Labour Disputes
Texto da decisão
REF FPSD-2727
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Martin Sus
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT:
Martin Sus, Czech Republic
Represented by Markéta Vochoska Haindlová
RESPONDENT:
Club Stal Mielec, Poland
Represented by Agnieszka Maziarz
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I.
Facts of the case
1.
On 4 September 2020, the Czech player, Martin Sus (hereinafter: the Claimant), and the
Polish club, Stal Mielec (hereinafter: the Respondent) signed an employment contract
(hereinafter: “the contract”) valid as from 4 September 2020 until 30 June 2022.
2.
Pursuant to clause 5 of the contract, the Respondent undertook to pay to the Claimant the
monthly remuneration in the amount of Polish zloty (PLN) 22,000 net.
3.
According to the Claimant, the Respondent failed to pay his monthly remuneration for the
months of February and March 2021, in the amount of PLN 22,000 net each.
4.
By correspondence dated 26 April 2021, the Claimant put the Respondent in default of
payment of the total amount of PLN 54,120 corresponding to his outstanding remuneration
for the months of February and March 2021 setting a time limit of 14 days’ in order to remedy
the default, however to no avail.
5.
The Claimant indicated that - in the meantime - his monthly remuneration for April 2021 in
the amount of PLN 22,000 plus VAT also became due and payable.
6.
Furthermore, in its claim, the Claimant stipulated the following:
“it is clear from the written communication on Messenger mobile app between the Player and
the captain of the Club’s “A” team Mr. Krystian Getinger that the Player is based on the table
with bonuses entitled also for the part of the team bonus for maintance in Ekstraklasa for
season 2020/2021 in the amount of PLN 6,972.”
7.
On 21 May 2021, the Claimant sent to the Respondent a letter in terms of which he
unilaterally terminated the contract in accordance with “article 8 par. 3a of the Resolution
No. III / 54 of 27 March 2015 of the Management Board of the Polish Football Association on
the Minimum Requirements for Standard Player Contracts in the Professional Football Sector
and Article 14bis par. 1 of the FIFA Regulations on the Status and Transfer of Players.” The
termination letter was delivered on 31 May 2021.
8.
On 10 June 2021, the Claimant and the Czech club FK Pribram (hereinafter: FK Pribram)
signed an employment contract valid as from valid from 21 June 2021 to 30 June 2024
entitling the Claimant to the following monthly remuneration:
(a) Czech koruna (CZK) 20,000 from 21 June 2021 until 30 June 2022; and
(b) CZK 50,000 from 1 July 2022 until 30 June 2024.
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II. Proceedings before FIFA
9.
On 4 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
10. According to the Claimant, the Respondent failed to comply with its contractual obligations.
11. The requests for relief of the Claimant, were that the Respondent is ordered to pay to the
Claimant:
(a)
the total amount of PLN 81,180, plus 5% interest p.a. from the respective due dates until
date of effective payment, corresponding to his outstanding remuneration for the months
of February, March and April 2021 in the amount of PLN 27,060 each (net PLN 22,000
plus VAT)
(b)
the amount of PLN 6,972 as overdue bonus for maintenance in Ekstraklasa for season
2020/2021 (note: WhatsApp correspondence on file between Claimant and captain); and
(c)
the amount of PLN 378,840 as compensation for breach of the Contract corresponding
to the residual value of the contract.
12. The Claimant additionally mentioned that the Respondent; “violated the Contract by not
providing the Player with professional conditions in the last period of time, when, on 4th
January 2021, the Player was unreasonably demoted to the “B” team in which there is no
doctor, physiotherapist or masseur, the Player did not have access to regeneration or gym,
and he had to wash his own training clothes every day by himself. Moreover, after his
demotion to the “B” team of the Club, the Player was not allowed to participate in competitive
matches. “
b. Position of the Respondent
13. The Respondent firstly contested the competence of FIFA, indicating that the Football Court
of Arbitration operating at the Polish Football Association should be competent to deal with
the matter at hand.
14. In this context, the Respondent mentioned that clause 11.2 of the contract stipulates ”that
any disputes that may arise against the background of the creation, validity, performance and
termination of the Contract, shall be submitted by the Parties to the PZPN Football Arbitration
Court for resolution”.
15. The Respondent further argued that, the contract is clear that Polish law applies and that the
Football Court of the PZPN is competent.
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16. The Respondent explains that the Football Court of Arbitration is acting as an independent
arbitration tribunal.
17. Additionally, the Respondent submitted copies of the Status of the PZPN and the Regulations
of the PZPN Football Court of Arbitration.
