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 November 2020
Decision of the
Dispute Resolution Chamber
passed on 13 November 2020
regarding an employment-related dispute concerning the player Raul Andrei Rusescu
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Stijn Boeykens (Belgium), member
Daan de Jong (Netherlands), member
CLAIMANT:
Raul Andrei Rusescu, Romania
Represented by Mr Riza Koklu
RESPONDENT:
Giresunspor Kulubu Dernegi, Turkey
Represented by Mr Atahan Sevimli
I. Facts
1. On 25 July 2019, the parties concluded an employment contract valid as from 25 July 2019 until 31 May 2021.
2. According to art. 6 of the contract, the player was entitled to the following net amounts:
“6.1. The Salary Of The Player
For 2019/2020 Football Season:
250.000,00-EURO (Two Hundred Fifty Euros)
The aforementioned amount is to be paid to the Player by the Club on the below mentioned dates:
-30.000,00-EUR on the signature date.
-22.000.00-EUR on the 31th of August. 2019
-22.000,00-EUR on the 30th of September. 2019
22.000.00-EUR on the 31th of October. 2019.
-22.000,00-EUR on the 30th of November. 2019.
-22.000.00-EUR on the 31th of December. 2019.
-22.000.00-EUR on the 31th of January. 2020
-22.000.00-EUR on the 28th of February. 2020
-22.000,00-EUR on the 31th of March, 2020
-22.000.00-EUR on the 30th of April. 2020
-22.000.00-EUR on the 31th of May, 2020
For 2020/2021 Football Season:
In case the Club Competes in TFF 1. Lig;
250.000,00-EURO {Two Hundred fifty Thousand Euros)
The aforementioned amount is to be paid to the Player by the Club on the below mentioned dates:
-30.000,00-EUR on the signature date.
-22.000.00-EUR on the 31th of August. 2020.
-22.000.00-EUR on the 30th of September. 2020.
-22.000.00-EUR on the 31th of October. 2020.
-22.000.00-EUR on the 30th of November. 2020.
-22.000.00-EUR on the 31th of December, 2020,
-22.000.00-EUR on the 31th of January. 2021,
-22.000.00-EUR on the 28th of February. 2021.
-22.000,00- EUR on the 31th of March. 2021.
-22.000.00- EUR on the 30th of April. 2021.
-22.000.00-EUR on the 31th of May. 2021.”
3. On 7 July 2020, the Claimant sent a default notice to the club for the amount of EUR 135,000, and granting 15 days to remedy the default.
4. In particular, the Claimant specified the following amounts:
EUR 3.000 unpaid part of the EUR 22.000-30.11.2019 dated November salary,
EUR 22.000- 31.12.2019 dated December salary,
EUR 22.000-31.01.2020 dated January salary,
EUR 22.000- 31.03.2020 dated March salary,
EUR 22.000-30.04.2020 dated April salary,
EUR 22.000-31.05.2020 dated May
5. On 28 July 2020, the legal representative of the Claimant sent a termination letter, stating the following:
“Even though we served a notice you to pay EUR 3.000 unpaid part of the EUR 22.000-30.11.2019 dated November salary, EUR 22.000-31.12.2019 dated December salary, EUR 22.000-31.01.2020 dated January salary, EUR 22.000- 31.03.2020 dated March salary, EUR 22.000-30.04.2020 dated April salary, EUR 22.000- 31.05.2020 dated May salary, as a total amount of EUR 135.000the debts owed to my client football player within 15 days in the notification dated 07.07.2020, it is observed that you did not make the payment within 15 days. In addition, the client player's fee for the 2020-2021 season, dated 25.07.2020, amounting to 30.000-Euro, has become due and has not yet been paid. It is undisputed that your Club seriously breached the contract that is signed with my Client.
Therefore, it is mandatory for us to terminate the employment contract unilaterally and with just cause by preserving all of our rights regarding the claim of the al allowances and results of termination at the Fifa.
