Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 4 June 2020,
in the following composition:
Clifford Hendel (USA/France), Deputy Chairman
Elv is Chetty (S eychelles ), member
Tom is lav Kas alo (Croatia), member
On the matter between the player,
S tefan Radov anov ic, Serbia,
represented by Sindikat Profesionalnih Fudbalera Nezavisnost
as Claimant / Counter-Respondent
and the club,
Qrendi FC, Malta
as Respondent / Counter-Claimant
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 1 August 2019, the player, Stefan Radovanovic (hereinafter: the player or Claimant
/ Counter-Respondent) concluded an employment contract (hereinafter: the contract)
with the club, Qrendi FC (hereinafter: the club or Respondent / Counter-Claimant),
valid as from the date of signature until “the last competitive match of season
2019/20”.
2.
In accordance with clause 2.1 of the contract, the player was, inter alia, entitled to
the following amounts:
“In remuneration for his services the Club shall pay the player a monthly salary of
seven hundred eighty euros (EUR 780) net of all taxes at the end of each month. Such
remuneration shall be paid by means of cheque”.
3.
On 21 January 2020, the club informed the player that he is “suspended from
attending training sessions and football matches until further notice. This decision
has been taken after the Qrendi FC Committee deems that you have not abided by
the contract agreement signed on the 1st of August 2019”.
4.
On 27 January 2020, the player sent a letter to the club requesting to “immediately
withdraw [its] decision dated 21 January 2020 […] and enable the [player] to train
with team”.
5.
In the same letter, the player requested the payment of EUR 1,560, corresponding to
his monthly salaries for November and December 2019, granting a 15 days’ deadline
to remedy the default.
6.
On 12 February 2020, the player sent a termination letter to the club invoking that
“due to unfulfilled financial obligations with a delay of more than three (3) months
you have breached the Contract of Employment unilaterally and without just cause,
also you banned me to train with team without just cause”.
7.
On 13 February 2020, the player lodged a claim in front of FIFA requesting the
following:
“To uphold that the Contract of Employment was unilaterally breached without just
cause due persistent non-compliance with the financial and training terms by the
Respondent […] and to order that the Respondent to pay as follows:
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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Due amounts before termination (resp. 12 February 2020)
a. Season 2019/2020
Salary for November 2019
interest from 1 December 2019
EUR 780 with 5%
b. Season 2019/2020
Salary for December 2019
interest from 1 January 2020
EUR 780 with 5%
c. Season 2019/2020
Salary for January 2020
interest from 1 February 2020
EUR 780 with 5%
Due amounts (12 February 2019
EUR 2,340
Sub – Total 1
Compensation after termination (from 17/06/19 – 15/12/19)
d. Season 2019/2020
e. Season 2019/2020
f. Season 2019/2020
Salary for February 2020
Salary for March 2020
Salary for April 2020 /24 days)
EUR 780
EUR 780
EUR 624
Compensation Sub- Total 2 EUR 2,184 with 5% interest from 12 February 2020
TOTAL (Sub – Total 1 & 2) = EUR 4,524”
8.
In his claim, the player deemed the he “fulfilled his duty out from the contract and
did neither violate against any provisions in the ‘Contract of Employment’ nor against
any provision in good faith and loyalty”.
9.
In its reply, the club rejected the player’s claim and deemed that it was the player that
breached the contract.
10.
In this respect, the club acknowledged that the salary for November and December
2019 was not paid yet, but the club deemed that the player “abandoned his
employment” in “January 2020”, as he decided to leave the country.
11.
In view of the above, the club lodged a counterclaim against the player for breach of
contract and argued that the player terminated the contract without just cause.
12.
In this regard, the club requested the payment of EUR 3,900, corresponding to the
monthly salaries from December 2019 until April 2020.
13.
In spite of being invited to do so, the player did not reply to the counterclaim.
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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14.
The player confirmed that he remained unemployed after the termination on 12
February 2020.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the case at hand. In this respect, it
took note that the present matter was submitted to FIFA on 13 February 2020.
Consequently, the 2019 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2020),
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 Maltese club.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition June 2020), and considering that the claim was lodged on 13 February 2020,
the January 2020 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. 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. In particular, the Chamber recalled that, in
accordance with art. 6 par. 3 of Annex 3 of the Regulations, FIFA may use, within the
scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the TMS.
5.
Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the documentation
on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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which any party claiming a right on the basis of an alleged fact shall carry the burden
of proof.
6.
