Labour Disputes
Texto da decisão
REF. FPSD-7243
Decision of the
Dispute Resolution Chamber
passed on 12 April 2023
regarding an employment-related dispute concerning the player RICHAIRO ZIVKOVIC
COMPOSITION
Clifford J. Hendel (USA & France), Deputy Chairperson
Sihon Gauci (Malta), member
André dos Santos Megale (Brazil), member
CLAIMANT/COUNTER-RESPONDENT:
Richairo Zivkovic, the Netherlands
Represented by Dolf Segaar
RESPONDENT/COUNTER-CLAIMANT:
Crvena Zvezda , Serbia
Represented by Davor Radić and Ana Radić
pg. 2
REF. FPSD-7243
I. Facts of the case
1.
On 30 August 2021, the Dutch player, Richairo Zivkovic (hereinafter: the player or Claimant/ CounterRespondent), and the Serbian club, Crvena Zvezda (hereinafter: the club or Respondent/ CounterClaimant) signed an employment contract valid as from 30 August 2021 until 30 June 2024.
2.
On 22 July 2022, the parties signed a termination agreement (hereinafter: termination agreement),
according to which the club undertook to pay to the player an amount of EUR 377,600 as follows:
-
“Loyalty for April 2022 and May 2022 in NET amount of EUR 80.000,00: ultimately on 27 July
2022
-
Loyalty fee for June 2022 in NET amount of EUR 40.000,00: ultimately on 15 August 2022
-
Performance bonuses in NET amount of EUR 17.600,00: ultimately on 15 September 2022
- Termination Fee in NET amount of EUR 240.000,00: payable in 6 (six) equal monthly
installments on the 25th day of each month, starting on 25 August 2022 and ending on 25 January
2023.”
3.
Clause 4 of the termination agreement stipulated:
“ln the event the Club fails to pay its obligation in a timely manner, the Player is entitled to a
penalty of 12% per annum over the full outstanding amount at the time of the Failure.”
4.
Clause 7 of the termination agreement, inter alia, stipulated the following:
“The parties agree that a dispute between them exists also if the Club is in default of paying
To Players United Management B.V ("PUM") on or before July 27, 2022 an amount of EUR
41.046,30 regarding the representation services provided by PUM. PUM and the Club have
agreed in a separate agreement that such payment will take place ultimately on 27 July 2022.
0n the claim of PUM article 4 of this Agreement is equally applicable. In the event the Player
will have to submit the claim of PUM to FIFA, this claim shall be deemed to have been
transferred by assignment to the Player, to which assignment the Club hereby agrees in
advance.”
5.
On 28 July 2022, the player put the club in default and requested payment of the outstanding
amounts setting a 15 days’ time limit in order to remedy the default, however to no avail.
II. Proceedings before FIFA
6.
On 22 August 2022, the player filed the claim at hand before FIFA. A brief summary of the position
of the parties is detailed in continuation.
pg. 3
REF. FPSD-7243
a. Position of the player
7.
According to the player, the club:
(a)
“failed to pay the amounts that have been fallen due to the Player and PUM per 27 July 2022, 15 August
2022 and 25 August 2022. PUM, on behalf of the Player, has summoned Red Star Belgrade on 28 July 2022
to pay the amounts that were due on that date within a period of 15 days, to which no response at all
was received from Red Star Belgrade;
(b)
attitude of being in breach paying already the first term implies that it has no intention of paying the
agreed amounts in time at all. Therefore, a further notice of default after the first notice of 28 July 2022 is
no longer required and meaningful. The amounts that will fall due after the first notice therefore become
due in Player's opinion without a further notice of default being required.”
8.
The requests for relief of the player, were the following:
(a)
“The Player has requested your Chamber primarily to decide to grant the Player the total amount of EUR
418,640.30 (EUR 377,600 + EUR 41.046,30), increased with a penalty of 12% per annum, which also
includes a part of the not yet due payables (not yet due is an amount of EUR 120.000 for termination fee).
The breach of Crvena Zvezda justifies that the full amount agreed upon will be paid to the Player as a
lumpsum.
(b)
However, if your Chamber should decide not to grant the full amount to the Player, his claim as per the
date of this letter is EUR 298,646.30, to be increased with a penalty of 12 % per annum, as follows:
-
Loyalty fee: EUR 120,000
-
Termination fee: EUR 120,000
-
Performance bonus: EUR 17,600
-
Assigned PUM Claim: EUR 41,046.30
b. Position of the club
9.
In its reply, the club argued the parties “did not take into account the circumstances surrounding the
coronavirus (Covid-19) in the time when they signed this termination agreement”. As such, it referred to
the FIFA Covid Guidelines & FAQ, and submitted that “accordance with the aforementioned art. 12 par.
