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 25 March 2021
Decision of the
Dispute Resolution Chamber
passed on 25 March 2021
regarding an employment-related dispute concerning the player Andre de Castro Pereira
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Daan de Jong (the Netherlands), member
Alexandra Gomez Bruinewoud (Uruguay & the Netherlands), member
CLAIMANT:
Andre de Castro Pereira, Portugal
Represented by Jose Gomes Mendes
RESPONDENT:
Goztepe Sportif Yatirimlar AS, Turkey
Represented by Ludovic Delechat
I. FACTS OF THE CASE
1. On 8 July 2017, the Portuguese player, Andre de Castro Pereira (hereinafter: the player or
the Claimant) and the Turkish club, Goztepe Sportif Yatirimlar AS (hereinafter: the club or
the Respondent) signed an employment contract valid as from the same date until 31 May
2020 (hereinafter: the contract).
2. The contract provided inter alia the following remuneration in favour of the player:
a. Salary for Season 2019/2020 i.e. from August 2019 to May 2020: EUR 100,000 net
per month, payable by the end of each corresponding month;
b. Allowance for Season 2019/2020 i.e. from August 2019 to May 2020: EUR 3,000 net
per month, payable by the end of each corresponding month
c. EUR 4,000 net as appearance fee, payable by the last day of the subsequent month,
with consideration of the following system:
d. 100% of the appearance fee was payable if the player was in the starting 11;
e. 75% the appearance fee was payable if the player was fielded as a substitute;
f. 50% the appearance fee was payable if the player was included in the team roster for
any match;
g. No appearance fee payable if the player was not included in the team roster.
3. Clause 3.4 of the contract provided that the club could pay other unspecified bonuses to
the player.
4. On 17 March 2020, the local league was suspended because of COVID-19, and
subsequently the player was training at home at the direction of the club.
5. On 21 April 2020, the club sent an email to the player referring to the adverse effects of
COVID-19 and stating inter alia as follows:
“Nevertheless, during such a difficult period, which especially the football economy, and
the clubs, being the most important and fundamental ground of the football economy, lost
their current and prospective income, and thus survival of the stakeholders will only be
possible through voluntary collaboration and cooperation by the players, technical team,
club employees and all other partners in the sector.
Accordingly, for this period, in which all available contracts are being currently suspended,
it became an obligatory remedy in the strictest sense for all the world, this country and our
club to meet on common grounds by renegotiating the available contract terms. Therefor
we intend to initiate such renegotiations as soon as possible by taking into consideration
the current FIFA recommendations.
As Goztepe Sports Club, we solemnly declare that during this challenging period we stand
by our players as it always has been the case, and as a token of such good faith we would
like you to know that as we feel obliged to do so we have been making significant sacrifices
to make regular salary payments of the low-income workers employed within our club, so
that they can provide for their families.
We hereby emphasize that together with all of our stakeholders, your cooperation as the
most important partners of the football family is essential for our club to overcome these
dire straits. Our club and the football community have no doubt that you will express your
valuable opinions and contribute to us with your support during such an emerging
situation.”
6. On 28 April 2020, the club sent an email to the player, stating inter alia as follows:
“Following to our e-mail communication with the above content which encompassed
summarized explanations, during the group meetings held, we have tried to share with you
through further clarifications as best as we can about the details of this ongoing crisis we
all have been experiencing. As explained in detail on our video calls we must now revise the
terms of the pending contracts of this term, as a measure that became absolutely
compulsory due to our Club’s financial constraints, like in all similar entities in Turkey and
around the world. The club furthermore stated that “On the other hand, while the COVID-
19 pandemic has been pending, the exchange rate of TL vs. common foreign currencies has
been rapidly declining i.e. TL is constantly losing its value against EUR, which evidently puts
our club into an increasingly difficult position as many of our contractual obligations are
based on this foreign currency.”
7. On 23 May 2020, the club sent a notice to the player stating 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” and announcing a 20% reduction on the
player’s remuneration under the contract for the season 2019/2020.
8. On 27 May 2020, the club sent an e-mail to the player with a draft of an amendment to
the contract.
