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 13 August 2020
Decision of the
Dispute Resolution Chamber
passed on 13 August 2020,
regarding an employment-related dispute concerning the player Kevin Fortuné
COMPOSITION:
Geoff Thompson (England), Chairman
Alexandra Gómez Bruinewoud (Uruguay & The Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT / COUNTER-RESPONDENT:
Mr KEVIN FORTUNE, France
Represented by Mr. Ludovic Deléchat
RESPONDENT / COUNTER-CLAIMANT:
Tractorsazi Tabriz, IR Iran
Represented by Mr. Igor Gomes Ferreira
INTERVENING PARTY:
AJ Auxerre, France
I. FACTS OF THE CASE
1. On 22 August 2019, the French player, Mr Kevin Fortuné (hereinafter: the player or the Claimant
/ Counter-Respondent) concluded an employment contract (hereinafter: the contract) with the
Iranian club, Tractorsazi Tabriz (hereinafter: Tabriz or the Respondent / Counter-Claimant) valid
as from the date of signature until 30 June 2022 “or any later date on which an official match
is played in the respective football season”.
2. According to art. 5 of the contract, the player was entitled to the following remuneration:
“For 2019 I 2020 Football Season: 600,000 EURO
The aforementioned amount is NET and to be paid to the Player by the Club on the below
mentioned dates:
As Advance payment, the Club will pay the Player;
100,000 EURO net in cash within 7 days after issue the ITC
50,000 EURO net in cash on January 2020
The remaining 450,000 EURO will be paid by the Club to the Player in 10 equal instalments of
45,000 EURO each starting from 30 September 2019 and at the end of each consecutive month
until 30 June 2020.
The Player agrees and accepts that the abovementioned advance payments in the total of
150,000 EURO are paid by the Club to the Player in return of the Player's registration with the
Club all through the 2019/2020 season. In case the employment contract is terminated
unilaterally and/or mutually before the end of 2019/2020 season, the Player agrees to
immediately return the Club the part of the Advance payment corresponding to the term starting
from the termination date until 30 June 2020, which will be calculated on a pro rata basis. The
Club shall also have the right to deduct this amount from the Player's overdue remuneration
from the Club, if any.
For 2020 I 2021 Football Season: 600,000 EURO
The aforementioned amount is NET and to be paid to the Player by the Club on the below
mentioned dates:
As Advance payment, the Club will pay the Player;
100,000 EURO net in cash, before the first official league's match
50,000 EURO net in cash on January 2021
The remaining 450,000 euro will be paid by the Club to the Player in 10 equal instalments of
45,000 euro each starting from 30 September 2020 and at the end of each consecutive month
until 30 June 2021.
The Player agrees and accepts that the abovementioned advance payments in the total of
150,000 euro are paid by the Club to the Player in return of the Player's registration with the Club all through the 2020/2021 season. In case the employment contract is terminated
unilaterally and/or mutually before the end of 2020/2021 season, the Player agrees to
immediately return the Club the part of the Advance payment corresponding to the term starting
from the termination date until 30 June 2021, which will be calculated on a pro rata basis. The
Club shall also have the right to deduct this amount from the Player's overdue remuneration
from the Club, if any.
For 2021 I 2022 Football Season: 600,000 EURO
The aforementioned amount is NET and to be paid to the Player by the Club on the below
mentioned dates:
As Advance payment, the Club will pay the Player;
100,000 EURO net in cash, before the first official league's match
50,000 EURO net in cash on January 2022
The remaining 450,000 euro will be paid by the Club to the Player in 10 equal instalments of
45,000 euro each starting from 30 September 2021 and at the end of each consecutive month
until 30 June 2022.
The Player agrees and accepts that the abovementioned advance payments in the total of
150,000 euro are paid by the Club to the Player in return of the Player's registration with the
Club all through the 2021/2022 season. In case the employment contract is terminated
unilaterally and/or mutually before the end of 2021/2022 season, the Player agrees to
immediately return the Club the part of the Advance payment corresponding to the term starting
from the termination date until 30 June 2022, which will be calculated on a pro rata basis. The
Club shall also have the right to deduct this amount from the Player's overdue remuneration
from the Club, if any.”
3. The contract further provided that “(a)ny incapacity or illness, injury shall be reported by the
Player to the Club immediately and the Club shall keep a record of any incapacity. In order to
decide whether the Player is injured and therefore not in perfect condition to play a match,
medical team of the Club shall examine the Player. The Player shall act in accordance with the
directives of the Club’s medical staff”.
