DRC Overdue Payables
Texto da decisão
REF. FPSD-15439
Decision of the
Dispute Resolution Chamber
passed on 19 September 2024
regarding an employment-related dispute concerning the player Damir
Sadikovic
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Stijn BOEYKENS (Belgium), Member
Dana MOHAMED AL-NOAIMI (Qatar), Member
CLAIMANT:
Damir Sadikovic, Bosnia and Herzegovina
Represented by Jovan Rudic
RESPONDENT:
Kolubara (Lazarevac), Serbia
pg. 2
REF. FPSD-15439
I. Facts of the case
1.
On 25 July 2022, the Bosnian player Damir Sadikovic (hereinafter: the Player or the Claimant)
and the Serbian club Kolubara (Lazarevac) (hereinafter: the Club or the Respondent) entered
into an employment contract valid as from the signing date until 25 July 2024 (hereinafter:
the Employment Contract).
2.
Pursuant to article 3 of the Employment Contract, the Club undertook to pay the Player
RSD 40,000 by the 20th day of each month.
3.
In addition, pursuant to the Annex to the Employment Contract, the Player would also be
entitled to the following remuneration:
•
RSD 450,000 as a monthly transfer fee for the duration of the Employment
Contract;
•
EUR 70,000 as an additional transfer fee, payable as follows:
o
o
o
o
EUR 10,000 by 30 August 2022;
EUR 20,000 by 28 February 2023;
EUR 20,000 by 30 August 2023;
EUR 20,000 by 28 February 2024.
4.
On 25 August 2023, the Player sent a notice of default to the Club, demanding payment of
(i) the monthly transfer fee of RSD 450,000 for July 2023; and (ii) the two additional transfer
fee instalments due in August 2022 and February 2023. The Player gave the Club 15 days
to remedy the situation.
5.
On 15 September 2023, the Player and the Club entered into a termination agreement with
immediate effect (hereinafter: the Termination Agreement).
6.
Articles 3 and 4 of the Termination Agreement read as follows, quoted verbatim:
“Article 3
The Parties agree that on the date of conclusion of this Agreement, [the Club] has due
and unpaid liabilities to the football player in the name of all entitlements (monthly
salaries, contractual instalments and bonuses for achieved sports results) in the total
amount of EUR 50,000 (fifty thousand Euros). The total amount shall be paid in two equal
instalments of EUR 25,000 each.
The first instalment in the amount of EUR 25,000 shall be due no later than 30 December
2023, while the second instalment in the amount of EUR 25,000 shall be paid no later
than 30 May 2024.
pg. 3
REF. FPSD-15439
Article 4
The Parties agree that as of the date of termination of the Professional Agreement, all
mutual rights and obligations as well as any Annexes other than the obligations specified
in Article 3 of this Agreement shall cease to apply. In the event of a dispute, the Parties
determine the jurisdiction of the dispute resolution panel of the FSS [Football Association
of Serbia] or FIFA DRC of their choice”.
7.
On 2 July 2024, the Player sent a further notice of default to the Club, this time in respect
of outstanding remuneration under both the Employment Contract and the Termination
Agreement. In particular, he demanded payment within 15 days of (i) EUR 50,000 as the
settlement amount set out in article 3 of the Termination Agreement; and (ii) RSD 940,000
“on behalf due salaries and monthly transfer rata bonuses”.
II. Proceedings before FIFA
8.