9. On 28 May 2020, the player wrote to the club, refuting its letters and stating that he did
not agree to the proposed amendment, and availing himself to find a “collective
agreement”.
10. On 3 June 2020, the club wrote to the player and stated the following:
“We acknowledge receipt of your letter and took note of your unexpected decision to reject
our club's suggested amendments to the employment contract.
We are unfortunately disappointed but still confident that we could reach a mutual
agreement with you to overcome the unprecedent crisis our club is currently facing.
As already exposed in our various e-mail correspondences and during our personal
meetings, we are working in a very transparent way to find a common and fair solution
with all the players.
As you know, COVID-19 pandemic has not only been imposing negative effects on our
club’s revenues but also causing significant raise in our operational costs, combination of
which critically endangered our club’s financial sustainability.
Therefore, our current circumstances compelled us to ask for certain revisions in an attempt
to reflect on the current contracts not the whole but only a portion of the losses we suffer.
Such revisions of the current contracts as well as the wages reflect the recommendations
provided by FIFA and TFF and will be applied evenhandedly on all players, technical crew,
administrative employees, and directors of the club.
At this stage, we are delighted to inform you that we have reached agreements with some
of the players who showed total understanding towards the current delicate situation. We
would be extremely grateful to have you also agreeing on some terms to help the club in
this difficult time.
According to the responses received from you players, we see that you’ re also aware of
financial difficulties that football world is going through, for this reason we are planning to
asses the club’s total financial loss again following the COVID-19 pandemic at the end of
the current season and therefore we would like to negotiate and finalize a potential mutual
agreement at the end of the current season. That would allow us to overcome the financial
crisis together and allow us to find a fair agreement with you”.
11. On 12 June 2020, the local league resumed.
12. On 21 July 2020, the club wrote to the player and stated inter alia as follows:
“As we are getting nearer to the end of this football season, we are intending to finalize
these one-on-one negotiations within three days following to the last game we are
scheduled to play, and this notification is being sent to you so that you can note it down
on your agenda accordingly.
For those players who will be unable to stay in Izmir to attend face-to-face meetings after
the last game is played, it is possible to optionally book an appointment with us during this
week to hold the intended negotiation meetings.”
13. On the same date and in response, the player stated that he could not stay in Izmir to attend
a meeting in person and stressed that he was available to attend a meeting that week.
14. On 25 July 2020, the club played its last match of the season 2019/2020.
15. On 28 July 2020, the club wrote to the player stating that due to COVID it had to apply a
27% reduction in the contract values so that “it could maintain” the club’s “sustainability”,
and availing itself to discuss the matter.
16. On 29 July 2020, the last match of the season was played in Turkey.
17. On 2 August 2020, the club reiterated that it wanted to finish negotiations with the player
and invited him to send his position within 3 days.
18. On 9 August 2020, the club wrote to the player and while thanking him for a personal
meeting, stated that it was willing to apply a discount rate of 20% to the player’s
remuneration.
19. On 12 August 2020, the player wrote to the club, inter alia rejecting any reduction in his
earning and demanding full payment of his remuneration.
20. On 10 September 2020, the player put the club in default of payment of EUR 528,064.51
within 10 days, broken down as follows:
a. EUR 300,000 as salaries of March, April and May 2020;
b. EUR 39,000 as appearance fees;
c. EUR 3,000 as allowance of May 2020;
d. EUR 100,000 as salary of June 2020;
e. EUR 3,000 as allowance of June 2020;
f. EUR 80,645.16 as pro rata 25 days of salary of July 2020;
g. EUR 2,419.35 as pro rata 25 days of allowance of July 2020.
21. On 24 September 2020, the club wrote to the player and refuted the claimed amounts,
referring to the 20% reduction of his salary.
II. PROCEEDINGS BEFORE FIFA
22. On 10 January 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. The claim of the Claimant
23. The player filed the claim at hand seeking payment of overdue payables in the total amount
of EUR 528,064.51, as follows:
a. EUR 300,000 as salaries of March, April and May 2020;
b. EUR 39,000 as appearance fees;
c. EUR 3,000 as allowance of May 2020;
d. EUR 100,000 as salary of June 2020;
e. EUR 3,000 as allowance of June 2020;
f. EUR 80,645.16 as pro rata 25 days of salary of July 2020;
g. EUR 2,419.35 as pro rata 25 days of allowance of July 2020.
