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 10 September 2020

Decision of the

Dispute Resolution Chamber

Passed on 10 September 2020,

regarding an employment-related dispute concerning the player Leonard ZUTA

COMPOSITION:

Clifford J. Hendel (USA/France), Deputy Chairman

Michele Colucci (Italy), member

Mohammed Abu Nayeem Shohag (Bangladesh), member

CLAIMANT / COUNTER-RESPONDENT:

Leonard Zuta, Sweden & North Macedonia

Represented by Mr Stefano Malvestio

RESPONDENT / COUNTER-CLAIMANT:

Konyaspor Kulübü Dernegi, Turkey

Represented by Mr İsmet Bumin Kapulluoğlu

I. FACTS

1. On 9 January 2019, the Parties entered into a professional player contract (hereinafter: the “Employment Contract”), valid as from the date of signature until 31 May 2021.

2. According to art. 3 of the contract, the player was entitled to the following:

“2018-2019 SEASON

GUARANTEED PAYMENTS: The Club has committed to pay the total net amount of EUR 200.000 to the Player as follows:

a) ADVANCE PAYMENT: 50.000.-EURO to be paid on11.01.2019

b) MONTHLY SALARY: 150.000.- EUR (Shall be paid as 5 X 30.000.-Euro between January 2019 and May 2019)

2019-2020 SEASON

GUARANTEED PAYMENTS: The Club has committed to pay the total net amount of EUR 400.000 to the Player as follows:

a. ADVANCE PAYMENT: 75.000.-EURO (37.500.-Euro will be paid on 30.08.2019 and 37.500.-Euro will be paid on 01.10.2019)

b. MONTHLY SALARY: 325.000.- EUR (Shall be paid as 10 X 32.500.-Euro between August 2019 and May 2020)

2020-2021 SEASON

GUARANTEED PAYMENTS: The Club has committed to pay the total net amount of EUR 400.000 to the Player as follows:

a) ADVANCE PAYMENT: 75.000.-EURO (37.500.-Euro will be paid on 30.08.2020 and 37.500.-Euro wil be paid on 01.10.2020)

b) MONTHLY SALARY: 325.000.- EUR (Shall be paid as 10 X 32.500.-Euro between August 2020 and May 2021)

SALARY PAYMENTS: Salaries of each month shall be paid until the 10th day of the following month.”

3. Moreover, the contract provided the following conditional bonuses for the whole contractual period:

“the player shall be paid 1.470,59.-Euro as per game bonus for the official TFF Super League matches he participates in. Match bonuses shall be paid in accordance with the conditions below:

a. For each game in which the player is fielded within the first 11 and plays at least 45 minutes %100 of the per game bonus will be paid.

b. If the player is fielded with the first eleven but played less than 45 minutes or enters the field as a substitute at any stage of a match, %75 of the per game bonus will be paid.

c. If the player is amongst the players entered on the match entry list (a8 players list) but not fielded, %50 of the per game bonus will be paid.

d. If the player is not in match entry list (18 players list), no bonus will be paid.

e. Per game bonuses shall only and exclusively be paid for Turkish Super league matches. The player shall not be entitled to the per game bonuses if he is sent off during the relevant match, regardless of the reason for being sent off and the minute he is sent off.

f. The per game bonuses will be paid to the player within 30 days from the last game of the club in the relevant season.”

4. According to the player, the Club excluded him from the List of Eligible Players submitted to the Turkish Football Federation at the start of the season.

5. The player explained that the club also deregistered him in January 2020.

6. According to the player, the club also constantly excluded him and forced him to train alone, in conditions that were “inadequate” for a professional football player.

7. The player sent several default notices on 18 June 2019, 29 August 2019, 3 September 2019, 11 September 2019, 16 October 2019, 12 November 2019, 18 November 2019 and 24 January 2020.

8. On 24 January 2020, the player sent a default notice requesting the payment of a total outstanding amount of EUR 65,000, corresponding to his monthly salaries of November and December 2019 (due on the 10th of each of the following months), stating that, pursuant to “article 14-bis of the FIFA Regulations on the Status and Transfer of Players, the Player is hereby warning the Club that he will unilaterally terminate the Employment Agreement for such non-payment if, within the next 15 (fifteen) days, the Club fails to pay to him the Outstanding Salaries.”

