FIFA - Decisión disputa Zivkovic 18102023

REF. FPSD-9303

Decision of the Dispute Resolution Chamber passed on 18 October 2023 regarding an employment-related dispute concerning the player Ante Zivkovic BY: Frans DE WEGER (The Netherlands), Chairperson Khalid AWAD ALTHEBITY (Saudi Arabia), member Peter LUKASEK (Slovakia), member

CLAIMANT:

Ante Zivkovic, Croatia Represented by SPFBIH

RESPONDENT:

FK Kukesi, Albania pg. 2

REF. FPSD-9303

I. Facts of the case

1. On 16 June 2022, the Croatian player, Ante Zivkovic (hereinafter: Claimant or player) and the Albanian club, FK Kukesi (hereinafter: club or Respondent) concluded an employment contract (hereinafter: contract) valid for the duration of “2 years”.

2. According to the contract, the Respondent undertook to pay the Claimant the following monies: - EUR 500 as monthly salary, payable until the 10th day of the following month; - EUR 6,000 as “prepayment” upon receipt of the ITC; - EUR 1,000 as bonus for “each goal scored in the Championship provided the match is won”.

3. According to the player, on an unknown date, the parties concluded an annex to the contract (hereinafter: annex), according to which the player was entitled to further salary.

4. On 2 July 2022, the parties concluded a documents titled “Image rights agreement”

(hereinafter: Image rights agreement), according to which the player is entitled to “50% of the gross revenue earned per month by the club but not less than 5,500 Euros per month for two years”.

5. On 1 December 2022, the Claimant put the Respondent in default and requested payment of EUR 25,900, corresponding to partial salaries between August and November 2022,

within 15 days.

6. On 2 December 2022, the player was invited to a meeting with the club which requested him to sign a termination agreement (hereinafter: termination agreement), according to which the player is entitled to a cash payment of EUR 17,162.

7. According to the player, during that meeting, he was threatened and physically attacked.

8. On 2 December 2022, during the player’s meeting with the club, the player’s representative

(who was not physically present in the meeting) sent an email and protested against the duress including physical aggression and pointed out that the player does not want to terminate his contract.

9. Subsequently, the player signed the termination agreement, according to him under duress, and the club remitted the amount of EUR 17,000 in cash. pg. 3

REF. FPSD-9303

10. On 3 December 2022, the player’s representative sent the following email to the club: “It is with a feeling of outrage that we take note of yesterday’s events. Your employee, Ante Zivkovic, spent close to 6 hours stranded in your office. During those 6 hours, you physically and mentally abused him in order to force him to sign a termination agreement under abusive terms. The player was even physically beaten up by the club. We hereby inform you that he sign it only to be able to leave the office. His consent was obtained under duress and we will undertake the necessary legal steps to challenge the validity of this null and void agreement”.

11. On 5 December 2022, FIFPRO sent a complaint to FIFA reporting the incident during the meeting on 2 December 2022.

12. On 6 December 2022, the player underwent a psychologic and psychiatric evaluation, which resulted in the following report: “The patient comes to a psychiatrist because of mental disorders, as he says, that developed on 02.12.2022., when he was subjected to several hours of psychophysical abuse by several

members of the board of the sports club where he has played football since the summer. He describes the details of that afternoon when he was not allowed to consult his lawyer during the negotiations on the details of repayment of the debt (he did not get it for months) and to consider the proposed with the lawyer. During several hours of negotiations, from which he was not allowed to leave, where he was also banned from using his cell phone (when he wanted to consult with lawyers and other trustworthy persons), he was punched in the head. Fearing of being killed for which he signed the offer, even though considered the same at his own detriment. He drove his own car to Croatia and left the city urgently, despite constant anxiety that "somebody could have followed and harmed him", he remained calm enough to return safely home. Since that event, he is extremely tense, the constant intrusion from that day with overwhelming anxiety, poor sleep at night, nightmare, unable to concentrate, fears of the further course of the situation. Appetite diminished, impression of emotional distance from everyday life. Otherwise, he has not been psychiatrically treated or troubled, hereditarily free of mental illness and disorders, somatically healthy, did not take any medication, does not smoke, does not consume PAT. From the status, conscious, neatly oriented, psychomotorically tense, very anxious, effectively lower basic mood, formally orderly, occupied with ruminate stress situation, nervous agitability, anxiety, without delusions and deception, cognitively held relatively slightly more hypervigilant and hypotentic attention, free from auto/ heteroaggressiveness, without noticeable distortion of reality.”