24. The player further requested interest of 5% p.a. on said amounts as from the due dates
until the date of effective payment.
25. The player explained that he accepted the extension of the contract until the end of the
(prolonged) 2019/2020 season.
26. The player furthermore filed evidence of the matches played with the club to justify the
bonuses sought and argued that he had not accepted any reduction on his remuneration
since such reduction was not reasonable nor proportionate, in particular because it applied
to amounts due before the pandemic arose and after the league would resume.
27. The player furthermore argued that during the suspension of the league, “the Club also
wanted the player to work for the extension period of two additional months, absolutely
for free, without any compensation whatsoever (having to support all the necessary
expenses, such as house and car rent, food, as well as all the other necessary expendables).”
28. The player also explained that by March 2020 the club already owed him EUR 290,000 and
that the club never paid the salary on time.
b. Position of the Respondent
29. The club rejected the player’s claim and argued that it paid the player his entire
remuneration for the season 2019/2020. To this end, the club rejected that it had not paid
the player’s remuneration on time.
30. The club referred to the COVID-19 pandemic and argued that it endangered the club’s
financial sustainability. In support of this allegation, the club filed a financial report showing
its losses during the pandemic. The club furthermore referred to its emails to the player and
argued that it tried to reach an agreement with him.
31. The club further argued that in spite of the extension of the contract, the remuneration
agreed therein amounted to EUR 1,000,000, and that as such the request of the player
should be rejected for lack of contractual basis.
32. As to the reduced salaries of the player, the club argued that in line with the FIFA COVID-
19 guidelines, the club “met all the requisites” to trigger the application of said rules, namely
“i. whether the club has attempted to reach a mutual agreement with its employee(s); ii.
whether the decision is applied to the entire squad or only specific employees; iii. what the
economic situation of the club is; iv. the proportionality of any contract amendment; and v.
the net income of the employee after any contract adjustment”.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
33. 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 7 January 2021 and submitted
for decision on 25 March 2021. Taking into account the wording of art. 21 of the January
2021 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.
34. 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 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), 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 Portuguese player
and a Turkish club.
35. 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 February 2021), and
considering that the present claim was lodged on 7 January 2021, the January 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
36. 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.
37. 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
38. 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
39. By doing so, the Chamber firstly wished to highlight that 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 clarifications on the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and
identifies solutions for new regulatory matters.
40. The DRC also wished to refer to the fact that said guidelines – as per the explicit wording
of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only
applicable to “unilateral variations to existing employment agreements”. Therefore, except
where a termination of a contract occurred following a unilateral variation made as a result
of COVID-19 (in which case the validity of the variation must first be assessed under the
guidelines), said guidelines do not apply to assess unilateral terminations of existing
employment agreements. The Chamber further noted that for the assessment of disputes
that are presented before the FIFA judicial bodies concerning the unilateral termination of
a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber
shall apply.
41. Additionally, 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, FIFA did not declare that the COVID-19 outbreak was a force majeure
situation in any specific country or territory, or that any specific employment or transfer
agreement was impacted by the concept of force majeure.
42. In other words, in any given dispute, it is for a party invoking force majeure to establish the
existence of said event under the applicable law/rules as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed
has to be considered on a case-by-case basis, taking into account all the relevant
circumstances.
43. Following these general observations, the members of the Chamber went on to analyse
whether in the matter at hand, any of the parties to the contract had made a unilateral
variation to their existing agreement prior to the unilateral termination of the contract by
the Claimant.
44. In this respect, the members of the Chamber unanimously agreed that the decision of the
Respondent to unilaterally suspend the contract as well as the salary payments, has to be
considered as a unilateral variation to the employment relationship between the parties. It is clear to the members that the Respondent did not terminate the contract, but only altered
several aspects of the contract, such as the salary payment. As a result, the members of the
Chamber concluded that the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ are
applicable to the matter at hand when having to assess the legitimacy of the pertinent
unilateral alteration.
