Labour Disputes
Texto da decisão
REF. FPSD-11824
Decision of the
Dispute Resolution Chamber
passed on 10 January 2024
regarding an employment-related dispute concerning
the player Nemanja Radojevic
BY:
Alejandro Atilio Taraborrelli (Argentina)
CLAIMANT:
Nemanja Radojevic, Serbia
Represented by Mr Loizos Hadjidemetriou
RESPONDENT:
Birkirkara Football Club, Malta
pg. 2
REF. FPSD-11824
I. Facts of the case
1.
On 4 September 2022, the Serbian Player Nemanja Radojevic (hereinafter: Claimant or
player) and the Maltese club Birkirkara Football Club (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from as from the date
of signature until “the end of the season or after the last competitive match, whichever comes
first.”
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly
remuneration of EUR 1,821 as well as a “UEFA qualification bonus” of EUR 3,000.
3.
“During the Christmas break, at the end of December 2022”, the Claimant travelled to
Serbia for the holiday period. At this time, the Claimant argued that he had not received
his salary for November 2022, and indicated that, in order to be able to return to Malta
after the holidays, he would require payment to a bank account in Serbia so that he could
buy the flight tickets to return.
4.
On 27 December 2022, the Respondent scheduled a payment to the Claimant for the
November 2022 salary via the indicated bank account.
5.
On 30 December 2022, training was scheduled to resume for the first team of the
Respondent.
6.
On the same day, the head coach of the Respondent sent the Claimant a text message in
which he informed the latter that training had begun, and alerted him that he was missing.
7.
On 2 January 2023, the Claimant replied to the head coach via text message, and stated to
him as follows:
“I wish to explain my current situation. (…) There was a problem with the bank (…) I’m stuck here
without money. It should arrive on 4th January since that’s the first working day in Serbia again
due to holidays.
I bought flight tickets myself and I have been left without money even before arrival to Serbia
also without apartment because salary is not on time. (…) I will be back as soon as the money
arrives.”
8.
On the same day, the head coach replied to the Claimant as follows:
“good morning, why didn’t you answer my messages on 30, 31 and 1? We will find a solution
when you return.”
9.
On 12 January 2023, the Claimant arrived in Malta.
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REF. FPSD-11824
10. On 18 January 2023, the president of the Respondent and the Claimant exchanged text
messages in which it was stated as follows:
President: “I will give you [the salary for] December even though you should be fined. I will
prepare the release documents and cheque for you. Secretary will call you.”
Claimant: “Can you give me December and half January because I’m here now on my own money
and I pay apartment for all this month and ticket for fly.”
President: “I will give you 2k but that’s the maximum. (…) You’re lucky I’m giving you 2k.”
11. On 30 January 2023, the president of the Respondent sent the Claimant, via text message,
a mutual termination agreement.
12. On the same day, the Claimant replied: “we didn’t agree like this. Give me salary for December
plus 2k and I will sign.”
13. On the same day still, the president of the Respondent replied to the Claimant, saying “We
go to FIFA.”
14. On 1 February 2023, the Respondent sent the Claimant a unilateral termination letter,
making reference to the default letter of 9 January 2023, the allegedly unauthorized
absence from training and the failure of the Claimant to provide a “satisfactory
explanation”.
15. On 22 February 2023, the Claimant signed an amateur contract with the Austrian club FC
Mauerwerk.
II. Proceedings before FIFA
16. On 18 September 2023, 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
17. In his claim, the player argued that the Respondent had terminated the Contract without
just cause, by failing to pay him his salary on time and forcing him to buy return flight tickets
out of his own pocket. Due to the expense of the tickets and the delay in payment from the
Respondent of the previous salary (corresponding to November 2022), the Claimant was
only able to find a ticket for a date after the commencement of training.
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REF. FPSD-11824
18. The Claimant insisted that he was in constant contact with the president of the Respondent
and the head coach, who had not only failed to pay him the December 2022 salary
altogether, but who had rapidly and harshly informed him after one week of being absent
that he was no longer part of the future plans of the club.
