FIFA - Decisión disputa Mudrazija 21062023

REF. FPSD-7782

Decision of the Dispute Resolution Chamber passed on 21 June 2023 regarding an employment-related dispute concerning the playerRobert Mudrazija BY: Michele Colucci (Italy)

CLAIMANT/ COUNTER-RESPONDENT:

Robert Mudrazija, Croatia Represented by Mladen Petreski

RESPONDENT/COUNTER-CLAIMANT:

ŠD NK Olimpija Ljubljana, Slovenia Represented by Marusa Perko pg. 2

REF. FPSD-7782

I. Facts of the case

1. On 1 January 2022, the Croatian player, Robert Mudrazija (hereinafter: the player or Claimant/Counter-Respondent), and the Slovenian club, ŠD NK Olimpija Ljubljana

(hereinafter: the club or Respondent/Counter-Claimant) concluded an employment contract (hereinafter: the contract), valid from 1 January until 30 June 2022.

2. Pursuant to art. 7 par.1 of the contract, the player was entitled to a monthly salary in the amount of EUR 14,000 plus VAT “by the 20th day of the month for the previous month, with statutory default interest charged from the day of arrears until the day of payment in the event of arrears”

3. Art.7 par.4 of the contract stipulates that the club will provide other benefits to the player for the duration of the contract: EUR 500 for apartment rental cost and EUR 6,000 award for winning domestic championship title.

4. Art.7 par.6 of the contract stipulates that the “Contracting Parties agree that the payment liabilities for taxes, and other mandatory levies shall be made by the player.”

5. The club and the Danish club, F.C. Copenhagen (hereinafter: Copenhagen ) concluded a loan agreement (hereinafter: loan agreement) for the loan of the player from the club to

Copenhagen valid from 1 January until 30 June 2022.

6. In accordance with the loan agreement, the following was agreed: “Article 2 -Salary The Player will not receive any salary or any other payments during the loan period from FCK

[Copenhagen ]. The Player will receive salary from Olimpija [club] as agreed between the Player and Olimpija [club]. Article 3 -Salary contribution FCK [Copenhagen] will contribute to the Player's salary at Olimpija [club] with a monthly amount of EUR 7.430 + VAT during the loan period which will be paid directly to Olimpija [club] 8 days after relevant monthly invoice is sent to FCK [Copenhagen ]. from Olimpija [club].”

7. On 13 May 2022, the player’s representativesent an email to the club, inter alia, mentioning the following: “I hope you are well. As the 2021/2022 season is coming to a close I trust you will not mind us taking this opportunity on behalf of the player to ask regarding both the clubs’ plans and Robert’s obligations during the month of June being the last month of the loan agreement expiry being 30th of June next. pg. 3

REF. FPSD-7782

In particular this is regarding free period after the last match and date/place for starting the training preparations of the 2022/23 season which seems early for most Leagues due to the World Cup calendar.”

8. On 13 and 15 May 2022, emails were exchanged between the club and Copenhagen, as follows: "Am 13.05.2022 um 15:25 schrieb Peter Christiansen <pc@fck.dk>: Hi guys.

Reg Robert we do not plan with him at FC Copenhagen. Open to discuss solutions. Please give me a Call on monday Best regards /PC

From: Igor Barišič <igor.barisic@nkolimpija.si>

Sent: Sunday, May 15, 2022 8:58 AM To: Peter Christiansen <pc@fck.dk>; Mladen Rudonja <mladen.rudonja@nkolimpija.si>;

mladen@bgmsport.hr Subject: Re: Robert Mudrazija Hello everyone, We have a board meeting today and the topic is squad planning. Report to us tomorrow. Best regards Barisic Igor”

9. On 25 May 2022, the player’s representative sent the following email to both the club and Copenhagen: “Dear gentlemen at FC Copenhagen and NK Olimpija Ljubljana, Thank you for the information and we have since spoken by telephone.

Following this we advised Robert Mudrazija that his temporary contract with Olimpija will not be extended, and that together with FCK we are looking for a new known possibility / destination.

Olimpija: with this e-mail I would just like to clarify that Robert is contracted to Olimpija until 30

June. He has been given holiday leave and I kindly ask for the picture to let us and FCK now should they expect player to return for the training / new season preparations until end of contract. pg. 4

REF. FPSD-7782

FCK: I will kindly ask FCK to let us know when Robert should report to the club for training, as per his valid contract of employment. Whilst both the club and ourselves as player agent are looking for new loan possibilities, it is unknown if and when we shall find a solution.”

