Labour Disputes
Texto da decisão
REF. FPSD-13258
Decision of the
Dispute Resolution Chamber
passed on 22 April 2024
regarding an employment-related dispute concerning
the player Jakub Sylvestr
BY:
Lívia SILVA KÄGI (Brazil & Switzerland), Chairwoman
Michele COLUCCI (Italy), member
Andre DOS SANTOS MEGALE (Brazil), member
CLAIMANT:
Jakub Sylvestr, Slovakia
Represented by Monika Hubocka
RESPONDENT:
Sektzya Ness Ziona, Israel
Represented by Nir Inbar
pg. 2
REF. FPSD-13258
I. Facts of the case
1.
On 25 July 2023, the Slovakian player Jakub Sylvestr (hereinafter: the Claimant or player) and
the Israelian club Sektzya Ness Ziona (hereinafter: the Respondent or club) concluded an
employment contract valid from 1 August 2023 until 31 May 2024 (hereinafter: the
Contract).
2.
Hereinafter the player and the club shall be jointly referred to as the parties.
3.
Pursuant to article 4.1 of the Appendix to the Contract, the club undertook to a pay the
player a monthly salary in the gross amount of ILS 38,000 no later than the 10th day of each
following month.
4.
In this respect, art. 4 of the Contract defines the gross value of the payments to be made
in favour of the Claimant as follows:
“To pay the Player the amounts set out in the Payment Clause of this agreement, only in gross
payments from which income tax and National Insurance and any other compulsory payment
shall be deducted as specified by law as required under the directives of the Income Tax and the
National Insurance Institute and/or according to law, and/or according to written arrangements
that the Club may have with the income Tax and/or National Insurance Authorities, and to
provide the Player with confirmation of these deductions”.
5.
Furthermore, based on art. 19.2 and 19.3 of the Appendix to the Contract, the Claimant
would also be entitled to respectively (i) “a rented apartment at the expenses of the club” and
(ii) “two return-flight tickets, to and from his country of origin”.
6.
On 9 August 2023, the player signed a “Lease Agreement” valid from 8 October 2023 until
September 2024.
7.
Based on the Lease Agreement, the parties agreed that “for each month of the rental months,
the [player] will pay the lessors rent in the amount of ILS 8,600, the payment dates will be on the
10th of each rental month. At the time of signing this agreement, the [player] will hand over to
the landlords 12 checks in the amount of ILS 8,600 each for the rent for the rental period, with
the first check for immediate payment and 11 additional checks starting on 10 September 2023”.
8.
In this context, and on the same day, the club signed a “Promissory Note” in the amount of
ILS 60,000 so as to guarantee the payment of the relevant rental fees to the landlord of the
apartment.
9.
On 7 October 2023, following the outbreak of war in Israel, all football-related activities in
the country were officially suspended until further notice.
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REF. FPSD-13258
10. On the same day, the player left Israel with his family.
11. On 22 October 2023, the Israeli Professional Football Leagues (the "IPFL") announced that
in accordance with the decision taken by the relevant state authorities, the Israeli
Professional leagues would be resumed as from 17 November 2023.
12. On the same day, the club communicated to all its players, including the Claimant, that the
team’s training sessions would have resumed on 25 October 2023.
13. On 12 November 2023, the player travelled back to Israel.
14. By correspondence dated 13 November 2023, the player put the club in default of ILS
76,000 as outstanding salaries for September and October 2023, warning that in case of
noncompliance within the following 15 days he would have terminated the Contract
prematurely.
15. In the same date, the player received a message via WhatsApp from a representative of the
club stating the following: “…at this moment you are asked not to come to training until further
notice or until a meeting with the club’s manager in the presence of your agent…”.
