FIFA - Decisión disputa Friesenbichler 21092023

REF. FPSD-10687

Decision of the Dispute Resolution Chamber passed on 21 September 2023 regarding an employment-related dispute concerning the player Kevin Friesenbichler BY: Frans de Weger (the Netherlands), Chairperson Michele Colucci (Italy), member Dana Mohamed Al Noaimi (Qatar), member

CLAIMANT:

Kevin Friesenbichler, Austria Represented by VdF

RESPONDENT:

Lechia Gdańsk S.A., Poland pg. 2

REF. FPSD-10687

I. Facts of the case

1. On 12 January 2023, the Austrian player Kevin Friesenbichler (hereinafter: Claimant or player) and the Polish club Lechia Gdańsk S.A. (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract) valid as from the date of signature until 30 June 2025.

2. According to the contract, the Respondent undertook to pay the Claimant the following remuneration: - “for the season 2022/2023: PLN 258,194 plus VAT of 23% which is a gross amount of PLN 317,578.62, payable in 5 equal monthly instalments of PLN 46,000 plus VAT of 23% which is a gross amount of PLN 56,580 for months February 2023 – June 2023 and one instalment for January 2023 in the amount of PLN 28,194 plus VAT of 23% which is a gross amount of PLN 34,678.62; - for the season 2023/2024: PLN 579,600 plus VAT of 23% which is a gross amount of PLN 712,908, payable in equal monthly instalments of PLN 48,300 plus VAT of 23% which is a

gross amount of PLN 59,409; - for the season 2024/2025: PLN 607,200 plus VAT of 23% which is a gross amount of PLN 746,856, payable in equal monthly instalments of PLN 50,600. Plus VAT of 23% which is a gross amount of PLN 62,238” (emphasis added)

3. Furthermore, the Contract stipulates under art. 15 as follows: “All disputes concerning proprietary and non-proprietary rights, which may be subject to settlement, arising out of or in connection with conclusion, validity, performance or termination of the Contract, the parties shall exclusively submit for resolution of Pilkarski Sad Polubowny

PZPN.”

4. On 17 April 2023, the Claimant put the Respondent in default and requested payment of PLN 120,160, setting a 15 days’ time limit in order to remedy the default.

5. On 16 May 2023, the Claimant once again put the Respondent in default of payment, requesting the aforementioned amounts as well as the salary for May 2023, setting a further 15 day deadline.

6. On 1 June 2023, the Claimant unilaterally terminated the Contract.

7. On 16 June 2023, the Claimant signed a new contract with Austrian club DSV Leoben valid as from 22 June 2023 until 31 May 2025.

8. In accordance with the new contract, the Claimant is entitled to receive a total remuneration of EUR 134,400. pg. 3

REF. FPSD-10687

II. Proceedings before FIFA

12. On 23 June 2023, the Claimant lodged a claim against the Respondent in front of FIFA. A short summary of the parties’ submissions is contained below.

a. Position of the Claimant

13. On 23 June 2023, the Claimant lodged a claim against the Respondent in front of FIFA and

requested outstanding remuneration and compensation as a result of the Respondent’s alleged unlawful breach of contract.

14. In his claim, the player argued that he terminated the Contract with just cause due to overdue payables. He alleged having been owed three monthly salaries – March 2023 until May 2023 – and not having received these amounts despite having put the Respondent in default and granted 15 days.

15. Thus, the Claimant formulated the following request for relief: - PLN 169,740 as outstanding remuneration; - EUR 211,411.71 as compensation; - Additional compensation exceeding three monthly salaries; - Interest as from the due dates.

b. Reply of the Respondent

16. The Respondent firstly contested the jurisdiction of FIFA to deal with the present claim. In accordance with art. 15 of the Contract, the NDRC of Poland is exclusively competent to deal with the present claim.

17. The Respondent outlined that the PSP, whilst having a separate office from the Polish Football Federation (PZPN), thus ensuring “independence” therefrom, operates under its auspices and legal framework.

18. The Respondent further briefly made reference to the legal framework of the PZPN to argue that the requirement of independence is met in the case at hand.

19. Beyond this, the Respondent only shortly argued that the Claimant signed a new contract and that mitigation should be taken into account in the present case. The Respondent explicitly acknowledged that the Contract was terminated with just cause. pg. 4

REF. FPSD-10687

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

34. 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 23 June 2023 and submitted

for decision on 21 September 2023. Taking into account the wording of art. 34 of the May 2023 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.