4. With regard to the termination of the contractual relationship, art. 11 of the contract read as
follows:
“Notwithstanding the above conditions the parties also irrevocably agree and accept that the
club shall have the unilateral right to terminate the 2021/2022 football season of this present
agreement by notifying the player (e-mail is acceptable) within 20 days following the last official
match of the 2020/2021 season and without paying any compensation to the other party for
the termination.
In case this right is exercised by a party, the Employment Contract and the 2021/2022 season of
this contract will be considered as terminated with immediate effect and the Club will no longer
be obliged to pay the Player any of the salary, bonuses, or other amenities for this seasons and at the same time the Player will not have any obligations towards the Club for this seasons.
Furthermore, as a result of this termination the Parties will not be obliged to pay each other any
compensation for termination and/or damages.
The Player’s entitlement to his remaining remuneration from 2020/2021, if any, will continue to
be valid”.
5. On 7 December 2019, the player put Tabriz in default, requesting the payment of three monthly
salaries (September, October and November 2019) within 15 days.
6. On 14 December 2019, Tabriz informed the player that the “Disciplinary Committee of the club
is going to hold a session regarding your Unjustified absences, including 7 training sessions as
well as 2 Premier League matches (…)”. In this context, Tabriz stated that the player could attend
the session or send his statement of defence.
7. On 20 December 2019, the player justified his absence from 5 to 17 December 2019 by
explaining that he was called up by his national team to play an international match. The player
further underlined that Tabriz was aware of his absence as “you can see from the call-up letter
that was addressed to your club on 25 September 2019”. In this regard, the player referred to
FIFA Regulations, in particular to clubs’ obligation to release players for international matches.
8. On 21 December 2019, Tabriz informed the player that it had paid EUR 150,000 on 19 December
2019 as the player’s remuneration for the past 3 months as well as half of the December 2019
salary. Moreover, Tabriz stated that the player had to participate in training sessions as from
21 December 2019, considering that his “absence is not justified and you would be faced fines
or put you in position of gross breaching of employment contract”.
9. On 28 December 2019, Tabriz noted that the player had not attended the training on
28 December 2019 as set in his training plan, despite the coach’s presence. As such, Tabriz
complained that the player “refused to attend pre-assigned training sessions on 27th and 26th
December 2019”.
10. On 29 December 2019, Tabriz observed that the player had left Iran in an unjustified manner
and asked the player to be present in Tabriz on 30 December 2019 at 10:00 am. Otherwise,
Tabriz informed the player that it would report his absence to the club’s Disciplinary Committee.
11. On 31 December 2019, the player contested once again the club’s allegations of unjustified
absence and “the bad treatment I have been receiving the last couple of months”. In this context,
the player provided a medical certificate dated 30 December 2019, ordering sick leave for 21
days. Finally, the player reminded Tabriz to pay his salary of December 2019.
12. On 1 January 2020, Tabriz rejected that it ever granted the player permission to leave Iran, thus
maintaining that his absence was unjustified. In addition, Tabriz asked the player to provide
further details of his medical examination. In this regard, Tabriz reminded the player of his obligation to be supervised and treated by the club’s medical staff. Finally, Tabriz contested the
player’s allegations that he was ever treated badly, stating that “(we) understand your emotions
that you cannot live far away from your family, but we are not allowed pay you meanwhile you
want to spend whole of your Employment period out of Iran.”
13. On 5 January 2020, Tabriz asked the player to return to Iran by 7 January 2020 at the latest in
order to attend a training camp on 8 January in Antalya (Turkey).
14. On the same day, i.e. 5 January 2020, the player emphasised that he “was allowed by the Club
to leave Iran for the annual holidays”. Having said this, the player reminded Tabriz that he was
currently unable to train due to an injury and depression. However, the player informed Tabriz
that he was “available to come back to the club after my annual leave” and thus asked when
the trainings would resume.
15. On 11 January 2020, Tabriz expressed its concern regarding the player’s health condition and
asked the player to provide a “psychologic report of your mental issue in details which is
diagnosed by a professional psychologist not a general practitioner”. In this regard, Tabriz
recalled the player’s obligation to be supervised by the club’s medical staff. As such, Tabriz asked
the player to return to Tabriz by 13 January 2020 “to let our doctor to have proceeding enterprise
done about your health situation”.
