FIFA - Decisión disputa Radovic 02082023

REF. FPSD-9031

Decision of the Dispute Resolution Chamber passed on 2 August 2023 regarding an employment-related dispute concerning the player Slaviša Radović BY: Clifford J. Hendel (USA & France), Deputy Chairperson Stefano Sartori (Italy), member André dos Santos Megale (Brazil), member

CLAIMANT / COUNTER-RESPONDENT I:

Slaviša Radović, Bosnia & Herzegovina Represented by Tarik Trbić

RESPONDENT / COUNTER-CLAIMANT:

FK Liepāja, Latvia Represented by Olga Polozova

COUNTER-RESPONDENT II:

FK Sarajevo, Bosnia & Herzegovina Represented by Ivan Ostojic pg. 2

REF. FPSD-9031

I. Facts of the case

1. On 28 June 2022, the player from Bosnia & Herzegovina, Slaviša Radović (hereinafter: player) and the Latvian club, FK Liepāja (hereinafter: club) concluded an employment contract (hereinafter: contract) valid as from 28 June 2022 until 30 November 2023.

2. According to the contract, the club undertook to pay the player the following amounts: - EUR 6,000 as monthly salary, payable until the 15th day of the following month; - EUR 250 as accommodation costs.

3. Art. 5.1.1 of the contract states: “The total amount of remuneration is 6000 Euro net. It consists of a basic fixed salary and a personal allowance. The basic salary is 4200 Euro net. Additionally the player can be paid a personal allowance not exceeding 30% of the amount of the basic fixed salary after taxes. The amount of this additional payment is set monthly by the club’s management and can be paid in order to stimulate the improvement of the quality of work and

increase the responsibility of the player for the performance of their duties under the contract and annex 1”.

4. Art. 3.2.8 of the contract establishes that the club: “provide with flight tickets for player and his wife to the Republic of Latvia and back to the country of permanent residence (once a year)”.

5. The contract further reads as follows: - Art. 9.4: “If the football player terminates this contract with the club on his own initiative (of his own free will) without justified reasons, then the football player shall pay the club a monetary compensation in the amount equivalent to 350,000 Euro net

(the Termination clause). The cash payment to the club specified in this clause is made by the football player (or by a third party as directed by the football player) not later than the day of dismissal.” - Art. 9.4.1: “If during the term of this contract the club receives an official written offer from any third club to acquire transfer rights to the player in the amount of at least 350,000 EURO net, the club undertakes to accept this offer and provide the player with the opportunity to transfer to this club”. - Art. 9.5: “If the football player terminates this contract, stating a justified reason, and such a justified reason is not recognized or confirmed by the competent judicial (arbitration) authorities, the parties shall establish that the football player is obliged to pay the club an amount of 350,000 Euro net as compensation for losses (liquidated damages).” - Art. 9.5.1: “In case of termination of the contract by the club for a justified reason (including on grounds related to disciplinary sanctions, other punishment), as well as the presence of guilty actions (inaction) of the football player), and such a justified reason is recognized or confirmed by the competent judicial (arbitration) authorities, the parties establish that the football player is obliged to pay the club an amount of 350,000 Euro net as liquidated damages”.

pg. 3

REF. FPSD-9031

6. On 1 August 2022, the club issued a “warranty letter” to the player, acknowledging a debt of EUR 1,181, corresponding to the salary between 28 June 2022 and 3 July 2023. In this letter, the club “guarantees payment” within the next 6 months.

7. On 12 September 2022, the club imposed a fine of 25% of his “personal allowance” of August 2022 since he failed to take part in “preventive and rehabilitation measures (sauna and massage)” without permission.

8. On 31 October 2022, the club imposed a fine of 30% of his “personal allowance” of October 2022 as well as 20% of his “personal allowance” of November 2022 due to two disagreements with the head coach.

9. On 1 December 2022, the player put the club in default and requested payment of EUR 10,481, corresponding to the partial salaries of June until October 2022 as well as the salary of November 2022. He requested payment within 15 days.

10. On 16 December 2022, the player put the club in default again and requested payment of EUR 10,481, corresponding to the partial salaries of June until October 2022 as well as the salary of November 2022. He requested payment within 15 days.

11. On 20 December 2022, the club replied to the player rejecting having received the first default notice and that there is any debt outstanding. The club requested the player to return for training with the reserve team on 28 December 2022.

12. On 23 December 2022, the player sent a letter to the club insisting on his outstanding remuneration and requesting to be reintegrated in the first team as of 3 January 2022, the day the training with the first team starts.

13. On 27 December 2022, the club sent a letter to the player reiterating its position and

upholding its decision to let him train with the reserve team.