16. On 16 November 2023, the Israeli Football Players Organization (“IFPO”) and the IPFL signed
a “Collective Agreement” according to which “a part of the salary will be deferred, for the
months of October 2023 (inclusive) until the month of November 2023 (inclusive) as follows:
a. An employee whose determining salary, as defined in Section 3.1 above, exceeds ILS
9,500 (gross), the payment of the portion of the salary amounting to 15% of the gross
determining salary (hereinafter: the "Deferral" or "Deferred Salary" and the amount
whose payment is deferred - "Deferred Salary") of the employee is deferred as detailed
below.
b. Without detracting from the above, it is hereby expressly clarified that for employees as
mentioned in Section A above, in any case, the determining salary actually paid ('floor')
will not be less than ILS 9,500 gross (such that the rate of deferred salary between a
determining salary of ILS 9,500 and ILS 11,176, will be at a rate lower than 15%), and
that for employees whose determining salary, as defined in Section 3.1 above, is lower
than ILS 9,500, there will not be any deferral (or reduction) of their salary pursuant to
this Agreement. It is hereby expressly agreed that salary components that are not
included in the determining salary shall be paid in full;
17. Furthermore, the parties signing the Collective Agreement established that this would
“refer solely to the deferral of the payment of the basic gross salary, and any condition that does
not refer to the gross determining salary only in the agreements with the employees shall
continue to apply. Thus, for the avoidance of doubt, the Team shall continue to pay the
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REF. FPSD-13258
employees in full all expenses due to them, including car maintenance, fuel, rent, bonuses,
premiums, etc”.
18. On 17 November 2023, the player sent a letter to the club, alleging several breaches of the
Contract by the latter, namely that:
-
The player had not been informed that the team’s activities had resumed;
The club had not provided any assistance/support regarding the player’s return to
Israel;
The player had been unjustly prevented from attending the training sessions
with the team and accessing the club’s facilities nor he had been provided with
the relevant equipment;
The club was in default of numerous financial obligations under the Contract.
19. In this context, the player requested his immediate reinstatement in the team and the
payment of the alleged overdue amounts from the club.
20. On 29 November 2023, the player notified the unilateral termination of the Contract to the
club based on the alleged overdue payables by the latter.
21. On 30 November 2023, the club rejected the player’s notice arguing that the latter had
instead breached the Contract, first by leaving Israel without prior notice in October 2023
and subsequently by missing 3 consecutive training sessions between 28 and 30 November
2023.
22. Accordingly, the club informed the player that the Contract had been deemed as
terminated from the moment in which the player had left Israel, on 7 October 2023.
23. On 1 February 2024, the player signed a new employment contract with the Slovakian club
KFC Komarno, valid from said date until 14 June 2024.
II. Proceedings before FIFA
24. On 5 January 2024, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
25. According to the player, the club failed to comply with several obligations under the
Contract, to the extent of entitling the player to terminate the Contract with just cause on
29 November 2023.
pg. 5
REF. FPSD-13258
26. In particular, the player stated that the club failed to pay the salaries of September, October
and November 2023.
27. Furthermore, the player affirmed that the club has not reimbursed the expenses incurred
by the player for his accommodations in Israel nor the flight tickets the player bought to
travel from and to Israel between October and November 2023, in spite of the relevant
contractual provisions.
28. In addition, the player held that after the war outbreak in Israel, the club failed to
communicate that its football-related activities had resumed, nor did it assist the player
with his return to Israel. In this respect, the player alleged that once he returned to Israel
at his own expense, the club did not allow the player to train with the team, confiscating
the car previously assigned to him and refusing to provide him with the relevant
equipment.
29. The player alleged having tried to participate in the team’s training session on 14 and 15
November 2023 but was prevented from doing so by the club.
30. In the player’s view, the club would have therefore breached the player’s trust in the
continuation of the employment relationship to the extent that the player would have no
alternatives but to terminate the Contract on 29 November 2023.
31. On account of the above, the player claimed compensation for breach of contract by the
club without just cause, amounting to the residual value of the contract as from the date
of termination.