16. On 12 January 2020, the player informed Tabriz that his “health condition is not getting better
mainly because of the poor conditions in which your Club has been treating me (threats,
impossibility to train with the team, mobbing, repeated late payment of all the salaries…)”. In
this respect, the player indicated that he had another doctor appointment the following week.
Finally, the player asked Tabriz to pay his salary of December 2019 and “the lump sum of January
as per the employment contract”.
17. On the same day, i.e. 12 January 2020, Tabriz informed the player that it stopped paying him
until he would return to Iran and accept to be supervised by the club’s medical staff.
Furthermore, Tabriz asked the player to provide proof of his allegations with regard to the
threats, his permission to leave Iran and a detailed psychologist report.
18. On 20 January 2020, Tabriz once again ascertained that the player did not have the permission
to leave Iran and should report any injury or health issues to the club’s medical staff in
accordance with art. 4 par. l and h of the contract. As such, Tabriz stated that it did not accept
the player’s medical condition, as he was unable to provide a valid document. Moreover, Tabriz
mentioned that the player’s claims of threats, allegedly made by Tabriz against him, had been
forwarded to the club’s Disciplinary Committee to investigate and “to start proceedings against
who threated you”. Finally, Tabriz attached a flight ticket Paris-Istanbul for the player, scheduled
on 22 January 2020.
19. On 21 January 2020, the player informed Tabriz the he was still unable to train and provided a
medical certificate dated 21 January 2020, ordering a sick leave until 11 February 2020. In addition, the player stated that “with regard to the disciplinary proceedings, I would like to
inform you that I reserve my rights to have an independent and competent jurisdiction hearing
my case at a later stage. I hereby do not wish to initiate a procedure in Iran for obvious reason.
Please note that this is also illegal to start a procedure without my consent as I am the one who
has the standing to sue in this case, not you.” Finally, the player reiterated his request for the
payment of his salary of December 2019 and the amount of EUR 50,000 for January 2020.
20. On 23 January 2020, the player’s agent informed the player and Tabriz (via WhatsApp messages)
that the French club Troyes FC had made an offer for the player and asked for a mutual
termination, which Tabriz rejected.
21. On 25 January 2020, Tabriz informed the player that it did not accept his medical certificate
considering that he did not comply with his obligation to consult with the club’s doctor and that
he did not consult with a specialist in France, but with a general practitioner. Moreover, Tabriz
considered that the player was breaching his contractual obligations and was thus not entitled
to receive any remuneration. Finally, Tabriz referred to the player’s request to conclude a
settlement agreement. However, Tabriz informed the player that it would fulfil its obligations
until the term of the contract.
22. On 27 January 2020, Tabriz sent a flight ticket Paris-Istanbul to the player, scheduled on
28 January 2020. In this regard, Tabriz informed the player that “(t)his is the last warning of
Tractor” and that the player would face consequences if he refused to travel back to Iran.
23. On 4 February 2020, Tabriz informed the player that “(i)n accordance to your request, we had a
negotiation with Troyes but we did not come to an agreement.” In addition, Tabriz provided the
player with another flight ticket Paris-Istanbul, scheduled on 6 February 2020.
24. On 8 February 2020, the player contested the club’s position, stating that “it is not up to you to
decide whether an official medical Certificate is “acceptable or not”… My current healthy
situation is bad and you can be reassured that I would love to be able to play football, my
passion”. Moreover, the player replied to the club’s allegations by indicating that “I am not
“breaching” the employment contract as I am currently sick and therefore unable to perform”.
25. On 10 February 2020, Tabriz notified the player of the termination of the contract (hereinafter:
the termination notice). In the termination notice, Tabriz considered that the player had
breached his obligations, given that “(y)ou left the Club on 28th December 2019 without
permission. We asked for your alleged permission but you did not provide any single document.
You are absent from matches and training sessions from 28th December 2019 until today and
this absences are unjustified. We took three tickets for you to join the team, but you rejected
this tickets. You alleged that you are injured and provided two GP instructions for rest which is
in contrary of the Employment Contract. As we mentioned severally, in accordance with the
Employment Agreement you has to be examined and treated with Club’s doctor. In addition,
you are a professional football player and you has to be treated and examined by a specialist
and not a GP. Furthermore, you did not provide any detailed medical report. Also we asked to provide us a detailed psychologist report and you did not provide it which you alleged that you
had an appointment with a specialist doctor”.
