Labour Disputes
Texto da decisão
REF FPSD-6826
Decision of the
Dispute Resolution Chamber
passed on 1 February 2023
regarding an employment-related dispute concerning the player
Jaka Cuber Potocnik
BY:
Frans de Weger (the Netherlands), Chairperson
Roy Vermeer (the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
ŠD NK Olimpija Ljubljana, Slovenia
Represented by Bär & Karrer AG
RESPONDENT 1:
Jaka Cuber Potocnik, Slovenia
Represented by Blaž T. Bolcar
RESPONDENT 2:
1. FC Köln, Germany
Represented by Lentze Stopper
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I. Facts of the case
1.
On 1 June 2021, the Slovenian minor player Jaka Čuber Potočnik (hereinafter: the player
or the Respondent 1) and the Slovenian club NK Olimpija Ljubljana (hereinafter: the club or
the Claimant) concluded an employment agreement (hereinafter: the contract) valid as
from said date until 30 June 2024.
2.
Since the player was born on 17 June 2005 and therefore was underaged when he signed
the contract, he was assisted and represented by his mother, Ms. Tina Čuber, who equally
signed the contract.
3.
In accordance with the contract, the Claimant undertook to pay to the player the following
amounts:
“(1)
-
Period from 01.06.2021 until 30.06.2022
a monthly gross amount of EUR 1.200,00 + VAT, by the 20 day of the month for the
previous month, with statutory default interest charged from the day of arrears until the
day of payment in the event of arrears,
-
Period from 01.07.2022 until 30.06.2023
a monthly gross amount of EUR 1.400,00 + VAT, by the 20 day of the month for the
previous month, with statutory default interest charged from the day of arrears until the
day of payment in the event of arrears,
-
Period from 01.07.2023 until 30.06.2024
a monthly gross amount of EUR 1.600,00 + VAT, by the 20 day of the month for the
previous month, with statutory default interest charged from the day of arrears until the
day of payment in the event of arrears,
(4) The club will provide other benefits to the player for the duration of the contract:
- 250 EUR gross for apartment rental costs, or provide him a free suitable stay, with which
the player must agree;
- adequate nutrition, which must include at least two hot meals a day, for the time when
the player is not provided with food while attending school, in case the club cannot
provide adequate nutrition, the club will pay him a meal allowance of EUR 100 per
month.;”
4.
Furthermore, under article 8 of the contract, the Claimant undertook the following
obligations:
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i.
to ensure conditions for training and playing matches in a manner that will offer the
player the optimal conditions for playing matches and training with the club’s first team
under the professional guidance of the trainers of the club’s first team. Other
discriminatory treatment of the player is not allowed. In exceptional cases, special
treatment of the player is allowed in cases where the player is recovering after illness
or injury or, when a disciplinary measure has been imposed on the player;
ii.
to provide the requisite equipment for training and competing, regularly and in a timely
manner;
iii.
to allow the player to participate in international matches, the preparations for such
matches and other duties related to selection for international appearances, in the
manner and for the duration set out by the rules of FIFA, UEFA and the NZS;
iv.
to perform all its financial and other obligations under this contract by the
contractually stipulated deadlines;
v.
to support the player’s decision to undertake further education or vocational training
for his post-football career at his own expense, and to enable him to be trained through
other SPINS project programmes or any other educational institution;
vi.
to organise the player’s obligations under this contract in such a way that within a
period of seven (7) days the player is normally provided with a rest for a continuous
period of at least twenty-four (24) hours. If due to exceptional circumstances (e.g.
matches, preparations) the rest referred to in the previous sentence cannot be
guaranteed within seven (7) consecutive days, the player has the right to rest at the first
opportunity, and within the next 10 days at the latest;
vii.
to provide the player with medical care in the form of regular medical treatment;
viii.
to cover all the costs of the player’s medical treatment and rehabilitation not covered
by compulsory health insurance. These are costs arising from referral by the club
doctor and resulting from illness or injury for the duration of this contract and for at
least three months after the expiry of the contract if the illness or injury occurred during
the term of the contract, unless the player and the club agree otherwise;
ix.
not to hinder the player from participating in the meetings of the SPINS Board of
Directors or SPINS general meetings and at SPINS XI events (safeguarding the right to
trade association and engagement);
x.
to regularly pay the SPINS membership fee at the request of the player.”
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5.