18. According to the Respondent, based on art. 11 of the Football Arbitration Court Regulations:
- “The Football Arbitration Court is composed of 32 arbitrators appointed and dismissed by
the PZPN Management Board. The PZPN Management Board appoints the Chairman, ViceChairman, Secretary and 2 members of the Presidium of the Court, one of which is proposed
by the community league clubs, and the second by the league of league of the footballers,
and then 9 arbitrators proposed by the league club community, 9 arbitrators proposed by the
league football community and the President of the Court. On the Association's website and
on the list referred to in § 22 sec. 7, information is provided as to whose recommendation
the individual arbitrators come from”
19. On this account, the Respondent indicated that the above body meets the requirements of
art. 22b RSTP and therefore this case, in accordance with the arbitration clause specified
within the contract falls within the jurisdiction of the Football Arbitration Court before the
Polish Football Association, not to the FIFA Dispute Resolution Chamber.
20. The Respondent furthermore indicated that should the claim of the Claimant be considered
admissible by FIFA, it disagrees with the calculation of the payments as requested.
21. The Respondent mentioned that it had financial problems and was struggling to pay its
players. Due to this fact, it started negotiations with the Claimant and stipulated that the
Claimant agreed to a delay in payment “caused by reasons beyond the control of the Club.”
In this regard, the Respondent is of the view “that it should be considered that the parties
have reached an agreement in this respect, and the termination of the professional contract
was premature and unreasonable.”
22. Additionally, the Respondent made reference to the COVID-19 aid program of the Polish
Football Association of 27 March 2020 approved by the Management Board of the Polish
Football Association which indicated that “in the 2019/2020 and 2020/2021 seasons,
unilateral termination of the contract by the player is possible in the event of a delay in the
payment of the contract for 4 months”. In this context, in light of the fact that the parties
decided “to apply the provisions of Polish law and the PZPN regulations, this regulation applies
in the present case, and therefore this complaint is unfounded, because the Player was not
entitled to terminate the contract, and thus he is not entitled to claim damages.”
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23. Moreover, the Respondent did not dispute the remuneration, which is due to the Claimant
up until date of termination of the contract; however, it disputes the Claimant’s entitlement
to bonus as it lacks a legal basis and compensation.
24. Lastly, in reference to the Claimant’s additional allegations of breach of contract by the
Respondent, the Respondent indicated, “that it had the right to delegate a player to play in
the 1st and 2nd club teams.”
25. The Respondent in conclusion requested the following relief:
(a) to dismiss the claim, due to the effective arbitration clause, hence lack of FIFA DRC
jurisdiction; and
(b) in the event that the Dispute Resolution Chamber considers that Dispute Resolution
Chamber is appropriate to give judgment in this case, to reject the following parts of the
claim:
- amount of PLN 6972 as overdue bonus; and
- amount of PLN 378,840 as compensation for breach of contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 4 June 2021 and submitted for decision on
28 October 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.
27. Subsequently, the members of the Chamber referred to art. 2 par. 1 and art. 24 par.1 lit a)
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 in force on the date of decision), the Dispute Resolution Chamber is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Czech player and a Polish club.
28. The Chamber further noted that the Respondent contested the competence of FIFA’s deciding
bodies in favour of the PZPN Football Court of Arbitration (hereinafter: the NDRC of Poland),
alleging that the latter is competent to deal with any dispute deriving from the relevant
employment contract, in accordance with its clause 11.2 of the contract.
29. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle, competent
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to hear an employment-related dispute between a club and a player of an international
dimension. Nevertheless, the parties may explicitly opt in writing for such dispute to be
decided by an independent arbitration tribunal that has been established at national level
within the framework of the association and/or a collective bargaining agreement. Any such
arbitration clause must be included either directly in the contract or in a collective bargaining
agreement applicable on the parties. The independent national arbitration tribunal must
guarantee fair proceedings and respect the principle of equal representation of players and
clubs. Equally, 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.
30. In this context, the Chamber pointed out that it should first analyse whether the employment
contract at the basis of the present dispute contained a clear and exclusive jurisdiction clause
in favour of the NDRC of Poland. In this respect, the Chamber referred to clause 11.2. of the
contract which stipulates ”that any disputes that may arise against the background of the
creation, validity, performance and termination of the Contract, shall be submitted by the
Parties to the PZPN Football Arbitration Court for resolution”. The Chamber, after analysing
the wording of the jurisdiction clause, conclude that such clause was indeed clear and
exclusive in favour of the competence of the NDRC of Poland.
31. Having established the foregoing, the Chamber turned its attention to the further prerequisites for establishing the competence of a NDRC. The Chamber namely referred to
principle of equal representation of players and clubs and underlined that this principle is one
of the very fundamental elements to be fulfilled, in order for a national dispute resolution
chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations
on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in art. 3 par. 1
of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The
NDRC shall be composed of the following members, who shall serve a four-year renewable
mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club
representatives (…); b) between three and ten player representatives who are elected or
appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no
such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c)
between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010
states the following: “The parties must have equal influence over the appointment of
arbitrators. This means for example that every party shall have the right to appoint an
arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal
(…). Where arbitrators are to be selected from a predetermined list, every interest group that
is represented must be able to exercise equal influence over the compilation of the arbitrator
list”.
