Labour Disputes
Texto da decisão
REF FPSD-2122
Decision of the
Dispute Resolution Chamber
passed on 19 August 2021
regarding an employment-related dispute concerning the player Nemanja Nikolic
COMPOSITION:
Clifford J. Hendel (USA) (France), Deputy Chairman
Roy Vermeer (Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Nemanja Nikolic, Serbia
Represented by Ivan Ostojic; Hrvoje Raić and Bruno Skelin
RESPONDENT:
Al-Raed, Saudi Arabia
Represented by César Mauricio Giraldo Hernández
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REF FPSD-2122
I.
FACTS OF THE CASE
1.
On 15 October 2020, the Serbian player, Nemanja Nikolic (hereinafter: Claimant) and the
Saudi Arabian club, Al-Raed (hereinafter: Respondent) concluded a contract for football
professional player (hereinafter: contract), valid from 15 October 2020 until 14 October
2022.
2.
Pursuant to clause 4 of the contract, the Respondent, inter alia, undertook to pay to the
Claimant the following:
3.
Additionally, clause 4 of the contract stipulated the following:
“The club is committed two tickets around trip for the player entire the season from home
to Gassim to home and.”
4.
The Claimant indicated that on 7 February 2021, the Respondent informed him that he was
deregistered from “its official squad list of the national football league”.
5.
Moreover, on 8 February 2021, the Respondent unilaterally terminated the Employment
contract with the Claimant without providing any reasons for such termination.
6.
Accordingly, the Respondent paid to the Claimant an amount of USD 162,294.
7.
On 10 February 2021, the Claimant sent a default notice to the Respondent requesting it
to comply with its contractual obligations and payment of his outstanding remuneration in
the total amount of USD 1,342,298, corresponding to the following:
(a)
(b)
(c)
(d)
USD 79,242 - balance of the advance payment for the first year;
USD 130 - balance of November 2020 salary;
USD 45,833 - December 2020 salary;
USD 45,833 - January 2021 salary;
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8.
(e)
(f)
USD 11,458 – pro rata salary for the period from 1 February to 7 February 2021
USD 1,159,802 - compensation for breach of the contract, corresponding to:
-
USD 1,155,510, as residual value of the contract,
USD 4,292, as total value of 4 round trip flight tickets in destination Belgrade
(Serbia) Gassim (Saudi Arabia) –Belgrade (Serbia);
On 17 February 2021, the Respondent sent two emails to the Claimant, and according to
the Claimant the Respondent:
“-
did not contest the right of the Player to the requested sums,
did not contest that it terminated the Employment Contract without just cause,
stated that COVID-19 pandemic had a (negative) impact on Club’s financial
situation, and
offered to pay to the Player reduced compensation of net USD 600,000 in five
instalments as specified in the said e-mails.”
9.
On 18 February 2021, the Claimant rejected the offer of the Respondent and reiterated his
requests from its default letter sent on 10 February 2021.
10.
According to the information available on FIFA TMS and as confirmed by the Claimant, the
Claimant on 1 April 2021 concluded an employment contract with FC Tobol, Kazakhstan,
valid from 1 April to 30 November 2021, for a monthly remuneration in the amount of KZT
2,000,000 (approximately USD 4,695.27) , corresponding to a monthly salary of KZT
100,000 and a further monthly sum of money in the amount of KZT 1,900,000.
II.
PROCEEDINGS BEFORE FIFA
11.
On 23 March 2021, the Claimant filed the claim at hand before FIFA.
a.
12.
The claim of the Claimant
The requests for relief of the Claimant, were the following:
(a)
to ascertain that the Respondent terminated the contract without just cause;
(b)
to condemn the Respondent to pay to the Claimant the outstanding remuneration of
net USD 182,496, as follows:
-
USD 79,242 - balance of the advance payment for the season 2020/2021 (first year);
USD 130 - balance of November 2020 salary;
USD 45,833 - December 2020 salary;
USD 45,833 - January 2021 salary;
USD 11,458 – pro rata salary for the period from 1 February to 7 February 2021
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(c)
to condemn the Respondent to pay to the Claimant compensation for breach of
contract of net USD 1,159,802 (cf. point 8. f above);
(d)
to condemn the Respondent to pay all relevant taxes and contribution on top of the
above mentioned net amounts;
(e)
to condemn the Respondent to pay in favour of the Claimant default interest of 5%
per year on the aforementioned amounts; and
(f)
to impose sporting sanctions against the Respondent, all in the light of FIFA RSTP.
b.
