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 Victor Ruiz Torre

COMPOSITION:

Clifford J. Hendel (USA/France), Deputy Chairman

Angela Collins (Australia), member

Abu Nayeem Shohag (Bangladesh), member

CLAIMANT:

VICTOR RUIZ TORRE, Spain

Represented by Mr. Oriol Castañer and Mrs. Teodora Taneva

RESPONDENT:

BESIKTAS FUTBOL, Turkey

Represented by Mr. Koray Akalp

I. FACTS OF THE CASE

1. On 7 August 2019, the Spanish player, Victor Ruiz Torre (hereinafter: the Claimant or the player) and the Turkish club, Besiktas Futbol (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2022, “or any later date on which an official match is played in the respective football season”.

2. Pursuant to clause 6 of the contract, the Respondent committed itself to pay to the player inter alia the following remuneration:

a. Season 2019/2020: total salaries of EUR 1,600,000;

b. Season 2020/2021: total salaries of EUR 1,750,000;

c. Season 2021/2022: total salaries of EUR 1,750,000;

d. Monthly housing allowance of EUR 3,000.

3. The aforementioned salaries were payable in 10 equal monthly instalments due between 31 August and 31 May each year.

4. On 21 January 2020, the parties executed a settlement agreement whereby the club committed itself to pay to the player the outstanding remuneration as follows: (i) EUR 69,000 on 24 January 2020; (ii) EUR 150,000 on 10 March 2020; and (iii) EUR 150,000 on 10 April 2020.

5. On 25 June 2020, the Claimant put the Respondent in default, granting the letter a 15 days’ deadline to remedy the situation. In particular, the player requested the club to pay his remuneration of “February, March, April and May 2020 plus house allowances for January, February, March, April and May 2020”.

6. In its reply to the aforementioned letter, the club sent a draft of a new settlement agreement dated 29 June 2020, stating inter alia that the player would waive EUR 270,000 corresponding to part of his remuneration regarding March, April and May 2020. The player did not accept such proposed settlement agreement.

7. On 10 July 2020, the Respondent sent a further letter indicating that it was “still facing serious financial problems due to the fact that it has suffered damages and loss of income due to Covid-19 pandemic”. As regards the Claimant’s outstanding salaries, the club indicated inter alia that it was not in a position to pay them and would only be able to do so “as soon as this legal and financial uncertainty is resolved”. The club also stated that it would apply “a reduction of 15% of the total remuneration due by our club to each player for the 2019/2020 season and this deduction will be applied to each players’ salaries for March, April and May 2020”.

8. On the same date, the player acknowledged having received EUR 166,000 from the club, equivalent to his salary of February 2020 and housing allowances of January and February 2020.

9. On 15 July 2020, the Claimant terminated the contract with immediate effect. The Claimant wrote inter alia the following in his termination notice:

“The reaction of the Club was to unilaterally and unlawfully amend the terms of our client’s Employment contract by sending a draft proposal reducing its outstanding debt up to 50% and the salary for March, April and May 2020 to be paid on 31 October 2020, without providing any proper insurance coverage, and adequate alternative income support arrangements for his unsustainable situation.

At this point, and regardless the Covid-19 the Club was in a constant default of payment with the Player since the beginning of the Employment relationship. It is the Player’s belief that the Club has had four months to resolve the unsustainable situation and at this point the only thing that he receives is a unilateral proposals for reducing his salary without specifying any date of payment.

As a consequence considering that the Club has failed to honour its obligations within the granted deadline the Player shall not be expected to bear the persistent failure of The Club anymore and hereby terminates his Contract with immediate effect and with just cause in accordance with the article 14bis of the FIFA Regulations on the Status and Transfer of the Players”

10. On 1 September 2020, the player and the Spanish club, Real Betis Balompie (hereinafter: Betis), executed an employment agreement valid as from the same date until 30 June 2021, according to which the player was entitled to the following remuneration:

a. 10 monthly payments of EUR 61,000 each;

b. EUR 800,000 as a sign-on fee;

c. Bonuses for matches played and performances achieved, and collective bonuses.