32. The requests for relief of the Claimant, accordingly, were the following:
•
ILS 114.000,00 NET as overdue salary and default interest in amount of 5 % p.a. of overdue
amounts from first day of default until effective day of payment specified as follows:
o
o
o
•
5 % p.a. of ILS 38.000,00 as of 11 October 2023;
5 % p.a. of ILS 38.000,00 as of 11 November 2023;
5 % p.a. of ILS 38.000,00 as of 1 December 2023
ILS 45.488,75 as overdue reimbursement for expenses (accommodation) incurred and
default interest in amount of 5 % p.a. of overdue amounts from first day of default until
effective day of payment specified as follows:
o
o
o
o
5 % p.a. of ILS 2.488,75 as of 11 September 2023;
5 % p.a. of ILS 25.800,00 as of 11 September 2023;
5 % p.a. of ILS 8.600,00 as of 11 November 2023;
5 % p.a. of ILS 8.600,00 as of 1 December 2023;
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REF. FPSD-13258
•
EUR 784,47 as overdue reimbursement for expenses (flight tickets) incurred and default
interest in amount of 5 % p.a. of overdue amounts from first day of default until effective
day of payment specified as follows:
o
•
HUF 78.500,00 as overdue reimbursement for expenses (flight tickets) incurred and default
interest in amount of 5 % p.a. of overdue amounts from first day of default until effective
day of payment specified as follows:
o
•
5 % p.a. of EUR 784,47 as of 10 November 2023;
5 % p.a. of HUF 78.500,00 as of 1 December 2023;
USD 618,62 as overdue reimbursement for expenses (flight tickets) incurred and default
interest in amount of 5 % p.a. of overdue amounts from first day of default until effective
day of payment specified as follows:
o
5 % p.a. of USD 618,62 as of 1 December 2023;
•
ILS 364.200,00 NET as overdue compensation for breach of contract and default interest in
amount of 5 % p.a. as of 1 December 2023 until effective day of payment.
•
ILS 114.000,00 NET (or lower amount up to the overall amount of residual value of contract)
as additional compensation (3 monthly salaries) for breach of contract without just cause
due to overdue payables.
b. Position of the club
33. In its reply, the club objected to the arguments presented by the player, first stating that,
shortly after his departure from Israel on 7 October 2023, the same player through his
representative Mr. Ziv Solomovich (hereinafter: the Agent) had informed the club that he
wanted to terminate the Contract “due to the ongoing situation” (i.e. the war outbreak).
34. In this context, the club alleged having agreed on the premature termination of the
Contract due to the difficult circumstances surrounding the employment relationship at
the time and stated having agreed with the Agent that that the last salary due to the player,
namely the one of September 2023, would have been paid in November 2023 only and
after verification that the player held no debt related to the assigned apartment, based on
the Promissory Note of liability the club had signed on 9 August 2023.
35. Furthermore, the club argued that contrarily to what declared by the player, the latter was
made aware that the team’s training sessions would have resumed on 25 October 2023 as
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REF. FPSD-13258
the player was part of the relevant WhatsApp group chat at the time. In this respect, the
club stated that the player failed to communicate the date of his return to the club nor did
he confirm it.
36. However, in the club’s view, said behaviour by the player at the time would appear
congruent with the latter’s decision to terminate the Contract previously communicated by
the Agent; hence, the club declared having been surprised by the player’s return to Israel
as the club’s understanding was that the Contract had been terminated already.
37. In the club’s view, the above would have been the reason why the club informed the player
at the time that it needed to clarify the latter’ situation with the club’s management before
the player would be able to resume any football-related activity with the club.
38. In this context, the club argued that the Contract was indeed terminated by mutual
agreement of the parties in October 2023 and not unilaterally by the player.
39. Subsidiarily, the club stated that even if the Contract had been terminated unilaterally by
the player, the latter would have not had just cause at the time.
40. In particular, the club argued it had an agreement with the Agent, pursuant to which the
salary of September 2023 would have been paid in November only (jointly with the salary
of November 2023) if the club verified that the player held no debts to the owner of the
rented apartment, in which respect the club affirmed bearing legal liability - including bills
that were extracted only a month later - based on the relevant Promissory Note.
