Labour Disputes
Texto da decisão
REF FPSD-6532
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player Vedran Vrhovac
BY:
Jon Newman (USA)
CLAIMANT:
Vedran Vrhovac, Bosnia and Herzegovina / Croatia
Represented by Drazen Nikolic
RESPONDENT:
ACS Petrolul 52, Romania
REF FPSD-6532
I. Facts of the case
1.
On 1 February 2022, the Bosnian and Croatian player, Vedran Vrhovac (hereinafter: the
Claimant or player), and the Romanian club, ACS Petrolul 52 (hereinafter: the Respondent or
club) signed an employment contract (hereinafter: the contract) valid as from 1 February
2022 until 30 June 2024.
2.
Pursuant to article IX of the contract, the Claimant was, inter alia, entitled to the following
remuneration:
“9.1. For the period 01.02.2022 - 30.06.2024, the remuneration for the sporting activity shall be
in net amount of 4,000 Euro/month.
9.2. If the Club promotes in the 1st Football League at the end of the competitive season 20212022, for the period Of .07.2022-30.06.2024, the remuneration for the sporting activity shall
be in net amount of 5,000 Euro/month. To avoid any doubt, the remuneration for the
sporting activity in net amount of 5,000 Euro/month is granted to the Football Player
exclusively for the situation in which the Club enters in the competition 1" Football League
National Championship.
9.8.If the team promotes in the 1st Football League at the end of the competitive season 20212022, the Player will receive a promotional bonus up to net amount of I 0,000 Euro, relative
to the number of official games in which the Player performs.”
3.
On 6 June 2022, the Claimant sent a default notice to the Respondent requesting payment
of the total amount of EUR 24,000 corresponding to the monthly salaries for February 2022
until May 2022.
4.
On the same date, the Claimant sent an additional notice to the Respondent, inter alia,
mentioning the following:
“Beside the stated debt amount, we became aware of the unlawfull and nonethical working
conditions of the player in your Club, among other things - forcing the player to train alone. You
have isolated the player from the team, with a goal to pressure the player to end his Contract.
You have ignored entirely the Player's appeals, continuously delayed his earnings and you have
victimised the player as foreign player with isolated trainings from the beginning of June.
The player is as well forced, to work and train in the inadequate conditions, unhealthy and
unsafe locker rooms, bathrooms and on terrain, which are causing the physical and mental
consequences on his wellbeing.
Bearing in mind all the above mentioned, we are inviting ACS Petrolul 52 to immediately stop
with unethichal, unlawfull and abusive practice, i.e. to end the forced and punitive training of
the player in isolation, and to improve his working conditions immediately. In the attachment of
REF FPSD-6532
this letter, we are enclosing the several videos of the player's working conditions at you Club.
In case if you do not take any action and stop the abusive practice immediately, we are going to
be forced to unilaterally terminate the Contract which our client has with your Club and to start
proceedings in which we are going to ask for claims owed to Mr Vrhovac increased for damages,
interests and the costs of proceedings.”
5.
On 20 June 2022, the Respondent sent a letter to the Claimant, stipulating the following:
“The delays are due to the fact that the player can only be paid in cash, because the club could
not open a bank account in Romania, the player not having an identity document in Croatia,
but only in Bosnia and Herzegovina.
Also, the player does not have a health insurance valid in Croatia and on the territory of Europe,
which does not allow the granting of a personal numerical code valid in Romania.
In other words, the club owes the player the following amounts which represent salaries for the
months:
-- March 2022 / € 4,000;
- April 2022 / € 4,000 ;
- May 2022 / € 4,000 €
Regarding the promotion bonus related to the number of games in which the player played, the
amount due is € 1,538.
Since the player's transfer, 3 championship games and 10 play-off games have been played. The
player played in 2 games, so a percentage of 15% of the official games.
Given the difficult financial situation of the club, we propose that the amounts mentioned above
be paid as follows:
- € 4,000 until 01.07.2022;
- € 4,000 until 01.08.2022;
- € 4,000 until 01.09.2022.
In order to make these payments, please send us an account statement of the player from
UniCredit Bank in Bosnia and Herzegovina. At the same time, we propose you to terminate the
contract, as we have previously established.”
6.
