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 19 November 2020
Decision of the
Dispute Resolution Chamber
Passed on 19 November 2020,
regarding an employment-related dispute concerning the Ghaylen Chaaleli
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Daan de Jong (Netherlands), member
CLAIMANT:
Ghaylen Chaaleli, Tunisia
Represented by Mr. Riza Köklü
RESPONDENT:
Yeni Matalya Spor Kulübü, Turkey
I. FACTS OF THE CASE
1. On 22 July 2019, the Tunisian player, Gaylen Chaaleli (hereinafter: Claimant), and the Turkish
club, Yeni Matalyaspor (hereinafter: Respondent) signed an employment contract valid as from
the date of signing until 31 May 2022.
2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant
the following remuneration:
For the season 2019/2020: EUR 750,000 net payable as follows:
a. EUR 120,000 on 22 July 2019,
b. EUR 125,000 on 15 September 2019,
c. The rest in ten instalments of EUR 50,000 between 30 August 2019 and 30
May 2020,
“PS: if Yeni Matalyaspor is entitled to participate in UEL group stage on summer of
2019, Player shall be entitled to EUR 25,000 net. Related bonus shall be paid on 90
day”
For the season 2020/2021: EUR 715,000 net payable as follows:
a. EUR 65,000 on 30 August 2020,
b. EUR 100,000 on 15 September 2020,
c. The rest in ten instalments of EUR 55,000 between 30 August 2020 and 30
May 2021,
For the season 2021/2022: EUR 650,000 net payable as follows:
a. EUR 100,000 on 15 October 2021,
b. EUR 100,000 on 15 September 2020,
c. The rest in ten instalments of EUR 55,000 between 30 August 2021 and 30
May 2022,
Personal Performance Bonuses:
a. If the player reaches 10 points (1 goal 1 point = 1 assist 1 point): EUR 20,000
b. If the player reaches 15 points (1 goal 1 point = 1 assist 1 point): EUR 30,000
Note 1: These scores shall be valid for official league games and UEL games.
e. If the club is entitled to participate in the UEL group stage: EUR 25,000
f. If the club is entitled to participate in the UCL group stage: EUR 100,000
Note 2: the player shall hereby be entitled to only bonus a or b
PS: Related bonus shall be paid on 90 day. All aforementioned bonuses are
net.
3. On 14 April 2020, the Claimant put the Respondent in default regarding the payment of his
remuneration totalling EUR 300,000 plus interest as follows:
EUR 125,000 as down payment due on 15 September 2019 (note: although the
default notice refers to an amount of EUR 127,000, the player indicated in his claim
that this was a typo),
EUR 25,000 as half of the salary of December 2019,
EUR 50,000 as salary for January 2020,
EUR 50,000 as salary for February 2020,
EUR 50,000 as salary for March 2020.
4. The Claimant granted the Respondent 15 days to remedy the default.
5. On 8 May 2020, the Claimant terminated the contract invoking just cause.
6. On 10 July 2020, the Claimant signed a contract with the Tunisian club Espérance Sportive de
Tunis valid as from the date of signature until 30 June 2023. According to said contract, the
Claimant was entitled to the following remuneration over the overlapping period of contract
with the Respondent:
Season 2020/2021 12 x 30,000 Tunisian Dinars (TND): TND 360,000
Season 2021/2022 12 x 40,000 TND: TND 480,000
II. PROCEEDINGS BEFORE FIFA
7. On 6 August 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed below.
a. The claim of the Claimant
8. According to the Claimant, the Respondent made the payment of EUR 120,000 due as down
payment due on 22 July 2019 as well as a total amount of EUR 225,000 as salaries for the
months of August, September, October, November and half of December 2019. Thereafter, the
Claimant did not receive any further salaries.
9. On 14 April 2020, the Claimant served a default notice to the Respondent, requesting the
payment of his salaries as described in par. I.3. above.
10. Following such default notice, the Respondent made a payment of EUR 20,000 in connection
with the balance due for December 2019, while, in the meantime, the salary of April 2019 also
matured.
