Labour Disputes
Texto da decisão
REF FPSD-6730
Decision of the
Dispute Resolution Chamber
passed on 26 January 2023
regarding an employment-related dispute concerning the player Antonio
Vutov
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Antonio Vutov, Bulgaria
Represented by Georgi Gradev & Marton Kiss
RESPONDENT:
Mezőkővesd Zsóry FC , Hungary
REF FPSD-6730
I. Facts of the case
1.
On 22 September 2020, the Bulgarian player, Antonio Vutov (hereinafter: the Claimant or
player), and the Hungarian club, Mezokovesd Zsory FC Kft (hereinafter: the Respondent or
club) signed an employment contract valid as from 22 September 2020 until 30 June 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of Hungarian Forint (HUF) 3,650,000 per month. Further stipulating the following:
“Parties agree that conversion rate is the following 1EUR=350Ft
Parties agree that they will change the conversion rate in every january and june until the
contract is valid
according to the Hungarian national bank middle exhange rate”
3.
Art. 10 of the contract establishes, that: “the professional management or the management
of the Employer may determine in his/her sole discretion at what team -or in line with the content
of sub-point 8.a) -individually, or otherwise shall the Employee perform his/her training work, or
in the matches of what team he/she is obliged to participate.”
4.
Art. 49 of the contract states: “The Parties agree that they shall make efforts to settle their
possible dispute in amicable way by negotiations. If these efforts fail – in cases determined by
the rules of MLSZ or FIFA – the Parties may turn to the organizational units with MLSZ or FIFA
scope of authority, in case of labour dispute to the Administrative and Labour Court having
competence and scope of authority, and in all other disputes arising out of their legal
relationship the Parties stipulate the exclusive jurisdiction of the Sports Standing Arbitration
Court based on the Article 47 of the Sports Law. The number of arbitrators is three; the
procedure is determined by the Procedural Rules of the Arbitration Court.”
5.
On 10 June 2022, the Respondent sent a letter to the Claimant informing him that starting
on the 10th of June 2022, he would be part of the club’s second team.
6.
On the same day, the Claimant sent a letter to the Respondent protesting against the
aforesaid and requested for his immediate reintegration to the first team.
7.
On 13 and 14 June 2022, the Claimant arrived at the first team training facilities but was
not allowed to train, the Claimant therefore complained about the Respondent’s conduct
and requested to be reinstated to the first team as well as payment of his May 2022 salary
which has become due.
8.
On 15 June 2022, the Respondent replied to the Claimant indicating that his salary was not
paid due changes in the financial department and that he was not included in the first team,
due to “a series of injuries, illnesses and family problems his performance has dropped
dramatically”.
REF FPSD-6730
9.
On 16 June 2022, the Claimant sent another letter insisting for his reintegration to the first
team and referred to the aforesaid correspondence of the Respondent “complaining that
the length of the imposed measure and the milestones for the reintegration was not specified.”
10. On 21 June 2022, the Claimant requested to be fully restored to the first team.
11. On 23 June 2022, the Respondent requested the Claimant to undergo a medical
examination on 27 June 2022 and indicted that he must attend the first team training on
28 June 2022.
12. On 28 June 2022, the Respondent informed the Claimant that his medical examination was
scheduled for 29 June 2022.
13. On 1 July 2022 the Respondent requested the Claimant to attend training sessions and sign
a document to pay his May salary.
14. On 5 July 2022, the Claimant complained that he was prevented from training with the first
team, his May salary and accommodation allowance were still outstanding, and his salary
was not indexed as per the applicable exchange rate and requested that the Respondent
remedy the breaches.
15. On 11 July 2022, the Claimant again complained that the Respondent was violating his
personality rights by not allowing him to train with the first team for one month and that
his June salary went unpaid the previous day without any reason, the Claimant gave the
Respondent until 13 July 2022 to pay his June 2022 salary, and to reintegrate him to the
first team.
16. On 12 July 2022, the Respondent claimed that the Claimant’s health and fitness were being
assessed and that he would be assigned to individual training sessions.
17. On 13 July 2022, the Respondent sent two separate letters to the Claimant and his legal
counsels, informing the Claimant that he had to train with the second team based on his
health and fitness test results. The Respondent referred to the Claimant’s alleged physical
test results without supporting them with any evidence
18. On 14 July 2022, the Claimant rejected the Respondent’s allegations and reiterated his
requests to be reintegrated to the first team, to be allowed to join the first team’s training
camp, and be paid his June 2022 salary, granting the Respondent a deadline until the
following day to comply.
19. On the same day, the Respondent referred the Claimant to clauses 8(a), (l), (m), (o), and 10
of the contract, claiming that it was entitled to determine the Claimant’s training schedule,
which team he plays for, and his physical assessment.
REF FPSD-6730
20. On the same day, the Claimant unilaterally terminated the contract with immediate effect
based on art.14.2 of the Regulations.
21. On 18 July 2022, the Claimant signed an employment contract with FC Lokomotiv Sofia 1929
valid as from 19 July 2022 until 10 June 2024, including a monthly salary of (Bulgarian Lev)
BGN 1,500.
II. Proceedings before FIFA
22. On 16 July 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
23. According to the Claimant, it had just cause to terminate the contract as the Respondent
violated his personality rights.
24. The requests for relief of the Claimant, were that the Respondent pay him as:
(a) outstanding remuneration, the amount of HUF 1,005,306 as the balance between the paid
and index salaries from October 2020 to May 2022; and HUF 4,137,535 as salary for June
2022;
(b) compensation for breach of contract HUF 49,650,420 corresponding to the remaining
period of 12 months based on the index salary
-
Plus 5% interest p.a. on the above amounts
b. Position of the Respondent
25. Notwithstanding the fact that the Respondent was invited to provide its position to the
Claimant’s claim it failed to do so.
