Labour Disputes
Texto da decisão
REF FPSD-6656
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding an employment-related dispute concerning the player DIEGO ZIVULIC
BY:
Jorge Gutiérrez (Costa Rica)
CLAIMANT:
Diego Zivulic, Croatia
Represented by Menno Teunissen
RESPONDENT:
FK Bregalnica 2008 AD, North Macedonia
Represented by Berlin Sports Law
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I. Facts of the case
1.
On 15 January 2022, the Croatian player Diego Zivulic (hereinafter: the Claimant or the
player) and the North-Macedonian club FK Bregalnica 2008 Ad (hereinafter: the
Respondent or the club) concluded an employment contract (hereinafter: the contract) valid
as from said date until 14 June 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly
salary of EUR 300 until 14 June 2022.
3.
In this context, the contract establishes that the salary should be paid by the 15th day of
each following month.
4.
In continuation, article 28 of the contract establishes that the “FIFA DRC would be
competent to decide upon all possible disputes arising in connection with the contract”.
5.
Furthermore, on the very same date, the parties signed an “Annexe Agreement”
(hereinafter: the annexe), which object was expressly the “determination of the rights and
obligations between the contracting parties in addition to the [contract]”.
6.
Under the annexe, the parties stipulated an additional monthly salary of EUR 2,200 net,
for the period between 1 February 2022 and 31 May 2022.
7.
In accordance with the annexe, the Respondent undertook also to pay the Claimant a
monthly housing allowance of EUR 150 for the period between 1 February 2022 and 31
May 2022.
8.
Finally, pursuant to article 5 of the annexe, the parties stipulated that in case of dispute
over the said document, the “Basic Court in Stip” would be competent.
9.
By correspondence dated 2 May 2022, the Claimant put the Respondent in default of
payment of EUR 8,450 setting a time limit expiring on 17 May 2022 in order to remedy the
default.
10. On 22 May 2022, the Claimant notified the Respondent the unilateral termination of the
contract and requested the payment of the overdue payables and the compensation plus
5% interest per annum by no later than 2 June 2022.
11. On 23 May 2022, the Respondent replied to the Claimant arguing that it had not been
possible to acknowledge receipt of the latter’s letters dated 6 and 22 May 2022 because
of technical issues with the Respondent’s email.
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II. Proceedings before FIFA
12. On 7 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
13. According to the Claimant, the Respondent failed to comply with its financial obligations,
namely in relation to the salaries due for the months of January, February, March, and
April 2022, plus the housing allowances due for the period January-May 2022.
14. Furthermore, the Claimant alleged that the Respondent failed to prepare the relevant
working visa permit for the Claimant and committed vandalic acts against the Claimant’s
car, destroying part of it and stealing some important documents.
15. Accordingly, the Claimant held to have had just cause to terminate the contract on 22 May
2022, as in line with art. 14bis of the Regulations on the Status and Transfer of Players
(RSTP).
16. The requests for relief of the Claimant were the following:
“(i.) Payment arrears by Club before termination of Contract:
- Outstanding salary January 2022: 300, EUR;
- Outstanding salary February 2022: 2.500 EUR;
- Outstanding salary March 2022: 2.500, EUR;
- Outstanding salary April 2022: 2.500, EUR;
- Outstanding salary until 22 May 2022: 1833, EUR ;
- Apartment allowance January 2022- May 2022; 750, EUR
•
Total: 10.383, EUR + 5% interest as from the respective due dates (ii.) Compensation for the
value of the remaining Contract:
- Remaining salary May 2022 (9 days) : 667, EUR
- June (14 days): 1.166, EUR
- Apartment allowance June 2022: 150, EUR
•
Total: 1.983, EUR + 5% interest as from the date of the claim
(iii.) Additional compensation for (a) violation by the Club of the Player’s fundamental rights,
namely by not preparing his working visa, for (b) vandalism against his car, with theft of several
documents belonging to the Player, as well as (c) negligent attitude and (d) non-compliance
with the relevant financial obligations.
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Total: 7,500 EUR (3 monthly salaries)”.
b. Position of the Respondent
17. In its reply, the Respondent firstly objected to the Claimant’s allegation according to which
he had to pay for his own accommodation.
18. Conversely, the Respondent argued having rented an apartment for the Claimant and
having always paid for it, in accordance the “Lease Agreement and payment receipts”
19. Furthermore, the Respondent stated that it has always taken in charge the Claimant
meals.
20. Beside the above, the Respondent held that the non-issuance of the Claimant’s working
visa was ascribable to the short term of the Claimant’s contract (i.e., 6 months only), and
the slow bureaucracy of North Macedonia, hence there was no negligence on the side of
the club.
21. In continuation, the Respondent denied any involvement with regard to the alleged
vandalization of the Claimant’s car, also objecting to the evidence provided by the
Claimant since it was not possible to determine with certainty that the car showed in the
picture was effectively belonging to him.