11. On 29 April 202, the Respondent replied to the Claimant’s default notice referring to the Covid-
19 pandemic and respective situation of force majeure. Furthermore, the Respondent urged the
Claimant not to seek any legal action against them.
12. Subsequently the Claimant did not receive any further amounts from the Respondent and
therefore terminated the employment contract on 8 May 2020 invoking just cause.
13. The Claimant concludes that the Respondent has severely neglected its financial obligations
towards him and that, consequently, he had just cause to terminate the contract. The Claimant
puts forward that he has waited 7 months to claim the overdue amounts and that he has duly
put the Respondent in a situation to remedy its default, to no avail.
14. Furthermore, the Claimant underlined that the overdue payables at the time of the termination
had matured prior to the Covid-19 pandemic and also before the suspension of the Turkish
league.
15. The Claimant concludes that the Respondent is attempting to use the pandemic as an excuse,
whereas in fact it had paid another player his salaries of December 2019, January 2020 and
February 2020 on 3 April 2020, during the pandemic.
16. With respect to the argument of the club in respect of the Covid-19 pandemic, the player
emphasised that the Turkish league was suspended on 19 March 2019 as published on the
website of the Turkish Football Federation (cf. exhibit 7 of the claim). The league has in the
meantime resumed and the 8 remaining matches were played between 13 June 2020 and 25
July 2020 (cf. exhibit 8 of the claim).
17. The requests for relief of the Claimant were the following:
EUR 125,000 as down payment due on 15 September 2019,
EUR 5,000 as remainder of salary for December 2019,
EUR 50,000 as salary for January 2020,
EUR 50,000 as salary for February 2020,
EUR 50,000 as salary for March 2020,
EUR 50,000 as salary for April 2020,
5% interest p.a. as of the respective due dates of the outstanding salaries,
EUR 1,580,000 corresponding to EUR 1,415,000 as residual value of the contract (May
2020 and the entire seasons 2020/2021 and 2021/2022), as well as additional
compensation in accordance with art. 17 par. 1 of the RSTP in the amount of EUR
165,000, plus 5% interest p.a. as of 8 May 2020.
b. Position of the Respondent
18. In reply to the claim, the Respondent referred to the Covid-19 pandemic, explaining that it
suffered from a 30% decrease in seasonal revenues, which has placed the club on the brink of
bankruptcy.
19. The Respondent underlined that when the Claimant terminated the contract, the Turkish league
was suspended and consequently the club’s revenues were equally suspended.
20. The Respondent, moreover, highlighted that, despite the aforesaid circumstances, “Matalyaspor
does not have a case that was the subject of unilateral termination in previous periods”. The Respondent stated that it approached the Claimant in good faith and assured him that it would
fulfil its contractual obligations at the start of the league. Thus, it urged the Claimant not to
take legal action.
21. As to the calculation of the claimed compensation for breach of contract, the Respondent
emphasised that the Claimant had already signed a new contract with the Tunisian club
Espérance de Tunis and that, therefore, the amounts which he earned with the latter club shall
be taken into account.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
22. 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 6 August 2020 and submitted for decision on
19 November 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.
23. 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 and 2 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition October 2020), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Tunisian player and a
Turkish club.
24. Subsequently, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Player (edition October 2020), and considering that
the present claim was lodged on 6 August 2020, the August 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
25. 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.
26. 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
27. 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
28. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Claimant terminated the contract with the Respondent on 8
May 2020 due to outstanding remuneration. In this regard, the Respondent has not contested
the outstanding debt but requested the Chamber to take into account its financial status as a
result of the Covid-19 pandemic as mitigating factor.
29. In this context, the Chamber acknowledged that it its task was to determine whether the
Claimant had just cause to terminate the employment contract with the Respondent.
30. As said, the Respondent did not contest having failed to pay the claimed outstanding
remuneration, this is, at the time of termination, the down payment of EUR 125,000 due on 15
September 2019, the remainder of the salary of December 2019 as well as the full salaries
between January and April 2020. In this regard, the Chamber was adamant that such amount
forms a substantial part of the Claimant’s remuneration. Furthermore, the Claimant duly put
the Respondent in default on 14 April 2020 before terminating the contract.