II. PROCEEDINGS BEFORE FIFA

11. On 22 July 2020, 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

12. According to the Claimant, “the Club failed throughout the whole duration of the contract to comply with its main obligations, which is to timely pay the salary due to him”. In this respect, the Claimant highlighted that “already a month after signature of the contract“, he was forced to send a default letter to the club, requesting the latter to pay the outstanding amount of EUR 200,000.

13. The player explained that on 17 October 2019, due to the fact that the club was still in breach of all the salary commitments, he sent a further email maintaining that the situation was “unsustainable”.

14. As per the player, on 21 January 2020, he agreed to arrange a payment plan for the overdue remuneration and signed a settlement agreement with the club. Subsequently, according to the Claimant, he “faced the same situation regarding his salary for January 2020, February 2020 and March 2020”.

15. According to the player, on 27 April 2020, the club “decided without even negotiating with the Player”, to send him another settlement agreement, dated 15 March 2020, according to which the club acknowledged not having paid to the player the monthly salaries for January, February and half of March 2020 and unilaterally decided to reschedule the dates of payment. The player clarified that he did not sign such proposed settlement agreement.

16. In this context, by means of an email dated 8 May 2020, the player explained that requested the following from the club: “salary and house allowance on January, February and half March 2020” as well as “(i) the remaining salary on 31 March 2020, (ii) half the house allowance for March 2020 plus (iii) the whole salary payment provided for 30/04/2020 and also (iv) house allowance for April 2020”.

17. According to the player, on 28 May 2020, the club held a meeting with the players to discuss the possible reduction of their salaries. In this respect, the player sustained that “no agreement was reached between the players and Club in relation to the reduction of the salary due to the immobile position of the Club”.

18. The player further explained that on 18 May 2020, he “started the training sessions” and “continued complying with his obligations”. The player further submitted that on 8 and 11 June 2020, due to the lack of response from the club as to the meeting held with the players, he requested payment of his outstanding salaries as follows: “(i) the remaining salary on 31 March 2020 plus the house allowance for said period; (ii) the whole salary payment on 30/04/2020 and house allowance for April 2020, and (iii) now the payment scheduled on 31/05/2020 plus house allowance for May 2020”.

19. The player submitted that on 25 June 2020 he put the Respondent in default “for the last time” regarding his remuneration of “February, March, April and May 2020 plus house allowances for January, February, March, April and May 2020”, granting the club a 15 days’ deadline to remedy the situation. The Claimant furthermore explained that in its reply, the club sent a further “settlement agreement” dated 29 June 2020, by means of which it “unilaterally and unlawfully” reduced “its outstanding debt for his salary for March, April and May 2020 up to 50%”. Furthermore, the player pointed out that said unilateral agreement did not even mention the outstanding debt of the club regarding the salary for February.

20. The player further referred to the club’s letter dated 10 July 2020 and submitted that since no payment was made by the club, he had just cause to terminate the contract on 15 July 2020. Nevertheless, the player acknowledged having received EUR 166,000 from the club on 10 July 2020, equivalent to his salary of February 2020 and housing allowances of January and February 2020.

21. The requests for relief of the Claimant were the following:

“a) To accept the claim against [the Respondent];

b) Hold [the Respondent] liable for breaching both Article 14bis and Article 17 paragraph 1 of the RSTP in light of its unjustified breach of the employment contract, at the same time, to order [the Respondent] to pay the amount of Three million nine hundred eighty nine thousand Euros net (EUR 3.989.000), as follows:

• Outstanding remuneration for the monthly salary of March, April and May 2020 in amount of EUR 489.000 net;

• Remaining contractual period amounting to EUR 3.500.000 net.

a) Order the payment of legal interests at a rate of five (5) per cent %) p.a. to the values due by [the Respondent] to [the player], starting to count on the date when the each of them became due until effective payment;

a) Impose sporting sanctions on [the Respondent], banning it from registering any new players, either nationally or internationally, for registration periods under article 17, paragraph 4 of the FIFA RSTP;

b) Order that [the Respondent] bear (sic) all administrative and procedural costs eventually incurred by [the player]”.