19. The Player asserted that the absence was out of his control and that he was not allowed to
re-join training even after returning to Malta. Such exclusion from the training sessions and
ostracizing from the team constituted, in the Claimant’s estimation, a breach of contract.
20. Notwithstanding, the Claimant showed willingness to cooperate with the Respondent and
was even prepared to accept a mutual termination agreement if all outstanding amounts
would be paid.
21. Overall, the Claimant argued that the Respondent lacked just cause to terminate the
Contract, for which the latter should be held liable.
22. As for the compensation requested by the Claimant, the latter specified that the
regulations of the Maltese Football Association specify that “a professional player’s contract
shall not come to an end prior to the end of a season.”
23. With this in mind, he insisted that compensation shall be calculated as from the date of
termination of the Contract until June 2023, when the season purportedly ends in Malta.
24. The following request for relief was formulated:
-
Outstanding remuneration: EUR 3,642
Compensation: EUR 10,769.60
Interest as from due dates.
b. Position of the Respondent
25. In its reply, the Respondent argued that the Claimant had been absent for an extended
period of time and that such breach of contract was serious enough to warrant an early
contractual termination.
26. The Respondent also outlined that the Claimant showed a clear lack of interest to pursue
the Contract as he had deliberately booked a late flight to return to Malta, stating merely
that he had to pay for the flight ticket himself.
27. As for the compensation payable to the Claimant, the Respondent argued that it was
excessive based on the fact that the Contract expired on 30 April 2023, i.e. after the last
match of the season – rather than in June 2023.
pg. 5
REF. FPSD-11824
28. The Respondent also argued that the Claimant is not entitled to receive the UEFA
qualification bonus on account of the fact that he was not present when the club actually
qualified, having left months before this feat was achieved.
29. All in all, the Respondent requested that the claim be rejected in its entirety.
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REF. FPSD-11824
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter alchso 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
18 September 2023 and submitted for decision on 10 January 2024. Taking into account
the wording of art. 34 of the March 2023 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.
31. 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 May 2023 edition), he 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 Maltese club.
32. 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 Players (May 2023 edition),
and considering that the present claim was lodged on 18 September 2023, the May 2023
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
33. 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 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
34. 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.
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REF. FPSD-11824
i. Main legal discussion and considerations
35. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the lawfulness of the
contractual termination.
36. In this context, the Single Judge acknowledged that his task was to determine whether,
based on the submissions and the evidence on file, either party had breached the contract
and, by way of consequence, whether the Respondent had a just cause to terminate the
Contract.
37. Prior to entering the analysis of the matter at hand, the Single Judge recalled the parties’
submissions, beginning with the Claimant according to whom the Respondent terminated
the Contract without just cause. The Claimant particularly asserted that he was excluded
from training and the Respondent withheld payment of salaries unjustly, as well as
ultimately informing the Claimant after just one week of absence.
38. The Respondent, on the other hand, argued that the Claimant’s absence constituted a
severe breach of contract, lacked any explanation and entitled the former to terminate the
Contract unilaterally.
39. The Single Judge also wished to reiterate the importance of the principle of burden of proof,
pursuant to which a party that wishes to rely on a purported fact also bears the burden of
proving its veracity.
40. Having stated this, the Single Judge went on with his analysis and took note of the following
important facts:
-
The Respondent had made a payment on 27 December 2022 to the Claimant for the
salary of November 2022;
-
The Respondent was in default of the salary for December 2022 when it reprimanded
the Claimant for his absence;
-
The Claimant was forced to purchase his own flight ticket to return to Malta from the
Christmas holidays; in this respect;
-
On 9 January 2023, the Respondent issued a default notice inviting the Claimant to
return to training, whilst at the same time the head coach informed the Claimant that
his absence constituted such a grave misconduct that he was no longer welcome at
the club and should look to be transferred.