3 of the Procedural Rules insofar as the FIFA COVID FAQ, in its question no. 1, establishes that the Bureau
of the FIFA Council did not determine that the COVID-19 outbreak was a force majeure situation in any
specific country or territory, or that any specific employment or transfer agreement was impacted by the
concept of force majeure; rather, it provides that whether or not a force majeure situation (or its
equivalent) exists in the country or territory is a matter of law and fact, which must be addressed on a
case-by-case basis vis-à-vis the relevant laws that are applicable to any specific employment or transfer
agreement”.
pg. 4
REF. FPSD-7243
10. Moreover, the club indicated that “it primarily is of the opinion and considers that the FIFA Dispute
Resolution Chamber (DRC) have no competence in this case for the request of the Claimant for paying his
agent fee (the amount of EUR 41,046.30 and any penalty of 12% on that amount). Furthermore, there is
no any payment of penalty amount from the Respondent to the Claimant in the amount of 12% over the
outstanding amount because that amount “over” outstanding amount that has not yet been due for the
payment of Respondent-Claimant and also calculation of penalty by the Claimant is wrong 12% per year
is not the amount of EUR 24,125.60 as Claimant requested.”
11. Likewise, there is not any payment of additional penalty amount of EUR 5,000 per each day of nonpayment because that obligation parties never agreed in the Termination Agreement on 22 July
2022.
12. Also, the club suggest that FIFA DRC accept its counterclaim and pass the following decision:
(a)
The counterclaim of the Respondent-Claimant, FK Crvena Zvezda, is admissible and accepted.
(b)
The Claimant-Respondent, Richario Zivkovic, has to pay to the Respondent-Claimant the amount of EUR
225,171.90 as breach of Termination agreement with mutual consent on 22 July 2022 plus 5% interest
p.a. as from 16 September 2022 until the date of effective payment.
c.
Player reply to the counterclaim
13. The player mentioned the following:
1.
“The Player denies all that has been brought forward in the Counterclaim in so far as it will not have been
expressly recognized by him.
2.
From the following it will become abundantly clear that the counterclaim was filed by Crvena Zvezda only
to delay the proceedings in order to continue defaulting on its payment obligation. That procedural
attitude should be sanctioned by the penalty requested in this proceedings by the Player and be
interpreted to Crvena Zvezda's disadvantage in this case.
3.
The Parties entered into a termination agreement (the “Termination Agreement”) on 22 July 2022 in order
to deal with the consequences of the premature termination of the then existing employment contract
between the Parties (the “Contract”). The Termination Agreement is attached as Annex 3 to the Statement
of Claim of the Player.
4.
According to article 7 of the Termination Agreement, the Parties will in the event of a dispute first of all
attempt to resolve it by mutual agreement. If such agreement will not be reached, as in the subject matter,
the Football Tribunal of FIFA shall be competent in accordance with the provisions of the FIFA Regulations
on the Status and Transfer of Players.
5.
Parties are in agreement that Crvena Zvezda did not comply with its payment obligation. The Response of
Crvena Zvezda also does not contradict that the agreed amounts in the Termination agreement have not
been paid by the club.
pg. 5
REF. FPSD-7243
6.
Not in the Termination Agreement, nor in any other document the Parties have come to the understanding
that the Player “will not sue a Club before last agreed installment comes into force” (as unsubstantiated
claimed by Crvena Zvezda in paragraph 4 of the Response). Crvena Zvezda fails to provide any evidence
of this statement, which contradicts the clear wording of article 7 of the Termination Agreement.
7.
In addition to the conclusion that there is no agreement between parties to await the last installment
before starting legal proceedings, Crvena Zvezda fails as well to substantiate the legal basis for the claim
and how the claim is composed. Merely stating and naming an amount is far from sufficient to get such
a claim awarded and that is an independent reason to reject the claim already.
8.
It is for the above reasons that the Player requests your Chamber to dismiss the Counterclaim of Crvena
Zvezda and to order it to pay the costs of the present dispute.
9.
Crvena Zvezda has not contested the claim of the Player. It has argued however that your Chamber should
not be competent for disputes between clubs and agents on the one hand and it denied having to pay
interest and penalties on the other hand.
10. From article 7, second and third paragraph of the Termination Agreement it follows clearly that the claim
of EUR 41.046,30 is not a claim between club and agent, but a claim that has been assigned to the Player
with the approval of Crvena Zvezda. According to jurisprudence of your Chamber separate agreements
also fall under the scope of Article 12bis of the RSTP. The Player refers to the article of Frans de Weger and
Thibault Dochy in Football Legal of 24 January 20191 in which they show from jurisprudence reviewed
that termination agreements as the subject fall under the scope of Article 12 bis.
11. Crvena Zvezda has agreed (third paragraph of article 7 of the Termination Agreement) that the claim of
EUR 41.046,30 will become part of the Player’s claim when it fails to pay the amount in time to the agent.
With reference to the DRC jurisprudence, the subject claim has as such become part of the Termination
Agreement and falls therewith within the scope of article 12bis of the RSTP.
12. Article 4 of the Termination Agreement is clear, both in wording as in purpose. There is no need to use
Swiss law (which according to the Player is not applicable in this matter and therewith the lecture in the
Response about Swiss law is of no relevance) to explain that a penalty of 12% per annum over any
outstanding amount is due by Crvena Zvezda.”
pg. 6
REF. FPSD-7243
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 29 August 2022 and submitted for decision on 12 April
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.