On 2 August 2024, the Player filed the present claim with FIFA, seeking the following relief,
quoted verbatim:
“As a consequence of all of the above, we are requesting the FIFA DRC to order that the
Respondent must pay the Claimant the following amount as outstanding remuneration:
a) The salary for August 2023 in the amount of RSD 40,000, in accordance with
[Employment Contract] Article 3, Paragraph 1, which was supposed to be paid by 20th
August 2023, with 5% interest p.a. as from 20th August 2023
b) The transfer installment for July 2023 is in the amount of RSD 450,000, in accordance
with the Annex to the [Employment Contract], Article 1, Paragraph 2, which was
supposed to be paid until 1st August 2023, with 5% interest p.a. as from 1st August 2023
c) The transfer installment for August 2023 in the amount of RSD 450,000, in accordance
with the Annex to the [Employment Contract], Article 1, Paragraph 2, which was
supposed to be paid until 1st September 2023, with 5% interest p.a. as from 1st September
2023
d) EUR 25,000, according to the Article 3 of the [Termination Agreement], + 5% interest
p.a. as from 30th December 2023
e) EUR 25,000, according to the Article 3 of the [Termination Agreement], + 5% interest
p.a. as from 30th May 2024”.
9.
In his claim, the Player argued that he had received offers from other clubs and had agreed
to the terms of the Termination Agreement in order to be released from the Employment
Contract. Nevertheless, he claimed that he could not validly waive his past remuneration
and was therefore “misguided” by the Club. The Player added that the Club’s continued
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REF. FPSD-15439
failure to meet its financial obligations supported the argument that it was a repeat
offender.
10. In conclusion, the Player stressed that he should be entitled to the EUR 50,000 mentioned
in the Termination Agreement, in addition to the amounts unlawfully waived and the
applicable interest.
11. The Club failed to respond to the claim despite being invited to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Dispute Resolution Chamber (hereinafter: the 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 02 August 2024 and submitted for decision
on 19 September 2024. Taking into account the wording of art. 34 of the March 2023 edition
of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules),
the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
13. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), 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 Bosnian player
and a Serbian club.
14. 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 (June 2024 edition), and
considering that the present claim was lodged on 02 August 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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).
pg. 5
REF. FPSD-15439
c. Merits of the dispute
16. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
i. Main legal discussion and considerations
17. The Chamber then proceeded to the substance of the case, finding that it concerned a
claim for outstanding remuneration consisting of: (i) the settlement sum mentioned in art.
3 of the Termination Agreement (i.e., two instalments of EUR 25,000 each; hereinafter: the
Settlement Sum); and (ii) the residual remuneration under the Employment Contract (i.e.,
RSD 940,000), which the Player claimed to have unlawfully waived.
18. The Chamber also noted that the Club did not respond to the claim and therefore
acknowledged that its assessment should be based solely on the documentation provided
by the Player (cf., art. 21 par. 1 of the Procedural Rules).
19. Having established the above, the Chamber analysed each of the Player’s claims in turn.
(i) The Settlement Sum under the Termination Agreement (EUR 50,000)
20. As a starting point, the DRC noted that the Player’s entitlement to the Settlement Sum was
contractually based (cf., article 4 of the Termination Agreement) and that it was therefore
incumbent on the Club to provide proof that it had fulfilled its financial obligations.
21. Notwithstanding the foregoing, and in the absence of any response or proof of payment
from the Club, the Chamber ruled that the Player was entitled to the two instalments
claimed on the basis of the general legal principle of pacta sunt servanda.
22. In addition, the DRC also decided to award the Player interest at the rate of 5% p.a. on these
sums from the due dates of each outstanding instalment (i.e., 31 December 2023 and 31
May 2024, respectively) until the date of effective payment.
(ii) The residual remuneration under the Employment Contract (RSD 940,000)
23. The Chamber then turned to the Player’s allegations regarding his additional credit under
the Employment Contract and the forced waiver through the Termination Agreement.
24. In this context, the Chamber first recalled the wording of article 4 of the Termination
Agreement, which, for ease of reference, provides as follows:
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REF. FPSD-15439
“The Parties agree that as of the date of termination of the Professional
Agreement, all mutual rights and obligations as well as any Annexes other than
the obligations specified in Article 3 of this Agreement shall cease to apply. In the
event of a dispute, the Parties determine the jurisdiction of the dispute resolution panel
of the FSS [Football Association of Serbia] or FIFA DRC of their choice” (emphasis added
by the Chamber)
25. After a careful analysis of the above, the Chamber found that the wording of the
Termination Agreement was clear and unambiguous in stating that the Player was not
entitled to any further amount than the Settlement Sum (i.e., the EUR 50,000 mentioned in
art. 3 of the same document). As such, the DRC considered that this provision effectively
amounted to a novation of its financial obligations and, mutatis mutandis, a release / waiver
of any residual (outstanding) remuneration under the Employment Contract.