31. At this point, the Chamber recalled the provisions of art. 14bis of the Regulations, according to
which a player is deemed to have just cause to terminate an employment contract if his/her club
finds itself in default of payment of at least two month of salary and the player has put the club
in default and granted the club at least 15 days to remedy the default.
32. Bearing the aforementioned principles in mind, the DRC found that the Claimant had followed
the criteria set in art. 14bis of the Regulations prior to terminating the contract. Thus, in
principle, the Claimant terminated the respective contract with just cause.
33. Notwithstanding the above, the Chamber lent emphasis on the Respondent’s arguments in
relation to the financial difficulties it was experiencing due to the Covid-19 pandemic.
34. In this regard, the Chamber referred to the fact that, in light of the worldwide COVID-19
outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to
both mitigate the consequences of disruptions caused by COVID-19 and ensure that any
response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued
an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about
the most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters.
35. Analysing the concept of a situation of force majeure, the members of the Chamber noted that,
based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, the
COVID-19 outbreak was not to considered a force majeure situation in any specific country or
territory. Also, in line with the aforementioned guidelines, no specific employment or transfer
agreement was impacted by the concept of force majeure.
36. As such, the contents of the aforementioned documents establishes in general that clubs or its
employees cannot rely on the FIFA COVID-19 Guidelines or the decision of the FIFA Bureau, to
assert a force majeure situation. The analysis whether a situation of force majeure existed, has
to be considered on a case-by-case basis, taking into account all the relevant circumstances.
37. Turning to the content of the file, the members of the Chamber were eager to emphasize that
the Respondent, in this particular matter, did not submit any form of documentary evidence or
allegations that the situation it faced was to be considered a situation of force majeure.
38. Furthermore, the Chamber also wished to the explicit wording of FAQ no. 16, as well as pages
6 and 7 of the FIFA COVID-19 Guidelines, according to which said guidelines are only applicable
to “unilateral variations to existing employment agreements”. Therefore, the guidelines do not
apply to unilateral terminations of existing employment agreements, as was the case in the
matter at hand. The members of the Chamber further noted that for the assessment of disputes
that arise before the FIFA judicial bodies concerning unilateral termination of a contract, the
FIFA Regulations as well as the established jurisprudence of the Chamber, shall apply.
39. In view of the above, and reverting to the facts of the present matter, the DRC established that
at the time of termination, a substantial part of the outstanding remuneration due to the
Claimant had fallen due prior to the Covid-19 pandemic. In this regard, the Chamber wished
to underline that the Covid-19 outbreak may not be used as an opportunity to escape from
debts that arose before the COVID-19 outbreak. In fact, these amounts alone would have
allowed the Claimant to terminate the contract at an earlier date.
40. On account of all the abovementioned considerations, specifically considering that, when the
Claimant terminated the contract, one lump sum payment of EUR 125,000 as well as more than
4 months of salary was due to the Claimant, this despite the fact that the Claimant provided
the Respondent with 15 days to remedy the default, the Chamber decided that the Claimant
had just cause to unilaterally terminate the employment relationship on 8 May 2020.
Consequently, the Respondent is to be held liable for the early termination of the employment
contact.
41. Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract with just cause by the
Respondent.
42. First of all, the members of the Chamber concurred that the Respondent must fulfil its
obligations as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of pacta sunt servanda.
43. On account of the above considerations and the documentation on file, the Chamber decided
that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at
the time of the termination i.e. the amount of EUR 330,000, consisting of the overdue lump
sum payment of EUR 125,000 due on 15 September 2019, the remainder of the salary of
December 2019 in the amount of EUR 5,000 as well as 4 x EUR 50,000 for the salaries due
between January and April 2020.
44. In addition, taking into account the Claimant’s claim as well as the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided to award the Claimant interest of 5% p.a.
as of the respective due dates.
