurred without just cause, namely because the injury
and the poor sporting performance of players cannot be adopted by clubs as grounds for
terminating the relevant employment relationships prematurely.
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20. Accordingly, the Claimant demanded to be compensated for the premature termination.
21. Moreover, the Claimant held that because of the injury aggravated by the negligence of the
Respondent, he will never be able to play football anymore, hence the Respondent shall
compensate the entire loss of potential profit regarding the Claimant’s career.
22. Furthermore, the Claimant held that the Respondent’s misconduct also affected the
Claimant’s mental health, causing disorders and stress for which he should be
compensated.
23. In conclusion, the Claimant presented the following requests for relief:
“- EUR 4,000 as reimbursement of medical expenses
- USD 100,000 as compensation for loss of profit (ending career)
- EUR 1,000,000 as moral damages and no less than EUR 500,000”.
b. Position of the Respondent
24. In its reply, the Respondent argued having terminated the contract within the terms
stipulated by the parties under the relevant clause 4.2.
25. In this respect, the Respondent rebut the thesis held by the Claimant according to which
the termination would have occurred because of the latter’s injury, namely as the
aforementioned contractual provision had been expressly indicated by the Respondent at
the moment of the termination.
26. Conversely, the Respondent sustained having promptly assisted the Claimant as from the
moment of his injury and having showed care about his conditions, even when he was in
Serbia, thus the Respondent cannot be held liable for the negligence of third party, i.e., the
physician.
27. Accordingly, the Respondent was of the opinion that no violations of art. 12 of the contract
occurred and that the Claimant cannot demand any reimbursement because he failed to
provide evidence of the medical expenses allegedly incurred.
c.
Claimant’s rejoinder
28. In his rejoinder, the Claimant insisted on the fact that without the Respondent’s negligent
conduct, he would have not been obliged to undergo a new surgery and likely he would
have not ended his career permanently.
29. In this respect, the Claimant sustained having been always in touch with the Respondent
in order to inform the latter about his health conditions whereas the latter kept pressuring
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him to move back to Georgia in spite of being already aware of the precarious situation of
the Claimant.
30. Accordingly, the Claimant insisted on the claim in its entirety.
d. Respondent’s final comments
31. In its conclusive submission, the Respondent underlined that the Claimant failed to dispute
several points from the Respondent’s reply to the claim, namely:
“The Claimant did not provide any arguments or objection as to the position of the
Respondent that the Claimant had failed to prove his request for compensation on medical
costs, including repeated failure of the Respondent to provide any evidence whatsoever
proving alleged ‘medical and other costs’;
The Claimant opted not to challenge the facts provided by the Respondent showing that the
Club acted properly to ensure the immediate access to medical treatment following injury
of the Player;
The Claimant did not provide any objection on the fact that the Claimant had failed to apply
physician 5 (five) weeks following the alleged appearance of signs of toe infection what
could have caused escalation of Player’s injury;
The Claimant did not provide any objection to Respondent’s position that the Club cannot
be legally required to be liable for acts of a professional physician;”
32. Accordingly, in the Respondent’s view, it remains unclear what exactly caused the alleged
termination of the Claimant’s footballing career, namely because of the inconclusive and
low evidentiary power of medical reports submitted by the latter in support of his claim.
33. Therefore, the Respondent insisted on its request to reject the claim in its entirety.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
34. 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 July 2022 and submitted for
decision on 8 March 2023. Taking into account the wording of art. 34 of the October 2022
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
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Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
35. 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 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), 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 player from Serbia
and a club from Georgia.
36. 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 Players (October 2022 edition), and
considering that the present claim was lodged on 22 July 2022, the July 2022 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
37. 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
38. 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.
i. Main legal discussion and considerations
39. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Claimant accused the Respondent of having
caused the premature ending of the Claimant’s career by negligently acting in violation of
its contractual duties of care, and also terminated the contract without just cause.
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40. In particular, the Chamber noted that the Claimant alleged having been denied proper
medical assistance by the Respondent, thus violating the latter’s obligations established
under clause 12 of the contract.
41. Conversely, the Chamber observed that in the Respondent’s view, the Claimant would have
completely failed to corroborate his allegations regarding the lack of care by the
Respondent and the consequent nexus between the Claimant’s career ending and the
Respondent’s conduct.
42. In this context, the Chamber wished to emphasized that in the case at hand the Claimant
bore the burden of proving the existence of a nexus between the Claimant’s alleged injury
and the Respondent’s conduct.
43. In particular, the Chamber remarked that it appears clear according to the contractual
provision invoked by the Claimant, that the Respondent simply undertook the duty of
reimbursing the medical expenses incurred by the Claimant in case of suffering a potential
trauma during his professional services as well as the respective rehabilitation or
hospitalization costs.
