Labour Disputes
Texto da decisão
REF FPSD-4720
Decision of the
Dispute Resolution Chamber
passed on 13 October 2022
regarding an employment-related dispute concerning the player Besar
Musolli
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Stefano SARTORI (Italy), member
Laurel VAURASI (Fiji), member
CLAIMANT:
FK Kukesi, Albania
Represented by Nebot & Páez Abogados
FIRST RESPONDENT:
Besar Musolli, Kosovo & Albania
Represented by Dino Osmanovic
SECOND RESPONDENT:
SC Gjilani, Kosovo
Represented by Dino Osmanovic
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I. Facts of the case
1.
On 23 August 2018, the Albanian club, FK Kukesi (hereinafter: the club or the Claimant) and
the Albanian/Kosovar player, Besar Musolli (hereinafter: the player or the First Respondent)
concluded an employment contract (hereinafter: the contract) valid for two football
seasons, i.e. season 2018/2019 and 2019/2020.
2.
The contract makes no reference to the player’s nationality but mentions that he is bearer
of passport no. BJ282116. It stands undisputed between the parties that the player holds
both the nationality of Albania and Kosovo.
3.
Under clause 2 of the contract, the parties agreed that the player would be entitled to ALL
40,000 per month as salary, payable by the 10th day of the following month.
4.
Clause 3 ii) of the contract reads as follows:
“The player acknowledges and understands that he will continue to play with the same
terms even in the case of season term extension from AFF and/or qualification of the club
in Europe’s cups or Champions League. In this case the contract’s terms are automatically
extended in case where the player is not present in the club to participate in Europe’s Cubs
or Champions League, the player declares that he shall pay the club up to 50 000 euros
within 30 days from the date of the written or verbal request from the club and for every
day of delay, the player declares that he shell pay a penalty of 0.5% of the total amount.
the player declares that if he does not make the payment, this means that AFF, UEFA and
FIFA will not allow the player to be transferred to other teams, domestic or foreign”.
5.
Clause 16 of the contract reads as follows:
“i) If in the last 7 days of the month, before the termination term of this contract neither of
the parties to this contract is expressed in writing against extension of the term for this
contract, the parties acknowledge that this contract shall automatically entered into force
for two other years with the same conditions. Price shall be determined by the club. The
parties declare that the entire notifications made before or after the seven days as above
defined are invalid.
(…)
iv) the club has the right to terminate the contract at any time without financial, legal or
moral obligations to the player in case the letter has violated the rules of the club and/or
is not efficient in official matches. if the player terminates the contract unilateral before
the deadline, he will pay the club a penalty of EUR 150,000 to EUR 300,000, within 30
(thirty) days. The player admits that for each date of late payment, he will pay to the club
a late interest of 0.5% of the unsettled value. the player declares that he agrees that if he
does not pay within 30 days from the date that [the club] has made the request in writing,
verbally or electronically to the e-mail address of the player, personally to the player or
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AFF, this will make a condition for the competent authority of AFF, UEFA and FIFA to not
allow the player to be active in other domestic or foreign clubs without first making the
payment.”
6.
Clause 18 of the contract reads as follows:
“If in the last 7 days of the month, before the termination term of this contract neither of
the parties to this contract is expressed in writing against extension of the term for this
contract, the parties acknowledge that this contract shall automatically entered into force
for two other years with the same conditions. Price shall be determined by the club. The
parties declare that the entire notifications made before or after the seven days as above
defined are invalid.”
7.
In accordance with the information available in the Transfer Matching System (TMS), as
well as that provided at the request of FIFA by the Albanian Football Association (AFA), the
player was registered as a citizen of Kosovo with the club. His first registration dates back
to 26 July 2012 and has not been amended since with respect to his nationality.
8.
According to TMS, the seasons 2019/2020 and 2020/2021 in Albania respectively ran from
1 July 2019 to 30 June 2020 and from 1 July 2020 to 30 June 2021.
9.
On 29 July 2020, the last match of the season 2019/2020 was supposedly played by the
club. The player took part in such match. In its submissions, the club explained that “While
[the Claimant] played official matches corresponding to the 2019/2020 well into the first
month of the 2020/2021 season –the last one was staged on 29 July 2020– [EXHIBIT 5], the
player continued to be part of [the Claimant] beyond that date”.
