DRC Overdue Payables
Texto da decisão
REF. FPSD-12105
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning
the player Kristijan Toshevski
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Johan VAN GAALEN (South Africa), member
Tarek BRAUER (Germany), member
CLAIMANT:
Kristijan Toshevski, North Macedonia
Represented by Toni Jovchevski
RESPONDENT:
FK Tirana, Albania
pg. 2
REF. FPSD-12105
I. Facts of the case
1.
On 5 August 2020, the Macedonian player, Kristijan Toshevski (hereinafter: the Claimant
or the player) and the Albanian club, FK Tirana (hereinafter: the Respondent or the club)
concluded an employment contract valid as from 5 August 2020 until 31 May 2022
(hereinafter: the first contract).
2.
In accordance with clause 8 of the first contract, the club undertook to pay the player a
monthly salary of EUR 1,000 net, payable until the 13th day of the following month, or on
the next working day if that day falls on a non-working day.
3.
On the same date, 5 August 2020, the player and the club concluded an additional
agreement (hereinafter: the agreement).
4.
Clause 5 of the agreement reads as follows:
“l. For the duration of the employment relationship between the parties:
a. For the 2020-2021 Football Season, the Club shall pay the Player a monthly bonus
of 3.500 Euros (Three Thousand and five Hundred.) Net.
b. For the 2021-2022 Football Season, the Club shall pay the Player a monthly bonus
of 4.500 Euros (Four Thousand and five Hundred.) Net
c. A lump payment of EUR 10,000.00 (teen thousand euro) Net, payable to the Player
on the moment of signing of the future Employment Contract:
d. Payment of the Commission for the Intermediary Mr. Blagoja Kochevski in the
amount of 7,000 (seven thousand Euro) Net, until 30. 10.2020.
e. In cases where the Player cannot be present in official matches. due to physical
injury or disciplinary measures given by AFF or the Club. he will be paid with 40% of
the prize for the match.
f. The reward shall be subject to the personal income tax and the Player shall be held
by the respective amount of the respective value.
g. The club has the right to use the Player's image for marketing purposes, free of
charge and at any time.
h. The club has the right to request explanations regarding the player's failure to med
the seasonal targets and to set different targets on a case-by-case basis.”
pg. 3
REF. FPSD-12105
5.
On 7 June 2022, the Claimant and the Respondent signed a second employment contract
valid as from 7 June 2022 until 31 May 2023 (hereinafter: the second contract).
6.
In accordance with clause 8 of the second contract, the club undertook to pay the player a
monthly salary of EUR 1,000 net and a “monthly remuneration (bonus)” of EUR 3,167 net
payable until the 13th day of the following month, or on the next working day if that day
falls on a non-working day.
7.
On 25 September 2023, the Claimant put the Respondent in default and requested
payment of EUR 34,148 net corresponding to the balance of the outstanding remuneration
of the two employment contracts; setting a 10 days’ time limit in order to remedy the
default.
II. Proceedings before FIFA
8.
On 9 October 2023, 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
9.
The player lodged a claim for outstanding remuneration amounting to EUR 34,148 net.
10. According to the player, the total value to be paid by the club for the first contract was EUR
127,419 and for the second contract EUR 49,170, but the club only paid him EUR 137,271
and ALL 550,000 / EUR 5,170 respectively, leaving an outstanding balance of EUR 34,148.
11. In view of the foregoing, the player requested the following relief:
“FIFA DRC to order to the Respondent Club KF TIRANA unconditionally to pay to him
the outstanding debt calculated above in total NET amount of Euros 34.148 (thirtyfour thousand one hundred forty-eight), plus interest of 5% p.a. on the outstanding
debt calculated from the date of June 13, 2023, when the last salary+ unconditional
monthly remuneration (bonus) for the month of May 2023 and thus all payments
towards the Player determined in the Employment Agreement 2 have already become
due for payment, until the date of effective payment on the Player's bank account
given in the Bank account registration form in enclose, exhibit 7, as well as the Club
to pay all relevant taxes, state contributions and surcharges, on top of the above
mentioned net amounts, and to provide the Player with the corresponding tax
certificates concerning the payment of all the above specified net amounts alongside
all relevant taxes, state contributions and surcharges, on top of the above mentioned
net amounts. In addition, the Club (Respondent) to be sanctioned in accordance with
art. 12bis para. 4 of the FIFA RSTP and FIFA Circular Letter no. 1628 dated 9 May 2018
appropriate to the due amount.”
