DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 10 dicembre 2020 • Stagione sportiva: 2020/2021

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 Mitchell Glenn Donald

COMPOSITION:

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

CLAIMANT:

Mitchell Glenn Donald, Netherlands

Represented by Mr Felipe Augusto Loschi Crisafulli, Ms Pollyana Moraes Cecconi and Mr Marcelo Robalinho Alves

RESPONDENT:

Yeni Malatyaspor, Turkey

Represented by Mr Burak Çakir

I. FACTS OF THE CASE

1. The Dutch player, Mitchell Glenn Donald (hereinafter: Claimant or player) and the Turkish club, Yeni Malatyaspor (hereinafter: Respondent or club) concluded an employment contract (hereinafter: contract) valid as of 2 August 2018 until 31 May 2020.

2. According to art. 3 of the contract, the club undertook to pay the player the following net amounts:

(i) Season 2018/2019: total amount of EUR 775,000

 EUR 100,000 “cash paid at the time of signature”;

 10 instalments as follows:

1. “67.500 Euros on 30th August 2018;

2. 67.500 Euros on 30th September 2018;

3. 67.500 Euros on 30th October 2018;

4. 67.500 Euros on 30th November 2018;

5. 67.500 Euros on 30th December 2018;

6. 67.500 Euros on 30th January 2019;

7. 67.500 Euros on 28th February 2019;

8. 67.500 Euros on 30th March 2019;

9. 67.500 Euros on 30th April 2019;

10. 67.500 Euros on 30th May 2019”;

 Bonuses to be paid at the latest on 30 July 2019, as follows:

“aa. Everytime If Player reach a total of 5 (goal + assist) at official league games, player will be entitled an amount of total 12.500 EUROS NET everytime this number or a multiple thereof is reached by Player he will receive this amount, that means: If Player reach a total of 10 (goal + asist) at Official league games, player he will be entitled to a total of 25.000 EUROS NET. If Player reach a total of 15 (goal + assist) he will be entitled to a total of 37.500 EUROS NET. If Player reach a total of 20 (goals + assists) will be entitled to a total amount of 50.000 EUROS NET and soforth.

b. if the team goes to EUROPA LEAGUE group stage, 100.000 euro net will be paid to player.

bb. if the team goes Champions League group stage, 200.000 euro net will be paid to player.

The Player only will be entitled bonus (bb) or (b)”

(ii) Season 2019/2020: total amount of EUR 775,000

 EUR 100,000 “advanced payment on or before 20th August 2019 in cash”;

 10 instalments as follows:

1. “67.500 Euros on 30th August 2019;

2. 67.500 Euros on 30th September 2019;

3. 67.500 Euros on 30th October 2019;

4. 67.500 Euros on 30th November 2019;

5. 67.500 Euros on 30th December 2019;

6. 67.500 Euros on 30th January 2020;

7. 67.500 Euros on 28th February 2020;

8. 67.500 Euros on 30th March 2020;

9. 67.500 Euros on 30th April 2020;

10. 67.500 Euros on 30th May 2020”;

 Bonuses as follows:

b. if the team goes to EUROPA LEAGUE group stage, 100.000 euro net will be paid to player.

bb. if the team goes Champions League group stage, 200.000 euro net will be paid to player.

The Player only will be entitled bonus (bb) or (b)”

3. Furthermore, the contract stipulated that, in the event of a transfer of the player to another club, the player will receive 15% of the transfer fee net. If the transfer occurs before the payment of the advance payment of EUR 100,000 as per the contract, the player will be entitled to receive “such advanced payment in the amount of EUR 100.000 NET in cash on top of the amount of 15% of the transfer fee received by Club”.

4. In his claim, the player first stated that the club did not fulfil its contractual obligations. As such, the player held that outstanding net amounts are EUR 276,250 as unpaid wages and EUR 12,500 as bonuses for 5 goals scored by him during the 2019/2020 season.

5. In this regard, the player underlined that he “is not in a position to know to which months exactly are those unpaid wages sums concerned, since the amounts regarding the ten (10) annual instalments were paid haphazardly and usually delayed, viz., THE RESPONDENT used to pay those sums at random, without any relation with the contractual due dates and in amounts different from the ones laid down in THE CONTRACT”.

6. Moreover, the player considered that the club’s debt is around 40% of his 2019/2020 season total salaries and more than 4 months of delayed wages and held to have notified the club on 3 occasions about the outstanding amounts.

7. The player maintained that even though the contract terminated on 31 May 2020, he has continued to train and play for the club since the outbreak of covid-19. The player mentioned that “he is feeling insecure with this situation, since there is no formal/written document stating his rights concluded between the parties for this period”. Therefore, he requested the DRC to grant a preliminary order “guarantee his right to not attend any training sessions and/or matches for THE CLUB until the latter pays the outstanding amounts”. Even if the preliminary order cannot be granted, the player asked not to be considered the defaulting party if he decides to refuse to train and/or play for the club during this period.

8. On 22 July 2020, the Claimant lodged a claim against the Respondent in front of FIFA and requested payment of outstanding remuneration in the total amount of EUR 288,750 plus 5% interest p.a.

