FIFA - Decisiones estatuto del jugador - Berber 19052023

REF. FPSD-9495

Decision of the Players’ Status Chamber passed on 19 May 2023 regarding an employment-related dispute concerning the coach Davor Berber BY: Javier Vijande Penas, Argentina

CLAIMANT:

Davor Berber, Serbia Represented by Min Park

RESPONDENT: Football Association of Maldives, Maldives pg. 2

REF. FPSD-9495

I. Facts of the case

1. On 19 January 2022, the Serbian coach, Mr Davor Berber (hereinafter: the coach or the Claimant / Counter-Respondent), and the Football Association of Maldives (hereinafter: the FAM or the Respondent / Counterclaimant), concluded an employment contract valid as from the date of signature until 18 January 2023 (hereinafter: the employment contract).

Contextually, the coach was employed as the Head Coach of the FAM’s Senior Women’s Team.

2. According to clause 10 of the employment contract, the FAM undertook to pay the following amounts to the coach until the 10th day of each month:

a. USD 5,500 net as salary; b. USD 500 as food allowance; and c. USD 250 as transport allowance.

3. Additionally, the same clause 10 of the employment contract also established that the

coach would be entitled to the following bonuses: a. USD 1,000 net for winning an international match against a higher-ranked team; b. USD 300 net for winning an international match against a lower-ranked team. The previous claim before FIFA and the existing facts

4. On 26 April 2022, the coach (via his agent) put the FAM in default and requested payment of USD 15,925 within 10 days. The debt was broken down as follows:

a. USD 13,753 as the pro rata salary from 16 January until 31 March 2022; b. USD 1,250 as the pro rata food allowance from 16 January until 31 March 2022;

c. USD 625 as the pro rata transport allowance from 16 January until 31 March 2022; d. USD 300 as bonus for the match won against Seychelles on 16 February 2022 (cf. clause 10.4 of the employment contract).

5. On 6 May 2022, the coach lodged a first claim against the FAM before the FIFA Players’ Status Chamber (PSC), which was filed under reference no. FPSD-5981 (hereinafter: the PSC Claim). In short, the coach argued that the FAM had failed to honour its financial duties per pg. 3

REF. FPSD-9495 the employment contract and requested FIFA (i) to terminate their relationship; and (ii) to award him the total amount of USD 75,300 net.

6. On 23 May 2022, the FAM was invited to file its reply to the PSC Claim, however it failed to do so within the deadline granted by the FIFA general secretariat.

7. On 17 June 2022 and upon request of clarification by the FIFA general secretariat, the coach confirmed that he was still “under contract” with the FAM and no official termination had taken place to that date.

8. On 2 August 2022, the PSC passed its decision on the basis of the PSC Claim, the grounds of which were notified to the parties on 18 August 2022 (hereinafter: the Decision). The Decision established inter alia the following: As to the admissibility “14. [...] the Single Judge took due consideration that the Claimant expressly confirmed that he is ‘still under contract with Maldives Football Association’, as well as requested FIFA’s intervention to terminate their employment relationship. The Single Judge further noted that the Claimant was awarded the opportunity to clarify his contractual status and was equally warned that the termination of a contract could only be performed by the parties and not by FIFA.

15. In this respect, the Single Judge recalled that that, in line with art. 4 of Annexe 2 of the FIFA RSTP (July 2022 edition), either party to an employment contract between a coach and a member association may terminate the contract if said party deem to have a just cause. Moreover, in case of a dispute, it is up to the competent decision-making body to establish whether a contractual breach occurred (with or without just cause), who is to be deemed responsible, and what are the consequences of such a breach (cf. art. 6 of the Annexe 2 of the FIFA RSTP).

16. In other words, the Single Judge outlined that it is not up to FIFA to terminate an employment contract between a coach and a member association, rather to rule upon the consequences of such termination on the basis of art. 22, par. 1, lit. c) of the FIFA RSTP. It follows that any termination should be declared by the parties themselves since terminating an employment agreement on behalf of a party falls outside the scope of the

FIFA RSTP.

17. As a result, the Single Judge determined that she was not in a position to terminate the employment contract between the parties, as requested by the Claimant. Consequently, she decided that this specific claim of the Claimant was inadmissible”. (emphasis added) pg. 4

REF. FPSD-9495

As to the substance • The Claimant was awarded the outstanding remuneration until the date of the Decision (i.e., July 2022), amounting to USD 39,919.34 net; and • “as there was no proof of termination on file, any other monetary request made by the Claimant in connection with the termination employment contract was premature”.

9. On 2 November 2022, the FAM paid the coach the amounts included in the Decision.

New facts brought up by the parties in the case at hand

10. On 24 March 2022, the coach, via text message from his representative in the electronic

application WhatsApp, informed the FAM of his will to travel to his home country (Serbia) during the month of Ramadan.

11. On 26 March 2022, the FAM accepted the coach’s request to leave the country. As such, the coach issued a declaration stating that he would be on vacation as from 2 April until 5 May 2022, as well as he informed that he would like to return on 8 May 2022.

12. On 3 April 2022, the coach flew from Male (Maldives) to Belgrade (Serbia) with a stopover in Doha (Qatar). The one-way flight tickets were issued by the FAM, with no return.

13. By letter dated 6 February 2023 and sent on 7 February 2023, the coach put the FAM in default and requested payment of USD 36,622.97 (i.e., his salaries from August 2022 until

January 2023).

II. Proceedings before FIFA

14. On 5 March 2023, the coach filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Claim of the coach

15. According to the coach, following the PSC Claim and the Decision, the employment contract remained valid and binding as no termination was notified by any of the parties.

