FIFA - Decisión disputa Jovanovic 01062023

REF. FPSD-9113

Decision of the Dispute Resolution Chamber passed on 1 June 2023 regarding an employment-related dispute concerning the player Lazar Jovanovic BY: Frans de Weger (the Netherlands), Chairperson Johan van Gaalen (South Africa), member Calum Beattie (Scotland), member

CLAIMANT:

Lazar Jovanovic, Serbia Represented by 14 Sports Law

RESPONDENT:

Maccabi Reine, Israel Represented by Mr Boaz Sity pg. 2

REF. FPSD-9113

I. Facts of the case

1. On 15 August 2022, the Serbian player, Lazar Jovanovic (hereinafter the player or the Claimant), and the Israeli club, Maccabi Reine (hereinafter the club or the Respondent) concluded an employment contract (hereinafter the contract), valid as from 15 August 202 until 31 May 2023.

2. As per clauses 6 and 9 of the contract, the player was entitled to the following benefits: − Israeli New Shekel (NIS) 34,000 as sign on fee, payable “after the reception of the player’s ITC/TMS in the club and medical examination upon arrival (…)”; − “10 monthly wage payments of (including convalescence pay that is due to the player under the extension order in the amount of [void]. I must be mentioned on the pay slip that the wage includes convalescence pay. In the event that the amounts of the convalescence pay pursuant to the extension order are revised, the abovementioned total monthly wage will be updated accordingly, in relation to part of the total monthly wage which reflects the convalescence pay included in the wage. (9,500 Euro)” [amount handwritten]. The monthly wage is payable “according to law (up to (including)) 9th of following month”; A handwritten note on the side of the page, contained both in the version of the contract sent by the player as in that sent by the club, reads: “9,500

Euro net for month = [illegible] 32,395”; − “For European qualification the player will be entitled for subject to the player participation in 65% of the games in the Cup/League: 34,000 NIS”; − “A fully furnished apartment from the club in Reineh, or 4,000 NIS for apartment that the player choice”; − Flight tickets for the player from Serbia to Israel (round trip); − “5,000 Euro = 17,000 NIS net bonus for 7 goals/assists in the league [unclear handwriting] matches without penalties”.

3. Clause 6 of the contract also stipulates in fine that “All the above payments are gross payments from which the club shall deduct income tax and national insurance as set down by law”.

4. Clause 7. a. of the contract stipulates that “The Parties hereby agree that differences of opinion between the Club and Player or between the Player and Club, in everything relating to the provisions of this Agreement, shall be decided by an arbitrator, who will be appointed by virtue of the of the Association’s Arbitration Institute Codex. b. The arbitration will be held in accordance with the derivates of the Association’s Arbitration Institute Codex.”

5. On 13 November 2022, the player wrote to the club, via his agent, explaining he had been informed that the club was not certain whether it wished to retain his services, and was thus considering his transfer to a new club. The player further explains having received from the club earlier that day copies of 3 documents backdated September and pg. 3

REF. FPSD-9113

October 2022, which he should sign in order to be allowed to travel on holidays. The player refused to do so. He claims that also on 13 November 2022, the entire first team – but him – was allowed to travel on holidays for a week. He would remain in Israel and train alone every day for 1 week, in several different training sites, all of which about 45 minutes away

from where he was based, twice a day, at 08:00 a.m. and 05:00 p.m.. The player understands the club was trying to force him to accept certain “unreasonable situations” or make “the employment relationship unsteady”. Finally, he states he wishes to stay in the club and urges it to “withdraw from all actions of pressure against [him] with immediate effects”. In particular, he requests the club to grant him, by no later than 14 November 2022, an authorization to travel, as the rest of the team.

6. On 16 November 2022, the player sends the club a second communication, where he refers to the content of his previous letter. He understands the situation the club has put him in is “unreasonable and unjustifiable, and clearly consubstantiate serious breaches by the Club of its obligations towards the Player”. Thus, he reiterates his requests for: “a) the Club to stop and withdraw from all such unreasonable and unjustifiable actions with immediate effects; b) the Club to authorize the Player to travel and to grant one (1) week of leave / holiday – i.e. same treatment as all other players in the squad of the First Football Team. If the Club fails to address the above, the Player will have no other alternative but to communicate with relevant authorities and entities”.