22. Moreover, the Respondent recalled facts allegedly occurred during the Claimant’ stay in
North Macedonia, and reported that, on 10 April 2022, in occasion of the match against
the club Makedonija Gjorce Petrov, the Claimant was substituted within the first 15 minutes
of the game by the coach and, during the halftime, inside the dressing room, there was a
conflict between the Claimant and his teammates, namely because the Claimant
physically attacked the coach. Since then, the Respondent stated that the Claimant did
not come to training anymore – and even before that date, he failed to attend training
sessions on several occasions without reason or approval.
23. Moving to the salaries claimed as outstanding, the Respondent argued that the most part
of them were stipulated under the annex to the contract, over which FIFA would have no
jurisdiction because art. 5 of the mentioned document expressly foresees the
competence of the Basic Court of Stip to hear about the matter.
24. Therefore, the Respondent requested that the demands of the Claimant related to the
annexe shall be deemed as inadmissible by FIFA.
25. Nevertheless, the Respondent presented also his allegations with regard to the substance
of the disputed sums.
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26. In this respect, the Respondent held that, pursuant to the North Macedonian law, it would
have not been possible to pay the Claimant’ salary to a bank account that is not national.
27. In this context, the Respondent alleged that the Claimant has never provided the club
with his local banking coordinates or that probably he has never opened any bank
account in North Macedonia, hence it was practically impossible for the Respondent to
pay the Claimant’ salary in a legit manner.
28. Moreover, the Respondent insisted that the Claimant held a terrible misconduct against
his teammates and coach, namely by abandoning his work position even before sending
the letter of default dated 2 May 2022.
29. Accordingly, in the Respondent’s view, the Claimant did not have just cause to terminate
the contract on 22 May 2022.
30. Subsidiarily, the Respondent held that the Claimant was entitled to a monthly salary of
EUR 300 only under the contract, which is the sole document over which FIFA shall be
competent to adjudicate.
31. In this respect, the Respondent stated that, having the club paid all the expenses related
to the accommodation and food of the Claimant, only the basic monthly salaries
remained unpaid by the Respondent, namely those due between 15 January 2022 and 14
June 2022, for a total of EUR 1,277, whereas the amount of compensation to be granted
should be limited to EUR 227 (i.e., pro-rata salary of May 2022 and pro-rata salary of June
2022).
32. For the same reason, the Respondent concluded that in case the FIFA Dispute Resolution
Chamber (DRC) considered to be competent to hear also about the annexe, having the
latter a shorter duration than the contract itself (i.e., 1 February 2022 until 31 May 2022),
the overall amount awardable as outstanding amounted to EUR 9,438 and the total
compensation EUR 866.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether it was competent to deal with the case at hand.
In this respect, he took note that the present matter was presented to FIFA on 7 July 2022
and submitted for decision on 7 December 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.
34. 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 Dispute
Resolution Chamber is, in principle, competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Croatian player and a North Macedonian club.
35. However, the Single Judge acknowledged that the Respondent contested the competence
of FIFA’s deciding bodies as with regard to the part of the claim related to the sums due
under the annexe to the contract.
36. In particular, the Single Judge noted that according to the Respondent, and based on
article 5 of the annexe, the local Basic Court of Stip should be competent to hear the
dispute arisen in connection with it.
37. Taking into account all the above, the Single Judge emphasised that in accordance with
art. 22 par. 1 of the Regulations, FIFA is competent to hear employment-related disputes
between a player and a club with an international dimension “without prejudice to the right
of any player (…) or club to seek redress before a civil court for employment related disputes”.
38. Notwithstanding the above, the Single Judge took note of article 28 of the contract by
means of which the Claimant and the Respondent had unambiguously and exclusively
decided that “FIFA DRC would be competent to decide upon all possible disputes arising in
connection with the contract”.
39. In this respect, the Single Judged wished to recall a principle largely recognized under the
jurisprudence of the Football Tribunal, according to which a number of concurrent
contracts shall be considered collectively when the same contracts involve
interdependent arrangements that form part of a single and composite relationship.
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40. Indeed, the Single Judge considered that in the present case it appears undoubted that
the annexe is strictly connected to the contract, either taking into account its wording
(“annexe to the contract”) or assessing that it concerns the same employment relationship
and makes direct reference to the contract itself. Furthermore, the Single Judge observed
from the submissions of the parties that the same Respondent is seemingly considering
terminated both agreements on the same date, i.e., 22 May 2022.
41. On account of all the above, the Single established that the contract and its annexe are
unequivocally and strictly interdependent, hence the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected, and that the Single
Judge of the Dispute Resolution Chamber is competent, on the basis of art. 22 par. 1 lit.
b) of the Regulations, to consider the present matter as to the substance.
42. Subsequently, the Single Judge 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 07 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
43. 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).
c. Merits of the dispute
44. The 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
45. 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 cause of the
termination of the contract.
