F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 12 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 12 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

José Luis Andrade (Portugal), member

Johan van Gaalen (South Africa), member

on the claim presented by the player,

Daniel Dimov, Bulgaria

represented by Mr Georgi Gradev

as Claimant

against the club,

Boluspor Kulübü, Turkey

represented by Mr Oytun Süllü

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 7 August 2018, the Bulgarian player, Daniel Dimov (hereinafter: the Claimant or the player) and the Turkish club, Boluspor Kulübü (hereinafter: the Respondent or the club) signed an employment contract valid as from the date of the signature until 31 May 2020.

2. On the same day, the player and the club signed a protocol (hereinafter: the protocol) providing that “if there is any divergence between this protocol and any other agreement entered into by the Parties, this protocol always prevails”.

3. In accordance with the protocol, the player was entitled to, inter alia:

 Turkish Lyra (TRY) 650,000 for the season 2018/2019:

 TRY 118,000 (EUR 20,000) cash on the date of signing the protocol;

 TRY 30,000 on 31 December 2018;

 TRY 502,000 payable in 9 monthly installments of TRY 55,777 from September 2018 until May 2019;

 TRY 29,500 as bonus if the player starts 20 matches in the starting XI in official 1st division match.

 TRY 785,000 for the season 2019/2020:

 TRY 130,000 cash on 10 August 2019;

 TRY 35,000 on 31 December 2019;

 TRY 620,000 payable in 9 monthly installments of TRY 68,888 from September 2019 until May 2020;

 TRY 29,500 as bonus if the player starts 20 matches in the starting XI in official 1st division match.

4. The protocol provided that “the player, with signing this contract, claims and confirms that he accepts the decisions of the Club Board, obeys the Professional Disciplinary Regulations of the club, he is given one copy of the 2018/2019 football season disciplinary regulations while he signs the contract, he declares and accepts that he signed every single page of the regulations, the fines will be deducted from his earnings, and in the following years of his contract, if the disciplinary regulations are not changed, he accepts and confirms that the same regulations continues in the following years.”

5. On 12 July 2019, the player put the club in default arguing that TRY 278,885 corresponding to the salaries of January to May 2019, were outstanding giving 10 days for the club to remedy its default.

6. On 23 July 2019, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration, requesting TRY 278,885 plus 5% interest p.a. as of the due dates until the date of effective payment.

7. Following his claim, the player acknowledged some payments made by the club and consequently, on 15 August 2019, he amended his claim, requesting the total amount of TRY 33,090 corresponding to the balance of May 2019’s salary.

8. On 11 August 2019, the player reiterated his default toward the club, requesting TRY 33,090 as balance of May’s salary and TRY 130,000 as down payment for the season 2019/2020 and gave 15 days for the club to remedy its default.

9. On 12 August 2019, the club informed the player that following a decision of the board of the club, he was moved out of the professional team and put in the under 19 team due to “low performance, lack of motivation and the low motivation because of his family’s absence”.

10. On 13 August 2019, the player requested to be reintegrated into the professional team and held that he did not receive the decision of the board sending him to the under 19 team, and that the argumentation used by the club was groundless.

11. On 14 August 2019, the club reiterated his previous correspondence underlining that the player was to join the under 19 team.

12. On 27 August 2019, the player unilaterally terminated the contract arguing that the “pro-rata value of the global outstanding amount” corresponded to more than two monthly salaries and also in light of his exclusion from the first team.

13. On 2 September 2019, the Claimant further amended his claim, requesting outstanding remuneration and compensation for breach of the contract, requesting the total amount of TRY 1,121,165 corresponding to :

 TRY 130,000 as outstanding down payment, plus 5% interest p.a. as from 11 August 2019;

 TRY 991,165 as compensation for breach of the contract plus 5% interest p.a. as from 27 August 2019, i.e. the residual value of the contract, mitigated by the new income of the player, plus 6 monthly salaries due to “egregious circumstances”.

