Labour Disputes
Texto da decisão
REF. FPSD-9158
Decision of the
Dispute Resolution Chamber
passed on 4 May 2023
regarding an employment-related dispute concerning
the player Marko Petković
BY:
Omar Ongaro (Italy), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Calum Beattie (Scotland)
CLAIMANT:
Marko Petković, Serbia
Represented by Tarik Trbić
RESPONDENT:
Honved FC, Hungary
Represented by Tamás BAJÁKY
pg. 2
REF. FPSD-9158
I. Facts of the case
1.
On 11 January 2022, the player (hereinafter: Claimant or player) and Honved FC (hereinafter:
club or Respondent) concluded an employment contract (hereinafter: contract) valid as from
the date of signature until 30 June 2023.
2.
According to “Chapter XII. Personal Conditions” of the contract, the Respondent undertook
to pay the Claimant:
a. Hungarian Forint (HUF) 4,914,000 gross per month, payable by the 10th day of the
following month;
b. Performance bonuses, as follows:
i. HUF 8,500 gross per minute in case he “joins the game on the official matches of
the OTP Bank Liga NB1 (…) and if the club (…) sates the place as a winner in the official
record. (…) The aforementioned conditions are conjunctive (…)”
ii. HUF 8,471,000 gross if the club “acquires the right to start in the international cup
for the next season on the basis of the league position to the position achieved in the
Hungarian Cup, and the player plays more than 70% of the total minutes of the
matches played by [the club] in the series leading to the internecion cup (…)”
iii. HUF 4,266,000 gross “if the player has played more than 70% of the total minutes of
all matches played in the first division matches of the football team (…)”
c. “Sum and currency of net consideration paid to the player for using the player’s playing
rights (transfer fee) granted by the player (in case such payment takes place at the time
of concluding the contract / will take place at a later time: 3,600,000 HUT + VAT”.
3.
“Chapter XII. Personal Conditions” also stipulates that “Parties agree that the employer has an
unilaterally option to extend the held of the employee’s player rights between 1 July 2023 – 30
June 2024. The employer shall be entitled to exercise its option right in written form on or before
30 June 2024, and the employee shall accept this extension of the employer by signing this
agreement. The parties agree that if the employee has played at least 70% f the total minutes of
all matches player in the first division matches of the football team operated by the employer
(…) between 01 July 2022 and 30 June 2023, the present contract will be automatically extend
until 30 June 2024. Maximum of 90 minutes per match can be counted.” The contract also
stipulates that the player’s monthly salary for the “option year”, i.e. between 1 July 2023 and
30 June 2024 shall be of HUF 5,338,000 gross.
4.
According to “Chapter XII. Personal Conditions” of the contract, “The parties agree that the
employer is entitled to apply the provisions of Chapter 16 and Chapter XI and section 47 and
reduce the employee’s salary by up to 50%”.
5.
Chapter XI section 47 stipulates that “The employee acknowledges that if he/she is not included
in the first team of the employer, or based on the decision of the professional management
he/she is transferred to the second or further teams of the employer, his/her base wage will be
reduced to the percentage determined in the personal conditions of the amount given in point
15 – but to max its 50% - from the 15th days of the months following the decision”.
pg. 3
REF. FPSD-9158
6.
On 20 July 2022, the player received a letter from the club, in which the latter informed him
that his gross salary would be reduced by 50% as from 15 August 2022, i.e. to HUF 2,457,
in line with “Chapter XII. Personal Conditions” and with Chapter XI section 47 of the contract.
As per the club, “The above-mentioned conditions are fulfilled on 20 July 2022 upon the decision
of the professional management, so the employer was entitled to decide to reduce your wages”.
7.
On 18 November 2022, the player wrote a letter to the club, where he explained to have
been demoted to the second team since July 2022 without any justification and despite
being an experienced player. The player further states that “the club expressly informed the
player that he will not play for the first team any longer as they wish to find a way to let him go
despite the player’s request to be reinstated with the first team. Hence, by acting as such, the
club is breaching the player’s fundamental rights as a footballer”. He then requested the club
to immediately reinstate him with the first team and to pay the following outstanding
amounts, pending since August 2022, within the next 10 days:
- HUF 1,955,000 for the salary of August 2022
- HUF 2,863,000 for the salary of September 2022
- HUF 4,914,000 for the salary of October 2022.
8.
