F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 25 February 2021

Decision of the

Dispute Resolution Chamber

passed on 25 February 2021,

regarding an employment-related dispute concerning the player Arturo Rafael Mina Meza

COMPOSITION:

Geoff Thompson (England), Chairman Stefano Sartori (Italy), member

Joseph Antoine Bell (Cameroon), member

CLAIMANT:

Arturo Rafael Mina Meza, Ecuador

Represented by Ayse Sena Ciliz

RESPONDENT:

Yeni Malatyaspor, Turkey

Represented by Mr Burak Cakir

I. FACTS

1. On 21 August 2017, the Ecuadorian player, Mr Arturo Rafael Mina Meza (hereinafter: the player or the Claimant) and the Turkish club, Yeni Malatyaspor (hereinafter: the club or the Respondent), concluded an employment contract (hereinafter: the contract), valid as from the date of its signature until 31 May 2020.

2. In accordance with clause 3 of the contract, the club undertook to pay to the player –for the season 2019 / 2020– a monthly salary of USD 110,000, which were payable on the 30th day of the month (with the exception of the salary of February 2020, which was payable on the 28th of February 2020).

3. By means of his correspondence dated 19 August 2020, the player put the club in default of payment in the amount of USD 510,000, granting the club a 10 days´ deadline to remedy the default; however, to no avail.

4. Thereafter, the player acknowledged that the club made a partial payment in his favour in the amount of USD 110,000.

5. In his request for relief, the player requested to be awarded outstanding remuneration in the amount of USD 400,000, plus 5% interest p.a. as from their respective due dates, broken down by the player as follows:

- USD 70,000 corresponding to the unpaid part of the salary of February 2020;

- USD 110,000 corresponding to the salary of March 2020;

- USD 110,000 corresponding to the salary of April 2020;

- USD 110,000 corresponding to the salary of May 2020.

6. In his claim, the Claimant held that, despite having complied with his contractual obligations and having put the Respondent in default of payment, the latter has not complied with its contractual obligations towards him.

7. On its part, the Respondent acknowledged being in default of payment regarding the amount of USD 290,000, corresponding to the requested instalments of February, March and April (70,000 + 110,000 + 110,000 = 290,000).

8. As to the salary of May 2020, the club held that the said monthly salary was not due, since the club lawfully reduced the player salary of March in accordance with the directives issued by the Turkish Football Federation (hereinafter: the TFF) and the Covid-19 Guidelines provided by FIFA.

9. In this regard, the club argued the following:

- That it sent an email to the player on 19 April 2020, informing the player about the measures adopted by FIFA and the TFF following the “30% decrease in season revenues” and that the club would soon make a proposal to the player regarding modifications of the contract, always in “a reasonable and proportionate manner”

- That, on 6 August 2020, the club sent an email to the player, where the former stated the following: “Hello, you have not filled the survey that our club sent to you since long time. E-mail has been sent to you in the e-mail address below for Covid-19 researches. burak@yenimalatyasporhukuk.org. Please reply survey as soon as possible”;

- That, on 7 August 2020, the club sent another correspondence to the player; correspondence whose content is identical to the one sent on 6 August 2020.

- That, whereas other players of the team agreed to conduct negotiations with the club and signed the corresponding amendments to the contract, the player did not reply to any of the emails sent by the club. In this respect, the Respondent maintained the following: “In this discretion, the decrease made by the club to other players was taken as a basis and a unilateral decrease was made for the May 2020 salary of the player”.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analyzed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the June 2020 edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasized that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which involves an Ecuadorian player and a Turkish club.

3. In continuation, the Dispute Resolution Chamber analyzed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 14 October 2020, the October 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber noted that, on 21 August 2017, the parties concluded an employment contract (the contract) valid as from 21 August 2017 until 31 May 2020.

6. Subsequently, the Chamber acknowledged that the Claimant lodged a claim before FIFA, requesting, inter alia, outstanding remuneration in the amounts of USD 400,000, as displayed in point I. 5 above.

7. In this context, the DRC took note of the argumentation brought forward by the Respondent, who firstly acknowledged owing to the player the amount of USD 290,000, corresponding to the requested instalments of February, March and April (70,000 + 110,000 + 110,000 = 290,000).

8. In view of the above, the Dispute Resolution Chamber unanimously concluded that, since the entitlement of the player to the abovementioned monthly instalments have a contractual basis and, insofar the Respondent itself acknowledged being in default of payment regarding the amount of USD 290,000, the said amount shall be awarded to the Claimant by virtue of application of the general principle of law, pacta sunt servanda.

9. On the other hand, as to the entitlement of the player to receive the amount of USD 110,000 –corresponding to the salary of May 2020–, the DRC noted that the club argued that the player is not entitled thereto, since it lawfully applied a reduction of the player´s salary during the season 2019/2020; salary reduction that –as per the Respondent– was lawfully practiced insofar it represented less than 10% of the player´s monetary entitlements during the relevant season.

10. The DRC further noted the argumentation provided by the Respondent as justification for the non-payment of the contractually agreed salary of May 2020, who maintained that it tried to negotiate with the player the salary reductions, but the player never replied to the emails sent by the club. Furthermore, the Respondent held that the rest of the players of the team “waived their salary receivables for May 2020” and that, consequently, the same reduction shall be applied to the Claimant in order to treat all players equally.

