Labour Disputes
Texto da decisão
REF. FPSD-12982
Decision of the
Dispute Resolution Chamber
passed on 6 March 2024
regarding an employment-related dispute concerning
the player Vladan Pesic
BY:
Andre dos Santos Megale (Brazil), Single Judge
CLAIMANT:
Vladan Pesic, Serbia
Represented by Austrian Players’ Union
RESPONDENT:
FC Mauerwerk, Austria
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REF. FPSD-12982
I. Facts of the case
1.
On 15 July 2023, the Serbian player Vladan Pesic (hereinafter: the Claimant or the player)
and the Austrian club FC Mauerwerk (hereinafter: the Respondent or the club) allegedly
concluded an employment contract (hereinafter: the Alleged Contract) valid from said date
until 31 December 2023.
2.
The player explained that the alleged Contract was agreed verbally and provided no
specimen of a signed document.
3.
In accordance with the Alleged Contract, the Respondent undertook to pay to the Claimant
inter alia a monthly net salary of EUR 1,100.
4.
On 25 October 2023, the Claimant sent a letter to the Respondent asking to pay the
Claimant’s salary for the month of September 2023 and granting a deadline of 15 days to
comply with its obligation.
5.
By correspondence dated 15 November 2023, the Claimant put the Respondent in default
of payment of EUR 2,200 setting a time limit expiring on 30 November 2023 in order to
remedy the default.
6.
On 5 December 2023, the Claimant notified the Respondent of the unilateral termination
of the Alleged Contract with just cause.
7.
On 9 January 2024, the FIFA general secretariat contacted the Austrian Football Association
(“OFB”) requesting confirmation of the employment relationship between the Claimant and
its affiliated club, the Respondent.
8.
On 16 January 2024, the OFB provided copy of the Player’s International Passport attesting
that the Claimant had been registered with the Respondent but as amateur only.
II. Proceedings before FIFA
9.
On 9 December 2023 the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
10. According to the Claimant, the Respondent failed to pay his salaries for September,
October, and November 2023 in spite of the two default notices sent by the Claimant
between October and November 2023.
11. As a consequence, based on the cited outstanding salaries, the Claimant held having had
just cause to terminate the Alleged Contract on 5 December 2023.
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REF. FPSD-12982
12. The requests for relief of the Claimant, accordingly, were the following:
-
EUR 3.300 net as outstanding salaries + 5% interest p.a. as of the relevant due dates until
the effective day of payment;
-
EUR 1.100 net as compensation for breach of contract + 5% interest as of 05 December 2023
i.e. the day of termination, until the effective payment.
13. Despite being invited to do so, the Respondent did not reply to the claim via the FIFA Legal
Portal.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether he was competent to deal with the case at hand.
In this respect, he took note that the present matter was presented to FIFA on 9 December
2023 and submitted for decision on 6 March 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.
15. 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 (February 2024 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 Serbian player and an Austrian club.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition),
and considering that the present claim was lodged on 9 December 2023, the
aforementioned edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
17. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
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REF. FPSD-12982
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
18. The 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
19. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Claimant alleged having concluded a contract
with the Respondent in a purely verbal manner and that the latter never provided the
Claimant with a copy in writing.
20. In this context noted also that the Respondent failed to present its response to the claim
of the Claimant, in spite of having been invited to do so. By not presenting its position to
the claim, the Single Judge was of the opinion that the Respondent renounced its right of
defence and, thus, accepted the allegations of the Claimant. As such, the Single Judge
confirmed that per art. 14 and 21 of the Procedural Rules, he shall make a determination
on the basis of the arguments and documentation filed by the Claimant.
21. In this context, the Single Judge acknowledged that although there is no reply by the club
on file, its first task was to determine, based on the evidence on file, whether an
employment contract was indeed concluded between the player and the club.
22. In this respect, the Single Judge took note of the communication sent by the Austrian
Football Association (OFB) on 16 January 2024, confirming that the Claimant has been
registered at the Respondent with the status of amateur player only. Furthermore, the
Single Judge observed that the OFB submitted a copy of the relevant International Player’s
Passport, which also denotes his registration as an amateur.
23. In continuation, and while underlying that the burden of proof to this effect lied with the
Claimant, the Single Judge noted that he has not advanced a copy of any document
concluded with the club, even less an employment contract, but limited himself to claim
that a contract had been orally agreed. The Single Judge equally noted that the player did
only present default notices exchanged with the club.
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REF. FPSD-12982
24. In addition, and despite not having a signed copy of the said contract, the Single Judge
proceeded to examine if mutual consent could have been established between the Parties
to the effect that the player had been hired as a professional with the club, proving thus
the contractual relationship by and between employer and employee. In this regard,
referring to art. 13 par. 5 of the Procedural Rules and the principle of the burden of proof,
the Single Judge however was of the opinion that the Claimant did not meet his burden of
proof in order to demonstrate his status at club.
25. In fact, the Single Judge found that very little documentation was made available by the
Claimant to support his arguments. In order words, while the Single Judge was comforted
to establish that the player indeed played for the club, it could not be determined with the
require degree of satisfaction under which capacity.
26. At this point, the Single Judge pointed out that under art. 2 par. 1 and 2 of the Regulations,
players participating in organised football are either amateurs or professionals; no other
status shall be recognised. A professional is a player who has a written contract with a club
and is paid more for his footballing activity than the expenses they effectively incur. All
other players are amateurs, and there is nothing in between. The Single Judge furthermore
recalled that the Commentary to the RSTP (ed. 2023) shed additional light regarding the
matter (p. 29 et seq.):
(…) in assessing the status of a player, any contract must be measured against the article 2
paragraph 2 criteria only, irrespective of any designation or categorisation used within the
contract, and irrespective of the status under which a player may have been registered by the
member association concerned. Given that article 2, Regulations is binding at national level,
any divergent national regulations are also considered irrelevant to a player’s status. (…)
Another important factor that can be extracted from the relevant jurisprudence is that the
financial threshold arising out of the article 2 paragraph 2 criteria is relatively low. Article 2
paragraph 2 does not require a player to make a living from their footballing activity in order
to qualify as a professional. A player can qualify as a professional even if they need to pursue
other work to earn a living. If the remuneration they receive from their club exceeds the
expenses they effectively incur to provide their footballing services, they are a professional
player. It is, however, not possible to set a global figure as to the amount a player must be
paid to be deemed a professional. As such, when considering whether a player is a
professional or an amateur, the specific circumstances of each individual case must be
considered, including the circumstances in the country concerned and any non-financial
benefits to which the player is entitled.
27. Having the above in mind, the Single Judge found that the player’s claim is not sufficiently
grounded since it lacked evidence to support his professional status at the club. The Single
Judge ruled thus that the threshold of comfortable satisfaction is not reached to establish
the contractual relationship between the Parties in order to determine that the criteria
under art. 2 of the Regulations is met. In particular, the Single Judge found that the notices
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REF. FPSD-12982
exchanged with the club alone are not sufficient as it was not accompanied by the
corroborating evidence, moreover in light of the evidence to the contrary as seen in TMS.
28. On account of the above, the Single Judge decided that no valid and binding employment
contract had been concluded between the Respondent and the Claimant, hence the latter’s
claim had no legal basis and it shall be rejected.
d. Costs
29. 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.
30. 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.
31. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
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REF. FPSD-12982
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Vladan Pesic, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12982
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
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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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