22. As to his contract with Betis, the player highlighted that all the amounts due are gross, and argued that “according to regulations in Spain approximately the deductions to be applied to our client’ gross salary with REAL BETIS will result in 42,39 % for income tax until the end of 2020 and 41,78 % for also income tax regarding the period from 1st January until 30th June 2021. In addition monthly deductions as social security contributions should also be considered in approximately 260, 48 Euros/month”.

b. Position of the Respondent

23. On 28 July 2020, the FIFA Administration invited the Respondent to file its position on the claim filed by the Claimant by 17 August 2020 at the latest. The Respondent did not reply within such deadline.

24. On 29 September 2020, the FIFA Administration informed the parties as follows: “we would like to inform the parties involved that the investigation-phase of the present matter is now closed. This is, no further submissions from the parties will be admitted to the file (cf. art. 9 par. 4 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber; hereinafter: Procedural Rules). Furthermore, in line with our aforementioned correspondence as well as art. 9 par. 3 of the said Procedural Rules, we wish to inform you that we will proceed to submit this matter to the Dispute Resolution Chamber for consideration and a formal decision upon the basis of the documents already on file. We will not fail to revert to you once the date of the meeting of said deciding body has been confirmed”.

25. On 30 September 2020, the Respondent filed a petition requesting inter alia that it be awarded the opportunity to file its position, i.e. namely “[t]o restore the deadline of the Respondent to provide its answers and counter-claim to the claim of Player Victor Ruiz Torre”.

26. On 1 October 2020, the FIFA Administration informed that it could not grant the Respondent’s aforementioned request on the grounds of articles 9 par. 3 and 4, and 9bis par. 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, and moreover on account of the fact that the Respondent had been properly summoned to the proceedings.

27. On 4 October 2020, the Respondent filed a separate claim against the player and Betis.

28. On 7 October 2020, the FIFA Administration informed the parties on the grounds of art. 9 par. 3 and 4 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, that since the Respondent’s time limit to the reply had expired on 17 August 2020, and the investigation of the present matter had been closed on 29 September 2020, the Respondent’s correspondence of 4 October 2020 could not be taken into account.

29. On the same date and by the same letter, the FIFA Administration informed the parties that the case would be submitted for consideration and a formal decision by the Dispute Resolution Chamber on 22 October 2020.

30. On 12 October 2020, the Respondent sent a correspondence whereby it inter alia requested the “FIFA Players’ Status Department to proceed with registering the claim of Besiktas Futbol dated 4 October 2020 against Player Victor Ruiz Torre and Club Real Betis Balompié, S.A.D., Spain under a new registration number”.

31. On 13 October 2020, the FIFA Administration informed the parties that it would be up to the Dispute Resolution Chamber to decide whether the Respondent’s correspondence could be taken into account.

c. The Respondent’s appeal

32. On 19 October 2020, the Respondent lodged an appeal before the Court of Arbitration for Sport (hereinafter: CAS) against FIFA and the player. Such appeal was registered under reference CAS 2020/A/7455 Besiktas v. FIFA & Victor Ruiz Torre (hereinafter: the Appeal).

33. In the context of the Appeal, the Respondent inter alia filed an application to stay the present matter (i.e. the one pending before the FIFA Dispute Resolution Chamber under ref. nr. 20-01044) until the CAS rendered an arbitral award on the Appeal.

