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 25 March 2021
Decision of the
Dispute Resolution Chamber
passed on 25 March 2021
regarding an employment-related dispute concerning the player Idir Ouali
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Daan de Jong (the Netherlands), member
Alexandra Gomez Bruinewoud (Uruguay & the Netherlands), member
CLAIMANT:
Idir Ouali, France
Represented by Pedro Macierinha
RESPONDENT:
Hatayspor, Turkey
Represented by Ismail Coskun
I. FACTS OF THE CASE
1. The French player, Idir Ouali (hereinafter: the player or the Claimant), and the Turkish club,
Hatayspor (hereinafter: the club or the Respondent) signed an employment contract valid
as from 5 August 2019 until 31 May 2021.
2. In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the following:
a. Season 2019/2020: EUR 60,000 as advance payment plus 10 monthly payments of EUR
18,000 each, payable by the end of the month;
b. Season 2020/2021: EUR 78,000 as advance payment due on 5 August 2020 plus 10
monthly payments of EUR 23,400 each, payable by the end of the month.
3. On 24 September 2020, the player put the club in default of payment of the following,
awarding the club with 15 days to cure the breach:
a. EUR 18,000 as salary of June 2020;
b. EUR 78,000 as advance payment due on 5 August 2020;
c. EUR 23,400 as salary of August 2020
d. The player to immediately be reintegrated to the first team.
4. Thereafter, the player acknowledged receipt of EUR 18,000 on an unspecified date.
5. On 4 December 2020, the player put the club in default of payment of the following,
awarding the club with 15 days to cure the breach:
a. EUR 78,000 as advance payment due on 5 August 2020;
b. EUR 23,400 as salary of August 2020;
c. EUR 23,400 as salary of September 2020;
d. EUR 23,400 as salary of October 2020
e. EUR 23,400 as salary of November 2020.
6. On 22 December 2020, the player terminated the contract in writing.
7. Subsequently, the player and the Cypriot club, Ethnikos Achnas, signed a contract valid as
from 4 January 2021 to 30 May 2021, for a remuneration of EUR 800.00 net per month.
II. PROCEEDINGS BEFORE FIFA
8. On 8 January 2021, 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
9. According to the Claimant, he had just cause to terminate the contract, and sought
payment of the following:
a. EUR 78,000 as advance payment due on 5 August 2020;
b. EUR 23,400 as salary of August 2020;
c. EUR 23,400 as salary of September 2020;
d. EUR 23,400 as salary of October 2020
e. EUR 23,400 as salary of November 2020
f. EUR 140,400 as compensation for breach of contract, corresponding to six times EUR
23,400.
g. 5% interest “until effective and full payment”.
b. Position of the Respondent
10. The Respondent did not reply to the claim.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
11. 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 8 January 2021 and submitted
for decision on . Taking into account the wording of art. 21 of the January 2021 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
12. 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. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), 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 French player and
a Turkish club.
13. 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 February 2021), and
considering that the present claim was lodged on 8 January 2021, the January 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
14. 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.
15. 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
16. 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
17. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the player filed the claim at hand seeking payment of
outstanding remuneration and compensation for breach of contract.
18. Subsequently, the Chamber took into account that the Respondent, for its part, failed to
present its response to the claim of the Claimant, in spite of having been invited to do so.
In this way, the DRC considered that the Respondent renounced its right to defence and
thus accepted the allegations of the Claimant.
19. Furthermore, as a consequence of the aforementioned consideration, the members of the
Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, they shall
take a decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
20. To this end, the DRC noted that the player, who filed evidence of the employment contract
concluded with the club, put the latter in default on 4 December 2020, requesting inter alia
payment of the following, evidence of which was also made available to the Chamber:
a. EUR 78,000 as advance payment due on 5 August 2020;
b. EUR 23,400 as salary of August 2020;
c. EUR 23,400 as salary of September 2020;
d. EUR 23,400 as salary of October 2020;
e. EUR 23,400 as salary of November 2020.
21. The Chamber additionally noted that the player granted a deadline of 15 days for the club
to cure the breach, to no avail, leading thereafter to the termination of the employment
contract at the player’s initiative on 22 December 2020.
22. Consequently, the Chamber found that the player duly met the criteria found in article
14bis of the Regulations, especially because more than two monthly salaries had been
outstanding.
23. It followed that the player had just cause to terminate the contract and the player shall
endure the consequences that follow.
ii. Consequences
24. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
25. The Chamber observed that the outstanding remuneration at the time of termination were
the following:
a. EUR 78,000 as advance payment due on 5 August 2020;
b. EUR 23,400 as salary of August 2020;
c. EUR 23,400 as salary of September 2020;
d. EUR 23,400 as salary of October 2020;
e. EUR 23,400 as salary of November 2020.
26. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the club is liable to pay to the player the amounts
which were outstanding under the contract at the moment of the termination, i.e. EUR
171,600.
27. In addition, 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 at the rate of 5% p.a. on the outstanding amounts as from one day after the their
due dates until the date of effective payment.
28. 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
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.
29. 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.
30. 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.
31. 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 its expiration date. Consequently, the Chamber concluded that the amount of EUR
140,400 (i.e. six months à EUR 23,400 each) serves as the basis for the determination of
the amount of compensation for breach of contract.
32. 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.
33. Indeed, the player found new employment. In accordance with the pertinent employment
contract, the player was entitled to EUR 800 per month. Therefore, the Chamber concluded
that the player mitigated his damages in the total amount of EUR 4,000, that is, five months
à EUR 800 each.
34. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to
overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
35. In this respect, the DRC decided to award the amount of additional compensation to the
player, which would theoretically amount to EUR 70,200. However, the DRC confirmed that
the total compensation awarded cannot exceed the residual value of the breached contract
in strict application of art. 17 of the Regulations.
36. 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
140,400 (i.e. EUR 140,400 minus EUR 4,000 as mitigation plus EUR 4,000 as additional
compensation), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
37. 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 until the date
of effective payment.
iii. Compliance with monetary decisions
38. Finally, taking into account the applicable Regulations, the Chamber referred to par. 1 lit.
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.
39. 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
40. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the 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 immediately effective on
the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
41. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
42. 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. 8
of the Regulations.
d. Costs
43. 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.
44. 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.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Idir Ouali, is partially accepted.
2. The Respondent, Hatayspor, has to pay to the Claimant the following amounts:
- EUR 78,000 net as outstanding remuneration plus 5% interest p.a. as from 6 August 2020
until the date of effective payment;
- EUR 23,400 net as outstanding remuneration plus 5% interest p.a. as from 1 September
2020 until the date of effective payment;
- EUR 23,400 net as outstanding remuneration plus 5% interest p.a. as from 1 October 2020
until the date of effective payment;
- EUR 23,400 net as outstanding remuneration plus 5% interest p.a. as from 1 November
2020 until the date of effective payment;
- EUR 23,400 net as outstanding remuneration plus 5% interest p.a. as from 1 December
2020 until the date of effective payment;
- EUR 140,400 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 8 January 2021 until the date of effective payment;
3. Any further claims of the Claimant are rejected.
4. Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
paid by the end of the of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
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