9. On 9 February 2020, the player sent a termination letter to the club due to the existence of an outstanding amount of EUR 65,000, as well as due to the following circumstances:

i.“constantly excluded from training with the team and left training alone with physiotherapist or running alone in a field;

ii.ii) excluded even from team meetings with other football players, or even social activities with my team-mates, such as a lunch on 7 February 2020, where I was, instead, left training alone at a camp;

iii.expelled from the gym, because I could not be in the gym together with the team, which forced me to remain sitting alone in the dressing room for almost 40 minutes before I could return there, only after the team had finished their gym practice.”

10. On 10 February 2020, the club replied to the player’s termination letter as follows:

“We acknowledge the receipt of your "Termination Letter" dated 9 February 2020, which was greeted with astonishment and disappointment.

(…)

Mr. Zuta was not isolated and segregated from the team. The only discrimination that may be mentioned to be applied against him can be the positive discrimination that resulted in the acceptance of his personal requests, such as; operating the hot-tub and the sauna just for him,

(…)

The requested amount of 65.000.-Euro, within the deadline provided with our notification dated 24 January has been paid in full. Please find enclosed the proof of payment”

11. Upon being requested by FIFA, the player explained that, on 6 June 2020 he entered into and employment contract with the Swedish club, BK Häcken, valid until 31 December 2020, according to which he was entitled to a monthly remuneration amounting to SEK 20,000 (approx. EUR 1,942).

12. On 2 February 2020, the player lodged a claim for breach of contract without just cause, requesting the following:

- Declare that the Employment Contract between the Parties was lawfully terminated by the Player with just cause on 9 February 2020;

- Hold Konyaspor liable for breaching articles 12bis, 14 par. 1 and 2, 14bis and article 17, par. 1 of the FIFA RSTP in light of its unjustified and repeated breaches of contract;

- Order that Konyaspor pay the Player outstanding remuneration in the total amount of EUR 18.618,76 net of taxes;

- Order that Konyaspor compensate the Player in the total amount of:

i.EUR 519,913.80 net of taxes as remuneration until the end of the Player’s employment contract with Konyaspor:

ii.EUR 195,000.00 net of taxes as additional compensation, compensation for the specificity of sports or moral damages;

iii.Order the payment of legal interest at a rate of 5% p.a. to the values due by Konyaspor to the Player, starting to count on the date when each of them became due until effective payment.

iv.Impose the appropriate sanctions to the Club pursuant to art. 12bis FIFA RSTP;

v.Impose sporting sanctions on the Club banning it from registering any new players, either nationally or internationally, for two registration periods;

vi.Order Konyaspor to bear any and all administrative and procedural costs, which have already been incurred or may eventually be incurred in connection with these or future proceedings.

13. In its reply, the Respondent rejected the claim of the player.

14. In particular, the Respondent argued that the unilateral termination exercised by the Player does not stand as termination with just cause.

15. The club further requested to condemn the Claimant to reimburse the amount of EUR 29,178.,08, with its interest in the rate of 5% p.a. to be applied from 14 February 2020 until the date of effective payment.

16. In this respect, the club argued that the player does not have any outstanding remuneration and that, in fact, he is under the obligation to reimburse the unamortized part of advance payments on pro rata temporis basis.

17. According to the club, the employment relationship deteriorated over time. The club argued that the player started to act improperly towards the coaches and his teammates.

18. The club explained that, knowing that it is neither possible nor beneficial to restrain such a player, it accepted his proposal to bring a transfer offer for the Player.

19. The club further explained that during the majority of the employment relationship between the parties, it was going through financially difficult times. The club underlined that the player was aware of this situation, as notified with the correspondences of 20 June 2019 and 1 August 2019.

20. Upon being requested to comment on the club’s counterclaim lodged against him, the player deemed, in a nutshell, that the club admitted that it had excluded him from the list of eligible players at the start of the season as well as from the list of eligible players sent to the TFF after the 2nd registration period; that he had been almost exclusively sent to train alone; that the default notice sent on 24 January clearly warned about the termination should he not be paid in the given deadline; and that at termination, no such payment had been performed.