26. On 7 March 2020, the player lodged a claim in front of FIFA against Tabriz.
27. In his claim, the player maintained that upon the signature of the contract, i.e. 22 August 2019,
he received the first advance payment of EUR 100,000 as contractually agreed. However, the
player underlined that as from that moment, Tabriz failed to pay his salaries on time. The player
then explained that on 20 December 2019, Tabriz finally paid him the salaries for the months of
September, October, and November 2019.
28. The player also stated that on 12 December 2019, Tabriz offered him to terminate the contract,
which he rejected. The player then explained that as from that moment, Tabriz started asserting
that the player was absent without any justification during the month of October 2019. The
player emphasised that he was in reality abroad on international duty for his country and that
Tabriz had been formally informed.
29. Furthermore, the player argued that on 25 December 2019, he was authorised to leave Iran on
annual leave. To support his allegation, the player provided a copy of his passport accompanied
of an authorisation to leave the country and a confirmation to return to Iran.
30. In this context, the player explained that upon his arrival in France, he was not feeling well and
decided to consult a doctor. The player then argued that he was on sick leave as from
30 December 2019 until 10 February 2020, thereby referring to the two medical certificates
dated 30 December 2019 and 21 January 2020.
31. With regard to the termination notice, the player held that Tabriz terminated the contract
without just cause while he was on sick leave. In this respect, the player stated that at the date
of termination, Tabriz owed him the total amount of EUR 140,000 (2.8 salaries) plus interests,
i.e. EUR 600,000 yearly salary which constitutes a pro rata monthly salary of EUR 50,000. The
player further requested compensation for breach of contract in the amount of EUR 1,425,000
net, plus 5% interest p.a. as of the date of termination of the contract, i.e. 10 February 2020.
32. In its reply to the claim, Tabriz first explained that the delay in paying the player’s salaries for
September to November 2019 was due to the international sanctions imposed on Iran.
33. Moreover, Tabriz claimed that since his default notice dated 7 December 2019, the player
stopped attending the club’s trainings. Given that the player allegedly showed his intention to
terminate the contract, Tabriz confirmed to have sent him a proposal of mutual termination on
12 December 2019, which he refused.
34. Tabriz then stated that upon paying his salaries on 19 December 2019, the player returned to
the training sessions held between 20 and 25 December 2019. However, Tabriz claimed that the player was again absent on 26, 27 and 28 December 2019 from a specific training assigned
to him due to his 15-day absence.
35. With regard to the offer made by Troyes FC, Tabriz was of the opinion that this is the proof that
the player did not have any medical / psychological issues, as he claimed, and was just looking
for an excuse to terminate the contract with Tabriz.
36. Tabriz further confirmed that the player’s salaries for January and February 2020 were suspended
since he was not present at the club.
37. In view of the above, Tabriz lodged a counterclaim against the player, requesting that the DRC
declares that Tabriz terminated the contract with just cause, or alternatively that the player
terminated the contract without just cause and to declare that the player is only entitled to
receive twelve days of salary for December 2019 as he only attended training from 1 December
2019 until 6 December 2019, then from 20 December 2019 until 25 December 2019. In this
respect, Tabriz requested the amount of EUR 1,425,000 as compensation for breach of contract,
composed of 5 instalments (February, March, April, May, and June 2020) of EUR 45,000 each
for the 2019/2020 season; EUR 600,000 for the 2020/2021 season; and EUR 600,000 for the
2021/2022 season. Finally, Tabriz requested that the player pays its legal costs “at the rate of
10% of the value of the conviction”.
38. In his reply to the counterclaim, the player rejected all of the club’s accusations and pointed out
that Tabriz did not rely on any substantial evidence. Therefore, the player considered that the
counterclaim of Tabriz should be entirely rejected and emphasised that Tabriz terminated the
contract without just cause on 10 February 2020, while the player was on sick leave.
39. In particular, the player denied having ever accepted to be paid late. On the contrary, the player
maintained that he had to face salary delays and allegedly requested the payment orally several
times, before asking in writing on 7 December 2019.
40. The player also denied having been absent from 7 to 19 December 2019 and pointed out that
no evidence had been provided by Tabriz in this respect. In continuation, the player held that on
12 December 2019, Tabriz proposed to terminate the contract, which he rejected.
41. The player stated that his absence from 28 December 2019 to 10 February 2020 (date of the
termination notice) was justified by his medical issues, for which he provided evidence. In this
respect, the player deemed that the suspension of his payments for the period during which he
was on sick leave is not allowed as per the jurisprudence of the DRC.
