Labour Disputes
Texto da decisão
REF FPSD-2879
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Serder
Serderov
COMPOSITION:
ONGARO Omar (Italy), Deputy Chairperson
ZAPISOTSKIY Yuriy (Ukraine), member
LUKASEK Peter (Slovakia), member
CLAIMANT:
Player Serder Serderov, Russia
Represented by SILA International Lawyers
RESPONDENT:
Club Mezokovesd Zsory FC Kft, Hungary
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REF FPSD-2879
I.
Facts of the case
1.
On 6 August 2020, the Russian player, Serder Serderov (hereinafter: the Claimant or player),
and the Hungarian club, Mezokovesd Zsory FC Kft (hereinafter: the Respondent or club)
signed an employment contract valid as from of the date of signature until 30 June 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of Hungarian Forint (HUF) 4,660,000 net (approx. EUR 13,000), payable until the 10th day
of every month.
3.
Art. 10 of the contract establishes: “[…] The decision to order the Employee to undergo
individual trainings or participate for a team other than main team of the Employer shall be
based exclusively on medical reasons not allowing the Employee to participate in training
with the main team. Any such decision shall not effect the essential conditions of the present
contract including those outlined in the Personal Conditions.”
4.
Art. 47 of the contract reads as follows: “The Employee acknowledges that if he is not
included in the first team of the Employer, or based on the decision of the professional
management he is transferred to the second or further teams of the Employer, his base
wage will be reduced to the percentage determined in the Personal Conditions of the
amount given in point 15 – but to max. its 50% from the 15th day of the month following
the decision.”
5.
Art. 49 of the contract states: “The Parties agree that they shall make efforts to settle their
possible dispute in amicable way by negotiations. If these efforts fail – in cases determined
by the rules of MLSZ or FIFA – the Parties may turn to the organizational units with MLSZ or
FIFA scope of authority, in case of labor dispute to the Administrative and Labor Court having
competence and scope of authority, and in all other disputes arising out of their legal
relationship the Parties stipulate the exclusive jurisdiction of the Sports Standing Arbitration
Court based on the Article 47 of the Sports Law. The number of arbitrators is three; the
procedure is determined by the Procedural Rules of the Arbitration Court.”
6.
On 31 January 2021, the Respondent sent a letter to the Claimant informing him that with
immediate effect he would be part of the club’s second team and that his salary would be
reduced by 50% in accordance with art. 47 of the contract.
7.
On 10 February 2021, the Claimant sent a letter to the Respondent protesting against the
decision to ban him from the first team and to reduce his salary. In this regard, the player
requested payment of half of his salary for January 2021, i.e. HUF 2,330,000, within 10
days.
8.
On 16 March 2021, the Claimant put the Respondent in default and requested payment
of HUF 5,200,000 within 10 days.
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9.
On 19 March 2021, the Respondent replied to the Claimant rejecting his requests as, in the
club’s view, the reduction of his salary and to ban him from the first team, was in
accordance with the contract.
10. On 4 May 2021, the player sent another letter requesting if he was reinstated in the first
team.
11. On 18 May 2021, the Claimant put the Respondent in default and requested payment of
HUF 9,320,000, corresponding to 50% of his salaries between January and April 2021,
within 15 days. In said letter he again requested to be reinstated in the first team.
12. On 9 June 2021, the Respondent replied to the Claimant rejecting his requests.
13. On 10 June 2021, the Respondent ordered the player to train individually.
14. On 11 June 2021, the Claimant terminated the contract with the Respondent due to the
outstanding remuneration as well as since he was forced to train alone.
15. On 16 June 2021, the Respondent sent a letter to the Claimant with a plan of “individual
training sessions” the Claimant was requested to attend.
16. On 17 June 2021, the Claimant replied and pointed out the contract was terminated on
11 June 2021.
17. According to information contained in the Transfer Matching System (TMS), the Claimant
signed an employment contract with the Croatian club, NK Istra 1961, valid as from 28 July
2021 until 31 May 2023, including a monthly salary of EUR 3,000 (approx. HUF 1,080,000).