10. On 27 August 2020, the player played in a preliminary round of the UEFA Europa League
for the club against Slavia Sofia.
11. On 31 August 2020, the player wrote to the club and stated based on clauses 16 and 18
of the contract that he did not wish to continue rendering services to the club.
Contextually, he confirmed that the parties’ relationship would end in accordance with
clause 3 of the contract.
12. On 16 September 2020, the club made a payment of EUR 4,000 to the player with
reference “first salary of the 2020/2021 season”.
13. On 17 September 2020, the player played in a preliminary round of the UEFA Europa
League for the club against Wolfsburg. The match sheet on file shows he was indicated as
captain of the team.
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14. On 18 September 2020, the Kosovar club, Gjilani SC (hereinafter: the Second Respondent)
wrote to the Claimant and requested his “TPO declaration” in order to register him since
they had “reached an agreement”.
15. On the same date, the player sent a farewell message in a group chat of the electronic
messaging application WhatsApp, supposedly addressed to his teammates.
16. On 19 September 2020, the Claimant wrote to the player and the Second Respondent
(hereinafter jointly referred to as the Respondents) and while referring to the contract,
argued that the player had not sent any notification within the 7-day deadline established
therein, and that therefore the contract had been extended for 2 seasons. The club
furthermore argued that the player had continued to play with the club after the season
2019/2020 ended. On such basis, the club argued that the player had breached the
contract and requested inter alia (a) that he resumed his duties with the Claimant; and (b)
that the Respondents ceased any negotiations.
ITC issuance
17. On the same date, the Second Respondent entered an instruction in TMS to register the
player.
18. On 22 September 2022, the AFA delivered the International Transfer Certificate (ITC) to
the Kosovo Football Federation (KFF). The player was consequently registered with the
Second Respondent. The player and the Second Respondent concluded a contract with
the following conditions:
a. Term: from 18 September 2020 to 30 June 2021
b. Player’s basic salary: EUR 1,416.
Claim at national level
19. On 21 September 2020, the Claimant filed a claim against both Respondents before the
National Dispute Resolution Chamber of the AFA (hereinafter: NDRC of Albania), seeking
compensation for breach of contract of EUR 150,000 and the joint liability of the Second
Respondent, as well as sporting sanctions on the player.
20. On 1 April 2021, the AFA, on behalf of the NDRC of Albania, wrote to the Claimant in the
context of the cited proceedings and stated inter alia as follows: “it turns out that the issue,
due to the involvement of non-member parties of the Albanian Football Federation, does not
fall within the competence of the [NDRC of Albania] in accordance with the provisions of article
1.1 of the [NDRC of Albania’s] regulation.”
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II. Proceedings before FIFA
21. On 3 January 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
22. Following two rounds of submissions, the position of the Claimant can be summarized as
follows.
Competence
23. The club argues that the player is both a citizen of Kosovo and Albania and confirms that
he signed the contract as Albanian citizen. The club however highlighted that the player
was registered as Kosovar by the AFA.
24. At the same time, the club is off the opinion that the FIFA Dispute Resolution Chamber
(DRC) should retain jurisdiction on the basis of article 22 lit. a) of the FIFA Regulations on
the Status and Transfer of Players (RSTP) since there was an ITC request related to the
player’s transfer to the Second Respondent. On this note, the Claimant clarified that the
AFA ignored its obligation under Annexe 3 of the RSTP, in particular article 8 par. 2 and 3,
that is, to refer the issuance of the ITC to the Claimant, who because of the contractual
dispute with the player wished to reject it.
25. The club furthermore submitted that AFA’s failure to act in accordance with the RSTP
cannot be read to the Claimant’s detriment and ascertained that FIFA should retain
jurisdiction.
Substance
26. According to the Claimant, the contract was automatically extended in accordance with
clauses 16 and 18, and the player had committed himself to the club for a further two
years as evidenced by his participation in the opening games and preparation for the
2020/2021 season.