42. As to the club’s assumption according to which the player was under the obligation to be
examined by the club’s doctor, the player considered that such an examination was impossible
at the time, since “the club and its environment have been the main causes for the Claimant’s
health issues. The Claimant’s doctor in its certificate of 21 January 2020 clearly states in French
that the Claimant was unable to travel and/or work at that time”.
43. Furthermore, the player contested the club’s allegations that he was trying to leave Tabriz in
January 2020 and pointed out that the exchange of emails between Tabriz and the French club,
Troyes FC, referred to his transfer to Tabriz in summer 2019. Given that the player was sick in
January 2020, he held that it was impossible for him to negotiate with any new club at that
moment.
44. In view of the above, the player requested that the counterclaim of Tabriz be fully rejected.
45. On 9 June 2020, the player concluded a new employment contract with the French club, AJ
Auxerre (hereinafter: Auxerre), valid as from 29 June 2020 until the end of the season 2021/2022
(i.e. 30 June 2022), for an “exceptional bonus” of EUR 40,000 and a monthly salary of
EUR 18,000.
46. Furthermore, the player also claimed that he was on a sick leave until 29 June 2020, thereby
providing a medical certificate dated 29 June 2020, stating that the player is fit to play.
47. Finally, the player’s new club, Auxerre, was also invited to provide its comments as an intervening
party on the counterclaim lodged against the player. In this respect, Auxerre claimed that when
it started the negotiations with the player, the latter was presented as a free agent. In this
respect, the player and Auxerre concluded the employment contract.
48. Auxerre also explained to have repeatedly asked Tabriz for a TPO declaration, but never received
any reply. In this regard, Auxerre held to have uploaded in TMS its own request for the TPO
declaration and a letter provided by the player entitled “termination notice”. In light of the
foregoing, Auxerre deemed that the player was a free agent when they concluded the
employment contract and asked FIFA to accept its request for the player’s ITC.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the DRC or the
Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the
Chamber took note that the present matter was first submitted to FIFA on 7 March 2020.
Consequently, the March 2020 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 DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in
accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b) of the Regulations (June
2020 edition), it is competent to decide on the present litigation, which concerns an
employment-related dispute with an international dimension between a French player and an
Iranian club.
3. Furthermore, the DRC analysed which edition of the 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 (June 2020 edition) and considering that the present matter
was submitted to FIFA on 7 March 2020, the March 2020 edition of said Regulations is applicable
to the present matter as to the substance.
4. The competence of the DRC and the applicable regulations having been established, the
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 Chamber
emphasized 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. In this respect, the DRC acknowledged that it was undisputed by the parties that the player and
Tabriz had signed an employment contract, valid as from 22 August 2019 until 30 June 2022,
according to which the player was entitled to receive, inter alia, an annual net salary of
EUR 600,000.
6. In continuation, the Chamber noted that on 10 February 2020, Tabriz unilaterally terminated
the employment contract with the player, alleging that the player had been absent for unjustified
reasons since 28 December 2019, despite numerous requests of Tabriz for the player to return
to Iran, and that the player had refused to be examined by the club’s doctor following his injury,
thereby breaching the contract.
7. Summarising the parties’ respective positions in this dispute, the members of the Chamber noted
that the player, on the one hand, claimed that Tabriz had always paid his salaries late and had
terminated the contract without just cause while he was on sick leave. Equally, the members of
the Chamber took note of the reply of Tabriz, which, on the other hand, affirmed that the delay
in paying the player’s salaries for September to November 2019 was due to the international
sanctions imposed on Iran and that the salaries of January and February 2020 were suspended
given that the player was not present at the club. Moreover, the Chamber observed that Tabriz
referred to the player’s unjustified absences and to his refusal to consult the club’s doctor in
clear violation of the contract.
8. In this context, the Chamber observed that Tabriz deemed that it had terminated the contract
with just cause, or alternatively that the player terminated the contract without just cause and
thereby lodged a counter-claim against the player.
9. In these circumstances, the Chamber further noted that the player contested the allegations of
Tabriz, stating that his absences were due to a call-up to play international matches for his
country and to his medical issues, for which he provided two medical certificates to the club. In
this respect, the Chamber observed that the player considered that a consultation with the club’s
doctor was impossible at that time given his work incapacity and impossibility to travel.