First of all, the members of the Chamber acknowledged that, on 1 August 2019, the
player and the club had concluded an employment contract valid as from the date of
its signature until “the last competitive match of season 2019/20”, pursuant to which
the club undertook to pay to the player the remuneration, as established in point I.2
above.
7.
Furthermore, the members of the DRC took note of the fact that, on 27 January 2020,
the player had put the club in default of payment of the amount of EUR 1,560,
corresponding to the salaries for November and December 2019 setting a 15 days’
time limit in order to remedy the default.
8.
In addition, the Chamber took also observed that in the same letter, the player
requested to be immediately reinstated within the team and to withdraw the
suspension of which he was informed on 21 January 2020.
9.
Moreover, the DRC took note that, according to the player, he had just cause to
unilaterally terminate the employment contract on 12 February 2020, since the club
failed to reply to his default notice sent on 27 January 2020 and since no payment
had been made by the latter in this respect.
10.
Subsequently, the members of the DRC took note that the club, for its part,
acknowledged to have not made the payments of the player’s salary for November
and December 2019.
11.
In continuation, the Chamber observed that the club claimed that the player
terminated the contract without just cause and that the player decided to leave the
country in “January 2020”.
12.
In light of the foregoing, the DRC considered that the underlying issue in this dispute,
considering the parties’ position, was to determine as to whether the player had just
cause to terminate the employment contract and to determine the consequences
thereof.
13.
In this context, the Chamber deemed it appropriate to clarify that, in accordance with
art. 12 par. 3 of the Procedural Rules, in the present case, the Respondent bore the
burden of proving either the payment of the Claimant’s salaries or that it had a valid
reason for not having done so.
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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14.
In this respect, the Chamber noted that the club did not provide any evidence for its
arguments, in particular, in regards to the player leaving the country in January 2020.
In fact, based on the documents on file, the Chamber observed that the player
requested in his letter sent on 27 January 2020 to be reinstated within the team with
immediate effect.
15.
With the above in mind, the Chamber highlighted that on the basis of the parties’
submissions, it could be noted that the club did not contest that, by the time the
player addressed it with his default letter on 27 January 2020, at least the amount of
EUR 1,560 were outstanding. Moreover the members of the DRC observed that it also
remained undisputed that the player provided the club with 15 days to remedy its
default and that the club never reacted to the default letter.
16.
In continuation, taking into account the consideration under point. II./3. above, the
DRC referred to art. 14bis par. 1 of the Regulations, which, inter alia, stipulates that,
in the case of a club unlawfully failing to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his
contract, provided that he has put the debtor club in default in writing and has
granted a deadline of at least 15 days for the debtor club to fully comply with its
financial obligation(s).
17.
Consequently, on account of the above and considering that, when the player
terminated the contract, at least two monthly salaries were due despite the club
having been provided with a deadline of 15 days to remedy the default, the DRC
concluded that, on 12 February 2020, the conditions set out in art. 14bis of the
Regulations were fulfilled, and consequently the player had just cause to unilaterally
terminate the employment contract.
18.
As a result, the Chamber decided that the club is to be held liable for the early
termination of the employment contract with just cause by the player. The Chamber
subsequently also decided that the counterclaim lodged by the club against the player
should be rejected.
19.
Having established that the club is to be held liable for the early termination of the
employment contract, the DRC focused its attention on the consequences of such
termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC
established that the player is entitled to receive from the club compensation for
breach of contract, in addition to any outstanding payments on the basis of the
relevant employment contract.
20.
Along those lines, the DRC firstly referred to the player’s request regarding the
outstanding remuneration at the time of the unilateral termination of the
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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employment contract. In this respect, the DRC concurred that the club must fulfil its
obligations as per the employment contract in accordance with the general legal
principle of “pacta sunt servanda”.
21.
Consequently, and bearing in mind that the player terminated his employment
contract on 12 February 2020, the Chamber decided that the club is liable to pay to
the player outstanding remuneration in the amount of EUR 2,340, pertaining to his
monthly salaries of November and December 2019 and January 2020.
22.
In addition, taking into consideration the specific request of the player on the point,
the Chamber decided to award the latter interest at the rate of 5% p.a. on the total
amount of EUR 2,340 as follows:
a.
b.
c.
5% interest p.a. on the amount of EUR 780, as from 1 December 2019;
5% interest p.a. on the amount of EUR 780, as from 1 January 2020;
5% interest p.a. on the amount of EUR 780, as from 1 February 2020.
