Labour Disputes
Texto da decisão
REF FPSD-7348
Decision of the
Dispute Resolution Chamber
passed on 26 October 2022
regarding an employment-related dispute concerning the player Lorenco
Šimić
BY:
Alejandro ATILIO TARABORELLI (Argentina)
CLAIMANT:
Lorenco Šimić, Croatia
Represented by Kasalo & Raic
RESPONDENT:
Zaglebie Lubin, Poland
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I.
Facts of the case
1.
On 12 August 2020, the Croatian player, Lorenco Šimić (hereinafter: the Claimant or the
player), and the Polish club, Zaglebie Lubin (hereinafter: the Respondent or the Club) signed
an employment agreement valid until 30 June 2022 (hereinafter: the contract).
2.
Under the contract, the Respondent undertook to pay to the Claimant inter alia:
a.
a “monthly basic salary” of EUR 18,300 gross, payable by “the 10th of the following
month” between 1 July 2021 and 30 June 2022; and
b. EUR 20,000 net payable by 10 September 2021 in case the club was ranked in
the top 8 of the local league during the season 2020/2021.
3.
On 3 January 2022, the Claimant and the Respondent concluded termination agreement,
thereby terminating the contract (hereinafter: termination agreement) as of 31 December
2021.
4.
Under the termination agreement, the Respondent undertook to pay to the Claimant the
“basic remuneration due for the period until 31.12.2021, under the terms provided for in the
contract”.
5.
The termination agreement further reads that “player declares that this agreement and the
payment of wages, referred to in paragraph 2 section 1A of this agreement shall exhaust all
claims by the player against the club arising or likely to arise in the future from and in
connection with the contract (including the payment of cash benefits specified in paragraph 9
section 3 points 1 and 2)”.
6.
Clause 4 of the termination agreement reads as follows:
“Any disputes arising or likely to arise in connection with the conclusion, performance or
consequences of failure to comply with this Agreement shall be resolved amicably by the
Parties, and if no agreement is reached, they shall be resolved by the Football Arbitration
Court of the Polish Football Association.”
7.
By correspondence dated 11 April 2022, the Claimant put the Respondent in default of
payment of EUR 23,975.09, broken down as follows, setting a 10 days’ time limit in order
to remedy the default:
a. Bonus of EUR 20,000 net for finishing in top 8 of the local league in the season
2020/2021; and
b. EUR 3,975.09 as balance of December salary.
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8.
On 5 September 2022, the Claimant lodged a claim against the Respondent in front of
FIFA asking that the Respondent be ordered to pay to him overdue payables in the
amount of 23,975.09, broken down as follows:
a. Bonus of EUR 20,000 net for finishing in top 8 of the local league in the season
2020/2021; and
b. EUR 3,975.09 as balance of December salary.
9.
The Claimant further asks to be awarded “default interest of 5% per year, and all relevant
taxes and contributions, if any, on top of all above specified net amounts” calculated from
their respective due dates until the date of payment.
10. The player claimed he is entitled to both amounts on account of the fact that (a) the club
cannot deduct any amounts regarding tax obligations insofar as he is the principal
responsible for declaring his taxes and paying them accordingly, and (b) there is no reason
why the bonus of EUR 20,000 could not be paid since it was clearly stated in the
termination agreement even if someone would argued that the player had waived this
amount, he cannot waive remuneration for work already performed.
11. In reply to the claim, the Respondent objected to the competence of the DRC and stated
that the National Dispute Resolution Chamber (NDRC) of Poland is competent to hear the
dispute based on the termination agreement. However, the Respondent filed no evidence
regarding the composition of said NDRC.
12. As to the substance, the club in summary held that:
“The person initating termination of cooperation between the Parties was Lorenco Simic.
The intention of the Club was to continue performance of the Contract, but agreed to the
Player's request for earlier termination, provided that the Player resigned from the bonus
in the amount of EUR 20.000 net set forth in § 9 sec. 3 of the Contract. The Player was fully
aware of this, as evidenced by the provisions of § 2 sec. 3 of the Agreement. The waiver of
the additional bonus was also lawful, within the contracting freedom of the parties to the
Contract.
