FIFA - Decisión disputa Subert 26052023

REF. FPSD-8296

Decision of the Dispute Resolution Chamber passed on 26 May 2023 regarding an employment-related dispute concerning the player Ivan Ŝubert BY: Frans de Weger (The Netherlands), Chairperson Roy Vermeer (The Netherlands), member Mario Flores Chemor (Mexico), member

CLAIMANT / COUNTER-RESPONDENT:

Ivan Ŝubert, Serbia Represented by Tarik Trbić

RESPONDENT / COUNTER-CLAIMANT:

AlOrouba, Oman Represented by Hamouda Bouazza

INTERVENING PARTY: FK Sloboda, Bosnia & Hercegovina pg. 2

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I. Facts of the case

1. On 16 August 2022, the Serbian player, Ivan Ŝubert (hereinafter: player) and the Omani club, AlOrouba (hereinafter: club) concluded an employment contract (hereinafter: contract) valid as from 16 August 2022 until 14 May 2023.

2. According to the contract, the Respondent undertook to pay the Claimant a total amount of USD 35,000, payable as follows: - USD 5,000 “upon arrival”; - USD 3,000 as monthly salary (10x).

3. Art. 11.3 of the contract establishes: “If the second party (the player) want to cancel this contract then must he pay one month salary to the club (the second party). If the club want to cancel the contract during the season must pay to player one month salary.”

4. On 16 August 2022, the club remitted a payment of USD 260 to the player.

5. On 31 August 2022, the club remitted a payment of USD 2,300 to the player.

6. On 18 October 2022, the club remitted a payment of USD 2,500 to the player.

7. On 1 November 2022, the player put the club in default and requested payment of USD 8,500, corresponding to two monthly salaries and a part of the signing bonus, within 15 days.

8. On 17 November 2022, the player terminated the contract due to outstanding remuneration.

9. On 20 November 2022, the club replied to the player referring to its previous payments.

10. On 14 February 2023, the player signed an employment contract with the club FK Sloboda from Bosnia & Herzegovina, valid as from 14 February 2023 until 31 May 2023, including a monthly salary of Bosnian Mark (BAM) 596 (approx. USD 350). pg. 3

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II. Proceedings before FIFA

11. On 21 November 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

12. In his claim, the player requested payment of the following monies: - USD 9,000 as outstanding remuneration (salaries August, September and October 2022), plus 5% interest p.a. as of the due dates; - USD 20,040 as compensation for breach of contract (residual value), plus 5% interest p.a. as of 1 November 2022; - USD 18,000 as additional compensation, plus 5% interest p.a. as of 17 November 2022; - USD 2,000 as legal costs.

13. In this framework, the player argued that he had just cause to terminate the contract due to outstanding remuneration, after having put the club in default.

b. Position of the club / counterclaim

14. In its reply, the club rejected the player’s claim and lodged a counterclaim requesting payment of USD 3,000 as compensation for breach of contract, based on art. 11.3 of the

contract.

15. The club held that the player had no just cause to terminate the contract on 17 November

2022.

16. According to the club, the player was entitled to a partial salary for August 2022 (USD 1,600, pro rata) and the salaries of September and October 2022 in the total amount of USD 7,600.

17. Further, the club held that it remitted USD 2,760 as salaries and that therefore only the amount of USD 4,840 remained outstanding.

18. Such outstanding amount is less than two monthly salaries according to the club and therefore the player had no just cause to terminate the contract.

19. In any case, the club referred to art. 11.3 of the contract and held that the maximum of compensation payable shall be one monthly salary, as agreed in the contract.

20. Moreover, the club rejected the request for additional compensation and legal costs. pg. 4

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c. Reply to the counterclaim

21. In his reply to the counterclaim, the player rejected the club’s claim.

22. He reiterated his position and pointed out that all the payments received are undisputed by the parties.

23. In this context, the player pointed out that the club’s argumentation focused on art. 14bis RSTP and does not take into account the outstanding part of his signing fee. He held that the club “seriously neglected its financial obligations” and that he had just cause to terminate the contract in accordance with art. 14 RSTP.

24. Moreover, he argued that the compensation clause in art. 11.3. of the contract shall not be taken into account as it “solely favours the club” and it is disproportionate.

d. Position of FK Sloboda

25. The new club failed to submit its position.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

26. 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 21 November 2022 and submitted for decision on 26 May 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 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 (March 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 Serbian player and an Omani club. pg. 5

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28. 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 (March 2023 edition), and considering that the present claim was lodged on 21 November 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 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). c. Merits of the dispute

30. 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

31. 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.

32. In this context, the Chamber acknowledged that its task was to decide if the player indeed had just cause to terminate the contract on 17 November 2022.

33. In this framework, the DRC duly noted that the matter concerns a claim of a player against a club for breach of contract, with a counterclaim of the club.

