Labour Disputes
Texto da decisão
REF FPSD-5570
Decision of the
Dispute Resolution Chamber
passed on 8 June 2022
regarding an employment-related dispute concerning the player Alen Mustafic
BY:
Daan de Jong (Netherlands), Single Judge of the DRC
CLAIMANT:
Alen Mustafic, Bosnia and Herzegovina
Represented by SPFBiH
RESPONDENT:
FC Nitra, Slovakia
Represented by Tomáš GÁBRIŠ
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REF FPSD-5570
I.
Facts of the case
1.
On 31 July 2020, the player from Bosnia and Herzegovina, Alen Mustafic (hereinafter: Claimant or
player) and the Slovak club, FC Nitra (hereinafter: Respondent or club) concluded an employment
contract (hereinafter: contract) valid as from the date of signature until 30 June 2021.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary of EUR
3,750.
3.
Art. XIII of the contract establishes: ”The Parties undertake to exercise their mutual rights and
obligations under this Contract in accordance with the regulations of the SFZ, UEFA and FIFA. The
Contracting Parties recognize the competence and jurisdiction of the SFZ Chamber for Dispute
Resolution (hereinafter referred to as the “Chamber”) and agree that any disputes arising from
this Contract will be resolved primarily by agreement, and in the event of no agreement being
reached, undertake to submit their dispute for decision of the Chamber according to the
regulations of the SFZ. The Contracting Parties agree that, in the event of the submission of their
dispute to the Chamber for a decision, they shall be subject to the rules of the Chamber.”
II. Proceedings before FIFA
4.
On 24 March 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
5.
In his claim, the Claimant requested payment of the following monies:
- EUR 18,750 as outstanding remuneration, corresponding to his salaries between
February 2021 until June 2021 (5x EUR 3,750) plus 5% interest p.a. as of the due dates;
- EUR 2,500 as legal costs.
6.
The player held that the claimed salaries remained outstanding, even though he put the club in
“repeatedly” in default.
b. Position of the Respondent
7.
In reply to the claim, the Respondent held that, on the basis of Art. XIII of the contract, FIFA is not
competent as the NDRC of the Slovak Football Association was exclusively competent to decide
the matter at hand. According to the Respondent, the NDRC does guarantee a fair trial.
8.
Regarding the outstanding remuneration claimed, the Respondent maintained that it rejected the
claim and denied ever having received any default notice.
9.
The Respondent held that art. 12bis RSTP is therefore not applicable.
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III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
10. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 24 March 2022 and submitted for
decision on 8 June 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.
11. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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), he is, in principle,
competent to deal with the matter at stake, which concerns an employment-related dispute with
an international dimension between a Bosnian player and a Slovak club.
12. The Single Judge further noted that the Respondent contested the competence of FIFA’s deciding
bodies in favour of the National Dispute Resolution Chamber of the Slovak Football Association
(hereinafter: the NDRC of Slovakia), alleging that the latter is competent to deal with any disputes
deriving from the relevant employment contract, in accordance with its clause Art. XIII.
13. The Single Judge also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the NDRC of Slovakia is not an independent arbitration tribunal
guaranteeing fair proceedings and respecting the principle of equal representation of players and
clubs.
14. Taking into account all the above, the Single Judge emphasised that in accordance with art. 22
par. 1 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 an independent arbitration tribunal that has been established at national level
within the framework of the association and/or a collective bargaining agreement. Any such
arbitration clause must be included either directly in the contract or in a collective bargaining
agreement applicable on the parties. The independent national arbitration tribunal must
guarantee fair proceedings and respect the principle of equal representation of players and clubs.
Equally, the Single Judge referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
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15. In this respect, the Single Judge noted that the Respondent failed to provide any documentary
evidence which could prove that the national arbitration bodies of the Slovak Football Association
meets the requirements established in art. 22 par. 1 lit. b) of the Regulations on the Status and
Transfer of Players, detailed in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC
Regulations. On account of the above, and referring to the principle of burden of proof contained
in art. 13 par. 5 of the Procedural Rules, the Single Judge established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter must be rejected, and
FIFA is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present
matter as to the substance.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 24 March 2022, the March 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
Single Judge
b. Burden of proof
17. The Single Judge 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 Single Judge 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
18. Its competence and the applicable regulations having been established, the Single Judge entered
into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge 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
19. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the parties dispute the amount of the outstanding remuneration
claimed by the player.
20. In this context, the Single Judge acknowledged that his task was to determine if the Claimant is
entitled to the outstanding remuneration and if yes, to what extent.
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21. Subsequently, the Single Judge noted that the Respondent rejected the Claimant’s claim and
denied having received any default notice. In this regard, the Single Judge maintained that that as
the Respondent failed to submit any documentation establishing that the claimed payments or
parts of it were indeed paid.
22. Therefore, the Single Judge established that, taking into account the content of the contract, the
player is entitled to the salaries between February 2021 until June 2021.
ii. Consequences
23. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the total amount of EUR
18,750, corresponding to the salaries between February 2021 and June 2021.
24. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the DRC in this regard, the Single Judge decided to award the Claimant interest at the rate of 5%
p.a. on the outstanding amounts as from the respective due dates (1st day of the following month)
until the date of effective payment.
iii. Compliance with monetary decisions
25. Finally, taking into account the applicable Regulations, the Single Judge 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.
26. In this regard, the Single Judge 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.
27. Therefore, bearing in mind the above, the Single Judge 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.
28. 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.
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29. The Single Judge 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
30. The Single Judge 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 Single Judge decided that no procedural costs were to be imposed on the
parties.
31. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8
of the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
32. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Single Judge of the DRC
1.
The claim of the Claimant, Alen Mustafic, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, FC Nitra, has to pay to the Claimant, the following amount(s):
- EUR 3,750 as outstanding remuneration plus 5% interest per annum as from 1 March 2021 until
the date of effective payment;
- EUR 3,750 as outstanding remuneration plus 5% interest per annum as from 1 April 2021 until
the date of effective payment;
- EUR 3,750 as outstanding remuneration plus 5% interest per annum as from 1 May 2021 until
the date of effective payment;
- EUR 3,750 as outstanding remuneration plus 5% interest per annum as from 1 June 2021 until
the date of effective payment;
- EUR 3,750 as outstanding remuneration plus 5% interest per annum as from 1 July 2021 until the
date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
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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