On 23 January 2022, the player’s mother sent an email to the Claimant, complaining about
the fact that the latter was not respecting the terms of their written and verbal
agreements as well as the promises made by the Claimant’s director during the previous
year, namely regarding the player’s training with the national team and more in general,
about his development as a footballer. For the sake of clarity, the text of the mentioned
letter is reproduced in continuation here below:
“I am again addressing you as the mother of your player Jaka Čuber Potočnik and also on
his behalf.
As it was presented to you, it was agreed with the club at the time of signing of the contract
that Jaka will have individual training with a fitness coach at least twice a week and
individual training with a coach who takes care of developing playing football techniques
once a week. We also agreed that the club will allow the player to move abroad if the player
and his parents so wish and if the compensation for the transfer exceeds € 100,000. Maybe
it is our fault that we did not write this in the contract, but I believe that Olimpija is such a
club that respects the given commitments.
We have talked several times in recent months about the status of my son and the
realization of the agreement between my son and the club, but to this day things have not
changed. We first met Mr. Rudonja and Mr. Skender on 5 December 2021, when we were
assured that Jaka would be provided with everything agreed upon (something that had not
been respected until then). Then you and Mr. Rudonja had a meeting with the representative
of Jaka and our family, Mr. Šukalo, whom you clearly told that transferring to a new club
was out of the question and that you would respect everything agreed (except that you
would not put it on paper in the form of an annex). Finally, on 18 January 2022, me and my
husband (Jaka’s father) met with you.
You have assured to me, my husband and to our representative Mr. Sukalo that Jaka is a
project of the club and that you will take care of its development as promised. However, to
the present date there has been no change. Jaka signed a contract under which he shall be
training and playing with the first team. Jaka does not train with the first team (he is not
involved in any activities of the first team at all; he was not invited to the training camp of
the first team), he does not have individual trainings, nothing has changed. You also didn’t
even want to hear about a transfer to another club, even though the compensation was
supposed to be well over the agreed amount. As a mother and legal representative of my
son I do not know what is going on and why things agreed in writing and orally are not being
respected. Let alone I cannot understand what you mean by saying that it is you who will
decide to whom my son will be “sold”. This should always be the decision of all parties
involved, taking into account all agreements.
We are very disappointed after our last meeting, both with regard to your manners and
regarding the failure to honor what has been agreed. Therefore, we demand that all the
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above promises made by the club at the time of concluding the contract be formalized in
the form of an annex and that all (oral) agreements and the contract be immediately fulfilled
in full. We expect fulfillment of all agreements by this Friday.”
6.
On 24 January 2022, the Claimant’s director replied to the player’s mother reassuring the
latter that the player was still at the center of the Claimant’s football project as the club
was aware of the player’s talent and potentialities.
7.
On 30 January 2022, the player’s mother notified the unilateral termination of the contract
to the Claimant, accusing the latter of having not complied with its contractual obligations
nor with the promises made at the beginning of the employment relationship.
8.
On 31 January 2022, the German club 1. FC Köln (hereinafter: Köln or the Respondent 2)
uploaded an instruction for the transfer of the player from the Claimant to Köln in the
FIFA Transfer Matching System (TMS), i.e., instruction type “engage out of contract against
payment”. In said transfer instruction, a copy of the professional contract executed
between the Player and Köln and dated 31 January 2022 was uploaded (hereinafter: the
Köln contract). The Köln contract was equally signed by the player’s mother and stipulated
a duration from 31 January 2022 until 30 June 2024.
9.
Pursuant to the Köln contract, the player was entitled to the following payments:
i. EUR 1,000 payable from 31 Jan 22 to 30 June 22
ii. EUR 1,500 payable from 1 July 22 to 30 June 23
iii. EUR 2,000 payable from 1 July 23 to 30 June 24.
iv. Monthly guaranteed amount of EUR 250 gross.
10. By means of correspondence uploaded in TMS on 6 February 2022, the Claimant objected
to the issuance of the International Transfer Certificate (ITC) request made by Köln,
alleging the existence of a binding contract with the player.
11. Accordingly, on 24 March 2022, the Players’ Status Chamber of the Football Tribunal
passed a decision, allowing the provisional registration of the player with Köln.
12. On 20 April 2022, Köln sent an email to the Claimant requesting to issue an invoice for the
training compensation originating from the relevant transfer of the player.
13. On 21 April 2022, the Claimant replied to Köln, arguing that no invoice would be issued at
the time as the Claimant wanted to refrain from any steps that could in any way indicate
the legitimacy of the player’s transfer.
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II. Proceedings before FIFA
14. On 25 July 2022, 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
15. According to the Claimant, the player unilaterally terminated the contract without just
cause, but rather because induced to do so by Köln.
16. In this context, the Claimant stated that the player terminated the Contract because of
oral commitments that have no evidence, nor that were reflected in the contract. In
particular, in the Claimant’s view, the player was never entitled to play for the first team,
nor to individual training sessions based on the contract.
17. Moreover, and contrarily to the player’s mother’s letter dated 23 January 2022, the
Claimant denied having undertaken to allow a transfer abroad if the player had expressed
his desire to such transfer and the amount of compensation had exceeded EUR 100,000.
18. Accordingly, the Claimant objected to the player’s termination, holding that the timing of
his move to Köln would lead to believe that it was indeed the latter to induce the unlawful
breach.
19. As a consequence, the Claimant argued that Köln shall be held jointly liable to pay a
compensation, which according to the Claimant shall correspond to the effective value of
the player on the football market.
20. In this respect, the Claimant referred of concrete negotiations having taken place before
the player’s move to Köln, namely with the Croatian club GNK Dinamo Zagreb
(hereinafter: Dinamo), for the transfer of the player to the latter against a payment of EUR
2,500,000. In this regard, the Claimant produced a copy of a letter of interest sent by
Dinamo on 2 December 2021.
21. Furthermore, the Claimant demanded an additional compensation valued on the basis of
the residual salary of the player, based on the specificity of sport.
22. Beside the above, the Claimant remarked that Köln already acknowledged a debt of EUR
69,972.60 as training compensation to be paid to the Claimant.
23. Finally, a 5% interest per annum has been requested on top of the claimed sums as from
the date of termination, i.e., 30 January 2022.
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b. Position of the player
24. In its reply, the player firstly argued that because neither the contract nor the previous
oral agreements between the parties were respected by the Claimant, the player’s
parents and the player’s representative, Mr. Goran Šukalo, had held several meetings in
person with the Claimant over a period of 5 months in order to find a compromise.
25. In this context, contrarily to what stated by the Claimant, the player alleged that the latter
kept promising to respect its verbal agreements. In particular, the player referred to a
letter dated 24 January 2022 which recites the following:
“Your agreement with the club’s representatives - in addition to the contract, as you state - of
course also applies and the club fully respects it and will of course comply with it in the future.”
26. In this respect, the player held that the sudden change of mind by the Claimant could be
due to the change of property occurred in November 2021, as the new owners might have
decided not to honor the previous agreements with the player. Accordingly, the player
argued that the Claimant acted in an abusive manner against the player’s interests, thus
entitling the latter to terminate the Contract with just cause on 30 January 2022.
27. Furthermore, the player argued that the offer allegedly made by Dinamo for his transfer
was indeed fabricated by the Claimant in order to deceive the FIFA judging bodies, hence
the amount claimed as compensation lacks legal grounds.
28. In support of his allegations, the player argued that the mentioned offer was never
communicated to the player’s family, nor it was ever signed by Dinamo but rather by an
intermediary and that in any case, it clearly appears disproportionate in consideration of
the player’s young age and lack of international reputation.
29. Subsidiarily, the player argued that even if any compensation had to be paid to the
Claimant, the real amount shall be significantly lower than the one demanded by the
latter, namely because it would be illogical to pay EUR 2,500,000 for a player whose salary
amounts to EUR 1,200 only while the relevant transfer value of the player was largely
inferior.
30. In conclusion, the player declared that the unilateral termination of the Contract
represented for him the last and only possible resort in such a situation of abuse by the
Claimant and requested to reject the claim in its entirety.
c. Position of Köln
31. In its reply, Köln argued that the only reason for which the player had signed an
employment contract as professional with the Claimant in spite of his underage was
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because of the latter’s promises of being part of the first team and receiving individual
training sessions to refine his skills.
32. In this respect, Köln submitted a witness statement from the Claimant’s former president,
Mr. Milan Mandaric, which allegedly would confirm the content of the negotiations and
oral agreements between the player and the Claimant.
33. Nevertheless, Köln stated that the Claimant failed to offer the player a good environment
for the correct development of his skills and this misconduct, eventually, led to the
player’s total lack of faith in the Claimant.
