Labour Disputes
Texto da decisão
REF FPSD-5896
Decision of the
Dispute Resolution Chamber
passed on 12 October 2022
regarding an employment-related dispute concerning the player Matija Pejovic
BY:
Sihon Gauci (Malta)
CLAIMANT:
Matija Pejovic, Montenegro
Represented by Federico Venturi Ferriolo
RESPONDENT:
Riga FC, Latvia
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I. Facts of the case
1.
On 1 February 2021, the Montenegrin player, Matija Pejovic (hereinafter: the Claimant),
and the Latvian club, FC Riga (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the contract) valid from 1 February 2021 until 30 November 2021.
2.
Clause 1.3 of the contract, stipulates the following:
“The labour contract may be extended unilaterally by the Club from the 01.12.2021 until
30.11.2022 and after from the 01.12.2022 until 30.11.2023.”
3.
Pursuant to clause 4 of the contract, the Claimant would be entitled to the following
remuneration:
“2021 year - from 01.06.2021 till 31.12.2021 - 2000,00 (Two thousand) EUR Net every month
2022 year –3000,00 (Three thousand) EUR Net every month, if the Club will make extention of
contract
2023 year – 4000,00 (Four thousand) EUR Net every month, if the Club will make extention of
contract
The salary is paid 1 time a month.”
4.
Additionally, clause 4 of the contract contain the following wording:
“The club must send an official notification to the player about contract extension before
30.10.2021 and 30.10.2022 if club will activate an option in contract.”
5.
On 1 December 2021, according to the Claimant, the Respondent allegedly exercised its
option to extend the contract and the Claimant continued training with the Respondent.
According to the Claimant this is evident by the fact that “the Claimant continued to be
displayed on the Respondent’s website differently from the other players who terminated their
contract in December.”
6.
Moreover, the Claimant alleged that “by way of confirmation of the renewal of the contract
with the Player, Club paid an advance of the salary of December 2021 with express reference
“Salary advance December”.
7.
The Claimant further mentioned the following:
-
On 6 December 2021, the Club invited the Player to join the team in Riga in order to leave for
the Training Camp. The Player informed the Club he would have flown to Riga from Podgorica,
Montenegro
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-
-
-
8.
On 15 December 2021, the Team Manager of Riga informed the Player that since the loan
contract with BFC Daugavpils would have terminated on 31 December 2021, he would have
joined the team directly in Riga at the beginning of the trainings on 4 January 2022
On 20 December, Club sent to Pejovic a flight ticket from Podgorica, Montenegro (the home
country of the Player) to Riga scheduled on the 3 January 2022.
On 4 January 2022, the Player arrived in Riga and joined his teammates at the Marriot Hotel,
in Riga.
On 7 January 2022, at 1 p.m. Pejovic underwent the medical examinations scheduled by the
Club.
On 10 January 2022, the Player was called up together with his teammates and they arrived in
Dubai.
The Player participated to the daily trainings in Dubai as proved by the photos posted by the
Club on his official website.
On 15 January 2022, Pejovic suffered of an injury to the right ankle during the daily training
and begins the medical treatments. Due to the injury, he also started working alone in the gym
with a coach provided by the Club.
On 17 January 2022, in the morning Riga communicated to the Player that a magnetic
resonance imaging (MRI) had been scheduled in Dubai on 18 January 2022, at 9 a.m.
On the same day, in the afternoon Riga communicated to the Player that the magnetic
resonance imaging had been cancelled and that he would have been tested for COVID-19 as
he would have to immediately leave the rest of the team and return to his home in
Montenegro.”
On 17 January 2022, the Respondent sent an official communication to the Claimant
stipulating the following:
“We refer to the employment contract F 14/21. We also refer to clause 1.2 of this contract. In
this context, please be informed that it has been decided by the club not to exercise its right
under clause 1.3 of this contract”, however to no avail.
9.
On the same day, in reply the Claimant sent a formal notice to the Respondent asking it “
to comply with the Contract and formally requesting to be reinstated shortly in the first team,
i.e. no later than 27 January 2022”
10. The Claimant remained unemployed after the termination of the contract.
II. Proceedings before FIFA
11. On 1 May 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
12. According to the Claimant, the Respondent exercised its option to unilaterally extend the
contract therefore the sudden and unilateral termination of the contract by the
Respondent consist of a breach of contract without just cause.
13. The requests for relief of the Claimant, were the following, that the Respondent:
(a) pay him the amount of EUR 85,404.45 plus interest at 5% p.a.
(b) bear any and all costs of this proceedings
(c) compensate the legal costs and other costs incurred by him in this proceeding, in an
amount to be determined at the discretion of the FIFA Dispute Resolution Chamber
b. Position of the Respondent
14. In its reply, the Respondent referred to clause 4 of the contract which stipulates that “the
Club must send an official notification to the player about contract extension before
30.10.2021”. The Respondent indicated that it never sent a notification to the Claimant to
extend the contract.
15. In reference to the payment of EUR 500, paid to the Claimant on 23 December 2022, the
Respondent indicated that this represents “his bonus of EUR 100 per match in loan, as
stipulated in clause 4.2 of the Employment Contract. The only reason why this payment was
commented as “Salary advance December” is for taxation purposes.
16. The Respondent furthermore mentioned that in December a new head coach was
appointed and accordingly, “it suggested to the Player, who wanted to be with the Club, to
come to the team’s training camp in Dubai in January 2022 for trials, to let then the Head
Coach to decide whether the Player suits or not. This was accepted by the Player.”
