Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, 25 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
S téphane Burchkalter (France), member
Jérôme Perlem uter (France), member
on the claim presented by the player,
Petar Petkov ski, FYR Macedonia
represented by Mr Toni Jovchevski
as Claimant / Counter-Respondent
against the club,
Gil Vicente, Portugal
represented by Mrs. Ana da Silva Ferreira & Mrs. Isabel Carneiro Bastos
as Respondent / Counter-Claimant
and the club,
FK Rabotnicki, FYR Macedonia
as intervening party
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 15 July 2019, the North Macedonian player, Petar Petkovski (hereinafter:
the player), and the Portuguese club, Gil Vicente (hereinafter: the club), signed
an employment (hereinafter: the contract) valid as from the date of signature
until “the end of the 2020/2021 sports season”.
2.
Art. 3 of the contract provided the following: “for such activity, the player
shall receive the following remunerations:
“Season of 2019/2020 – The net total amount of EUR 48,000.00 corresponding
to fourteen net remunerations of EUR 3,428.57, two of which correspond to
holiday and Christmas allowances.
*One-off – both parties also agree that the form of payment of the referred
annual amount to be transformed into 12 monthly and equal instalments: In
the amount of EUR 4,000.00 each, which includes the holiday and Christmas
allowances proportionately.
Season 2020/2021 – The net total amount of EUR 54,000.00 corresponding to
fourteen monthly net remuneration of EUR 3,857.14, two of which
correspond to holiday and Christmas allows (sic)
*One-off – Both parties also agree that the form of payment of the referred
annual amount be transformed in 12 monthly and equal instalments: in the
amount of EUR 4,500.00 each, which includes the holiday and Christmas
allowances proportionately.
2. The monthly remuneration shall be paid by the fifth day of the month
following the month to which it relates.”
3.
According to art. 4 of the contract, “in case the club does not guarantee in
Portuguese First League during the season 2020/2021, the club and the player
agree that the player remain at the services of club, during the season
2020/2021, but with a reduction of 30% in the gross global remuneration of
EUR 54,000.00 of the player”.
4.
Art. 12 of the contract stipulates that “the parties agree if the player, during
the contract period, does not meet the necessary conditions for the practice of
football, with the exception of injuries resulting from an occupational
accident, the club may unilaterally resolve this contract, without invoking just
cause, no compensation is payable.”
5.
Moreover, art. 25 of the contract foresees that “in order to resolve any
conflicts arising from this agreement, the parties agree to submit the
respective solution to the Labor Court of the Judicial Court of Barcelos.”
6.
On 15 July 2019, the club referred to the player’s former club, the North
Macedonian club FK Rabotnicki Skopje (hereinafter: Rabotnicki), and offered it
to pay a fee amounting to EUR 18,000 for “the purpose of concluding a
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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Employment contract with [the player] (…) for the training compensation
claims” according to a payment schedule.
7.
On 15 August 2019, the player sent a “notification of warning” to the club by
means of which he urged the club, setting a deadline of 15 days, to register
him by no later than 30 August 2019, to pay him the outstanding half salary of
July 2019 amounting to EUR 2,000, to reintegrate him immediately in the
regular training process of the first team and to obtain the necessary local
residence and work permission. This, prior to exercising his unilateral right to
terminate the contract with just cause.
8.
On 15 August 2019, the club emailed the player and offered him its “final
proposal to finalize the situation of [the player]” which consisted in a payment
of three monthly salaries in the amount of EUR 12,000 as well as the possible
payment of travel expenses amounting to EUR 3,000.
9.
On 31 August 2019, the player terminated the contract unilaterally and, on the
same day, the player signed an employment contract with Rabotnicki, valid as
from the date of signature until 14 June 2020.
10.
On 5 September 2019, the club contacted the player requesting his bank
details, which the player transferred directly in reply thereto, however to no
avail.
11.