11. In this point, the DRC referred to the Covid-19 guidelines issued by FIFA in April 2020, in accordance with which clubs and players were encouraged to work together to find agreements and solutions during the period when football is suspended. In this regard, the Chamber emphasized that unilateral decisions that alter the contractual rights and obligations of the parties are not permitted, unless they are made in accordance with national law or are permissible within collective bargaining agreement structures or another collective agreement mechanism.

12. In this regard, the Chamber noted that the Respondent did not submit any documentary evidence by means of which it could be corroborated that the salary reduction practiced on the player´s entitlements was based on applicable national law or any sort of collective bargaining agreement.

13. In this context, and in order to assess whether the salary reduction imposed by the club was lawful or not, the DRC decided to take into consideration the following aspects:

- whether there was a genuine attempt by the club to reach agreement with the players: in this regard, the DRC noted that the club provided –as evidence of having attempted negotiations with the player– 2 emails allegedly sent to the Claimant on 6 and 7 August 2020, whereby the Respondent just requested the player to fill a “survey”. In this regard, the Chamber observed that the Respondent failed to provide evidence as to the content of the surveys and the relevance thereof with the negotiation of the salary reduction to be practiced on the player´s salary;

- what the economic situation of the club is: in this respect, the DRC noted that the Respondent only provided a statement made by the club itself on 19 April 2020, where it is indicated that the club had suffered a “30% decrease in our season income so far”. What is more, the DRC observed that no evidence was provided by the club as to its financial situation in order for the Chamber to properly evaluate whether the non-payment of the salary of May 2020 was reasonable or not;

- the proportionality of any adjustment to player contracts: in this regard, the DRC emphasized that no valid explanation was provided by the club as to the proportionality of the reduction applied;

- the net income position of players after any contract adjustment: in this respect, the Chamber noted that the net income of the player after the imposition of the salary reduction seems to amount to approximately 90% of the player’s salary for the season 2019/2020 as per the contract. Nevertheless, continued the Chamber, the fact that the said decrease was unilaterally imposed by the club without any previous –proved– negotiation attempt, would turn the said reduction into an unlawful reduction, insofar it was unilaterally decided by the club without any legal or conventional basis;

- whether players have been treated equally or not: In this regard, the DRC noted that the club stated that the said salary reduction was imposed on the rest of the team and that the Respondent provided copies of settlement agreements allegedly concluded with other players of the team. In this respect, the DRC concluded that the authenticity of the said settlement agreements cannot be confirmed beyond any reasonable doubt. What is more, continued the Chamber, the right of the club to drag along the Claimant –without any existing contractual clause allowing the said practice– seems to be too burdensome to be considered as a lawful practice.

14. In view of all of the above, the Chamber determined that the salary reduction imposed by the Respondent was not in compliance with the FIFA guidelines on Covid-19 and that the Respondent has not provided sufficient documentary evidence in order to support that it was lawfully imposed.

15. On account of the above considerations and the documentation on file, the DRC decided that, in application of the legal principle of law, pacta sunt servanda, the Respondent is liable to pay to the Claimant the remuneration due to the player as per the contract, i.e. the amount of USD 400,000, consisting of the following entitlements:

- USD 70,000 corresponding to the unpaid part of the salary of February 2020; - USD 110,000 corresponding to the salary of March 2020; - USD 110,000 corresponding to the salary of April 2020; - USD 110,000 corresponding to the salary of May 2020.

16. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence in this respect, the DRC decided to award the Claimant interest of 5% p.a. on the outstanding moneys, as follows:

- on the amount of USD 70,000, as from 29 February 2020; - on the amount of USD 110,000, as from 31 March 2020; - on the amount of USD 110,000, as from 1 May 2020; - on the amount of USD 110,000, as from 31 May 2020.

10. In this point, the Chamber made reference to art. 12bis of the Regulations and established that, insofar the Claimant put the Respondent in default of payment on 19 August 2020, i.e. once more than 30 days had elapsed since the date on which the requested instalments fell due, and had thereby granted the Respondent a 10 days´ deadline to remedy the default, without the Respondent complying with its financial obligations towards him, the requirements set in the aforementioned art. 12bis were met and, therefore, the Respondent shall be sanctioned in accordance with art. 12bis para. 4 of the Regulations.

11. In this regard, the Chamber noted that, insofar the present infraction was the first offense committed by the club during the last 2 years in a case that falls within the scope of overdue payables in the sense of art. 12bis of the Regulations, a warning shall be imposed on the Respondent ex. art. 12bis para. 4 lit a) of the Regulations.

12. Furthermore, taking into account the previous considerations, the Dispute Resolution Chamber referred to par. 1 and 2 of art. 24bis 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.

17. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

18. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

19. Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.

20. The DRC concluded its deliberations on the present matter by establishing that the claim of the Claimant is accepted.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Arturo Rafael Mina Meza is accepted.

2. The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the following amount:

- USD 400,000 as outstanding amount plus 5% interest p.a. as follows:

o 5% interest p.a. on the amount of USD 70,000 as from 29 February 2020 until effective payment,

o 5% interest p.a. on the amount of USD 110,000 as from 31 March 2020 until effective payment,

o 5% interest p.a. on the amount of USD 110,000 as from 1 May 2020 until effective payment,

o 5% interest p.a. on the amount of USD 110,000 as from 31 May 2020 until effective payment,

3. A warning is imposed on the Respondent.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

7. The decision is rendered free of costs.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 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 20 of the Procedural Rules).

CONTACT INFORMATION:

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