Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 29 January 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Daan de Jong (The Netherlands ), member
Alex andra Góm ez Bruinew oud (Uruguay ), member
on the matter between the player,
Filip Zderic, Croatia
represented by Mr Hrvoje Raic
as Claimant / Counter-Respondent
and the club,
FK Kukës i, Albania
represented by Mr Arsen Selmanaj
as Respondent / Counter-Claimant
and the club,
NK Zadar, Croatia
as intervening party
regarding an employment-related dispute
arisen between the parties
I.
Facts of the cas e
1.
On 23 January 2018, the Croatian player, Filip Zderic (hereinafter: player or the
Claimant / Counter-Respondent) and the Albanian FK Kukësi (hereinafter: club or
the Respondent / Counter-Claimant) signed an employment contract (hereinafter:
the contract) valid “for 2 Football seasons”.
2.
According to the information contained in the Transfer Matching System (TMS),
the sporting season in Albania runs from 1 July until 30 June.
3.
According to art. 2 of the contract, the player was entitled to a monthly salary of
EUR 4,000 net.
4.
Art. 16 of the contract provides the following:
“iv) the club has the right to terminate the contract at any time without any
financial, legal or moral obligations towards the player in case that the last has
violated the club regulation.
v)if the player break the contract unilaterally before the term, he shall pay to
the club a penalty from 100.000 to 150.000 Euro, within 30 (thirty) days. On 13
March 2018, the player informed the club that due to the fact that the club failed
to “meet its obligations” the club “has unilaterally terminated” the contract
“without just cause”.
5.
On 4 October 2018, the player lodged a claim in front of FIFA against the club for
outstanding remuneration and compensation for breach of contract, requesting
the following amounts:
- EUR 8,000 as outstanding remuneration, i.e. two instalments of EUR 4,000 that
fell due on 10 June 2018 and 1 July 2018 respectively, plus 5% interest p.a. as
from the due date;
- EUR 48,000 as compensation for breach of contract, plus 5% interest p.a. as
from the due date;
- legal expenses.
6.
In his clam, the player explained that the contract was valid until 30 June 2019.
7.
According to the player, on 14 June 2018, the club insisted that the player signs a
termination agreement by means of which he would waive his right to any
remuneration based on the employment contract. The player explained that,
following his refusal to sign the document, he was banned from training with the
senior squad and was not included to join the pre-season training camp in
Slovenia.
8.
On 18 June 2018, the player sent a letter to the club, requesting his reintegration
in the first squad within the next 10 days.
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
2/11
9.
According to the player, on 25 June 2018, the club delivered a letter dated 23
June 2018 to him, imposing a fine of one monthly salary as he did not show up
for the training camp in Slovenia. Furthermore, the letter indicates that the
player was absent on 15 June 2018 and that he must comply with the training
process within the next 2 days.
10.
In reply to the aforementioned letter, the player sent a letter to the club on 26
June 2018 denying the allegations of the club and arguing that, according to a
list published on the club’s Facebook page, he was not part of the squad
traveling to Slovenia. Furthermore, the player reiterated his request to be
reintegrated to the squad and further requested air tickets to join the squad in
Slovenia as well as outstanding remuneration in the amount of EUR 4,000 by no
later than 29 June 2018.
11.
According to the player, the club replied in writing on 28 June 2018, repeating
the content of its previous letter and “attending the player to come and join the
club”.
12.
On 30 June 2018, the player unilaterally terminated the contract in writing,
invoking the exclusion from the squad for the training camp as well as the nonpayment of his salary in the amount of EUR 4,000 and a bonus of EUR 250 that
matured on 10 June 2018.
13.
The player explained that, on 3 July 2018, the club replied to his notice
reiterating why the player was fined and stating that the termination of the
contract was without just cause. Furthermore, the player stated that the club paid
the bonus of EUR 250 to him on 12 July 2018.
14.
In its reply to the claim, the club first stated that the contract was valid until 31
May 2019. Furthermore, it denied having asked the player to sign a termination
agreement and explained that the player did not show up on 15 June 2018 in
order to travel with the team to Slovenia.
15.