On 22 June 2022, the Claimant terminated the contract with the Respondent.
REF FPSD-6532
7.
According to the information available in TMS, on 30 June 2022, the Claimant signed a new
employment contract with the club, NK Radomlje valid from 1 July 2022 until the 30 June
2024, entitling him to a monthly salary of EUR 1,075 per month.
II. Proceedings before FIFA
8.
On 28 June 2022, 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.
According to the Claimant, the Respondent failed to comply with its contractual financial
obligations, moreover it failed to comply with his default notice.
10. The requests for relief of the Claimant, were that the Respondent pay him:
(a) EUR 15,538 corresponding to his monthly wages for February, March, April and May 2022
together with the bonus for the promotion, plus interest at the rate of 5% p.a. from the
respective due dates as follows:
- EUR 2,000 as February 2022 salary
- EUR 4,000 as March 2022 salary
- EUR 4,000 as April 2022 salary
- EUR 4,000 as May 2022 salary
- EUR 1,538 as bonus for promotion
(b) EUR 125,000 as compensation for breach of contract corresponding to the period from 1
June 2022 until 30 June 2024 plus interest at the rate of 5% p.a. as of 27 June 2022 until full
payment.
b. Position of the Respondent
11. In its reply, the Respondent firstly denied all the statements of the Claimant “on the alleged
isolation from the team and the unlawfully non-ethical conditions.”
12. In this regard, the Respondent mentioned that “the videos provided by the player to
substantiate his allegation that he was training alone should not be taken into consideration as
there are inconclusive and clearly fabricated and it cannot be clearly noted when it was filmed,
with which occasion was it filmed, where was it filmed, if it was filmed once or more times, who
were the persons in the video, who was the person filming and the surrounding of this matter.”
13. The Respondent indicated that it believed “that the video was made with the intent to be used
in order to prove something untrue, to force a motive for the alleged just cause in order to
REF FPSD-6532
terminate the contract and sign with his current club. It can be clearly noted from the video that
there are people without the Club uniform, music on the background (from the person filming),
etc., facts that clearly lead to a conclusion that this video does not contain an official training of
the player, but it was staged/recorded in bad faith.”
14. In regard to the outstanding salaries, the Respondent mentioned the following:
(a) “The Claimant failed to submit the necessary bank documents in order to open a bank account;
and
(b) The Claimant, after the failure to submit the necessary documents to open a bank account and
prior to the opening of this conflictual situation, never submitted another bank account to wire
his due salaries.”
15. As to the aspect of cash payments the Respondent stated the following:
“In Romania, by Law 70/20152 it is forbidden to make payments to a person over 10.000 lei
(approx. 2.000 Euros) a day for a service. Also fragmenting larger payments into small cash
payments (in the same day or different days) for the same service is forbidden.
The Club was put by the Player in a position where only cash payments could be made to him,
payments that were in conflict with the above-mentioned law and were sanctioned by the
Romanian Authorities with a fine/contravention.”
16. The Respondent further mentioned that it paid the amount of EUR 10,875 to the Claimant
and will pay as soon as possible the remaining approximately EUR 4,600.
17. In conclusion the Respondent requested “FIFA to note that there is no just cause for
compensation and the request of the Claimant regarding the 125.000 Euros must be rejected as
unfounded. In subsidiary, in case compensation is deemed just by FIFA, we request that the value
of the new contract be deducted in accordance with art. 17 of the FIFA R.S.T.P .”
c. Additional Comments Claimant
18. On 1 August 2022, the Claimant confirmed that the Respondent paid the amount of EUR
10,875.
19. In this context, the Claimant amended his claim as follows and requested that the
Respondent pay him:
(a) EUR 4,663 as outstanding remuneration plus interest at the rate of 5% p.a. as follows:
-
EUR 3,125 as salary for May 2022
EUR 1,538 as bonus for the promotion
REF FPSD-6532
(b) EUR 125,000 as compensation for breach of contract corresponding to the period from 1
June 2022 until 30 June 2024 plus interest at the rate of 5% p.a. as of 27 June 2022 until full
payment.
20. Moreover, the amended claim was sent to the Respondent, who failed to provide any
further comment.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 28 June 2022 and
submitted for decision on 22 November 2022. Taking into account the wording of art. 34 of
the October 2022 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.