10. On 31 May 2022, the player was removed from the club’s WhatsApp group, which was the means in terms of how training and other information were exchanged between the players and the club. The player therefore had to train individually during the month of

June.

11. On 29 July 2022, allegedly during a telephone call, “the club confirmed that it will pay the outstanding amounts for April and May soon, but only the half-amount for June because Player

did not train or play with FC Olimpija during this month.”

12. On 8 September 2022, the player’s representative, sent the following email to the club, inter

alia, mentioning: “Gentlemen, We represent football Player ROBERT MUDRAZIJA by standard representation contract as well as a special Power -of-Attorney which is in attachment to this email. Player has been contracted to play for NK OLIMPIJA LJUBLJANA in the period of 6-months June to September 2022 by Loan Agreement between your Club and FC Kopenhagen. Player has not received salary or any other payment in lieu of his contract for the months of April, May and June 2022 despite NK Olimpija Ljubljana invoicing and receiving the Player Salary subsidy amounts from FC Kopenhagen for the same periods. All amounts are still outstanding and are being overdue for a considerable period. On behalf of the Player we wrote to you several times regarding this matter and we also spoke on the telephone, also the book-keeping company introduced by yourselves contacted your accounts department asking for payment of the issued invoices and/or reason for nonpayment.”

13. On 20 September 2022, the player’s representative, sent a further email to the club: “Gentlemen, We have not received any reply or contact whatsoever from NK Olimpija Ljubljana reference our email approaches and pleas to settle the account with the Player (our emails of 27 July, 1 August, 22 August and 6 September). This leaves us therefore with no other option but to act as follows: On behalf of football Player ROBERT MUDRAZIJA as per the Power of Attorney previously supplied to yourselves, we herewith give FINAL NOTICE to NK Olimpija Ljubljana football club for payment of the OVERDUE SALARY AND OTHER CONTRACTED OVERDUE PAYABLES to Player as per his contract with your Club, as per the invoices supplied to the Club according to the same Contract

and as per the Loan Agreement between NK Olimpija Ljubljana, FC Kopenhagen and Robert Mudrazija. pg. 5

REF. FPSD-7782

Hereunder please find specification of the claimed amount: a/ Salary and apartment rental as per the Professional Playing Contract, Article 7.1. and 7.4. (+VAT) as Invoiced. Total due = Eur 53.588,50 (incl. VAT) b/ Statutory late-payment penalty interest rate pursuant to Article 378(1) of the Code of Obligations (‘Obligacijski Zakonik’) of the Republic of Slovenia –currently 8 per cent per annum –final amount to be calculated as of the date of payment of the Overdue Payables claimed. Please execute payment to thebank account of ROBERT MUDRAZIJA as stated on the invoices eg.

IBAN: SI56070000003811996 BIC code: GORESI2X. In case of a prolonged delay and should this account be closed, alternative bank account for payment is as follows: IBAN:

HR8823600001102914103 BIC code: ZABAHR2X.”

II. Proceedings before FIFA

14. On 6 October 2022, the player filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the player

15. The requests for relief of the player, were that the clubpay him the following: - “APRIL 2022 Salary and apartment rental as per the Professional Playing Contract, Article 7.1. and 7.4.(+VAT) as Invoiced EUR 17.690 (incl. VAT) - MAY 2022 Salary, playing bonuses and apartment rental as per the Professional Playing Contract, Article 7.1.and 7.4. (+VAT) as Invoiced EUR 18.208,50 (incl. VAT)

• JUNE 2022 Salary and apartment rental as per the Professional Playing Contract, Article 7.1. and 7.4. (+VAT) as Invoiced Eur 17.690,00 (incl. VAT) - Statutory late-payment penalty interest rate pursuant to Article 378(1) of the Code of Obligations(‘Obligacijski Zakonik’) of the Republic of Slovenia –currently 8 per cent per annum –final amount to be calculated as of the date of payment of the Overdue Payables claimed. “

b. Position of the club andcounterclaim

16. Theclub in its reply argued, that the player is no longer entitled to get the payment of VAT, “because he is no longer registered as a business entity in Republic of Slovenia, and he is thus no longer considered as a taxable person for VAT”.