On 1 December 2022, the player sent the club another default notice, by means if which
he once again requested to be immediately reinstated in the first team and the payment
within the next 10 days of the following outstanding amounts:
- HUF 1,955,000 for the salary of August 2022
- HUF 2,863,000 for the salary of September 2022
- HUF 4,914,000 for the salary of October 2022
- HUF 4,914,000 for the salary of November 2022.
9.
On 8 December 2022, the club replied to the player’s default notices, claiming inter alia that
his claims are not justified. In particular, the club claims that “The employer’s action was
taken lawfully for sporting and professional reasons under the relevant provisions of the
employment contract. The mutually agreed employment contract included the possibility of the
redirection to the second team, so the employer was lawfully able to make such a decision. There
are several FIFA precedent decisions which show that this is a legal possibility of the employers”.
10. On 16 December 2022, the player sent a “final default notice” to the club, with the same
content of the previous ones, granting the club 15 days to make the payments.
11. On 2 January 2023, the player unilaterally terminated the contract, based on his unjustified
demotion to the second team for the past 5 months and the non-payment of the following
amounts:
- HUF 1,955,000 for the salary of August 2022
- HUF 2,863,000 for the salary of September 2022
- HUF 2,863,000 for the salary of October 2022
- HUF 2,863,000 for the salary of November 2022
- HUF 4,914,000 for the salary of December 2022.
pg. 4
REF. FPSD-9158
12. According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed until today.
II. Proceedings before FIFA
13. On 6 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
14. In his claim, the player argued that he was forced by the club to participate in the training
of the second team and that his salary was reduced by half. He states to have “complained
many times about this, but acted in good faith and trained for the next couple of weeks with the
second team of the club, waiting for him to being called back to the first team of Honved FC”.
However, in November 2022 he started requesting the club formally via default notices to
be reinstated in the first team and to receive the payment of his outstanding remuneration.
15. The player claims that “At time of termination, the player received part of August salary, half
salaries for September, October and November, and the December salary was unpaid in total.
Since July 2022 the player was forced to train with the second team of the Club, even if his status
and contractual relationship is for a professional player”. Thus, he understands he had a just
cause to terminate the employment contract on 2 January 2023.
16. Based on the foregoing he makes the following request for relief:
“[…] the Player is requesting the FIFA DRC to determine that he terminated the employment
relationship with the Club with just cause on 2 January 2023 - and to order the Club to pay
the Player the following amounts:
▪ Overdue payables, plus 5% interest p.a. as from the relevant payment dates until the
date of effective payment, specified as follows (cf. IV) :
- HUF 1 955 000 remaining salary for August 2022 plus 5% interest as from 11 September
2022.
- HUF 2 863 000 remaining salary for September 2022 plus 5% interest as from 11 October
2022.
- HUF 2 863 000 remaining salary for October 2022 plus 5% interest as from 11 November
2022.
- HUF 2 863 000 remaining salary for November 2022 plus 5% interest as from 11 December
2022.
- HUF 4 914 000 December salary 2022 plus 5% interest as from 2 January 2023.
▪ HUF 29 484 000* as the amount due as compensation for breach of contract + 5% interest
p.a. as from 2 January 2023 until the date of effective payment.”
*Player’s remuneration from 2 January 2023 until 30 June 2023.
pg. 5
REF. FPSD-9158
b. Position of the Respondent
17. In its reply, the Respondent claims that the player had no just cause to terminate the
contract.
18. In particular, it states that clause 47 of the contract – freely agreed between the parties –
allowed the club to remove the player from the first team and reduce his salary by 50% in
July 2022, following his allegedly unsatisfactory sporting performance. The player refused
to sign the document of 20 July 2022, by means of which the club informed him of its
decision.
19. The club also states that “the player had the opportunity to change his attitude and return to
the first team in the last 5 months but has not taken this opportunity”.
20. Art. 14bis cannot be applied to justify the termination in the present case, as the player’s
salaries were duly paid in accordance with the club’s decision. Thus, the player terminated
the contract without just cause.
21. Based on the foregoing, the club requests FIFA to reject the player’s claim and order him
to pay all costs incurred during the proceedings.
pg. 6
REF. FPSD-9158
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. 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 6 February 2023 and submitted
for decision on 4 May 2023. 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.
23. Subsequently, the members of 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 lit. b) of the
Regulations on the Status and Transfer of Players (March 2022 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 player and a club.
24. 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 (March 2023 edition), and
considering that the present claim was lodged on 06 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
25. 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
26. Its competence and the applicable regulations having been established, 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 the assessment of the matter at hand.
pg. 7
REF. FPSD-9158
i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the circumstances of the
early termination of the contract by the player.
