Labour Disputes
Texto da decisão
REF. FPSD-15501
Decision of the
Dispute Resolution Chamber
passed on 8 October 2024
regarding an employment-related dispute concerning the player Emanuel
Nikpalj
BY:
Frans DE WEGER (The Netherlands), Chairperson
Peter LUKASEK (Slovakia), Member
Oleg ZADUBROVSKIY (Russia), Member
CLAIMANT:
Emanuel Nikpalj, Croatia
Represented by Alfonso León Lleó
RESPONDENT:
Viitorul Pandurii, Romania
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REF. FPSD-15501
I. Facts of the case
1.
On 25 October 2023, the Croatian player Emanuel Nikpalj (hereinafter, the Claimant or the
Player) and the Romanian club Viitorul Pandurii (hereinafter, the Respondent or the Club)
concluded a Sports Activity Contract (hereinafter, the Contract) valid as from 25 October
2023 until 30 June 2025.
2.
Pursuant to Article 4 of the Contract, the Respondent undertook to pay the Player
(hereinafter, jointly referred to as the Parties) the monthly remuneration of EUR 1,000.00
from 26 October 2023 to 29 February 2024, and a monthly remuneration of EUR 1,500.00
from 01 March 2024 to 30 June 2025, payable on the 25th day of each month.
3.
In accordance with Clause 14 of the Contract: “The disputes between the club and the player
arising from or in connection with this contract shall be settled by the relevant jurisdictional
bodies.”
4.
By correspondence sent by email dated 4 June 2024, the Claimant put the Respondent in
default of payment of his contractual salary for the months of March, April and May 2024
(EUR 1,500.00 each) setting a deadline of 15 days in order to remedy the default.
5.
By correspondence sent by email dated 20 June 2024, the Claimant unilaterally terminated
the Contract.
II. Proceedings before FIFA
6.
On 8 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
a. Position of the Claimant
7.
According to the Claimant, his rights were disregarded by the Club despite several
reminders.
8.
The Claimant argued having just cause to terminate the Contract under art 14bis of the
Regulations, and claimed being entitled to outstanding remuneration and compensation
for breach of contract without just cause, corresponding to the residual value of the
Contract due to the bad faith and blatant disregard of the Club’s obligations towards the
Player that created abusive and egregious circumstances to the Player.
9.
The requests for relief of the Claimant, were the following:
“As per all the above, the Claimant requests the Panel:
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REF. FPSD-15501
1) To accept this Claim against the Respondent.
2) To consider the Respondent liable for breach without just cause of the Sports
Activity contract
3) To condemn the Respondent to pay the Player as outstanding remuneration
the following total sum:
- Salary of March 2024: 1.500,00 EUR;
- Salary of April 2024: 1.500,00 EUR;
- Salary of May 2024: 1.500,00 EUR;
- Salary of June 2024: 1.500,00 EUR.
Total amount of: 6.000 EUR (Six Thousand Euros)
4) To condemn the Respondent to pay the Player residual value of the contract as
compensation for breach of contract without just cause the following total sum:
Season 2024/2025: 12 months x 1.500,00 EUR = 18.000,00 EUR (Eighteen
Thousand Euros)
Total amount of: 18.000,00 (Eighteen Thousand Euros)
5) To also condemn the Respondent to pay an additional head of compensation
under the specificity of sport as provided for under the FIFA RSTP in the amount
of six- monthly salaries.
6) To condemn the Respondent to pay interests at a rate of 5 (five) per cent per
annum over outstanding payables, compensation and the additional head of
compensation amounts requested from the due date of each payment until the
date of the effective payment.
7) Ban the Club from registering any new players, either nationally or internationally,
for two registration periods under article 17, paragraph 4 of the FIFA RSTP; AND
8) To fix a sum of 10,000.00 EUR (Ten thousand Euros) to be paid by the
Respondent to the Claimant, to help the payment of its legal fees and costs;
9) As consequence of the above, to condemn the Respondent to pay all expenses
and costs of the present proceedings, if any.”
b. Position of the Respondent
10. Despite being invited to do so, the Respondent failed to reply to the claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Dispute Resolution Chamber (hereinafter: the 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 8 August 2024 and submitted for decision on
08 October 2024. Taking into account the wording of art. 34 of the March 2023 edition of
the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
12. Furthermore, 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
Regulations on the Status and Transfer of Players (June 2024 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 Croatian player
and a Romanian club.
13. 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 (June 2024 edition), and
considering that the present claim was lodged on 8 August 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
14. 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
15. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
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REF. FPSD-15501
i. Main legal discussion and considerations
16. The foregoing having been established; the Chamber then moved to the substance of the
matter and took note of the fact that this is a claim of a player against a club for termination
of contract based on outstanding remuneration from the Contract.
17. In this context, the Chamber acknowledged that it its task was to determine, based on the
evidence presented by the Parties, whether the claimed amounts had in fact remained
unpaid by the Respondent, and if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
18. The Chamber then referred to the wording of art 14bis par.1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
19. The Chamber consequently recalled that according to the Claimant, he terminated the
contract with just cause due to outstanding remuneration. In this respect, the Chamber
noted that the Claimant claimed not having received his remuneration corresponding to
his monthly salaries of March, April and May 2024 for the total amount of EUR 4,500.00.
20. Furthermore, the Chamber observed that the Claimant provided written evidence of having
put the Respondent in default on 4 June 2024, i.e. at least 15 days before terminating his
contract on 20 June 2024.
21. On the other hand, the Chamber noted that the Respondent did not reply to the claim.
22. At this stage, the Chamber deemed it appropriate to recall the wording of art. 13 par. 5 of
the Regulations, pursuant to which a party that asserts a certain fact also bears the burden
of proving its veracity.