7. On 18 November 2022, the player replied to the club’s letter of 18 November 2022 (note: not provided by any of the parties), denying his alleged absence to training on 17 November 2022. He claims he is being punished by the club for having refused to sign 3 backdated documents presented to him by the club. Specifically, he explains that “Each day and for each separate training session, the Club sent to the Player specific instructions with

(i) Time and (ii) Location of the training. However, the Player did not receive any notification with Time and Location to train in the morning of 17 November. In fact, the Club did notify the Player

to train in the evening of 17 November, with time and location. And the Player did appear to train – as always”. Furthermore, he states having been instructed by the club to “to train alone on the following days: 14, 15, 16. 17 (only in the evening), and 18 November 2022. And today, the Club instructed the Player to train on 19 November in the morning. These training sessions happened in the following conditions: (i) alone with no other players; (ii) in different locations, including not in proper training grounds of the Club and also in public places; (iii) long distances between the different locations, as distant from the home town; (iv) different times; (v) no Fitness Coach present; and (vi) no Doctor and no Physio present”. He rejects the club’s allegations that the individual training was aimed at improving his physical condition, pointing out that no fitness coach, doctor or physiotherapist was present. He also points out that the club did not reply to his letters of 13 and 16 November 2022, and confirms he will be present at the meeting arranged by the club on 19 November 2022. Finally, the requests “a) the Club to stop and withdraw from all unreasonable and unjustifiable actions against the Player with immediate effects; b) the Club to cancel and withdraw the letter of 18 November in relation to an alleged unauthorized absence from training on 17 November by the Player; c) the Club to authorize the Player to travel and to grant one (1) week of leave / holiday pg. 4 REF. FPSD-9113 – i.e. same treatment as all other players in the squad of the First Football Team; d) the Club to maintain a copy of this letter, as well as the letters that the Player sent on 13 and 16 November, in the personal file of the Player.”

8. On 8 January 2023, the player’s new legal representative wrote to the club, pointing out its

“severe and abusive” conduct towards the player. In particular, he pointed out that the club suggested to find the player a new club, demonstrating that it wished to prematurely terminate his contract. He also points out that the club tried to force the player to sign 3 backdated documents, containing unproven facts, which allegedly took player in September and October 2022. The player rejects the content of such documents and refused to sign them, which led the club to the abusive behaviour with a view to force the termination of the contract. The player’s lawyer adds that “the Club organized a training camp in Cyprus for the entire First Team Squad from 28 November to 2 December 2022, with the exception of the Player who was forced to remain in Israel in order to attend to the separate and individual training sessions, and (ii) upon the First Team Squad’s return, the Player was prevented from training with his teammates, thus being forced to remain attending to the separate training sessions until the present date”. He denies the club’s allegation that the player is injured and therefore in need of individual training. He followed the club’s instructions to train alone for the past months, despite his requests to be reintegrated. The club also stopped paying the player’s salaries and verbally terminated his contract on 7 January 2023. In view of the foregoing, the player refers to art. 14 of the RSTP and requests “(a) that the Club, within the next 24 (twenty-four) hours, immediately reinstate the Player to the Club’s First Team Squad activities such as training sessions and matches; and (b) that the Club immediately cease with all of its abusive actions towards the Player. Should the Club fail to complete and discharge all the above requests as a matter of urgency, the Player reserves the right to immediately terminate the Employment Agreement without any further notification, and to initiate legal action with the purpose of securing the appropriate compensation as per the relevant regulations. Finally, if the verbal communication of termination made by the President of the Club yesterday (i.e. 7 January 2023), is indeed accurate we kindly request that the Club

sends an official letter in writing confirming such termination”.