34. On 21 October 2020, the Deputy President of the Appeals Arbitration Division of the CAS dismissed the application for a stay filed by the Respondent on the grounds inter alia that the Appeal was premature. The Deputy President of the Appeals Arbitration Division of the CAS further elaborated as follows: “the [Respondent] will still have the possibility to appeal the decision which will be rendered at the outcome of the FIFA proceedings Nr. 20-01044. Indeed, the de novo aspect of CAS procedures has a curative effect on any procedural flaws that may have occurred before the previous instance and grants the [Respondent] the possibility to present its case and arguments ‘from scratch’”.

35. By the time the decision at hand was passed, the Appeal was still pending before the CAS.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

36. 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 22 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.

37. 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. a) and 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 Spanish player and a Turkish club.

38. For the sake of completeness, the Chamber took note of the decision by the CAS on 21 October 2020, whereby the application for say filed by the Respondent in the context of the Appeal was dismissed. Accordingly, the DRC confirmed its competence to adjudicate on the matter at hand.

b. Admissibility of the Respondent’s position

39. Notwithstanding the above, the Chamber was observant of the fact that the Respondent, after having been granted a deadline until 17 August 2020 to file his position, and after the FIFA Administration closed the investigation-phase of the matter on 29 September 2020:

a. On 30 September 2020, submitted a request that a new deadline was set for it to file its position; and

b. On 4 October 2020, filed a parallel claim against the player and Betis pertaining to the same matter as the one at hand, i.e. the termination of the contract by the player.

40. Bearing in mind the foregoing, the DRC deemed it necessary to assess the admissibility of the correspondences filed by the Respondent both on 30 September 2020 and on 4 October 2020.

41. By doing so, the DRC confirmed that the correspondence sent by the FIFA Administration on 28 July 2020 was sent to the e-mail addresses indicated by the Respondent in the Transfer Matching System (TMS). Additionally, it recalled the contents of art. 9bis par. 3 of the Procedural Rules, according to which “Communications from FIFA shall be sent to the parties in the proceedings by using the email address provided by the parties or as provided in the Transfer Matching System (TMS; cf. art. 4 par. 1 of Annexe 3 and art. 5 par. 2 of Annexe 3 of the Regulations on the Status and Transfer of Players)”. The email address provided in TMS by associations and clubs is considered a valid and binding means of communication”.

42. Moreover, the DRC referred to the last sentence of the cited article, and confirmed that it is a duty of the Respondent to “ensure that their contact details (e.g. address, telephone number and email address) are valid and kept up to date at all times”.

43. Consequently, the DRC firmly established that the Respondent had been properly summoned to the proceeding at hand for the letter dated 28 July 2020 sent by FIFA was addressed to a valid and binding means of communication, i.e. the e-mail addresses indicated by the Respondent itself on TMS.

44. In continuation, the Chamber noted that it stood undisputed that the Respondent had not sent any submissions to FIFA by 17 August 2020.

45. Accordingly, the DRC found that the FIFA Administration acted correctly on the basis of art. 9 par. 3 and 4 of the Procedural Rules by closing the investigation phase of the matter on 29 September 2020, and subsequently not granting the Respondent a new deadline on 1 October 2020. The DRC arrived at such decision considering that the Respondent had failed either to adequately request a deadline extension in accordance with article 16 par. 11 of the Procedural Rules, or to timely file its position. The Chamber highlighted that the Respondent filed its letters (i.e. dated 30 September 2020 and 4 October 2020) after the closure of the investigation, that is, at a moment in time where the parties were no longer authorised to supplement or amend their requests or their arguments, to produce new exhibits, or to specify further evidence on which they intended to rely, pursuant to the unequivocal contents of both art. 9 par. 4 of the Procedural Rules and FIFA’s letter dated 29 September 2020.

46. In continuation, the Chamber noted that the parallel claim filed by the Respondent against the Claimant and Betis on 4 October 2020 is nothing more than a counterclaim, which should have been filed within the same time limit applicable to the reply in line with art. 9 par. 3 of the Procedural Rules.