 Sporting sanctions to be imposed on the Respondent.

14. Regarding the claim for TRY 33,090 corresponding to the balance of May 2019’s salary, the Claimant specifically requested that this claim be dealt separately and as such did not include it in his claim of 2 September 2019.

15. In reply to the claim of the player, the Respondent held that that it paid the Claimant a total amount of TRY 668,078.75 by means of various bank transfers and that TRY 25,500 had been imposed on the Clamant as “sportive monetary fine and other penalties regarding to his behaviours and performance”.

16. On the fines, the Respondents held that the fines were imposed due to sport performance, namely matches lost, and deducted from his salary.

17. The Respondent further argued that it paid additional TRY 18,078.85 “in the belief that contractual relation will be continued by the player for 2019/2020 season”. The club added that the request of TRY 130,000 could not be accepted as that amount is due for season 2019/2020 and the player terminated “at the same time”.

18. The Claimant informed FIFA that on 27 August 2019, he signed an employment contract with the Bulgarian club PFC Cherno More, valid as from 28 August 2019 until 10 June 2020, for a monthly salary of Bulgarian Lev (GBN) 2,578 (approx. TRY 8,500).

II. Considerations of the Dispute Resolution Chamber

1. 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 submitted to FIFA on 23 July 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. article 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), 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 Bulgarian player and a Turkish club.

3. Furthermore, 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 (edition 2020), and considering that the present claim was lodged on 23 July 2019, the June 2019 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the 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.

5. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation contained in the file. In this respect, the Chamber recalled that the parties had signed an employment contract valid as from 7 August 2018 until 31 May 2020 as well as a protocol on 7 August 2018, in accordance with which, the player was entitled to TRY 685,000 for the season 2018/2019 payable as follows, TRY 118,000 on the date of signature of the protocol, 9 monthly salaries of TRY 55,777 between September 2018 and May 2019 and a bonus of TRY 29,500 should the player start in the starting XI 20 leagues matches that season. The protocol further entitled the player to received, for the season 2019/2020 TRY 785,000 payable as follows: TRY 130,000 on 10 August 2019, 9 monthly salaries of TRY 68,888 between September 2019 and May 2020 and a bonus of TRY 29,500 should the player plays 20 leagues games in which he was in the starting XI.

6. In continuation, the members of the Chamber took into account that, on 12 July 2019, the Claimant put the Respondent in default for outstanding remuneration and following this, on 23 July 2019 he lodged a claim against the Respondent in front of FIFA for outstanding remuneration.

7. The Chamber also took note that following some payments of the Respondent, the Claimant amended his claim on 15 August 2019, requesting outstanding remuneration only, in the amount of TRY 33,090 corresponding to the balance of May 2019’s salary.

8. Following this, the DRC noticed that the Claimant put the club in default once more, this time requesting on top of his first request, TRY 130,000 corresponding to the 1st instalment of the season 2019/2020 due on 10 August 2019, and further requested to be reintegrated with the professional team. The DRC took note that the Claimant gave 15 days for the Respondent to remedy its default. Consequently, the Claimant, on 27 August 2019, unilaterally terminated the contract.

9. Subsequently, the members of the DRC recalled that the Claimant lodged a second claim, this time for outstanding remuneration and compensation for breach of contract requesting TRY 130,000 as outstanding remuneration and TRY 991,165 as compensation for breach of the contract, and specifically requesting that the claim of TRY 33,091 be dealt with separately.

10. In this regard, the DRC found it important to highlight that despite the request of the Claimant to have his claim for outstanding only of 15 August 2019 and his claim for outstanding and compensation for breach of the contract of 2 September 2019, be dealt with separately, the DRC was of the firm and unanimous opinion, that both matters were deeply connected, and found it inconvenient to have two decisions on those matters. Consequently, the DRC decided to consolidate both claims and dealt with those claims as one.

