Labour Disputes
Texto da decisão
REF FPSD-4315
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Ante Puljić
COMPOSITION:
Clifford J. Hendel (USA/France), Chairperson
Angela Collins (Australia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Ante Puljić, Croatia
Represented by Kasalo & Raic
RESPONDENT:
SC Dinamo 1948 SA, Romania
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I.
Facts of the case
1.
On 3 September 2019, the Croatian player, Ante Puljić (hereinafter: the player or the
Claimant) and the Romanian club, SC Dinamo 1948 SA (hereinafter: the club or the
Respondent) concluded an employment contract (hereinafter: the contract) valid as from the
date of signature until 31 May 2021.
2.
Clause 4.1. of the contract stipulates that “The sums calculated and owed to the sportsman
in accordance with this contract will be paid for on a monthly basis by the club, till no later
than the 15 day of the month following the one wherefore payment is due”.
a. EUR 7,000 net as monthly remuneration, for the period from 1 January 2021 to 30
June 2021;
b. EUR 11,000 net as monthly remuneration, for the period from 1 July 2021 to 30 June
2022.
3.
On 20 January 2021, the parties signed a first addendum (hereinafter: Addendum 1) to the
contract, by means of which the validity of the contract was extended from 1 June 2021 to
30 June 2022. Furthermore, as per addendum 1, the club undertook to pay the player inter
alia the following amounts:
a. EUR 30,000 net as lump sum payable until 30 September 2021;
b. EUR 600 net for each win of the club in an official match in the national League 1,
provided that the player plays at least 45 minutes in the relevant match;
c. EUR 300 net for each draw of the club in an official match in the national League 1,
provided that the player plays at least 45 minutes in the relevant match.
4.
Both addenda explicitly stipulate that all terms of the contract of 3 September 2019 which
were not explicitly modified remain in force.
5.
On 17 June 2021, the player put the club in default of payment of the total amount of EUR
24,300, granting it 15 days to remedy the default. The aforementioned amount is broken
down as follows:
a. “March 2021 remuneration of net EUR 7,000.00, which matured on 15/4/2021,
and
b. April 2021 remuneration of net EUR 7,000.00, which matured on 15/5/2021
c. May 2021 remuneration of net EUR 7,000.00, which matured on 15/6/2021
d. Win and Draw Bonus in total net amount of EUR 3,300.00 for the official
matches of the Club in national League 1 in which the Player played at least 45
minutes, which matured on 15/6/2021, broken down as follows:
i. Win Bonus in net amount of EUR 600.00 for the Club’s win in the match
played on 29/4/2021 against FC Voluntari, and
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ii. Win Bonus in net amount of EUR 600.00 for the Club’s win in the match
played on 2/5/2021 against FC Viitorul, and
iii. Win Bonus in net amount of EUR 600.00 for the Club’s win in the match
played on 5/5/2021 against ACSM Poli Iasi, and
iv. Win Bonus in net amount of EUR 600.00 for the Club’s win in the match
played on 8/5/2021 against FC Hermannstadt, and
v. Win Bonus in net amount of EUR 600.00 for the Club’s win in the match
played on 16/5/2021 against FC Arges, and
vi. Draw Bonus in net amount of EUR 300.00 for the Club’s win in the match
played on 19/5/2021 against Chindia”.
6.
On 8 July 2021, having received no payment or answer from the club, the player unilaterally
terminated the employment contract.
7.
On 28 July 2021, the player signed a new contract with the Israeli club, Bnei Sakhnin FC, valid
as from 1 August 2021 until 31 May 2022, whereby the player is entitled to receive a total
fixed remuneration of NIS 624,530 (approximately EUR 178,523).
II. Proceedings before FIFA
a. Position of the Claimant
8.
On 17 November 2021, Ante Puljić lodged a claim before FIFA against the club for breach of
contract, requesting the payment of outstanding remuneration and compensation.
9.
In his claim, the player explains that the club was in default of payment of his remuneration
and bonuses for 4 months and, in spite of his reminder, no payment was made. Thus, he had
a just cause to terminate the contract in line with art. 14bis of the RSTP.
10. In his request for relief, the player requests FIFA:
I.
II.
“to ascertain that the Claimant terminated the Employment contract signed with
the Respondent with just cause; and
to condemn the Respondent to pay in favor of the Claimant contractual
outstandings of net EUR 34,138.00 (thirty-four thousand, one hundred and thirtyeight euros) which matured as follows: - EUR 7,000.00, on 15/4/2021, and - EUR
7,000.00, on 15/5/2021, and - EUR 10,300.00, on 15/6/2021, and - EUR 9,838.00,
on 8/7/2021; within 45 days as from the date of notification of the decision in the
matter of the reference to the Respondent; and
[These amounts are broken down as follows:
“- March 2021 remuneration of net EUR 7,000.00, which matured on 15/4/2021,
- April 2021 remuneration of net EUR 7,000.00, which matured on 15/5/2021; and
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- May 2021 remuneration of net EUR 7,000.00, which matured on 15/6/2021, and
- Win and Draw Bonus in net total of EUR 3,300.00, which matured on 15/6/2021
- June 2021 remuneration of net EUR 7,000.00, which matured on 8/7/2021, and
- part of July 2021 remuneration of net EUR 2,838.00 for the period from 1/7/2021
until 8/7/2021, which matured on 8/7/2021”]
III.
