Labour Disputes
Texto da decisão
REF. FPSD-6002
Decision of the
Dispute Resolution Chamber
passed on 7 March 2023
regarding an employment-related dispute concerning
the player BESARD SABOVIC
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia), member
Mario Flores Chemor (Mexico), member
CLAIMANT / COUNTER-RESPONDENT:
Besard Sabovic, Sweden
Represented by SILA Lawyers
RESPONDENT / COUNTER-CLAIMANT:
FC Khimki, Russia
Represented by Evgeny Krechetov
INTERVENING PARTY:
Djurgårdens IF, Sweden
pg. 2
REF. FPSD-6002
I. Facts of the case
1.
On 20 June 2021, the Swedish player, Besard Sabovic (hereinafter: player) and the Russian
club, FC Khimki (hereinafter: club) concluded an employment contract (hereinafter:
contract) valid as from 20 June 2021 until 31 May 2024.
2.
Art. 3.1 of the contract establishes: “[…] The salary is paid twice a month: for the first half of
the month (advance payment it is paid on the 25th day of the settlement month and the final
payment for the month worked is paid on the 10th day of the month following the settlement
month. If the day of payment coincides with a weekend or a non-working holiday, the salary is
paid on the previous day”.
3.
Art. 6 of the contract reads as follows:
4.
According to art. 6.9 of the contract, the club undertook to pay the player a “signing bonus”
in the amount of EUR 117,647 until 31 August 2021.
pg. 3
REF. FPSD-6002
5.
Art. 6.11 of the contract establishes: “All amounts, which are shown in the present Contract in
Euro, will be paid to the Employee in rubles according to the currency rate defined by the Central
Bank of the Russian Federation on the last day of the corresponding calculated month, but not
more than 97,51 rubles for 1 Euro, and to the account in a bank in Russian Federation. Further
operations with money received (including converting, a transfer to the foreign bank etc.) will be
made by the Employee on his own and at his own expense. No payments by the Employer in
favour of the Employee to the accounts in foreign banks are allowed by the laws of the Russian
Federation.”
6.
Art. 10.5 of the contract reads as follows: “Any amounts payable to the Football player under
this Contract are stated prior to the withholding of personal income tax.”
7.
On 18 February 2022, the club initiated the regulations on bonus payments for the ongoing
season.
8.
Art. 2.4 of those regulations establish that the general condition for payment of bonuses is
that the Club keeps its “right to participate in the Russian football championship between the
teams of the clubs of the Premier League for the season 2022/2023 on sporting basis”.
9.
Art. 3.1. of the regulations state that the maximum bonus for a victory is RUB 575,000 and
for a draw RUB 287,000.
10. Art. 3.2. of the regulations define:
11. Art. 6.2 of the regulations establish that the bonuses shall be paid on 31 July 2022.
12. On 6 April 2022, the player put the clubin default and requested payment of EUR 57,060,
corresponding to the outstanding part of the signing bonus, within 15 days.
pg. 4
REF. FPSD-6002
13. On 4 May 2022, the player put the club in default again and requested payment of EUR
149,708.50, corresponding to the outstanding part of the signing bonus (EUR 57,060), as
well as the salaries for February 2022 (half), March 2022, April 2022 and May 2022, within
3 days.
14. On 9 May 2022, the player terminated the contract with the club, due to the outstanding
remuneration.
15. On 9 August 2022, the player signed an employment contract with the Swedish club,
Djurgårdens IF valid as from 9 August 2022 until 31 December 2024, including a monthly
salary of SEK 100,000 (approx. EUR 9,000). Furthermore, Djugardens IF undertook to pay
the following “sign-on fee” to the player:
- SEK 1,000,000 (approx. EUR 89,000) on 31 August 2022;
- SEK 1,000,000 (approx. EUR 89,000) on 31 March 2023.
II. Proceedings before FIFA
16. On 11 May 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
17. In his claim, the player lodged a claim against FC Khimki in front of FIFA and requested
payment of the following monies:
- EUR 57,060 net as outstanding part of the signing fee, plus 5% interest p.a. as of
2 March 2022;
- EUR 13,235.50 net as half of his outstanding salary of February 2022, plus 5%
interest p.a. as of 11 March 2022;
- EUR 26,471 net as outstanding salary of March 2022, plus 5% interest p.a. as of
11 April 2022;
- EUR 26,471 net as outstanding salary of April 2022, plus 5% interest p.a. as of 11
May 2022.
- EUR 635,304 net as compensation for breach of contract, corresponding to the
residual value of the contract (salaries of May 2022 until May 2024; 24x EUR
26,471), plus 5% interest p.a. as of 10 May 2022.