pg. 4
REF. FPSD-12105
12. On 10 October 2023, the FIFA general secretariat requested the Claimant to complete his
petition, and to provide, inter alia, a detailed breakdown of the amount in dispute,
indicating individually: (i) each of its components, (ii) their currency, (iii) their contractual
basis and (iv) which period of time (day/month/year) they correspond to.
13. On 12 October 2023, the Claimant provided the following breakdown:
“- monthly remuneration (salary+ unconditional monthly remuneration (bonus)) for
the month of September 2022, in NET amount of Euros 812 (eight hundred twelve),
which matured on 13/10/2022, and
- monthly remuneration (salary+ unconditional monthly remuneration (bonus)) for
the month of October 2022, in NET amount of Euros 4.167 (four thousand one
hundred sixty-seven), which matured on 13/11/2022, and
- monthly remuneration (salary+ unconditional monthly remuneration (bonus)) for
the month of November 2022, in NET amount of Euros 4.167 (four thousand one
hundred sixty-seven), which matured on 13/12/2022, and
- monthly remuneration (salary+ unconditional monthly remuneration (bonus)) for
the month of December 2022, in NET amount of Euros 4.167 (four thousand one
hundred sixty-seven), which matured on 13/0l /2023, and
- monthly remuneration (salary+ unconditional monthly remuneration (bonus)) for
the month of January 2023, in NET amount of Euros 4.167 (four thousand one hundred
sixty-seven), which matured on 13/02/2023, and
- monthly remuneration (salary + unconditional monthly remuneration (bonus)) for
the month of February 2023, in NET amount of Euros 4.167 (four thousand one
hundred sixty-seven), which matured on 13/03/2023, and
- monthly remuneration (salary+ unconditional monthly remuneration (bonus)) for
the month of March 2023, in NET amount of Euros 4.167 (four thousand one hundred
sixty-seven), which matured on 13/04/2023, and
- monthly remuneration (salary + unconditional monthly remuneration (bonus)) for
the month of April 2023, in NET amount of Euros 4.167 (four thousand one hundred
sixty-seven), which matured on 13/05/2023, and
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REF. FPSD-12105
- monthly remuneration (salary + unconditional monthly remuneration (bonus)) for
the month of May 2023, in NET amount of Euros 4.167 (four thousand one hundred
sixty-seven), which matured on 13/06/2023,”
14. The player further requested to be paid interest of 5% p.a. over the abovementioned
amounts as from the due dates until the effective payment.
b. Position of the Respondent
15. In its reply, the Respondent acknowledged having failed to pay half of the salary for March
2023 (EUR 2,083), the salary for April (EUR 4,167) and the salary for May 2023 (EUR 4,167).
With regard to the other amounts requested by the player, the club stressed that it had
fulfilled its obligations and provided evidence to that effect, namely banking statements
and a table detailing the payments performed for the player between February 2022 and
May 2023.
16. In view of the foregoing, the Respondent requested the following:
“[The Respondent] opposes [the Claimant] claims as ungrounded by evidence and
law.
2. [The Respondent] also acknowledges that they have not paid the player ONLY the
following salaries:
a) Half of March 2023 in the total amount of 2,083 (two thousand eighty-three) Euros
b) April 2023 in the total amount of 4,167 (four thousand one hundred and sixtyseven) Euros.
c) May 2023 in the total amount of 4,167 (four thousand one hundred and sixtyseven) Euros.”
c. Reaction of the Claimant to the alleged payment
17. On 7 November 2023, the FIFA general secretariat (i) informed the parties that the
submission phase was closed in line with art. 23, par. 1 of the Procedural Rules Governing
the Football Tribunal; and (ii) based on par. 2 of the same article, requested the Claimant
to provide his comments exclusively on the proofs of payments filed by the Respondent,
by no later than 14 November 2023.