21. In particular, the player rejected any improper action towards coaching team and teammates and referred to his excellent reputation with his former club.

22. Moreover, the player reminded that he had been excluded from training with the first team almost for the whole period as from August 2019 until February 2020, this being far beyond of what the club deemed necessary to “reintegrate him with the team”. In this respect, the player provided various pictures and videos allegedly proving “the conditions of his training and the facilities where he was practicing were inadequate for the level of a professional football player”.

23. Furthermore, the player reminded that during the aforementioned period, having been benched one single time without playing on 17 January 2020, this could not anyhow constitute an eligibility as sustained by the club.

24. In continuation, the player explained that the club’s request made to him to leave the club had been made only after the signing of various other players potentially playing at the dame position as him.

25. Within the above in mind, the player also contested any amount to be reimbursed considering that he deemed to have terminated the contract with just cause and as such, he should be awarded outstanding remuneration and compensation for breach of contract, amounts payable in net as provided in the contract.

26. Finally, the player reiterated his initial claim.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the October 2019 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.

2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised 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, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs, such as the present one, which involves a Swedish and North Macedonian player and a Turkish club.

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

4. With the above having been established, the Dispute Resolution 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 Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber noted that, on 9 January 2019, the Parties entered into a professional player contract (hereinafter: the “Employment Contract”), valid as from the date of signature until 31 May 2021.

6. Subsequently, the Chamber observed that, according to the Claimant, after having repeatedly put the club in default (with a last default notice on 24 January 2020), he unilaterally terminated the contract on 9 February 2020, due to, inter alia, the existence of an outstanding amount of EUR 65,000, corresponding to his monthly salaries of November and December 2019.

7. 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 in order for an employer to ensure the employee’s fulfilment of his contractual duties, 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.

8. Within this context, the Chamber observed that, regardless of any other circumstance, there is no evidence that the club timely paid the player’s remuneration for the November and December 2019. (i.e. 32,500*2) and that, as a result, said amounts were outstanding at the date of termination of the contract, i.e. 9 February 2020.

9. In view of all of the above, the Chamber wished to refer to the contents of art. 14 bis of the Regulations, according to which “in the case of a club unlawfully failing to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s)”.

10. As a result, the Chamber understood that the player had a just cause to terminate the contract and in accordance with art. 14 bis of the Regulations.

11. In view of the above, the DRC considered that the club shall be liable for the early termination of the contract. However, before entering into the consequences of said termination, the Chamber understood that, in addition to compensation, the player is entitled to the payment of his outstanding dues until the termination of the contract.

12. In this respect, the Chamber noted that, after the termination of the contract, the player acknowledged having been paid with the amounts of EUR 65,000 on 10 February 2020 (salaries of November and December 2019), as well as with the amount of EUR 32,500 on 14 February 2020, and allegedly corresponding to his remuneration on January 2020.

13. As a result, the Chamber understood that, at this stage, the Claimant’s claim for outstanding remuneration appears to be based on late payment interests applied on all payments paid late during the contractual relationship (i.e. EUR 2,650.61), as well as to part of outstanding bonuses due to the player in accordance with the contract and a provided match lists provided during the course of the investigation.

14. In this respect, the Chamber understood that, in relation to said bonuses, the player was entitled to EUR 19,852.95 (cf. point I.3. above), calculated as follows: EUR 1,470.59*12 + EUR 735.29*3. However, the Chamber noted that the player acknowledged having received a partial payment of EUR 13,971. As a result, the Chamber understood that the amount of EUR 5,881.95, corresponding to partial outstanding bonuses, remains due.

15. In addition, the Chamber rejected the claim amount, apparently related to due interest, in accordance with the longstanding jurisprudence of the DRC in this respect.

16. Moreover, taking into account the jurisprudence of the DRC in this respect, the Chamber decided to award 5% interest p.a. over said outstanding amount as from the date of the claim, i.e. 2 February 2020.