The issue of remuneration in the amount of EUR 3,975.09 net has never been subject to any
unjustified reduction of the Player's basic salary by the Club, and constituted the
performance by the Club's of tax obligations under § 8 sec. 5 of the Contract and the Polish
tax law provisions”
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II.
Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge (hereinafter also referred to as Single Judge) analysed whether
he was competent to deal with the case at hand. In this respect, he took note that the
present matter was presented to FIFA on 5 September 2022 and submitted for decision
on 26 October 2022. Taking into account the wording of art. 34 of the June 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.
14. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (RSTP) (July
2022 edition), he 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 Polish club.
15. The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the NDRC of Poland alleging that the latter is competent to
deal with any disputes deriving from the termination agreement, in accordance with its
clause 4.
16. Taking into account all the above, the Single Judge emphasised that in accordance with
art. 22 par. 1 lit. b) of the RSTP, FIFA is, in principle, competent to hear an employmentrelated dispute between a club and a player of an international dimension. Nevertheless,
the parties may explicitly opt in writing for such dispute to be decided by an independent
arbitration tribunal that has been established at national level within the framework of
the association and/or a collective bargaining agreement. Any such arbitration clause
must be included either directly in the contract or in a collective bargaining agreement
applicable on the parties. The independent national arbitration tribunal must guarantee
fair proceedings and respect the principle of equal representation of players and clubs.
Equally, the Single Judge referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January
2008.
17. In this respect, the Single Judge noted that the Respondent failed to provide any
documentary evidence which could prove that the national arbitration bodies of the
Polish FA meets the requirements established in art. 22 par. 1 lit. b) of the RSTP, detailed
in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations. On account
of the above, and referring to the principle of burden of proof contained in art. 13 par. 5
of the Procedural Rules, the Single Judge established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter must be rejected, and
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FIFA is competent, on the basis of art. 22 par. 1 lit. b) of the RSTP, to consider the present
matter as to the substance.
18. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the RSTP (July 2022 edition), and considering that the present claim was lodged
on 5 September 2022, the cited edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
19. 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, he 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
20. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
he 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
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the issues to be tackled in this case are (a) whether
the player had waved the bonus of EUR 20,000 in accordance with the termination
agreement; and (b) whether the club validly deducted the amounts payable to the player
because of tax obligations.
22. With regards to the former, the Single Judge noted that the termination agreement states
the player would be entitled to his “basic remuneration”. In this respect, the club argued
that the bonus does not constitute the basic remuneration of the player, which would be
comprised solely of his salary. Such reasoning could not be followed by the Single Judge
however because the termination agreement clearly states the player would be entitled
to his “remuneration” and not only his “salary”. If the parties wished to limit the amounts
the player would receive, they should have stated clearly so, but since they did not the
wording of the contract must be upheld in line wit the principle pacta sund servanda. The
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player is therefore entitled to his bonus of EUR 20,000 with interest as from 1 February
2022 since there is no specific due date listed in the termination agreement.
23. As to the balance of the salary of December 2021, the Single Judge was firmly of the
opinion that the club could not discharge its burden of proof to demonstrate why and
how the deductions of the salary were made, since no substantial and corroborating
evidence was advanced to this end. Accordingly, the Single Judge decided to uphold this
part of the claim of the player and award the amount sought together with interests as
from 1 February 2022.
24. The Single Judge clarified that these amounts should be awarded net per the contract
and, more in particular, because the club admits regarding the balance of the unpaid
salary that this was deducted for tax purposes, so the taxation could not apply twice.
ii. Compliance with monetary decisions
25. 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.
26. 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.
27. Therefore, bearing in mind the above, the Singe 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.
28. 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.
29. The Singe 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
30. 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, he decided that no procedural costs were to be
imposed on the parties. Likewise and for the sake of completeness, he recalled the
contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural
compensation shall be awarded in these proceedings.
31. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Lorenco Šimić, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Zagleblie Lubin, has to pay to the Claimant EUR 23,975.09 net as
outstanding remuneration plus 5% interest p.a. as from 1 February 2022 until the date of
effective payment.
4.
Any further claims of the Claimant 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 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 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
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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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