23. Equally, the Chamber wished to refer to the wording of art. 14bis par. 1 of the Regulations,
pursuant to which a player has just cause to unilaterally terminate his employment
contract where a club unlawfully fails to pay at least two monthly salaries on their due
dates, provided that the player has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
24. The Chamber pointed out that the Respondent bore the burden of proving that it had
complied with the financial obligations of the Contract. Notwithstanding, the Respondent,
by failing to provide a position to the claim, and consequently submit any evidence to
corroborate that it had, indeed, complied with the financial obligations of the Contract, fell
short of meeting the requisite burden of proof.
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REF. FPSD-15501
25. Thus, the Chamber was able to conclude that the formal requirements of art. 14bis par. 1
of the Regulations were met in the case at hand – that is, more than two monthly salaries
remained outstanding, despite the Claimant providing a grace period starting as from the
written default notice on 4 June 2024, before unilaterally terminating the Contract on 20
June 2024.
26. Therefore, the Chamber considered that the Claimant had just cause to unilaterally
terminate the Contract before its term.
ii. Consequences
27. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
28. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Player, are equivalent to four monthly
salaries under the Contract, amounting EUR 6,000.00 4 salaries of EUR 1,500.00 each
corresponding to the monthly salaries of March, April, May and June 2024.
29. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination i.e. EUR
6,0000.00.
30. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the day after the due dates as follows:
−
EUR 1,500.00, as outstanding remuneration from the Contract plus 5% interest p.a.,
as from 26 March 2024 until the date of effective payment;
−
EUR 1,500.00, as outstanding remuneration from the Contract plus 5% interest p.a.
as from 26 April 2024 until the date of effective payment;
−
EUR 1,500.00, as outstanding remuneration from the Contract plus 5% interest p.a.
as from 26 May 2024 until the date of effective payment;
−
EUR 1,500.00, as outstanding remuneration from the Contract plus 5% interest p.a.
as from 20 June 2024 until the date of effective payment.
31. 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
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REF. FPSD-15501
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.
32. 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.
33. 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.
34. 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 18,000.00 (i.e. 12xEUR 1,500.00) serves as the basis for
the determination of the amount of compensation for breach of contract.
35. 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.
36. Indeed, the Player concluded an amateur contract with the club Hvöt from Iceland. In
accordance with said contract there are no direct wages paid by the club to the Player.
Therefore, the Chamber concluded that no mitigation shall apply.
37. 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 18,000.00 to the Player (i.e. 12x EUR 1,500.00), which was to be considered a
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REF. FPSD-15501
reasonable and justified amount of compensation for breach of contract in the present
matter.
38. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the DRC decided to award the Player interest on said compensation
at the rate of 5% p.a. as of 20 June 2024 until the date of effective payment.
iii. Sporting Sanctions / application of art. 17 par. 4 of the Regulations
39. In continuation, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, it addressed the question of sporting sanctions
against the club in accordance with art. 17 par. 4 of the Regulations. The cited provision
stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall
be imposed on any club found to be in breach of contract during the protected period.
40. In this respect, the Chamber referred to item 7 of the “Definitions” section of the
Regulations, which stipulates inter alia that the protected period shall last “for three entire
seasons or three years, whichever comes first, following the entry into force of a contract, where
such contract is concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a contract, where such
contract is concluded after the 28th birthday of the professional”.
41. In this regard, the Chamber took note that the Player was born on 21 April 1998 and the
relevant contract with the Club was concluded on 25 October 2023. Furthermore, the
Chamber Judge noted that since the Contract was terminated on 20 June 2024, the breach
of contract by the Club had therefore occurred within the protected period.
42. Furthermore, the Chamber noted that the Club had already being held liable of breaching
other players’ contracts without just cause in several recent occasions. In particular, in
cases FPSD-9877, FPSD-15442, FPSD-15355.
43. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations, the
club shall be sanctioned with a ban from registering any new players, either nationally or
internationally, for two entire and consecutive registration periods.
iv. Compliance with monetary decisions
54. 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.
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55. 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.
56. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24
par. 3 of the Regulations, the aforementioned consequences may be excluded where
the pertinent FIFA deciding body has already imposed on the same party a sporting
sanction on the basis of article 12bis, 17 or 18quater of the Regulations.
57. In this respect, considering that art. 17 par. 4 of the Regulations applies in the matter,
the Chamber established that art. 24 par. 2 of the Regulations shall not apply, insofar as
in case the Respondent fails to comply with the decision at hand, the application of a
further ban from registering any new players on top of the one already being served by
the Respondent would be moot and against the spirit of the Regulations, in particularly
the enforcement mechanism established under art. 24 of the Regulations.
58. In view of the above, the DRC decided that if the aforementioned sum plus interest is
not paid within 45 days of notification of this decision, the present matter shall be
submitted, upon request of the Claimant, to the FIFA Disciplinary Committee for its
consideration and formal decision.
59. 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.
d. Costs
44. 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.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-15501
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Emanuel Nikpalj, is partially accepted.
2.
The Respondent, Viitorul Pandurii, must pay to the Claimant the following amount(s):
- EUR 6,000.00 as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 1,500.00 as from 26 March until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 1,500.00 as from 26 April until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 1,500.00 as from 26 May until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 1,500.00 as from 20 June until the date of
effective payment;
- EUR 18,000.00 as compensation for breach of contract plus 5% interest p.a. as from 20
June 2024 until the date of effective payment.
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.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
6.
If full payment (including all applicable interest) is not made within 30 days of notification
of this decision, the present matter shall be submitted, upon request of the Claimant, to
the FIFA Disciplinary Committee.
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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