17. Moreover, the club indicated that the player “should have already paid the corresponding VAT to the tax authority in Slovenia (FURS) for the issued invoices above in the total amount of 9.663,50 EUR (3.190,00 EUR pursuant to the Invoice for April 2022 + 3.283,50 EUR pursuant to the Invoice for May 2022 + 3.190,00 EUR pursuant to the invoice for June 2022), which was not paid and the Player has not provided any evidence thereof.” pg. 6

REF. FPSD-7782

18. Additionally,the club indicated that it “has the obligation to deduct from any payments made to the Player the Income Tax to Tax Authority in Slovenia (FURS). When income is paid to a nonresident by a Slovenian legal entity or a private individual, the latter deducts advance income tax for the recipient of the income. The recipient does not have to declare such income in Slovenia and the advance payment of income tax is considered a final tax for a non-resident. In accordance with the Article 68 of Income Tax Act (ZDoh-2) the Club has to deduct the income tax

in the share of 15 % of the total amount.”

19. The club argued that in June 2022. “the player has not fulfilled any of its contractual obligations “ as he was not present and the Player has been informed about the financial consequences of such breaches of its obligations, therefore since the player has not rendered any of his services to the club in June 2022, his claim to receive payment for June 2022 in the total contractual amount (i.e.14.500 EUR+ VAT –lnvoiceNo. 22-0006) is unfounded.”

20. Furthermore, the club indicated that the player “has been sanctioned with a fine in the amount of 14.000 EUR in accordance with the internal Club's regulations and the jurisprudence from the Slovenian SINGLE JUDGE.”

21. The club further indicated that the player failed to “appeal sanctions that were issued to the Player by the Club's decision on August 31, 2022, thus, the disciplinary decision of the Club became final in enforceable.”

22. Therefore, the club indicated that “the fine in the amount of 14.000 EUR(+ VAT -if applicable) should be deducted from any possible total due amount of the Player's claims towards the Club

(if the titleauthority should decide that any such claims exist).”

23. Moreover, the club indicated that “the Club has a counterclaim toward the Player for the reimbursement of the costs of providing additional football jerseys to the Player, which were his expense, which was still not paid by the Player (the invoice was due immediately after it was issued, for the total amount of 670,88 EUR. This amount should be deducted from any due amount that would be decided by the title authority.”

24. In conclusion, the club made the following request: “The Club hereby requests the title authority to make a detail and legal consideration ofthe due amount, which definitely does not correspond to the Claim of the Player.

Any recognition of the claims of the Player for June (beyond the proportional part of 23,33 %)

would represent a dangerous practice and support to the Players who unilaterally decide not to execute their obligations until the final date of the contractual period. Nobody can justifiably expect to receive payment if he did not execute its obligations without any legal or just cause. pg. 7

REF. FPSD-7782

When there is a valid and signed contract in written with a very clear time of its duration, no contractual party has the right to assume (without an explicit consent of the other party). that it has the right to unilaterally discharge itself of final contractual obligations in the last month and at the same time expect the total payment as if such contractual obligations were carried out in full. When deciding on the total due amount, payable to the Player, all the counterclaims of the Club should be considered (disciplinary fine, costs for the football jerseys. etc) and also all of the tax regulations, applicable in Slovenia.” c. Additional comments of player

25. In its correspondence following the reply and counterclaim of the club, the player rejected the position ofthe club andrequested thathis full claim as originally submitted is accepted. pg. 8

REF. FPSD-7782

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

26. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, hetook note that the present matter was presented to FIFA on 6 October 2022 and submitted for decision on 21 June 2023. Taking into account the wording of art. 34 of the March 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.

27. 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 (May 2023 edition), the Single Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from Croatia and a club from Slovenia.

28. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, heconfirmed 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 06 October 2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

29. The Single Judgerecalledthe basic principle of burden of proof, asstipulatedin art. 13 par.5of 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

30. His 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 hewill refer only to the facts, arguments and documentary evidence, which heconsidered pertinent for the assessment of the matter at hand. pg. 9

REF. FPSD-7782

1. Main legal discussion and considerations

31. 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 payment of certain financial obligations by the clubas per the contract.

32. In this context, the Single Judge acknowledged that his task was to determine, based on the evidence presented by the parties, whether the claimed amounts had in fact remained unpaid by the Respondent and, if so, whether the latter had a valid justification for not having complied with its financial obligations.

33. The Single Judgefirst highlightedthat in the case at hand the Respondent bore the burden of proving that it indeed complied with the financial terms of the contract concluded between the parties.