18. On 9 November 2023, the Claimant indicated that:
-
He is not in possession of the proof of payments that the Respondent submitted in
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REF. FPSD-12105
claim.
-
The club recognised that it owed him EUR 10,417. In addition, the Claimant
stressed that the club had also failed to pay him the following amounts:
“- The NET amount of Euros 1.731 (one thousand seven hundred thirty-one), as
a part of the monthly remuneration (salary + unconditional monthly bonus)
for the month of November 2021, which matured on 13/12/2021 and
- monthly remuneration (salary + unconditional monthly bonus) for the month
of December 2021, in NET amount of Euros 5.500 (five thousand five hundred),
which matured on 13/01/2022, and
- monthly remuneration (salary + unconditional monthly bonus) for the month
of February 2022, in NET amount of Euros 5.500 (five thousand five hundred),
which matured on 13/03/2022, and
- monthly remuneration (salary + unconditional monthly bonus) for the month
of April 2022, in NET amount of Euros 5.500 (five thousand five hundred), which
matured on 13/05/2022, and
- monthly remuneration (salary+ unconditional monthly bonus) for the month
of May 2022, in NET amount of Euros 5.500 (five thousand five hundred), which
matured on 13/06/2022.
All along with the pertinent default interests and all charges and surcharges
regarding tax on net amounts specified above.”
d. Other information provided by the parties
19. On 10 November 2023, the FIFA general secretariat invited the Respondent to provide its
comments on the Claimant’s submission of 9 November 2023, by no later than 17
November 2023 (cf. art. 23, par. 2 of the Procedural Rules Governing the Football Tribunal).
20. On 17 November 2023, the Respondent indicated that all the amounts claimed by the
player were already paid and filed additional evidence to that effect.
21. On 26 January 2024, the FIFA general secretariat invited the Claimant to provide his
comments exclusively on the proofs of payments filed by the Respondent on 17 November
2023, by no later than 30 January 2024 (cf. art. 23, par. 2 of the Procedural Rules Governing
the Football Tribunal).
pg. 7
REF. FPSD-12105
22. On 26 January 2024, the Claimant stated that the evidence submitted by the Respondent
did not clearly indicate to which concept corresponded each of the payments so that the
Respondent had failed to meet its burden of proof. In particular, as to the payment of 17
August 2022, the Claimant indicated that the amount was paid by the Municipality of the
City of Tirana and was linked to a bonus for winning the championship.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 9 October 2023 and submitted
for decision on 22 February 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.
24. Furthermore, 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 par. 1 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 Macedonian
player and an Albanian club.
25. 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 9 October 2023, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Admissibility
26. In continuation, the Chamber referred to art. 23 par. 1 of the Procedural Rules which
stipulates that “the FIFA general secretariat will notify the parties of the closure of the
submission phase of the procedure. After such notification, the parties may not supplement
or amend their submissions or requests for relief or produce new evidence” (emphasis
added.
27. In this context, the Chamber observed that the FIFA general secretariat notified the parties
of the closure of the submission phase on 7 November 2023 and that the Claimant was
only required to comment on the proof of payments submitted by the Respondent. The
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REF. FPSD-12105
Chamber further observed that on 9 November 2023 the Claimant not only replied to such
request, but also modified the breakdown of the concepts claimed (i.e., months of the
alleged amounts due), thereby amending his request for relief after the submission phase
was already closed.
28. In view of the above and in strict observance of the abovementioned art. 23 of the
Procedural Rules, the DRC decided that the late amendment to the claim by the player was
inadmissible, hence that the analysis at hand should be conducted vis-à-vis the original
breakdown submitted to the Chamber.
c. Burden of proof
29. 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).
d. Merits of the dispute
30. 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
31. 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 payment of certain
financial obligations by the Respondent for a total of EUR 34,148 net and corresponding to
the salary for September 2022 (EUR 812), October 2022 (EUR 4,167), November 2022 (EUR
4,167), December 2022 (EUR 4,167), January 2023 (EUR 4,167), February 2023 (EUR 4,167)
March 2023 (EUR 4,167), April 2023 (EUR 4,167) and May 2023 (EUR 4,167).