34. Furthermore, Köln referred of the first contact with the player as occurred in December
2021 only (i.e., before the player’s termination), and that it was the player’s dissatisfaction
to lead the latter to sign a contract with Köln on 31 January 2022.
35. Finally, regarding the effective value of any potential compensation that shall be paid by
the player or Köln, the latter objected to the calculation presented by the Claimant,
namely because consistently with the oral agreement between the Claimant and the
player, a value of EUR 100,000 had been considered the threshold triggering the
Claimant’s consent for the player’s transfer abroad.
36. On the contrary, according to Köln, the compensation shall be calculated on the basis of
the difference between the residual value of the contract with the Claimant and the value
of the contract with Köln, which would amount to EUR 5,000.
37. In this context, Köln argued that even admitting the application of the principle of
specificity of sport, in consideration of the real market value of the player (i.e., EUR
100,000), the maximum compensation payable shall correspond to EUR 105,000.
38. Finally, Köln rejected holding any joint liability, allegedly because the first contact with the
player and the subsequent sign occurred at a later stage of the relationship between the
latter and the Claimant, namely when there was no trust anymore nor any concrete
positive expectations from the player as the Claimant had already disattended all his
promises.
39. In support of the above, Köln remarked having offered the player an even lower salary
than the one granted by the Claimant, hence not even the monetary factor could be
considered evidence in support of the legal presumption that Köln has induced the
player’s breach.
40. Finally, for what concern the offer of payment of training compensation to the Claimant,
Köln referred to it as mistake occurred in good faith, namely as it was unaware of the
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inapplicability of the relevant provision to the cases of unilateral termination with just
cause.
41. Accordingly, Köln also rejected any further request from the Claimant in regard to training
compensation.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
42. 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 25 July 2022 and submitted
for decision on 1 February 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.
43. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. a) of the Regulations on the Status and Transfer of Players (October 2022),
the DRC is competent to deal with the matter at stake, which concerns a dispute in
relation to the maintenance of the contractual stability where there has been an ITC
request and a claim from an interested party in relation to said ITC request between a
Slovenian player and a Slovenian club, with the involvement of a German club.
44. In this respect, the Chamber wished to clarify that art. 22 par. 1 lit. a) extends FIFA’s
jurisdiction over disputes between players and clubs having the same nationality, namely
because under the scope of the cited provision, it is the issuance of the ITC and the fact
that the player’s new club is affiliated to a different member association that gives the
dispute an international dimension, moreover due to the fact that that the issuance of
said ITC was disputed.
45. Therefore, if an employment dispute with no international dimension arises between a
player and a club (i.e., if both parties have the same nationality), and the player only
decides to transfer internationally to a club affiliated to a different member association
after the original dispute arises, their proposed international transfer cannot be cited as
the reason for the underlying contractual dispute. Hence, there would be no international
dimension to the original contractual dispute, and the relevant national decision-making
authority is competent to deal with it. In the matter at hand however, the Chamber
confirmed that the above does not apply in that the issuance of the relevant ITC was
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disputed before by the Claimant before the present controversy arose, and therefore FIFA
is competent to hear the dispute under art. 22 par. 1 lit. a) RSTP.
46. Further to the above, the DRC outlined that the Claimant has filed a request to be awarded
training compensation on the basis of art. 20 of the Regulations. In this respect, the DRC
referred to art. 27 and 28 of the Procedural Rules, according to which claims regarding
the payment of training compensation must be filed and managed exclusively via TMS. In
other words, the Chamber pointed out that the Claimant has wrongly filed its petition
insofar as it should have been lodged in TMS. To this end, the DRC noted that there are
sensible differences as to the proceedings regarding breach of contract and payment of
training compensation, for instance: the legal basis for both claims, the fact that the player
is not a party to the latter proceeding and therefore has no standing to be sued in that
respect, and the issues of costs which do not apply where a player is a party, but do apply
contrario sensu in line with article 25 par. 1 and 2 of the Procedural Rules.
47. As such, the DRC ruled this part of the claim, i.e., regarding the payment of training
compensation, is inadmissible. In doing so, it equally determined that the Claimant shall
file it using the proper channels in line with the Procedural Rules, should it wish to do so.
48. 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 (October 2022 edition)
and considering that the present claim was lodged on 25 July 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
49. 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 TMS.
c. Merits of the dispute
50. 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.
