Labour Disputes
Texto da decisão
REF FPSD-4561
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Robert
Veselovsky
COMPOSITION:
HENDEL Clifford J. (USA/France), Deputy Chairperson
DE MEDINILLA Gonzalo (Spain), member
GUTIERREZ Jorge (Costa Rica), member
CLAIMANT:
Robert Veselovsky, Slovakia
Represented by Markéta Vochoska Haindlová
RESPONDENT:
Nea Salamina Famagusta, Cyprus
Represented by George T. Christofides
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I.
Facts of the case
1.
On 29 July 2020, the Slovak player Robert Veselovsky (hereinafter: the Claimant or the player)
and the Cypriot club Nea Salamina Famagusta (hereinafter: the Respondent or the club)
concluded an employment contract valid until 31 May 2021 (hereinafter: the Contract)
2.
Article 1, para. 1.3, point i. of the Contract states that
“the Club shall pay the Player a gross salary of EUR 5,615 (EUR 5,000 net) for the period from
29th July 2020 until 31 May 2021. The salary shall be given to the Player in 10 equal monthly
instalments of EUR 500 net, starting from 31 August 2020.”
3.
On the same date, the parties signed an Image Rights Contract (hereinafter: the IR contract).
4.
According to Exhibit 1 to the IR Contract, “the Club shall pay the Player for period of
employment from 29 July 2020 until 31 May 2021 the amount of EUR 67,000 net. The
amount shall be given in 10 equal monthly instalments of EUR 6,700 net, starting from 31
August 2020”.
5.
According to art. 6 of the IR Contract, “the club must pay to the Player the NET amount of
€1.000 (one thousand euro) for every game that the Player plays and the team has a clean
sheet.
6.
On 30 April 2021, the Claimant signed a document named "Certification of Club's payment
of Amounts due to its Employees”, which states as follows:
“l., ROBERT VESELOVSKY certify that NEA SALAMINA FAMAGUSTA has paid in full all of its
financial debts/obligations arising under the contract between the said dub and myself for
the football season 2020/2021 up to 30 April 2021”.
7.
On 28 May 2021, the club sent an email indicating the following:
“As you have been informed, the Club's Board in its meeting yesterday (27/05/21), decided
to impose a financial penalty on the grounds of your bad performance which resulted in the
relegation of the club to the second division, consequently, the Club will suffer financial
damages but damages as to its reputation that amount to 1 million euro.
Your offer submitted by the Club's technical director for a financial penalty for May's salary
of 30%, was not accepted.
Thus, the club will continue to enforce its decision imposing 55% of your remuneration.
People who receive less than 1000 euro will not be fined because of survival reasons.
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Whoever objects to such decision is kindly requested to attend at a meeting tomorrow at the
club's offices (29/5/21) between 09:30 and 11 :00. It is provided that anyone not attending
will be considered as accepting the above.”
8.
On 1 November 2021, the Claimant sent a notice to the Respondent requesting the payment
of EUR 10,685 plus interest, to no avail.
II. Proceedings before FIFA
9.
On 15 December 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 has not met its financial obligations in a timely
manner and it did not fully provide the Player with the mentioned salary and bonuses for the
month of May 2021 under the Contract and the IR Contract.
11. The Claimant states that for the month of May 2021 the Player received an amount of EUR
3,685 lower than he was entitled for.
12. Additionally, the Claimant submits he is entitled to performance bonuses in accordance with
Article 6. of the IR Contract. In this regard, the Claimant states that he has played, and the
team had a clean sheet in these following matches:
- match against Paralimni played on 13th September 2020;
- match against Ol. Nicosia played on 8th November 2020;
- match against Karmiotissa played on 4th December 2020;
- match against Paphos played on 11th January 2021;
- match against Karmiotissa played on 19th February 2021;
- match against AEL Limassol played on 17th March 2021;
- match against Doxa played on 9th April 2021;
- match against APOEL 20th May 2021.
13. The Claimant further states that to this date the Player received only the amount of EUR 1,000
net as bonus for the match against Paralimni.
14. The Claimant filed the following requests for relief:
The Club is ordered to pay to the Player, as overdue payables, the amount of EUR 3,685 net
as the remaining monthly salary for May 2021 along with the interest for late payment at the
rate of 5 % for the period from 1st June 2021 to the day of the effective payment
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The Club is ordered to pay to the Player, as overdue payables, the amount of EUR 7,000 net
as remaining bonuses for clean sheets along with the interest for late payment at the rate of
5%.
b. Position of the Respondent
15. The Respondent argued that it complied with all of its financial obligations and in support of
this provides a document named "Certification of Club's payment of Amounts due to its
Employees”.
16. In this respect, the club argued that, due to its relegation, it imposed a fine to all players for
bad performance.
17. The Club explained that the fine consisted in 55% of the overall remuneration regarding the
salary of May 2021 and that the decision to impose a fine was disclosed via a WhatsApp
message sent to a group where all the players were members.
