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 4 June 2020

Decision of the

Dispute Resolution Chamber

passed via videoconference, on 4 June 2020,

regarding an employment-related dispute concerning the player Erdin DEMIR

COMPOSITION:

Clifford J. Hendel (USA), Deputy Chairman Elvis Chetty (Seychelles), member Tomislav Kasalo (Croatia), member

CLAIMANT:

Erdin DEMIR, Sweden

Represented by Thomas Gillis and Dominique De Waele

RESPONDENT:

SV ZULTE WAREGEM, Belgium

Contractual basis

1. On 9 February 2018, the Swedish player, Erdin Demir (hereinafter: the player or the Claimant) and the Belgian club, SV Zulte Waregem (hereinafter: the club or the Respondent) signed an employment contract (hereinafter: the contract) valid as of 1 July 2018 until 30 June 2021.

2. According to the contract, the player was, inter alia, entitled to the following amounts, in case the club would compete in the Belgian “first division”:

“All amounts are gross amounts shown below

1) Fixed monthly fee: EUR 8,000

2) Variable fees (match fees):

Championship matches A-team (if the Player starts in the basic team)

- wining the match: EUR 2,500

- a draw: EUR 750

- losing the match: EUR 0

Championship matches A-team (if the Player starts on the bench)

-wining the match: EUR 1,125

-a draw: EUR 375

-losing the match: EUR 0

(…)

5) Signing-on fee

The Player is entitled to the next signing-on fee, payable in the following way:

- EUR 120,000 payable on 15 September 2018;

- EUR 80,000 payable on 15 February 2019;

- EUR 105,000 payable on 15 September 2019;

- EUR 105,000 payable on 15 February 2020;

- EUR 110,000 payable on 15 September 2020;

- EUR 110,000 payable on 15 February 2021.

The above mentioned signing-on fee(s) will only be paid provided that the Player at the moment of payment still plays with [the Respondent].”

3. According to art. 23 of the “Belgian collective agreement regarding the labour and wage conditions of the professional football players” (hereinafter: the CBA) provided by the club, “in case of incapacity to work, the Employers/Clubs commit themselves to pay the guaranteed salary for the first month. As regards to the second (league 1A and league 1B) and the third month (only league 1A) of incapacity, the clubs will pay the difference between the fixed monthly salary and the allowance the player received from social security.”

Chain of events

4. On 21 July 2019, the Claimant was temporarily considered “medical unfit to play” by the Respondent, following an occupational accident.

5. On 24 December 2019 and 21 January 2020, the Claimant sent letters to the Respondent, requesting the outstanding amount of EUR 105,000 that corresponded to the fourth instalment of the signing-on fee that fell due on 15 September 2019.

6. On 21 January 2020, the Respondent answered the letters, stating that the Claimant is “unfit for work since 21 July 2019, although not due to a work accident”. Consequently, referring to the Belgian collective agreement regarding the labour and wage conditions of professional football players, the Respondent declared that it considered that the Claimant’s “labour agreement is suspended” and therefore refused to comply with the Claimant’s request.

Requests of the parties

7. On 27 January 2020, the Claimant lodged a claim in front of FIFA, requesting the following:

- “Claimant therefore asks the Dispute Resolution Chamber to conclude that in accordance to the legal principle ‘pacta sunt servanda’ [the Respondent] must fulfil its obligations in the employment contract, and consequently pay within 30 days as from the date of notification of the decision of the DRC the third instalment (EUR 105,000 gross) of the signing-on fee (falling due 15 September 2019) plus 5% interest as from 15 September 2019”;

- “Claimant asks the Dispute Resolution Chamber to concluded that the fourth instalment (EUR 105,000 gross), the fifth instalment (EUR 110,000 gross) and the sixth instalment (EUR 110,000 gross) have to be paid by respondent on the respective dates they fall due, being 15 February 2020, 15 September 2020 and 15 February 2021. Foreseeing the decision of the Dispute Resolution Chamber not before the falling due date of the fourth instalment of the signing-on fee, 15 February 2020, claimant asks the Dispute Resolution Chamber in its decision to conclude that also the fourth instalment (EUR 150,000 gross) has to be paid within 30 days as from the date of notification of the decision, if not already paid.