26. Notwithstanding the foregoing, the DRC also recalled that the mere signing of a contract is
not sufficient to ensure the enforceability of its contents. In particular, the Chamber noted
that the well-established jurisprudence the Football Tribunal and the Court of Arbitration
for Sports (CAS) on waivers provides that (i) in general terms, an employee (e.g., a player)
cannot waive remuneration for work already performed; and (ii) in order to assess whether
a transaction is permissible, the court / deciding-making body is required to conduct a
balancing of interests by considering whether the reciprocal claims waived by each party
are of comparable value. Put differently, whether there is an appropriate equivalence
between the parties’ reciprocal concessions.
27. The Chamber then turned to the Player’s submissions and supporting evidence in order to
determine whether he could establish that the arrangement contained in the Termination
Agreement did in fact involve unequal considerations.
28. In doing so, the DRC first noted that the Player did not dispute that he signed the
Termination Agreement, nor did he provide any evidence of duress and/or bad faith on the
part of the Club. Although the Player argued that the Club had the initiative to terminate
the Employment Contract, the Chamber observed that he also failed to provide any
evidence in this regard. On the contrary, the Player expressly stated that he signed the
Termination Agreement to be transferred to another club, thus suggesting that he was also
interested in terminating their contractual relationship.
29. In addition to the above, the Chamber considered it decisive that the outstanding
remuneration now claimed by the Player (i.e., RSD 940,000), when converted into Euros (i.e.,
EUR 8,000, at the exchange rate of the signing date) was far lower than the Settlement Sum
mentioned in the Termination Agreement. Consequently, the Chamber found that, in the
absence of a breakdown in the Termination Agreement and/or other evidence to this
effect, it could be reasonably assumed that this amount was already included in the
Settlement Sum set forth in article 3.
pg. 7
REF. FPSD-15439
30. Therefore, given the combination of the unambiguous wording of the Termination
Agreement and the lack of convincing evidence to support of the Player’s argument, the
DRC was not convinced that the Termination Agreement contained unbalanced
concessions between the parties. Consequently, the Chamber determined that the Player
failed to establish his entitlement to a residual amount in addition to the Settlement Sum.
31. In conclusion, the DRC decided that this part of the Player’s claim should be dismissed, and
that the Player should therefore only be awarded the Settlement Sum and the applicable
interest.
ii. Art. 12bis of the Regulations
32. In continuation, the Chamber referred to art.12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
33. To this end, the DRC confirmed that the Player put the Club in default of payment of the
Settlement Sum, which had fallen due for more than 30 days, and granted the Club with 10
days to cure such breach of contract.
34. Accordingly, the Chamber also confirmed that the Club had delayed a due payment without
a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations were met in the case at hand.
35. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the first offense by the Club within the last two years, the Single Judge decided
to impose a warning on the Club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
36. In this connection, the DRC highlighted that a repeated offence will be considered as an
aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
iii. Compliance with monetary decisions
37. 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.
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REF. FPSD-15439
38. 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.
39. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
40. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
41. 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
42. 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.
43. 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.
44. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-15439
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Damir Sadikovic, is partially accepted.
2.
The Respondent, Kolubara, must pay to the Claimant the following amount(s):
- EUR 25,000 as outstanding remuneration plus 5% interest p.a. as from 31 December
2023 until the date of effective payment; and
- EUR 25,000 as outstanding remuneration plus 5% interest p.a. as from 31 May 2024
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
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 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 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
pg. 10
REF. FPSD-15439
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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legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 11