44. In this regard, the Chamber noted that, while the Respondent has effectively submitted
evidence of having covered the costs of the operations undergone by the Claimant as well
as the following treatments (such as the medicines), on the contrary the Claimant failed to
sustain his burden of proof with regard to all the medical expenses allegedly incurred in
Serbia, namely as no payment receipts nor invoices have been provided by the latter in this
respect.
45. Moreover, from the documentation submitted it appears that the Respondent had
authorized the Claimant’s flight to Serbia, while the latter had expressly communicated his
decision of covering the rehabilitation costs with his own money and to fly to Belgrade
regardless of the outcome of the surgery.
46. Accordingly, the Chamber concluded that the Claimant could not prove based on decisive
and persuasive evidence that he had effectively incurred in further expenses that should
have been reimbursed by the Respondent.
47. In continuation, the Chamber noted that the parties strongly disputed whether the
Respondent had just cause to terminate the Contract with the Claimant on 9 June 2022,
namely as in the Claimant’s view, said termination would have occurred due to the
precarious medical conditions of the Claimant.
48. In this respect, the Chamber observed that the Respondent limited its objections to the
fact of having merely exercised a right stipulated under the contract.
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49. In particular, the Chamber took note of the Respondent’s argument – disputed by the
Claimant –, according to which it was allowed to unilaterally terminate the contract in line
with clause 4.2 of the contract, which stipulates the following: “both parties have an option
to cancel the contract, without compensation in June 2021”.
50. At this point and before analysing the validity of the aforementioned clause, the Chamber
was eager to emphasise that, in accordance with its well-established jurisprudence, only a
breach or misconduct which is of a certain severity justifies the termination of a contract.
In other words, only when there are objective criteria which do not reasonably permit to
expect the continuation of the employment relationship between the parties, a contract
may be terminated prematurely. Hence, if there are more lenient measures which can be
taken in order to ensure the fulfilment of the contractual duties by the counterparty, such
measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
51. Furthermore, the Chamber recalled in line with its long-standing jurisprudence, that a
player’s unsatisfactory performance or injury cannot be a valid reason for an employer to
cease paying due salaries or terminate an employment contract, as this is a purely
unilateral and subjective evaluation by the club.
52. Subsequently, the Chamber referred to its jurisprudence related to potestative clauses, i.e.,
clauses dependent on an event which can only be triggered by one of the contractual
parties and upon the latter’s wish. Such potestative clauses can in general not be applied,
as they limit the rights of the contractual counterparty in an excessive manner and lead to
an unjustified disadvantage of the latter.
53. Bearing in mind the foregoing and analysing the particular circumstances of the present
case, the Chamber concluded that clause 4.2 of the contract is of a clearly potestative
nature as it leaves the decision of terminating the employment contract at the sole
discretion of the club, if for example the same club assesses the medical conditions of the
player as unsatisfactory.
54. In spite of the fact that the aforementioned clause is included in a valid employment
contract voluntarily signed by both parties, the Chamber acknowledges the usual
imbalance in the bargaining power of the employer and of the employee and therefore
decided that such clause has a clearly abusive nature and shall not have any legal effect in
the relevant employment relationship.
55. On account of all the above considerations, the Chamber established that the Respondent
had unlawfully terminated the employment contract with the Claimant and should be held
liable for such breach.
ii. Consequences
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56. Having stated the above, the Chamber 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.
57. In application of the relevant provision, the Chamber 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
58. As a consequence, the members of the Chamber 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 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.
59. Bearing in mind the foregoing as well as the claim of the player, the Chamber 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 Chamber
concluded that the amount of EUR 6,000 (i.e. the residual value of the contract) serves as
the basis for the determination of the amount of compensation for breach of contract.
60. In continuation, the Chamber 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.
61. In this regard, the Chamber ascertained that the player remained unemployed as from the
date of the termination, hence he failed to mitigate the suffered damage.
62. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 6,000 to the player (i.e., the residual value of the contract), which was to be
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considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
63. The Chamber additionally noted that no interest has been requested by the Claimant, and
therefore none was awarded in line with the principle ne ultra petita.
iii. Compliance with monetary decisions
64. Finally, taking into account the applicable Regulations, the Chamber 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.
65. 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. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
66. Therefore, bearing in mind the above, the DRC 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.
67. 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.
68. 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. 24 par. 8 of
the Regulations.
d. Costs
69. 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.
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70. 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.
71. 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, Mihailo Milutinovic, is partially accepted.
2.
The Respondent, FC Samtredia, must pay to the Claimant the following amount(s):
EUR 6,000 as compensation for breach of contract without just cause.
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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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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