10. Finally, the Chamber observed that the player concluded a new employment contract with the
French club, AJ Auxerre, valid as from 29 June 2020 until the end of the season 2021/2022 (i.e.
30 June 2022) and that he was on a sick leave until 29 June 2020.
11. In view of the foregoing, the Chamber established that the main issue to be analysed in the
present case is whether Tabriz in fact had a just cause to unilaterally and prematurely terminate
the contract with the player on 10 February 2020 or not. Subsequently, the Chamber shall
establish the financial and/or sporting consequences to be borne by the party found to be in
breach of contract.
12. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is
of a certain severity justifies the termination of a contract. In other words, only when there are
objective criteria which do not reasonably permit to expect a continuation of the employment
relationship between the parties, a contract may be terminated prematurely. Hence, if there are
more lenient measures which can be taken, such measures must be taken before terminating
an employment contract. A premature termination of an employment contract can only ever be
an ultima ratio measure.
13. Furthermore, the members of the Chamber deemed it appropriate to recall 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.
14. In this context, the Chamber noted that the player held that Tabriz had paid his salaries late and
offered to mutually terminate the contract on 12 December 2019. Moreover, the player
considered that Tabriz terminated the contract without just cause during his sick leave, despite
the medical certificates and explanations which he provided to the club during his absence.
15. On the other hand, the Chamber thoroughly analysed the position of Tabriz, which based the
termination of the contract on the player’s alleged unjustified absences between 28 December
2019 and 10 February 2020 and alleged breach of contract with regard to his refusal to be
examined by the club’s doctor and by refusing to provide any detailed medical report from a
specialist doctor. In this regard, the Chamber noted that Tabriz considered to have terminated
the contract with just cause on 10 February 2020.
16. In this regard, based on the information and documentation on file, the Chamber first observed
that Tabriz did not deny having paid the player’s salaries for September, October and November
2019 late, i.e. on 19 December 2020, following the player’s default notice dated 7 December
2019, but attributed such delay to the international sanctions against Iran.
17. Furthermore, the Chamber pointed out that it also remained undisputed that the player’s
remuneration for December 2019 and January 2020 was still outstanding to this day. In this
respect, the Chamber underlined Tabriz’s explanation that the payment of said salaries was
suspended due to the player’s unjustified absence.
18. Bearing in mind the above, the Chamber further analysed the alleged unjustified absences of
the player.
19. Firstly, the Chamber noted that Tabriz reproached the player for being absent as from
7 December until 19 December 2019. In this regard, the Chamber took note, from the
correspondence exchanged between the parties before the termination of the contract, that the
player justified said absence by the fact that he had been called up by his national team to play
an international match. Moreover, the player underlined that Tabriz was aware of this absence
considering that it was informed by the “call-up letter that was addressed to your club on 25
September 2019”.
20. In this context, the Chamber recalled the general principle set out in art. 1 of Annexe 1 of the
Regulations, which stipulates that “clubs are obliged to release their registered players to the
representative teams of the country for which the player is eligible to play on the basis of his
nationality if they are called up by the association concerned”.
21. This being said, the Chamber also pointed out that Tabriz had failed to submit any corroborating
evidence in order to demonstrate that the player had in fact been absent for an unjustified
reason.
22. Secondly, the Chamber observed that Tabriz considered that the player had been absent,
without permission, from the “pre-assigned training sessions” which were set out for him, from
26 to 28 December 2019. In this regard, the Chamber took note of Tabriz’s position that it never
granted the player permission to leave Iran, thus maintaining that his absence was unjustified.
On the other hand, the Chamber observed the player’s position, whereby he explained that he
was authorised to leave Iran on annual leave on 25 December 2019. The Chamber further
referred to the documentation provided by the player in this regard, namely a copy of his
passport accompanied of an authorisation to leave the country and a confirmation to return to
Iran. Bearing the foregoing in mind, the Chamber deemed that the obligation imposed on the
player to be present at a specific training, assigned only to him, during the club’s holidays cannot
be justified.