27. Likewise, despite the player’s unsuccessful attempt to prevent the contract renewal by
serving it with a non-renewal notice on 31 August 2020, the parties supposedly agree on
the player’s payment for the following two seasons, amounting to EUR 4,000 as evidenced
by the receipt signed by the player and presented on file, dated 16 September 2020.
28. Despite this circumstance, the club maintained that the player left the club after signing
a contract with the Second Respondent. The Claimant claims that despite serving the
player with a default notice, he ignored the former’s request to resume his duties.
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29. The club claims that after delivering a warning to both Respondents in this regard, the
player disregarded its numerous pleas and went on to register with the Second
Respondent. The club submitted that such conducts is unacceptable because the Second
Respondent was made aware that the player was still under contract, which amounts to
a violation of the RSTP.
30. The club contends that two sets of circumstances led to a breach of contract: (a) the
player’s abandonment of employment as a result of his failure to return to work after
being requested to do so; and (b) the player’s subsequent transfer to the Second
Respondent. In the club’s opinion, these violations added up to an early termination of
the (extended) contract without just cause, entitled the Claimant to sue the player for
damages under clause 16 item iii) of the contract.
31. Regarding the automatic contractual extension, the club argues that it is sufficiently clear
and set a final deadline for the parties to reject it on the last day of the penultimate month
of the two-season term, which is especially relevant in this situation because the AFA did
not alter the start and end dates of the 2019/2020 season.
32. The club cautions against the player’s attempt to mislead the DRC by interpreting the
conditional, automatic extension clause 3 item ii) of the contract as it believes that in
accordance with FIFA’s jurisprudence, the parties’ can control their contractual
responsibilities in the event of a season extension and the postponement of official
competition matches over the season’s end, as it was the case in the 2019–2020 season
due to the COVID-19 pandemic.
33. According to the club, even if the term of the contract cannot be extended by way of the
automatic renewal, the player’s engagement with the Claimant at the beginning of the
season 2020/2021 (thus after the initial period of the contract had expired) constitutes
confirmation of the parties’ agreement to prolong the contract.
34. The club furthermore argued that because the player did not provide notice in
accordance with Clauses 16.i) and 18, second paragraph, of the contract, it must be
assumed that he wanted to extend the contract for an additional two seasons, through
the conclusion of the 2021–2022 season, based on his inaction. The Claimant further
stated that there is no doubt that the player would have made this claim if the club had
attempted to end the contract early after having permitted the contract to be renewed by
failing to give notice.
35. In conclusion, the club argues that the player was bound by an extended valid contract
when he failed to return to work on 29 September 2020, following his approved absence,
either for the 2020–2021 and 2021–2022 seasons, in accordance with the automatic
renewal, or for the 2020–2021 season. As a result, the player’s unauthorized departure
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from the workplace and his subsequent signature of a contract with the Second
Respondent must be viewed as an early termination of the contract by the player without
justification.
36. The club also claims that it regrettably failed to qualify for any UEFA club competitions, in
large part because a number of players prematurely ended their contracts without
justification at the conclusion of the 2019-2020 or the start of the 2020-2021 seasons. It
continues by stating that the obvious financial repercussions of its failure to advance
further in national competitions and to qualify for the UEFA club competitions include the
loss of monetary compensation, economic prizes, as well as the inability to generate any
income through participation in those competitions.