9. In its reply, the club first maintained that the COVID 19 outbreak has seriously impacted its financial situation, with a “30% decrease in seasonal revenues.”

10. Moreover, the club stated that “[w]ithin the scope of the directive named TFF’s Recommendations on Contracts which was approved by the TFF Board of Directors and announced on the official website on May 7, 2020 in line with the directive named Covid-19 Regulatory Instructions adopted by FIFA and put into effect on April 7, 2020; it has been clearly stated that it is not possible for the parties to completely fulfil their contractual obligations. In the light of this situation, in order to prevent disputes based on contracts that may arise between the parties and to protect the economic status of the clubs, it has been recommended to sign contracts based on consensus, which encourage reconciliation and project mutual negotiations.”

11. The club further held that on 19 April 2020, via an e-mail sent also to the Claimant, it informed the player about its intention to start a negotiation for “mutual agreement”, however to no avail given that the player did not reply to its e-mail.

12. On 7 August 2020, the club, via e-mail, requested the player to provide an answer to the “Yeni Malatyaapor Covid-19 questionnaire” which was previously sent to him. According to the club the player ignored its request.

13. On 21 August 2020, the club retired its request formulated on 7 August 2020, however to no avail.

14. On 25 August 2020, the club sent a further request to the player, by means of which it requested a “10% decrease on the contract price of the 2019/2020 season with the official notice sent by the notary to the notification address specified in the contract, and that if this request is left unanswered within 2 days, a unilateral decrease of 10% will be made on the contract price in line with FIFA instructions. The claimant football player did not object to the notice dated 25 August 2020 with roll number 21273”.

15. Moreover, the club affirmed that the same conditions were offered to all players and that it reached an agreement with others players of the team. “Accordingly, the football players waived their salary receivables for May 2020”.

16. Furthermore, the club contested the player’s claim regarding the payment of bonuses. It stated that according to the contract “If the player entitled relevant bonuses, Club will pay relevant bonuses to player no later than date of 30.07.2020” and that since the player submitted his claim to FIFA on 21 July 2020, “[i]t is not legally possible to subject an undue overduepayment to a lawsuit and it must be rejected.”

17. The club maintained that the outstanding amount due to the player is equals EUR 208,750 “since the Covid-19 decrease is made over his receivables”. In particular, the club explained that from the requested amount by the player of EUR 276,260, EUR 67,500 has to be deducted, i.e. “Covid-19 decrease”, and therefore he is entitled to EUR 208,750.

18. Finally, the club request the following:

 “The refusal of the amount which is the basis of the case,

 The application of the Covid-19 decrease and acceptance of the receivable amount as 208.750,00 EURO,

 The refusal of an undue bonus payment of 12.500 EURO.”

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 22 July 2020 and 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 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 Dutch player and a Turkish club.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim was lodged on 22 July 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber 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.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the members of the Chamber acknowledged that the player and the club had concluded an employment contract valid as from 2 August 2018 until 31 May 2020, according to which the Claimant was entitled to a monthly salary of EUR 67,500 during the 2019/2020 season.

7. Further, the Chamber duly noted that the Claimant lodged a claim against the Respondent requesting payment of EUR 288,750, corresponding to EUR 276,250 as outstanding salaries and EUR 12,500 as bonus, plus 5% interest p.a.

8. On account of the above, the DRC turned its attention to the arguments of the Respondent, who maintained that it tried to reach an agreement with the player, but, given that all its efforts were left unanswered by the Claimant, it decided that the salaries deduction applied to other players was to be taken as basis for the one calculated on the Claimant. As a consequence, it maintained that the salary of May 2020, amounting to EUR 67,500, had to be deducted from the total outstanding amount and the player should be entitled to receive only EUR 208,750 as outstanding remuneration.

9. The DRC, moreover, took note that the Respondent contested the player’s claimed amount of EUR 12,500 as bonus, given that according to the club he submitted its claim before the due date, i.e. 30 July 2020, therefore it requested that this part of his claim shall be rejected.

10. Having said that, the Chamber wished to refer 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.

11. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a player’s salary.

12. In this context, the DRC considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies due to the player, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

13. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit to the Claimant the total amount of EUR 276,250 corresponding to the player’s outstanding salaries until May 2020.

14. Consequently, the members of the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 276,250.

15. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant 5% interest p.a. on said amount as of the day of claim, i.e. 22 July 2020, until the date of effective payment.

16. Moreover, the DRC noted that the player did not submit any proof pertaining to his request for the payment of the bonus, i.e. that he allegedly scored 5 goals during the 2019/2020 season, hence, the DRC decided to reject this part of the player’s claim corresponding to USD 12,500.

17. Furthermore, taking into account the consideration under number II./3. 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.

18. In this regard, the 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.

19. 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, 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.

20. Finally, the 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, Mitchell Glenn Donald, is partially accepted.

2. The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the following amount:

- EUR 276,250 as outstanding remuneration plus 5% interest p.a. as from 22 July 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).

CONTACT INFORMATION:

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

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