11. On the substance, the DRC took note of the diverse argumentations of the parties, mainly that the Respondent held that it paid TRY 668,078.75 to the Claimant and imposed fines on him for an amount of TRY 25,500 and that as such the Respondent considered that he did not have overdue amounts toward the Claimant and that consequently the Claimant terminated without just cause.

12. In this respect, the DRC deemed that the central issue in the matter at stake would be, thus, to determine as to whether the Claimant had just cause to unilaterally and prematurely terminate the contract on 27 August 2019.

13. In this respect, the Chamber wished to emphasize that, according to the Claimant, at the time of the termination of the contract on 27 August 2019 the balance of the salary of May 2019 and the amount of TRY 130,000 were due.

14. The Chamber then turned its attention to the arguments of the Respondent and acknowledged that according to the latter, TRY 668,078.75 had been paid to the Claimant. In this context, the DRC noted that the Respondent had submitted documentary evidence which according to the Respondent demonstrated that allegation.

15. Moreover, the Chamber took note that the Respondent argued that it had fined the Claimant, withdrawing from his due salaries TRY 25,500 because of bad behaviors and performances.

16. Moreover, the members of the Chamber acknowledged that the Claimant rejected that the fines were to be deducted from his receivables, pointing out that he did not receive the Board decisions imposing those fines and more generally contesting the reasoning behind those fines as he deemed that fines imposed on him for sportive reasons were not valid.

17. In this context, the Chamber concurred that the fines imposed on the Claimant by the Respondent shall be disregarded, since a fine based on bad sporting performances cannot be considered valid.

18. Furthermore, and irrespective of the foregoing consideration, the Chamber wished to point out that the imposition of a fine, or any other available financial sanction in general, shall not be used by clubs as a means to set off outstanding financial obligations towards players. Consequently, the Chamber decided to reject the Respondent’s argument in this connection.

19. In continuation, the DRC recalled that according to the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

20. On this note, the members of the DRC recalled that the Respondent held that he paid to the Claimant TRY 650,000 relating to the season 2018/2019 by means of various bank transfers and an additional TRY 18,078.85 “in belief that contractual relation will be continued by the player for 2019/2020 season”.

21. Furthermore, as a consequence of the aforementioned considerations and taking into account the documentation presented by the parties to the dispute, the Chamber was of the opinion that the Respondent failed to provide sufficient evidence corroborating his allegation. Especially, the Chamber noted that the evidence of payments provided by the Respondent were either untranslated, or only partially legible. Moreover, on the allegation of a payment of TRY 18,078.85, the Respondent provided no evidence at all.

22. The Chamber also took note of the argument of the Respondent according to which the instalment of TRY 130,000 could not be granted to the Claimant as it related to an amount due under season 2019/2020 and the Claimant terminated the contract prior to season 2019/2020.

23. On this matter, the members of the Chamber were eager to underline that the aforementioned instalment became due on 10 August 2019. On the chronology of the matter at hand, the DRC recalled that the Claimant put the Respondent in default for the balance of the salary of May 2019 and for the instalment of TRY 130,000 on 11 August 2019, meaning after the due date. Moreover, at the time of termination on 27 August 2019, the amount was still overdue.

24. Consequently, and since the Respondent failed to provided conclusive evidence that the balance of the salary of May 2019 as well as the instalment of TRY 130,000 due on 10 August 2019 had been paid to the Claimant, the Chamber concurred that the Respondent had seriously neglected its financial contractual obligations towards the Claimant. Especially, the Chamber found it important to underline that the instalment of TRY 130,000 was an important part of the remuneration of the player as between June 2019 and September 2019, this would have been the only remuneration received by the Claimant since he was not entitled to monthly salaries for June to August 2019 included.

25. Moreover, the members of the Chamber wanted to highlight the attitude of the Respondent. In particular, following the initial claim of the Claimant for overdue payables on 23 July 2019, as well as a second default notice on 11 August 2019, the DRC took note that on 12 August 2019, the Respondent informed the Claimant that he would be retrograded into the under 19 team due to low performance.