37. The club requested the following relief:
“to admit the present claim against Mr. Besar Musolli and SC Gjilani;
2. to declare the validity of Clauses 16.i) and 18, second paragraph, of the Employment
Contract, and, accordingly, the renewal of the Employment Contract by an additional two
seasons (2020/2021 and 2021/2022);
3. in the alternative to 2, to declare the validity of Clause 3.ii) of the Employment Contract,
and, accordingly, the renewal of the Employment Contract by an additional season
(2020/2021);
4. in the alternative to 3, to declare that Mr. Besar Musolli’s continued participation with
Futboll Klub Kukësi SH.A, in training sessions as well as in friendly and official matches, until
17 September 2020, i.e. well into the 2020/2021 season, must amount to Besar Musolli’s
agreement to the extension of the Employment Contract for at least the 2020/2021 season,
in accordance with Article 18(2) under the RSTP: “The minimum length of a contract shall be
from its effective date until the end of the season, (…)”;
5. to declare that Mr. Besar Musolli’s failure to continue providing his services as a
professional football player to Futboll Klub Kukësi SH.A beyond 18 September 2020, and his
subsequent signing of a contract with SC Gjilani on or around 22 September 2020 constitute
an abandonment of work amounting to an early termination of the Employment Contract
by Mr. Besar Musolli without just cause;
6. to order Mr. Besar Musolli to pay: 6.1. EUR 300,000, or if less, no less than EUR 150,000,
as penalty, in accordance with Clause 16.iv) of the Employment Contract;
6.2. EUR 100,000 as penalty in accordance with Clause 13.viii) of the Employment Contract;
6.3. 0,5% over the amounts indicated in 6.1 per day of late payment from 22 October 2020;
6.4. in the alternative to 6.3, 18% late payment interest per annum over the amounts
indicated in 6.1 from 22 October 2020;
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7. to declare that SC Gjilani is jointly and severally liable for the payment of any monies that
Mr. Besar Musolli is ordered to pay as a result of his early termination without just cause of
the Employment Contract; and
8. to order Mr. Besar Musolli to abide by the undertakings set out in Clause 16.iv) of the
Employment Contract and refrain from registering with any club until full settlement of the
payments due to Futboll Klub Kukësi SH.A in accordance with Clauses 16.iv); or, alternatively,
impose on Mr. Besar Musolli sporting sanctions for breach of contract during the protected
period.”
b. Joint position if the Respondents
38. Following two rounds of submissions, the position of the Respondents, who submitted
joint petitions, can be summarized as follows.
Competence
39. The Respondents have challenged FIFA’s competence to hear the dispute insofar as the
player is Albanian, therefore bearing the same nationality as the Claimant. The
Respondents argue that the contract makes clear reference to the player’s Albanian
passport, which denotes the national dimension of the dispute.
40. With regards to the issuance of the ITC, the Respondents argue that no challenge was
brought against it, therefore entailing that the parties agreed to the player’s transfer.
Accordingly, there being no dispute regarding the issuance of the ITC, article 22 lit. a) RSTP
cannot be triggered and therefore FIFA is not competent to hear the dispute
Substance
41. As to the substance, the Respondents rejects the notion the contract was extended for
two additional seasons. In doing so the Respondents referred to case FPSD-2976 and
argued that the circumstance found therein is remarkably similar to the one in hand. As
such, the Respondents are of the position that the deadline foreseen under clause 16 of
the contract could not be determined as the contractual provisions are vague, uncertain,
and constructed to the detriment of the player.
42. The Respondents submitted that clauses 16 and 18 of the contract provide for an
unilateral extension option and as they allow the parties to extend it without the need of
further consent to lengthen their labour relationship, these clauses have to be
constructed in accordance with the principles of reasonability and proportionality, which
are not met in the case at hand.
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43. The Respondents referred in this respect to the jurisprudence of FIFA and the Court of
Arbitration for Sport (CAS) with regards to unilateral extension options and maintained
that such option included in the contract at stake could not be enforced for it was clearly
unbalanced - more in particular the Respondents argued that they represent an excessive
commitment imposed on the player.
44. Additionally, the Respondents argued that the Claimant never objected to the nonrenewal notice sent by the player, entailing that it tacitly accepted it. As to the supposed
payment of EUR 4,000 made to the player, the Respondents argued that this is not
sufficient evidence to demonstrate that the player had agreed to a contractual extension,
because said evidence does not “fulfill their requirement of objectivity and impartiality”. On
this note, the Respondents are of the opinion that the club failed to discharge its burden
of proof to demonstrate that the player had agreed to a contractual extension.
45. Regarding the penalty clause, the Respondents submitted that such amount is excessive,
set too high and disproportionate to the value of the contract. As a result, they argued
that clause 16 should be declared null and void.