- “Claimant asks the Dispute Resolution Chamber also to conclude that, if respondent does not pay the amounts due in accordance to its decision, that it shall be banned from registering new players either nationally or internationally, up until the due amounts are paid.”

8. The Respondent rejected the claim of the Claimant in its entirety.

Position of the parties

9. In its claim, the Claimant acknowledged to have received the first two instalments of the sign-on fee. The Claimant maintained that the Respondent did not comply with its contractual obligations concerning the third instalment of the sing-on fee, i.e. EUR 105,000 payable on 15 September 2019.

10. The Claimant maintains that “because the unpaid remuneration is a signing-on fee”, the Respondent’s reasoning cannot apply.

11. In its reply to the claim, the Respondent first referred to art. 31 par. 1 of the Belgian “Federal Law on Labor Agreements of 3 July 1978” according to which “the Employee’s incapacity to fulfil his duties due to an illness or accident, suspends the execution of the labor agreement.”

12. As such, the Respondent held that the contract had been “legally suspended” since 21 July 2019.

13. The Respondent indicated that under such circumstances, the employer is responsible to pay the employee the first 7 days and then the social security of Belgium takes over.

14. In addition, the Respondent underlined that the professional football players’ collective bargaining agreement confers more benefits to players when their contracts are suspended under the aforementioned provision, in accordance with art. 23 of the CBA (cf. I.3. above).

15. The Respondent emphasised that in view of the above, it was uncontested that the contract had been suspended and that only the player’s salary remained payable under these circumstances. The Respondent insisted that the signing-on fees were bonuses, and that “the law has suspended the entire execution of the labor agreement, except for the payments of the fixed salary (or part thereof), as specified in the CBA”.

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) 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 27 January 2020. Consequently, the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 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 Swedish player and a Belgian club.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition June 2020), and considering that the claim was lodged on 27 January 2020, the January 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Nevertheless, the Chamber remarked that in its answer to the claim of the Claimant, the Respondent, inter alia, had raised that he had acted accordingly in view of Belgian labour law as well as the CBA.

5. In this respect, the DRC saw fit to emphasise that, when deciding a dispute before the DRC, FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the Chamber recalled that the main objective of the different FIFA Regulations is to create a standard set of rules to which all the actors within the football community are subject to and can rely on. This objective would not be achievable if the DRC would have to apply the national law of a specific party on every dispute brought to it. Therefore, the Chamber deemed that it is not appropriate to apply the principles of a particular national law to a dispute brought before it but rather the Regulations on the Status and Transfer of Players, general principles of law and, where existing, the Chamber’s well-established jurisprudence.

6. 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 all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

7. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

8. The members of the Chamber acknowledged that, on 9 February 2018, the player and the club had concluded an employment contract valid as from 1 July 2018 until 31 May 2021 pursuant to which the club undertook to pay to the player fixed and conditional remuneration as described in I.2 above.

9. Then, the DRC took note that on 21 July 2019 the Claimant sustained an occupational injury.

10. The Chamber observed that on 24 December 2019 and 21 January 2020, the player had put the club in default of payment of the amount of EUR 105,000 in relation to the fourth instalment of the signing-on fee that fell due on 15 September 2019, to no avail.

11. In fact, the DRC noted that the club had argued that according to Belgian labour law and the CBA, only the fixed remuneration of an injured player is due, and therefore, as the signing-on fee was part of the conditional remuneration of the player, this particular part of the player’s remuneration is not due.

12. In this regard, the Chamber first wished to emphasise that according to the DRC’s longstanding jurisprudence, an injury is not considered as a valid reason for a club to cease with the compliance of its financial obligations. However, in this context, the Chamber highlighted that the key issue in the present matter concerned the concept of signing-on fee, and in particular to determine whether such remuneration was to be considered part of the fixed remuneration of the player or part of the conditional remuneration of the player.