34. According to the player, he terminated the contract with just cause due to outstanding remuneration, while the club argued that the player had no just cause since not two full monthly salaries remained outstanding at the date of termination. pg. 6

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35. The Chamber acknowledged that the player claimed not having received his remuneration corresponding to USD 9,000, more than two monthly salaries. Furthermore, the DRC established that the player has provided written evidence of having put the Respondent in default on 1 November 2022, i.e. at least 15 days before unilaterally terminating the contract on 17 November 2022.

36. The members of the Chamber wished to emphasize 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 only refers

to previous payments, which are already acknowledged by the player and not claimed. Indeed, the club provided no evidence which could prove that it paid to the Player the salaries he is requesting in the context of these proceedings.

37. Thus, on account of the above, the DRC concluded that the player had a just cause to unilaterally terminate the contract, based on art. 14bis of the Regulations.

38. Consequently, the Chamber rejected the club’s counterclaim. ii. Consequences

39. Having stated the above, the members of the Chamber turned their attention to the question of the consequences of the player’s justified termination of the contract.

40. As to the outstanding remuneration, the DRC established that the player acknowledged payments in the total amount of USD 5,060, whereby he was entitled to an amount of USD 14,000 at the time of the termination (signing fee of USD 5,000, salaries of August until November 2022; USD 12,000). In this regard, the Chamber pointed out that, as per its standard practice, the salary for November 2022 shall be awarded as outstanding remuneration as the player terminated the contract on 17 November 2022.

41. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. USD

11,940.

42. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from 17 November 2022 until the date of effective payment. pg. 7

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43. 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.

44. 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.

45. In this regard, the Chamber took note of the wording of art. 11.3. of the contract, which established that “If the second party (the player) want to cancel this contract then must he pay one month salary to the club (the second party). If the club want to cancel the contract during the season must pay to player one month salary.”.

46. The members of the DRC started to analyse the content of the clause in question and recalled the distinction between a liquidated damages clauses and buy-out clauses.

47. On the one hand, a liquidated damages clause, as classical compensation clause, “is used by the parties to establish, prior to signing the contract, the amount that will become due in compensation if such an event occurs” (Commentary on the RSTP, Chapter IV, Article 17).

48. On the other hand, the presence of a buy-out clause in the contract instead of a liquidated damages clause, leads to the conclusion that the parties “are not setting an amount of

compensation to be paid by the party at fault if the contract is terminated unilaterally due to a serious breach of contract. Rather, a buy-out clause confers a right on one of the parties to the contract to terminate the contractual relationship unilaterally and prematurely in return for the unconditional and complete payment of a predetermined sum stipulated in the contract” (Commentary on the RSTP, Chapter IV, Article 17). pg. 8

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49. Against the above background, after analysing the content of the aforementioned clause, the Chamber concluded that the relevant clause is not a liquidated damages clause but rather a buy-out clause as it seems to address the situation of the parties wishing to terminate the contract (“want to cancel this contract”) which the DRC considered as being more akin to the granting of a right and not to establish the amount of compensation which would be payable in case of a breach of contract. As such, the DRC held that art. 11.3 of the contract cannot serve as basis to establish the amount of compensation payable in the case at hand.

50. As a consequence, the Chamber determined that the amount of compensation payable by the Claimant to the Respondent 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.

51. 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 USD 18,000 (i.e. 6x USD 3,000, December 2022 until May 2023) serves as the basis for the determination of the amount of compensation for breach of contract.

52. 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.

53. Indeed, the player found employment with FK Sloboda. In accordance with the pertinent employment contract, the player was entitled to approximately USD 350 per month.

Therefore, the Chamber concluded that the player mitigated his damages in the total amount of USD 1,400 (4x USD 350; February 2023 until June 2023).

54. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation, should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Chamber confirmed that the contract termination took place due to said reason, i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation. pg. 9

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55. In this respect, the Chamber decided to award the amount of additional compensation of USD 1,400. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of the Regulations, the overall compensation may never exceed the rest value of the prematurely terminated contract.

56. Consequently, on account of all the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of USD 18,000 to the player (i.e. USD 18,000 minus USD 1,400 plus USD 9,000, limited to a maximum of

USD 18,000).

57. Lastly, taking into consideration the player’s request as well as the newly established 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 17 November 2022, namely the date of the termination of the contract, until the date of effective payment. iii. Compliance with monetary decisions

58. 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.

59. 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.

60. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount due (including all applicable interest) to the player within 45 days of notification of the decision, failing which, at the request of the player, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

61. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the player in the Bank Account Registration Form, which is attached to the present decision.

62. 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. 10

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d. Costs

63. 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.

64. 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.

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

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IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Ivan Ŝubert, is partially accepted.

2. The Respondent / Counter-Claimant, AlOrouba, must pay to the Claimant the following amount(s): - USD 11,940 as outstanding remuneration plus 5% interest p.a. as from 17 November 2022 until the date of effective payment; - USD 18,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 17 November 2022 until the date of effective payment.

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

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

5. The claim of the Respondent / Counter-Claimant is rejected.

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

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

1. The Respondent/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.

7. 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.

8. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 12

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NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION: FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 13