13. On 17 February 2023, the player signed an employment contract with the Bulgarian club, Hebar, valid as from 21 February 2023 until 15 June 2023, including a monthly salary of EUR 614 (total amount of EUR 2,456).

14. On 6 September 2023, the player signed an employment contract with the Romanian club,

Chindia Targoviste, valid as from 6 September 2023 until 30 June 2024, including a monthly salary of Romanian Lei (RON) 22,500 (approx. EUR 4,500; total amount of EUR 45,000). pg. 4

REF. FPSD-9303

II. Proceedings before FIFA

15. On 16 February 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

16. In his claim, the Claimant requested payment of the following monies: - EUR 8,900 as outstanding remuneration, plus 5% interest p.a. as of the due dates; - EUR 111,200 as compensation for breach of contract, plus 5% interest p.a. as of 2

December 2022; - EUR 36,000 as “compensation for moral damages or specificity of sport”, plus 5% interest p.a. as of 2 December 2022; - EUR 36,000 as additional compensation due to the egregious circumstances, plus 5% interest p.a. as of 2 December 2022.

17. In his claim, the player argued that the termination agreement is null and void since the player signed it under duress in order to be able to leave the club’s premises.

18. On account of the above, the player held that the club terminated therefore the contract without just cause on 2 December 2022 with its “behaviour” during the meeting.

19. The player argued that the amount of EUR 8,900 remained outstanding on 2 December

2022, as follows: b. Position of the Respondent

20. In its reply, the Respondent rejected the claim.

21. The club confirmed the player’s entitlement of EUR 6,000 per month, resulting from his salary (EUR 500) from the contract and the fee of EUR 5,500 resulting from the image rights agreement.

pg. 5

REF. FPSD-9303

22. However, the Respondent pointed out that “the Image Rights Agreement contains no rights or obligations anyhow related to the employment relationship”, while it is based on Albanian law.

23. Therefore, the club argued that FIFA has no jurisdiction to decide on disputes arising from the image rights agreement.

24. Furthermore, the club held that it remitted a payment of EUR 6,000 as “prepayment” to the player. Such amount was no sign-on fee but rather a prepayment of his salary in order to settle in.

25. According to the Respondent, the player’s sporting performance “dropped considerably” as of October 2022, which resulted in him getting less playtime on the pitch.

26. On account of the above, the club held that the termination agreement concluded on 2

December 2022 was in the interest of both parties, especially since the player “miscalculated the outstanding remuneration” he was entitled to.

27. The club held that it fulfilled its financial obligations after having remitted the amount of EUR 17,162 in cash.

28. Regarding the allegations of the player concerning the meeting dated 2 December 2022, the club denied having put the player under duress, especially that he was physically attacked.

29. The club pointed out that the meeting was in the interest of both parties and it took so long since the parties could not agree on the form of payment to the player, as he insisted on cash payment.

30. Further, the club needed approval from its administrator before being able to sign it.

31. The club pointed out that the player was not prevented from talking to his lawyer and that at no point during the meeting he was without his phone.

32. The Respondent held that the audio file submitted by the player is just an extract taken out of context. Further, the club held that most of the audio file is not translated and should not be taken into account.

33. The club maintained that the termination agreement was validly concluded and that the

burden of proof lies with the player to proof otherwise.

34. In this context, the Respondent held that the player failed to proof that he was under duress when signing the agreement and that his “story” was not true. pg. 6

REF. FPSD-9303

35. On account of the above, the player is not entitled to compensation for breach of contract.

c. Replica of the Claimant

36. In his replica, the Claimant reiterated his position.

37. He pointed out that the club alleged that the contractual relationship started in July 2022 only, whereby the contract clearly refers to 16 June 2022 as commencement date.

38. The player also held that the image rights agreement shall be regarded as part of the employment relationship and therefore as part of his salary.

39. The Claimant rejected the club’s argument that the amount of EUR 6,000 was part of his salary as the wording of the contract states otherwise. It is mentioned in addition to the salary and no connection is made.