15. 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 a player from the Netherlands and a club from Serbia.
16. 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 29 August 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
17. 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
18. 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 abovementioned 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.
pg. 7
REF. FPSD-7243
i. Main legal discussion and considerations
19. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties strongly dispute the total amount that was outstanding and
due to the player as per the termination agreement concluded between the parties on 22 July 2022.
20. In this context, the Chamber acknowledged that its task was to determine whether the amounts
claimed by the player had indeed already fallen due and were to be paid by the club.
21. The Chamber noted that in its submission, the club argued that the parties failed to consider the
circumstances relating to the COVID-19 pandemic when the termination agreement was signed.
22. In this context the Chamber highlighted that the termination agreement was executed on 22 July
2022, a period upon which the effects and circumstances of the pandemic were well known. As such
the Chamber found that the arguments raised by the club cannot be considered a valid reason for
non-payment of the monies claimed by the player, in other words, the reasons brought forward by
the club in its defence do not exempt the club from its obligation to fulfil its contractual obligations
towards the player.
23. The Chamber further noted that the club also challenged the validity of the penalty clause agreed
to in the termination agreement.
24. After having reviewed the said provision in the termination agreement, the Chamber mentioned
that penalty clauses may be freely entered into by the contractual parties and may be considered
acceptable, in the event that the pertinent written clause meets certain criteria such as
proportionality and reasonableness. In this respect, the Chamber highlighted that in order to
determine as to whether a penalty clause is to be considered acceptable, the specific circumstances
of the relevant case brought before it shall also be taken into consideration.
25. In the specific case and on review of the said clause 4 of the termination agreement, the Chamber
held that the provisions thereof seem fair and proportionate.
26. In view of all the above, the Chamber decided to reject the argumentation put forward by the club
in its defense and therefore at this point it decided to reject the counterclaim of the club.
27. In continuation, the Chamber took note that the club further argued that FIFA has no competence
to deal with the request of the player regarding the payment of his agent’s fee. In this context the
DRC highlighted the provisions of clause 7 of the termination agreement, which indeed mentions
that the agent’s claim of EUR 41,046.30 will become part of the player’s claim and assigned to him
when the club fails to pay the amount in time. However, in this regard the Chamber held that though
the contractual provision in the termination agreement makes reference to the said assignment of
the claim to the player, the player failed to provide corroborating documentary evidence i.e., letter
of assignment to proof that the claim was indeed assigned to him from PUM, accordingly the
Chamber decided to reject this part of the player’s claim.
pg. 8
REF. FPSD-7243
28. Finally, taken all of the above into account the Chamber concluded that the club was indeed in
arrears of its financial obligations as per the termination agreement and is thus to be held liable for
the consequences thereof.
ii. Consequences
29. Having stated the above, the Chamber turned its attention to the question of the consequences of
such unjustified breach of the termination agreement committed by the club.
30. 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 amount of EUR 377,600 as
outstanding amount plus 12% interest p.a. as from the respective due dates until the date of
effective payment, corresponding to the following:
(a) Loyalty fee of EUR 80,000 as from 28 July 2022
(b) Loyalty fee of EUR 40,000 as from 16 August 2022
(c) Performance bonuses of EUR 17,600 as from 16 September 2022
(d) Termination Fee of EUR 240,000:
-
EUR 40,000 as from 26 August 2022
EUR 40,000 as from 26 September 2022
EUR 40,000 as from 26 October 2022
EUR 40,000 as from 26 November 2022
EUR 40,000 as from 26 December 2022
EUR 40,000 as from 26 January 2022
31. What is more, the Chamber held that the full amount as per the termination agreement has been
awarded to the player, as it was due at the moment of the decision.
iii. Compliance with monetary decisions
32. 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.
33. 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.
34. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount due
(including all applicable interest) to the player within 45 days of notification of the decision, failing
which, at the request of the player, a ban from registering any new players, either nationally or
pg. 9
REF. FPSD-7243
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.
35. The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form, which is attached to the present decision.
36. 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
37. 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.
38. 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.
39. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
pg. 10
REF. FPSD-7243
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, RICHAIRO ZIVKOVIC, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, CRVENA ZVEZDA is rejected.
3.
The Respondent/Counter-Claimant, CRVENA ZVEZDA, must pay to the Claimant/Counter-Respondent
the amount of EUR 377,600 as outstanding amount plus 12% interest p.a. as from the respective due
dates until the date of effective payment as follows:
-
On the amount of EUR 80,000 as from 28 July 2022
On the amount of EUR 40,000 as from 16 August 2022
On the amount of EUR 17,600 as from 16 September 2022
On the amount of EUR 40,000 as from 26 August 2022
On the amount of EUR 40,000 as from 26 September 2022
On the amount of EUR 40,000 as from 26 October 2022
On the amount of EUR 40,000 as from 26 November 2022
On the amount of EUR 40,000 as from 26 December 2022
On the amount of EUR 40,000 as from 26 January 2022
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
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/Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant/Counter-Respondent
in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-7243
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12