Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 8 May 2020,
in the following composition:
Clifford E. Hendel (US A / France), Deputy Chairman
Alex andra Gom ez Bruinew oud (Uruguay / The Netherlands ), member
S tefano La Porta (Italy ), member
on the claim presented by the player,
Djordje Rakić, Serbia
represented by Mr Mirko Poledica
as Claimant
against the club,
Zhejiang Greentow n FC, China PR
represented by Mr Yu Shengjie
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On an unspecified date, the Serbian player, Djordje Rakić (hereinafter: the player
or the Claimant) and the Chinese club, Zhejiang Greentown FC (hereinafter: the
club or the Respondent) concluded an employment contract valid as from 1
February 2018 until 31 December 2018 (hereinafter: the contract).
2.
According to art. 5 of the contract, the player was entitled to receive a total fixed
remuneration of EUR 800,000, payable in 10 monthly instalments of EUR 80,000
each, due on the last day of each month from February to November 2018.
3.
According to art. 6 (2bis) of the contract, the club undertook to cover for injury or
illness expenses of the player should they be employment-related.
4.
According to art. 10.2 (2) of the contract, the club could terminate the contract
and no longer pay its residual amount if, inter alia, the player concealed an injury.
5.
According to art. 10.2 (4), the club could terminate the contract and no longer pay
its residual amount if, inter alia, the player “seriously violates professional ethics
or sports and cause serious damage to [the club’s] interest and reputation”.
6.
According to art. 12. (2) and 12 (3) of the contract, the parties respectively agreed
on the following:
“In case of no settlement can be reached through consultation, the dispute shall
be submitted to the Proceeding Commission of [the Chinese Football Association].
In case [the player] is a Chinese citizen, the award of the Commission is final and
binding”.
“In case [the player] is a foreign citizen, the proceeding can be submitted to FIFA
and the award of FIFA is final and binding”.
7.
On 15 June 2018, the club’s physician stated as follows (quoted verbatim): “the
body of [the player’s] internal meniscus of the right knee is broken, and the only
therapeutic option it’s surgery (sic), in [his] opinion”.
8.
On 20 June 2018, the player sent a correspondence to the club in which he
requested to be provided with adequate and immediate medical treatment.
9.
On 3 July 2018, the player sent a correspondence to the club in which he stated
that the club did not take any action regarding the injury suffered by the player,
and requested an authorization to undergo surgery in Europe at his own costs.
10.
On 6 July 2018, the club sent a “notice of contract termination” to the player in
which it indicated, inter alia, that the player had “concealed injury to our club and
that [the player] violated professional ethics” and that, as such, it terminated the
contract for misconduct based on its art. 10.2 (2) and (4).
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 2 of 12
11.
On 10 July 2018, the player sent a correspondence to the club and gave it 3 days to
“withdraw” the contract termination otherwise he would lodge a claim in front of
FIFA.
12.
On 25 July 2018, the club refused to perform such “withdrawal” as requested by
the player.
13.
Upon FIFA’s request, the player indicated that he remained unemployed during
the period between 6 July 2018 and 31 December 2018.
14.
The player lodged a claim against the club for breach of contract without just
cause and requested the payment of the following amounts, plus 5% interest p.a.
as from 6 July 2018:
a.
b.
c.
EUR 480,000 corresponding to the residual value of the contract as of the date
of termination by the club (i.e. salaries from July to December);
EUR 4,596 as the surgery costs; and
EUR 804 as the therapy costs.
15.
The player further requested the imposition of sporting sanctions against the club.
16.
The player considered that the club did not have just cause to terminate the
contract and that the club failed to provide medical assistance and adequate
treatment after sustaining a knee injury on 10 March 2018, despite the club’s
physician recommending surgery.
17.
The player further argued that the poor treatment of his injury led him to sustain
a more serious injury to his meniscus, and that in this respect the club agreed to
the player being examined in Germany where such injury was diagnosed.
18.
The player emphasised that it informed the club of the diagnosis directly but that
upon his return to China the club “had no interest in his health” which is why he
sent two letters on 20 June and on 3 July 2018, which were duly received by the
club.
19.
