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 22 October 2020
Decision of the
Dispute Resolution Chamber
Passed on 22 October 2020,
regarding an employment-related dispute concerning the player Pedro Miguel
Braga Rebocho
COMPOSITION:
Clifford J. Hendel, (USA/France), Deputy Chairman
Angela Collins, ( Australia), member
Abu Nayeem Shohag, ( Bangladesh), member
CLAIMANT:
Pedro Miguel Braga Rebocho, Portugal
Represented by Mr. Nelson Soares
RESPONDENT:
Beşiktaş JK , Turkey
I. FACTS OF THE CASE
1. On 15 August 2019, the Portuguese player, Pedro Miguel Braga Rebocho (hereinafter:
Claimant), and the Turkish club, Beşiktaş JK (hereinafter: Respondent) concluded an
employment contract (hereinafter: contract).
2. Art. 4 of the contract established the period of validity of the contract as follows:
“This Agreement will enter into force on the date of its signing and will expire on 31/05/2020
or any later date on which an official match is played in the respective football season.
The term of this Agreement will be automatically extended to 31/05/2024 in case the Club
exercises its option to acquire the registration of the Player on a definitive basis from the
Player's former club EN AVANT DE GUINGAMP in accordance with the Temporary Transfer
Agreement signed/to be signed between the Club and EN AVANT DE GUINGAMP.”
3. Art. 6 of the contract further stipulated the following:
A) The Guaranteed Salary of The Player
For 2019 / 2020 Football Season: 550.000 EUR net to be paid in 10 equal Instalments of 55.000
EUR each starting from 31 August 2019 and at the end of each consecutive month until 31 May
2020.
4. In addition, the Claimant was entitled to EUR 3,000 per month for housing.
II. PROCEEDINGS BEFORE FIFA
5. On 3 July 2020, the player lodged a claim before FIFA for outstanding remuneration. A brief
summary of the position of the parties is detailed below.
a. The claim of the Claimant
6. According to the Claimant, the Respondent has not paid his salaries and house allowance
since November 2019.
7. On 16 March 2020, the Claimant submitted a first claim to FIFA where he requested the
condemnation of the Respondent to pay him outstanding remuneration in the total amount
of EUR 227,250 in relation to his remuneration due between November 2019 and February
2020 (Case n. 20-00479/iml). This first claim was the object of the decision of the Dispute
Resolution Chamber on 12 June 2020.
8. After the aforementioned decision, the Respondent continued to fail in its obligation to pay
the Claimant’s remuneration.
9. Therefore, at the date of lodging the claim object of the present decision, the Respondent
owed the Claimant salaries and house allowance for the months of March, April and May
2020 in the total amount of EUR 174,000.
10. The requests for relief of the Claimant, are as follows:
“The Claimant PEDRO MIGUEL BRAGA REBOCHO hereby requests the intervention of
FIFA Dispute Resolution Chamber, and respectfully request the condemnation of the
Club “BESIKTAS FUTBOL YATIRIMLARI. SAN. TIC. A.S.” to pay:
(1) The amount of Eur. 174.000,00 (one hundred and seventy four thousand
euros) as outstanding remunerations, namely the full salaries from March,
April and May 2020 (Eur. 55.000 x 3), as well as the full house
allowances for that same period (Eur. 3.000 x 3 months);
(2) Default interest at the rate of 5% (five per cent) per annum calculated
over the mentioned outstanding remunerations, calculated until the date of
the effective payment, as follows:
a. 5% p.a as of 31 March 2020 on the amount of EUR 58.000;
b. 5% p.a as of 30 April 2019 2020 on the amount of EUR
58.000;
c. 5% p.a as of 31 May 2020 on the amount of EUR 58.000”
b. Position of the Respondent
11. In its reply to the claim, the Respondent first stated having paid the Claimant’s remuneration
up until 28 February 2020.