to condemn the Respondent to pay in favor of the Claimant compensation of net
EUR 159,162.00 (one hundred and fifty-nine thousand, one hundred and sixty-two
euros) which matured on 8/7/2021, while at the same time taking into account
provisions of Article 17. of FIFA RSTP, within 45 days as from the date of notification
of the decision in the present matter to the Respondent; and
[Compensation is calculated as follows:
“- residual value of monthly remunerations in the period from 9 July 2021 until 30 June 2022
of net EUR 129,162.00, according to the Annex 1, and - the Bonus of net EUR 30,000.00,
according to the Annex 1 and Annex 2”]
IV.
to condemn the Respondent to pay all relevant taxes, state contributions and
surcharges, on top of the abovementioned net amounts, within 45 days as from
the date of notification of the decision in the matter of the reference to the
Respondent; and
V.
to condemn the Respondent to pay in favor of the Claimant default interest of 5%
per year on the aforementioned amounts starting from the respective date of
maturity until the effective date of the payment, within 45 days as from the date
of notification of the decision in the matter of the reference to the Respondent;
and to impose sporting sanctions against the Respondent, all in the light of FIFA
RSTP”.
b. Position of the Respondent
11. The reply of the club was filed via “RTZ & Partners, Business recovery and bankruptcy”, the
current administrator of the club, which first state that in “our capacity as official received in
the insolvency proceedings opened at the football club Dinamo 1948 [we request] to proceed
to the implementation of the provision of art. 55, letter b of the FIFA Disciplinary Code and,
therefore, to dispose termination of the disciplinary proceedings opened against Dinamo
1948 S.A.”. The administrator informs FIFA that the club currently undergoes insolvency
proceedings, in accordance with a decision of 28 June 2021 by the “Seventh Civil Section of
Bucharest Court” (decision published in the “Insolvency proceedings bulletin no.
11588/01.07.2021”).
12. In particular, the administrator explains that in accordance with Romanian law every party
undergoing bankruptcy proceedings must unilaterally terminate any ongoing contracts in
order to “maximize the assets of the debtor company”; thus the club “unilaterally denounced
the sports activity contract [of the player] […] on 19 July 2021”.
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13. The administrator also states that the player behaved inappropriately towards the club, by
leaving Romania without authorisation during training period. The administrator also informs
FIFA that the player has filed “an application for registration of his claim in the credit table of
the debtor […], and […] was registered in the consolidated list of Dinamo 1948 creditor with
the amount of 29.500 Euro” (untranslated alleged table of creditors on file, containing the
name of the player and the amount of Romanian Lei 145,317).
14. According to the administrator, following the examination of the player’s application, the
latter was considered only partially substantiated and was accepted up to the amount of
Romanian Lei 145,317 (approx. EUR 29,500 as per the administrator). The preliminary table
of creditors was registered and published in the Insolvency Proceedings Bulletin on 2
September 2021. The administrator deems that the player is estopped from requesting now
the amount of EUR 159,162, since he filed his credit request in Romania for a lower amount.
15. The administrator also informs that a court ruling of 22 November 2021 confirmed the
restructuring plan of the club and provided for the payment of all registered creditors,
including the player with an amount of Romanian Lei 145,317 (untranslated alleged table of
creditors on file, containing the name of the player and the amount of Romanian Lei
145,317). As per the administrator, all debts fallen due prior to 28 June 2021 were included
in the judicial restructuring of the club and will be paid in 3 years from the date of its
confirmation.
16. Based on the foregoing, the administrator requests that “the FIFA Disciplinary Committee
takes a decision pursuant to article 55(b) of the Disciplinary Code, closing the disciplinary
proceedings currently pending against [the club] and take under consideration that all claims
against [the club] must be made in accordance with the provisions of national State courts
relating to bankruptcy or insolvency and which are under the exclusive jurisdiction of the State
court, when applying art. 55(b) of the FIFA Disciplinary Code”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 17 November 2021 and submitted for
decision on 21 April 2022. 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.
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18. 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, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a Croatian
player and a Romanian club.
19. In this respect, the DRC noted that the club, via its administrator, contested the admissibility
of the player’s claim, based on art. 55 lit. b) of the Disciplinary Code. In this respect, the DRC
underscored that provisions from the FIFA Disciplinary Code, in principle, cannot affect the
outcome of a decision to be passed by the Football Tribunal, which bases its decisions on its
own regulations, i.e. the Regulations on the Status and Transfer of Players and the Procedural
Rules Governing the Football Tribunal. However, stressed the DRC, the admissibility of the
claim needs to be analysed, considering that the club is undergoing insolvency proceedings
and that the player has allegedly filed a request for the inclusion of his credit in the local court
in Romania.