13. In this respect, the DRC recalled that the fixed remuneration of a player shall be comprised of any benefits, monetary or in kind, that he receives from the club in exchange of his services, as opposed to his conditional remuneration, which shall be comprised of performance-related benefits that fall due upon fulfillment of said pre-established performances.

14. Having paid particular attention to the wording and structure of the remuneration clauses foreseen in the contract (cf. I.2 above), the DRC acknowledged that the player’s monthly salary was to be considered as part of the fixed remuneration of the player. In this respect, the Chamber duly noted that it was undisputed that the player had been receiving his salaries since sustaining the occupational injury on 21 July 2019.

15. However, the DRC remarked that results-based fees were to be considered as part of the conditional remuneration of the player. Once more, the Chamber noted that the Claimant was not claiming any entitlement to these fees, having been injured since 21 July 2019.

16. In addition, the Chamber observed that prima facie the wording of the signing-on fee clause could lead to the interpretation that indeed the player needed to “play” in order to be eligible to these payments. Equally, the Chamber pointed out that such a clause could also be understood in a way that it simply required the player to be under contract with the Respondent.

17. Nevertheless, the DRC strongly emphasized that in general signing-on fees are due towards the closure of a transfer period as an incentive for him to stay with the club. The Chamber remarked that such payments might be named “loyalty bonus” in other instances.

18. What is more, the Chamber remarked that there were no explicit performance-related conditions to be fulfilled within the wording of the signing-on fee clause.

19. In view of the above, the DRC concluded that the signing-on fee was an integral part of the fixed remuneration of the player.

20. In fact, the Chamber underlined that would the spirit of the clause and the intention of the parties be that these payments were based on appearances (i.e. “playing” in the literal sense), then the parties would have explicitly pre-determined the conditions required for the payment within the clause.

21. Having determined that the signing-on fee was part of the fixed remuneration of the player, the DRC turned its attention to the other arguments the Respondent raised to justify the non-payment of the Claimant’s signing-on fee, namely the application of Belgian labour law and the CBA.

22. Having already detailed its constant practice in this respect in point II. 5 above, the Chamber concluded that the Respondent did not bring any valid reason for the withholding in full or in part of the fixed remuneration of the player.

23. What is more, the DRC referred once again to its jurisprudence on players’ injuries, and recalled that a work-related and/or occupational injury cannot be in principle considered as a valid reason for a club to cease with the compliance of its financial obligations.

24. In view of all the above, the DRC decided to reject the argumentation put forward by the Respondent in its defence.

25. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit to the Claimant the total amount of EUR 210,000 corresponding to the third and the fourth instalments of the signing-on fee of an amount of EUR 105,000 each.

26. Consequently, the members of the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 210,000.

27. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant interest as follows:

- 5% interest p.a. on the amount of EUR 105,000 as from 16 September 2019 until the date of effective payment; and

- 5% interest p.a. on the amount of EUR 105,000 as from 16 February 2020 until the date of effective payment.

28. Having paid particular attention to the requests for the award of the fifth and sixth instalments of the signing-on fee, the Chamber considered that such requests were premature, as the claim of the Claimant pre-dated their respective due dates, i.e. 15 September 2020 and 15 February 2021.

29. As such, the DRC concluded its deliberations by rejecting any further claim of the player.

30. Furthermore, taking into account the consideration under number II./3. above, the 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.

31. In this regard, the 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.

32. 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.

33. Finally, the 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.

III.

1. The claim of the Claimant, Erdin Demir, is partially accepted.

2. The Respondent, SZ Zulte Waregem, has to pay to the Claimant, the EUR 210,000 plus interest as follows:

- 5% interest p.a. on the amount of EUR 105,000 as from 16 September 2019 until the date of effective payment; and

- 5% interest p.a. on the amount of EUR 105,000 as from 16 February 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

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.

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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