REF FPSD-6730
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 16 July 2022 and submitted for
decision on 26 January 2023. 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 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 October 2022 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 an Bulgarian player
and a Hungarian club.
3.
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 (October 2022 edition), and
considering that the present claim was lodged on 16 July 2022, the July 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 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
5.
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.
REF FPSD-6730
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that player terminated the contract on 14 July 2022 with
immediate effect based on art.14.2 of the Regulations.
7.
In this context, the Chamber acknowledged that its task was to determine whether the
Claimant had just cause to terminate the contract on 14 July 2022 and to decide on the
consequences thereof.
8.
The Chamber noted that – after having been provided with the claim of the Claimant – the
Respondent failed to present its response. By not presenting its position to the claim, the
Chamber was of the opinion that the Respondent renounced its right of defence and, thus,
accepted the allegations of the Claimant.
9.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
expressed that it shall take a decision upon the basis of the documentation already on file;
in other words, upon the statements and documents presented by the Claimant.
10. Taking into account the documentation on file, the Chamber noted that the Claimant
highlighted that the Respondent failed to respond to his various request to reintegrate him
to the first team and that it continuously provided unclear reasons relating to his removal
from the first team as well as its failure to provide clarity about the possibility to re-join the
first team.
11. In continuation and in reference to the termination of the contract by the Claimant on the
basis of art.14.2 of the Regulations, the Chamber recalled the content of art.14 (2) of the
Regulations which stipulates that “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.”
12. In this context, the Chamber took into account the different elements of the club’s
behaviour brought forward by the Claimant to justify the termination of the contract, such
as:
-
his assignment to individual training sessions
relegation to the second team
failure to reintegrate to the first team
unclear reasons relating to his removal from the first team
failure to pay his June 2022 salary
13. In this regard, the Chamber took note that the Claimant considered the aforesaid
behaviour of the Respondent as a breach of his personality rights as a professional player
as he was forced to play with an amateur team being hired as a professional player. The
REF FPSD-6730
DRC took note that the Claimant requested on several occasions to be reintegrated back
to the first team.
14. The Chamber further recalled art.10 of the contact, however highlighted that such
provision cannot be applied in an abusive manner by the Respondent.
15. Bearing in mind the foregoing, the Chamber noted that the behaviour of the Respondent,
as highlighted above is clearly and deliberately abusive. Furthermore, the Chamber took
note of the evidence provided by the Claimant, showing that he consistently and in good
faith tried to contact the Respondent and be allowed to comply with the terms of the
employment contract. In this context, the Chamber concluded that the circumstances of
the present case are in line with art. 14 par. 2 of the Regulations.
16. The Chamber therefore concluded that such actions of the club shall not be accepted and
therefore taking into account the Claimant’s default notice and numerous requests to be
reinstated, the DRC established that the player had just cause to terminate the contract on
14 July 2022.
ii. Consequences
17. 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.
18. The DRC took note of the player’s requests and his calculations that as per his salary, the
“exchange rate had to be indexed at the end of the relevant month so that it would be paid per
the indexed rate on January 31 and June 30 of each year.”
19. The Chamber recalled the content of 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. With this in mind, the Chamber deemed that it was up to the player to
prove, the indexed rate as claimed should be applied to the amounts as contractually
agreed.
20. In this context, the Chamber turned its attention to the documentation brought forward by
the player and acknowledged that the player did not provide the Chamber with sufficient
evidence which could corroborate that the indexed rate applied by him was, in fact, correct,
accordingly the Chamber concluded that the contractual agreed amounts shall be
considered.
21. 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 the player’s
salary for June 2022 amounting to HUF 3,650,000.
REF FPSD-6730
22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, i.e. HUF 3,650,000 (i.e.
June 2022 salary).
23. In addition, 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 Claimant interest at the rate
of 5% p.a. on the outstanding amount as from 11 July 2022 until the date of effective
payment.
24. 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.
25. 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 beforehand agreed 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 employment contract at
the basis of the matter at stake.
26. 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.
27. Bearing in mind the foregoing as well as the claim of the player, 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 HUF 43,800,000 (i.e. the period July 2022 until 30 June 2023
at HUF 3,650,000 per month x 12 ) serves as the basis for the determination of the amount
of compensation for breach of contract.
28. 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
REF FPSD-6730
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.
29. Indeed, the player found employment with the club FK Lokomotiv Sofia 1929, valid as from
19 July 2022 until 10 June 2024. In accordance with the pertinent employment contract, the
player was entitled to approximately (Bulgarian Lev) BGN 1,500 per month. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of BGN
17,419 (approximately HUF 3,541,111.46).
30. 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 included the said reason i.e., overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
31. In this respect, the DRC decided to award the amount of additional compensation of HUF
10,950,000, i.e., three times the monthly remuneration of the player (HUF 3,650,000 per
month).
32. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of
the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract.
33. 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 HUF 43,800,000 to the player corresponding to the residual value of the contract as per
the contractual agreed amounts, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
34. 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 16 July 2022 until the date of effective payment.
iii. Compliance with monetary decisions
35. 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.
REF FPSD-6730
36. 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.
37. 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.
38. 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.
39. 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
40. 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.
41. 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.
42. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-6730
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Antonio Vutov, is partially accepted.
2.
The Respondent, Mezőkővesd Zsóry FC, has to pay to the Claimant, the following amount(s):
- HUF 3,650,000 as outstanding remuneration plus 5% interest p.a. as from 11 July 2022
until the date of effective payment.
- HUF 43,800,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 16 July 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-6730
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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