Labour Disputes
Texto da decisão
REF 20-01412
Decision of the
Dispute Resolution Chamber
passed on 19 November 2020
regarding an employment-related dispute concerning the player Danilo Pantic
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Daan de Jong (Netherlands), member
CLAIMANT:
Danilo Pantic, Serbia
Represented by SPFN
RESPONDENT:
Fehervar FC, Hungary
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I.
Facts
1.
On 31 August 2019, the Serbian player, Danilo Pantic (hereinafter: the player or the
Claimant) and the Hungarian club, Fehervar FC (hereinafter: the club or the Respondent)
concluded an employment contract.
2.
In relation to its period of validity, the contract stipulated the following:
“Duration of contract: from August 31, 2019 to June 30, 2023. Parties agree that in case
of Employer contracts Employee on a permanent basis from July 1, 2020, according to the
option stated in Employee's loan agreement, then the duration of this Contract is
extended until June 30, 2023, without further legal acts.”
3.
The contract stipulated the following financial conditions:
“Sum and currency of the Football Player's salary (gross / net): Personal gross monthly
basic salary of the Employee shall be 9,769,000 HUF, namely Nine million seven hundred
and sixty nine thousand Hungarian Forints.
The Parties - taking into consideration that the basic salary was calculated on the basis of
the net amount of 25,000 EUR (…) -hereby clarify and affirm that the salary was fixed on
a 331 HUF/€ (three hundred thirty one HUF/ one Euro) exchange rate.
(…) For the avoidance of doubt in case the Player shall be at no point have a lower net
of any taxes salary than 25,000 Euro per calender month or its equivalent in HUF.
Date of salary payment: The Employer will pay the Employee's net monthly basic salary
until the 10th day of the month following the accounting month (…).
4.
Art. 49 of the contract stipulated the following:
“The Parties agree that they shall make efforts to settle their possible dispute in amicable
way by negotiations. If these efforts fail -in case determined by the rules of MLSZ and
FIFA -the Parties may turn to the organizational units of MLSZ or FIFA with jurisdiction,
in case of employment-related disputes to the Administrative and Labour Court having
competence and jurisdiction and in all other disputes arising out of their legal
relationship the Parties stipulate the exclusive jurisdiction of the Sport Standing
Arbitration Court based on the Article 47 of the Sports Law. The number of arbitrators is
three, and the procedure is determined by the Procedural Rules of the Arbitration
Court.”
5.
According to the Claimant, on 22 January 2020, he asked permission to leave the club
between 25 January 2020 until 2 February 2020, in order to attend family obligations in
Serbia.
6.
On 31 January 2020, the club sent a termination letter “with immediate effect to the
player”, indicating, inter alia, the following:
“I hereby inform You, that You shall only be entitled to the following amounts with
regard to the termination of your employment relationship:
his pro-rata salary until the Termination Date;
compensation for any vacation time proportional to the term of his employment
relationship, that has not been previously allocated.
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(…)
REASONING
(…)
Employer notified the Employee by a letter dated December 20, 2019 that the Employee
had to return to pre-season training following the winter break on January 13, 2020 with
the MOL Fehervar FC's second team.
(…)
Employee has still not appeared at the trainings and other preparation sessions of
MOL Fehervar Fe's second team to date without prior notification and without
Employer's consent.
(…)
Under Art 78 para (1) point a) of the Labour Code and point 38 of the Employment
Contract declares that The Employer or the Employee may terminate the employment
relationship with immediate effect, if the other party breaches its obligations in
connection with the employment contract intentionally, or with gross negligence
and seriously [ ... ]"
7.
On 20 July 2020, the legal representative of the player sent the following correspondence
to the club:
“On the day 31 January 2020, Fehervar K.C. Kft. terminated contract with player Mr.
Danilo Pantic without just cause. In a case of a dispute is authorized FIFA DRC, because
the Hungarian Football Federation does not meet the conditions provided by the FIFA
Regulations on the Status and Transfer of Players 22b
I give you 10 days to find mutual solution with my client, otherwise I will start the legal
process against your club on FIFA DRC.
