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 December 2020

Decision of the

Dispute Resolution Chamber

passed on 10 December 2020,

regarding an employment-related dispute concerning the player Wallace Reis da Silva

COMPOSITION:

Geoff Thompson (England), Chairman Angela Collins (Australia), member Aby Nayeem Shohag (Bangladesh), member

CLAIMANT:

WALLACE REIS DA SILVA, Brazil

Represented by Ms Debora Trombeta de Mattos

RESPONDENT:

GOZTEPE AS, Turkey

I. FACTS

1. On 21 January 2018, the Brazilian player, Mr Wallace Reis de Silva (hereinafter: the player or the Claimant) and the Turkish club, Goztepe AS (hereinafter: Goztepe, the club or the Respondent), concluded an employment contract (hereinafter: the contract), valid as from 29 January 2018 until 31 May 2020.

2. In accordance with clause 3 of the contract, the club undertook to pay to the player, for the season 2019/2020, inter alia, the following remuneration:

- EUR 65,000 net, as monthly salary, payable as from August 2019 until May 2020 (10 monthly salaries);

- EUR 1,500 net, as monthly accommodation allowance;

- EUR 2,000 “for each official Super league match at which the Player is within the initial field of 11”.

3. According to the Claimant, the Turkish Super League was suspended as from 13 March 2020 until 12 June 2020 –due to Covid-19– and the sporting season in Turkey was therefore extended from 31 May 2020, i.e. its initial ending date, until 26 July 2020.

4. The Claimant further stated that his contract with the club was suspended as from 21 until 27 April 2020, i.e. during 6 days.

5. On 23 May 2020, the club sent an e-mail to the players of the team, whereby the club informed them, inter alia, about the following:

- “We have been waiting for the aftermath of the developments on the league games first before we could provide you any further information and implement any actions”;

- “Concordantly, as we have clarified in detail during our face to face meetings, it is calculated that we must apply min 20% (twenty percent) reduction on the contract’s total value applicable for the 2019-2020 football season in case the league games resume from where we left off and the season is completed”;

- “In order to avoid any doubts please know that such discount is applicable only for the 2019-2020 Season, and it will be calculated based on the wages any player is entitled to as of the end of 2019-2020 Season. Please take this as a further clarification that any contracts expiring by May 31, 2020 will be automatically extended until the current football season is completed as per instructions of FIFA and TFF”;

- “With all the above mentioned information in mind, we hereby would like to invite you to formally sign the mutually agreed contractual revision clauses within 5 (five) days upon receipt of the present e-mail communication”.

-

6. By means of his e-mail of 28 May 2020, the player replied thereto. In particular, the player maintained the following: “With reference to your previous e-mail which determine a 20% reduction over my 2019/2020 receivables, I hereby formally declare my non-acceptance of your unilateral offer. As we talked, I understand the critical financial situation facing by the Club as a result of this pandemi[c] but unfortunately I cannot abdicate of that much. As clearly established at the FIFA guiding principles both parties should work to find a fair solution to everybody. In this sense, I am still at your disposal to discuss this matter in an amicable and reasonable way”.

7. On 21 July 2020, the club sent a further e-mail to the players, whereby the former urged the latter to “finalize these one-on-one negotiations within three days following to the last game we are scheduled to play”.

8. On 16 September 2020, the player lodged a claim against the club before FIFA, requesting to be awarded outstanding remuneration in the amount of EUR 211,000, broken down by the player as follows:

- EUR 195,000 corresponding to the salaries of March, April and May 2020 in the amount of EUR 195,000, plus 5% p.a. as from their respective due dates;

- EUR 6,000 corresponding to 4 instalments of the accommodation allowance in the amount of EUR 1,500 each (note: no allocation of the requested allowances has been provided), plus 5% p.a. as from their respective due dates;

- EUR 10,000 as reimbursement of “legal fees and costs”.

9. In his claim, the Claimant firstly held that, even though the club unilaterally declared that the contract was automatically extended until the end of the 2019/2020 season, i.e. for 2 more months than what was contractually agreed, the club did not offer to pay any salaries for those 2 extra months and the player did not request any payment for that term, which –according to the Claimant– shows his good faith.

10. Moreover, the Claimant wished to point out that he is not claiming the payment of his salaries during “the period in which his contract was suspended (as from 21 April 2019 to 27 April 2020)”.