41. Furthermore, the club affirmed that the salary related to the month of October 2023 would
not be due to the player based on the assumption that the latter de facto had not rendered
any service to the club during said month, namely due to the war outbreak as well as to the
player’s prolonged absence until November 2023.
42. In continuation, the club argued that based on the Collective Agreement signed on 16
November 2023 between the IFPO and the IPFL, 15% of the gross salary to which the player
would have been entitled, had been deferred to a date to be determined at a later stage.
43. In this respect, the club sustained that part of the amounts claimed by the player as unpaid
salaries would have not been outstanding at the time of the termination.
44. Furthermore, as to the housing expenses, the club affirmed that the player’s entitlement
to an apartment indicated under the Contract had been made subject to the player
rendering his football services to the club. This obligationwould not imply an additional
salary payable by the club, but rather a reimbursement for expenses that were inevitable
for the player in order to work as footballer in Israel.
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REF. FPSD-13258
45. Accordingly, the club held that the club’s financial obligations connected with the rental of
the apartment ceased as from the moment of the termination of the Contract or at the
latest when the player terminated the Lease Agreement ate the end of December 2023.
46. In regard to the relevant flight expenses, the club argued that the player’s request for
reimbursement of 3 flight tickets for him and his family would have no legal basis as the
Contract provides for the player’s personal expenses only, hence the amount claimed by
the latter shall be reduced to 1/3, if awarded.
47. Lastly, the club declared the absence of any contractual ground for the player’s request for
reimbursement of the hotel expenses allegedly incurred in August 2023, further arguing
that the player failed to sustain his burden of proof because he did not produce any receipt.
48. In conclusion, the club requested to reject the player’s claim in its entirety.
c. Player’s rejoinder
49. In response to the club’s arguments, the player first objected to the club’s allegations
regarding the player’s request for a mutual termination agreement.
50. In this respect, the player sustained having informed the club about his plan to travel out
of Israel due to the war outbreak and consequently having obtained the club’s
authorization to fly abroad on 7 October 2023.
51. The player also held having consistently manifested his will to return to the club’s premises
in order to resume training with the team during the month of October and November
2023.
52. In this context, the player argued that it was rather the club who avoided any further
communication with the player after the latter had expressed his request to return, to the
extent that the club would not even provide the player with a return ticket or allow the
player to train with the rest of the team once he had re-entered Israel.
53. Accordingly, in the player’s view, the latter’s absence between 25 October 2023 and 12
November 2023 would be justified by the club’s inertia at the time.
54. In continuation, with regard to the alleged outstanding amounts at the time of the
termination, the player denied that his Agent had agreed on a different payment schedule
concerning the salary of September 2023.
55. Furthermore, the player stated that at the time of putting the club in default, the Collective
Agreement had not yet entered into force, hence the player’s notice referred to the
amounts actually outstanding at the time. In addition, the player argued that the Collective
Agreement would only foresee a deferral of 15% of his salary, thus maintaining the club’s
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REF. FPSD-13258
obligation to pay the residual 85% on the original due dates fixed under the Contract, which
in casu were, respectively, 10 October 2023 and 10 November 2023.
56. On account of all the above, the player pointed out that the club had no valid grounds for
failing to pay the player’ salary of September 2023 and October 2023 within the contractual
due dates, thus he would have just cause to terminate the Contract unilaterally on 29
November 2023.
57. Lastly, with regard to the player’s request for reimbursement of the relevant
accommodation expenses, the player held that such allowances would constitute part of
the player’s financial benefits under the Contract and shall therefore be computed as a part
of the relevant compensation.
58. Equally, the player held being entitled to a reimbursement of all the flight expenses he
incurred to fly from and to Israel during the relevant suspension of the football activities,
based on art. 19(3) of the Appendix to the Contract as well as the verbal confirmation by
the club’s president that he would have paid “everything”. In this respect, the player also
produced an audio record of the relevant phone call.