Position of the Respondent
13.
In its reply to the claim, the Respondent indicated that it paid “a total amount higher than
the Player mentioned in his claim.” In this regard, the Respondent explained that the
Claimant argued that he received a total amount of USD 162,294 until February 2021,
however, the Respondent paid to the Claimant the total amount of USD 162,499.
14.
The Respondent furthermore confirmed that it indeed aimed aim at reaching a payment
agreement with the Claimant and the reason it “sent a payment proposal was because the
Club was totally in disagree with the amount claimed by the Player.”
15.
Moreover, the Respondent indicated the Claimant would only receive an increase in salary
if he played in the 2021/2022 season. In this context, the Respondent stipulated the
following:
“the compensation that the Club would be obliged to pay to the Player for the season
2021/2022, must be calculated based on the monthly salary of USD$45.833 which is the
last accrued salary income of the Player. Furthermore, since the Player never played for the
Club in the Season 2021/2022, the Player is not entitled to receive the “advance payment”
for the second year, because he did not earn it. By so, the payment asked by The Player of
USD$100.000 regarding this concept should be disregarded.”
16.
Concerning the flight tickets, the Respondent reckons that although it was contractually
agreed, the Claimant failed to provide any evidence that he accrued the said expenses.
17.
In regard to the Claimants request for payment for taxes and contributions, the Respondent
stipulated the following:
“(i) The Club is not obliged to pay to the Player the taxes or contributions. This kind of
obligations must be assumed by each party before their corresponding local tax offices;
and
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(ii) FIFA and its bodies are not entitled to order a club to pay national taxes, even more
when is a responsibility for the Player.”
18.
The requests for relief of the Respondent, were the following, that the DRC:
(a) reduce the total amount that is owed by the Respondent to the Claimant for
outstanding salaries to an amount of USD$182,291;
(b) reduce the total amount that is asked by the Claimant for compensation, to an
amount of USD$924, 298 less the amount that he received from FC Tobol Kostanay
since March 2021 until October 2022
(c) reduce from this value the requested flight ticket costs that were not proven by the
Claimant;
(d) reject the petition of the Claimant regarding the payment of taxes and contributions;
(e) to not condemn to the Respondent for the payment of interest because there is no
causation on the compensation for legal interest; and
(f) to not impose any sport sanction to the Club because he is acting in good faith and
recognizing a debt with the Player.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
19.
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 23 March 2021 and submitted
for decision on 19 August 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
20.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), 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 Serbian player and
a Saudi Arabian club.
21.
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 Player (February 2021 edition ), and
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considering that the present claim was lodged on 23 March 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
22.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
23.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
24.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
25.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the on 15 October 2020, the Claimant and the Respondent
concluded an employment contract valid as from 15 October 2020 until 14 October 2022.
26.
The DRC observed that the Claimant lodged a claim in front of FIFA against the Respondent,
asserting that the Respondent had terminated his contract without just cause and that it
failed to fulfil its contractual obligations towards him. More specifically, the Claimant
indicated that the Respondent had failed to pay his salaries for the months of November
2020, December 2020 and January 2021, which were still outstanding at date of
termination of the contract, i.e. 8 February 2021.
27.
The members of the Chamber noted that the Respondent did not contest the allegations
of the Claimant; it merely disagreed on the calculation of the outstanding amounts due to
the Claimant relating to his outstanding salaries and compensation for breach of contract.
Moreover, the Chamber noted that the Respondent made a prior proposal to the Claimant,
which was rejected by the Claimant.
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28.
In continuation, the Chamber remarked that, the Claimant had accused the Respondent of
unilaterally terminating his contract on 8 February 2021 without providing any reasons
thereto, but in particular, that such termination occurred after the Respondent informed
the Claimant on 7 February 2021 that he was deregistered from “its official squad list of
the national football league”.
29.
In this context, the Chamber acknowledged that its task was to determine whether the
contract was terminated by the Respondent with or without just cause and to decide on
the consequences thereof.
30.
In this respect, the Chamber referred to its well-established jurisprudence and emphasised
that, as a general rule, only a breach or misconduct which is of a certain severity justifies
the termination of a contract without notice. In other words, only when there are objective
criteria which do not reasonably permit to expect a 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 for an employer to ensure the
employee’s fulfilment of his contractual duties, 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.