The club, for its part, contested the competence of FIFA based on art. 12.2 of the
contract, which stipulates that “in case of no settlement can be reached through
consultation, the dispute shall be submitted to the Proceeding Commission of [the
Chinese Football Association]. In case [the player] is a Chinese citizen, the award of
the Commission is final and binding”.
20.
In view of the above, the club is of the opinion that the Proceeding Commission of
the Chinese Football Association must be the competent first instance to decide on
this dispute.
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 3 of 12
21.
As to the substance, the club confirmed that on 10 March 2018 the player injured
his right knee but indicated that this injury had no link to the player’s right
meniscus injury.
22.
In fact, the club explained that the player played 6 official matches between 10
March and 19 May 2018 and argued that it is impossible to play with a broken
meniscus.
23.
The club stated that during the three-week break it gave its players due to the
tenure of the FIFA World Cup 2018, the player went to Germany for a knee exam
on 25 May 2018, where he was diagnosed with a broken meniscus.
24.
The club further declared that at the time, the player stated that he would ”need
to clean [his] knee. It’s an arthroscopy. (…) Recovery will be like 3 weeks max”.
25.
In this regard, the club outlined that its physician had been apparently informed
of this injury by the physician who checked the player in Germany and summoned
the player back “to explain why he lied”.
26.
The club argued that by “hiding” the seriousness of his injury, the player hindered
the club from signing foreign replacements in a timely manner, and that by his
actions the player caused some damages to the club.
27.
Finally, in view of the player’s alleged refusal to give any explanations, the club
terminated his contract. In this respect, the club alleged that it did not receive the
player’s communications dated 20 June and 3 July 2018.
28.
Consequently, the club requested that it should be considered that the contract
was terminated with just cause and that no costs for medical expenses shall be
paid to the player.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 submitted to FIFA
on 2 April 2019. Taking into account the wording of art. 21 of the 2019 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
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
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 4 of 12
Players (edition March 2020) the Dispute Resolution Chamber shall adjudicate on
employment-related disputes between a club and a player that have an
international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves a Serbian player and
a Chinese club regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the club contested the competence of
FIFA’s deciding bodies on the basis of art. 12.2 of the contract, alleging that the
competent body to deal with any dispute deriving from the relevant employment
contract is the Proceeding Commission of the Chinese Football Association
(hereinafter: the Chinese NDRC).
5.
Contrariwise, the Chamber noted that the player insisted on the competence of
the FIFA DRC to adjudicate on the claim lodged by him against the club, and that
he deemed that the club did not provide any conclusive supporting
documentation evidencing that the Chinese NDRC meets the requirements set out
in art. 22 b) of the FIFA Regulations on the Status and Transfer of Players.
6.
Consequently, the Chamber deemed that it should first of all examine its
competence in relation to the contract at the basis of the employment relationship
between the parties of the present dispute.
7.
Taking into account the above, the Chamber emphasised that in accordance with
art. 22 lit. b) of the March 2020 edition of the Regulations on the Status and
Transfer of Players it is competent to deal with a matter such as the one in hand,
unless an independent arbitration tribunal, guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs, has been
established at national level within the framework of the association and/or a
collective bargaining agreement. With regard to the standards to be imposed on
an independent arbitration tribunal guaranteeing fair proceedings, the Chamber
referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the
members of the Chamber further referred to the principles contained in the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations, which came
into force on 1 January 2008.
8.
Furthermore, the members of the Chamber directly recalled the first sentence of
art. 22 of the Regulations on the Status and Transfer of Players, which stipulates
that FIFA’s competence is without prejudice to the right of any player or club to
seek redress before a civil court for employment related disputes.
9.
In this context, and while analysing whether it was competent to hear the present
matter, the Dispute Resolution Chamber deemed it of utmost importance to
highlight that the present dispute pertains to an employment contact.
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 5 of 12
10.
Having said this, the members of the Chamber turned to the contents of the
contract, which is the basis of the present dispute between the player and the
club. In this respect, the Chamber noted that the relevant contractual clause
unequivocally stipulates that in case the player was a foreigner (i.e. not Chinese),
then the matter can be submitted to FIFA.