59. In conclusion, the player upheld his requests for relief.
d. Club’s final comments
60. In its final statement, the club first insisted on the alleged request by the player’s Agent to
prematurely terminate the Contract.
61. Furthermore, the club emphasized that the player has failed to challenge several of the
arguments presented by the club, thus implicitly acknowledging the Club’s version of
the facts.
62. In particular, the club maintained that if any amount had to be paid to the player, this
would be due in gross as per art. 4 of the Contract.
63. Furthermore, the club objected to the claimed interest on the amounts to be
reimbursed and remarked the absence of any evidence regarding the alleged hotel
expenses.
64. Finally, the club contested the player’s allegations regarding the phone call he had with
the club’s president and his promise to pay “everything”, arguing that the latter would
have not promised to cover any further expense incurred by the player outside of what
contractually agreed, hence the player’s interpretation was misleading and in bad faith.
65. The club therefore pleaded to reject the claim.
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REF. FPSD-13258
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
66. 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 5 January 2024 and submitted
for decision on 22 April 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.
67. 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 (February 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 Slovakian player
and an Israelian club.
68. 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 (February 2024 edition), and
considering that the present claim was lodged on 5 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
69. 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
70. 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
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REF. FPSD-13258
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
71. 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 whether the player would
have just cause to terminate the relevant employment contract on 29 November 2023.
72. In this context, the Chamber observed also that according to the club, the premature
termination of the Contract occurred on a mutual basis and through the initiative of the
player’s Agent.
73. The Chamber conversely noted that in the player’s view, the club invoked the player’s
absence during the month of October 2023 and November 2023 as an excuse to escape its
contractual obligations and to prevent the player from resuming his footballing activities
in Israel.
74. In this respect, the Chamber equally observed that, on 29 November 2023, the player
unilaterally terminated the Contract, allegedly because of the club’s failure to comply with
the financial obligations set under the abovementioned agreement.
75. With the foregoing in mind, the DRC acknowledged that its first task was to establish
whether the relevant termination had occurred by mutual agreement of the parties or
unilaterally by the player.
76. In this respect, the Chamber noted that none of the parties provided evidence that there
was a mutual termination of the Contract, nor that the said termination had indeed been
discussed at any moment in time.
77. Furthermore, the DRC observed that, apparently, the club never attempted to
communicate with the player following his departure from Israel on 7 October 2023 and
up until the moment in which the latter returned at his own expense. The Chamber equally
noted that, even after the player’s return to Israel, the club prevented him from resuming
his footballing activities until the moment of the termination.
78. In this respect, the Chamber ascertained that the club failed to contest the player’s conduct
and alleged violations until 30 November 2023, i.e., after the player had sent the relevant
default notice on 13 November 2023 and terminated the Contract on 29 November 2023.
79. With the foregoing in mind, the Chamber was of the opinion that the player acted in good
faith during his relationship with the club and his absence from Israel had evidently been
authorized by the latter. Furthermore, the DRC assessed that the player’s alleged failure to
attend the relevant training sessions with the team between 28 November 2023 and 30
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REF. FPSD-13258
November 2023 would indeed result irrelevant for the purpose of determining whether the
player might have encouraged the club’s expectations - or understanding - regarding the
alleged mutual termination, considering the player had already put the club in default on
13 November 2023 and terminated the Contract on 29 November 2023. In this respect, the
Chamber wished to emphasize that the player’ sole absence dated 28 November, even if
acknowledged by the latter, would not per se jeopardize the player’s right to terminate the
contract.
80. Having stated the above, the Chamber determined that the premature termination of the
Contract occurred by sole hand of the player based on the alleged non-payment of certain
financial obligations by the club as per the employment contract, in accordance with art.
14bis of the Regulations.
81. In this context, the Chamber acknowledged that it had to determine, based on the evidence
presented by the parties, whether the claimed amounts had in fact remained unpaid by
the club and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had in
fact been fulfilled.
82. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline
of at least 15 days for the debtor club to fully comply with its financial obligation(s).
83. In this context, the Chamber noted that the player claims he did not receive his
remuneration corresponding to the salaries of September 2023 and October 2023.
Furthermore, the Chamber noted that the player has provided written evidence of having
put the club in default on 13 November 2023, i.e., at least 15 days before unilaterally
terminating the Contract on 29 November 2023.
84. The Chamber also noted that in the case at hand the club bore the burden of proving that
it indeed complied with the financial terms of the Contract concluded between the parties.
85. In this respect, the DRC noted that the club alleged having agreed with the player’s Agent
to the postponement of the player’ salary for September 2023 to November 2023. In this
respect the Chamber assessed that the Club has not provided any evidence of the alleged
agreement, thus failing to sustain its burden of proof.
86. In continuation, the Chamber observed that the club submitted a copy of the Collective
Agreement signed on 16 November 2023 between the IFPO and the IPFL, pursuant to which
a 15% of the gross salary to which the player would have been entitled for the months of
October 2023 and November 2023, had been deferred to a date to be determined at a later
stage.
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REF. FPSD-13258
87. The Chamber therefore emphasized that at the time of the termination the club would
have had, in principle, a lawful ground to delay part of his financial obligations to the player.
88. Notwithstanding the above, the Chamber noted that in spite of the player’s relevant default
notice dated 13 November 2023, the club apparently failed to inform the player about the
signature of the Collective Agreement on 16 November 2023 and never challenged the
relevant amounts the player claimed as outstanding.
89. Accordingly, it appears evident in the Chamber’s view that the default notice issued by the
player was contractually grounded and based on the player’s legitimate expectations of
receiving his outstanding salaries in full, including the salaries for the month(s) subject to
the Collective Agreement.
90. Furthermore, the Chamber wished to point out that the Collective Agreement merely
postponed the payment of (a part of) the relevant salaries and not reduced them. The
relevant amounts had therefore became due in their entirety following the termination of
the Contract.
91. Thus, the Chamber concluded that the Claimant had just cause to unilaterally terminate
the Contract, based on art. 14bis of the Regulations.
92. For the sake of clarity, the Chamber also referred to the specific wording of art. 14 par. 2
of the Regulations, according to which “any abusive conduct of a party aiming at forcing the
counterparty to terminate or change the terms of the contract shall entitle the counterparty (a
player or a club) to terminate the contract with just cause”.
93. Bearing in mind the foregoing as well as the principle of burden of proof, the Chamber
noted that the club’ behaviour, – never contacting the player or asking him to return to
Israel and going as far as preventing him from training with the team – is clearly and
deliberately abusive. Furthermore, the Chamber took note of the evidence provided by the
player, showing that he consistently and in good faith tried to contact the club and
requested that he be allowed to comply with the terms of the Contract. In this context, the
Chamber concluded that the circumstances of the present case are with the type of
circumstances falling within the scope of art. 14 par. 2 of the Regulations and, therefore,
the player would in any case have had just cause to terminate the Contract due to the club’s
abusive conduct.
ii. Consequences
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REF. FPSD-13258
94. 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.
95. 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 3 salaries under
the contract, amounting to ILS 114,000.
96. Furthermore, the Chamber recalled that under art. 4 of the Contract the club undertook to
provide the player with accommodations at the club’s expense for the entire duration of
the employment relationship.
97. The DRC also noted that the player produced evidence of the expenses incurred to rent
the apartment in Israel at least until the end of December 2023, as further acknowledged
by the club in its final statements.
98. Accordingly, the Chamber established that said expenses shall be reimbursed by the club
because they were expressly agreed under the Contract.
99. Equally, the Chamber acknowledged that the player shall be entitled to “two (2) return flight
tickets, from and to his country of origin” as per art. 19.2 of the Contract.