18. In his claim, the player argued that his annual earning was defined as EUR 317,647, which
leads to a monthly salary of EUR 26,471 (EUR 317,647/12).
pg. 5
REF. FPSD-6002
19. Taking into account the above, and since a total amount of EUR 149,708.50 remained
outstanding at the moment of termination, even after having put the club in default, the
player held having had just cause to terminate the contract in accordance with art. 14bis
RSTP.
b. Position of the club / counterclaim
20. In its reply, the Respondent rejected the player’s claim and lodged a counterclaim against
the player, requesting payment of the following amount:
- EUR 635,294 as compensation for breach of contract, corresponding to the
residual value of the contract, plus 5% interest p.a. as of 10 May 2022.
21. The club maintained that the first default notice dated 6 April 2022 went into their SPAM
folder and was therefore not answered.
22. The club further pointed out that the player did not terminate the contract after the first
default notice, even though it remained unanswered and that he therefore “forfeited” his
right to terminate.
23. Moreover, the club confirmed having received the second default notice dated 4 May 2022,
but held that it was a short deadline with only one business day.
24. Furthermore, the club stated that it remitted the outstanding sign-on fee (RUB
4,729,332.60) on 16 May 2022 to the player.
25. The club argued that art. 14bis RSTP was not fulfilled since the outstanding sign-on fee
cannot be considered as salary in the sense of art. 14bis RSTP.
26. Further, the club argued that the outstanding remuneration (EUR 72,549, corresponding to
the sign-on fee and a part from the salary of March 2022) did not give the player just cause
to terminate the contract.
27. Along those lines, the club held that the salaries for April and May 2022 were not yet due
(due date allegedly 10 May 2022).
28. The club also held that the player terminated the contract during a public holiday, therefore
in bad faith.
29. The club pointed out that, on 9 June 2022, it paid the following amounts to the player:
- RUB 1,752,508.78 (approx. EUR 26,900), corresponding to the residual salary of
March 2022;
- RUB 1,839,512.63 (approx. EUR 28,000), corresponding to the salary of April 2022;
- RUB 267,562.19 (approx. EUR 4,100), corresponding to the salary of May 2022 (3
days effectively worked).
pg. 6
REF. FPSD-6002
c. Reply of the player to the counterclaim
30. In his reply to the counterclaim, the player rejected the club’s claim and reiterated his
position.
31. He acknowledged receipt of the payments from the club dated 16 May 2022 and 9 June
2022, but insisted that those payments were received after the termination and that he
remains entitled to the interest for late payments.
32. Moreover, the player held that his monthly salary amounted to EUR 26,471 and that
therefore the outstanding sign-on fee for itself does constitute a debt of more than two
salaries.
33. Regarding the first default notice, the player argued that he duly notified the club, when he
sent the notice to the club’s official email address indicated on its website.
34. On account of the above, the player held having had just cause to terminate the contract
in accordance with art. 14bis RSTP.
35. Moreover, the player held that the debt of the club was significant at the moment of
termination:
- The sign-on fee (more than two monthly salaries)
- 76% of the salary for March 2022
- The entire salary for April 2022.
36. In this regard, the player held that the salary of April 2022 was due on 10 May 2022 in
principle, but since it was a public holiday, it should have been paid before (on 6 May 2022).
37. Due to payments remitted by the club, the player amended his request for compensation
and deducted the partial payment of May 2022 (3 days). Therefore he claims EUR
631,169.66 plus interest.
pg. 7
REF. FPSD-6002
d. Amendment of the player
38. On 26 September 2022, the player amended his claim against the club and requested
payment of the following bonus payments:
39. The Player argued that the condition set in art. 2.4 of the regulations is fulfilled and that he
therefore is entitled to the bonuses as per regulations.
40. He requested interest of 5% p.a. as of 1 August 2022 (due date 31 July 2022).
e. Position of the club to the amendment
41. The club failed to send its position to the amendment of the player.
f. Position of the new club as intervening party
42. The player’s new club endorsed the player’s position.
43. Djugardens IF maintained that it had a long relationship with the player from before his
time in Russia and that the player unilaterally contacted the club after he returned to
Sweden.
pg. 8
REF. FPSD-6002
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
44. 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 11 May 2022 and submitted
for decision on 7 March 2023. Taking into account the wording of art. 34 of the October
2022 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.
45. 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 (October 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension.
46. 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 (October 2022 edition), and
considering that the present claim was lodged on 11 May 2022, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
47. 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
48. 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.