35. 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 (May 2023 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 player from Austria and a club from Poland.

36. Notwithstanding, the Chamber took note of the fact that the Respondent contested the jurisdiction of FIFA to deal with the present claim, in accordance with art. 15 of the Contract; more specifically, the Respondent contended that pursuant to said provision, the present dispute should fall under the exclusive jurisdiction of the judicial bodies of PZPN.

37. The Chamber recalled the wording of art. 22 par. 1 lit. b), pursuant to which parties may explicitly opt out of submitting a claim to the jurisdiction of FIFA’s decision making bodies, and instead to a National Dispute Resolution Chamber (NDRC), provided that there is a clear and exclusive jurisdiction clause in favour of said body, and the latter satisfies the criteria of equal treatment and the right to a fair trial.

38. Having said this, the Chamber revisited the wording of art. 15, which states as follows: “All disputes concerning proprietary and non-proprietary rights, which may be subject to settlement, arising out of or in connection with conclusion, validity, performance or termination of the Contract, the parties shall exclusively submit for resolution of Pilkarski Sad Polubowny

PZPN.”

39. In respect of said provision, after a careful analysis, the Chamber deemed that it consisted of a clear and explicit jurisdiction clause in favour of the decision making bodies of PZPN

(hereinafter: the Polish NDRC).

40. Having established the foregoing, the Chamber turned its attention to the further prerequisites for establishing the competence of an NDRC. The Chamber namely referred to principle of equal representation of players and clubs and underlined that this principle is pg. 5

REF. FPSD-10687 one of the very fundamental elements to be fulfilled, in order for a national dispute resolution chamber to be recognised as such. Indeed, this prerequisite is mentioned in the Regulations on the Status and Transfer of Players, in the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations, which illustrates the aforementioned principle as follows: “The NDRC shall be composed of the following members, who shall serve a four-year renewable mandate: a) a chairman and a deputy chairman chosen by consensus by the player and club representatives (…); b) between three and ten player representatives who are elected or appointed either on proposal of the players’ associations affiliated to FIFPro, or, where no such associations exist, on the basis of a selection process agreed by FIFA and FIFPro; c) between three and ten club representatives (…).” In this respect, the FIFA Circular no. 1010 states the following: “The parties must have equal influence over the appointment of arbitrators. This means for example that every party shall have the right to appoint an arbitrator and the two appointed arbitrators appoint the chairman of the arbitration tribunal (…). Where arbitrators are to be selected from a predetermined list, every interest group that is represented must be able to exercise equal influence over the compilation of the arbitrator list”.

41. With the above in mind, the Chamber considered the evidence on file and observed that the Respondent provided no clear argumentation as to how the Polish NDRC complies with

the requirements of Circular 1010 beyond a generic statement to this effect. In particular, the Chamber deemed that the Respondent made no clear reference concerning the PZPN Regulations and any potential provisions therein as to the pool of members/arbitrators, whether or not they are directly recommended by players’ unions or club representatives, and whether or not they are appointed equitably in each separate proceeding.

42. Consequently, the Chamber concluded that the Respondent’s line of argument concerning the jurisdiction of the Polish NDRC should be rejected.

43. 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 (May 2023 edition), and considering that the present claim was lodged on 23 June 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

44. 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). pg. 6

REF. FPSD-10687

c. Merits of the dispute

45. Its competence and the applicable regulations having been established, the Chamber entered into the merits of the dispute. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which

it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

46. The Chamber took note of the fact that the basis of the dispute revolved around the nonpayment of certain financial obligations under the Contract, and the alleged lawfulness of the contractual termination resulting therefrom.

47. In this respect, the Chamber understood that its task was to determine whether, based on the parties’ submissions and the evidence on file, the claimed amounts had indeed remained outstanding, and consequently whether or not the Claimant had a just cause to terminate the Contract prematurely.

48. The Chamber revisited the parties’ respective submissions, firstly the Claimant’s, who argued that the Respondent failed to remit three monthly salaries between March 2023 and May 2023, despite having been put in default formally and granted a deadline of 15 days to remit the amounts.

49. Equally, the Chamber recalled that the Respondent acknowledged the non-payment of the above amounts, expressly stating that the contractual termination had occurred with just cause by the Claimant. The only request the Respondent had made as to the merits was that the Claimant’s new contract would be considered for the sake of mitigation of any applicable compensation.