14. On 29 December 2022, the club sent a letter to the player inter alia requesting him to resume work.

15. On 2 January 2023, the player terminated the contract with the club due to the following

outstanding remuneration:

16. On 16 January 2023, the player signed an employment contract with FK Sarajevo, valid as from 1 February 2023 until 30 June 2023, including a monthly salary of Bosnian Mark (BAM) 1,000 (approx. EUR 511). pg. 4

REF. FPSD-9031

II. Proceedings before FIFA

17. On 25 January 2023, 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

18. In his claim, the player requested the following monies: - EUR 600 salary for June 2022 pro-rata for 3 days) plus 5% interest as from the 1 July 2022. - EUR 581 remaining salary for July 2022 plus 5% interest as from 1 August 2022. - EUR 1500 remaining salary for August 2022 plus 5% interest as from 1 September 2022. - EUR 1800 remaining salary for October 2022 plus 5% interest as from 1 November 2022. - EUR 1500 remaining salary for November 2022 plus 5% interest as from 1 December 2022. - EUR 6000 December salary 2022 plus 5% interest as from 1 January 2023. - EUR 654 as flight tickets reimbursement plus 5% interest as from 11 October 2022. - EUR 475 as outstanding housing allowance plus 5% interest p.a. as from 1 December 2022. - EUR 66,000 as compensation for breach of contract (residual value), plus 5% interest as

from 2 January 2023. - “The value of two flight tickets (return) for the route Latvia – Bosnia and Herzegovina + 5% interest as from 2 January 2023 until the date of effective payment.”

19. In this context, the player argued that he had just cause to terminate the contract due to the club’s non-compliance with paying the full salaries for several months.

20. Moreover, he held that he was “forced to train alone as of 1 December 2022” and that he was requested to re-join the club’s reserve team on 28 December 2022.

b. Position of the club / counterclaim

21. In its reply, the club rejected the player’s claim and lodged a counterclaim against the player and his new club, FK Sarajevo, requesting the following: - EUR 350,000 as compensation for breach of contract plus 5% interest p.a. as of 3

January 2023; - “Establish that the Player’s new club, FK Sarajevo, induced the Player to commit the Contract termination without just cause; - Establish that the Player’s new club, FK Sarajevo, shall be jointly and severally liable for payment of the compensation to FK Liepaja; - Impose sporting sanctions on the Player in forms of six-month restriction on playing in official matches; - Impose sporting sanctions on the Player’s new club, FK Sarajevo, in form of ban from registering any new players, either nationally or internationally, for three entire and consecutive registration periods”. pg. 5

REF. FPSD-9031

22. The club argued that the player had no just cause to terminate the contract as there is no outstanding remuneration due to the player.

23. In this context, the club held that the player “never requested execution of the warranty letter”.

24. As to the alleged outstanding remuneration, the club held that the player’s salary consisted

of a basic salary and a personal allowance (cf. point 3 above). In this context, the club held that it fined the player for parts of his personal allowance during the months August, October and November 2022.

25. Therefore, the club held that it does not have any debt to the player as it remitted EUR 30,013.71 as well as EUR 1,250 for the months of July until November 2022. Further, the club held having remitted the salary for December 2022 with two payments on 12 and 16

January 2023.

26. It maintained that the club had big expectations in the player and that he, after recovering from an injury in August 2022, failed to take part in “preventive and rehabilitation measures

(sauna and massage)” without permission, while having issues with his weight.

27. In October 2022, the player returned overweight after a break and after not being chosen by the coach for the starting eleven, the player had disagreements with the head coach, which resulted in further fines.

28. Moreover, the club argued that after a good training camp in the beginning of December 2022, the club gave the player off until 28 December 2022, in order to start training with the reserve team. This decision was taken by the head coach due to the recent history of the player coming back overweight.

29. The club further maintained that it subsequently received the player’s default notice dated 16 December 2022. It also held that it did not receive the notice dated 1 December 2022.

30. The club rejected that the player was forced to train alone during the training camp in Turkey and reiterated that its decision to let him train with the reserve team was based on his weight issues and would have resulted in his reintegration in the first team as soon as the fitness would have allowed it.

31. Moreover, the club held that the player acted in bad faith when terminating the contract as he would have had other options to collect his alleged outstanding monies before

terminating.

32. According to the club, the player’s intention was to find a new club and to avoid the payment of the buyout established in art. 9.4. of the contract.

33. Shortly after his termination, he signed with FK Sarajevo. pg. 6

REF. FPSD-9031

c. Reply of the player to the counterclaim

34. In his reply to the counterclaim, the player reiterated his position and rejected the club’s counterclaim.

35. The player pointed out that the club acknowledged the debt of June and July 2022 in its “warranty letter”.

36. Furthermore, the player argued that the club focused in its argumentation that art. 14bis RSTP was not complied with, but failed to recognize that the he terminated the contract with just cause in accordance with art. 14 RSTP.