26. On account of all of above and taking into consideration the Chamber’s longstanding jurisprudence in this respect, the Chamber was of the unanimous opinion that in the absence of the payment of part of the salary of May 2019, and of the instalment of TRY 130,000 which represented an important part of the remuneration of the Claimant and taking into consideration the attitude of the Respondent excluding the Claimant from the main team for poor performances, the Claimant could have legitimately lost confidence in the capacity and will of the Respondent to comply with its financial obligations.

27. Consequently, the DRC decided that the Claimant had just cause to unilaterally terminate the contract on 27 August 2019 and that the Respondent is to be held liable for the early termination of the contract with just cause by the player.

28. 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. TRY 163,090 corresponding to TRY 33,090 as the balance of the salaries due under the season 2018/2019 and TRY 130,000 as the instalment due on 10 August 2019.

29. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amount of TRY 33,090 as of 1 June 2019 until the date of effective payment and on the amount of TRY 130,000 as of 11 August 2019 until the date of effective payment,

30. In continuation, having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the DRC judge focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the Claimant is entitled to receive an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

31. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant by the Respondent in the case at stake. In doing so, the members of 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 Claimant 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.

32. 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.

33. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations.

34. The DRC then turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the DRC judge to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

35. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract from its date of termination with just cause by the Claimant, i.e. 27 August 2019 until 31 May 2020 and concluded that the Claimant would have received in total TRY 655,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 550,000 serves as the basis for the determination of the amount of compensation for breach of contract.

36. In continuation, the Chamber verified as to whether the Claimant 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, 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.

37. The Chamber noted that for the relevant period, the Claimant had signed an employment contract with PFC Cherno More, as from 28 August 2019 until 10 June 2020 with a monthly remuneration of approx. TRY 8,500 and as such was able to mitigate his loss in the amount of TRY 76,500. In this regard, the Chamber deemed that the mitigated compensation of the Claimant would amount to TRY 578,500.

38. Moreover, the Chamber took note that in accordance with art. 17 par.1 (ii), subject to the early termination of the contract being due to overdue payables, in addition to the mitigated compensation, the player shall be entitled to an amount corresponding to three monthly salaries. The Chamber recalled that the overall compensation may never exceed the rest value of the prematurely terminated contract.

39. With this in mind, the DRC determined that should three monthly salaries be added to the mitigated compensation of the Claimant, said overall compensation would exceed the residual value of the contract and that consequently the residual value of the contract should be awarded as compensation for breach of the contract.

40. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the DRC concluded that the Respondent must pay the amount of TRY 655,000 as compensation for breach of contract in the case at hand, which it considered as a reasonable and justified amount of compensation.

41. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date of the termination, i.e. 27 August 2019 until the date of effective payment.

42. Furthermore, taking into account the consideration under number II./3. above, the DRC judge 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.

43. In this regard, the DRC 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.

44. Therefore, bearing in mind the above, the DRC 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.

45. Finally, 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. 24bis par. 3 of the Regulations.

46. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Daniel Dimov, is partially accepted.

2. The Respondent, Boluspor Kulübü, has to pay to the Claimant outstanding remuneration in the amount of TRY [Turkish Lira] 163,090, plus 5% interest p.a. as follows:

a. 5% interest p.a. over the amount of TRY 33,090 as from 1 June 2019 until the date of effective payment;

b. 5% interest p.a. over the amount of TRY 130,000 as from 11 August 2019 2019 until the date of effective payment.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of TRY 655,000, plus 5% interest p.a. as from 27 August 2019 until the date of effective payment.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under points 2 and 3 above.

6. The Respondent shall provide evidence of payment of the due amounts in accordance with points 2 and 3 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amounts due in accordance with points 2 and 3 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sums are 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

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). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer