F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 12 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 12 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Johan van Gaalen (South Africa), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Deyvison Rogério da Silva, Brazil

represented by Ms Débora Trombeta de Mattos

as Claimant / Counter-Respondent

against the club,

Alanyaspor, Turkey

represented by Messrs Juan de Dios Crespo Pérez, Paolo Torchetti and Sami Dinc

as Respondent / Counter-Claimant

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 13 July 2018, the Brazilian player, Deyvison Rogério da Silva (hereinafter: the player or the Claimant / Counter-Respondent), and the Turkish club, Alanyaspor (hereinafter: the club or the Respondent / Counter-Claimant), entered into an employment agreement valid as from 13 July 2018 until 31 May 2020.

2. According to contract, the player was entitled to receive the for season 2018/2019 a total fixed remuneration of EUR 725,000 payable as follows:

(a) EUR 25,000 on 15 July 2018;

(b) EUR 25,000 on 30 July 2018;

(c) EUR 61,000 on 30 August 2018;

(d) EUR 61,000 on 30 September 2018;

(e) EUR 77,250 on 30 October 2018;

(f) EUR 77,250 on 30 November 2018;

(g) EUR 61,000 on 30 December 2018;

(h) EUR 61,000 on 30 January 2019;

(i) EUR 61,000 on 28 February 2019;

(j) EUR 77,250 on 30 March 2019;

(k) EUR 77,250 on 30 April 2019; and

(l) EUR 61,000 on 30 May 2019.

3. In addition, the player was entitled to receive a total fixed remuneration of EUR 725,000 for season 2019/2020.

4. What is more, the player was entitled to receive EUR 10,000 per season “for accommodation, use of car and flight tickets”.

5. On 22 December 2018, the player sustained an injury and after medical examinations the club’s doctor informed him that it would take in or around three weeks to recover.

6. At the end of December 2018, the Turkish press announced that the newly appointed head coach of the club apparently declared that some players, including the Claimant / Counter-Respondent, were deemed to be surplus to requirements and made to train separately from the first team of the club whilst their contractual situation was being resolved.

7. On 25 December 2018, the club gave the player official permission to “leave” as from 25 December 2018 until 31 January 2019.

8. On 10 January 2019, the player put the club in default of the amount of EUR 164,500 corresponding to the remainder of outstanding salaries and gave 15 days to comply. In addition, the player referred to the aforementioned injury he sustained towards the end of the year, and requested the Respondent / Counter-Claimant to send him instructions as to the rehabilitation plan to follow as well as the full training schedule as from his return from leave. The Claimant / Counter-Respondent also referred to the fact that he had been informed by the club that his services were no longer required and that he had to find a new club during his leave.

9. During the month of January 2019, What’s App conversations took place between the parties regarding the release of the player. The Claimant / Counter-Respondent negotiated his release against payment, but the club’s offer (i.e. EUR 150,000) did not match the player’s request (i.e. EUR 700,000).

10. On 4 February 2019, the club informed the player that it had been decided that he would follow an individual training regime up until he regains a form deemed to be up to the first team’s required level.

11. On 6 February 2019, the Claimant / Counter-Respondent vehemently contested the fact that he was not up to the first team’s required level in view of the fact that he had been in rehabilitation in January 2019 and only just back to fitness on 1 February 2019. The player argued that the club’s injunction to follow an individual programme was rather a consequence of him refusing to terminate his contract and not being able to find a new club before the closure of the transfer market on 31 January 2019. The player further indicated that he had attended one of the individual training sessions, which took place in a derelict stadium more than 30kms away from the Respondent / Counter-Claimant’s facilities and that the coach arrived late to the session. The player requested to be reinstated to the first team and asked the club to cease breaching the terms of the contract. The Claimant / Counter-Respondent reiterated these injunctions made on 12 February 2019 and requested the payment of the outstanding salaries.

12. In reply, the club indicated that the player was only just coming back from his injury and therefore needing individual sessions to get back to fitness, and denied that the training facilities and regime put at his disposal was not up to the required standards. As such, the club ordered the player to follow said training regime.