12. That being said, the Respondent explained that the Claimant stopped rendering his services
afterwards due to the COVID-19 pandemic.
13. In particular, the Respondent underlined that all competitions were suspended in Turkey as
from 19 March 2020 and resumed on 12 June 2020. On 13 June 2020, the Claimant
participated in one match with the Respondent.
14. On 10 June 2020, the Respondent sent a request to French Football Club, EA Guingamp,
for the extension of the loan agreement signed between the two clubs in light of the
extension of the championship beyond the originally agreed date of expiry of the Claimant’s
loan to the Respondent. EA Guingamp denied such request through an e-mail dated 11
June 2020.
15. On 17 June 2020, the Respondent sent an e-mail and a letter to the player, informing
him that due EA Guingamp’s refusal to extend the term of the loan agreement, the Respondent had no other option but to release him from his duties. Furthermore, the
Respondent suggested that since the Claimant did not offer his services to the Respondent
during the suspension of the league, the Claimant would not be entitled to his salary
starting from the date the leagues were suspended until 31 May 2020. The Respondent
asked the Claimant to acknowledge such conditions.
16. On the same day, the Claimant sent a reply to the Respondent via e-mail, rejecting the
Respondent’s proposal.
17. Furthermore, the Respondent indicated that, following the guidelines published by FIFA and
the Turkish Football Federation, it made an assessment of its losses incurred by the Covid-
19 pandemic. In this regard, according to the Respondent, these losses equalled to 30% of
the originally anticipated income for the 2019/2020 season, had Covid-19 pandemic
not taken place.
18. As a result, collective and individual meetings were conducted between players, technical
staff, employees and the club’s President and board members to mitigate the damages
caused by the Covid-19 pandemic and to enable the Club to continue its activities. Since
no positive outcome was reached during these collective and individual meetings, the
Respondent was forced to mitigate the monetary obligations in agreements with players,
technical staff and employees in order to guarantee its activities and financial sustainability,
whilst taking into consideration the principles of equal treatment, proportionality and
reasonableness.
19. Therefore, the Respondent decided to apply a deduction for each contract signed with
players, technical staff and employees which would be equal to half of the club’s
total loss of income, i.e. a deduction of 15% of the total remuneration due to each member
of the team during the 2019/2020 season.
20. Finally, the Respondent alleged that its obligations towards the Claimant were to be
considered as suspended until the situation would end and the leagues would be resumed.
In this regard, the Respondent referred to an alleged force majeure situation and
impossibility of performance in Turkey (and all around the world), in accordance with art.
136, 137 and 138 of the Turkish Code of Obligations.
21. As to the housing allowance, the Respondent stated that it had paid it for the months of
March, April and May 2020. The Respondent provided a receipt of a wire transfer for EUR
15,000 and dated 30 July 2020 in this respect.
22. The requests for relief of the Respondent are as follows:
(i) “to reject the claim of the Claimant
In case this request is not accepted
(ii) to reject the claim for EUR 9,000 for the house rent allowance for the months of March,
April and May 2020 since these amounts were already paid.
(iii) to limit the total salary payable by the Respondent to the Claimant with the actual
term of service of the Claimant to the Respondent (i.e. 1 March 2020 – 15 March 2020
and 12 June 2020 to 17 June 2020) and to calculate the salary due to the Claimant on
a pro-rata basis taking into consideration the monthly salary of the Claimant of EUR
55,000.
In case this request is not accepted
(iv) to reject the claim for EUR 9,000 for the house rent allowance for the months of March,
April and May 2020 since these amounts are already paid by the Respondent.
(iv) to apply a deduction of EUR 82,500 on the claimed salary payments which is equal to
15% of the Claimant’s total salary for the season 2019/2020
To reject any additional claims by the Claimant for costs and sporting sanctions”.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
23. 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 3 July 2020 and submitted for
decision on 22 October 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.
24. 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 Portuguese
player and a Turkish club.