23. Thirdly, the Chamber analysed the alleged unjustified reasons invoked by Tabriz with regard to
the injury of the player. In this regard, the Chamber pointed out that the player explained that
upon his arrival in France, he started not to feel well and decided to consult a doctor. In
continuation, the Chamber underlined that the player had provided Tabriz with two medical
certificates, dated 30 December 2019 and 21 January 2020, ordering sick leaves of 21 days and
a period until 11 February 2020, respectively. In this regard, the Chamber recalled that Tabriz
did not accept the player’s medical certificates on the basis that he did not comply with his
contractual obligation to consult with the club’s doctor and that he did not consult with a
specialist in France, but with a general practitioner. In this context, the Chamber recalled the
content of the contractual provision to which Tabriz referred to in its reply: “(a)ny incapacity or
illness, injury shall be reported by the Player to the Club immediately and the Club shall keep a
record of any incapacity. In order to decide whether the Player is injured and therefore not in perfect condition to play a match, medical team of the Club shall examine the Player. The Player
shall act in accordance with the directives of the Club’s medical staff”.
24. Moreover, the Chamber observed that Tabriz had sent the player flight tickets Paris-Istanbul on
various occasions.
25. On the other hand, the Chamber took note of the player’s position, whereby he claimed that “it
is not up to you to decide whether an official medical Certificate is “acceptable or not”… My
current healthy situation is bad and you can be reassured that I would love to be able to play
football, my passion” and that “I am not “breaching” the employment contract as I am currently
sick and therefore unable to perform”. Moreover, the Chamber noted that the player considered
that it was impossible to consult with the club’s doctor at the time, given that “the club and its
environment have been the main causes for the Claimant’s health issues. The Claimant’s doctor
in its certificate of 21 January 2020 clearly states in French that the Claimant was unable to travel
and/or work at that time”.
26. In this context, the Chamber pointed out that the medical certificates provided by the player
appear to be perfectly valid and in particular, referred to the medical certificate dated 21 January
2020, which in fact stipulates that the player is neither in a position to work nor to travel by
plane.
27. Therefore, in view of all of the above, the Chamber considered that Tabriz had not demonstrated
that the player’s absences were unjustified. Moreover, the Chamber was of the opinion that the
insistence of Tabriz with regard to the return of the player to Iran in order for him to be examined
by the club’s doctor did not appear to be justified or to reflect the club’s genuine interest in the
player’s services.
28. The Chamber then focused its attention on Tabriz’s allegations according to which the player
had the intention of terminating the contract and thereby “fabricated” a medical / psychological
condition in order to negotiate his return to the French club, Troyes FC.
29. In this respect, the Chamber took note that the player contested the aforementioned allegations,
thereby mentioning that the exchange of emails between Tabriz and Troyes FC referred to his
transfer to Tabriz in summer 2019, and not in January 2020 as alleged by Tabriz. Moreover, the
Chamber further observed that the player stated that he was sick in January 2020, making it
impossible for him to negotiate with any new club at that moment.
30. In this context, the Chamber pointed out that the aforementioned alleged negotiations did not
lead to the player returning to Troyes FC, since the player concluded a new employment contract
with Auxerre on 9 June 2020.
31. With the above in mind, the Chamber emphasised that the circumstances of the present matter,
namely that the player’s remuneration was paid late, that Tabriz had offered a mutual
termination of the contract to the player on 12 December 2019 and the uncontested fact that the monthly salaries of December 2019 and January 2020, as well as the payment of EUR 50,000
due in January 2020, were still outstanding to this day, tended to demonstrate that Tabriz was
in fact no longer genuinely interested in the services of the player.
32. In this context, the Chamber also considered that Tabriz had not provided any valid justification
with regard to the non-payment of the player’s salaries of December 2019 and January 2020
and the amount of EUR 50,000 due in January 2020.
33. Consequently, the Chamber was of the opinion that the objective circumstances at the time did
not provide Tabriz with just cause to terminate the employment contract.
34. In light of all of the aforementioned considerations, the DRC came to the conclusion that Tabriz
had terminated the contract on 10 February 2020, without just cause.
35. As an immediate consequence of such, the Chamber concluded at this point that the
counterclaim lodged by Tabriz against the player is rejected.
36. Having established that Tabriz is to be held liable for the early termination of the employment
contract, the Chamber focused its attention on the consequence of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the player is
entitled to receive from Tabriz an amount of money as compensation for breach of contract in
addition to any outstanding payments on the basis of the relevant employment contract.
37. First of all, the Chamber reverted to the player’s claim, in which he requested the amount of
EUR 140,000 (2.8 salaries) plus interests as outstanding remuneration as well as compensation
for breach of contract in the amount of EUR 1,425,000 net, plus 5% interest p.a. as of the date
of termination of the contract, i.e. 10 February 2020.