47. As such, the members of the Chamber concluded that the Respondent’s parallel claim is to be considered an attempt to circumvent the Procedural Rules, and since it was not timely filed, it cannot be taken into account.

48. Although confident of the foregoing line of reasoning, the Chamber emphasized, for the sake of completeness, the contents of FIFA Circular no. 1694 dated 30 October 2019, which introduced the wording currently found in articles 9 and 9bis of the Procedural Rules, and which reads inter alia as follows:

“Simplifying proceedings: (…)

2. (…) If party would like to lodge counterclaim, it should do so jointly with its position to the claim and submit all necessary documents.

The contact details of parties contained in the Transfer Matching System (TMS) are binding for procedures managed by the Players' Status Department. In other words, they will be taken as default information. Therefore, it is important to ensure that the contact details of clubs and associations are up to date at all times in TMS.” (emphasis added by the DRC)

49. The Chamber furthermore referred to the jurisprudence of the Dispute Resolution Chamber, such as the decision passed on 8 May 2020 pertaining the player Hassamo, as well the jurisprudence of the CAS, in particular cases CAS 2019/A/6144 Anthony Modeste v. Tiajin Tianhai FC and CAS 2019/A/6145 Tiajin Tianhai FC v. Anthony Modeste, 1. FC Köln & FIFA, and firmly confirmed its position.

50. On account of the foregoing, the DRC concluded that the correspondence of the Respondent dated 4 October 2020 was filed late and thus is inadmissible.

c. Applicable legal framework

51. 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 22 July 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

d. Burden of proof

52. 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.

53. 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.

e. Merits of the dispute

54. 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

55. By doing so, the Chamber firstly recalled that the parties had signed the contract, according to which the club undertook to pay to the player the monthly remuneration of EUR 163,000 during the season 2019/2020, that is, EUR 160,000 as salaries and EUR 3,000 as housing allowance.

56. In continuation, the members of the Chamber took into account that, on 15 July 2020, the player notified the club of the termination of the contract on the basis of outstanding remuneration.

57. With regards to the Respondent’s position, the DRC referred to its considerations under section III.b above, and decided that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

58. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documents on file, in other words, upon the statements and documents presented by the Claimant.

59. In continuation, the Chamber reverted to the player’s claim, according to which at the time of the termination of the contract, his salaries and housing allowances between March and May 2020 were yet to be paid by the Respondent. The DRC further observed that the player granted the club in writing, on 25 June 2020, a deadline of 15 days to cure its default, to no avail.

60. In this regard, the Chamber noted that it stands undisputed that the club had failed to pay the player his remuneration between March and May 2020.

61. Notwithstanding the above and for the sake of completeness, the DRC highlighted that it was well aware of the specific circumstances concerning the effects of the COVID-19 pandemic, and hence deemed importance to recall the some of the events that led to the early termination of the contract.

62. Having said that, the Chamber highlighted 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.

63. 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 members of 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.

64. In particular, the Chamber noted that the Respondent offered the player a salary reduction by means of the settlement agreement draft dated 29 June 2020. Within this context, the Chamber noted that the player refused the aforementioned salary decrease.

65. In light of the particular circumstances of the case and taking into special consideration the fact that the club presented the player with an amendment to the contract, the Chamber considered that the club’s behaviour in this respect cannot be considered as a unilateral variation of the contract, insofar the club invited the player to provide his consent. The Chamber found it clear that this specific attempt was not successful, since the player adamantly refused the proposed modification in the contractual terms.

66. Nevertheless, the DRC noted that on 10 July 2020, the club unilaterally reduced the player’s salaries of March, April and May 2020 by 15%, and that five days later the player terminated the contract.