25. 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 3 July 2020, the June 2020 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
26. 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.
27. 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
28. 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
29. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the Claimant was
entitled to remuneration during the months of March, April and May 2020.
30. Indeed, the Respondent is of the opinion that its financial obligations for these months are
to be considered as suspended in light of the force majeure situation, which occurred in
Turkey as a result of the Covid-19 pandemic.
31. Alternatively, the Respondent deems that the Claimant’s remuneration should be reduced
due to the Respondent’s loss of income and subsequent proposal to its staff, including
players, to reduce their salaries.
32. In this context, the Chamber first 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 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.
33. Analysing the concept of a situation of force majeure, 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. 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.
34. Turning to the content of the file, the members of the Chamber acknowledged that the
Respondent, in this particular matter, did not submit any form of documentary evidence to
support its position that the situation it faced was to be considered a situation of force
majeure entitling it to terminate the contract.
35. In continuation, the Chamber duly noted that the Respondent had made reference to the
alleged decision of its Board of Directors to apply a 15% salary reduction to all staff of the
club; however, the Respondent did not provide any documentation to corroborate this
allegation either.
36. In any case, and assuming such unilateral variation would have been decided upon, the
Chamber remarked that, apparently, the Respondent did not act upon it as far as the
Claimant is concerned, since the Respondent itself confirmed it had not paid the Claimant
any remuneration for the months of March, April and May 2020.
37. In view of the above, the Chamber unanimously decided that, in the absence of proof of
the existence of a force majeure situation in this particular matter, and in view of the fact
that no unilateral variation appears to have been agreed upon or even applied, the
Respondent should have fulfilled its financial obligations towards the Claimant in full.
38. With respect to the Claimant’s alleged absence between 15 March and 12 June 2020, the
Chamber held that, from the documentation on file, nothing indicates that the Respondent
had complained about the Claimant’s absence or that the latter had been summoned to
return to the club during this time frame. Furthermore, the Chamber emphasised that the
Claimant did not stop rendering his services completely, since the Respondent confirmed
that the Claimant had played a match for the Respondent on 13 June 2020, once the league
had resumed.
39. The overall circumstances described above led the Chamber to decide that, in accordance
with the legal principle of pacta sunt servanda, the Respondent must pay the Claimant
salary for the months of March, April and May 2020 in the total amount of EUR 165,000.
Furthermore, and considering the Claimant’s request and the Chamber’s constant practice,
5% interest p.a. shall apply on this amount as of the day following the respective due dates
of payment of the salaries.
40. In continuation and with respect to the Claimant’s claim for the amount of EUR 9,000
representing his house allowance for March, April and May 2020, the Chamber duly
analysed the payment receipt provided by the Respondent dated 30 July 2020 in the amount of EUR 15,000. In this regard, the Chamber noted that the Respondent had alleged
that this amount represented the house allowance due to the Claimant between January
and May 2020 (5 months).
41. Having analysed the respective document, the Chamber concurred that this document
serves as sufficient evidence that the Respondent has paid the claimed amount of EUR 9,000
corresponding to the house allowance. As a consequence, the Chamber decided to reject
this part of the Claimant’s claim.
ii. Compliance with monetary decisions
42. Finally, taking into account the consideration under number 25. 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.
43. 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.
44. 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.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d. Costs
47. 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.
48. 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, Pedro Miguel Braga Rebocho, is partially accepted.
2. The Respondent, Beşiktaş JK , has to pay to the Claimant, Pedro Miguel Braga Rebocho, the
following amounts:
- EUR 165,000 as outstanding remuneration plus 5% interest p.a. as follows:
5% p.a. on the amount of EUR 55,000 as from 1 April 2020 until the date of
effective payment,
5% p.a. on the amount of EUR 55,000 as from 1 May 2020 until the date of
effective payment,
5% p.a. on the amount of EUR 55,000 as from 1 June 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 1 and the Respondent 2 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 2 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 2 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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