-
The Claimant was forced to train alone and excluded from collective training
sessions.
pg. 8
REF. FPSD-11824
41. The Single Judge, at this stage, recalled the jurisprudence of the Football Tribunal,
according to which a premature termination of a contract may only be the result of a
breach of contract of a substantial severity or frequency by the respective counterparty.
Where more lenient measures are available, the parties should turn thereto in order to
remedy their contractual relationship. A premature unilateral termination may only
constitute an ultima ratio measure.
42. In the case at hand, the Single Judge noted that the Respondent had been in default of one
monthly salary and had failed to provide the Claimant with a return ticket to Malta following
the Christmas break – the latter of which was, as an employer – within its general
obligations.
43. The Single Judge equally recalled that the Respondent, thereafter, reprimanded the
Claimant for his absence from training. Considering the fact that the Respondent had been
in breach of its obligations to begin with, the Single Judge deemed that it could not sanction
or hold the player’s absence against him prior to remedying its own breach.
44. As a result, the Single Judge opined that the threshold of ultima ratio was not met in the
case at hand.
45. Therefore, the Single Judge was able to conclude that the Respondent had terminated the
Contract without a just cause on 1 February 2023.
ii. Consequences
46. 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 Respondent.
47. The Single Judge observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to two salaries
under the Contract between December 2022 and January 2023, amounting to EUR 3,642.
48. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge 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 3,642 (i.e. two times EUR 1,821).
49. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge 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 following dates:
-
On the amount of EUR 1,821, as from 1 January 2023 until the date of effective
payment;
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REF. FPSD-11824
-
On the amount of EUR 1,821, as from 1 February 2023 until the date of effective
payment.
50. 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.
51. 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.
52. 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.
53. 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 Contract
from the date of its unilateral termination until its end date. Consequently, the Single Judge
concluded that the amount of EUR 7,769.60 (i.e. the residual value of the Contract between
February 2023 and 8 June 2023) serves as the basis for the determination of the amount of
compensation for breach of contract.
54. In this respect, the Single Judge emphasised that, although the Respondent had submitted
some evidence to corroborate its allegation that the last match of the season was in April
2023, the Claimant had submitted valid proof that, pursuant to the relevant domestic
framework, a contract may not expire prior to the end of an official season, which, therein
also specified, always falls on the date of 8 June.
55. Equally, the Single Judge did not fail to take note of the UEFA qualification bonus that was
claimed by the player as part of his compensation. In this respect, however, the Single Judge
noted not only that the condition itself was not met in the matter at hand – from the
evidence submitted, it became clear that the club had merely played in the qualifying
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REF. FPSD-11824
stages, as opposed to proceeding to the actual competition – but equally, the Claimant was
no longer part of the squad when such condition would potentially have been met.
56. As such, the bonus for qualifying to UEFA competitions was not included in the calculation
for compensation in the case at hand.
57. The residual value of the Contract was, thus, calculated as four salaries of EUR 1,821 each
between February 2023 and May 2023, as well as 8 days of pro-rata remuneration for the
month of June 2023.
58. 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. 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.
59. As the player had only signed an amateur contract with the Austrian club, FC Mauerwerk,
the Single Judge considered that the former could not be taken to have mitigated his
circumstances.
60. 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 7,769.60 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
61. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 2 February 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
62. Finally, taking into account the applicable Regulations, the Single Judge 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.
63. 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
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REF. FPSD-11824
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
64. Therefore, bearing in mind the above, the Single Judge 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.
65. 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.
66. 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. 24 par.
8 of the Regulations.
d. Costs
67. 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.
68. 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.
69. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 12
REF. FPSD-11824
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nemanja Radojevic, is partially accepted.
2.
The Respondent, Birkirkara Football Club, must pay to the Claimant the following
amount(s):
- EUR 3,642 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 1,821 as from 1 January 2023 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 1,821 as from 1 February 2023 until the date of
effective payment.
- EUR 7,769.60 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 2 February 2023 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. 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 of the ban shall
be of up to 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. 24 par. 7 and 8 and art. 25 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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REF. FPSD-11824
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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