38. Consequently, taking into account that the contract was terminated on 10 February 2020, and
in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that
Tabriz is liable to pay to the player the amount of EUR 140,000, corresponding to the monthly
salaries of December 2019, i.e. EUR 45,000, and January 2020, i.e. EUR 45,000, as well as the
amount of EUR 50,000 due in January 2020.
39. In addition, taking into consideration the Claimant’s request and the constant practice of the
Dispute Resolution Chamber (DRC) in this regard, the Chamber decided to award the player 5%
interest p.a. on the above-mentioned amount, as follows:
On EUR 45,000 as from 1 January 2020 until the date of effective payment;
On EUR 45,000 as from 1 February 2020 until the date of effective payment;
On EUR 50,000 as from 1 February 2020 until the date of effective payment.
40. In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract 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.
41. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent 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 the contract did not
contain such a provision.
42. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent / Counter-Claimant to the Claimant 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.
43. 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 30 June
2022. Consequently, the Chamber concluded that the total amount of EUR 1,425,000,
corresponding to EUR 225,000 (period from February 2020 to June 2020), EUR 600,000 for the
season 2020/2021 and EUR 600,000 for the season 2021/2022, serve as basis for the
determination of the amount of compensation for breach of contract.
44. 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 able 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.
45. In this context, the Chamber noted that the player had signed on 9 June 2020 an employment
contract with the French club, AJ Auxerre, valid as from 29 June 2020 until 30 June 2022, by
means of which he was entitled to receive an “exceptional bonus” of EUR 40,000 and a monthly
remuneration of EUR 18,000. The DRC noted that for the overlapping period, the player had
been able to mitigate his damages in the amount of EUR 472,000.
46. On account of all of the above-mentioned considerations and the specificities of the case at
hand, the Chamber decided that the mitigated compensation due to the player was
EUR 953,000.
47. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the Respondent / Counter-Claimant must pay the
total amount of EUR 953,000 to the Claimant / Counter-Respondent, which was considered
reasonable and proportionate as compensation for breach of contract in the case at hand.
48. In addition, taking into consideration the Claimant’s request and the constant practice of the
DRC in this regard, the Chamber decided to award the player interest on the amount of
EUR 953,000 as from the date of the claim, i.e. 7 March 2020, until the date of effective
payment.
49. Furthermore, the DRC 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.
50. In this regard, the DRC pointed out that, against clubs, the consequence of the failure to pay
the relevant amount 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.
51. Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent / Counter-Claimant does not pay the amount due to the Claimant / Counter-
Respondent within 45 days as from the moment in which the Claimant / Counter-Respondent,
following the notification of the present decision, communicates the relevant bank details to the
Respondent / Counter-Claimant, 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 / Counter-Claimant in accordance with art. 24bis par.
2 and 4 of the Regulations.
52. Finally, the DRC recalled that the above-mentioned ban will be lifted immediately and prior to
its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of
the Regulations.
53. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further request filed by the Claimant / Counter-Respondent is rejected.
Equally and considering that the Respondent / Counter-Claimant was, overall, found to be in
breach of the contract, the counterclaim of the Respondent / Counter-Claimant is rejected.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant/Counter-Respondent, Mr Kevin Fortuné, is partially accepted.
2. The counterclaim of the Respondent/Counter-Claimant, Tractorsazi Tabriz, is rejected.
3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, the following
amounts:
- EUR 140,000 as outstanding remuneration plus 5% interest p.a. as follows:
o On EUR 45,000 as from 1 January 2020 until the date of effective payment;
o On EUR 45,000 as from 1 February 2020 until the date of effective payment;
o On EUR 50,000 as from 1 February 2020 until the date of effective payment;
- EUR 953,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 7 March 2020 until the date of effective payment.
4. Any further claims of the Claimant/Counter-Respondent are rejected.
5. The Claimant/Counter-Respondent is directed to immediately and directly inform the
Respondent/Counter-Claimant of the relevant bank account to which the Respondent/Counter-
Claimant must pay the due amount.
6. The Respondent/Counter-Claimant 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).
7. In the event that the amount due, plus interest as established above is not paid by the
Respondent/Counter-Claimant within 45 days, as from the notification by the Claimant/Counter-
Respondent of the relevant bank details to the Respondent/Counter-Claimant, the following
consequences shall arise:
1. The Respondent/Counter-Claimant 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 Office
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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