II. Proceedings before FIFA
18. On 23 June 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
19. The Claimant lodged a claim against the Respondent in front of FIFA and requested payment
of the following monies:
- HUF 11,650,000 net as outstanding remuneration, corresponding to 50% of the player’s
salary as of January 2021 until May 2021, plus 5% interest p.a. as of the 11th day of the
following month;
- HUF 111,840,000 net as compensation for breach of contract, corresponding to the
residual value of the contract, plus 5% interest p.a. as of 12 June 2021.
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20. In his claim, the Claimant held that he had just cause to terminate the contract on 11 June
2021.
21. The Claimant argued that the Respondent failed to pay 50% of his salaries as of January
2021, which is more than two monthly salaries in total.
22. Regarding his removal from the first team, the Claimant held that it was not in accordance
of the contract as art. 10 stipulates medical reasons as only reason for such action. In this
regard, the player pointed out that he has never been given any reason for his ban from the
first team and on 10 June 2021 he was sent to train alone without access to team training at
all.
23. The player held that he was permanently demoted to the second team without the possibility
to be reinstated in the first team. Therefore, the club breached the contract.
24. Furthermore, the Claimant maintained that art. 47 of the contract shall not be applied due
to its “unilateral and arbitrary character”.
25. Moreover, the player claimed compensation in the amount of the residual value of the
contract.
b. Position of the Respondent
26. The Respondent contests FIFA’s competence do deal with the matter at hand on the basis
of art. 49 of the employment contract.
27. Moreover, the Respondent argued that a lawsuit is already pending in front of labour
tribunal of Miskolc, allegedly submitted on 2 July 2021.
28. Furthermore, the Respondent held that art. 49 of the contract is an exclusive jurisdiction
clause.
29. In its reply as to the substance, the Respondent rejected the claim.
30. The Respondent held that the Claimant was only temporary moved to the second team due
to his “injury and poor performance until he recovers from his injury and comes into shape”.
31. In this regard, the Respondent held that the parties were in constant “verbal”
communication about the issue. In this context, the Respondent held having informed the
Claimant several times about the reason for his transfer to the second team.
32. According to the Respondent, the Claimant sent letters with the only purpose to be able to
terminate the contract and that he did not have the intention to return to the first team.
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33. The Respondent further argued that it acted in accordance with the contract, especially art.
10 and 47.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
34. 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 23 June 2021 and submitted for decision
on 3 November 2021. 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.
35. 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 edition), the Dispute
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between an Russian
player and a Hungarian club.
36. The Chamber however noted that the Respondent challenged the competence of FIFA to
hear the dispute at stake, as it is allegedly affected by lis pendens. In particular, the
Respondent points out that the Claimant had already lodged a claim with the same parties
and object in front of the labour tribunal of Miskolc, before lodging the claim at FIFA on 23
June 2021.
37. Furthermore, the DRC noted that the Respondent failed to submit any documentation that
such alleged claim in front of a Hungarian labour court was indeed lodged before the
proceedings were initiated before FIFA. What is more, according to the Respondent said
proceedings in Hungary were initiated on 2 July 2021, whereby the player lodged his claim
in front of FIFA already on 23 June 2021.
38. In addition, the Chamber referred to clause 49 of the employment contract, according to
which: “The Parties agree that they shall make efforts to settle their possible dispute in
amicable way by negotiations. If these efforts fail – in cases determined by the rules of MLSZ
or FIFA – the Parties may turn to the organizational units with MLSZ or FIFA scope of authority,
in case of labor dispute to the Administrative and Labor Court having competence and scope
of authority, and in all other disputes arising out of their legal relationship the Parties stipulate
the exclusive jurisdiction of the Sports Standing Arbitration Court based on the Article 47 of
the Sports Law. The number of arbitrators is three; the procedure is determined by the
Procedural Rules of the Arbitration Court.”
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39. The Chamber, after analysing the wording of the jurisdiction clause, concluded that such
clause did not clearly and exclusively establish the competence of the labour court in Hungary.