17. In continuation, the DRC decided that, taking into consideration art. 17 par. 1 of the Regulations, the Claimant is entitled to receive from the Respondent compensation for breach of contract in addition to any outstanding remuneration on the basis of the relevant employment contract.

18. As a result, the DRC went on to examine the (financial) consequences of the early termination of the contract and, in particular, the calculation of the payable compensation.

19. In this context, the DRC outlined that, in accordance with said provision, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. The DRC further noted that, following art. 17 par. 1 of the Regulations, in case the player did not sign any new contract following the termination of his previous contract, as a general rule, the compensation shall be equal to the residual value of the contract that was prematurely terminated.

20. In application of the relevant provision, the DRC held that it firstly had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the DRC established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

21. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the DRC took into account the remuneration due to the Claimant in accordance with the employment contract as well as the time remaining on the same contract, along with the professional situation of the Claimant after the early termination occurred. In this respect, the DRC pointed out that at the time of the termination of the employment contract, the contract would run until 31 May 20201, for which the player would still have to receive EUR 530,000 (EUR 130,000 as the salaries of February, March, April and May 2020 + EUR 400,000 for the 2020-2021 season). As a result, the DRC considered that the amount of EUR 530,000 shall serve as the basis for the calculation of the payable compensation.

22. In continuation, the DRC verified as to whether the Claimant had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with Claimant’s general obligation to mitigate his damages.

23. In this respect, the DRC took note that, on 6 June 2020, the player concluded an employment contract with the Swedish club, BK Häcken, valid until 31 December 2020, according to which he was entitled to a monthly remuneration amounting to SEK 20,000 (approx. EUR 1,942).

24. Consequently, the Chamber observed that, during the overlapping period and until 31 December 2021, the player would have earned the total amount of EUR 13,594 (i.e. 7*1,942).

25. Therefore, and at this stage, the Chamber noted that the mitigated compensation would correspond to EUR 516,406 (i.e. 530,000-13,594).

26. Thereafter, the Chamber referred to the contents of art. 17 par. 1 ii of the contract, according to which, and subject to the early termination of the contract being due to overdue payables, in addition to the Mitigated Compensation, the player shall be entitled to an amount corresponding to three monthly salaries (the “Additional Compensation”).

27. Thus, in view of the aforementioned provision, the Chamber established that, in addition to the mitigated compensation of EUR 516,406, the player would be entitled to three additional salaries. In this respect, the Chamber noted that the player was entitled to a monthly salary of EUR 32,500 from the Respondent, and that said amount already exceeds the total amounts he would have earned from his new club (i.e. EUR 13,594).

28. In this respect, the Chamber further noted that, following the aforementioned provision, the overall compensation may never exceed the rest value of the prematurely terminated contract.

29. Therefore, considering that the residual value of the contract, as mentioned above, amounted to EUR 530,000, the Chamber established that said amount shall correspond to the total payable compensation.

30. As a consequence, and bearing in mind the above, the Chamber concluded by deciding that the Respondent has to pay the total amount of EUR 530,000 to the Claimant, as compensation for breach of contract, which it considered as reasonable and justified in the light of the applicable jurisprudence and regulations.

31. Furthermore, in accordance with its longstanding jurisprudence in this regard, the Chamber decided to award 5% interest p.a. over said amount as from the date of the claim.

32. In addition, as a logical consequence of all of the above, the Chamber rejected the counterclaim of the Respondent.

33. In addition, taking into account the previous considerations, the Dispute Resolution 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.

34. In this regard, the Dispute Resolution 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.

35. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

36. Finally, the Dispute Resolution 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. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, Leonard Zuta, is partially accepted.

2. The Respondent/Counter-Claimant, Konyaspor Kulübü Dernegi, has to pay to the Claimant/Counter-Respondent the following amounts:

- EUR 5,881.95 as outstanding remuneration plus 5% interest p.a. as from 2 February 2020 until the date of effective payment;

- EUR 530,000 as compensation for breach of contract plus 5% interest p.a. as from 2 February 2020 until the date of effective payment.

3. Any further claims of the Claimant/Counter-Respondent are rejected.

4. The counter-claim of the Respondent/Counter-Claimant is 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 amounts.

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 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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