Labour Disputes
Texto da decisão
REF FPSD-3582
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Momcilo
Raspopovic
BY:
Omar Ongaro (Italy), Deputy Chairperson
Peter Lukasek (Slovakia), member
Yuriy Zapisotskiy (Ukraine), member
CLAIMANT:
Momcilo Raspopovic, Montenegro
Represented by Ivan Ostojić
RESPONDENT:
AFC Astra Giurgiu, Romania
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I.
Facts of the case
1.
On 1 January 2021, the Montenegrin player Momcilo Raspopovic (hereinafter: the Claimant)
and the Romanian club AFC Astra Giurgiu (hereinafter: the Respondent) agreed upon an
employment agreement valid for the period between 1 January 2021 and 30 June 2023,
based on which the Claimant was entitled to receive the following amounts:
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EUR 20,000 as ‘sign-on fee’;
EUR 7,500 as monthly salary in the period between 1 January 2021 and 30 June
2021, due on the 15th day of the next month;
EUR 8,000 as monthly salary in the period between 1 July 2021 and 30 June 2023,
due on the 15th day of the next month;
EUR 300 as housing allowance;
EUR 200 as car rental expenses;
‘two flight tickets, go and return, for year, on the route Bucharest – Home, if
necessary’.
2.
On 28 May 2021, the Claimant put the Respondent in default for the outstanding amount of
EUR 38,080, providing it a 15 days’ deadline to remedy its default, however to no avail.
3.
On 18 June 2021, the Claimant unilaterally terminated the contract with the Respondent,
based on several outstanding amounts.
4.
After the unilateral termination of the contract with the Respondent, the Claimant signed a
new contract with the Montenegrin club FK Budocnost, valid between 1 August 2021 and
31 May 2022, based on which he was entitled to a total amount of EUR 4,000 per month,
i.e. a total amount of EUR 40,000.
II. Proceedings before FIFA
5.
On 7 September 2021, 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
6.
On 7 September 2021, the Claimant lodged a claim against the Respondent, claiming the
following amounts:
Outstanding remuneration in the total amount of EUR 50,560, plus 5% interest p.a. as from
the respective due dates, as follows:
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EUR 20,000 as sign-on fee;
EUR 300 as rental allowance for January 2021;
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EUR 300 as rental allowance for February 2021;
EUR 1,880 as partial outstanding salary for February 2021;
EUR 300 as rental allowance for March 2021;
EUR 7,500 as salary for March 2021;
EUR 300 as rental allowance for April 2021;
EUR 7,500 as salary for April 2021;
EUR 300 as rental allowance for May 2021;
EUR 7,500 as salary for May 2021;
EUR 180 as rental allowance for June 2021;
EUR 4,500 as salary for the period between 1 June and 18 June 2021.
Compensation for breach of contract in the total amount of EUR 209,850, plus 5% interest
p.a. as from the respective due date, as follows:
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7.
EUR 195,000 as residual value of the contract in the period between 19 June 2021
and 30 June 2023;
EUR 7,320 as rental allowances in the period between 19 June 2021 and 30 June
2023;
EUR 4,800 as rental car allowances in the period between 1 July 2021 and 30 June
2023;
EUR 2,460 as value of 6 tickets from Bucharest, Romania to Montenegro.
In its claim, the Claimant explains that the Respondent failed to pay him a total amount of
EUR 50,560, that he based on these outstanding amounts terminated his contract with just
cause and that as a result, he is entitled to the outstanding remuneration and compensation
for breach of contract.
b. Position of the Respondent
8.
Despite having been invited to do so, the Respondent failed to answer to the Claimant’s claim
within the deadline provided to it.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 7 September 2021 and submitted for
decision on . Taking into account the wording of art. 34 of the October 2021 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
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10. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Montenegrin player and a
Romanian club.
11. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition) and
considering that the present claim was lodged on 7 September 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
12. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
13. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
14. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that it was its task – in view of the absence of timely reply from the
Respondent – to determine whether or not the termination of the contract by the Claimant
on 18 June 2021 was made with or without just cause.
15. In this respect the Chamber wished to clarify that – since the Respondent, for its part, failed
to present its response to the claim of the Claimant within the deadline provided to it to do
so - it deemed that the Respondent had renounced to its right of defence and, thus, had
accepted the allegations of the Claimant.
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16. As a consequence of the aforementioned consideration, the members of the Chamber
concurred that, in accordance with art. 21 par. 1 of the Procedural Rules, a decision shall be
taken upon the basis of the documents already on file, in other words, upon the statements
and documents presented by the Claimant.
17. In accordance with the employment contract, the Respondent, in addition to the sign-on fee
of EUR 20,000, a monthly salary of EUR 7,500 and EUR 300 as housing allowance.
18. On account of the aforementioned, the Chamber established that the Respondent, without
any valid reason, failed to remit to the Claimant, until 18 June 2021, date on which the
Claimant terminated the contract, the total amount of EUR 45,880, linked to the unpaid
salaries and rental allowances in the period between January and June 2021.
19. Consequently, and considering that the Respondent had repeatedly and for a significant
period of time been in breach of its contractual obligations towards the Claimant, the
Chamber decided that the Claimant had just cause to unilaterally terminate the employment
contract on 18 June 2021 and that, as a result, the Respondent is to be held liable for the
early termination of the employment contact with just cause by the Claimant.
ii. Consequences
20. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
21. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to more 4 salaries
under the contract, as well as several rental allowances, amounting to a total amount of EUR
45,880.
22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract at the moment of the termination, i.e. EUR 45,880.
23. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
24. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
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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 as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
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 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.
27. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of EUR 211,800 serves as the basis for the determination of the amount of
compensation for breach of contract.
28. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
29. Indeed, the player found employment with the Montenegrin club FK Budocnost. In
accordance with the pertinent employment contract, the player was entitled to EUR 4,000
per month. Therefore, the Chamber concluded that the player mitigated his damages in the
total amount of EUR 40,000, that is, 10 times EUR 4,000.
30. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber confirmed that the contract termination took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
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31. In this respect, the DRC decided to award the amount of additional compensation of EUR
22,500, i.e. three times the monthly remuneration of the player.
32. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR 194,300
to the player (i.e. EUR 211,800 minus EUR 40,000 plus EUR 22,500), which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
33. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 7 September 2021 until the date of effective payment.
iii. Compliance with monetary decisions
34. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding
body shall also rule on the consequences deriving from the failure of the concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
35. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
36. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
37. 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.
38. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
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39. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
40. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
41. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Momcilo Raspopovic, is partially accepted.
2.
The Respondent, AFC Astra Giurgiu, has to pay to the Claimant, the following amount:
- EUR 45,580 as outstanding remuneration, plus 5% interest p.a. until the date of effective
payment as follows:
o on the amount of EUR 20,000 as from 2 January 2021;
o on the amount of EUR 300 as from 1 February 2021;
o on the amount of EUR 300 as from 1 March 2021;
o on the amount of EUR 1,880 as from 16 March 2021;
o on the amount of EUR 300 as from 1 April 2021;
o on the amount of EUR 7,500 as from 16 April 2021;
o on the amount of EUR 300 as from 1 May 2021;
o on the amount of EUR 7,500 as from 16 May 2021;
o on the amount of EUR 300 as from 1 June 2021;
o on the amount of EUR 7,500 as from 16 June 2021.
- EUR 250 as costs for a flight ticket Romania – Montenegro;
- EUR 194,300 as compensation for breach of contract without just cause, plus 5% interest
p.a. as from 7 September 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. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
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 article 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:
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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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