On 12 September 2019, the club replied to the player’s termination alleging
that it had been forced by the player “not to execute the contract, contrary to
what is claimed by [by the player]”. In this respect, the club referred to an
alleged injury of the player, prior to the conclusion of the contract, which
justified the non-registration of the player, as well as its training schedule
separating him from the team and the club’s inability to obtain the residence
and work permission. In addition, the club deemed that it had no outstanding
debts as to the salary for August 2019, that the player did not put the club
properly in default and that it did not obtain the player’s bank details after
having asked them repeatedly. Finally, the club suspected the player to have
had already another club to be registered with, that he tried to obtain illegal
benefits from the club and that, in any case, FIFA would not be competent in
the present matter due to the alleged competence of the local court as
provided in the contract.
12.
On 27 September 2019, the player lodged a claim against the club in front of
FIFA, requesting it to pay him outstanding remuneration and compensation
for breach of contract, as follows:
(1) EUR 6,000 as outstanding remuneration, composed of :
(2) EUR 2,000 as half a salary for July 2019 ;
(3) EUR 4,000 as a salary for August 2019.
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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(4) EUR 94,071 as compensation for breach of contract.
13.
The player further requested interest at a rate of 5% p.a. over the
aforementioned amounts as from the due dates.
14.
In his claim, the player held that by means of the letter sent to his former club,
the club confirmed the existence of a valid contract with him and “its
obligation to register the player and consequently to pay the training
compensation payment towards [Rabotnicki]”.
15.
In particular, the player underlined that on 31 August 2019, the club had
neither registered him with the Portuguese FA, nor provided the International
Transfer Certificate (ITC) by the former Macedonian FA, which, in his opinion,
proved that it decided “not to register [him] in order to save money which
should be paid as a training compensation to the former club”.
16.
In addition, the player held that after having played in some friendly matches,
he had been excluded from the regular training process and sent to train
occasionally alone with two other injured players for a period of more than 25
days. The player provided publicly available evidence in support of this
particular allegation.
17.
Furthermore, the player reminded that in his opinion the club “offered the
opportunity to walk away” which is an indication that the club no longer
counted on him.
18.
In addition, the player held that the club did not perform any duties regarding
the residence and work permission issues which, again, should prove the lack
of the club’s interest in him.
19.
Moreover, the player underlined that the club did not pay him one and a half
salary prior to termination despite his efforts to ask it to pay said amounts.
20.
In continuation, the player rejected the club’s response of 12 September 2019
to his termination notification entirely and, consequently, reiterated his
position as previously expressed in his default notice and deemed the occurred
termination to have been with just cause.
21.
In its reply to the claim, the club contested FIFA’s competence to adjudicate
the present as to the substance.
22.
According to the club, the contract provided an arbitration clause which
proved that “under the freedom of contract, [the parties] have chosen to
submit to a civil court, while having jurisdiction, the resolution of any dispute
arising from a contract of employment entered into”.
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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23.
Referring to the Regulations, the club explained why, in its opinion, the
player’s arguments as to the lack of competence of the Portuguese court are
inaccurate due to the fact that the player referred to FIFA’s rules and
requirements for NDRC’s, which are not applicable to the present.
24.
Moreover, the club further raised that “In the light of the foregoing, since [the
club] and [the player] have not designated the CAS as the competent
jurisdiction - otherwise the parties designated the Labor Court of the Judicial
Court of Barcelos in the contract of employment - Swiss law does not apply in
the present case and the Player's allegations cannot be made in that regard”.
25.
As to the substance and in case FIFA would be competent in the present
matter, the club referred to its sayings of 12 September 2019 and underlined
the content of clause 12 of the contract explaining that said clause “is justified
by internal restructuring reasons motivated by the rise of Gil Vicente FC to the
1st Portuguese Professional Football League, by administrative decision, after
having remained in the 2nd Portuguese Professional Football League for more
than a decade. In this context, the Club was forced to terminate and hire
about fifty players in a period of about three months. As such, due to the
impossibility of performing all medical examinations before the conclusion of
the employment contracts, the Club agreed with the Players that they would
sign an employment contract to insert a clause in the employment contracts
according to which if the Player did not meet the physical conditions necessary
for the practice of football, the Club could terminate the contract without
invoking just cause. So in this context the player and the club have mutually
agreed to firm the contract prior to the medical examinations.”