31.
First of all, the Chamber wished to address the allegations of the Claimant that on 8
February 2021, the contract was unilaterally terminated by the Respondent. The Chamber
observed that the Respondent did not dispute the said allegation; neither did it provide any
valid reasons that would justify the premature termination of the contract with the Claimant
or the non-payment of the contractually agreed remuneration as indicated by the Claimant.
32.
What is more, the Chamber pointed out that after the Respondent terminated the contract,
it recognised that there was compensation due to the Claimant, as it attempted to reach
an amicable termination agreement with the Claimant as can be established from the
Respondent’s email dated 17 February 2021 as well as confirmed in its reply to the claim.
33.
As a result of the foregoing, the members of the Chamber, concluded that the Respondent
had terminated the employment contract without just cause on 8 February 2021 and that,
consequently, the Respondent is to be held liable for the early termination of the
employment contract without just cause.
ii. Consequences
34.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent and decided that the Claimant is entitled to outstanding remuneration and
compensation for breach of contract.
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35.
Having stated the above, the members of the Chamber concurred that the Respondent
must fulfil its obligations in accordance with the general legal principle of “pacta
sunt servanda”.
36.
Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration, in the amount of USD 171,038 net, corresponding to:
(a)
(b)
(c)
(d)
USD 79,242 - balance of the advance payment for the season 2020/2021;
USD 130 - balance of November 2020 salary.;
USD 45,833 - December 2020 salary; and
USD 45,833 - January 2021 salary.
37.
Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts
from the respective due dates until the date of effective payment.
38.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
39.
In this context, the Chamber outlined that, in accordance with the said provision, 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 Claimant 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.
40.
In application of the relevant provision, the Chamber held that it first had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties
had beforehand agreed upon a 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.
41.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of
the employment contract on 8 February 2021, the contract would run for another 20
months (i.e. the period between February 2021 and October 2022).
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42.
Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to USD 1,166,660 net and that
such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
43.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant informed FIFA
that he had signed a new contract with the club, with FC Tobol, Kazakhstan, valid from 1
April to 30 November 2021, for a monthly remuneration of KZT 2,000,000 (approximately
USD 4,695.27) , corresponding to a monthly salary of KZT 100,000 and a further monthly
sum of money in the amount of KZT 1,900,000. For the overlapping period, this
corresponds to the total amount of USD 37,565.60, which shall be deducted from the
remaining value of the contract.
44.
In conclusion, the DRC decided that the Respondent is liable to pay the total amount USD
1,129,094.40 net to the Claimant as compensation for breach of contract without just
cause, which is considered by the DRC, to be a reasonable and justified amount as
compensation.
45.
Moreover and in line with the Chamber’s well-established jurisprudence, the DRC decided
to award 5% interest p.a. on the above amounts as from 23 March 2021, i.e. date of claim.
46.
Furthermore, with respect to the flight ticket expenses, the DRC established that on the
basis of clause 4 of the employment contract, the amount of USD 1,788 can be awarded
to the Claimant.
47.
Finally, the DRC established that the contract does not contain any clauses as to the tax
responsibilities of the parties, accordingly the parties should be responsible for their
respective taxes; hence, the DRC rejected this part of the Claimant’s claim.
48.
The Chamber concluded its deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
iii. Compliance with monetary decisions
49.
Finally, the Chamber referred to par. 1 lit. and 2 of art. 24bis 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.
50.
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
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duration of the registration ban shall be of up to three entire and consecutive registration
periods.
51.
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. 24bis par. 2, 4, and 7 of the Regulations.
52.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
53.
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. 24bis par. 8
of the Regulations.
d.
Costs
54.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
55.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
56.
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, Nemanja Nikolic, is partially accepted.
2.
The Respondent, Al-Raed, has to pay to the Claimant, the following amount:
(a)
USD 171,038 net as outstanding remuneration, plus 5% interest p.a. as from the
respective due dates until the date of effective payment as follows:
-
on the amount of USD 79,242 as from 16 November 2020;
on the amount of USD 130 as from 1 December 2020;
on the amount of USD 45,833 as from 1 January 2021; and
on the amount of USD 45,833 as from1 February
(b)
USD 1,129,094.40 net as compensation for breach of contract, plus 5% interest
p.a. as from 23 March 2021.
(c)
USD 1,788 as flight tickets.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
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For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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