FIFA - Decisión disputa Simovic 08062023

REF. FPSD-9326

Decision of the Dispute Resolution Chamber passed on 8 June 2023 regarding an employment-related dispute concerning the player Slobodan Simovic

COMPOSITION:

Clifford J. HENDEL (USA & France), Deputy Chairperson Khalid AWAD ALTHEBITY (Saudi Arabia), member Alexandra GOMEZ BRUINEWOUD (Uruguay & The Netherlands), member

CLAIMANT:

Slobodan Simovic, Serbia Represented by Go 4 Sports AG

RESPONDENT:

Várda Labdarúgó Szolgáltató KFT, Hungary pg. 2

REF. FPSD-9326

I. Facts of the case

1. On 5 December 2021, the Serbian player, Slobodan Simovic (hereinafter: the player or the Claimant) and the Hungarian club, Várda Labdarúgó Szolgáltató KFT, also known as Kisvarda FC (hereinafter: the club or the Respondent) concluded an employment contract (hereinafter: the contract) valid as from 1 January 2022 until 31 December 2022.

2. According to the contract, the Respondent undertook to pay the Claimant HUF (Hungarian Forints) 3,150,000 net as monthly salary, payable on the 10th day of the following month.

3. Clause 8 of the contract reads inter alia as follows:

“[The player]’s obligations are the following: (…) p) The case of inability to work due to injury, accident or illness shall be communicated to the employer without delay, and he/she shall present medical certificate as a proof of his/her absence, what shall be forwarded to the employer without delay, or shall submit himself/herself to the examination of the employer’s physician”.

4. Clause 40 of the contract reads inter alia as follows: “(…) in the event of guilty infringement of obligations by [the player] ‐ in his/her sole scope of authority

and at his/her own discretion, instead of the termination with immediate effect or before if ‐ the following negative legal consequences can be applied by [the club] against him/her depending on the weight of the infringement: a) verbal or written warning; b) sanction imposing financial loss (cash penalty) in the first case (up to 66% of the monthly wage valid at the time of imposing the sanction); c) sanction imposing financial loss (cash penalty) in repeated case within one year after the imposition of the first cash penalty, or any time after imposing the repeated cash penalty (up to 66% of monthly wage valid at the time of imposing the sanction). (…)"

5. Clause 47 of the contract reads as follows: “[The player] acknowledges that if he/she is not included in the first team of [the club], or based on the decision of the professional management he/she is transferred to the second of further teams of

[the club], his/her base wage will be reduced to the percentage determined in the Personal Conditions of the amount given in point 15 ‐ but to max. its 50% from the 15th day of the month following the decision."

6. Clause 49 of the contract reads inter alia as follows: “The Parties agree that they shall make efforts to settle their possible dispute in amicable way by negotiations. If these efforts fail ‐ in cases determined by the rules of MLSZ and FIFA ‐ the Parties may turn to the organizational units with MLSZ or FIFA scope of authority. (…)" pg. 3

REF. FPSD-9326

7. Clause 51 of the contract reads as follows: “Any amendment or addition of this employment contract is only possible with the written consent of the Parties.”

8. Clause 52 of the contract reads as follows: “The Parties confirm that provisions specified by the Personal Conditions composing inseparable part of this employment contract cannot be in conflict with the regulations of the employment contract, they may only supplement them always in line with the provisions of the contract and with regard to

them”.

9. The parties agreed in the section titled “Personal Conditions” of the contract that: “Other provisions regarding the salary with exact payment deadline (in consideration of Section 16, Chapter IV and Section 47, Chapter XI herein); (if there is not such agreement, the empty part should be crossed)”.

10. On 1 August 2022, a medical exam performed in the University Clinical Center of Serbia established that the player “was treated (…) in January this year due to acute myopericarditis which occurred after COVID infection. He was granted to engage in sports 6 months after the virus infection. Having in mind the latest MR of the heart (…) and the fact that there are no hemodynamically significant lesions on coronary arteries (…) there are no counterindications for any level of physical activity”.