In this respect, the club explained that it notified a restaurant on 8 June 2018
which players would consume their lunch from 11 June until and including 15
June 2018, including the name of the player. According to information obtained
from the restaurant on 20 June 2018, the player was not present for lunch on the
aforementioned days.
16.
In continuation, the club explained that the list with the names of the players
travelling to Slovenia was uploaded on its Facebook page on 15 June 2018,
including the name of the player. In this respect, the club stated that its fans have
opened several other Facebook pages which are not controlled by the club.
17.
Furthermore, the club referred to the fine of one monthly salary imposed on the
player, but stated that it paid the player the minimum salary of LEK 240,000, in
addition to the bonus of EUR 250 on 12 July 2018, in accordance with Albanian
law.
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
3/11
18.
All in all, FK Kukësi maintained that the player did not have a just cause to
terminate the contract and argued that it invited him several times to come to
the club, but that he did not respond. As a result of the player’s unlawful
termination of the contract, the club filed a counterclaim against the player,
requesting compensation for breach of contract in the amount of EUR 100,000
based on art. 16 of the contract, as well as legal fees.
19.
In his replica and reply to the counterclaim, the player rejected the allegations of
the club and stated that he trained normally with the club until 15 June 2018
when he was excluded from the team for the training camp.
20.
Furthermore, the player argued that the club fabricated the disciplinary case in
bad faith. In this respect, the player maintained that he did not sign any internal
regulations, that he was not informed about any disciplinary procedure against
him and that he was not heard during said procedure. Moreover, the player
argued that the salary for May 2018 which was not paid due to the fine imposed
on him on 25 June 2018 had already matured on 10 June 2018.
21.
In continuation, the player referred to art. 14 RSTP and argued that the club
acted in an abusive manner. Consequently, the player rejected the counterclaim
and reiterated his request for relief.
22.
On 1 February 2019, the player and the Croatian club, FK Zadar, signed an
employment contract valid as from 1 February 2019 until 31 May 2019. According
to said contract, the player was entitled to a monthly salary of HRK 6,788.05 gross
(approx. EUR 915 on 1 February 2019).
23.
After having been invited by FIFA to comment on the present affair, Zadar stated
that “we do not have anything else to add, expect that we support all the facts
that Filip’s lawyer has been introduced regarding this case”.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the
Chamber) analyzed whether it was competent to deal with the case at hand. In
this respect, it took note that the present matter was submitted to FIFA on 4
October 2018. Consequently, the 2018 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
4/11
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that, in accordance with art. 24 par. 1 and 2 in
combination with art. 22 lit. b of the Regulations on the Status and Transfer of
Players, the Dispute Resolution Chamber (edition January 2020), 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 Croatian player, an Albanian club and a Croatian club.
3.
Furthermore, 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 Player
(edition January 2020), and considering that the present claim was lodged on 18
October 2018, the June 2018 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation submitted by the parties.
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. In particular, the Chamber
recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA
may use, within the scope of proceedings pertaining to the application of the
Regulations, any documentation or evidence generated or contained in the
Transfer Matching System (TMS).
5.
In this respect, the Chamber acknowledged that, on 23 January 2018, the player
and the club had signed an employment contract, valid “for 2 Football seasons”,
i.e. until 30 June 2019, including a monthly salary of EUR 4,000.
6.
In continuation, the members of the Chamber noted that the player lodged a
claim against the club maintaining having had just cause to terminate the
contract on 30 June 2018 since he was excluded from the club’s training and the
club failed to remit one salary in the amount of EUR 4,000 and a bonus of EUR
250. In this context, the player requested payment of his outstanding dues as well
as compensation for breach of contract.
7.
Furthermore, the DRC acknowledged that the club rejected such argumentation
and held that the player was absent from training without a valid reason as of 15
June 2018. In this regard, the club held that it imposed a fine on the player
corresponding to one monthly salary. Therefore, the club deemed that the player
terminated the contract without just cause and lodged a counterclaim against
the player, requesting payment of compensation for breach of contract.
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
5/11
8.
The Chamber further noted that the player rejected said counterclaim and
reiterated his position. Further, the player pointed out that he was not informed
about any disciplinary procedure against him and that he was not heard during
said procedure.