32. In this context, the Chamber established that in the case at hand the Respondent bore the
burden of proving that it indeed complied with the financial terms of the contract
concluded between the parties. As such, 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 and, if so, whether the latter had a valid
justification for not having complied with its financial obligations.
pg. 9
REF. FPSD-12105
33. In view of the foregoing, the Chamber analyzed the response and evidence provided by the
Respondent and noted that:
-
The Respondent acknowledged that it failed to pay half of the salary for March 2023
(EUR 2,083), the full salary for April (EUR 4,167) and May 2023 (EUR 4,167) – which
the Chamber forthrightly decided to award to the player.
-
The Respondent provided the following evidence of the payments in its response:
-
•
On 2 February 2023, the payment of EUR 16,665 with the remittance
information “SALARY SEPTEMBER, OCTOBER//NOVEMBER 2022”.
•
On 7 April 2023, the payment of EUR 4,166 with the remittance information
“SALARY JANUARY 2023”.
•
On 18 May 2023, the payment of EUR 4,166 with the remittance information
“SALARY FEBRUARY 2023”
•
On 22 May 2023, the payment of EUR 2,083 with the remittance information
“SALARY MARCH 2023”.
The Respondent also provided a list of the payments made to the player from
February 2022 to May 2023 amounting to EUR 69,801.
34. On the other hand, the Chamber outlined that the Claimant: (i) failed to present any
comments as to the payments submitted by the Respondent, but rather limited himself to
mention that he could not see the evidence – position which the Chamber could not follow
insofar as it confirmed that the entire documentation was available on the FIFA Legal
Portal; and (ii) following the response of the Respondent, the Claimant attempted to change
the concepts claimed.
35. As a result and while contrasting the evidence on file with the position of the parties, the
Chamber determined that the club was able to establish that between February 2023 and
April 2023, it paid the amount EUR 27,080 corresponding to 6.5 salaries (i.e., salaries
between September 2022 and February 2023 and partial payment of March 2023).
Consequently, the DRC concluded that club should be liable to pay the player the balance
of EUR 10,418 corresponding to the remaining salary of March 2023 (EUR 2,084), April 2023
(EUR 4,167) and May 2023 (EUR 4,167).
36. 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 him interest at the rate of 5% p.a. as
follows:
-
On the amount of EUR 2,084 as from 14 April 2023.
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REF. FPSD-12105
-
On the amount of EUR 4,167 s from 16 May 2023.
-
On the amount of 4,167 as from 14 June 2023.
37. In conclusion, the claim of the Player was partially accepted.
ii. Art. 12bis of the Regulations
38. In continuation, the Chamber referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
39. To this end, the Chamber confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due more than 30 days before, and granted the club
a 10-day deadline to cure such breach of contract.
40. Accordingly, the Chamber confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
41. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the third offense by the club within the last two years, the Chamber decided to
impose a fine of USD 2,000 on the club in accordance with art. 12bis par. 4 lit. c) of the
Regulations.
42. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
43. 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.
44. 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
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REF. FPSD-12105
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
45. 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.
46. 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.
47. 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.
e. Costs
48. 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.
49. 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.
50. 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-12105
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kristijan Toshevski, is partially accepted.
2.
The Respondent, Tirana, must pay to the Claimant the following amounts:
- EUR 2,084 as outstanding remuneration plus 5% interest p.a. as from 14 April 2023 until
the date of effective payment;
- EUR 4,167 as outstanding remuneration plus 5% interest p.a. as from 16 May 2023 until
the date of effective payment;
- EUR 4,167 as outstanding remuneration plus 5% interest p.a. as from 14 June 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:
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.
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8.
A fine in the amount of USD 2,000 is imposed on the Respondent, which must be paid to
FIFA within 30 days of notification of this decision. Such fine must be paid to the
following bank account with a clear reference to the case FPSD-12105:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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