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REF. FPSD-6002
i. Main legal discussion and considerations
49. The foregoing having been established, the DRC moved to the substance of the matter, and
took note of the fact that the parties dispute the justice of the early termination of the
contract by the Claimant, based on the alleged non-payment of certain financial obligations
by the Respondent as per the contract, in accordance with art. 14bis of the Regulations.
50. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled, in the context of the specifities of the matter at hand.
51. In this framework, the DRC noted that the club argued that the player’s first default notice
was not received and that the outstanding remuneration was not substantial enough to
generate just cause.
52. Further, the Chamber took notice that the Claimant held not having received the following
remuneration:
- The sign-on fee (more than two monthly salaries)
- 76% of the salary for March 2022
- the entire salary for April 2022.
53. Furthermore, the Chamber duly noted that Claimant has provided written evidence of
having put the club in default before unilaterally terminating the contract and that the
club’s argument that it has not received the first default notice is not supported by any
documentation.
54. The members of the Chamber wished to emphasize that in the case at hand the club bore
the burden of proving that it indeed complied with the financial terms of the contract
concluded between the parties.
55. With its payments after the termination, the club acknowledged the outstanding
remuneration in principal.
56. Consequently, on account of the above, considering that the Respondent had thus
repeatedly and for a significant period of time been in breach of its contractual obligations
towards the Claimant, we propose to decide that the Claimant had just cause to unilaterally
terminate the employment contract on 9 May 2022 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, based on art. 14 of the Regulations.
57. In this regard, the DRC rejected the counterclaim of the club.
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REF. FPSD-6002
ii. Consequences
58. 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.
59. The Chamber observed that as to the outstanding remuneration, the player acknowledged
the payments of the club dated 16 May 2022 as well as 9 June 2022. However, he held being
entitled to interest for late payments. Therefore, we propose to grant the following interest:
- 5% interest p.a. on the amount of EUR 57,060 as of 2 March 2022 until 16 May 2022;
- 5% interest p.a. on the amount of EUR 26,471 as of 11 April 2022 until 9 June 2022;
- 5% interest p.a. on the amount of EUR 26,471 as of 6 May 2022 until 9 June 2022.
60. Further, the Chamber established that the player’s claim for bonuses is substantiated and
remained uncontested. Therefore, in accordance with the general legal principle of pacta
sunt servanda, the DRC decided to award the player the bonuses of RUB 2,226,750 along
with interest of 5% p.a. as of 1 August 2022.
61. 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 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.
62. 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.
63. 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.
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REF. FPSD-6002
64. 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 661,775 (25x EUR 26,471, May 2022 until May 2024)
serves as the basis for the determination of the amount of compensation for breach of
contract.
65. 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.
66. Indeed, the player found employment with the Swedish club, Djugardens IF. In accordance
with the pertinent employment contract. Therefore, the Chamber concluded that the
player mitigated his damages in the total amount of EUR 198,000 (22x EUR 9,000; August
2022 until May 2024) in salaries and EUR 178,000 as sign-on fee.
67. Furthermore, we have to take into account the partial payment remitted by the club for
May 2022, i.e. EUR 4,100.
68. 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.
69. In this respect, the DRC decided to award the amount of additional compensation of USD
EUR 79,413, i.e. three times the monthly remuneration of the player (3x EUR 26,471).
70. 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 361,088 to the player (i.e. EUR 661,775 -EUR 198,000 -EUR 178,000 -EUR 4,100 plus
EUR 79,413), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
71. 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 10 May 2022 until the date of effective payment.
pg. 12
REF. FPSD-6002
iii. Compliance with monetary decisions
72. 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.
73. 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.
74. Therefore, bearing in mind the above, the DRC decided that the club 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.
75. The club 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.
76. 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
77. 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.
78. 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.
79. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 13
REF. FPSD-6002
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, BESARD SABOVIC, is partially accepted.
2.
The Respondent / Counter-Claimant, FC Khimki, has to pay to the Claimant, the following
amount(s):
- 5% interest p.a. on the amount of EUR 57,060 as of 2 March 2022 until 16 May 2022;
- 5% interest p.a. on the amount of EUR 26,471 as of 11 April 2022 until 9 June 2022;
- 5% interest p.a. on the amount of EUR 26,471 as of 6 May 2022 until 9 June 2022;
- RUB 2,226,750 plus 5% interest p.a. as from 1 August 2022 until the date of effective
payment;
- EUR 361,088 as compensation for breach of contract plus 5% interest p.a. as from 10
May 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 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.
The claim of the Respondent / Counter-Claimant is rejected.
6.
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 / Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-6002
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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pg. 15