34. In this context, the Single Judge noted that the club in its reply argued that (i)the player is no longer entitled to get the payment of VAT and that it is allowed to deduct income tax; (ii) that the player is not entitled to his June remuneration due to his failure to comply with his contractual obligations,and(iii)its entitled to set-off certain amounts due to the player on the basis of the implementation of a fine and expenses related to jerseys provided to the player.

35. The Single Judge turned his attention to the argument put forward by the club that it would be allowed to deduct income tax payments from the player as it failed to pay the tax authorities in Slovenia, to this end the Single Judge observed that the club failed to substantiate its argument with written proof linked to the alleged non-payment of tax by the player. Moreover, the Single Judge noted that the player argued that it fully complied with payment of the tax amounts to the tax authorities.

36. As to the disciplinary proceedings andtothe imposed fine for the full monthly contractual compensation of June, the Single Judge remarked that it appears that the club in this respect did not follow a due process as the player was not requested to present his defense or his position prior to the decision to impose a fine upon the player. In this regard the Single Judge emphasised that the player did not receive any prior correspondence from

the club other than the letter of 31 August 2022, accordingly the Single Judge held that the basis of the fine was not properly explained to player. Additionally, the Single Judge remarked that, the club failed to provide a copy of its internal disciplinary rules, as corroborating evidence to justify its position and imposition of the fine.

37. Lastly, the Single Judge analysed the provisions of the contract and held that there is no contractual provision which allows for the set-off of any amounts against amounts due to the player, therefore the club would not be allowed i.e., to set-off the cost of football jerseys against salary payments due to the player. pg. 10

REF. FPSD-7782

38. Taken the above into consideration, the Single judge rejected the arguments put forth by the club, consequently its counterclaim.

39. In view of the foregoing, the Single Judge established that the club is to be held liable to pay the playerthe outstanding amounts deriving from the contract concluded between the parties. ii. Consequences

40. 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 club.

41. The Single Judge deemed it important to highlight that according to art.2 of the loan agreement the club remained liablefor the payment of the player’s salary.

42. As a consequence, the Single Judge decided that the club is liable to pay to the player the amounts which were outstanding under the contract, i.e., EUR 53 588,50 as outstanding salaries plus VAT, corresponding to: - “APRIL 2022 Salary and apartment rental (+VAT) of EUR 17.690 - MAY 2022 Salary, playing bonuses and apartment rental (+VAT) of EUR 18.208,50 - JUNE 2022 Salary and apartment (+VAT) of EUR 17.690,00

43. In addition, taking into consideration the player’s request as well as the constant practice of the Single Judgein this regard, the latter decided to award the playerinterest at the rate

of 5% p.a. on the outstanding amounts due to the player.

44. As to the VAT, the Single Judge mentioned that the provisions of the contract stipulated VAT, that the outstanding amounts were subject to VAT. iii. Compliance with monetary decisions

45. 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.

46. 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. pg. 11

REF. FPSD-7782

47. 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.

48. 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.

49. 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.

d. Costs

50. 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 Judgedecided that no procedural costs were to be imposed on the parties.

51. 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.

52. Lastly, the Single Judgeconcluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 12

REF. FPSD-7782

Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent,Robert Mudrazija, is accepted.

2. The claim of the Respondent/Counter-Claimant,ŠD NK Olimpija Ljubljana, is rejected.

3. The Respondent/Counter-Claimant, ŠD NK Olimpija Ljubljana, must pay to the Claimant/Counter-Respondentthe amount

(a) EUR 53 588,50 plus VAT as outstanding remuneration plus 5% interest p.a. as from the respective due dates until the date of effective payment as follows: - On the amount of EUR 17, 690 as from 21 May 2022 - On the amount ofEUR 18,208.50 as from 21 June 2022 - On the amount of EUR 17,690as from 1 July 2022

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

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

(including all applicable interest) is not made within 45 daysof notification of this decision,

the following consequencesshall apply:

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

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant/CounterRespondent in accordance with art. 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.

FFoorr tthhee FFoooottbbaallll TTrriibbuunnaall:: EEmmiillllllllllllllllliiiiiiiiiiiiiiiioo GGaarrccííaa SSiillvveerroo Chief Legal & Compliance Officer pg. 13

REF. FPSD-7782

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, topublish an anonymised or a redacted version (cf. article 17 of the Procedural Rules).

CONTACT INFORMATION

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