46. As to the penalty under clause 13 vi) of the contract, the Respondents highlighted that
such clause is unclear as to the club’s legal grounds for claiming such amount or why said
clause is relevant in this case. Accordingly, the only possible way the quoted clause could
be applicable is in case of a transfer under a valid contract. Even if such clause was
envisaged as buy-out clause, it is impossible for it to be applied due to the fact that such
a delicate clause should be drafted in a completely transparent way and it should at least
define clear legal consequences for both parties. As this clause is completely unclear, the
Respondents contend it cannot be applied.
47. The Respondents’ petition is that the claim be ruled inadmissible or alternatively rejected,
as follows:
“1. There is no jurisdiction of FIFA pursuant to Article 22 Paragraph 1 (b) of FIFA RSTP in casu,
in terms of the employment-related dispute between a club and a player of an international
dimension, since in casu the Claimant and Respondent 1 are of the same nationality
(Albanian);
2. There is no jurisdiction of FIFA pursuant to Article 22 Paragraph 1 (a) of FIFA RSTP in casu,
as there is no relation between the dispute at stake and the relevant request for the player’s
ITC, as there was no dispute related to such ITC request i.e. there was no request for the
provisional registration of the player, hence, prerequisites of the international dimension in
this case are not satisfied;
aliud;
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3. Employment contract dated 23 August 2018 expired on 31 July 2020 as confirmed in the
TMS by all the parties involved;
4. TMS data indicates no dispute regarding the ITC or of contractual nature existing, as all
the necessary instructions including the expiration of the contract, deregistration date, ITC
request date, ITC receipt date and new registration are confirmed by all relevant parties
including Claimant without any conflict;
5. Claimant expressed no objection to such TMS data nor cancelation request;
6. Europa League matches in dispute are emanating from the original contractual term of
two seasons and from it related obligations, and as such they cannot imply any acceptance
of the extension;
7. Contractual term refers to two domestic seasons while Respondent 1 did not take part in
the new national season 20/21 in Albania, started on 4 November 2020, but decided to
continue his career with Respondent 2;
8. Automatic extension only due to UEFA competitions participation is invalid;
9. Claimant provided no evidence that any amount is paid to the Respondent 1 which would
imply the extension;
10. Fundamental change of circumstances took place due to the influence of the COVID-19
causing the impossibility to honor the contract in any case as the parties had originally
anticipated;
11. Claimant acts in violation of the venire contra factum proprium principle by raising claim
which is contrary in its entirety with the confirmed TMS data;
12. TMS data is credible and true until different is proven while any misuse or false input
would be only in responsibility and to the detriment of the party acting in such a way;
13. Respondent 2 relied with every right on the TMS data and registered actions of the
Claimant and its NA as true and credible and based its further actions on such;
14. Approach of the Respondent 1 and 2 was always highly genuine and diligent;
15. Respondent 1 communicated the non-continuation notice according to his best belief,
definitely with attention of a reasonable person, which manifested the best that it could in
such extraordinary circumstances;
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16. As confirmed in the referenced FIFA decisions, it cannot be overlooked that conditional
nature of the contractual clauses at hand coupled with the uncertainty of the 2019/2020
season due to COVID-19 made it impossible for the Respondent 1 to know when to legally
terminate the contract, as such, it would be potestative and excessively burdensome on the
player to uphold the contractual extension;
17. The nature of the subject contract is highly vague, uncertain, disproportionate and one
sided, contrary to contractual stability, balance, basic rights and labour law, with penalties
stipulated being highly excessive without any justification and basis, requiring application
of Contra Proferentem principle;
18. Clauses 16 and 18 of the subject contract are in particular invalid;
19. Practice of the Claimant is in general coercive, malicious and abusive violating basic
human rights and freedoms;
20. Legal consistency, certainty, fairness, equality, efficiency and credibility in sports must
be protected;
21. Integrity, stability, security and credibility of the whole TMS system and trust of
stakeholders in such must be upheld;
22. Claimant acted in bad faith with premeditation to cause harm and damage to
Respondent 1 and Respondent 2, with such claim being vexatious, disruptive, fabricated as
it undermines and abuses fundamental principles of law;
23. There is no unilateral termination without just cause of the contract and any breach
committed by Respondent 1, and there is no inducement committed by Respondent 2;
24. There is no compensation, penalties and/or any other payments to be paid towards the
Claimant.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
48. 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 3 January 2022 and submitted
for decision on 13 October 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.