28. In this context, the Chamber acknowledged that it its task was to decide if the player had
just cause to terminate the contract on 2 January 2023 and to decide on the consequences
thereof.
29. The DRC duly noted that according to the Claimant, he terminated the contract with just
cause due to outstanding remuneration, originating from the club’s unlawful decision to
exclude him from the first team and arbitrarily reduce his salary by 50%.
30. On the other hand, the Chameber took note of the Respondent’s argumentation that the
player’s exclusion from the first team and the relevant reduction of his salaries were
allowed by clause 47 of the contract, which was freely agreed between the parties. Thus,
no amounts are outstanding and the player had no just cause to terminate the contract.
31. The members of the Chamber started to analyse the content of clause 47 of the contract:
“The employee acknowledges that if he/she is not included in the first team of the employer, or
based on the decision of the professional management he/she is transferred to the second or
further teams of the employer, his/her base wage will be reduced to the percentage determined
in the personal conditions of the amount given in point 15 – but to max its 50% -from the 15th
days of the months following the decision”.
32. In this context, the DRC wished to emphasize that, even though this clause is included in
the contract, the terms of which were agreed upon by the parties, it is indeed of an arbitrary
nature, as it allows the club unilaterally and based on a personal perception of the player’s
performance, to considerably reduce his monthly remuneration to half of it, with almost
immediate effect. Thus, the Chamber decided that clause 47, due to its arbitrary nature
and the concrete arbitrary and unjustified circumstances in which it was applied by the
club, cannot be taken into account to justify the non-payment of the player’s regular
monthly remuneration, as stipulated in the contract.
33. The members of the Chamber noted that the Claimant claims not having received his
remuneration corresponding to August, September, October and November 2022 in part
and December 2022 in full. Furthermore, the Claimant has provided written evidence of
having put the Respondent in default on 18 November 2022, 1 December 2022 and 16
December 2022, i.e. more than 15 days before unilaterally terminating the contract on 2
January 2023.
pg. 8
REF. FPSD-9158
34. The DRC pointed out that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties. Nonetheless, the club not only failed to provide any evidence of payment, but
confirmed not having paid such amounts. The members of the Chamber clarified that the
club’s justification for the non-payment cannot be accepted, as explained above.
35. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
36. 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.
37. 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 the following
salaries under the contract:
- HUF 1 955 000 remaining salary for August 2022;
- HUF 2 863 000 remaining salary for September 2022;
- HUF 2 863 000 remaining salary for October 2022;
- HUF 2 863 000 remaining salary for November 2022;
- HUF 4 914 000 December salary 2022.
38. 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. HUF
15,458,000 (cf. point above).
39. 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 respective due dates until the date of
effective payment.
40. 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
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.
pg. 9
REF. FPSD-9158
41. 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.
42. 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.
43. 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 HUF 29,484,000 (i.e. the salaries between January 2023 until
June 2023; 6x HUF 4,914,000) serves as the basis for the determination of the amount of
compensation for breach of contract.
44. 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.
45. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
46. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player 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.
47. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of HUF 29,484,000, i.e. 6 times HUF 4,914,000, as the residual value
of the contract.
48. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 3 January 2023 until the date of effective payment.
pg. 10
REF. FPSD-9158
iii. Compliance with monetary decisions
49. 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.
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 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. 24 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 Account 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. 24 par. 8 of
the Regulations.
d. Costs
54. 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.
55. 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.
56. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-9158
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marko Petković, is accepted.
2.
The Respondent, Honved FC, must pay to the Claimant the following amount(s):
- Hungarian Forint (HUF) 1,955,000 as outstanding remuneration plus 5% interest p.a.
as from 11 September 2022 until the date of effective payment;
- HUF 2,863,000 as outstanding remuneration plus 5% interest p.a. as from 11 October
2022 until the date of effective payment;
- HUF 2,863,000 as outstanding remuneration plus 5% interest p.a. as from 11 November
2022 until the date of effective payment;
- HUF 2,863,000 as outstanding remuneration plus 5% interest p.a. as from 11 December
2022 until the date of effective payment;
- HUF 4,914,000 as outstanding remuneration plus 5% interest p.a. as from 3 January
2023 until the date of effective payment;
- HUF 29,484,000 as compensation for breach of contract plus 5% interest p.a. as from
3 January 2023 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
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.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-9158
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
pg. 13