11.
What is more, the DRC observed that the Respondent did not provide any
evidence that the Chinese NDRC meets the aforementioned criteria, and in
particular the principle of equal representation.
12.
Therefore, the members of the Chamber deemed that there is no existence of an
exclusive jurisdiction clause in the contract which would preclude the Chamber
from adjudicating on the present dispute. To the contrary, the members of the
Chamber stressed that the applicable jurisdiction clause deems FIFA as competent
to hear the dispute.
13.
In view of all the above, the Chamber established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be
rejected, and that the Dispute Resolution Chamber is competent, on the basis of
art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider
the present matter as to the substance.
14.
Subsequently, the DRC analysed which edition of the Regulations on the Status
and Transfer of Players 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 (edition March 2020) and
considering that the present claim was lodged in front of FIFA on 2 April 2019, the
June 2018 edition of the Regulations on the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
15.
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 documentation on file. However, the DRC 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.
16.
By doing so, the Chamber firstly recalled that the parties had signed the contract,
according to which the player was entitled to receive a total fixed remuneration of
EUR 800,000, payable in 10 monthly instalments of EUR 80,000 each, due on the
last day of each month from February to November 2018.
17.
In addition, the Chamber observed that according to art. 6 (2bis) of the contract,
the club undertook to cover for injury or illness expenses of the player should they
be caused by work; otherwise, such expenses would be borne by the player.
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 6 of 12
18.
In this regard, the Chamber outlined that under art. 6 of the contract there
seemed to be two sub-clauses number as “2”, hence why it decided to refer to the
second one as “2bis” in the present decision.
19.
The DRC further observed that it remains undisputed that the player sustained an
injury, but that the parties dispute whether the player’s injury was concealed by
the latter.
20.
In this regard, the DRC took note, on one hand, of the fact that the club is of the
opinion that the player did not tear his meniscus in March 2018 as he carried on
playing, but that he concealed the meniscus injury whilst on holiday, which caused
harm to the club, as it could not find a replacement in time. The club deems this to
be ground for the termination of the contract.
21.
On the other hand, the DRC observed that the player is arguing that the club did
not offer proper medical treatment after the first knee injury, which led to the
meniscus injury, and that the club agreed to his injury assessment in Germany and
was informed about it in due time.
22.
In continuation, the members of the Chamber took into account that, on 6 July
2019, the club notified the player of the termination of the contract on the basis
that the player had “concealed injury to our club and that [the player] violated
professional ethics” and that, as such, the club had terminated the contract for
misconduct based on its art. 10.2 (2) and (4), hence with just cause.
23.
The player, for its part, submits that the club terminated the contract without just
cause, and requested compensation for breach of contract.
24.
The DRC highlighted that the central issue in the matter at stake would be, thus,
to determine as to whether the club had just cause to terminate the contract on 6
July 2019.
25.
In this regard, the Chamber recalled the contents of art. 12 par. 3 of the
Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the burden of proof of that fact.
26.
Accordingly, from the documentation on file, the members of the Chamber
observed that the player sustained a first knee injury in March 2018, although he
managed to play some additional games afterwards, and that he was later
diagnosed in May 2018 with a torn meniscus by a physician in Germany.
27.
In continuation, in the light of the main reason at the basis of the termination of
the contract in the matter at hand, i.e. the player’s medical condition, the
Chamber wished to emphasise that on the basis of art. 18 par. 4 of the Regulations
and the Chamber’s respective jurisprudence, a club wishing to employ a player has
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 7 of 12
to exercise due diligence and carry out all relevant medical examination prior to
entering into an employment contract with a player.
28.
The members of the Chamber noted from the file that the player had been
medically checked prior to the signature of the contract by and between the
parties, following which he had been medically cleared. The Chamber also took
into account that the player had normally rendered his services to the club.
29.
The Chamber further took into consideration that an injury or health condition of
a player can be no valid reason to cease the payment of a player’s remuneration
and even less so to terminate an employment contract. In this regard, the
Chamber highlighted that it is the club’s responsibility to secure the continuation
of payment of remuneration in such cases, possibly by means of adequate
insurance. In the case at stake, the topic of the coverage for medical expenses
related to work was even explicitly included in article 6 (2bis) of the contract.