Within the above mentioned explanations and preserving our every legal right before Fifa regarding the claim of the allowances and result s of termination, we hereby notify you that we are unilaterally terminating the Professional Football Player Contract with the beginning date of 25.07.2019 and ending date of 31.05.2021 with just cause. 28.07.2020.”
6. On 30 July 2020, the Turkish Football Federation issued a note stating that “the contractual relationship between Raul Andrei Rusescu and Club Giresunspor has been terminated.”
7. Following the information contained in the TMS, the player concluded an employment contract with the Romanian club, ACF Academica Clinceni, with the following conditions:
Validity: 5 October 2020 until 31 May 2021.
Remuneration: EUR 7,000 per month.
8. In this respect, the Respondent objected the release of the ITC towards said club.
9. On 13 October 2020, FIFA authorised the registration of the player, considering that “it would appear that the requirements of art. 14bis to the RSTP are seemingly fulfilled and that therefore, it can be, prima facie, asserted that the Player had just cause to terminate his contract in the sense of said article.” (TMS Transfer reference: 325206)
10. On 27 August 2020, the Claimant lodged a claim for outstanding remuneration and breach of contract without just cause and requested the following
• EUR 165,000 as outstanding remuneration, as follows:
o Net EUR 3,000 along with interest of 5% p.a. starting from 30 November 2019
o Net EUR 22,000 along with interest of 5% p.a. starting from 31 December 2019
o Net EUR 22,000 along with interest of 5% p.a. starting from 31 January 2020
o Net EUR 22,000 along with interest of 5% p.a. starting from 28 February 2020
o Net EUR 22,000 along with interest of 5% p.a. starting from 31 March 2020
o Net EUR 22,000 along with interest of 5% p.a. starting from 30 April 2020
o Net EUR 22,000 along with interest of 5% p.a. starting from 31 May 2020
o Net EUR 30,000 along with interest of 5% p.a. starting from 25 July 2020
• EUR 286,000 as compensation:
o Net EUR.220,000.-along with interest of 5% p.a. starting from 28 July 2020 until the date of effective payment (mitigated compensation),
o Net EUR 66,000-along with its interest of 5% p.a. starting from 28 July 2020 until the date of effective payment (Additional Compensation),
11. In its reply to the claim, the Respondent requested the following:
-To suspend the case till the last transfer window will close at the world,
-To dismiss the claim of the Claimant.
-To make a decision that the judicial costs and the attomeyship fees that the Claimant is faced with shall paid by the Claimant.
12. In the opinion of the Respondent, it acted in an “appropriate manner” and stated that it has “made the Claimant a lot of payments”.
13. The club further considered that the player is not entitled to the amount of EUR 30,000, since it was an advance payment for the 2020/2021 season.
14. In addition, the club argued that “more than half of the overdue salaries are corresponding the Pandemic era”, i.e. March, April, May.
15. In this respect, the club explained that it suffered a lost of revenue due to the effects of the COVID-19 pandemic and the suspension of the Turkish club.
16. The club complained in this respect that the player unilaterally terminated the contract without accepting a salary deduction due to the pandemic.
17. In addition, the club was of the opinion that “the Player had acted conspiratorially and with serious ulterior motive at the every part of the subjected matter”, and expressed that “your honorable chamber cannot tolerate such manners for the sake of the future cases.”
18. The club further considered that “the Claimant had unilaterally terminated his contract at the transfer window and the transfer window is still open”, and complained that he “still has a chance to sign with another”. Because of this, the club requested to “suspend the case until the transfer window will be close all over the world, till the Player won't have a chance to sign with a new club anyway.”
19. The club further attached a series of unorganized payment receipts.
20. In his replica, the player insisted to be paid with EUR 165,000 net as outstanding and EUR 286,000 as compensation
21. The player insisted that he was not paid since November 2019, and specified that during a full year only four payments were received, as follows:
- EUR 3000.-on 3 July 2019,
- EUR 30,000.-on 4 December 2019,
- EUR 50 000.-on 26 December 2019,
-EUR 25 000.-on 25 June 2020.