32. With the aforementioned principles in mind, the Chamber went on to examine the
documentation presented by the Respondent and noted that as per art. 11 par. 1 and art. 11
par. 2 of the regulations of the NDRC of Poland – the Management Board is fully responsible
for the appointment and dismissal of the 32 arbitrators elected, it therefore seems that the
Management Board has decisive influence over the list of arbitrators. It therefore cannot be
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established with certainty that the NDRC of Poland complies with the standards of an
independent arbitration tribunal guaranteeing equal representation and fair proceedings.
33. Consequently, the Chamber was of the opinion that the Respondent failed to prove that the
NDRC of Poland indeed respects the principle of equal representation of players and clubs.
34. On account of all the above, the Chamber established 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.
35. 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 4 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
36. 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
37. 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
38. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly 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.
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39. 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.
40. The Chamber noted that the Claimant claims that he did not receive his remuneration for the
months of February, March and April 2021, in the total amount of PLN 66,000 net.
41. The Chamber further noted that Respondent argued that the termination of the contract was
premature, as the Claimant agreed to a payment delay, however it cannot be clearly
established from the documentation submitted by the Respondent, whether the Claimant
indeed agreed to a payment delay for the outstanding remuneration as claimed.
42. Furthermore, the Respondent failed to submit any documentary evidence of the COVID-19
aid program of the Polish Football Association it has made reference of in relation hereto. The
Chamber decided that the Respondent did not manage to properly discharge its burden of
proof.
43. As a result of the foregoing, the members of the Chamber came to the conclusion that
arguments of the Respondent cannot be upheld.
44. Following the aforementioned line of reasoning, the members of the Chamber concluded
that the Respondent was in arrears of its financial obligations for a significant period of time
and that as a result, the termination of the contract by the Claimant on 21 May 2021 was
made with just cause, based on art. 14bis of the Regulations, and that the Respondent is to
be held liable for the consequences thereof.
ii. Consequences
45. 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.
46. The members of the Chamber concurred that the Respondent must fulfil its obligations as
per the employment contract up until the date of termination of the contract in accordance
with the general legal principle of “pacta sunt servanda”. Consequently, the Chamber
decided that the Respondent is liable to pay to the Claimant the remuneration that was
outstanding at the time of the termination, i.e. the amount of PLN 66,000 net, consisting of:
a)
b)
c)
PLN 22,000 net, salary of February 2021;
PLN 22,000 net, salary of March 2021; and
PLN 22,000 net, salary of April 2021.
47. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts
from the respective due dates until the date of effective payment.
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48. In continuation, the Chamber 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 any outstanding salaries on the basis of the relevant employment
contract.
49. In this context, the Chamber outlined that, in accordance with the 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 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.
50. In application of the relevant provision, the Chamber held that it first 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 employment contract at the basis of the matter at stake.
51. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of the
employment contract on 21 May 2021, the contract would run for a further period from May
2021 until June 2022.
52. Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to PLN 308,000 net and that
such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
53. In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant informed FIFA that on
10 June 2021, he had signed a new contract with the club, FK Pribram valid as from 21 June
2021 to 30 June 2024. According to the said contract, he was entitled to a monthly salary of
Czech koruna (CZK) 20,000, from 21 June 2021 until 30 June 2022. For the overlapping
period, this corresponds to CZK 240,000 (approximately PLN 43,435.56), as a result the
mitigated compensation amounts to PLN 264,564.44.
54. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player – subject to him finding new employment by means of which he
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could mitigate his damages - is entitled to an additional compensation of three
monthly salaries, subject to the early termination of the contract being due to overdue
payables. In case of egregious circumstances, the additional compensation may be increased
up to a maximum of six monthly salaries, whereby the overall compensation may never
exceed the residual value of the prematurely terminated contract.
55. With the above in mind, the DRC decided not to award to the Claimant additional
compensation corresponding to three monthly salaries (i.e. 3 x PLN 22,000 net = PLN 66,000
net), as the overall compensation would then exceed the residual value of the prematurely
terminated contract.
56. In conclusion, the DRC decided that the Respondent is liable to pay the total amount of PLN
308,000 net to the Claimant as compensation for breach of contract without just cause,
which is considered by the DRC to be a reasonable and justified amount as compensation.
57. Lastly, taking into consideration the Claimant’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award to the Claimant interest on said
compensation at the rate of 5% p.a. as of 4 June 2021 until the date of effective payment.
iii. Compliance with monetary decisions
58. 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.
59. 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.
60. 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.
61. 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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62. 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
63. 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.
64. 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.
65. 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, Martin Sus, is admissible and partially accepted.
2.
The Respondent, Stal Mielec, has to pay to the Claimant, the following amounts:
(a) PLN 66,000 net as outstanding remuneration, plus 5% interest p.a. as from the
respective due dates until the date of effective payment as follows:
- on the amount of PLN 22,000 net as from 16 March 2021;
- on the amount of PLN 22,000 net as from 16 April 2021;
- on the amount of PLN 22,000 net as from 16 May 2021.
(b) PLN 308,000 net as compensation for breach of contract, plus 5% interest p.a. as from 4
June 2021
▪
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Office
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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).
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