11. On 17 August 2022, a “Special cardiologic examination” performed in Budapest established inter alia that the player had been diagnosed 8 months before with a peri-myocarditis with myocardial oedema formation, after a Covid infection. Even though the player no longer had complaints, the exams showed that there was a “suspicion of potential apical hypertrophic cardiomyopathy (…) which could lead to sudden cardiac death”. The examination confirmed the aforementioned heart condition and stated as follows: “Based on the current effective recommendation (…); professional football activities are not absolutely contraindicated; however due to the presence of a significant degree of fibrosis, competitive endurance sports (football) may clearly increase the risk of sudden cardiac death therefore I do not recommend it!! With regular cardiological monitoring, non-competitive sports can be performed” (emphasis in the original).

12. On 24 August 2022, the club served the player a notice, in which it made reference to clause 8 lit. p) of the contract and asked him to “please follow present instruction”. At its footnote, the notice included an acknowledgement of acceptance with a field for the signature of the player. The notice was signed by the player.

13. On the same date, on 24 August 2022, the club served the player another notice, in which stated that “Due to the arisen special heart problem established by the attached Special Cardiologic Examination and the incapacity to perform the duties of a professional football player I order you to go on sick leave as provided by the Hungarian social insurance system for disables employees. Please follow present order!”. At its footnote, the notice included an acknowledgement of acceptance with a field for the signature of the player. The notice was not signed by the player. pg. 4

REF. FPSD-9326

14. On 25 August 2022, the club served the player another notice, requesting him to provide a medical certificate within 3 working days to “prove missing from the club’s training sessions as from 28 July 2022”. At its footnote, the notice included an acknowledgement of acceptance with a field for the signature of the player. The notice was not signed by the player.

15. On the same date, 25 August 2022, the club served the player another notice, requesting him to declare whether he accepted the findings of the attached special cardiologic examination conducted on 17 August 2022. In addition, the club also stated: “in case of refusal to accept its findings [the club] call on [the player] to provide [the club] with another medical opinion or certificate within three wording days of this notice to certify his absence from training and from work. Failing to provide such document,

[the club] must consider that the special cardiologic examination has been accepted”. At its footnote, the notice included an acknowledgement of acceptance with a field for the signature of the player. The notice was not signed by the player.

16. On 5 September 2022, the club served the player a notice, informing him that “given that the deadline provided to [the player] to prove the reason of [the player’s] absence from the club’s training sessions since the 28th July 2022 has passed, and [the player] have nor certified in any way [the player’s] absence

to this day, [the club] consider the period beginning from that date as uncertified absence from work, therefore [the club] cannot pay [the player’s] salary for this period”. At its footnote, the notice included an acknowledgement of acceptance with a field for the signature of the player. The notice was not signed by the player.

17. On 15 September 2022, the player’s legal representative addressed the club a letter, in which he: (i) acknowledged the findings of the club’s doctor of 17 August 2022 and countersigned the club’s notice of 24 August 2022; (ii) acknowledged receipt of the other notices sent by the club, but not their content and therefore the other notices were not signed by him; (iii) informed that no additional medical documentation was in order; and (iv) insisted on being paid. Specifically, regarding his remuneration, the player denied the reduction of his salary to EUR 300, as allegedly imposed by the club. He argued that he was still entitled to receive the remainder of his salary and the club should seek any reimbursement in front of the insurance company. Thus, he put the club in default of payment for his salaries of July (pro rata as from 28 July 2022) and August 2022.He further warned the club that, should his salaries not be fully paid until 30 September 2022, he would act in line with art. 14bis and 17 of the Regulations on the Status and Transfer of Players (RSTP).

18. On 23 September 2022, the club replied to the player, informing him that the person responsible for the matter was on holidays and that an answer would be provided on 29 September 2022.

19. On 27 September 2022, the club wrote to the player, stating that indeed the medical report of 17

August 2022 disadvised the practice of competitive sports due to the player’s medical condition. The club claimed that the player rejected such report, but failed to provide a second one, despite its

requests. The club claimed his condition was not a consequence of his work activities and, therefore, it had no liability to “pay any damages towards the player”. Furthermore, the club pointed out that the report of 17 August 2022 was not a medical certificate justifying his absence and that the player pg. 5 REF. FPSD-9326 failed to provide such certificate, as per clause 8 lit. p) of the contract. Thus, the club stressed that the player left without permission and that up to the letter’s date his absence remained unjustified. The club then requested the player to either provide a medical certificate justifying his absence or to resume work within 8 days; otherwise, it would be entitled to terminate the contract with just cause and immediate effect. Even in case the player provided the certificate, the club maintained that he would still not be entitled to his full salary, as his illness was not work-related and not covered by the insurance.