17. In this context the Respondent furthermore stated:
“This is true, that the Player arrived to Riga by 4 January 2022, passed through the medical
exams and went to Dubai together with the team for trials with the newly-appointed Head
Coach. However, after a week with the team, the Head Coach made a conclusion that the Player
did not meet his requirements and it was decided to head the Player back home.”
18. Finally, the Respondent mentioned that in regard to the injury referred to by the Claimant
in particular that “the Player stresses that on 15 January 2022 he got injured and that 2 days
later an MRI was scheduled for him but later that day the Club allegedly communicated to him
that the MRI appointment was cancelled and he had to return to Montenegro. This is, however,
not the truth and the Player provided no single evidence supporting his groundless
allegations.” Moreover, the Claimant “had never informed the Club about an alleged injury,
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while according to the Club’s doctor the Player had not been injured during the Training Camp
in Dubai.”
19. The requests for relief of the Respondent, as amended, were the following:
“1.Rejecting the Claim of the player Matija Pejovic in its entirety.
2.Ordering the player Matija Pejovic to pay the costs of the proceedings in the event that any
arise and are to be apportioned.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, it took note that the present matter was presented to FIFA on 1 May 2022
and submitted for decision on 12 October 2022. Taking into account the wording of art.
34 of the October 2022 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.
2.
Subsequently, the Single Judge 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 lit. b) of the
Regulations on the Status and Transfer of Players (October 2022 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Montenegrin player and a Latvian
club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (October 2022
edition), and considering that the present claim was lodged on 1 May 2022, the March
2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter
at hand as to the substance.
b. Burden of proof
4.
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 she may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
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c. Merits of the dispute
5.
Her 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 she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established the Single Judge moved to the substance of the
matter and took note of the fact that the controversy at the basis of the aforementioned
dispute lies fundamentally on the validity of the unilateral extension of the contract.
7.
In this context, the Single Judge acknowledged that her task was to analyse the
circumstances under which the unilateral extension of the contract was executed and,
consequently, to reach a conclusion whether the extension of the contract could be validly
upheld.
8.
In this respect the Single Judge took note that the Claimant argued that on 1 December
2021, the Respondent exercised its option to extend the contract as the Claimant
continued to train with the Respondent which was additionally confirmed by (i) payment
of his December salary on 23 December 2021 by the Respondent; and (ii) the
Respondent’s invitation to the Claimant to participate in the training camp scheduled in
Dubai.
9.
The Single Judge further noted that the Respondent on its account argued that it (i) never
sent a notification to the Claimant to extend on the basis of clause 4 of the contract; and
that (ii) the player was merely invited to the training camp in Dubai for trials.
10. In consideration of the above, the Single Judge concluded that the behaviour of the
Respondent, in particular, the payment of the Claimant’s salary in December and his
inclusion in the training camp, indeed triggered the extension option. The Single Judge
further remarked that the Claimant therefore in good faith believed that the option to
extend the contract was exercised by the actions of the Respondent despite the nonfulfilment of the formalities as indicated.
11. Moreover, the Single Judge deemed it important to note that the Respondent itself was
rather hesitant in its communication towards the Claimant regarding the extension of the
contract and only sent an official communication on 17 January 2022 – a significant period
after 30 November 2021 i.e., expiration date of the contract.
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12. In conclusion, taking all of the above into account and in consideration of the entire
circumstances of the case the Single Judge was of the opinion that the contract of the
Claimant was indeed extended at least until 30 November 2022, and that the Respondent
on 17 January 2022, terminated the contract without just cause and should therefore be
held liable for the consequences thereof.
ii. Consequences
13. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
However, before entering into the calculation of any possible compensation, the Single
Judge recalled that, in addition, the Claimant was also entitled to any outstanding
remuneration due up until the termination of the contract.
14. 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 outstanding remuneration of EUR 4,145.16 for the months of December 2021 up until
17 January 2022.
15. What is more, based on its well-established jurisprudence as well as taking into
account the Claimant’s request, the Single Judge decided to award 5% interest p.a. on the
above amounts from the 1 May 2022 until the date of effective payment.
16. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
so, the Single Judge 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 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.
17. In application of the relevant provision, the Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract
at the basis of the matter at stake.
18. As a consequence, the members of the Single Judge determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations. the Single
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Judge recalled that said provision provides for a non-exhaustive enumeration of criteria
to be taken into consideration when calculating the amount of compensation payable.
19. Bearing in mind the foregoing as well as the claim of the Claimant, the Single Judge
proceeded with the calculation of the monies payable to the Claimant under the terms of
the contract from the date of its unilateral termination until its end date. Consequently,
the Single Judge concluded that the amount of EUR 31,354.84 (i.e., the residual value of
the contract – 18 January 2022 until 30 November 2022, i.e., EUR 3000,00 per month)
serves as the basis for the determination of the amount of compensation for breach of
contract.
20. In continuation, the Single Judge 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 Single Judge 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
Claimant’s general obligation to mitigate his damages.
21. In this respect, the Single Judge noted that the Claimant remained unemployed since the
unilateral termination of the contract.
22. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the Claimant did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
23. In this respect, the Single Judge decided to award the Claimant compensation for breach
of contract in the amount of EUR 31,354.84, as the residual value of the contract.
24. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the Claimant interest on said
compensation at the rate of 5% p.a. as of 1 May 2022 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
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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.
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 Dispute Resolution Chamber
1.
The claim of the Claimant, Matija Pejovic, is partially accepted.
2.
The Respondent, Riga FC, has to pay to the Claimant, the following amounts:
- EUR 4,145.16 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment.
- EUR 31,354.84 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 1 May 2022 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.
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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
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).
CONTACT INFORMATION
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