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i. Main legal discussion and considerations
51. 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 whether the player had
just cause to terminate the contract on 30 January 2022.
52. In this context, the Chamber took note of the argument among the parties concerning
the binding scope of the prior verbal agreements between the player and the Claimant
outside their contractual stipulations, especially concerning the alleged Claimant’s duties
to have the player play for the first team and to facilitate his professional development.
53. In this context, the Chamber observed that the player as well as Köln produced several
witness statements and excerpts from emails as evidence in support of their defensive
thesis.
54. Furthermore, based on the documentation on file, the Chamber emphasized that the
same Claimant did not seem to expressly deny the existence of such verbal agreements,
in particular with respect to the promise of making the player play for its first team.
55. Moreover, in the Chamber’s view, the fact that the contract offered to the player was a
professional one would have corroborated the player’s expectations regarding his future
career at the club. Notwithstanding the above, the Chamber wished to recall the principle
of ultima ratio, according to which the termination of a contract should always be a last
resort. Equally, the Chamber remarked that just cause exists when the breach is
considered sufficiently serious, i.e., when there are objective circumstances that would
render it unreasonable to expect the employment relationship between the parties to
continue, such as a serious breach of trust.
56. In this respect, the Chamber was of the opinion that the Player has not sufficiently
established such breach of trust, and that the Claimant’s conduct could not be deemed
as a substantial violation of the employment agreement, capable of triggering the
consequences of an unlawful termination. In other words, the Chamber was of the
opinion that no ultima ratio existed. In particular, according to the Chamber, the content
of the relevant exchange of correspondence between the parties and the respect by the
Claimant of its (formal) contractual obligations until the date of termination would
suggest the club’s good faith and positive attitude towards the player, being the
temporary decision not to move the player to the first team not sufficient per se in order
to assume a permanent neglection by the club of other potential, if existing unwritten
agreements concerning the player’s future perspectives, and even if the contract, as it did,
had assigned the player to the first team.
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57. Conversely, the Chamber emphasized that the timeline of the case in fact denotes the
player’s eagerness, via his legal representative, to terminate the contract with the
Claimant in order to stipulate a new labor agreement with a club as prominent as Köln.
On this basis, the Chamber unanimously confirmed that the player did not have just cause
to terminate the contract.
58. In view of the above, the Chamber concluded that the player committed a severe breach
of contract against the Claimant and should therefore be held liable to bear the potential
sporting and financial consequences of such breach.
ii. Consequences
59. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the club by the player 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, the fees and expenses paid or incurred by the former club
(amortised over the term of the contract) and depending on whether the contractual
breach falls within the protected period.
60. 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.
61. 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. Consequently, 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
62. Bearing in mind the foregoing as well as the claim of the club, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
until its term. As such, the Chamber concluded that the amount of EUR 49,250 (i.e., the
residual value of the contract) serves as the basis for the determination of the amount of
compensation for breach of contract.
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63. In continuation, the Chamber verified whether the player had signed an employment
contract with another club during the relevant period of time. According to the constant
practice of the Chamber as well as art. 17 par. 1 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 due by a player to his former club. In
particular, the Chamber explained that its standard practice is to calculate the average
between the player’s remuneration with his former club and his remuneration with the
new club, for the exact same period of time comprised between the early termination of
the employment contract with the old club and the original expiry date of such contract.
In case substantial evidence thereof is provided by the club, the Chamber might
additionally grant the damaged club the non-amortised transfer fee paid for the player in
breach and/or the actual costs incurred by the damaged club in order to replace the
leaving player.
64. Indeed, the Chamber noted that the player found a new employment with Köln valid as
from 30 January 2022 until 30 June 2024. In accordance with the pertinent employment
contract, the player was entitled to a total remuneration of EUR 54,250.
65. Thus, the Chamber concluded that between the date of early termination of the player’s
contract with his former club and its original expiry date, the average between his
remuneration with the former club and his current remuneration amounts to EUR 51,750,
that is, (EUR 49,250 + 54,250) / 2.
66. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the player must pay the
amount of EUR 51,750 to the Claimant, which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
67. Furthermore, 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 club interest on
said compensation at the rate of 5% p.a. as of 30 January 2022 until the date of effective
payment.