20. On 3 October 2022, the player replied to the club’s correspondence, stating that there was “a huge discrepancy between the parties’ understand of the situation”. In particular, he referred to the report dated 17 August 2022, issued by the club’s specialist, in which it was recommended that he should not play football. The player acknowledged having received 5 letters from the club between 24 and 25 August 2022, which he refused to sign. He also insisted on the payment of his salaries in full, which remained unpaid despite his default notice. The player alleged that he was not obliged to attend training, until his salary was fully paid. He also pointed out that he was evicted from his apartment, so that another player could move in. Based on the foregoing, he argued that the club was trying to force the termination of the contract. He granted the club 15 days to pay his salaries of August and September 2022, failing which he would be forced to terminate the contract with just cause.

21. On 19 October 2022, the player wrote to the club, referring to his previous letter as well as to the

club’s alleged reply of 5 October 2022 (this letter was not provided within the proceeding of the current case), according to which the payment of his salaries would be suspended. The player mentioned that the club offered the amicable termination of the contract against the payment of HUF 5,000,000, while the residual value of the contract up until December 2022 amounted to HUF 15,750,000. The player refused such offer and, even though he would be entitled to terminate the contract with just cause, he granted the club a final deadline of 7 days to try to solve the matter amicably.

22. On 26 October 2022, the club replied to the player’s letter, stating inter alia that he had been absent from work without authorization since 28 July 2022, due to a non-work-related illness. The club claimed that he failed to provide the required medical certificate to justify his absence. Thus, it accused the player of being in breach of contract capable of justifying the termination of the contract with just cause. However, allegedly not to deprive the player of the benefits of social security, the club requested him to provide a medical certificate or to resume work.

23. On 4 November 2022, the player replied to the club’s letter, pointing out the fact that it did not license him for the league, confirming that it did not count on his services since he was put on a sick leave. Even if he had practiced with the club, the player argued that he would not be able to play any matches, what constitutes a breach of contract in accordance with the RSTP. The player granted the club “a last chance” to find a mutual agreement and requested a reply from the club until 9

November 2022. pg. 6

REF. FPSD-9326

24. On 9 November 2022, the club replied to the player explaining that a license could not be issued because the player did not have a “valid sports medical license”. The club deemed unacceptable that

the player could not play, but still wanted to receive his salary.

25. On 11 November 2022, the player replied to the club pointing out that he had been removed from training due to the report issued by the club’s doctor. He referred to the case of the Danish player, Christian Eriksen (hereinafter: Eriksen) and underlined that even though the latter was not allowed to play in Italy, the parties concluded a mutual termination agreement and he found new employment in England. He claimed such case to be similar to his own and stated that if the parties could not manage to find an amicable settlement until 16 November 2022, he would terminate the contract unilaterally with just cause.

26. On 16 November 2022, the club replied to the player, pointing out that the report of 17 August 2022 was only a “special opinion”, which however “does not have a decisive force on the future of the player”, as it was only a recommendation. The club denied having sent the player on a sick leave, as only a doctor could do so. It acknowledged that the player accepted the report but pointed out he should further provide a medical certificate, stating he was unfit to work, a pre-requisite for the acceptance of the sick leave. It further underlined that the medical report sent by the player was only drafted in Serbian, and therefore could not justify his absence. Thus, the club argued that the player should resume work. The club claimed that – differently from Eriksen – the player was not acting collaboratively with the club and refused without justification to comply with his contractual obligations. The club stated it that the contract was not terminated, but the salaries would not be paid as he was not entitled to any benefits.

27. On 17 November 2022, the player replied to the club, stating that the attempt to find an amicable settlement was unfruitful. He insisted that the club had clearly sent him on a sick leave, as per its correspondence of 24 August 2022. He rejected the club’s unilateral decision to reduce his salary

from EUR 8,500 to EUR 300, and its offer to terminate the contract upon payment of HUF 5,000,000 only. He again mentioned his eviction from the apartment and claimed he was left with no other choice but to terminate the contract, which would be done via a separate letter. He also enclosed the copy of a medical report dated 1 November 2022 in English.

28. On 1 December 2022, the club replied to the player, repeating the content of its previous letters, as to the sick leave, the non-entitlement to salaries and the pre-requisites of Hungarian law.