37. Moreover, the player rejected the club’s argumentation that his “fixed salary” was only EUR 4,200 as the contract clearly stipulates EUR 6,000 net. Further, he pointed out that the calculation of 30% “personal allowance” and EUR 4,200 does not add up and should be disregarded.

38. The player rejected the documentation about his weight and that he was overweight.

39. As to the deductions imposed on his salaries, the player held that due process was not followed and that there is no contractual basis to deduct money from this “personal allowance” as it was done by the club.

40. Taking into account of the above, the player argued that there was no basis to issue partial payments and therefore he held that more than two monthly salaries remained outstanding and therefore he had just cause to terminate the contract.

41. The player stated: “Some of the payments were made after initiation of the FIFA proceedings.

Even with those additional payments made after the termination of the contract, the debt towards the Counter Respondent is not fulfilled.”

42. The player also rejected that he in bad faith tried to “force” a contract termination. He held that he earns less money under his new contract and that he finding new employment was the result of the actions of the club.

43. Additionally, the player reiterated that demoting him to the reserve team was “illegal”.

44. Alternatively, in case the DRC decides that the player has to pay compensation, he argued that art. 9.4. of the contract shall not be applied as it is not reciprocal and proportionate.

d. Reply of FK Sarajevo to the counterclaim

45. FK Sarajevo rejected the club’s counterclaim in its reply and held that the player terminated the contract with just cause. pg. 7

REF. FPSD-9031

46. In this framework, FK Sarajevo pointed out that the alleged payment confirmations submitted by the club are not translated and therefore do not proof any payments to the player.

47. Further, FK Sarajevo argued that the fines imposed on the player appear to be “fabricated” in order to cover the outstanding remuneration.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

48. 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 25 January 2023 and submitted for decision on 2 August 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.

49. 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 competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between player and a club.

50. 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 25 January 2023, 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

51. 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. 8

REF. FPSD-9031

c. Merits of the dispute

52. 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

53. The foregoing having been established, the Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute that the player had just cause to terminate the contract on 2 January 2023.

54. In this context, the Chamber acknowledged that its task was to decide if the player indeed had just cause to terminate the contract or not, and to decide on the consequences thereof.

55. On account of the above, the DRC noted that the matter at hand concerns a claim of a player against a club for breach of contract, including a counterclaim of the club against the player and his new club.

56. In this framework, the members of the Chamber took notice that according to the player, he terminated the contract with just cause due to outstanding remuneration and since he was demoted to the reserve team.

57. On the other hand, the DRC noted that the club argued that no amounts remained outstanding, since - the amounts corresponding to June and July 2022 were acknowledged in the warranty letter; - The basic salary of the player amounted to only EUR 4,200 (rest was personal allowance) - Fines were imposed on personal allowances - The December 2022 salary (plus housing allowance) was paid in January 2023.

58. In this framework, taking into account the parties’ arguments, the DRC started to establish what the player’s monthly salary was, since the club argued that only the basic salary of EUR 4,200 was guaranteed, whereby the player held that the contract stipulates the amount of EUR 6,000 net.

59. Taking into account the wording of the relevant clause (art. 5.1.1. of the contract), the DRC concluded that a salary of EUR 6,000 was agreed between the parties. The members of the Chamber wished to emphasize that the wording is not clear enough in order to establish a “basic salary” of EUR 4,200 with bonuses up to EUR 6,000. pg. 9

REF. FPSD-9031

60. On account of the above, the Chamber further noted that the player acknowledged receipt

of the following payments:

61. Furthermore, the DRC noted that the club indeed acknowledged the debt of EUR 1,161 in

its warranty letter dated 1 August 2022, corresponding to salaries resulting from June and July 2022.

62. Moreover, the Chamber took note of the club’s argumentation that it validly imposed deductions on from the personal allowances due the player’s behaviour. However, the DRC wished to emphasize that there is no proof on file that those deductions or fines were indeed imposed while following due process and granting the player the right to be heard.

63. Furthermore, and irrespective of the foregoing consideration, the DRC wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players.

Consequently, as those monies constitute a part of the player’s salary, the DRC decided to reject the club’s argument in this connection.

64. Subsequently, the Chamber pointed out that the player was entitled to housing allowance and flight tickets according to the contract. Since he provided the relevant receipts, the DRC decided to take into account the outstanding amounts in this regard.

65. However, the members of the Chamber maintained that the salary for December 2022 was not due yet when the player terminated the contract.