40. The player held that a prepayment as such, one that would be deducted afterwards, would have had to be clearly established in the contract, which did not happen.

41. Furthermore, the Claimant rejected the club’s allegations regarding the meeting, especially the allegation that both parties intended to terminate the contractual relationship.

42. The player held that he just wanted to collect his outstanding remuneration.

43. The Claimant held that the video submitted by the Respondent only covers a part of the meeting (2 out of 5 hours) and is therefore no proof that no duress occurred on that night.

44. Moreover, the player stated that he was not free to leave at any point during the meeting.

d. Duplica of the Respondent

45. In its duplica, the Respondent reiterated its position and insisted that the player only started rendering his services in July 2022. In this regard, it submitted a different version of the employment contract, dated 5 July 2022.

46. As to the prepayment, the club argued that it was clearly agreed on a total value of EUR 144,000 for the contract, which results in 24x EUR 6,000.

47. The club reiterated his position regarding duress and pointed out that the player failed to proof the existence of it during the meeting.

48. The Respondent further argued that the consequence of a null and void termination agreement is not that the contract is terminated, but the opposite. Nevertheless, the player concluded a new contract in Bulgaria. pg. 7

REF. FPSD-9303

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

49. 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 16 February 2023 and submitted for decision on 18 October 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.

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

51. In continuation, with regard to the claimed payments in connection to the image rights agreement signed by the parties, the Chamber also had to verify whether, for formal reasons, it was competent to deal with this specific component or not. In fact it remains that this part of the claim could

possibly not be considered due to the DRC lacking competence to deal with disputes related to pure image rights.

52. While analysing whether she was competent to hear this part of the claim, the Single Judge wished to highlight that the agreement contained elements which led to believe that it was not in fact an image rights agreement but rather a separate agreement to the employment contract, i.e. directly linked to the services of the Claimant as a player.

53. As a general rule, if there are separate agreements, the DRC tends to consider the agreement on image rights as such and does not have the competence to deal with it.

However, such conclusion might be different if specific elements of the separate agreement suggest that it was in fact meant to be part of the actual employment relationship. In the case at hand, such elements appear to exist. In particular, the agreement contain inter alia stipulations regarding a monthly salary, which is typical for employment contracts. Consequently, the DRC decided not to consider the image rights agreement as such, but determined that the agreement was in fact an additional agreement to the employment contract instead. The actual title of the document is not decisive. pg. 8

REF. FPSD-9303

54. In view of all the above, the members of the Chamber established that the agreement is to be considered, meaning that it is in a position to take it into consideration the agreement when assessing the Claimant’s claim.

55. 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 16 February 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

56. 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

57. 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

58. 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 circumstances of the contract termination.

59. In this context, the Chamber acknowledged that its task was to decide if the club indeed terminated the contract without just cause on 2 December 2023 or if the parties validly concluded a termination agreement, and to decide on the consequences arising thereof. pg. 9

REF. FPSD-9303

60. According to the Claimant, the club terminated the contract without just cause on 2

December 2023, by threatening and physically attacking the player during a meeting. The player argued that the termination agreement signed during this meeting is null and void and that he is entitled to his outstanding dues as well as compensation for breach of contract.

61. The Chamber duly noted the Respondent’s arguments, according to which the termination agreement was validly concluded and that therefore no remuneration remained outstanding. The club denied having put the player under duress.

62. At first, the Chamber wished to address the amount of the player’s monthly salary since it was based on the contract and the image rights agreement. Taking into account the above conclusions taking into account the image rights agreement as addition to the contract, the DRC concluded that the player was entitled to a monthly remuneration of EUR 6,000 (EUR 500 from the contract and EUR 5,500 from the image rights agreement) as monthly salary.

63. Furthermore, the members of the Chamber noted that the parties do not agree on the start date of the contractual relationship. The player held that the contract was signed on 16

June 2022 already, the club insisted that the player started rendering his services only in July 2022 and that an identical contract was signed and uploaded to the Transfer Matching System (TMS). According to the information contained in TMS, the contractual relationship indeed started in July 2022.