26.
In this respect, the club explained that only after the conclusion of the
contract, the player failed the medical exams “by having ruptured the left
knee meniscus”, injury that the club deemed to be prior to the singing of the
contract and about which he had not been informed before signing the
contract.
27.
In continuation, the club held that the principle of freedom should not be
overlooked by the provisions of article 18 par. 4 of the FIFA RSTP.
28.
Furthermore, the club deemed that it could not register the player due to the
aforementioned failed medical examinations and to the regulations of the
Portuguese FA which provide that “[the club] must prove the physical fitness
of [the player]”.
29.
As a consequence, the club rejected any fault as to the non-registration of the
player and referred again to the “totally credible medical evidence that leaves
no doubt about his limited physical condition” in order to justify its inability
“to proceed in order to obtain the “Residence and Work Permission”.
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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30.
In continuation, the club explained that due to the fact that the player was
physically compromised, its medical department understood that preventive
measures should be taken in order not to further aggravate his already
weakened condition, i.e. assign the player to a separate training, which was in
the present not anyhow linked to “economic motives or pressure on [the
player] to renounced his right from [the contract] and leave [the club] without
justifying reasons”.
31.
What is more, the club deemed that the salary of August 2019 could not be
held as outstanding as it became payable on 5 September 2019, therefore “the
question doesn't even arise”. Regarding the half salary of July 2019, the club
deemed that the player did not respect art. 14bis when terminating the
contract as at that moment, there were not two monthly salaries outstanding
on their due dates and further referred in support of its position to the
national law’s obligation to proceed to send a notice via registered letter.
32.
Moreover, the club reminded that it even tried to solve the dispute amicably
offering a settlement to the player in contrary with clause 12 of the contract,
to no avail, and that it only obtained “an attached document that was
supposed to identify his bank details but which was incomprehensibly blank”
when requesting it from the player.
33.
As a consequence, the club held that “the only possible alternative for [the
player] was to return to the previous Club that already knew of his injury since
the Player was already injured in the period when he was at its service” and
suspected both to arrange a low monthly salary in order to lightly mitigate the
hypothetical compensation due by it should the player’s termination be
considered as with just cause.
34.
Therefore, beside requiring the provision of the player’s contract with his new
club, the club equally lodged a counterclaim against the player only, in front
of FIFA, due the early termination of the contract by the player without just
cause and requested the “amount not less than the amount of compensation
that would be due if the employment contract had ceased at its end” of EUR
96,000.
35.
In his replica, the player firstly rejected the club’s arguments as to the alleged
competence of the “Labor Court of the Judicial Court of Barcelos”.
36.
In this respect, the player deemed that said court is not “an independent
arbitration tribunal that has been established at national level within the
framework of the association and/or a collective bargaining agreement”
respecting the requirements of art. 22 b) of the FIFA RSTP and the FIFA Circular
1010.
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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37.
Moreover, the player held that “the right of any player or club to seek redress
before a civil court for employment-related disputes” is “not compulsory for
the player / club to do so”.
38.
As a consequence, in the player’s opinion, FIFA is competent to deal with the
present dispute and its “absolute jurisdiction must be declared”.
39.
In addition, as to the club’s allegations on Swiss law, the player deemed that
“the RSTP lay down uniform standards for these questions of law at global
level (…) rather the reference to the “additionally” applicable Swiss law in
Art. 57 (2) of the FIFA Statutes is to ensure the uniform interpretation of the
standards of the industry”.
40.
Therefore, “if the parties have not chosen a subsidiary applicable law, then
FIFA must apply subsidiary the law that is most closely connected”, i.e. Swiss
law.
41.
