Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
Johan v an Gaalen (S outh Africa), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
Miros lav S edlák, Slovakia,
represented by Mr Peter Lukasek
as Claimant
against the club,
S C Ritzing, Austria,
represented by Mr Wolfang Rebernig
as Respondent
regarding an employment-related dispute
between the parties
I.
Facts of the cas e
1.
On 1 February 2019, the Slovakian player, Miroslav Sedlak (hereinafter: the
Claimant or the player), and the Austrian club, SC Ritzing (hereinafter: the
Respondent or the club) (hereinafter jointly referred to as the parties), concluded
an employment contract (hereinafter: the contract) valid as from 1 February 2019
until 15 June 2020.
2.
Clause IV.1. of the contract provided that the player shall be entitled to a monthly
net salary in the amount of EUR 950 to be paid 12 times a year.
3.
Moreover, clause IV.6. provided that the salary shall be paid on a monthly basis
between the 10. and 15. day of the following month, a grace period of 10 days
shall be applicable.
4.
Furthermore, in accordance with clause IX.3. of the contract, the player
undertook, in particular, to bring all disputes arising from the player's contract,
before addressing the competent courts, to the attention of the competent
bodies of the Austrian Football League, to exhaust the legal remedies available
under the statutes of the Austrian Football League and to make use of the
internal arbitration provided for in the statutes.
5.
Finally, clause IX.8. of the contract stipulated that said contract is subject to
Austrian law. The clause also underlined that subject to IX.3. of this contract, all
legal disputes arising between the parties from the legal relationship regulated
by this contract shall be decided exclusively by the competent regional court.
6.
With the correspondence dated 3 May 2019, received by the club on 14 May 2019,
the player put the club in default for the payment of EUR 1,900, corresponding
to the monthly salaries of February and March 2019, giving the club a deadline
of 10 days to pay the overdue amount.
7.
Subsequently, with the correspondence dated 5 June 2019, received by the club
on 12 June 2019, the player put the club in default for the payment of EUR 2,850,
corresponding to the monthly salary of February, March and April 2019.
8.
In continuation, after the club failed to pay any amounts requested with the
previous letters, the player terminated the contract with his correspondence
dated 27 June 2019, received by the club on 3 July 2019, invoking the club’s
failure to comply with its contractual obligations.
Player Miroslav Sedlák, Slovakia / Club SC Ritzing, Austria
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9.
On 17 July 2019, the player lodged a claim against the club in front of FIFA,
requesting it to pay him EUR 16,150 as outstanding remuneration and
compensation for breach of contract.
10. In addition, the player further requested interest at a rate of 5% p.a. over the
aforementioned amounts as of 4 July 2019 until the date of effective payment,
as well as sporting and disciplinary sanctions to be imposed on the Respondent.
11. In his claim, the player explained the player deemed that the club failed to pay
any salary and therefore, in accordance with art. 14bis of the RSTP, he terminated
the contract with just cause.
12. Furthermore, the player deemed that “Pursuant to the article 17 para 1, of the
FIFA RSTP, in all cases, party in breach shall pay compensation (…) the
Respondent has breached the Employment contract and the Claimant’s
fundamental rights without just cause and therefore shall be liable for payment
of compensation”.
13. In its reply to the claim, the club contested FIFA’s competence with as a
consequence that the claim of the player should be deemed as inadmissible.
14. In this respect, the club referred to clause IX.3. of the contract according to which,
in its opinion, the parties agreed that in case of a dispute relating to the
employment contract, the deciding bodies of the Austrian football federation
shall be competent. In addition, the club sustained that the contract stipulated
as well a clause in favor of national courts.
15. In continuation, the club held that the present matter was an exclusively national
matter as the Respondent is an Austrian club playing in the Austrian league.
16. Finally, upon being asked by FIFA, the player sustained that he remained
unemployed as from the termination of the contract.
II.
Cons iderations of the Dis pute Res olution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC
or Chamber) analysed whether it was competent to deal with the case at hand.
In this respect, the Chamber took note that the present matter was submitted to
FIFA on 17 July 2019. Consequently, the 2018 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Player Miroslav Sedlák, Slovakia / Club SC Ritzing, Austria
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Players (edition 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 Slovakian player
and an Austrian club regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of clause IX.3. of the contract
alleging that the competent bodies to deal with any dispute deriving from the
relevant employment contract are the deciding bodies of the Austrian football
federation.
5.
On the other hand, the Chamber noted that the Claimant referred to the
competence of the FIFA DRC to adjudicate in and on the claim lodged by him
against the Respondent.
6.
Taking into account all the above, the Chamber emphasised that in accordance
with art. 22 lit. b) of the 2020 edition of the Regulations on the Status and
Transfer of Players it is competent to deal with a matter such as the one at 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. Equally, the
members of the Chamber referred to the principles contained in the FIFA
National Dispute Resolution Chamber (NDRC) Standard Regulations, which came
into force on 1 January 2008.
7.