2.
Subsequently, the Single Judge 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 (October 2022 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Bosnian/Croatian player and a
Romanian club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 28 June 2022, the June 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
4.
The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
REF FPSD-6532
c. Merits of the dispute
5.
His competence and the applicable regulations having been established; the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge 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, in accordance with art. 14bis
of the Regulations.
7.
In this context, the Single Judge acknowledged that his 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 formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
8.
The Single Judge 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).
9.
The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to his salaries from February until May 2022. Furthermore, that the
Claimant has provided written evidence of having put the Respondent in default on 6 June
2022, i.e. at least 15 days before unilaterally terminating the contract on 22 June 2022.
10. 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.
11. In this regard the Single Judge took note of the argument of the Respondent mentioning
that the Claimant failed to open a bank account hence it could not “wire his salaries”. The
Single Judge remarked that the aforesaid argument cannot be considered a valid reason
for non-payment of the monies claimed by the Claimant, in other words, the reasons
brought forward by the Respondent in its defence do not exempt the Respondent from its
obligation to fulfil its contractual obligations towards the Claimant.
REF FPSD-6532
12. In consideration of all of the above, the Single Judge concluded that the Claimant had a just
cause to unilaterally terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
13. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
However, before entering into the calculation of any payable compensation, the Single
Judge recalled that the Claimant is entitled to all his outstanding remuneration due up until
the termination of the contract.
14. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e., EUR
4,663 (EUR 15,538 less EUR 10,875 – payment remitted by the Respondent on 1 August
2022), corresponding to:
-
EUR 3,125 as May 2022 salary
EUR 1,538 as bonus for the promotion
15. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as from the respective due dates until the date
of effective payment.
16. Having stated the above, the Single Judge 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.
17. In application of the relevant provision, the Single Judge held that it first of all had to clarify
as to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. In this regard, the Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
REF FPSD-6532
18. As a consequence, the Single Judge 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 Single Judge recalled that said provision provides
for a non-exhaustive enumeration of criteria to be taken into consideration when
calculating the amount of compensation payable.
19. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge
concluded that the amount of EUR 124,000 (i.e. the residual value of the contract June 2022
until June 2024 (i.e. consisting of June 2022 in the amount of EUR 4,000 and EUR 5,000
monthly remuneration x 24 months ) serves as the basis for the determination of the
amount of compensation for breach of contract.
20. In continuation, the Single Judge 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.
21. Indeed, the player found employment with the club, NK Radomlje valid from 1 July 2022
until the 30 June 2024. In accordance with the pertinent employment contract, the player
was entitled to approximately EUR 1,075 per month. Therefore, the Single Judge concluded
that the player mitigated his damages in the total amount of EUR 25,800, that is, EUR 1,075
times 24.
22. Subsequently, the Single Judge 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 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.
23. In the case at hand, the Single Judge confirmed that the contract termination took place
due to said reason i.e., overdue payables by the club. Moreover, in consideration of the
circumstances the player was subject to i.e., training alone and inadequate environmental
conditions, the Single Judge decided that the player shall receive additional compensation
up to a maximum of five monthly salaries.
24. In this respect, the Single Judge decided to award the amount of additional compensation
of EUR 25,000 i.e., five times the monthly remuneration of the player.
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25. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Respondent must pay
the amount of EUR 123,200 to the Claimant (i.e. EUR 124,000 minus EUR 25,800 plus EUR
25,000), which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
26. 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 the player interest on said
compensation at the rate of 5% p.a. as of 28 June 2022 until the date of effective payment.
iii. Compliance with monetary decisions
27. Finally, taking into account the applicable Regulations, the Single Judge 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.
28. In this regard, the Single Judge 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.
29. Therefore, bearing in mind the above, the Single Judge 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.
30. 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.
31. The Single Judge 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.
REF FPSD-6532
d. Costs
32. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
33. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
34. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-6532
IV Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Vedran Vrhovac, is partially accepted.
2.
The Respondent, ACS Petrolul 52, has to pay to the Claimant, the following amounts:
- EUR 4,663 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 EUR 3,125 as from 1 June 2022
on the amount of EUR 1,538 as from 28 June 2022
- EUR 123,200 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 28 June 2022 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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-6532
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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