I remind you that in FIFA and CAS practice Fehervar K.C Kft. terminated contract without
just cause and we believe that you are aware of the consequences.”
8.
On 27 July 2020, the club replied to the player, indicating, inter alia, the following:
“(.), I inform you that your Client committed a significant and intentional breach of
contract, on the basis of which the termination of his employment relationship with
immediate effect is legitimate!
Duly justified reasons led to the termination of the employment relationship of your
Client as a professional athlete {football player), therefore, we are not able to make any
offer to your Client.
9.
The player informed FIFA that he remained unemployed between 31 January 2020 until
30 June 2020.
10. In addition, the player explained that, on 11 August 2020, he concluded an employment
contract with the Serbian club, FC Cukaricki, valid as from the date of signature until 30
June 2021.
11. On 1 October 2020, the Claimant lodged a claim for breach of contract without just
cause.
12. In this respect, the Claimant requested the payment of the total amount of EUR 132,000,
detailed as follows: amounts
Outstanding amounts before the termination (resp. 31 January 2020):
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The part of salary for January 2020 in amount of EUR 7,000 with 5% interest starting
from 31 January 2020
EUR 125,000 as compensation, plus 5% interest from 31 January 2020, detailed as
follows:
Compensation after termination (from 31/01/20- 30/06/20)
a) The salary for February 2020 in amount of EUR 25,000
b) The salary for March 2020 in the amount of EUR 25,000
c) The salary for April 2020 in the amount of EUR 25,000
d) The salary for May 2020 in the amount of EUR 25,000
e) The salary for June 2020 in the amount of EUR 25,000
13. The Claimant explained that, prior to the termination of the contract, the Respondent
never initiated any disciplinary proceedings against him, nor did they punish him on any
grounds. The Claimant further noted the Respondent never issued any prior warning.
14. In its reply to the claim, the Respondent contested the competence of FIFA and referred
to point 49 of the contract.
15. The Respondent referred in this respect to “Article XXVIII of the FUNDAMENTAL LAW OF
HUNGARY”, which declares that "Everyone shall have the right to have any charge
against him or her, or his or her rights and obligations in any litigation, adjudicated
within a reasonable time in a fair and public trial by an independent and impartial court
established by an Act."
16. As to the substance, the Respondent argued that “the Claimant has not proved to date
that the termination of Claimant's employment relationship with immediate effect would
have been unlawful; he only proved that he did not comply with his main obligation
arising from his employment relationship between 27 January 2020 and 31 January 2021,
that is, he did not attend the preparation sessions without prior notification and consent
of the Respondent.”.
17. The Respondent insisted that “between 27 January 2020 and 31 January 2020 the
Claimant did not attend the trainings of the second team of MOL Fehervar FC and other
preparation sessions (…), without any prior notification and the Respondent's consent
and despite the program plan which was known to him.”
18. The Respondent underlined that the player “did not respond to the Respondent's
multiple attempts to contact him between 27 January 2020 and 31 January 2020, he did
not make a statement to the Respondent about his absence; he simply disappeared and
ceased all kind of communication”.
II. Considerations of the Dispute Resolution Chamber
1. 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.
Taking into account the wording of art. 21 of the June 2020 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.
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2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised 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, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs.
3. Consequently, the Dispute Resolution Chamber would, in principle, be competent to
decide on the present litigation which involves a Serbian player and a Hungarian club
regarding an employment-related dispute.
4. However, the Chamber acknowledged that the Respondent contested the competence of
FIFA’s deciding bodies on the basis of art. 49 of the contract.
5. In this respect, the Chamber first referred that, following the contents of art. 22 of the
Regulations on the Status and Transfer of Players, the competence of FIFA is “without
prejudice to the right of any player or club to seek redress before a civil court for
employment-related dispute.”
6. Yet, in relation to the above, the Chamber deemed it vital to outline that one of the basic
conditions that needs to be met in order to establish that another organ than the DRC is
competent to settle an employment-related dispute between a club and a player of an
international dimension, is that the jurisdiction of the relevant national arbitration
tribunal or national court derives from a clear reference in the employment contract.
7. Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should analyse whether the employment
contract at the basis of the present dispute contained a clear jurisdiction clause.
8. In particular, the Chamber then turned its attention to the invoked art. 49 of the contract,
which stipulated the following:
“The Parties agree that they shall make efforts to settle their possible dispute in amicable
way by negotiations. If these efforts fail -in case determined by the rules of MLSZ and
FIFA -the Parties may turn to the organizational units of MLSZ or FIFA with jurisdiction,
in case of employment-related disputes to the Administrative and Labour Court having
competence and jurisdiction and in all other disputes arising out of their legal
relationship the Parties stipulate the exclusive jurisdiction of the Sport Standing
Arbitration Court based on the Article 47 of the Sports Law. The number of arbitrators is
three, and the procedure is determined by the Procedural Rules of the Arbitration
Court.”
9. Having examined the aforementioned provisions, the Chamber observed that they do not
constitute a clear jurisdiction clause in favour of one specific court or arbitration tribunal
in Hungary, and noted that, in fact, they potentially grant jurisdiction to “the
organizational units with MLSZ or FIFA scope of authority”. Thus, the Chamber
understood that, in fact, the parties agreed on the possibility of submitting the matter
to FIFA.
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10. In view of the above, the Chamber rejected the allegations of the Respondent as to the
competence.
11. Furthermore, 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, and considering that the
present claim was lodged on 1 October 2020, the June 2020 edition of said
regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
12. The competence of the Chamber and the applicable regulations having been established,
the Chamber entered into the substance of the matter. Entering into the substance of
the matter, the DRC continued by acknowledging the above-mentioned facts as well as
the documentation contained in the file in relation to the substance of the matter.
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. Moreover, the DRC recalled that in accordance with
art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence
generated or contained in the Transfer Matching System (TMS).
13. Entering into the substance of the matter, the Chamber recalled that the player and the
club concluded an employment contract valid as from 31 August 2019 and, in principle
and subject to a possible extension, until 1 July 2020 and that, accordingly, the player was
entitled to a monthly salary in the equivalent amount of EUR 25,000 (cf. point I.3 above).
14. Subsequently, the Chamber noted that the player lodged a claim against the club for
breach of contract without just cause, arguing that the club sent him a notice on 31
January 2020, by means of which the club terminated the contract with immediate effect
due to the fact that the player failed to ” return to pre-season training following the
winter break on January 13, 2020 with the MOL Fehervar FC's second team. “
19. In relation to said termination, the Chamber noted that the Respondent insisted
that “between 27 January 2020 and 31 January 2020 the Claimant did not attend the
trainings of the second team of MOL Fehervar FC and other preparation sessions (…),
without any prior notification and the Respondent's consent and despite the program
plan which was known to him.”
15. In view of the above, the Chamber considered that the main legal issue at stake consists
in establishing whether the club had just cause to terminate the contract on 31 January
2020.
16. In this respect, and as a preliminary note, the Chamber was eager to emphasise that only
a breach or misconduct which is of a certain severity justifies the termination of a
contract. In other words, only when there are objective criteria, which do not reasonably
permit to expect 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
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contract. A premature termination of an employment contract can only ever be an ultima
ratio measure.
17. In this respect, the Chamber noted that the main reason provided by the club refers to an
absence of 4 days, noting that no clear evidence was provided as to the player having
been effectively warned about the possible consequences of his absence.
18. Moreover, and even though the termination letter referred to a four-day absence, the
Chamber observed that, de facto, the player appears to have been absent for 18 days
19. Under any circumstance and bearing in mind the criteria of ultima ratio, the Chamber
was of the firm opinion that, even if the player would have been absent for a few days
in early January 2020, in any case, said absences could not justify an early termination of
the contract, particularly considering that they occurred in a period that traditionally
overlaps with the winter break. In addition, the Chamber noted that the club did not
provide any convincing evidence to prove that the player was effectively warned about
the possible consequences of his absences. In the opinion of the Chamber, the
Respondent could have undertaken more lenient measures prior to the unilateral
termination of the contract.