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49. 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 RSTP (July 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.
50. However, the DRC took due note of the fact that the jurisdiction has been challenged by
the Respondents on the grounds that the dispute lacks international dimension insofar
as the player signed the contract as a citizen of Albania, therefore bearing the same
nationality as the Claimant.
51. On this note, the DRC underlined that it stood undisputed that the player is a citizen of
both Kosovo and Albania, and that he was registered with the Claimant as a citizen of
Kosovo.
52. Bearing these circumstances in mind, the DRC found it necessary to recall the
jurisprudence of the Football Tribunal according to which the nationality on the
registration of a player is the necessary element to determine whether international
dimension exists in a given dispute. The Chamber noted this is because the ultimate
reflection of the player’s status in the field of play is given by the status of his registration,
determining whether said player is a foreign or a national for footballing reasons.
53. The Chamber furthermore highlighted that the Commentary to the RSTP, edition 2021
states as follows in its page 360:
“This definition has been confirmed in cases involving dual nationality. In particular, CAS
has stated that the most crucial aspect to be borne in mind when considering any ’foreign
element‘ is ’the player’s nationality for the purpose of football’. This approach has also been
confirmed by the Swiss Federal Tribunal. In a 2016 Award, CAS acknowledged that a dispute
between a player and a club should generally be assumed to have an international
dimension according to the Regulations, unless the parties share the same nationality.
This conclusion was further strengthened in a separate case, which stated that ‘…the
international dimension is related to the national status of the parties and not to the
national status of the dispute.’ In the same Award, the Panel went on to note that a clear
distinction had to be made between holding a residence permit in a given country and being
a citizen of the country concerned. Common sense dictates it would be unjustified to
conclude that a case lacked an international dimension because a player was resident in
the country where their club was based. After all, it stands to reason that if a footballer is
registered with a certain club, they are likely to be resident in the country where that club
plays its football.”
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54. Consequently, given the confirmation from the AFA that the player was always register as
Kosovar, the DRC concluded that the fact that he signed a contract as Albanian has no
bearing on the determination of the application of art. 22, par. 1, lit b) of the RSTP. As
such, the Chamber confirmed that the international element is present in the dispute at
hand and that it is competent to entertain the merits under art. 22, par. 1, lit. b) of the
RSTP.
55. For the sake of completeness, the DRC wished to underline that since FIFA is competent
on the basis of the foregoing, there is no need to assess whether any competence arises
from art. 22, par. 1, lit. a) of the RSTP.
56. 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 RSTP (July 2022 edition), and considering that the present claim was lodged
on 3 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
57. 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 TMS.
c. Merits of the dispute
58. 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
59. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether the contract
at the centre of the matter was extended or not, and in the affirmative, whether the player
had breached the contract, as well as the consequences thereto.
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60. In this context, the Chamber moved on to the core issue of the matter, and while doing
so referred to clause 16 of the contract, which states that:
“Unless in the last 7 days of the penultimate month of this contract, any of the parties makes
a written objection to the extension of the contract term, the parties agree on an automatic
extension of the contract for two additional years, under the same conditions (…)”.
61. Equally, the Chamber recalled that clause 18 of the contract follows the same line as the
above:
“If the last 7 days of the penultimate month of the term of this contract neither of the parties
to this contract is expressed in writing against extension of the term for this contract the
parties acknowledge that this contract shall automatically enter into force for two other
years under the same conditions. Price shall be determined by the Club. The parties declare
that the entire notifications made before or after 7-days deadline as above defined are
invalid”.
62. Having the above in mind, the DRC acknowledged that the parties do not dispute the fact
that on 31 August 2020, the player sent a letter to the club informing it of his decision to
not renew the contract, pursuant to its clauses 16 (i) and 18.