20. From the documentation on file, the Chamber observed that the club is indeed undergoing
insolvency proceedings. In accordance with the well-established jurisprudence of the DRDC,
underscored the Chamber, the fact that a club is under insolvency proceedings will not
prevent the FIFA DRC from opening an investigation upon receipt of a claim against the
relevant club, insofar as the club’s involvement in the insolvency proceedings would not affect
the receivability of a claim and its analysis as to the merits, but only the eventual application
of art. 24 of the Regulations in the execution of the decision.
21. The administrator, however, alleges that the player’s claim in front of FIFA would be affected
by res judicata, as he already lodged a claim before the competent local courts for the recovery
of his credit within the context of the insolvency proceedings of the club in Romania and that
those credits would already have been -albeit partially- approved and due to be paid in 3
years following the respective decision of the local courts.
22. In this context, determined the DRC, whereas it has been sufficiently proven that the club is
undergoing insolvency proceedings in Romania, it has not been proven that a) the player filed
a request for his credits and b) that these credits were in fact already registered and accepted
to a certain extent. While recalling the principle of burden of proof, the DRC noted that the
club failed to provide any copy of an alleged request of the player for the inclusion of credits
in Romania. In addition, the document dated 3 November 2021, which is accompanied by a
table mentioning the player and 2 corresponding amounts, was not translated into one of
the 4 FIFA official languages, which prevents the DRC from verifying if the content of the said
document corresponds to what the Respondent alleges.
23. Thus, the Chamber determined that the club was not able to discharge its burden of proof
that the claim of the player before FIFA is affected by res judicata and, therefore, the DRC
concluded that the present claim is admissible.
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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 (August 2021 edition) and
considering that the present claim was lodged on 17 November 2021, the August 2021
edition 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.
i. Main legal discussion and considerations
27. The foregoing having been established, the Chamber moved to the substance of the matter,
and highlighted that, via its administrator, did not provide any consistent evidence or further
explanation for its allegation that the player breached the contract by leaving the club during
the training season without authorisation. Furthermore, continued the Chamber, the club did
not contest having failed to pay the player the requested amounts.
28. The DRC further acknowledged that the player, on the contrary, provided enough evidence
that he complied with the formal pre-requisites of art. 14bis of the RSTP, namely: on 17 June
2021, he put the club in default at a time when at least 3 monthly salaries and several bonuses
were outstanding; the player granted the club 15 days to remedy the default; the player
terminated the contract on 8 July 2021, i.e. 22 days after the issuance of the default notice.
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29. Thus, the Chamber determined that the player terminated the contract with just cause ex.
Art. 14bis Regulations and, thus, is entitled to receive a compensation for breach of contract,
as well as the outstanding remuneration due to him when the contract was terminated.
ii. Consequences
30. 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.
31. 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 EUR 31,300 net,
corresponding to the player’s salaries as from March 2021 until June 2021, as well as to the
win and draw bonus.
32. 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 31,300 net.
33. 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 day following their respective due dates,
i.e. as from the 16th day of the following month to their accrual, until the date of effective
payment, with the exception of win and draw bonus awarded, which dies a quo shall run as
from the day following the termination of the contract.
34. 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.
35. 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.
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36. 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.
37. 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 162,000 (i.e. the salaries as from the July 2021 until June 2022, i.e.
12 salaries of EUR 11,000 each, which equals EUR 132,000; in addition to the lump sum of
EUR 30,000 net that was payable until 30 September 2021) serves as the basis for the
determination of the amount of compensation for breach of contract.
38. 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.
39. Indeed, the player found employment with the Israeli club, Bnei Sakhnin FC, whereby the
player managed to mitigate his damages in an amount equal to EUR 178,523. Therefore, the
Chamber concluded that the player fully mitigated his damages.
40. 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.
41. In this respect, the DRC decided to award the amount of additional compensation of EUR
33,000, i.e. three times the monthly remuneration of the player (taking as basis for the
calculation the remuneration that the player was entitled to receive at the moment when the
contract was terminated).
42. 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 33,000
to the player (i.e. EUR 0 plus EUR 33,000), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
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43. 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 17 November 2021 until the date of effective payment.
iii. Compliance with monetary decisions
44. 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. 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.
45. 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. 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.
46. 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
47. 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.
48. 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.
49. 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, Ante Puljić, is admissible.
2.
The claim of the Claimant, Ante Puljić, is partially accepted.
3.
The Respondent, SC Dinamo 1948 SA, has to pay to the Claimant, the following amounts:
- EUR 31,300 net as outstanding remuneration plus 5% interest p.a., as follows:
-
On the amount of EUR 7,000 net as from 16 April 2021 until the date of effective
payment;
On the amount of EUR 7,000 net as from 16 May 2021 until the date of effective
payment;
On the amount of EUR 7,000 net as from 16 June 2021 until the date of effective
payment;
On the amount of EUR 7,000 net as from 16 July 2021 until the date of effective
payment;
On the amount of EUR 3,300 net as from 9 July 2021 until the date of effective payment.
- EUR 33,000 net as compensation for breach of contract, plus 5% interest p.a. as from 17
November 2021 until the date of effective payment.
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.
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 the ban shall
be of three entire and consecutive registration periods.
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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.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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).
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