9.
Furthermore, the DRC took note that NK Zadar endorsed the player’s position.
10.
On account of the above, the members of the Chamber highlighted that the
underlying issue in this dispute, considering the diverging position of the parties,
was to determine as to whether the player terminated the employment contract
on 30 June 2018 with or without just cause and to decide on the consequences
thereof.
11.
In this context, the Chamber proceeded with an analysis of the circumstances
surrounding the present matter, the parties’ arguments as well the
documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in
accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
12.
In this framework, the Chamber analysed the player’s termination of the contract
on 13 March 2018, in which he inter alia maintained that club excluded him from
training as of 15 June 2018, when the team travelled to its training camp in
Slovenia.
13.
In this regard, the player put the club in default and requested to be reinstated.
The Chamber noted that the club’s first reaction, which is on file, dated from 25
June 2018, which was in reply to the player’s letter from 18 June 2018. In other
words, the club did not pro-actively put the player in default for his alleged
absence as of 15 June.
14.
Furthermore, the DRC noted that not written invitation to the player for the
training camp in question is on file, but only contradicting documents submitted
by both parties.
15.
In light of the above, first of all, the members of the Chamber considered
important to point out, as has been previously sustained by the DRC, that among
a player’s fundamental rights under an employment contract, is not only his right
to a timely payment of his remuneration, but also his right to access training and
to be given the possibility to compete with his fellow team mates in the team’s
official matches.
16.
In light of the documentation on file, the Chamber stressed that the club failed
to convince the members that it had actually invited the player for the training
camp in question.
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
6/11
17.
Subsequently, the Chamber concurred that the fine imposed on the player by the
club shall be disregarded, since the fine in the matter at hand was only a reaction
to the player’s default notice and due to the fact that the club failed to proof
that the player’s right to be heard was respected in the disciplinary process at
hand.
18.
Furthermore, and irrespective of the foregoing consideration, the Chamber
wished to point out that the imposition of a fine, or any other available financial
sanction in general, shall not be used by clubs as a means to set off outstanding
financial obligations towards players. Consequently, the Chamber decided to
reject the club’s argument in this connection.
19.
On account of the above-mentioned considerations, since the club excluded the
player from training and failed remit the player’s salary of May 2018 plus a bonus
of EUR 250, taking into account the player’s default notices to the club in this
regard, the Chamber concluded that the player had just cause to terminate the
contract on 30 June 2018.
20.
Subsequently, prior to establishing the consequences of the termination of the
employment contract with just cause by the player in accordance with art. 17 of
the Regulations, the Chamber held that it, in general, had to address the issue of
unpaid remuneration at the moment when the contract was terminated.
21.
In this context, the Chamber took note of the player’s claim regarding the salary
of May 2018 and June 2018. In accordance with the above-mentioned
considerations and in compliance with the general principle of pacta sunt
servanda, the Chamber decided that the club has to pay outstanding
remuneration in the amount of EUR 8,000 to the player.
22.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the DRC decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the
aforementioned amount as of the respective due dates.
23.
Having established the above, the Chamber turned its attention to the question
of the consequences of the termination of the contract with just cause by the
player on 30 June 2018. In continuation and having established the above, the
Chamber decided that, taking into consideration art. 17 par. 1 of the Regulations,
the player is entitled to receive from the club compensation for breach of
contract.
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
7/11
24.
In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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 whether the pertinent employment contract contained any clause, by
means of which the parties had beforehand agreed upon a compensation
payable by the contractual parties in the event of breach of contract. In this
regard, the Chamber established that no such compensation clause was included
in the contract at the basis of the matter at stake.
26.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the regulations.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of
the monies payable to the Claimant under the terms of the employment contract
as from its termination and concluded that the Claimant would have been
entitled to receive EUR 48,000 as remuneration had the employment contract
been executed until its regular expiry date, i.e. 30 June 2019.
27.
Consequently, the Chamber concluded that the amount of EUR 48,000 serves as
the basis for the final determination of the amount of compensation for breach
of contract in the case at hand.
28.