67. Accordingly, the DRC referred to the player’s termination notice of 15 July 2020, and noted that said termination was irrespective of the unilateral variation of the contract by the Respondent, since it pertained to the salaries in default, requested by the player via his letter of 25 June 2020. In other words, the DRC confirmed that the termination of the contract took place at the initiative of the player not because the club had unilaterally reduced his remuneration, but because the club failed to pay him his remuneration between March and May 2020. The DRC underlined that irrespective of the variation of the contract, it stood undisputed that the club did not pay the player any remuneration during said period.

68. In light of the particular circumstances of the case and taking into special consideration the constellation described above, the Chamber decided that in the case at hand there was no termination of a contract following a unilateral variation made as a result of COVID-19. Consequently, the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ are therefore inapplicable and only the FIFA Regulations and the jurisprudence of the Chamber will apply. In any event, the Chamber once more stressed that by failing to timely reply to the claim, the Respondent renounced its right to defence and thus accepted the allegations of the Claimant, hence there was no evidence of the legality of the variation were it to be considered.

69. On account of all the above-mentioned considerations, specifically considering that, when the Claimant terminated the contract, more than two salaries were due 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 15 July 2020 based on art. 14bis par. 1 of the Regulations. Consequently, the Respondent is to be held liable for the respective consequences.

ii. Consequences

70. Having stated the above, the Chamber turned its attention to the question of the consequences of such unjustified breach of contract committed by the Respondent.

71. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to three salaries under the contract, i.e. March to May 2020, amounting to EUR 160,000 each, plus EUR 9,000 in total corresponding to the three monthly housing allowances.

72. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 489,000 (i.e. three times EUR 163,000).

73. In addition, taking into consideration the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the dues dates until the date of effective payment.

74. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the members of the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, 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 player 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.

75. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of 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.

76. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

77. Bearing in mind the foregoing as well as the amended claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract until its. Consequently, the Chamber concluded that the amount of EUR 3,752,000 (i.e. two seasons à EUR 1,750,000 each plus 24 months of housing allowance à EUR 3,000 each) serves as the basis for the determination of the amount of compensation for breach of contract.

78. In continuation, the Chamber verified as to whether the player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the player’s general obligation to mitigate his damages.

79. Indeed, the player found employment with Betis. In accordance with the pertinent employment contract, the player was entitled EUR 1,410,000. The DRC outlined that the player filed no evidence regarding the tax impacts on his Betis contract, in spite of his allegations. Consequently, on the grounds of art. 12 par. 3 of the Procedural Rules, the DRC decided it would consider the amounts as stated in the contract between the player and Betis.

80. Therefore, the Chamber concluded that the player mitigated his damages in the total amount of EUR 1,410,000.

81. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Chamber confirmed that the contract termination took place due to said reason i.e. overdue payables by the club, and therefore decided that the player shall receive additional compensation.

82. In this respect, the DRC decided to award the amount of additional compensation of EUR 534,000, i.e. three times EUR 178,000, as the monthly remuneration of the player comprised of EUR 175,000 as salary and EUR 3,000 as housing allowance.

83. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the club must pay the amount of EUR 2,696,000 to the player (i.e. EUR 3,752,000 minus EUR 1,410,000 plus EUR 534,000), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

84. Lastly, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided to award the player interest on said compensation at the rate of 5% p.a. as of the date of claim until the date of effective payment.

iii. Compliance with monetary decisions

85. 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.

86. 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.

87. 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.

88. 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.

89. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

f. Costs

90. 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.

91. 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, VICTOR RUIZ TORRE, is partially accepted.

2. The correspondence of the Respondent, BESIKTAS FUTBOL, dated 4 October 2020, is inadmissible.

3. The Respondent has to pay to the Claimant the following amounts:

- EUR 163,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until the date of effective payment;

- EUR 163,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until the date of effective payment;

- EUR 163,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until the date of effective payment;

- EUR 2,696,000 as compensation for breach of contract plus 5% interest p.a. as from 22 July 2020 until the date of effective payment

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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.

8. 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

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