In relation to the above, the Chamber also deemed it vital to outline that one of
the basic conditions that needs to be met in order to establish that another organ
than the DRC is competent to settle an employment-related dispute between a
club and a player of an international dimension, is that the jurisdiction of the
relevant national arbitration tribunal or national court derives from a clear
reference in the employment contract.
8.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
contained a clear jurisdiction clause.
9.
In this respect, the Chamber recalled that Clause IX.3. of the contract stipulates
that (clause as described above): “The player undertakes, in particular, to bring
all disputes arising from the player's contract, before addressing the competent
courts, to the attention of the competent bodies of the Austrian Football League,
Player Miroslav Sedlák, Slovakia / Club SC Ritzing, Austria
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to exhaust the legal remedies available under the statutes of the Austrian
Football League and to make use of the internal arbitration provided for in the
statutes”.
10. Having examined the relevant provision, the Chamber underlined that said
clause not only did not name a specific deciding body, nevertheless the
Respondent also failed to provide any relevant documentation in this matter.
11. In addition, the Chamber also took note of the Respondent’s argument referring
to the competence of national courts and, in this respect, the Chamber deemed
that this applied only as second instance and due to the abovementioned, said
point could not be taken into consideration.
12. In continuation, the Chamber also held that the Respondent’s argument as to
the fact that the present matter would be an exclusively national matter as the
Respondent is an Austrian club playing in the Austrian league could not be
retained nor followed due to the fact that the Claimant is from Slovakia.
13. On account 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. In continuation, the Chamber analyzed 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, the Chamber referred, on the one hand, to art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (edition 2020) and,
on the other hand, to the fact that the present claim was lodged on 17 July 2019.
Therefore, the Dispute Resolution Chamber concluded that the June 2019 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 DRC entered into the substance of the matter. In this respect,
the Chamber started by acknowledging the above-mentioned facts as well as the
documentation contained in the 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.
16. Having said this, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well as the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
Player Miroslav Sedlák, Slovakia / Club SC Ritzing, Austria
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17. In this respect and first of all, the members of the Chamber acknowledged that,
on 1 February 2019, the Claimant and the Respondent had concluded an
employment contract valid as from 1 February 2019 until 15 June 2020 which
provided the remuneration of EUR 950 to be paid 12 times a year, on a monthly
basis between the 10. and 15. day of the following month, however a grace
period of 10 days shall apply.
18. Moreover, the Chamber observed that by correspondence dated 3 May 2019,
received by the Respondent on 14 May 2019, the Claimant put it in default for
the payment of EUR 1,900, corresponding to the monthly salary of February and
March 2019, giving it a deadline of 10 days to pay the overdue amount.
19. In addition, the Chamber underlined as well that by correspondence dated 5 June
2019, received by the Respondent on 12 June 2019, the Claimant put it in default
a second time for the payment of EUR 2,850, corresponding to the monthly salary
of February, March and April 2019.
20. Following this, the members of the Chamber took note as well that, after the
Respondent failed to pay any amounts requested with the previous letters, the
Claimant terminated the contract with his correspondence dated 27 June 2019,
received by it on 3 July 2019, invoking the its failure to comply with its
contractual obligations.
21. Within the above in mind, the Chamber observed that in the Claimant’s opinion,
the Respondent having failed to pay any salary despite having been duly put in
default, it should be liable to pay him outstanding remuneration as well as
compensation for breach of contract in the total amount of EUR 16,150, due to
the operated termination of the contract with just cause in accordance with art.
14bis of the Regulations.
22. On account of the above, the Chamber highlighted that the underlying issue in
this dispute was to determine as to whether the contract had been terminated
by the Claimant with just cause and, subsequently, to determine the
consequences thereof.
23. Having said that, the Chamber held that, on the date of termination of the
contract by the Claimant, i.e. by correspondence dated 27 June 2019, received by
the Respondent on 3 July 2019, the Respondent had allegedly failed to pay the
Claimant’s remuneration due as from February 2019.
24. Furthermore, the DRC noted that the Respondent had been given the
opportunity to reply to the claim submitted by the Claimant, but that the
Respondent had failed to present its response as to the substance in this respect,
referring only as to its challenge of FIFA’s competence and its request to consider
the present claim as inadmissible. In this way, the DRC deemed that the
Claimant’s allegations as to the substance remained undisputed and therefore,
that the Respondent accepted said allegations.
Player Miroslav Sedlák, Slovakia / Club SC Ritzing, Austria
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25. On account of the preceding, the Chamber concluded that the Respondent failed
to remit any remuneration in respect of the aforementioned defaults, and
therefore established that the Respondent, without any valid reason, failed to
remit to the Claimant the remuneration totalling EUR 4,750.
26. Consequently, the DRC referred to art. 14bis par. 1 of the Regulations, which,
inter alia, stipulates that, in case a club unlawfully fails to pay a player at least
two monthly salaries on their due dates, the player will be deemed to have had
a just cause to terminate his contract, provided that he has put the debtor club
in default in writing and has granted it a deadline of at least 15 days to fully
comply with its financial obligations.