As to the substance, the player contested the club’s allegations as to the
application of clause 12 of the contract and underlined that the “medical
evidence” as provided by the club in its reply to the claim is not conclusive in
the sense that : “the magnetic resonance (…) report (…) may not necessarily
indicate a lesion of the left knee meniscus which is a subjective persuasion of
the radiologist” and “the club doctor also confirms in the Medical Report (…)
that there are no clinical signs of un jury to the player and he gives only pure
personal predictions of what might happen in the future may be true or false”.
42.
In support of his allegations, the player provided two medical notices of
January and September 2019 according to which it was proven that “[the
player] at no point of time during his stay at [the club], before and after has
been injured, and all the period was fully capable for training and
competitions”.
43.
In addition, the player sustained that he performed with his new club as of
September 2019 which proves that he was not injured.
44.
Moreover, the player held that it was the club’s “duty to verify, prior to the
conclusion of a labor contract, whether [the player] was suitable for its
sporting needs” and therefore rejected the club’s allegations on said topic.
45.
In continuation, the player reiterated his position as to the club’s lack of will to
register him, as well as to his relegation from the regular training process of
the first team, and again, as to the reasons having led to termination, i.e. with
just cause.
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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46.
Finally, the player reiterated his previous request for relief in full and, as a
consequence, rejected the club’s counterclaim entirely due to the
aforementioned arguments.
47.
Despite having been invited to do so, the new club did not provide any
comments.
48.
Upon request of the FIFA administration, the player sustained that he signed
an employment contract with the North Macedonian club FK Rabotnicki valid
as from 31 August 2019 until 14 June 2020, entitling him to a monthly salary of
Macedonian Denar (MKD) 12,500 (approx. EUR 203).
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
DRC or Chamber) analysed whether it was competent to deal with the case at
hand. In this respect, the Chamber took note that the present matter was
submitted to FIFA on 27 September 2019. Consequently, the 2018 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to
the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules
and confirmed 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 (edition
January 2020) the DRC shall adjudicate on employment-related disputes
between a club and a player that have an international dimension.
3.
As a consequence, the Chamber, in principle, is competent to decide on the
present litigation which involves a Macedonian player, a Portuguese club and a
Macedonian club regarding an employment-related dispute.
4.
However, the DRC acknowledged that the club contested the competence of
FIFA’s deciding bodies on the basis of art. 25 of the contract, alleging that the
competent body to deal with any dispute deriving from the relevant
employment contract is the “Labor Court of the Judicial Court of Barcelos”.
5.
On the other hand, the Chamber noted that the player insisted on the
competence of the FIFA DRC to adjudicate on the claim he lodged against the
club.
6.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 of the Regulations, FIFA is competent to hear employment-related
disputes between a player and a club with an international dimension,
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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“without prejudice to the right of any player or club to seek redress before a
civil court for employment related disputes”.
7.
In the present matter, the DRC duly noted that the player and the club had
unambiguously and exclusively decided that any dispute that would arise from
the contract would be the “Labor Court of the Judicial Court of Barcelos”.
8.
The DRC recalled that parties may freely agree to give jurisdiction to a civil
court, and that such choice shall always prevail. In fact, the Chamber, recalling
its jurisprudence as well as CAS jurisprudence in this regard, and in particular
CAS 2013/A/3278, highlighted that even if the choice of law does not specify
which courts are competent (e.g. a generic reference is made to a region/city),
FIFA is not competent when the parties have exclusively agreed to the
jurisdiction of a civil court. In addition, the DRC emphasized that art. 22 of the
Regulations provide a clear hierarchy in favor of contractual autonomy.
9.
In view of all the above, the Chamber concluded that it was not competent to
hear the dispute between the player and club, and consequently declared the
claim of the player inadmissible.
*****
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant / Counter-Respondent, Petar Petkovski, is inadmissible.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS.
Within another 10 days following the expiry of the time limit for filing the statement of
appeal, the appellant shall file a brief stating the facts and legal arguments giving rise
to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Petar Petkovski, FYR Macedonia / Club Gil Vicente, Portugal / Club FK Rabotnicki, FYR Macedonia
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