100. In the Chamber’s view, the wording of the Contract is unequivocal in granting the player a
total of 4 tickets, without expressly limiting their use solely to the player, thus it cannot be
assumed that the player’s wife and/or son would have been excluded from such benefits.
101. In this context, the Chamber also took note of the audio record submitted by the player,
where the club’s president over the phone apparently authorizes the player to leave the
country and contextually promises that he would have paid “everything”, making particular
reference to the flight tickets.
102. In this respect, although the club has challenged the player’s interpretation of the words
pronounced by the club’s president, it appeared evident to the Chamber, given the context
and the circumstances of the fact, that the latter would indeed be acknowledging the
delicate situation in which the player was at the time and reasonably promised to take care
of the latter’s needs.
103. 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 the Claimant the amounts which
were outstanding under the Contract at the moment of the termination, i.e. ILS 114,000 as
outstanding salaries as well as ILS 43,000 as reimbursement of the relevant
accommodation expenses and (i) EUR 784.47, (ii) HUF 78,400, (iii) USD 618,62 as
reimbursement of the flight expenses incurred by the player, respectively on 7 October
2023, 12 November 2023 and 1 December 2023.
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REF. FPSD-13258
104. In addition, 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 at the rate of
5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
105. 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.
106. 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 agreed beforehand 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 Contract at the basis of
the matter at stake.
107. 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.
108. Bearing in mind the foregoing as well as the player’s claim, 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 ILS 228,000 (i.e., the residual value) serves as the basis for
the determination of the amount of compensation for breach of contract.
109. 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.
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REF. FPSD-13258
110. Indeed, the player found employment with the Slovakian club KFC Komarno. In accordance
with the pertinent employment contract, the player was entitled to approximately ILS 4,033
per month. Therefore, the Chamber concluded that the player mitigated his damages in
the total amount of ILS 16,127.
111. 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.
112. In this respect, the DRC decided to award the amount of additional compensation of ILS
114,000, i.e., three times the monthly remuneration of the player.
113. However, the Chamber reminded the parties that, as per the last sentence of art. 17 par. 1
ii) of the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract. As such, the additional compensation to be granted was
limited to ILS 16,127.
114. 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 ILS 228,000 to the player (i.e., 228,000 minus 16,127 plus 16,127), which was to be
considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
115. 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 1 December 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
116. 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.
117. 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
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REF. FPSD-13258
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.
118. 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. 24 par. 2, 4, and 7 of the Regulations.
119. 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.
120. 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
121. 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.
122. 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.
123. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-13258
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jakub Sylvestr, is partially accepted.
2.
The Respondent, Sektzya Ness Ziona, must pay to the Claimant the following amount(s):
ILS 114,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of ILS 38,000 as from 11 October 2023 until the
date of effective payment;
- 5% interest p.a. over the amount of ILS 38,000 as from 11 November 2023 until
the date of effective payment;
- 5% interest p.a. over the amount of ILS 38,000 as from 1 December 2023 until the
date of effective payment;
ILS 43,000 as outstanding reimbursement (accommodation expenses) plus interest
p.a. as follows:
- 5% interest p.a. over the amount of ILS 25,800 as from 11 September 2023 until
the date of effective payment;
- 5% interest p.a. over the amount of ILS 8,600 as from 11 November 2023 until
the date of effective payment;
- 5% interest p.a. over the amount of ILS 8,600 as from 1 December 2023 until the
date of effective payment;
EUR 787.47 as outstanding reimbursement (flight expenses) plus 5% interest p.a. as
from 10 November 2023 until the date of effective payment;
HUF 78,400 as outstanding reimbursement (flight expenses) plus 5% interest p.a. as
from 1 December 2023 until the date of effective payment;
EUR 618.62 as outstanding reimbursement (flight expenses) plus 5% interest p.a. as
from 1 December 2023 until the date of effective payment;
ILS 228,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 1 December 2023 until the date of effective payment.
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. 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:
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REF. FPSD-13258
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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13258
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 21