20. In view of all of the above, and in accordance with its well-established jurisprudence for
similar cases, the Chamber unanimously concluded that the club terminated the contract
without just cause and that the club is to be held liable for the early termination of the
contract.
21. In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided that,
in accordance with art. 17 par. 1 of the Regulations, the club is liable to pay compensation
to the player.
22. In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the
law of the country concerned, the specificity of sport and further objective criteria,
including, in particular, the remuneration and other benefits due to the player under the
existing contract and/or the new contract, the time remaining on the existing contract up
to a maximum of five years, and depending on whether the contractual breach falls
within the protected period.
23. In application of the relevant provision, the Chamber held that it first of all had to clarify
as to whether the pertinent employment contract contains 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.
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24. 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. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body.
25. The members of the Chamber then turned their attention to the remuneration and other
benefits due to the player under the existing contract and/or the new contract, which
criterion was considered by the Chamber to be essential. The members of the Chamber
deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations
allows the Chamber to take into account both the existing contract and the new contract
in the calculation of the amount of compensation.
26. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the
monies payable to the player under the terms of the employment contract as from its
date of termination without just cause on 30 January 2020 until 1 July 2020 (i.e. the
original date of expiration of the contract), and concluded that the Claimant would have
received in total EUR 125,000 (i.e. EUR 25,000*5).
27. Consequently, the Chamber concluded that the amount of EUR 125,000 serves as the basis
for the determination of the amount of compensation for breach of contract in the case
at hand.
28. In continuation, the Chamber verified as to whether the Claimant 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, 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.
29. The Chamber observed, as mentioned above that the player appears to have been
unemployed from the termination of the contract until 1 July 2020, i.e. during the
remaining period of the contract with the Respondent. The Chamber then noted that the
player concluded an employment contract with the Serbian club, FC Cukaricki, valid as
from 11 August 2020 until 30 June 2021.
30. Consequently, on account of all of the above-mentioned considerations, the Chamber
understood that the player failed to mitigate his damages during the remaining period
of the contract with the Respondent.
31. In sum, the Chamber decided that the club must pay the amount of EUR 125,000 to
the player as compensation for breach of contract without just cause.
32. In addition, taking into account the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber decided that the club must
pay to the player interest of 5% p.a. on the payable compensation as from the date of
the claim until the date of effective payment.
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33. In addition, the Chamber further noted that, in addition to compensation, the player is
entitled to the payment of his outstanding remuneration until the date of termination
of the contract.
34. In this respect, the Chamber noted that, according to the Claimant, a remaining part of
his salary for January 2020 in amount of EUR 7,000, remained outstanding.
35. In relation to said amount, the Chamber observed that said portion of the player’s salary
for January 2020 was uncontested by the Respondent. Accordingly, the Chamber could
only confirm that said amount remained outstanding.
36. Consequently, in accordance with the principle of pacta sunt servanda, the Chamber
decided that the Respondent shall pay to the Claimant the outstanding amount of EUR
7,000.
37. In addition, taking into account the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber decided that the club must
pay to the player interest of 5% p.a. on the payable outstanding amount as from the due
date until the date of effective payment.
38. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claims lodged by the parties are rejected.
39. Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 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.
40. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
41. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that the Respondent does not pay the amounts due to the Claimant within 45
days as from the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective on
the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
42. Finally, the Dispute Resolution Chamber 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. 3 of the Regulations.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Danilo Pantic, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Fehervar FC, has to pay to the Claimant, the following amounts:
-
EUR 7,000 as outstanding remuneration plus 5% interest p.a.as from 1 February 2020
until the date of effective payment.
EUR 125,000 as compensation for breach of contract without just cause plus 5%
interest p.a.as from 1 October 2020 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
6.
The Respondent shall provide evidence of payment of the due amount in accordance with
this decision to [email protected], duly translated, if applicable, into one of the official
FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally
or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the
due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the
end of the ban of three entire and consecutive registration periods, the present
matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
8.
This decision is rendered without costs.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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