45. In the case at hand, in application of the FIFA COVID 19 Guidelines, the DRC noted that
unilateral decisions to vary agreements will only be recognised where they are made in
accordance with national law or are permissible within collective bargained agreements
(CBA) structures or another collective agreement mechanism.
46. What is more, the Chamber stressed the contents of art. 12 par. 3 of the Procedural Rules,
pursuant to which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof. As an example, a party should provide independent legal advice from a
qualified legal practitioner in the relevant jurisdiction which confirms that the unilateral
variation was a valid exercise of the national law referred to in the agreement, CBA, or
other collective agreement mechanism.
47. Turning to the evidence on file as well as the submissions of the parties, the Chamber
confirmed that the club has not adduced any evidence, nor any argument, capable of
demonstrating that the unilateral variation of the player’s salary was made on the basis of
the national law, or any collective agreement. Furthermore, the club has not demonstrated
that the national law does not address the issue of force majeure.
48. To this end, the Chamber stressed that the pieces of evidence filed by the club demonstrate
the financial impacts of COVID regarding the club’s finances, which is not sufficient to prove
a situation entitling the club to unilaterally vary the terms of the contract.
49. Based on the foregoing considerations, the Chamber unanimously concluded that the club
failed to demonstrate that the unilateral variation of the contract was licit, entailing that on
the basis of the principle pacta sund servanda the club should have paid the player’s agreed
remuneration.
50. For the sake of completeness, the Chamber highlighted that the club has also failed to
demonstrate that it paid the player’s remuneration, since the documentation provided,
comprising of 95 payment receipts in Turkish are not translated into one of the four official
FIFA languages and thus cannot be considered on the basis of art. 9 par. 2 of the
Regulations. The Chamber furthermore emphasized in this respect that it was not clear to
what such receipts referred to.
51. Accordingly, the DRC found that the player is entitled to the remuneration sought,
calculated below. To this end, the Chamber underlined that the player has adequately
substantiated his requests in this respect, namely pertaining to the match bonuses
requested:
a. EUR 100,000 net as salary of March 2020;
b. EUR 12,000 net as bonus for 3 matches played in March 2020;
c. EUR 100,000 as salary of April 2020;
d. EUR 3,000 net as housing allowances of May 2020;
e. EUR 100,000 net as salary of May 2020;
f. EUR 11,000 net as bonus for 3 matches played in June 2020;
g. EUR 16,000 net as bonus for 5 matches played in July 2020;
h. EUR 100,000 net as salary of June 2020;
i. EUR 3,000 net as housing allowances of June 2020;
j. EUR 80,645.16 net as pro-rata salary of July 2020;
k. EUR 2,419.35 net as pro-rata housing allowances of July 2020.
52. Finally, the DRC in line with its constant jurisprudence as well as the requests of relief of the
player, decided to grant interest at the rate of 5% per annum on said amounts as from
their due dates (i.e. the following day upon which they fell due) until the date of effective
payment.
ii. Compliance with monetary decisions
53. Finally, taking into account the applicable Regulations, the Chamber referred to par. 1 lit.
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.
54. 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
55. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
56. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
57. The DRC 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. 8
of the Regulations.
d. Costs
58. 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.
59. 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.
60. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Andre de Castro Pereira, is accepted.
2. The Respondent, Goztepe Sportif Yatirimlar AS, has to pay to the Claimant the following
amounts:
a. EUR 100,000 net as outstanding remuneration plus 5% interest p.a. as from 1 April
2020 until the date of effective payment;
b. EUR 112,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May
2020 until the date of effective payment;
c. EUR 103,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June
2020 until the date of effective payment;
d. EUR 103,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July
2020 until the date of effective payment;
e. EUR 94,064.51 net as outstanding remuneration plus 5% interest p.a. as from 1
August 2020 until the date of effective payment;
f. EUR 16,000 net as outstanding remuneration plus 5% interest p.a. as from 1
September 2020 until the date of effective payment.
3. Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
paid by the end of the of the three entire and consecutive registration periods.
5. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
6. This decision is rendered without 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