Labour Disputes
Texto da decisão
REF FPSD-2720
Decision of the
Dispute Resolution Chamber
passed on 14 October 2021
regarding an employment-related dispute concerning the player Denis Popovic
BY:
Frans de Weger (Netherlands), Chairperson
José Luis Andrade (Portugal), member
Roy Vermeer (Netherlands), member
Denis Popovic, Slovenia
Represented by Mr Dejan Stefanović
Qingdao Huanghai FC, China PR
Represented by Mr Tomas Pereda and Mr Giandonato Marino
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REF FPSD-2720
I.
Facts of the case
1.
On 1 September 2020, the Slovenian player, Denis Popovic (hereinafter: player or Claimant),
and the Chinese club, Qingdao Huanghai FC (hereinafter: club or Respondent) signed
concluded an employment contract (hereinafter: contract) valid as from the date of signature
until 31 December 2021.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies in 2021:
- EUR 330,000 net as “pre-payment” until 31 January 2021;
- EUR 64,166 net as monthly salary (12x).
3.
On 11 May 2021, the Claimant put the Respondent in default and requested payment of EUR
416,498, corresponding to a part of his “pre-payment”, 3 monthly salaries and bonuses,
within 15 days.
4.
On 28 May 2021, the Claimant reiterated his request for outstanding remuneration and
requested the Respondent to comply within 3 days.
5.
On 1 June 2021, the Claimant terminated the contract with the Respondent due to the club’s
non-compliance with its financial obligations, in reference to art. 14bis RSTP.
6.
According to information contained in the Transfer Matching System (TMS), on 19 July 2021,
the player signed an employment contract with the Cypriot club, Anorthosis Famagusta, valid
as of 19 July 2021 until 31 May 2023, including a total salary of EUR 50,000 during the period
until 31 December 2021.
II. Proceedings before FIFA
7.
On 4 June 2021, 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
8.
In his claim against the Respondent, the Claimant requested payment of the following monies
“with interest”:
- EUR 220,000 net as outstanding part of his “pre-payment”;
- EUR 256,664 net, corresponding to the salaries of February until May 2021;
- EUR 449,162 net as compensation, corresponding to the residual value of the contract;
- EUR 192,498 net as additional compensation.
9.
In this context, the player held having had just cause to terminate the contract on 1 June
2021 in accordance with art. 14bis RSTP, after having put the club in default.
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b. Position of the Respondent
10. In its reply to the claim, the Respondent acknowledged the debt towards the player due to
financial difficulties, but held that the player’s claim for compensation shall be reduced.
11. In this regard, the Respondent requested to the player’s obligation to mitigate his damages
and to take into account a possible new employment contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 04 June 2021 and submitted for decision
on 14 October 2021. Taking into account the wording of art. 34 of the October 2021 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.
13. 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 (August 2021 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 Slovenian player and
a Chinese club.
14. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 04 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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).
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c. Merits of the dispute
16. 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.
i. Main legal discussion and considerations
17. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the Claimant’s argumentation that he terminated the contract with just
cause, after having put the Respondent in default for a part of his “pre-payment”, 3 monthly
salaries and bonuses amounting to more than 3 monthly salaries in total.
18. Moreover, the DRC noted that the Respondent acknowledged its debt and declared that it
faces financial difficulties.
19. In this context, the Chamber acknowledged that it its task was to determine as to whether
the contract was terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
20. Consequently, on account of the above, considering that the Respondent had thus repeatedly
and for a significant period of time been in breach of its contractual obligations towards the
Claimant, the Chamber decided that the Claimant had just cause to unilaterally terminate the
employment contract on 1 June 2021 in accordance with art. 14bis of the Regulations and
that, as a result, the Respondent is to be held liable for the early termination of the
employment contact with just cause by the Claimant.
ii. Consequences
21. 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.
22. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are amounting to EUR 476,664 net
corresponding to the outstanding part of his “pre-payment” and the salaries between
February 2021 and May 2021.
23. 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. EUR 476,664
net.
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24. 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.
25. 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.
26. 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.
27. 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.
28. 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 EUR 449,162 (i.e. the residual value of the contract) serves as the basis
for the determination of the amount of compensation for breach of contract.
29. 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.
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30. Indeed, the player found employment with Anorthosis Famagusta. In accordance with the
pertinent employment contract, the player was entitled to EUR 50,000 until 31 December
2021. Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of EUR 50,000.
31. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
32. In this respect, the DRC decided to award the amount of additional compensation of USD
EUR 192,498, i.e. three times the monthly remuneration of the player.
33. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR 449,162
net to the player, taking into account that the overall compensation may never exceed the
rest value of the prematurely terminated contract. Such amount of compensation is
considered to be a reasonable and justified amount of compensation for breach of contract
in the present matter.
34. 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 the date of claim, i.e. 4 June 2021, until the date of effective
payment.
iii. Compliance with monetary decisions
35. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
36. 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.
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37. 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. 24bis par. 2, 4, and 7 of the Regulations.
38. 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.
39. 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. 24bis par. 8 of
the Regulations.
d. Costs
40. 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.
41. 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.
42. Lastly, the DRC 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, Denis Popovic, is partially accepted.
2.
The Respondent, Qingdao Huanghai FC, has to pay to the Claimant, the following amount(s):
- EUR 220,000 net as outstanding remuneration plus 5% interest p.a. as from 1 February
2021 until the date of effective payment;
- EUR 64,166 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2021
until the date of effective payment;
- EUR 64,166 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2021
until the date of effective payment;
- EUR 64,166 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2021
until the date of effective payment;
- EUR 64,166 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2021
until the date of effective payment;
- EUR 449,162 net as compensation for breach of contract plus 5% interest p.a. as from 04
June 2021 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. 24bis 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 the ban shall
be of 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 art. 24bis par. 7 and 8 and art. 24ter 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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