23.
Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the
Chamber decided that the player is entitled to receive compensation for breach of
contract from the club.
24.
In continuation, the DRC focused his attention on the calculation of the amount of
compensation for breach of contract due to the Claimant by the Respondent in the
case at stake. In doing so, the DRC 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.
25.
In application of the relevant provision, the Chamber held that it first of all had to
clarify whether the pertinent employment contract contained any clause, by means
of which the parties had beforehand agreed upon a compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Chamber
observed that the employment contract does not contain any such clause.
26.
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 parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the
foregoing, the Chamber proceeded with the calculation of the monies payable to the
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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player under the terms of the employment contract as from its termination and
concluded that the player would have been entitled to receive EUR 2,184 as
remuneration had the employment contract been executed until its regular expiry
date, i.e. 24 April 2020. Consequently, the Chamber concluded that the amount of
EUR 2,184 serves as the basis for the final determination of the amount of
compensation for breach of contract in the case at hand.
27.
In continuation, the Chamber assessed 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 able to reduce his loss of income. In this respect, the DRC deemed
it necessary to refer to the first sentence of art. 17 par. 1 lit. ii) of the Regulations,
according to which, in case the player signed a new contract by the time of the
decision, the value of the new contract for the period corresponding to the time
remaining on the prematurely terminated contract shall be deducted from the
residual value of the contract that was terminated early (the ”Mitigated
Compensation”).
28.
In respect of the above, the members of the Chamber noted, that according to the
player and the information contained in TMS, the player had not signed a new
employment contract after 12 February 2020 and therefore had not been able to
mitigate his damages. Therefore, no further deductions should be made to the
amount of EUR 2,184, in accordance with art. 17 par. 1 lit. i) of the Regulations.
29.
Consequently, on account of all the above-mentioned considerations, the Chamber
decided that the must pay the amount of EUR 2,184 as compensation for breach of
contract to the player, which is considered by the Chamber to be a fair and reasonable
amount.
30.
In addition, taking into consideration the player’s claim, the Chamber decided to
award the player interest at the rate of 5% p.a. as of the date of the claim, i.e. 13
February 2020, until the date of effective payment.
31.
Therefore, the DRC decided to partially accept the player’s claim and concluded its
deliberations by rejecting any further claim of the player.
32.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 and 2 of art. 24bis 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.
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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33.
In this regard, the Chamber pointed out 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 and for the maximum duration of three entire and consecutive registration
periods.
34.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering
any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
35.
Finally, the Chamber 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. 3 of the Regulations.
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Stefan Radovanovic, is partially
accepted.
2.
The counterclaim of the Respondent / Counter-Claimant, Qrendi FC, is rejected.
3.
The Respondent / Counter-Claimant hast to pay to the Claimant / CounterRespondent, w ithin 45 day s as from the date of notification of this decision,
outstanding remuneration in the amount of EUR 2,340 plus 5% interest p.a. until the
date of effective payment as follows:
a.
b.
c.
on the amount of EUR 780, as from 1 December 2019;
on the amount of EUR 780, as from 1 January 2020;
on the amount of EUR 780, as from 1 February 2020.
4.
The Respondent / Counter-Claimant has to pay to the Claimant / CounterRespondent, w ithin 45 day s as from the date of notification of this decision,
compensation for breach of contract in the amount of EUR 2,184, plus 5% interest
p.a. as from 13 February 2020 until the date of effective payment.
5.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent / CounterClaimant, immediately and directly, preferably to the e-mail address as indicated on
the cover letter of the present decision, of the relevant bank account to which the
Respondent / Counter-Claimant must pay the amounts plus interest mentioned under
points 3. and 4. above.
7.
The Respondent / Counter-Claimant shall provide evidence of payment of the due
amount in accordance with points 3. and 4. above to FIFA to the e-mail address
[email protected], duly translated into one of the official FIFA languages (English,
French, German, Spanish).
8.
In the event that the amount due in accordance with points 3. and 4. above are not
paid by the Respondent / Counter-Claimant w ithin 45 day s as from the notification
by the Claimant / Counter-Respondent of the relevant bank details to the Respondent
/ Counter-Claimant, the Respondent / Counter-Claimant shall be banned from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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9.
The ban mentioned in point 8. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
10.
In the event that the amount due in accordance with points 3. and 4. above are still
not paid by the end of the ban of three entire and consecutive registration periods,
the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Stefan Radovanovic, Serbia / Club Qrendi FC, Malta
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