9. On 13 January 2023, the player once again contacted the club, via his legal representative, acknowledging that the club failed to reply to his previous letter and to comply with the requests therein contained. He points out that according to clause 6 of the contract he was entitled to a total remuneration of EUR 105,000 net, allegedly corresponding to EUR 10,000 as sign-on fee and 10 monthly instalments of EUR 9,500, payable from 9 September 2022 to 9 June 2023. The club however failed to pay him his salaries for October, November and December 2022, corresponding to EUR 28,500 net in total. The player puts the club in default of payment of the aforementioned salaries, granting it a deadline of 15 days to remedy the default. “Should the Club fail to comply with these terms within the stipulated time frame, Mr. Jovanovic reserves the right to immediately terminate the Employment Agreement without any further notification, and to immediately initiate legal action (…)”. pg. 5

REF. FPSD-9113

10. On 16 January 2023, the club wrote to the player denying all accusations of abusive behaviour and claiming the player was acting unprofessionally, by leaving the bench, missing practices and ignoring the fact that he was deemed injured and unfit to play for a “prolonged period”. As such injury was work related, the club urged the player to provide the necessary documentation (not specified) to allow him to receive the injury allowance.

Finally, the club reminded the player that his salaries for October and November 2022 are waiting to be collected at the club.

11. On 18 January 2023, the player once again wrote to the club, referring to his previous letters of 8 and 13 January 2023, as well as to the club’s letter of 16 January 2023, which allegedly contains “a completely distorted version of the facts occurred on 13 January 2023, which the

Player utterly rejects”. In particular, he states he was invited to a meeting with the club on 13 January 2023, during which he was presented with a termination agreement and a receipt, both of which he refused to sign. Contrary to what the club states in its correspondence of 16 January 2023, he claims he refused to receive the payment of his outstanding salaries per cheque, and requested that such payment be made by bank transfer. The player claims that, following his refusal to sign the proposed documents, the club representatives adopted an aggressive behaviour, forcing him out of the club’s premises and stating “he should never go back to the Club’s premises again as he was not considered a player of the Club anymore and, in addition, (…) threatening the Player to evict him from his apartment”. The player claims to have been physically assaulted by the club’s president on 17 January 2023, as he tried to access the club’s premises to train. Accordingly, he pressed charges against him at the police station. Based on the foregoing and on the facts described in his previous letters, the player terminated the employment contract with the club unilaterally with immediate effect.

12. The player remained unemployed up until this date.

II. Proceedings before FIFA

13. On 31 January 2023, 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

14. According to the Claimant, the club breached the respective employment contract.

15. Preliminarily, he referred to clause 7 of the employment contract and pointed out that such clause should be considered as invalid, due “its ambiguity and extremely broad wording”. In particular, he claims that “said contractual provision does not clearly and specifically render jurisdiction upon any particular and competent arbitration tribunal”. He refers to the decision in case FPSD-23661 [sic], “wherein an exactly similar arbitration clause as the aforementioned, pg. 6

REF. FPSD-9113 was determined to be not valid”. Thus, he understands the claim should be considered admissible.

16. As to the substance, the player explains that the club was no longer interested in his services and tried to force the amicable termination of the contract, without the payment of any compensation or outstanding remuneration. As the player refused to sign some backdated documents, allegedly containing facts he does not acknowledge, the club adopted an abusive behaviour, with a view to force the termination (note: these documents are not provided by the player, but refer to the club’s reports dated 17 September 2022, 8 and 29 October 2022, enclosed to the club’s reply). In particular, it prevented him – as the only player of the team – to leave on holidays and assigned him to unsupervised, individual training, in several different venues and times. Despite his warnings – which remained unanswered by the club – his situation remained unchanged and progressively became unbearable. Not only the player was separated from training with his teammates, but he was also excluded from a training camp organised in Cyprus between 28 November and 2

December 2022 for all players of the first team, but him. The player claims that on 1 January 2023 he was informed verbally by the club’s president that his contract was terminated, to which he allegedly replied he would consider the contract as valid and ongoing, as long as he did not receive any official written termination from the club.