In continuation, the Chamber assessed 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 able to reduce his loss of income. According
to the constant practice of the DRC, such remuneration under a new employment
contract(s) 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.
In respect of the above, the Chamber recalled that the player had signed a new
employment contract with the Croatian club, NK Zadar, valid as of 1 February
2019 until 31 May 2019, including a total salary of EUR 3,660, which shall be
deducted, leading to a mitigated compensation in the amount of EUR 44,340.
30.
Consequently, on account of the above-mentioned considerations, the DRC
decided that the club must pay the amount of EUR 44,340 as compensation for
breach of contract to the player, which is considered by the Chamber to be a fair
and reasonable amount.
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
8/11
31.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the DRC decided that
the Respondent must pay to the Claimant interest of 5% p.a. on the
aforementioned amount of compensation as of the date on which the claim was
lodged, i.e. 4 October 2018, until the date of effective payment.
32.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
33.
Finally, the DRC decided that the claim of the player is partially accepted and
concluded its deliberations by rejecting any further claim of the Claimant.
Moreover, the members of the Chamber rejected the club’s counterclaim.
34.
Furthermore, taking into account the consideration under number II./3. above,
the Chamber referred to par. 1 and 2 of art. 24bis 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.
35.
In this regard, the Chamber established that, in virtue of the aforementioned
provision, it has competence to impose a sanction on the club. More in particular,
the DRC pointed out that, against clubs, the sanction shall consist in a ban from
registering any new players, either nationally or internationally, up until the due
amount is paid and for the maximum duration of three entire and consecutive
registration periods.
36.
Therefore, bearing in mind the above, the DRC decided that, in the event that
the club does not pay the amount due to the player within 45 days as from the
moment in which the player, following the notification of the present decision,
communicates the relevant bank details to the club, a ban from registering any
new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
37.
Finally, the Chamber recalled that the above-mentioned sanction will be lifted
immediately and prior to its complete serving upon payment of the due amounts,
in accordance with art. 24bis par. 3 of the Regulations.
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
9/11
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant / Counter-Respondent, Filip Zderic, is partially accepted.
2.
The Respondent / Counter-Claimant, FK Kukësi, has to pay the Claimant /
Counter-Respondent outstanding remuneration in the amount of EUR 8,000, plus
5% interest p.a. as follows:
a) as of 11 June 2018 on the amount of EUR 4,000 until the date of effective
payment;
b) as of 2 July 2018 on the amount of EUR 4,000 until the date of effective
payment.
3.
The Respondent / Counter-Claimant, has to pay the Claimant / CounterRespondent the amount of compensation for breach of contract in the amount of
EUR 44,340, plus 5% interest p.a. as from 4 October 2018 until the date of
effective payment.
4.
Any further claim lodged by the Claimant / Counter-Respondent is rejected.
5.
The counterclaim of the Respondent / Counter-Claimant is rejected.
6.
The Claimant / Counter-Respondent is directed to inform the Respondent /
Counter-Claimant, immediately and directly, preferably to the e-mail address as
indicated on the cover letter of the present decision, of the relevant bank
account to which the Respondent / Counter-Claimant must pay the amounts
mentioned under points 2. and 3. above.
7.
The Respondent / Counter-Claimant shall provide evidence of payment of the due
amounts in accordance with points 2. and 3. above to FIFA to the e-mail address
[email protected], duly translated, if need be, into one of the official FIFA
languages (English, French, German, Spanish).
8.
In the event that the amounts due plus interest in accordance with points 2. and
3. above are not paid by the Respondent / Counter-Claimant w ithin 45 day s as
from the notification by the Claimant / Counter-Respondent of the relevant bank
details to the Respondent / Counter-Claimant, the Respondent / Counter-Claimant
shall be banned from registering any new players, either nationally or
internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
10/11
9.
The ban mentioned in point 8. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
10.
In the event that the aforementioned amounts plus interest are not paid by the
Respondent / Counter-Claimant within the stated time limit, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee for
consideration and a formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision and
shall contain all the elements in accordance with point 2 of the directives issued by the
CAS. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal
arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Filip Zderic, Croatia / Club FK Kukësi, Albania / Club NK Zadar, Croatia
11/11