30.
As regards the club’s allegation that the player had concealed his injury, which
was also invoked by the club as a reason for the termination of the contract, the
Chamber stressed that there is no documentation on file in support of that
position.
31.
On account of all of the above, the members of the Chamber unanimously
rejected the club’s arguments and decided that it terminated the contract on 6
July 2019 without just cause. Therefore, the DRC concluded that the club shall
compensate the player for breach of contract.
32.
Bearing in mind the foregoing, the Chamber then turned its attention to the issue
of the player’s request of reimbursement of medical costs, and noted that it was
both contractually substantiated and duly evidenced, as the player brought
forward the relevant documentation.
33.
Hence, on the basis of art. 6 (2bis) of the contract and in accordance with the
general legal principle of pacta sunt servanda, the Chamber decided that the club
is liable to pay to the player EUR 5,400 as medical expenses incurred by the player.
34.
Additionally, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the said amount as
from the dates the expenses were incurred until the date of effective payment.
35.
In continuation, the Chamber focused its attention on the calculation of the
amount of compensation for breach of contract in the case at stake. In doing so,
the members of 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
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 8 of 12
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.
36.
In application of the relevant provision, the Chamber held that it first of all had to
clarify as to whether the pertinent employment contract contains 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.
37.
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. Therefore, other objective criteria may be taken into account at the
discretion of the deciding body.
38.
The members of the Chamber then turned their attention to the remuneration
and other benefits due to the player under the existing contract and/or the new
contract, which criterion was considered by the Chamber to be essential. The
members of the Chamber deemed it important to emphasise that the wording of
art. 17 par. 1 of the Regulations allows the Chamber to take into account both the
existing contract and the new contract in the calculation of the amount of
compensation.
39.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the player under the terms of the contract as from its date
of termination without just cause by the club, i.e. 6 July 2019, until 31 December
2019, and concluded that the player would have received in total EUR 400,000 as
remuneration had the contract been executed until its expiry date. Consequently,
the Chamber concluded that the amount of EUR 400,000 serves as the basis for the
final determination of the amount of compensation for breach of contract in the
case at hand.
40.
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, and
noted that the player remained unemployed for the relevant period.
41.
Accordingly, the Chamber concluded that the compensation due to the player,
comprehending both the residual value of the contract amounts to EUR 400,000.
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 9 of 12
42.
In addition, taking into account the player’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the club must pay to the player interest of 5% p.a. on the amount of
compensation as of 2 April 2019 until the date of effective payment.
43.
Finally, taking into account the consideration under number II./14. 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.
44.
In this regard, the DRC 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.
45.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
club does not pay the amounts due to the player within 45 days as from the
moment in which the player, following the notification of the present decision,
communicates the relevant bank details to the club, 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.
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. 24bis par. 3 of the Regulations.
47.
The DRC concluded its deliberations by rejecting any further claims filed by any of
the parties.
III. Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Djordje Rakić, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Zhejiang Greentown FC, has to pay to the Claimant, w ithin 45
day s as from the date of notification of this decision, the amount of EUR 5,400
plus interest as follows:
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 10 of 12
a. 5% interest p.a. as from 6 July 2018 until the date of effective payment on the
amount of EUR 4,596; and
b. 5% interest p.a. as from 10 August 2018 until the date of effective payment on
the amount of EUR 804.
4.
The Respondent has to pay to the Claimant, w ithin 45 day s as from the date of
notification of this decision, compensation for breach of contract in the amount of
EUR 400,000 plus 5% interest as from 2 April 2019 until the date of effective
payment.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the email address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under points III./3. and III./4. above.
7.
The Respondent shall provide evidence of payment of the due amounts in
accordance with points III./3. and III./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 in accordance with points III./3. and III./4. above are
not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amount is 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).
9.
The ban mentioned in point III./8. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
10.
In the event that the amounts due in accordance with points III./3. and III./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.
*****
Player Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 11 of 12
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 decis ion (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.
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 Djordje Rakić, Serbia / Club Zhejiang Greentown FC, China PR
Page 12 of 12