45. In continuation, the Chamber 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.
46. In this context, the Chamber 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.
47. In application of the relevant provision, the Chamber held that it first of all 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 Chamber established that no such compensation clause
was included in the employment contract at the basis of the matter at stake.
48. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber 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 Chamber pointed out that at the time of the termination of the employment
contract on 8 May 2020, the contract would run until 30 May 2022, this is, for one more month
in the season 2019/2020 as well as the next two full seasons. Consequently, taking into account the financial terms of the contract, the Chamber concluded that the remaining value of the
contract as from its early termination by the Respondent until the regular expiry of the contract
amounts to EUR 1,415,000 and that such amount shall serve as the basis for the final
determination of the amount of compensation for breach of contract.
49. In continuation, the Chamber remarked that following the early termination of the employment
contract at the basis of the present dispute, the Claimant was able to mitigate his damage by
concluding a new employment contract with the Tunisian club, Espérance Sportive de Tunis.
According to the terms of this contract, the Claimant would earn, during the period overlapping
with the contract with the Respondent, the total amount of Tunisian Dinars 840,000 or EUR
258,986 (conversion rate as at 10 July 2020, i.e. the date on which the contract with Espérance
Sportive de Tunis was signed).
50. Consequently, in accordance with the constant practice of the Dispute Resolution Chamber and
the general obligation of the Claimant to mitigate his damages, such remuneration under the
new employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract.
51. As a result, the DRC judge concluded that the mitigated compensation amounts to EUR
1,156,014.
52. Furthermore, the DRC emphasised that, pursuant to art. 17 par. 1 lit ii. of the Regulations, a
player, in case of the early termination of the contract being due to overdue payables, in
addition to the mitigated compensation, shall also be entitled to an amount corresponding to
three monthly salaries (i.e. the additional compensation). What is more, in case of egregious
circumstances, the additional compensation may be increased to a maximum of six monthly
salaries. Finally, the overall compensation may never exceed the rest value of the prematurely
terminated contract.
53. Bearing in mind the above, the DRC held that the Claimant is, on top of the mitigated
compensation, entitled to an additional compensation equivalent to 3 months of salaries, i.e. 3
x EUR 50,000 (amount of the salary at the time the termination occurred).
54. Consequently, the Chamber decided that the Respondent must pay the amount of EUR
1,306,014 to the Claimant as compensation for breach of contract, which is considered by the
Chamber to be a reasonable and justified amount as compensation.
55. Furthermore, 5% interest p.a. shall apply on the amount of compensation, as from 8 August
2020, i.e. the date on which the claim was filed, until the date of effective payment.
ii. Compliance with monetary decisions
56. Finally, taking into account the consideration under number 24. above, the Chamber referred
to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of
the concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
57. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players, either
nationally or internationally, up until the due amounts are paid and for the maximum duration
of three entire and consecutive registration periods.
58. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amounts due to the Claimant within 45 days as from the moment in which
the Claimant, communicates the relevant bank details to the Respondent, provided that the
decision is final and binding, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods
shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the
Regulations.
59. The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of
the Regulations.
60. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
d. Costs
61. 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.
62. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18 par. 4
of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Ghaylen Chaaleli, is partially accepted.
2. The Respondent, Yeni Matalya Spor Kulübü, has to pay to the Claimant, Ghaylen Chaaleli, the
following amounts:
- EUR 330,000 as outstanding remuneration plus 5% interest p.a. as follows:
- on the amount of EUR 125,000 as from 16 September 2019 until effective payment,
- on the amount of EUR 5,000 as from 31 December 2019 until effective payment,
- on the amount of EUR 50,000 as from 31 January 2020 until effective payment,
- on the amount of EUR 50,000 as from 1 March 2020 until effective payment,
- on the amount of EUR 50,000 as from 31 March 2020 until effective payment,
- on the amount of EUR 50,000 as from 1 May 2020 until effective payment.
- EUR 1,306,014 as compensation for breach of contract plus 5% interest p.a. on the said
amount as from 8 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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