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46. In particular, the Single Judge noted that, according to the Claimant, the termination
occurred with just cause, allegedly because the Respondent failed to comply with several
of its contractual obligations, whereas the club argued that it could not be held financially
liable towards the player because the latter failed to provide a valid bank account where
to receive his monies and due to the North Macedonian law the absence of a valid working
permit for the player would prevent the club from paying him.
47. Furthermore, the Respondent alleged the Claimant’s misconduct as further reason
justifying the non-payment of the relevant outstanding amounts, in particular by
assaulting his teammates and absenting from several training sessions without a valid
reason.
48. Notwithstanding the above, the Single Judge observed that the Respondent did not
provide any evidence of the alleged facts, except for witness statements which, however,
appear to be exclusively internal to the club. Hence, in the Single Judge’s opinion, their
reliability as evidence is questionable and does not reach the extent of comfortable
satisfaction to which is calibrated the Single Judge’s standard of proof.
49. Accordingly, the Single Judge determined that the files produced by the Respondent
cannot be considered as decisive and conclusive documentary evidence, on the basis of
which it could be established that the club complied with its financial obligations as per
the contract in line with article 13 par. 5 of the Procedural Rules.
50. Furthermore, the Single Judge noted that the Respondent failed to contest the existence
of overdue payables claimed by the player, nor it disputed their quantum, which on the
contrary was properly substantiated by the Claimant.
51. As a consequence, the Single Judge concluded that pursuant to the principle of pacta sunt
servanda the Respondent shall be held financially liable towards the Claimant for the
payment of all his salaries as from January 2022 until the termination of the contract.
52. Similarly, the Single Judge observed that the Claimant did not receive his housing
allowance for the period defined under the annex, in spite of having been expressly
stipulated by the parties in the specific value of EUR 150 per month.
53. Accordingly, the Single Judge established that also the housing allowance shall be deemed
as outstanding based on the annex to the employment contract.
54. As for what concerns the respective due dates for each payment, the Single Judge
observed that the contract foresees the relevant payments to be realized on the 15th day
of each following month, whereas the annex does not contradict it, hence the Single Judge
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concluded that also the amounts stipulated under the annex would be due on the same
date indicated by the contract.
55. In light of all the above considerations, the Single Judge acknowledged that, based on the
evidence presented by the parties, at the moment of the termination several amounts
had in fact remained unpaid by the Respondent.
56. Therefore, in consideration of the significant consistency of the outstanding sums
abovementioned, the Single Judge ascertained that the formal pre-requisites of art. 14bis
of the Regulations had been fulfilled and the Claimant had just cause to terminate the
Contract on 22 May 2022.
ii. Consequences
57. 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.
58. The Single Judge calculated that the outstanding remuneration at the time of termination,
corresponded to the following amounts:
EUR 174 as salary due under the contract for January 2022 (calculated pro-rata
from 14 January 2022).
EUR 300 as salary due under the contract for February 2022.
EUR 2,200 as salary due for February 2022 under the annex.
EUR 150 as housing allowance for the month of February 2022.
EUR 300 as salary due under the contract for March 2022.
EUR 2,200 as salary due for March 2022 under the annex.
EUR 150 as housing allowance for the month of March 2022.
EUR 300 as salary due under the contract for April 2022.
EUR 2,200 as salary due for April 2022 under the annex.
EUR 150 as housing allowance for the month of April 2022.
59. 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 8,124.
60. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Football Tribunal 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.
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61. 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 Single
Judge 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.
62. 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.
63. 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.
64. 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 2,790 (i.e., the residual value of the
contract) serves as the basis for the determination of the amount of compensation for
breach of contract.
65. 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 Single Judge 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.
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66. In this context, the Single Judge acknowledged that the player remained unemployed
during the relevant period after the termination of the employment contract, hence he
was not able to mitigate the suffered damage.
67. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the club must pay the
amount of EUR 2,790 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
68. Lastly, taking into consideration the player’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 07 July 2022 until the date of effective payment.
iii. Compliance with monetary decisions
69. 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.
70. 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.
71. 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.
72. 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.
73. 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.
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d. Costs
74. 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.
75. 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.
76. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Diego Zivulic, is accepted.
2.
The Respondent, FK Bregalnica 2008 AD, has to pay to the Claimant, the following amount:
EUR 174 as outstanding remuneration plus 5% interest p.a. as from 15 February 2022
until the date of effective payment;
EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 15 March 2022
until the date of effective payment;
EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 15 April 2022
until the date of effective payment;
EUR 2,500 as outstanding remuneration plus 5% interest p.a. as from 15 May 2022
until the date of effective payment;
EUR 150 as housing allowance plus 5% interest p.a. as from 15 March 2022 until the
date of effective payment;
EUR 150 as housing allowance plus 5% interest p.a. as from 15 April 2022 until the date
of effective payment;
EUR 150 as housing allowance plus 5% interest p.a. as from 15 May 2022 until the date
of effective payment;
EUR 2,790 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 07 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 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.
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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 article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification
of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the
request of a party within five days of the notification of the motivated decision, to publish
an anonymised or a redacted version (cf. article 17 of the Procedural Rules).
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