29. On 26 December 2022, the player wrote to the club, stating that the parties had fundamental disagreements not worthy of further discussion. He alleged that he had the intention to terminate the contract on 17 November 2022, but did not do so, in order to avoid a dispute. Since the contract would naturally expire on 31 December 2022, he abstained from a termination and informed the club that he would lodge a claim against it before FIFA. pg. 7

REF. FPSD-9326

II. Proceedings before FIFA

30. On 19 February 2023, the Claimant filed a claim, replaced by a new claim on 23 February 2023 before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

31. In his claim, the player argued that he was correctly paid as per the contract until the end of July 2022, when he was diagnosed with a post-Covid heart condition and was therefore not allowed to continue training. In this respect, the player recalled the several correspondences exchanged between the parties and argued that, irrespective of his multiple reminders, the club did not pay his salaries in full and did not make the proper effort to reach a fair amicable settlement. In his opinion, the club acted in the sense of forcing the termination of the contract.

32. The player argued that the parties had agreed that clause 47 of the contract, which in theory allowed the club to reduce the player’s salary by 50%, was not applicable (cf. “personal conditions”). In any event, he considered such clause to be invalid and unenforceable, due to its arbitrary nature.

Furthermore, the player highlighted that the club proposed to reduce his salary to EUR 300, i.e., 3.33% of the original amount (instead of the 50% mentioned in the contract), however, not even this amount was paid. Thus, the player considered that the club was in breach of contract, as from the moment it stopped paying his remuneration.

33. He also pointed out that an illness is not a just cause to force the termination of the contract, such as intended by the club with its repeated requests for documents. The player also underlined that he was deregistered from the league, as confirmed by the club in its letter of 9 November 2022 and the attached list issued by the Hungarian Football Association (MLSZ). Moreover, he claimed that his deregistration should be considered as the unilateral termination of the contract by the club, effective as from 31 August 2022, namely the last day of the transfer window in Hungary.

34. The player insisted that the club breached the contract without just cause and should pay him outstanding remuneration as well as the residual value of the contract as compensation.

35. In view of the foregoing, he requested the following relief: “a) To uphold that the contract was unilaterally breached without just cause by the Respondent, according to FIFA RSTP, IV. art. 14. & art. 14bis and according to Swiss law CO, art. 337 par. 1.a) & art. 337c); b) To uphold the right of the Claimant to receive the outstanding salaries until the end of his contract, i.e. until 31 December 2022, for the breach of the Contract by the Respondent, according to the FIFA RSTP, IV. art. 14., 14bis & 17.1. and according to Swiss CO, art. 337 par. 1.a), art. 337c, 339 par. 1., and

to order to the Respondent to pay as follows: Due amounts from 28.07.2022 until 31.12.2022: pg. 8 REF. FPSD-9326 c) 5 % interest rate p.a. is applicable for every single payment since the due date until the day of effective payment for the due amounts of HUF 15'750'000.‐‐ under b) i‐v; according to Swiss CO, art. 104 and 339 par. 1; d) To impose disciplinary sanctions on the Respondent, according to FIFA Regulations on the Status and Transfer of Players, art. 14bis. 17.4.” b. Position of the Respondent

36. The club explained that it counted on the player for the 2022/2023 season and thus applied for his licence before the MLSZ, which however required a medical certificate issued by a sports physician.

The club explained that due to outcome of the player’s medical examinations allegedly conducted on 27 July 2022, the medical certificate could not be issued, and the player could not be registered to play any matches. Furthermore, the lack of the medical certificate also implied that he could no longer participate in trainings, for the high risks involved.

37. Subsequently, the club argued that the player left to Serbia and presented the document of 3 [sic, 1] August 2022, which did not identify any abnormalities to his heart. This document, however, was contradicted by the specialist report of 17 August 2022, which identified the heart condition and the high health risk of playing football for the player. According to the club, the report of 17 August 2022 was issued by a certified specialist, and its conclusions are reliable.

38. The club claimed that it did “not refuse to allow the player’s participation in trainings or matches without a substantial reason, but indeed, [the club] had a very substantial reason to do so, namely the health conditions of player as it is also clearly supported and undoubtedly proved by the enclosed medical expert

documentation”. The club indicated that the player left the club permanently on 26 August 2022, hence it did not have the opportunity to “make training or other sports activities available for player”.