11. In this context, the Claimant stressed that, despite “all the efforts and losses supported by the Player aiming to help the Club, as if was not enough not receive any financial support during the Agreement suspension and any additional income for the two additional months that the Agreement was extended, the Club insists to not pay the outstanding amounts related to March, April and May salaries that the Player was entitle to receive”.

12. Despite having been invited to do so, the Respondent did not reply to the claim.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analyzed whether it was competent to deal with the case at hand. 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 emphasized 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 in 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 Brazilian player and a Turkish club.

3. In continuation, the Dispute Resolution Chamber analyzed 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 16 September 2020, the August 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 21 January 2018, the parties concluded an employment contract (the contract) valid as from 29 January 2018 until 31 May 2020, in accordance with which the club undertook to pay to the player, inter alia, the remuneration established in point I.2 supra.

6. After a careful analysis of the documentation on file, the Chamber firstly observed that, despite having been invited to do so, the Respondent failed to reply to the claim. Consequently, the DRC stressed that the arguments raised by the Claimant, if sufficiently supported with the necessary documentary evidence, would be deemed uncontested facts.

7. First of all, the DRC emphasized that, even though the facts of the present case are surrounded by events that were caused by Covid-19, such as: 1.) the alleged suspension of the player’s contract, 2.) the unilateral extension of the contract by the club and 3.) the offered made by the club to the player regarding a reduction of 20% of his salaries; the issue at stake is caused by the fact that the Respondent failed to make the payment of the monthly salaries of March, April and May 2020, payments that were contractually agreed and correspond to the initial term of the contract, i.e. do not fall within the term for which the contract was extended.

8. Furthermore –continued the DRC–, from the allegations of the Claimant, it seems that no reduction of his entitlements was practiced by the Respondent, who simply failed to make any payment at all as from March 2020 onwards.

9. Moreover, the Chamber noted that the Claimant is not requesting any payment concerning the months of June and July 2020, during which it is to be presumed that the player played for the Respondent.

10. In this context, the Chamber unanimously concluded that, in the absence of a reply from the club, the allegations brought forward by the Claimant regarding the Respondent´s non-payment of his monthly salaries of March, April and May 2020, as well as the monthly accommodation allowances have remained uncontested.

11. Consequently, explained the Chamber, in view of the fact that the amounts requested by the Claimant have a contractual basis and that the Respondent has not challenged the allegations of the Claimant, the Respondent is to be considered liable and must pay outstanding remuneration to the Claimant by virtue of application of the legal principle pacta sunt servanda.

12. Hence, the Chamber determined that the Respondent shall pay to the Claimant outstanding remuneration in the amount of EUR 201,000 corresponding to: the monthly salaries of March, April and May 2020 in the amount of EUR 65,000 each, 4 instalments of the accommodation allowance in the amount of EUR 1,500 each.

13. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence in this respect, the DRC decided to award the Claimant interest of 5% p.a. on the outstanding moneys, to be calculated as follows:

- Regarding the monthly salaries of March, April and May 2020, as from their respective due dates, i.e. the first day of the following month;

- Regarding the 4 instalments of the accommodation allowance, as from the date on which the contract should have expired, i.e. as from 31 May 2020 until the date of effective payment.

14. In this respect, the Chamber explained that the reason for the interest of the accommodation allowance to run as from the date on which the contract should have expired lies on the fact that the Claimant failed to allocate the requested accommodation allowances and, hence, default interest cannot be allocated to any specific month. Thus, the Chamber determined that interest should run as from the contract’s ending date concerning the accommodation allowances.

15. In respect to the legal costs requested by the Claimant, the Chamber referred to its constant jurisprudence and stressed that, in view of the international dimension of the disputes submitted to the DRC whose legal costs in which the parties thereto eventually incur can broadly differ; and in view of the absence of uniformed criteria regarding the estimated legal costs incurred by a party to a proceeding held before FIFA´s deciding-bodies, legal costs requested by the parties shall be rejected.

13. 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.

16. 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.

17. 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.

18. 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.

19. The DRC concluded its deliberations on the present matter by establishing that the claim of the Claimant is partially accepted.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Wallace Reis da Silva, is partially accepted.

2. The Respondent, Goztepe AS, has to pay to the Claimant outstanding remuneration in the amount of EUR 201,000, plus interests, calculated as follows:

- 5% interest p.a. over the amount of EUR 65,000 as from 1 April 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 65,000 as from 1 May 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 65,000 as from 1 June 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 6,000 as from 31 May 2020 until the date of effective payment.

3. Any further claim lodged by the Claimant is 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.

7. The decision is rendered free of 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).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777