17. The player further claims that the club was in breach of its financial obligations towards him, and never remedied the default despite his reminders. The situation escalated on 13

January 2023, as the club invited the player for a meeting and once again tried to force him to sign certain documents and accept a cheque for the payment of his outstanding salaries. As the player refused such proposal, the club’s president adopted a physically aggressive behaviour towards him. The same happened on 17 January 2023, as the player tried to join the training sessions. The player was then forced to press charges against the club’s

president at the police.

18. As per the player, “In light of all of the above, and especially considering (i) the Club’s gross and repeated breaches of Mr. Jovanovic’s right to play since November 2022, materialized in Maccabi’s decision to prevent the Player from attending training sessions or even being present at the Club, in addition to (ii) the repeated delay in the payment of the Player’s remuneration, and more specifically the non-payment of the salaries of October, November and December 2022, and finally (iii) the physical assaults suffered by Mr. Jovanovic on 17 January 2023, on 18

January 2023, the Player unilaterally terminated the Employment Relationship with just cause and with immediate effects”.

19. Consequently, the player requests the DRC to: − “Determine that the Claimant terminated the Employment Agreement with just cause; − Order the Respondent to proceed with the payment of the total sum of € 76.000,00

(Seventy-Six Thousand Euros) which corresponds on the one hand, to the outstanding salaries agreed upon under Clause 6 of the Employment Agreement, plus the residual pg. 7 REF. FPSD-9113 value (Additional Compensation) of the Employment Agreement signed between the Parties as compensation due under Article 17 FIFA RSTP; (note: the aforementioned amount is broken down as follows: EUR 28,500 as outstanding salaries of October, November and December 2022, and EUR 47,500 as compensation, corresponding to the player’s salaries from January to May 2023) − Order the Respondent to pay 5% interest p.a. calculated over each outstanding amount, as of the day after each amount became due until the date of effective payment; − Impose the appropriate sporting sanctions to the Respondent”. b. Position of the Respondent

20. In its reply, the club first contested the admissibility of the claim in front of FIFA and the

jurisdiction of the latter, claiming that: − The parties are compelled by Israeli law to bring their disputes in from of the Israel Football Association (IFA); − The contract contains a clear and valid arbitration clause; − A similar dispute is ongoing before the IFA Arbitration Institute.

21. As per the club, “The player, essentially, determined he wishes to leave his club prior to the expiration of his contract, but instead of reaching a settlement with the club for the mutual termination of his contract – the player decided to try and create an illusion of just cause for the termination of his contract”. The club entirely denies the player’s allegations and understands he terminated the contract without just cause.

22. The club admits that the parties had a valid employment contract, according to which the player was entitled to a total remuneration of EUR 95,000, payable in 10 instalments of EUR 9,500 each. According to the club, the player adopted an unprofessional attitude as from September 2022. In particular, the club claims that “On September 17, 2022, in a league fixture against Sports Club Ashdod FC, the Player was substituted in the 62nd minute of the game. The Player then left straight to the locker room, instead of remaining on the bench with his fellow teammates. The Club notified the Player that such behavior is unacceptable and constitutes a violation of its disciplinary code. On October 10, 2022, in a game against Maccabi Haifa FC, the Player was substituted in the 64th minute of the game, and – again – left the pitch straight to the locker room, refusing to remain on the bench with his fellow teammates. On October 29, 2022, in a game against Maccabi Netanya FC, the Player did not start and was asked by the Club’s fitness coach, Mr. Tarek Natur, to worm up during the half-time break.

However, the Player refused to do so and replied to the fitness coach in a rude and disrespectful

manner”.

23. The club further states that in November 2022 the player complained he could not properly train due to soreness in his groin. The club claims that the player then stopped attending training, in spite of the club’s reminders of 28 November 2023, via messages and calls. pg. 8

REF. FPSD-9113

A medical appointment was scheduled for the player for 4 December 2022, which he allegedly did not attend, without any prior explanation or notice. On 5 December 2022, the player attended a medical appointment, during which a hernia was identified. To avoid surgery, the doctor in a medical report of 14 December 2022 suggested “Straight exercise, electrotherapy, and hydrotherapy for about 3 months to avoid surgery. Meanwhile, intense football activity in the group should be stopped”.