27. In this respect, on account of the above and considering that, when the player
terminated the contract, at least two monthly salaries were due despite the fact
that the Claimant provided the Respondent with the required deadline to
remedy the default, the DRC concluded that, by correspondence of 27 June 2019,
received by the Respondent on 3 July 2019, the Claimant had a just cause to
unilaterally terminate the employment contract.
28. Subsequently, prior to establishing the consequences of the termination of the
employment contract with just cause by the Claimant as mentioned above, in
accordance with art. 17 par. 1 of the Regulations, the Chamber held that it, in
general, had to address the issue of unpaid remuneration at the moment when
the contract was terminated by the Claimant.
29. As established above (cf. point II.25.), 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 amount of EUR 4,750 as outstanding
remuneration.
30. In addition, taking into consideration the player’s claim, the Chamber decided to
award the Claimant interest at the rate of 5% p.a. on the aforementioned sum
as of the date of receipt by the Respondent of the Claimant’s termination on 3
July 2019, i.e. 4 July 2019 being one day after, until the date of effective payment.
31. Having established that the Respondent is to be held liable for the early
termination of the employment contract with just cause by the Claimant, the
Chamber further decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent
compensation for breach of contract in addition to the aforementioned
outstanding remuneration.
32. In this context, the Chamber outlined that in accordance with said provision 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
Player Miroslav Sedlák, Slovakia / Club SC Ritzing, Austria
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due to the Claimant 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.
33. In application of the relevant provision, the Chamber held that it first of all had
to clarify whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation
payable by the contractual parties in the event of breach of contract. In this
regard, the Chamber established that no such compensation clause was included
in the contract at the basis of the matter at stake.
34. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
35. The members of the Chamber then turned their attention to the remuneration
and other benefits due to the Claimant 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.
36. Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
as from its termination and concluded that the Claimant would have received
EUR 10,925 as remuneration had the employment relationship been executed
until its regular expiry date of 15 June 2020, i.e. 11.5 monthly salaries.
Consequently, the Chamber concluded that the amount of EUR 10,925 serves as
the basis for the final determination of the amount of compensation for breach
of contract in the case at hand.
37. In continuation, the Chamber assessed as to whether the Claimant has signed an
employment contract with another club during the relevant period of time, by
means of which he would have been able to reduce his loss of income. According
to the constant practice of the DRC, such remuneration under a new employment
contract(s) 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.
38. The Chamber recalled that, after termination of the contract, the Claimant was
not able to mitigate his damages, as he remained unemployed.
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39. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must
pay the amount of EUR 10,925 to the Claimant as compensation for breach of
contract.
40. In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the Chamber decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount
of compensation as of the date on which the claim was lodged, i.e. 17 July 2019,
until the date of effective payment.
41. The DRC concluded its deliberations in the present matter by establishing that
any further claims lodged by the Claimant are rejected.
42. Furthermore, 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.
43. In this regard, the Chamber established that, in virtue of the aforementioned
provision, it has competence to impose a sanction on the Respondent. More in
particular, the DRC pointed out that, against clubs, the sanction shall consist in a
ban 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.
44. Therefore, bearing in mind the above, the DRC decided that, in the event that
the Respondent does not pay the amount due to the Claimant within 45 days as
from the moment in which the Claimant, following the notification of the
present decision, communicates the relevant bank details to the Respondent, a
ban from registering any new players, either nationally or internationally, for the
maximum duration of three entire and consecutive registration periods shall
become effective on the Respondent in accordance with art. 24bis par. 2 and 4
of the Regulations.
45. Finally, the Chamber recalled that the above-mentioned sanction 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.
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III.
Decis ion of the Dis pute Res olution Cham ber
1. The claim of the Claimant, Miroslav Sedlák, is admissible.
2. The claim of the Claimant is partially accepted.
3. The Respondent, SC Ritzing, has to pay to the Claimant the amount of EUR 4,750,
plus 5% interest p.a. as from 4 July 2019 until the date of effective payment.
4. The Respondent has to pay to the Claimant compensation for breach of contract
in the amount of EUR 10,925, plus 5% interest p.a. as from 17 July 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 plus interest mentioned under points 3. and 4. above.
7. The Respondent shall provide evidence of payment of the due amounts in
accordance with points 3. and 4. above to FIFA to the e-mail address
[email protected], duly translated into one of the official FIFA languages (English,
French, German, Spanish).
8. In the event that the amounts due in accordance with points 3. and 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 amounts are paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
9. The ban mentioned in point 8. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
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10. In the event that the amounts due in accordance with points 3. and 4. above are
still not paid by the end of the ban of three entire and consecutive registration
periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, FIFA may decide,
at the request of a party within five days of the notification of the motivated decision,
to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision
and shall contain all the elements in accordance with point 2 of the directives issued
by the CAS. Within another 10 days following the expiry of the time limit for filing
the statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
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 Miroslav Sedlák, Slovakia / Club SC Ritzing, Austria
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