68. Lastly, the Chamber decided that, in accordance with art. 17 par. 2 of the Regulations,
Köln shall be jointly and severally liable for the payment of the aforementioned amount
of compensation. In this respect, the Chamber was eager to point out that the joint liability
of the player’s new club is independent from the question as to whether the new club has
committed an inducement to contractual breach or any other kind of involvement by the
new club.
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iii. Sporting sanctions
69. In continuation, the Chamber focused on the further consequences of the breach of
contract in question and, in this respect, it addressed the question of sporting sanctions
against the player in accordance with art. 17 par. 3 of the Regulations. The cited provision
stipulates that, in addition to the obligation to pay compensation, sporting sanctions shall
be imposed on any player found to be in breach of contract during the protected period.
70. In this respect, the Chamber referred to item 7 of the “Definitions” section of the
Regulations, which establishes, inter alia, that the protected period shall last “for three
entire seasons or three years, whichever comes first, following the entry into force of a contract,
where such contract is concluded prior to the 28th birthday of the professional, or two entire
seasons or two years, whichever comes first, following the entry into force of a contract, where
such contract is concluded after the 28th birthday of the professional”.
71. With regard to art. 17 par. 3 of the Regulations, the Chamber emphasised that a
suspension of four months on a player’s eligibility to participate in official matches is the
minimum sporting sanction that can be imposed for breach of contract during the
protected period. This sanction, according to the explicit wording of the relevant
provision, can be extended in case of aggravating circumstances. In other words, the
Regulations intend to guarantee a restriction on the player’s eligibility of four months as
the minimum sanction. Therefore, the relevant provision does not provide for a possibility
to the deciding body to reduce the sanction under the fixed minimum duration in case of
mitigating circumstances.
72. In this respect, the Chamber took note that the player was born on 17 June 2005 and the
relevant contract with the club was concluded on 1 June 2021. Furthermore, the Chamber
noted that the player terminated the contract without just cause on 30 January 2022. The
breach of contract by the player had therefore occurred within the protected period.
Consequently, the Chamber decided that, by virtue of art. 17 par. 3 of the Regulations,
the player had to be sanctioned with a restriction of four months on his eligibility to
participate in official matches.
73. Subsequently, the Chamber recalled that, in accordance with art. 17 par. 4 of the
Regulations, it shall be presumed, unless established to the contrary, that any club signing
a professional player who has terminated his previous contract without just cause has
induced that professional to commit a breach. Consequently, the Chamber pointed out
that the party that is presumed to have induced the player to commit a breach carries the
burden of proof to demonstrate the contrary. In this respect, the Chamber highlighted
that the player’s new club, i.e., Köln, was not able to present enough evidence as to
reverse the respective presumption contained and is, therefore, to be considered as
having induced the player to commit a breach of contract, which the Chamber further
highlighted stemmed quite clearly from the facts and evidence on file.
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74. Consequently, the Chamber decided that, by virtue of art. 17 par. 4 of the Regulations,
Köln shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
iv. Compliance with monetary decisions
75. 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.
76. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par.
3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
77. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall
apply, insofar as in case the player fails to comply with the decision at hand, the
application of a further restriction on playing in official matches up until the due amounts
are paid would be moot and against the spirit of the Regulations, in particularly the
enforcement mechanism established under art. 24 of the Regulations. The same
reasoning applies, mutatis mutantis, to the obligation of the Respondent 2 to pay the
compensation vis-à-vis the imposition of a further transfer ban.
78. In view of the above, the DRC decided that if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Claimant, to the FIFA Disciplinary Committee for its consideration
and formal decision.
79. Payment shall be made in full (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.
d. Costs
80. 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.
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81. 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.
82. 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, ŠD NK Olimpija Ljubljana, is partially accepted insofar as it
admissible.
2.
The Respondent 1, Jaka Čuber Potočnik, has to pay to the Claimant EUR 51,750 as
compensation for breach of contract without just cause plus 5% interest p.a. as from 30
January 2022 until the date of effective payment.
3.
The Respondent 2, 1. FC Köln, is jointly and severally liable for the payment of the
aforementioned compensation.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
7.
A restriction of four months on his eligibility to play in official matches is imposed on the
Respondent 1. This sanction applies with immediate effect as of the date of notification of
the present decision. The sporting sanctions shall remain suspended in the period
between the last official match of the season and the first official match of the next
season, in both cases including national cups and international championships for clubs.
8.
The Respondent 2 shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
9.
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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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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