64. Furthermore, the nature of the “prepayment” in the amount of EUR 6,000 had to be addressed by the DRC as the contractual stipulation is not entirely clear. Since it is not stipulated differently, the Chamber decided to interpret it as “sign-on fee”, rather than an actual prepayment that would be deducted from the salary later on. In the DRC’s opinion, if the parties would have wanted to agree on such a scheme, they should have clearly stipulated so in the contract.

65. The DRC then proceeded to analyse the events on 2 December 2022. It appears that the player claimed outstanding remuneration and the parties met for a meeting on 2

December 2022, where eventually a termination agreement was signed. The parties dispute the course and content of such meeting, but according to the player he signed the termination agreement under duress. pg. 10

REF. FPSD-9303

66. The Chamber subsequently examined the existence of said alleged duress and found the

following indications: a. Player immediately protested against the validity of the termination agreement;

b. Timeline of the incident and the parties’ reactions (correspondence from the lawyer during the meeting, psychological evaluation two days later); c. Audio file shows heated discussion (but is barely translated); d. Length of the meeting (5 to 6 hours) is undisputed (which indicates a certain pressure on player); e. Psychological report indicates the existence of a certain trauma.

67. On the other hand, the DRC stated that no direct proof of the existence of the physical attack is on file. In this regard, the club submitted a video covering about 2 hours of the meeting, where no physical attack is visible. However, the members of the Chamber wished to point out that the meeting lasted between 5 and 6 hours, therefore such evidence does not proof that no duress occurred.

68. Moreover, the Chamber analysed the content of the termination agreement and noted that it does not contain anything in favour of the player, who allegedly renounced his salaries for another 1,5 years with this termination and only gets his outstanding dues only. The DRC concluded that the terms of the termination agreement are unbalanced that the player would waive a part of his salaries for work he already performed, which is against the Chamber’s jurisprudence.

69. On account of the above, the DRC decided that the termination agreement is null and void and that the club therefore terminated the contract without just cause on 2 December 2022, as it was no longer interested in the player’s service. ii. Consequences

70. 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

Respondent.

71. As to the outstanding remuneration, the Chamber concluded that the player was entitled to the amount of EUR 36,000 until the end of November 2022 (July to November 2022, plus sign-on fee, 6x EUR 6,000).

72. In accordance with the conclusion above, we do not award the partial amount claimed for

June 2022. The player acknowledged receipt of EUR 12,900 as partial payments before the termination agreement as well as the cash payment of EUR 17,000 after the agreement.

73. 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 pg. 11

REF. FPSD-9303 which were outstanding under the contract at the moment of the termination, i.e. EUR 6,100.

74. 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 3 December 2022 until the date of effective payment.

75. 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.

76. 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.

77. 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.

78. 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 114,000 (19x EUR 6,000, December 2022 until June 2024) serves as the basis for the determination of the amount of compensation for breach of contract.

79. 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 pg. 12

REF. FPSD-9303 compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

80. Indeed, the player found employment with the Bulgarian club, Hebar between 21 February 2023 and 15 June 2023 as well as with the Romanian club, Chindia Targoviste. Therefore, the Chamber concluded that the player mitigated his damages in the total amount of EUR

47,456.

81. 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 66,544 to the player (i.e. EUR 114,000 minus EUR 47,456), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

82. 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 3 December 2022 until the date of effective payment.

83. The player’s claim for damages is rejected due to the lack of contractual basis. iii. Compliance with monetary decisions

84. 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.

85. 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.

86. 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. pg. 13

REF. FPSD-9303

87. 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.

88. 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.

d. Costs

89. 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.

90. 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.

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

REF. FPSD-9303

IV. Decision of the Dispute Resolution Chamber

1. The Football Tribunal has jurisdiction to hear the claim of the claimant, Ante Zivkovic.

2. The claim of the Claimant is partially accepted.

3. The Respondent, FK Kukesi, must pay to the Claimant the following amount(s): - EUR 6,100 as outstanding remuneration plus 5% interest p.a. as from 3 December 2022 until the date of effective payment; - EUR 66,544 as compensation for breach of contract without just cause plus 5% interest p.a. as from 3 December 2022 until the date of effective payment.

4. Any further claims of the Claimant are rejected.

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

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 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 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. 15

REF. FPSD-9303

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 t