39. The club also claimed the player’s condition was not work-related therefore it could not be “subject to a claim for compensation in the subject of illness”. It also referred to Hungarian law and explained that for an employee to be released from work and receive the relevant social security benefits, he must present a medical certificate stating he is unfit for work. The player however failed to provide such documentation and still “expected his club to (…) pay his monthly salary”. The club alleged that while it would have been entitled to terminate the contract due to the player’s unjustified absence, pg. 9

REF. FPSD-9326 it decided not to do so in order to allow him to receive the social benefits. The club considered that, since the player was absent from work from 28 July to 31 December 2022, he was not entitled to receive his remuneration for that period.

40. In continuation, the club stressed that the discussion about the validity of clause 47 of the contract was not necessary, as it was not invoked to reduce the player’s salary. The club also denied having had the intention to reduce his salary to EUR 300; this amount corresponded in fact to the social security benefit due to the player. In other words, the club explained that the player’s salary was not reduced; he was just not entitled to receive it, as he was absent from work without justification.

41. Thus, the club denied having breached the contract during the player’s illness and maintained that its behaviour could not be considered as abusive. On the contrary, it claimed that the player acted in bad faith, as he failed to cooperate with the club, by failing to provide the necessary documentation to justify his absence. In this respect, the club pointed out that the certificate dated 1 November 2022 presented by the player was issued about 3 months after his illness had been established and was therefore not able to justify his absence. The club denied having terminated

the contract prior to its expiry or having acted in a way to force such termination.

42. Based on the foregoing, the club requested the following relief:

a. Primarily, entirely reject the claim of the player; b. Alternatively, in case the club is ordered to pay compensation to the player, i. determine that “a monthly amount of HUF 117,000, i.e. a total of HUF 585,000 or the five months should be deducted from the sum claimed as compensation by player as this is the amount that would have been reimbursed from the damages of player as social security benefit in case player had fulfilled his contractual obligations (…)”; ii. determine that “further to the above specified sum of the social security benefit, the monthly salaries payable for the month of October, November and December 2022, which add up to the sum of HUF 9,450,000 should also be deducted as [the club] notified player on 27 September 2022 (…) that player should return to his club, yet player failed to comply with this request, therefore he obviously neglected this obligations and completely refused any cooperation, therefrom from that date on, his absence is definitely unjustified absence (…); accordingly, player – even if he was acknowledged to be right in the legal concern – could only be entitled to receive a sum of HUF 5,715,000, and not the sum claimed by player”. c. Rejoinder of the Claimant

43. The Claimant reiterated his previous argumentation and added that as per the medical report of 1

August 2022, he was considered fit to play. The player, however, claimed he was not able to convince the club and finally accepted the content of the report of 17 August 2022, as well as the order of the club to go on sick leave as from 24 August 2022. He insisted that his condition was relevant for the employment relationship and should trigger the responsibility of the club. He once again rejected the club’s allegations concerning non-payment of his salaries and argued that the club admits having

terminated the contract, which he deemed to lack just cause. pg. 10

REF. FPSD-9326

44. In conclusion, the player insisted on his original requests for relief.

d. Final comments of the Respondent

45. The Respondent reiterated its previous argumentation and additionally denied that the player made several attempts to convince the club that he was fit to play. It also denied having unilaterally terminated the contract at any point. The club requested FIFA to entirely reject the claim of the player. pg. 11

REF. FPSD-9326

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

46. 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 19 February 2023 and submitted for decision on 8 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.

47. 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 par. 1 lit. b) of the RSTP

(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 a player from Serbia and a club from Hungary.

48. 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 RSTP (May 2023 edition), and considering that the present claim was lodged on 19 February 2023, the October

2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

49. For sake of clarity, the Chamber remarked that the Respondent also referred in its response that Hungarian law is to be applicable as to the substance. In this respect, the Chamber wished to recall that when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber emphasised that the main objective of the FIFA regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. By the same token, the DRC wished to point out that it is in the interest of football that the cases are based on uniform criteria rather than on provisions of national law that may vary considerable from country to country. Therefore, the Chamber deemed that it is not appropriate to apply the principles of a particular national law but rather the Regulations, general principles of law and, where existing, the Chamber’s wellestablished jurisprudence.

b. Burden of proof

50. 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, pg. 12

REF. FPSD-9326 including without limitation the evidence generated by or within the Transfer Matching System (TMS). c. Merits of the dispute

51. 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 abovementioned 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

52. 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 the termination of the contract (if any) and the player’s entitlement