22. The player further addressed the evidence provided by the club:
- In relation to the document dated 20 May 20202, referred to as “expense voucher”, the player explained that it is not a payment receipt.
- The other payment receipts are related to non-contractual bonuses, and referred to the relevant match calendar.
23. The player further wished to express the following:
The payments in Turkish Liras must be clarified in the eyes of FIFA DRC, which is unfortunately a common tactic by several clubs while attempting to reduce their obligations towards players.
The payments are only made in the Player is in the squad and after the home and/ or away wins and away draw matches.
The payments are determined by taking in consideration of the importance and result of the matches and by identifying whether the Player is within first 11, in the squad and/or joining the match later. Therefore all the payment amounts are product of 2.250.-TL.
Four of the payment receipts already reflect the fact that those payments are bonus payments. This point is explicitly written and confessed by the Club within the payment receipts.
• Another player of the Club named Ahmet Kesim, is paid on the same dates and with the same calculation formula. All the payment explanations are reflected as "bonus payment" and this proves that the above mentioned payments are non-contractual bonus payments. (Exhibit 2 -Bill of account)
Another player of the Club named Cristian Tanase, is paid on the same dates and with the same calculation formula. All the payment explanations are reflected as "bonus payment" and this proves that the above mentioned payments are non-contractual bonus payments.
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. In this respect, it took note that the present matter was submitted to FIFA on 27 August 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
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 Romanian 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 27 August 2020, the June 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, the parties concluded an employment contract valid as from 25 July 2019 until 31 May 2021.
6. Subsequently, the Chamber observed that the Claimant lodged a claim for outstanding remuneration and breach of contract, arguing that, on 28 July 2020 and after having put the club in default, he terminated the contract with just cause.
7. Conversely, the Chamber noted that the club rejected the player’s claim, noting that he unilaterally terminated the contract without accepting a salary deduction due to the pandemic.
8. In view of the above, the Chamber understood that the main legal issue at stake is to determine whether the player had a just cause to unilaterally terminate the contract on 28 July 2020.
9. In this respect, the DRC wished to emphasize that, according to the principle of contractual stability, the unilateral termination of a contract must be considered as an absolute last resort, where, given the particularities of the situation at stake, it could not be expected that one of the parties could reasonably continue to be bound by the contractual relationship. In what concerns financial obligations, one of the consequences of the aforementioned principle is that only a persistent and substantial non-compliance of these obligations could justify the unilateral termination of a contract.
10. In relation to the reasons brought forward by the Claimant to justify the premature termination of the contract, the DRC noted that, according to him, the amount of EUR 165,000 was outstanding when he sent his termination letter.
11. In relation to said allegation, the DRC noted that, according to the club, it “made the Claimant a lot of payments”, and that the player rejected to reduce his remuneration view of the COVID-19 pandemic. Moreover, the DRC observed that the club further attached a series of unorganized payment receipts in support of its allegations, without providing specific evidence as to which contractual instalments said receipts shall refer to.
12. In view of all of the above, the Dispute Resolution Chamber reminded the parties of the contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.
13. In application of the aforementioned provision, the Chamber observed that the Respondent manifestly failed to support with sufficient evidence its allegations, as it specifically failed to address in a concrete manner the claimed outstanding payments, nor proved that it conducted any negotiation with the player within the context of the COVID-19 pandemic. As a result, the Chamber rejected the Respondent’s arguments in this respect as it is unsupported with sufficient and clear evidence.
14. As a result, the DRC could only assume that the total amount of EUR 165,000, as indicated by the player in his default notices and termination agreement, remained outstanding at the date of termination of the contract.
15. Therefore, the Chamber considered that the Respondent significantly neglected its financial obligations towards the Claimant. Consequently, at the date of 28 July 2020, the player could expect that the Respondent was not in a position to reasonably comply with its contractual obligations.
16. As a result, the DRC established that the player terminated the contract with just cause and that the Respondent is to be held liable for the early termination of the contract with just cause by the player due to overdue payable.