63. According to the information in file, the 2019/2020 sporting season in Albania did not end
as planned on 30 June 2020 but continued after that in particular because of the COVID19 pandemic. Taking into account the wording of clauses 16 and 18 of the contract as well
as the information obtained from the contents of the relevant decision rendered by the
Football Tribunal on the matter FPSD-2976, the player was in principle obliged to send his
notice of non-renewal the latest by the end of July (i.e. 7 days before the end of the
season), which took place on 2 August 2020.
64. However, it was also not disputed by the parties that the 2019/2020 season was extended
due to the COVID-19 pandemic. Considering the specific circumstances of the case, the
DRC noted that, in principle, the player would have served his non-extension notice later
than the contractual stipulation.
65. Nonetheless, the DRC highlighted that both clauses 16 and 18 of the contract provide for
a unilateral extension option (even if automatic) insofar as they would allow the parties
to decide, without the need of further consent (other than the one given at the time of
entering into the employment agreement) to lengthen their labor relationship. In
particular, said clauses call for the parties to withdraw their consent, otherwise the
extension of the contract would materialize; the DRC found this to be similar to stating
that they wished for the relationship to continue, only with a different action (i.e. not
objecting).
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66. The DRC jurisprudence teaches that clauses such as the ones at stake must be examined
on a case-by-case basis, considering all factors such as, inter alia, reasonability and
proportionality. Along the same lines, the CAS jurisprudence refers to aspects which also
must be examined carefully, for instance whether the total duration of the contractual
relationship is reasonable and according with the applicable regulations; and whether the
ensuing terms and conditions of employment are fair and adequately reflect the right that
the player has granted to the club without the need of further negotiation. These include,
inter alia, the remuneration of the player during new contract term.
67. By examining these aspects, the extension option would prolong the contract for
additional two years, that is, would double the original the original term of the contract.
At the same time, the player would not receive any raise or additional remuneration with
regards to the following two seasons in case the extension was triggered. This is
particularly relevant, in the Chamber’s view, because the agreement allegedly reached
with the player for his supposed salary raise occurred a posteriori.
68. The DRC found that clauses such as the ones at stake need to be read in a careful manner
and construed in a way which permits both parties to know, beforehand, for how long
they will be bound by one another, and how/when they can exercise their option. Such is
not the case of the contract in the Chamber’s opinion. Given the complexity of the football
industry, the DRC wished to remark that parties must exercise a higher degree of caution
when agreeing clauses which automatically extend contracts.
69. The Chamber did not overlook the fact that the season was extended and even matches
were played after the supposed end date informed by the AFA. The conditional nature of
the clauses at hand coupled with the uncertainty of the 2019/2020 season due to COVID19 made it impossible for the player to know when to legally terminate the contract. As
such, the DRC was of the view that it would be potestative and excessively burdensome
on the player to uphold the contractual extension.
70. Combining these two factors, namely the contents of the clauses pertaining to the
extension option together with the uncertainty regarding the end of the season (and thus
the precise determination of when the window to exercise the option was), the DRC
decided that no breach occurred – which leads to the conclusion that no compensation is
payable to the club.
71. As to the alleged renewal of the contract on the basis of the performance of the parties
and the supposed stay of the player with the club after the end of the 2019/2020 season,
the DRC found that that there is little to any evidence to uphold the club’s position, and
accordingly the club was found to have failed to meet its burden of proof.
72. Moreover, the DRC found it particularly remarkable that the club did not seek the
reimbursement of any amount supposedly paid in connection with the following season.
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Because the Chamber cannot rule ultra petita, no assessment was made on such
reimbursement, but at the same time the Chamber found this in and of itself insufficient
to determine that a (renewed) contractual relationship was established between the
parties.
73. On that note, even if a renewed contract existed, the DRC found unclear under what basis
this was agreed upon - in fact if there was such extension, it would have occurred in a
novatio basis, and never in accordance with the already expired contract. As such, the
Chamber considered that no evidence was advanced on the new contractual basis upon
which the Claimant would be compensated for, in case a breach (quod non) was
established on the player’s side.
74. Accordingly, the DRC decided that the Claimant’s claim, while admissible, should be
entirely rejected.
d. Costs
75. 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.
76. 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.
77. 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, FK Kukesi, is admissible.
2.
The claim of the Claimant is rejected.
3.
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
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