24. The club claims that on 31 December 2022, the player surprisingly alleged he was not injured and insisted on training and playing with the team. The club claims it was “eligible to receive injury allowance from the National Security Institute (NSI) to cover part the Player’s salary during his absence. Such allowance, if received, would have been offset against the Player’s remuneration paid by the Club. In January 2023 the Player was repeatedly asked to fill out and file the required documents required to receive such compensation, but the Player refused to do so, claiming he is not injured and is fit to train or play. The Club sought to assist the Player in filling the necessary forms, and even attained a lawyer, specializing in social security, to assist the Player in the procedural process. However, the Player, again, denied the explicit medical reports which showed that he is injured in his groin and is not fit to play professional football for a period of approximately 3 months”.

25. The club rejects all accusations of the player that it engaged in abusive behaviour in order to terminate the contract and states that the player refused to collect his remuneration for

October and November 2022. In view of the player’s unfounded accusations and the false charges against its president, the club allegedly filed a complaint against him on 22 January 2023 in front of the IFA Arbitration Institute, for breach of contract without just cause. On 16 February 2023, the player approached the arbitrator and rejected the competence of the IFA to adjudicate the case, based on the unclear wording of the arbitration clause in the contract and on the pending proceedings before FIFA. On 2 March 2023, the arbitrator held the IFA competent to hear the dispute, in accordance with the Israeli Sports Law, 57481988 and the corresponding IFA regulations. Additionally, the arbitrator determined that the arbitration clause in the contract is sufficiently clear. Therefore, the club deems that the player’s claim in front of FIFA is inadmissible due to litispendens, as an ongoing claim with the same parties and the same object in pending in front of the IFA. Alternatively, the club claims that FIFA is not competent to deal with the present claim, as the contract contains a clear and exclusive arbitration clause, and the IFA Arbitration Institute (Israel NDRC) is an independent arbitration tribunal, which guarantees fair proceedings and respects the principle of equal representation of players and clubs. Furthermore, the Israeli sports law is applicable to the present case and defines the IFA’s exclusive jurisdiction to deal with such kind of dispute.

26. The club deems that the player’s claim should be rejected also as to the substance, since he does not provide any evidence of the club’s allegedly abusive behaviour with a view to force the termination. It specifically points out that the reports dated 17 September 2022, 8 and 29 October 2022 describe facts which occurred on those dates and do not require the player’s signature to have its content recognised as authentic. The player merely pg. 9

REF. FPSD-9113 refused to acknowledge their receipt. The club also points out that the player’s allegations that he was excluded from the team and forced to train alone are completely out of

context, and claims that such measures were part of a special program conceived in order to improve his poor physical condition. The club claims that the player was in fact requested to train with the second team, but refused to do so and asked to train alone. The alternative training sites were assigned, because the grass in the regular stadiums needed to recover. Furthermore, the club claims the player was always accompanied by the assistant coach and that the objective was that he could again join the first team after the break. The club also denies having forbidden the player to go on holidays, but believed the player would understand the need of extra training in view of his poor physical condition. The player indeed could not join the training camp in Cyprus, as his medical examinations detected a hernia and the need to avoid intense group training. The episode of alleged physical aggression involving the club’s president is also misrepresented, as per the club, and the DRC should in any case not adjudicate on criminal matters. The club also points out that the player refused to receive his salaries for November and December 2022 and that cheques are usual and broadly accepted payment methods.