17. Therefore, and before entering into the consequences of the early termination of the contract, the DRC understood that the Claimant is entitled to his outstanding remuneration due until the early termination of the contract.
18. In this respect, the DRC observed, as already mentioned above, that at the date of the termination of the contract, the total amount of EUR 165,000 was outstanding, and corresponding to the following contractual amounts (cf. point I 2 above):
- EUR 30,000, due on the signature date;
- EUR 3,000, corresponding to the remaining part of EUR 22,000 due on 30 November 2019.
- EUR 22,000 on 31 December 2019.
- EUR 22,000 on 31 January 2020
- EUR 22,000 on 28 February 2020
- EUR 22,000 due on the 31 March 2020
- EUR 22,000 due on the 30 April 2020
- EUR 22,000 due on the 31 May 2020
19. Consequently, in strict application of the principle of pacta sunt servanda, the DRC established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 165,000, as agreed in the contract concluded between the parties.
20. In addition, and taking into account the Claimant’s request as well as the longstanding jurisprudence of the Chamber in this respect, the Chamber decided to award 5% interest p.a. over said amounts as from the due dates.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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 for one additional season, for which the player would still have to receive EUR 250,000 net, considering that the club competes in the Lig. 1 (cf. point I.1 above). As a result, the DRC considered that the amount of EUR 250,000 shall serve as the basis for the calculation of the payable compensation.
26. 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.
27. In this respect, the DRC observed that the Claimant declared that, from the information contained in the TMS, the player concluded an employment contract with the Romanian club, ACF Academica Clinceni, valid as from 5 October 2020 until 31 May 2021 and that, according to said contract, he would receive the total amount of EUR 7,000 per month (i.e.7,000*8=56,000).
28. Consequently, the DRC noted that, at this stage, the mitigated compensation would correspond to EUR 194,000, i.e. 250,000-56,000.
29. Subsequently, the DRC referred to art. 17 par. Ii of the Regulations, according to which, 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”). In case of egregious circumstances, the Additional Compensation may be increased up to a maximum of six monthly salaries.
30. In view of the above, the DRC observed that, considering that the contract was indeed terminated due to overdue payables, the player could be entitled to 3 additional salaries for the termination due to overdue payables, i.e 22,000*3= EUR 66,000.
31. In view of the above, the Chamber noted that the payable compensation would correspond to EUR 260,000.
32. However, given that for the second season, the player would have received the amount of EUR 250,000, the Chamber decided to limit the amount of payable compensation to said amount of EUR 250,000.
33. Consequently, in view of all of the above, in application of the principle of pacta sunt servanda, the Chamber established that Respondent shall pay to the Claimant the total amount of EUR 250,000, which it deemed reasonable and grounded on the basis of the applicable contract and regulations.
34. In addition, and taking into account the Claimant’s request as well as the longstanding jurisprudence of the Chamber in this respect, the Chamber decided to award 5% interest p.a. over said amounts as from the date of the claim.
35. Moreover, as to the Procedural Costs and Legal Fees, the Chamber referred to art. 18 par. 2 and 4 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 and that no procedural compensation shall be awarded in proceedings of the Players’ Status Committee and the DRC
36. Furthermore, 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.
37. 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.
38. 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.
39. 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, Raul Andrei Rusescu, is accepted.
2. The Respondent, Giresunspor Kulubu Dernegi, has to pay to the Claimant, the following amounts:
- EUR 165,000 net as outstanding remuneration plus interest as follows:
- 5% interest p.a. over the amount of EUR 3,000 as from 1 December 2019 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 22,000 as from 1 January 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 22,000 as from 1 February 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 22,000 as from 29 February 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 22,000 as from 1 April 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 22,000 as from 1 May 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 22,000 as from 1 June 2020 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 30,000 as from 26 July 2020 until the date of effective payment.
- EUR 250,000 net as compensation for breach of contract without just cause plus 5% interest p.a. as from 27 August 2020 until the date of effective payment.
3. Any further claims of the Claimant are rejected.
4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.
5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:
1.
The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2.
In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).
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