50. Indeed, in addition to the Respondent’s admission as to the non-compliance with the financial terms of the Contract, the Chamber was able to establish that the formal requirements of art. 14bis had been met in the case at hand; that is, the Claimant had been owed in excess of two monthly salaries, as well as having put the Respondent in default of payment and granted a deadline exceeding two monthly salaries.

51. Therefore, in light of such conclusion, the Chamber held that the Claimant had a just cause to terminate the Contract. pg. 7

REF. FPSD-10687 ii. Consequences

52. The Chamber proceeded to consider the consequences of such unlawful breach of the Contract by the Respondent.

53. As to outstanding remuneration, the Chamber noted that the Claimant had been owed the

salaries pertaining to the months of March 2023, April 2023 and May 2023, in the amount of PLN 56,580 each.

54. Therefore, in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Claimant is entitled to receive outstanding remuneration in the amount of PLN 169,740.

55. Furthermore, in line with the request of the Claimant and the standard practice of the Chamber, the latter decided to award the Claimant interest of 5% p.a. as from the following dates until the date of effective payment: - On the amount of PLN 56,580 as from 16 April 2023; - On the amount of PLN 56,580 as from 16 May 2023; - On the amount of PLN 56,580 as from 16 June 2023.

56. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

57. In application of the relevant provision, the Chamber held that it first of all had to clarify 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.

58. In this regard, the Chamber established that no such compensation clause was included in

the employment contract at the basis of the matter at stake.

59. As a consequence, 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. The Chamber recalled that said provision pg. 8

REF. FPSD-10687 provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

60. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the Contract until its term. Consequently, the Chamber concluded that the amount of PLN 1,579,408.62

(i.e. the residual value of the Contract) serves as the basis for the determination of compensation for breach of contract.

61. In continuation, the Chamber verified 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 Chamber 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.

62. Indeed, the player found employment with the New Club. Under the New Contract, the player was entitled to receive a total remuneration of EUR 134,400 during the overlapping period, or the equivalent of PLN 596,450.

63. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation, should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Chamber confirmed that the contract

termination took place due to said reason, i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation.

64. In this respect, the Chamber decided to award the amount of additional compensation of PLN 169,740 (or three monthly salaries of PLN 56,580 each).

65. Consequently, on account of all the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the player would have been entitled to an amount of PLN 1,152,698.62 in terms of compensation (i.e. PLN 1,579,408.62 minus PLN 596,450 plus PLN 169,740).

66. However, the Chamber recalled the general legal principle of ne iudex eat ultra petita partium, and observed that the request of relief of the player, in terms of compensation, had been limited to a total amount of EUR 254,008.18, or PLN 1,128,497.08 (EUR 211,411.71 plus three months of additional compensation, resulting in PLN 169,740 or EUR 42,676.47).

67. Consequently, the maximum amount of compensation which the player could be granted so as not to contravene ne ultra petita, was PLN 1,128,497.08. pg. 9

REF. FPSD-10687

68. The Chamber thus decided that the club must pay the player PLN 1,128,497.08 as compensation, which was to be considered a reasonable and justified amount for the breach of contract in the present matter.

69. Lastly, taking into account the player’s request and the constant practice of the Chamber in this regard, the latter decided to award the player interest on said compensation at the rate of 5% p.a. as from 1 June 2023 until the date of effective payment. iii. Execution of monetary decisions

70. 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.

71. In this regard, the Chamber 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.

72. Therefore, bearing in mind the above, the Chamber 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 creditor, 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 club in accordance with art. 24 par. 2,4 and 7 of the Regulations.

73. 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.

74. The Chamber 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

75. 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. pg. 10

REF. FPSD-10687

76. 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.

77. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 11

REF. FPSD-10687

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Kevin Friesenbichler, is partially accepted.

2. The Respondent, Lechia Gdańsk S.A., must pay to the Claimant the following amounts: - PLN 169,740 as outstanding remuneration plus interest p.a. as follows: - 5% interest p.a. over the amount of PLN 56,580 as from 16 April 2023 until the date of effective payment; - 5% interest p.a. over the amount of PLN 56,580 as from 16 May 2023 until the date of effective payment; - 5% interest p.a. over the amount of PLN 56,580 as from 16 June 2023 until the date of effective payment. - PLN 1,128,497.08 as compensation for breach of contract without just cause plus 5% interest p.a. as from 1 June 2023 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not

made by the end of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players. pg. 12

REF. FPSD-10687

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 13

REF. FPSD-10687

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 Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 14