40. As a consequence, the Chamber was of the opinion that the Respondent’s objection to 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, to consider
the present matter as to the substance.
41. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 23 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
42. 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
43. 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
44. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that player terminated the contract on 11 June 2021 due to
outstanding remuneration and his permanent removal from the first team.
45. In this context, the Chamber acknowledged that its task was to determine whether the
Claimant had just cause to terminate the contract on 11 June 2021 and to decide on the
consequences thereof.
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46. The Chamber started to examine the circumstances of the player’s removal from the first
team, since the reduction of his salaries is connected therewith.
47. In this regard, the DRC noted that the Respondent argued that the player was solely
transferred to the second team to recover from an injury and due to his poor performance
and that such transfer was not of permanent nature.
48. Taking into account the documentation on file, the members of the Chamber noted that the
Respondent failed to reply to the player’s various requests for the reasoning of his removal
from the first team. There is no proof on file that the club ever informed the player of the
reasons of his removal from the first team and about a possibility to rejoin the first team.
49. Taking into account the club’s actions, the DRC has concluded that the player’s removal from
the first team was permanent and not solely based on his recovery. In this context, the
Chamber took notice that on 10 June 2021, the player was even excluded from the team
training with the second team and sent to train alone.
50. In connection with said removal from the first team without a valid reason, the club reduced
the player’s salary by 50% for a period between January 2021 and May 2021. Consequently,
the Chamber established that the Respondent had thus repeatedly and for a significant period
of time been in breach of its contractual obligations towards the Claimant.
51. The Chamber concluded that such actions of the club in combination shall not be accepted.
Taking into account the player’s default notices and requests to be reinstated, the DRC
established that the player had just cause to terminate the contract on 11 June 2021.
ii. Consequences
52. 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.
53. 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 50% of the
player’s salary as of January 2021 until May 2021, amounting to HUF 11,650,000 net.
54. 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. HUF 11,650,000
net.
55. 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 due dates, i.e. the 11th day of the
following month, until the date of effective payment.
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56. 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.
57. 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.
58. 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.
59. 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 HUF 116,500,000 (i.e. the residual value of the contract) serves as the
basis for the determination of the amount of compensation for breach of contract.
60. 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.
61. Indeed, the player found employment with NK Istra 1961. In accordance with the pertinent
employment contract, the player was entitled to approximately EUR 3,000 (approx. HUF
1,080,000) per month. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of HUF 23,760,000, that is, 22 months times HUF 1,080,000.
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62. 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.
63. In this respect, the DRC decided to award the amount of additional compensation of USD
HUF 13,980,000, i.e. three times the monthly remuneration of the player.
64. 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 HUF
106,720,000 net to the player (i.e. HUF 116,500,000 minus HUF 23,760,000 plus HUF
13,980,000), which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
65. 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 12 June 2021 until the date of effective payment.
iii. Compliance with monetary decisions
66. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
67. 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.
68. 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. 24bis par. 2, 4, and 7 of the Regulations.
69. 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.
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70. 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. 8 of
the Regulations.
d. Costs
71. 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.
72. 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.
73. 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, Serder Serderov, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Mezokovesd Zsory FC Kft, has to pay to the Claimant, the following
amount:
- Hungarian Forint (HUF) 2,330,000 net as outstanding remuneration plus 5% interest p.a.
as from 11 February 2021 until the date of effective payment;
- HUF 2,330,000 net as outstanding remuneration plus 5% interest p.a. as from 11 March
2021 until the date of effective payment;
- HUF 2,330,000 net as outstanding remuneration plus 5% interest p.a. as from 11 April
2021 until the date of effective payment;
- HUF 2,330,000 net as outstanding remuneration plus 5% interest p.a. as from 11 May
2021 until the date of effective payment;
- HUF 2,330,000 net as outstanding remuneration plus 5% interest p.a. as from 11 June
2021 until the date of effective payment;
- HUF 106,720,000 net as compensation for breach of contract plus 5% interest p.a. as
from 12 June 2021 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
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. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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. 24bis par. 7 and 8 and art. 24ter 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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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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