66. On account of the above, the DRC established that the total amount of EUR 7,110 remained outstanding at the time of the termination, as follows: - EUR 600 salary for June 2022 - EUR 581 remaining salary for July 2022 - EUR 1500 remaining salary for August 2022 - EUR 1800 remaining salary for October 2022 - EUR 1500 remaining salary for November 2022. - EUR 654 as amounts resulting for the reimbursement of flight tickets - EUR 475 as housing allowance

67. Furthermore, the player has provided written evidence of having put the club in default on 1 December 2022 and 16 December 2022 before unilaterally terminating the contract. pg. 10

REF. FPSD-9031

68. It has to be noted that in the case at hand the club bore the burden of proving that it indeed complied with the financial terms of the contract concluded between the parties.

Nonetheless, the evidence provided by the club, i.e. the untranslated bank receipts, do not prove beyond doubt the payment of the amounts claimed as outstanding by the player.

69. What is more, the allegation that the player had to train alone as of 1 December 2022 and that he was requested to join earlier from holidays in order to train with the reserve team, could not be discharged by the club. This fact in combination with the total outstanding remuneration of more than one month occurring repeatedly within the last six months of the contract, establish different breaches by the club.

70. Consequently, on account of the above, considering the specific situation of the case at hand, the club had thus repeatedly and for a significant period of time been in breach of its contractual obligations towards the player, the DRC decided that the player had just cause to unilaterally terminate the employment contract on 2 January 2023 and that, as a result, the club is to be held liable for the early termination of the employment contact with just cause by the player.

71. On account of the above, the DRC rejected the club’s counterclaim. ii. Consequences

72. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of such unjustified breach of contract committed by the club.

73. The Chamber observed that the outstanding remuneration as established above amounts to EUR 7,110.

74. Moreover, the player acknowledged certain payments after the initiation of the proceedings. Therefore, we propose to take into account the alleged payments of the club in the amount of EUR 5,569 (12 and 16 January 2023).

75. The salary of December 2022 shall be awarded as outstanding remuneration. Taking into account the payments after the initiation of the proceedings, an additional debt of EUR 331

(EUR 6,000-EUR 5,669) for the salary of December 2022 is added.

76. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player the amounts which were outstanding under the contract at the moment of the termination in the amount of EUR 7,441. pg. 11

REF. FPSD-9031

77. In addition, taking into consideration the player’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the player interest at the rate of 5% p.a. on the outstanding amounts as from the due dates until the date of effective payment.

78. 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.

79. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

80. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the

other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

81. 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 from the date of its unilateral termination until its end date. Consequently, the Chamber concluded that the amount of EUR 66,000 (i.e. 11x EUR 6,000, January 2023 until November 2023) serves as the basis for the determination of the amount of compensation for breach of contract.

82. In continuation, the Chamber verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC 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. pg. 12

REF. FPSD-9031

83. Indeed, the player found employment with FK Sarajevo. In accordance with the pertinent employment contract, the player was entitled to approximately EUR 511 per month.

Therefore, the Chamber concluded that the player mitigated his damages in the total amount of EUR 2,555, that is, 5 times 511 (February 2023 until June 2023).

84. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of EUR 63,445 to the player (i.e. EUR 66,000 minus EUR 2,555), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present

matter.

85. Lastly, taking into consideration the player’s request as well as 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 of 2 January 2023 until the date of effective payment. iii. Compliance with monetary decisions

86. 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.

87. In this regard, the DRC 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.

88. Therefore, bearing in mind the above, the DRC 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.

89. 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.

90. The DRC 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. pg. 13

REF. FPSD-9031

d. Costs

91. 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.

92. 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.

93. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 14

REF. FPSD-9031

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent I, Slaviša Radović, is partially accepted.

2. The Respondent / Counter-Claimant, FK Liepāja, must pay to the Claimant the following amount(s): - EUR 600 as outstanding remuneration plus 5% interest p.a. as from 16 July 2022 until the date of effective payment; - EUR 581 as outstanding remuneration plus 5% interest p.a. as from 16 August 2022 until the date of effective payment; - EUR 1,500 as outstanding remuneration plus 5% interest p.a. as from 16 September 2022 until the date of effective payment; - EUR 1,800 as outstanding remuneration plus 5% interest p.a. as from 16 October 2022 until the date of effective payment; - EUR 1,500 as outstanding remuneration plus 5% interest p.a. as from 16 November 2022 until the date of effective payment; - EUR 1,460 as outstanding remuneration plus 5% interest p.a. as from 2 January 2023 until the

date of effective payment; - EUR 63,445 as compensation for breach of contract without just cause plus 5% interest p.a. as from 2 January 2023 until the date of effective payment.

3. Any further claims of the Claimant / Counter-Respondent I are rejected.

4. Ful