27. In view of the foregoing, the club deems that the player acted in bad faith and had no just cause to terminate the contract on 18 January 2023. Nevertheless, in case FIFA deems that the player had a just cause to terminate the contract, the amount of compensation should be limited to a maximum of EUR 41,990, i.e. his salaries for February to May 2023 (4 x EUR 9,500) plus 42% of his salary of January 2023 (EUE 3,990). As per the Israeli law, several deductions should be made as per Israeli law, as the player was injured and the club should have been compensated by the insurance. Thus, a maximum of EUR 20,615 should be paid out to him as compensation. As the player’s outstanding salaries for October, November and December 2022 are waiting to be collected at the club, no interest should be applied on them. The club also deems no sporting sanction should be imposed.

28. Based on the foregoing, the club requests FIFA to “declare the Player’s claim inadmissible, or alternatively, reject the Claimant’s claim in its entirety”.

c. Replica

29. Having been requested to provide his comments on the club’s objection to FIFA’s competence to deal with the present matter, the player insisted on his initial opinion that FIFA should retain competence over the case.

30. In particular, the player reiterated that “the jurisdiction clause inserted in the Employment Agreement is unequivocally invalid due to its ambiguity and extremely broad wording, as already duly recognized in multiple FIFA decisions”. In the event that FIFA considers the jurisdiction clause as valid, the player claims that the Israel NDRC “does not fulfil, at least, 3 (three) out of the 5 (five) criteria established under FIFA Circular no. 1010, in order to be recognized as an “independent national arbitration tribunal” that guarantees fair proceedings and respect the principle of equal representation of players and clubs, for the purposes of the FIFA regulations”. pg. 10

REF. FPSD-9113

Finally, the player deems that the “lis pendens issue raised within the Respondent’s answer shall not affect FIFA’s jurisdiction in the present dispute”.

31. As to the jurisdiction clause, the player again points out its unprecise wording and the principle of “in dubio contra proferentem”. The player particularly points out that “one cannot unequivocally conclude that the sentence ‘the differences of opinion between the Club and Player (…) shall be decided by an arbitrator’ refers specifically to a member of the Association’s Arbitration Institute”. Finally, the player understands that the clause cannot be understood as exclusive as “it fails to explicitly exclude the jurisdiction of any other dispute resolution body -such as the FIFA DRCto settle any dispute between the Parties”.

32. Regards the compliance of the Israel NDRC with Circular 1010, the player claims that prior to the club’s reply, “no regulation of the IFA or of the IFA Arbitration Institute were made

available to [him] in order to assess whether such jurisdictional body would indeed comply with the criteria required by FIFA, nor such documentation can be found in the IFA’s website or in any other relevant website on the publicly available sources”. He also points out that the club failed to comment on the denial of his request to receive the documentation of the alleged local proceedings in English, which severely restricted his ability to examine and reply to the allegations made against him. From the documentation related to the Israeli NDRC provided by the club in its reply, specifically Chapter 1 section B of the Codex, he noted that “the player’s organization is only one out of the six authorities that can participate in establishing the list of arbitrators”. Thus, the requirement of equal representation of players and clubs is not met. This is in line with the DRC’s current jurisprudence. The player also points out that the Codex does not foresee the possibility of rejecting the appointment of an arbitrator, that the parties do not have the effective right to contentious proceedings and equal treatment, as the proceedings are conducted in Hebrew only.

33. As to the local proceedings initiated by the club, the player deems they do not cause litis pendens, as he explicitly rejected the jurisdiction of the Israel NDRC, from the very beginning. In this respect, it refers to the FIFA commentary and explains that neither the contract contains a clear and exclusive arbitration clause, neither the Israel NDRC meets the Circular 1010 requirements. Therefore, even though the 2 proceedings have the same parties and object, the litis pendens cannot be established.

34. Finally, the player entirely rejected the club’s argument that as per Israeli law all employment disputes must be submitted to the IFA, as Israeli law does not primarily apply to the present case and the Israeli FA accepted and abides by the international dispute resolution system of FIFA.

35. Thus, FIFA is competent to deal with the present case. pg. 11

REF. FPSD-9113

d. Duplica

36. In its final comments, the club insists on the competence of the Israel NDRC to decide on the present matter. It accuses the player of forum sho