16. Consequently, he claimed to be entitled to the outstanding remuneration for the period between July and January 2023 amounting to USD 36,622.97 net, broken down as follows: “A. USD 6,250 net as the salary (USD 5,500), food allowance (USD 500) and transport allowance (USD 250) of August 2022; pg. 5

REF. FPSD-9495

B. USD 6,250 net as the salary (USD 5,500), food allowance (USD 500) and transport allowance (USD 250) of September 2022;

C. USD 6,250 net as the salary (USD 5,500), food allowance (USD 500) and transport allowance (USD 250) of October 2022;

D. USD 6,250 net as the salary (USD 5,500), food allowance (USD 500) and transport allowance (USD 250) of November 2022;

E. USD 6,250 net as the salary (USD 5,500), food allowance (USD 500) and transport allowance (USD 250) of December 2022;

F. USD 3,629.02 net as the pro rata salary (USD 3,193.54), food allowance (USD 290.32) and transport allowance (USD 145.16) of January 2023; G USD 1,743.95 net as the 5% interests (5% of Remuneration from August 2022 to January 2023, USD 34,879.02)”.

b. Reply and counterclaim of FAM

17. On 30 March 2023, the FAM filed its reply to the claim of the coach and lodged a counterclaim against him.

18. In his reply, the FAM argued that the coach failed to fulfil his duties per the employment contract and abruptly left the country in the end of 2022. Consequently, it suggested that no amount was due to the coach, and, on the contrary, that the latter should be liable to pay a compensation for the damages caused.

19. In particular, the requests for relief of the FAM were as follows, quoted verbatim: “1.1.1. The claim is rejected. 1.1.2. The conclusion of the Agreement to be determined as by on violation and unambiguously terminated by the Claimant. 1.1.3. Where the Claimant is not entitled to make any further claims, as the Claimant has been paid in full and final till the date of Resignation / Conclusion, leaving no overdue or pending payables.

1.1.4. And, for the statement of the Respondent to be accepted on all counts. 1.1.5. And award the Respondent USD 40,000 in damages incurred due to the violation of Mr Davor Berber of these obligations and responsibilities in fleeing the country without pg. 6 REF. FPSD-9495 notice and resigning without cause or following the expected professional procedural standards”. c. Reply to the counterclaim of the coach

20. On 5 April 2023, the coach filed his reply to the counterclaim of the FAM.

21. In this opportunity, the coach explained that he was authorized by the FAM to leave on holidays to Serbia in April 2022 and, since then, was never requested to resume his services. In the coach’s opinion, it was for the FAM to adopt proactive steps for him to return to the Maldives, however and as no action was taken (i) the employment contract continued in force; and (ii) the FAM should be liable to pay his entire remuneration.

22. Given the above, the coach reiterated his requests for relief per his statement of claim.

d. Final comments of the FAM

23. The FAM failed to file its final comments on this matter, in spite of being invited to do so by the FIFA general secretariat.

III. Considerations of the Players’ Status Chamber

a. Competence and applicable legal framework

24. First of all, the Single Judge of the Players’ Status Chamber (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 5 March 2023 and submitted for decision on 19 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.

25. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 2 in combination with art. 22 lit. c) of the Regulations on the Status and Transfer of Players (March 2022 edition), the PSC is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Serbian coach and the Football

Association of Maldives.

26. For the sake of completeness, the Single Judge highlighted that the Decision passed by the PSC on 2 August 2022 was taken based exclusively on the documentation available on file pg. 7

REF. FPSD-9495 of such proceedings and, moreover, is final and binding. Consequently, he pointed out that no further consideration was to be made as to the conclusions and outcome therein reached as they constitute res iudicata.

27. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he 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 5 March 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

28. The Single Judge 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 Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

c. Merits of the dispute

29. The competence and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments, and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

30. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that it pertains to a claim for outstanding remuneration lodged by the coach against the FAM, as well as a counterclaim for damages by the latter against the coach.

31. In particular, the Single Judge observed that the coach claims to be entitled to his remuneration from August 2022 until January 2023 plus interests. The FAM, on the other hand, disputes such entitlement by alleging that no service was provided for the relevant period, therefore no remuneration was due.

32. In this context, the Single Judge turned his attention to the documentation on file and noted that it remained undisputed between the parties that in April 2022 the coach left Maldives pg. 8

REF. FPSD-9495 to Serbia on holidays and did not resume his services. The Single Judge found it decisive that, in the meanwhile, and following the coach’s departure, the parties did not exchange any correspondence and/or engaged in any type of conversation. In other words: neither the club nor the coach put the counterparty in default nor adopted any measure in order to fulfill their respective contractual obligations.

33. Consequently, the Single Judge determined that there was no other option rather than to establish that both parties lost interest in pursuing their employment relationship. In his view, both the coach and FAM departed from the execution of the employment contract, which was then considered de facto terminated.

34. In light of the above, the Single Judge decided that no additional remuneration or compensation shall be granted to any of the parties. Therefore, both the claim and the counterclaim were rejected.

d. Costs

35. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

36. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

37. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 9

REF. FPSD-9495

IV. Decision of the Players’ Status Chamber

1. The claim of the Claimant / Counter-Respondent, Davor Berber, is rejected.

2. The counterclaim of the Respondent / Counterclaimant, Football Association of Maldives, is rejected.

3. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero Chief Legal & Compliance Officer pg. 10

REF. FPSD-9495

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. 11