Labour Disputes
Texto da decisão
REF FPSD-3097
Decision of the
Dispute Resolution Chamber
passed on 13 October 2021
regarding an employment-related dispute concerning the player Bratislav
Punosevac
BY:
Mario Flores Chemor (Mexico)
CLAIMANT:
Bratislav Punosevac, Serbia
Represented by Biser Mehandzhiyski
RESPONDENT:
FK Jonava, Lithuania
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REF FPSD-3097
I.
Facts of the case
1.
On 4 February 2021, the Serbian player, Mr Bratislav Punosevac (hereinafter: the player or the
Claimant), and the Lithuanian club, FK Jonava (hereinafter: the club or the Respondent),
signed an employment contract valid as from the date of signature until 30 November 2021
(hereinafter: the employment contract).
2.
In accordance with clause 4 of the employment contract, the club undertook to pay the player
a monthly remuneration of EUR 2,500 net, payable “until the 10th calendar day of the next
month”.
3.
Additionally, pursuant to clauses 7.4 and 7.4.1 of the employment contract, the parties
established that the player was entitled to terminate the employment relationship in case the
club failed to meet its financial obligations for 60 consecutive days.
4.
On 22 April 2021, the player sent the club a notice recalling that the club had not obtained
a license to play in the first league of Lithuania and, thus, that it had offered him the
termination of the employment contract with the consequent payment of compensation. In
this respect, the player informed that he had not received any of the agreed amount, as well
as that his contract remained valid and unpaid. As such, the player granted the club a 10
days’ deadline in order to cure the breach.
5.
On 7 May 2021, the player sent the club a second default notice requesting payment of EUR
7,500 net (i.e. salaries from February to April 2021) within the following 10 days.
6.
On 12 May 2021, the player reiterated his requested for outstanding remuneration via e-mail,
under penalty of termination in line with art. 14bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP).
7.
On the same date, i.e. 12 May 2021, the club replied to the abovementioned correspondence
and requested a copy of the player’s contract. Subsequently, the player delivered a copy of
the claimed documentation, to no avail.
8.
On 8 June 2021, the player notified the club the termination of the employment contract due
to overdue payables.
II. Proceedings before FIFA
9.
On 20 July 2021, the player filed the claim at hand before FIFA. In doing so, he alleged that
he had no other option rather than terminating the employment contract with just cause due
to outstanding remuneration.
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10. Consequently, the player held that he is entitled to outstanding remuneration and
compensation for breach of contract, accrued by the relevant interest, as follows:
a.
b.
EUR 11,167 as outstanding remuneration, broken down as follows:
(i)
EUR 2,500 net as the salary of February 2021 plus 5% interest p.a. as from 10
March 2021;
(ii)
EUR 2,500 net as the salary of March 2021 plus 5% interest p.a. as from 10
April 2021;
(iii)
EUR 2,500 net as the salary of April 2021 plus 5% interest p.a. as from 10 May
2021;
(iv)
EUR 2,500 net as the salary of May 2021 plus 5% interest p.a. as from 10 June
2021; and
(v)
EUR 1,167 net as the pro rata salary of June 2021 plus 5% interest p.a. as from
15 June 2021.
EUR 13,833 as compensation for breach of contract, corresponding to the residual value
of the employment contract (i.e. the pro rata salary of June 2021, plus the salaries from
July to November 2021).
11. In spite of being invited to do so, the club did not provide its answer to the player’s claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 20 July 2021 and
submitted for decision on 13 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 Single Judge 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 Serbian player and a Lithuanian club.
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14. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he 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 20 July 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 Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
16. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
17. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the player lodged a claim seeking payment of
outstanding remuneration and compensation for breach of contract, claiming he had just
cause to terminate the employment contract.
18. Subsequently, the Single Judge took into account that the club, for its part, failed to submit
its response to the claim of the player, in spite of having been invited to do so. In this way,
the Single Judge considered that the club renounced its right to defence and thus accepted
the allegations of the player.
19. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
stressed that in accordance with art. 21 par.1 of the Procedural Rules he shall take a decision
upon the basis of the documents already on file, in other words, upon the statements and
documents presented by the player.
20. With the above in mind, the Single Judge turned to the evidence on file and noted that it
remained undisputed that upon the termination of the employment contract, not only the
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club had been warned in three different opportunities, but also the payments in default
amounted to more than four of the player’s salaries.
21. To this extent, the Single Judge referred to the wording of clauses 7.4 and 7.4.1 of the
employment contract and acknowledged that the club failed to comply with its financial
duties for more than 60 consecutive days, entailing the player with just cause to terminate
the relationship between them.
22. Likewise, as per solid jurisprudence of the Dispute Resolution Chamber, the Single Judge
recognized that such persistent and substantial non-compliance of the contractual obligations
by the club could also justify the unilateral termination of the employment contract in line
with art. 14bis of the Regulations.
23. Based on the foregoing, the Single Judge concluded that the player had just cause to
terminate the employment contract and that the club shall be liable to the consequences that
follow.
ii. Consequences
24. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the club.
25. Initially, the Single Judge observed that the outstanding remuneration at the time of
termination, coupled with the specific requests for relief of the player, amounts to EUR 10,000
net (i.e. the player’s salaries from February to May 2021, being EUR 2,500 net each).
26. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the club shall be liable to pay to the player the outstanding
remuneration sought.
27. In addition, taking into consideration the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Single Judge decided to award the player
interest at the rate of 5% p.a. on the outstanding amounts as from the date in which each
instalment fell due until the date of effective payment.
28. Having stated the above, the Single Judge 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 Single
Judge 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.
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29. In application of the relevant provision, the Single Judge held that he 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
30. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides for a
non-exhaustive enumeration of criteria to be taken into consideration when calculating the
amount of compensation payable.
31. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded
with the calculation of the monies payable to the player under the terms of the employment
contract from the date of its unilateral termination until its end date. Consequently, the Single
Judge concluded that the amount of EUR 15,000 net (i.e. the residual value of the contract,
corresponding to the player’s salaries from June to November 2021, being EUR 2,500 each)
serves as the basis for the determination of the amount of compensation for breach of
contract.
32. In continuation, the Single Judge 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. Accordingly, the Single Judge noted that
player was not able to find new employment, thus, could not mitigate his damages.
33. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Single Judge decided that the club must pay the amount of EUR
15,000 net to the player, which was to be considered 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
Dispute Resolution Chamber in this regard, the Single Judge decided to award the player
interest on said compensation at the rate of 5% p.a. as of the date of the claim (i.e. 20 July
2021) until the date of effective payment.
iii. Compliance with monetary decisions
35. Finally, taking into account the applicable Regulations, the Single Judge 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.
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36. In this regard, the Single Judge 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.
37. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, 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 club in accordance
with art. 24bis par. 2, 4, and 7 of the Regulations.
38. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
39. The Single Judge 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 Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
41. Likewise and for the sake of completeness, the Single Judge 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 Single Judge 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, Bratislav Punosevac, is partially accepted.
2.
The Respondent, FK Jonava, has to pay to the Claimant, the following amounts:
- EUR 2,500 net as outstanding remuneration plus 5% interest p.a. as from 11 March 2021
until the date of effective payment;
- EUR 2,500 net as outstanding remuneration plus 5% interest p.a. as from 11 April
2021until the date of effective payment;
- EUR 2,500 net as outstanding remuneration plus 5% interest p.a. as from 11 May
2021until the date of effective payment;
- EUR 2,500 net as outstanding remuneration plus 5% interest p.a. as from 11 June
2021until the date of effective payment; and
- EUR 15,000 net as compensation for breach of contract plus 5% interest p.a. as from 20
July 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).
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