18. In relation to the performance bonuses, the Club submits that the Claimant is estopped to
claim that amount as he has signed declaring that the Club has fully complied with its financial
obligations owed to the Claimant until 30/04/2021.
c. Replica of the Claimant
19. In the view of the Claimant, the evidence presented by the Respondent as Exhibit 3 does not
prove otherwise as it does not refer to the Image Rights Contract at all, but only to the
Employment Agreement.
20. With regard to the imposition of a fine, the Claimant submits that no penalty was imposed
on him as the delivery as not been proved by the Club.
21. Alternatively, if FIFA accepts that a fine was imposed, the Claimant deems that it must be
argued that (a) the fine was not imposed properly, as the Club did not follow the appropriate
form, and (b) the fine was unjustifiably imposed, as, in accordance with FIFA and CAS case
law, it is not possible.
22. The Claimant submits that the imposition of a fine by way of an email and, consequently, by
way of a WhatsApp message is, in general, totally inadequate to impose a fine on a player
for an alleged unsatisfactory performance, as this is a subjective ground.
23. The Claimant further argues that he is not on the list submitted by the Respondent as recipient
of the WhatsApp message.
24. The Claimant underlines that according to the DRC, “as a general rule, low performance
cannot be considered a reason for the club to reduce payments to the player because it is
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unilaterally determined by the club and based on pure subjective criteria. Therefore, the
members of the DRC repeatedly conclude that the imposition of fines by the club based on
alleged poor performance cannot be accepted and cannot be deducted from monies payable
to the player”.
d. Duplica of the Respondent
25. The Respondent submits that the Claimant “is estopped by conduct to ask for his bonuses
several months after the conclusion of the employment relationship between the parties. The
Claimant has never asked to be paid his bonuses although he claims bonuses for matches
player between September 2020 - April 2021”
26. In the view of the Respondent, the Claimant’s inaction for several months after the imposition
of the fine “tantamounts (sic) to an implied acceptance of the fine. Hence, he is estopped to
argue that he had never been informed and/ or that he did not have the opportunity to object
to the fine.“
27. The Respondent reiterates that the fine was imposed due to “its relegation to the second
division. Therefore, the current case must be distinguished from other cases where the Club
imposes a fine on a player due to his subjective individual performance. As a result of the
overall bad performance, the Club suffered great financial loss and the whole team
underperformed during the season.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 15 December 2021 and submitted for
decision on 24 February 2022. 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.
29. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Slovak player and a
Cypriot club.
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30. 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 (August 2021 edition), and
considering that the present claim was lodged on 15 December 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
31. 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
32. 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
33. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant filed the claim at hand requesting outstanding
amounts only.
34. On the one hand, the Claimant is requesting performance bonuses based on art. 6 of the IR
Contract. Whilst the prima facie entitlement of the Claimant is not disputed by the
Respondent, the Chamber noted that the latter argues that by signing the documents named
"Certification of Club's payment of Amounts due to its Employees”, the Claimant had
confirmed it had received all amounts due to him and therefore he shall be estopped from
requesting these amounts.
35. In this regard, the Chamber observed that the aforementioned document refers to “financial
debts/obligations arising under the contract”.
36. Notwithstanding the above, the Chamber also noted that from the evidence available on file,
it can be ascertained that the parties signed at least two contracts, the Contract and the IR
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Contract. Moreover, the Chamber emphasised that performance bonuses were agreed in art.
6 of the IR Contract.
37. Thus, the Respondent deemed that the latter has failed to demonstrate that the
aforementioned document included the amounts agreed on the IR Contract and therefore
based on the principle pacta sunt servanda, the Respondent shall be liable to pay the
requested amounts.
38. Therefore, the Chamber decided that the player is entitled to claimed bonuses in the amount
of EUR 7,000 net plus 5% interest p.a. as from the date of claim.
39. Having established the above, the Chamber turned to the matter of the fine imposed on the
Claimant following the relegation of the team.
40. In this regard, the DRC referred to its longstanding jurisprudence for similar matters and
concluded that the fine invoked by the club appears to be arbitrary in nature, and that the
player was not granted any due process.
41. Moreover, and regardless of any other consideration, the DRC emphasised that the club could
have contractually foreseen the economic effects of a possible relegation, instead of
unilaterally imposing a fine.
42. Therefore, the Chamber decided that the player is entitled to the entire salary in the deducted
amount of EUR 3,685 net, corresponding to the rest of the salary of May 2021, plus 5%
interest p.a. as from 1 June 2021.
ii. 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 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
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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.
d. 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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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Robert Veselovsky, is accepted.
2.
The Respondent, Nea Salamina Famagusta, has to pay to the Claimant, the following
amount(s):
- EUR 3,685 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until the
date of effective payment;
- EUR 7,000 as outstanding remuneration plus 5% interest p.a. as from 15 December 2021
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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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