F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 8 October 2020

Decision of the

Dispute Resolution Chamber

Passed on 8 October 2020,

regarding an employment-related dispute concerning the player Adam Mieczyslaw Stachowiak

COMPOSITION:

Geoff Thompson (England), Chairman

Stephane Burchkalter (France), member

Joseph Antoine Bell (Cameroon), member

CLAIMANT:

ADAM MIECZYSLAW STACHOWIAK, Poland

Represented by Att. Bora Imadoglu

RESPONDENT:

DENIZLISPOR KULUBU, Turkey

I. FACTS OF THE CASE

1. On 20 June 2019, the Polish player, Adam Mieczyslaw Stachowiak (hereinafter: the player or the Claimant), and the Turkish club, Denizlispor Kulubu (hereinafter: the club or the Respondent) signed an employment contract valid as from 20 June 2019 until 31 May 2020 (hereinafter: the contract).

2. In accordance with the contract, the Respondent undertook to pay to the Claimant inter alia the following amounts:

- EUR 245,000 net as salaries, payable in 10 equal instalments of EUR 24,500 each, due on a monthly basis between 31 August 2019 and 31 May 2020;

- EUR 25,000 as a bonus “if the [player] plays in the official league matches at the number of 25 or above”

3. Clause 6 of the contract read as follows: “In case where [the club] lapses into default for a period longer than sixty (60) days with regard to any payment, [the player] shall notify the situation to the [the club] in written from and grant a 15-day deadline to [the club] for the execution of the payment. If [the club] does not pay the unpaid amount, the footballer shall have the option to terminate the contract unilaterally”.

4. By correspondence dated 3 April 2020, the Claimant put the Respondent in default of payment of his salaries of January, February and March 2020, in the total amount of EUR 73,500, as well as EUR 25,000 corresponding to the bonus for having player in 25 matches, setting a time limit of 15 days for the club to remedy the default.

5. After sending such default notice, the club paid, and the player acknowledged to have received, the amount of EUR 10,000.

6. On 22 April 2020, the player terminated the contract in writing.

II. PROCEEDINGS BEFORE FIFA

7. On 11 May 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

8. According to the Claimant, the club failed to pay him his salaries of January, February and March 2020, as well his EUR 25,000 bonus, and hence deems he terminated the contract with just cause. The player argued that after having put the club in default on 3 April 2020, the latter only paid EUR 10,000.

9. Furthermore, the player provided evidence of having played in the cited 25 matches.

10. The requests for relief of the Claimant were the following:

- EUR 63,000 for unpaid salaries;

- EUR 25,000 for bonus “played 25 games”;

- EUR 49,000 for “damages of termination of contract”

- 5% interest “which will be calculated as per the date of payment which it should have been paid with imposing all jurisdiction costs if any to the club”.

b. Position of the Respondent

11. According to the Respondent, the contract was terminated without just cause by the Claimant on 22 April 2020.

12. In fact, the Respondent referred to art. 6 of the contract, according to which the Claimant had the right to terminate the contract only if:

a. The Respondent was in default “for a period longer than 60 days with regard to any payment”; and

b. The Claimant had given the Respondent a 15-day deadline to comply; and

c. The Respondent did not pay the requested amount after the set deadline.

13. In this respect, the Respondent pointed out that the Claimant sent his default notice on 3 April 2020, but did not “Only” request his salary of January 2020 (which would have been in accordance with art. 6 of the contract) but also February and March 2020. What is more, the Respondent stated that after the suspension of the Turkish league on 19 March 2020, it made a “payment in good faith” of EUR 10,000 to the Claimant.

14. In view of the above, the Respondent submitted that the Claimant would have in principle been entitled to terminate the contract in line with art. 6 of the contract for the unpaid salary of January 2020 on 1 April 2020. The Respondent however emphasised that as the league was suspended on 19 March 2020, the “suspension of the contract started” at that date and therefore concluded that the Respondent terminated the contract without just cause.

15. Then, the Respondent declared that the Claimant had been fined for missing three training sessions at the beginning of September 2019, in line with its club rules to which the Claimant was a signatory, and was fined EUR 5,000 accordingly. The Respondent filed copies of signed rules as well as a copy of disciplinary procedure in question in support of its position.

16. Furthermore, the Respondent indicated that on 4 March 2020 the Claimant used improper words towards the members of its board and was fined EUR 10,500 in line with the club’s rules. The Respondent indicated that the “defense of the player was not asked by [the Respondent] as this was clear breach and there was nothing to explain or provide an excuse.”

17. Finally, the Respondent provided a series of payment receipts made to the Claimant, which correspond to his dues for the period June to December 2019, as well as the EUR 10,000 payment that it declared having made.

18. The Respondent made the following requests for relief:

- Declare that the Claimant terminated his contract without just cause;

- Declare that the fines which were imposed to the Claimant (EUR 5,000 + EUR 10,500) are valid;

- Deduct said fines from the outstanding salaries of the Claimant if there are any;

- Decrease the March salary of the Claimant on a pro-rata basis;

- Reject the claim for compensation of the Claimant;

- “Postpone the meeting date of the case to provide our club to present its position clearly related to economic damage because of coronavirus”

- Reject all the claims of the Claimant.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

19. 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 11 May 2020 and submitted for decision on 8 October 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

20. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and b) of the Regulations on the Status and Transfer of Players (edition October 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 Polish player and a Turkish club.

21. 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 Player (edition October 2020), and considering that the present claim was lodged on 11 May 2020, the March 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

22. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties.

23. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

24. The competence of the DRC and the applicable regulations having been established, the DRC entered into the merits of the dispute. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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.

i. Main legal discussion and considerations

25. 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 whether the player had just cause to terminate the contract on account of disciplinary proceedings conducted against the player, as well the contents of clause 6 of the contract, and the suspension of the local league.

26. In this context, the Chamber acknowledged that it its task was to determine whether the club had breached the contract by failing to pay the player his remuneration, and consequently whether the player had just cause to terminate the contract.

27. By doing so, the Chamber firstly observed that the Respondent did not dispute that it did not comply with its financial obligations, but rather contested the amounts due as fines were apparently imposed on the Claimant, and that the month of March 2020 should be calculated pro-rata in view of the suspension of the football season.

28. In the Chamber’s view it therefore stood undisputed therefore that the club did not comply with its financial obligations. To this end, by the time the player terminated the contract, he was owed EUR 88,500, comprising his salaries of January, February, and March 2020, and a bonus of EUR 25,000, minus EUR 10,000 paid by the club. The Chamber was firm to conclude, accordingly, that such amount comprises of more than two monthly salaries.

29. For the sake of completeness, the DRC noted that the player also put the Respondent in default, granting a deadline of 15 days for it to cure its breach. The DRC also observed that the player demonstrated that by 14 March 2020 he had player 26 matches, therefore by 31 March 2020 the club should have paid his EUR 25,000 bonus.

30. In continuation, the Chamber turned to the matter of the disciplinary proceedings, and noted that unlike those conducted in September 2019 – in which the player was granted the opportunity to defend himself – the disciplinary proceeding of March 2020 did not follow the same line as the player was not able to file his position.

31. Consequently, the DRC decided that the penalty imposed on the player in March 2020 cannot be considered valid. In this respect, the DRC emphasized that from the receipts filed by the Respondent, the player was paid EUR 19,500 on September 2019, therefore the penalty of EUR 5,000 imposed on him in such month had already been honoured by the Claimant.

32. Lastly, the DRC took note of the contents of clause 6 of the contract. Accordingly, the Chamber referred to the unambiguous contents of art. 18 par. 6 of the Regulations, according to which “Contractual clauses granting the club additional time to pay to the professional amounts that have fallen due under the terms of the contract (so-called “grace periods”) shall not be recognised”. The Chamber highlighted that because such provision entered into force on 1 June 2018 as per the June 2018 edition of the FIFA Regulations on the Status and Transfer of Players, coupled with the fact that the contract was executed on 20 July 2019, the last sentence of the cited provision (i.e. “Contracts existing at the time of this provision coming into force shall not be affected by this prohibition”) did not apply to the case.

33. Consequently, the DRC was firm to determine that the contractual clause, i.e. clause 6, which established the grace period of 60 days, cannot be recognized under art. 18 par. 6 of the Regulations.

34. In light of the foregoing, the Chamber decided that the Claimant had just cause to terminate the contract with effect as 22 April 2020 and that the Respondent is to be held liable for the early termination of the contract with just cause by the Claimant.

ii. Consequences

35. Having established that the Respondent is to be held liable for the early termination of the contract with just cause by the Claimant, the Chamber focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber 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 contract.

36. Consequently, on account of the above 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 amount of EUR 88,500 in connection with the remuneration due to the Claimant in accordance with the contract until its early termination.

37. In addition, taking into consideration the Claimant’s claim, the Chamber decided to award the Claimant interest at the rate of 5% p.a. as of the day following the day on which each of the payments included in the global amount of EUR 88,500 fell due in accordance with the contract.

38. 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 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 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.

39. 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.

40. 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.

41. 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 until 31 May 2020. In this respect, the DRC clarified that residual value of the contract shall be calculated until such date since there is no regulatory basis on the Regulations to consider otherwise, and the club has not adduced any evidence which would justify otherwise. To this end, the Chamber was eager to underline that the Regulations apply to termination of contracts and that the matter at hand does not pertain to variation of contracts in line with the FIFA COVID-19 Football Regulatory Issues Frequently Asked Questions.

42. Consequently, the Chamber concluded that the amount of EUR 49,000 (i.e.2 monthly salaries à EUR 24,500) serves as the basis for the determination of the amount of compensation for breach of contract.

43. 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 compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

44. The DRC observed however that the player was not able to find new employment and hence mitigate his damages.

45. 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 49,000 to the player as compensation for breach of contract without just case, an amount which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

46. Lastly, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided to award the player interest on said compensation at the rate of 5% p.a. as of the date of claim, i.e. 11 May 2020, until the date of effective payment.

47. In conclusion, for all the above reasons, the Chamber decided to accept the player’s claim.

iii. Compliance with monetary decisions

48. Finally, taking into account the consideration under numbers 36 and 45. 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.

49. 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 and for the maximum duration of three entire and consecutive registration periods.

50. 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, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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.

51. The DRC recalled that the above-mentioned bans 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.

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

d. Costs

53. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the parties.

54. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, ADAM MIECZYSLAW STACHOWIAK, is accepted.

2. The Respondent, DENIZLISPOR KULUBU, has to pay to the Claimant the following amounts:

- EUR 14,500 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;

- EUR 24,500 as outstanding remuneration plus 5% interest p.a. as from 1 March 2020 until the date of effective payment;

- EUR 49,500 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until the date of effective payment;

- EUR 49,000 as compensation for breach of contract without just cause plus 5% interest p.a. as from 11 May 2020 until the date of effective payment.

3. 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.

4. 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).

5. 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.

6. 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 (cf. CAS Directives at Legal.FIFA.com).

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:

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