13. On 18 February 2019, the Respondent / Counter-Claimant informed the player of his new training schedule at another facility and informed the player that he must attend these sessions otherwise he would be fined and that he has no right to terminate his contract. In response, the Claimant / Counter-Claimant gave a final warning as to the outstanding salaries and requested to be reintegrated to the club’s first team rather than being forced to train on his own at some third party facility.

14. On 21 February 2019, the Claimant / Counter-Respondent unilaterally terminated his contract based on the Respondent / Counter-Claimant’s abusive conduct by making him train alone outside of the club’s facilities and by having not paid outstanding salaries. The player produced payments notifications that indicate that he received a total remuneration of EUR 392,500 and that the last payment received was on 25 January 2019 with the reference “October, November, December salary payment” and “September, October, November, December for accommodation use for car flight tickets”.

15. According to relevant regulations of the Türkiye Futbol Federasyonu (hereinafter: the TFF), its member clubs must within 2 days after the closure of a registration period, submit their list of registered players for following part of the season. In this respect, according to the information available within the list of registered players for the second part of season 2018/2019 published by the TFF and that had to be completed by 2 February 2019, the player was not registered by the club.

16. On 6 March 2019, the Claimant / Counter-Respondent lodged a claim against the club for termination of contract with just cause, and requested that the Respondent / Counter-Claimant should be liable to pay:

(a) EUR 61,000 as the outstanding salary of January 2019;

(b) EUR 5,000 as the remainder of the “other benefits” clause for season 2018/2019;

(c) EUR 1,001,500 as compensation for breach of contract corresponding to the residual value of the contract that was terminated on 21 February 2019;

(d) EUR 217,500 as additional compensation; and

(e) Finally, the player additionally requested the imposition of sporting sanctions against the club for a breach of contract within the protected period. No interest were requested.

17. The player is of the opinion that the club intended to offload him during the January 2019 transfer period, and after having failed to do so, it started to ostracise him and deprive him of his right to provide his services. In support of his argumentation, the Claimant submitted photographic evidence as well as maps to show that the club had sent him to train in poorly maintained facilities that were located more than 30kms away from the club’s facilities.

18. In addition, the Claimant / Counter-Respondent highlighted that the Respondent / Counter-Claimant delayed the payment of outstanding remuneration up until 25 January 2019 (i.e. EUR 162,000) and that the salary of January 2019 remained unpaid at the date of termination.

19. On 28 March 2019, the club lodged a counterclaim against the player. The Respondent / Counter-Claimant is of the opinion that the Claimant / Counter-Respondent terminated his contract without just cause. In fact, the club declared that it had put the player through a rehabilitation program that he barely followed, and that at the time of termination all his overdue salaries had been paid. The Respondent insisted that it suffered the loss of a skilled player after the closing of the transfer window which it was unable to replace. As such, the club requested that the player should be ordered to pay:

(a) EUR 1,001,500 as compensation for the breach of contract plus interest; and

(b) CHF 15,000 as legal costs.

20. What is more, the club declared that it was within its right to implement an individual training plan to the player that was rehabbing his injury, and underlined that it was necessary to let the injured player rehabilitate alone and away from the rest of the team to avoid having his disturbing the rest of the team which was fighting against relegation at the time. The club however put the emphasis on the fact that the player did not comply with his contractual obligations by refusing to follow the training programme submitted by the club.

21. According to the information available on TMS, the Claimant / Counter-Respondent signed a contract with the Indian club Hyderabad FC valid as from 1 September 2019 until 30 June 2020 according to which he will receive, inter alia, a total fixed remuneration of EUR 246,564 payable in 8 instalments, the first on 20 September 2019 and the remaining seven on the fifth day of each month starting as from 5 November 2019 until 5 May 2020.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was first submitted to FIFA on 6 March 2019 and that the matter was submitted to the DRC for decision on 12 February 2020. Consequently, the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand.

2. Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that, in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations (January 2020 edition), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Brazilian player and a Turkish club.

3. Furthermore, the DRC analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (January 2020 edition) and considering that the present matter was submitted to FIFA on 6 March 2019, the June 2018 edition of said Regulations is applicable to the present matter as to the substance.

4. The competence of the DRC and the applicable regulations having been established, the Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the 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 as 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. In this respect, the DRC acknowledged that it was undisputed by the parties that the Claimant and the Respondent had signed an employment contract on 13 July 2018, valid as from the date of signature until 31 May 2020.

7. The DRC recalled that in accordance with the contract, the player was entitled inter alia to a total fixed remuneration of EUR 725,000 per season, payable in monthly instalments of a differing value.

8. In continuation, the Chamber took note that it is undisputed by the parties involved that the player sustained an injury towards the end of the calendar year 2018, and that the player was informed by the doctor of the club on 22 December 2018 that the player would need in or around three weeks to recover.

9. What is more the DRC observed that it is undisputed that the club gave a “leave” of four weeks to the player from 25 December 2018 until 31 January 2019, and that during this period the player and the club discussed the possibility of a mutual termination of the contract against payment, but that the parties could not reach an agreement.

10. In addition, the Chamber noted that upon return from his leave, the player was on 4 February 2019 informed that he would need to follow an individual training regimen at a separate facility in order to regain a fitness level up to the requirements of its first team, and that the club once again on 18 February 2019 sent another individual training regimen to the player, still at a third party facility.

11. What is more, the DRC remarked that the player in response argued that he was back to fitness and requested to be reintegrated to the Respondent / Counter-Claimant’s first team. In this respect, the Chamber noted that the Respondent / Counter-Claimant had not included the player in its list of registered player for the second part of season 2018/2019.

12. Furthermore, the Chamber duly observed that the player had also put the club in default on 10 January and 19 February 2019, requesting the payment of overdue salaries, and that the player terminated the contract unilaterally on 21 February 2019, invoking that the club breached the contract by forcing him to train alone, not registering him for the second part of the season as well as for having outstanding remuneration towards him.

13. The Chamber then reviewed the claim of the player, who requested the total amount of EUR 1,285,00, as follows: EUR 61,000 as the outstanding salary of January 2019; EUR 5,000 as the remainder of the “other benefits” clause for season 2018/2019; EUR 1,001,500 as compensation for breach of contract corresponding to the residual value of the contract that was terminated on 21 February 2019; EUR 217,500 as additional compensationUSD 8,508.57 as outstanding remuneration corresponding to part of the January (USD 3,080) and February (USD 5,428.57) 2018 salaries, and USD 112,571.42 as compensation for breach of contract. In addition, the Chamber took note of the player’s request as to sporting sanctions to be imposed on the club.

14. In this respect, the DRC observed that the Claimant held that since the club appointed a new head coach he was no longer in the Respondent / Counter-Claimant’s plan and that after failing to find an agreement as to the mutual termination of the contract and/or a new club for the payer during the transfer window of January 2019, the club ostracized the player and forced him to train alone as from 4 February 2019. Furthermore, the Chamber acknowledged that the player stated that the club had not registered him with the TFF for the second part of the season 2018/2019, and underlined that the club had also outstanding remuneration towards him at the date of termination. The DRC observed that in view of the aforementioned, the player deemed to have just cause to terminate the contract.

15. Moreover, the DRC observed that the club lodged a counterclaim against the player, arguing that the player terminated the contract without just cause. In particular the Chamber recalled that the club sustained that upon the player’s return it had put him through a rehabilitation program after he had sustained an injury at the end of December 2018, and that the player scarcely followed this program. What is more, the club underlined that at the moment of termination, no outstanding remuneration were due to the player.

16. In view of the foregoing and of the diverging opinions of the parties, the DRC was of the opinion that the issue at stake, considering the claim lodged by the player against the club, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the player on 21 February 2019, and, subsequently, to determine the consequences thereof.

17. First and foremost, the Chamber observed that 3 days after receiving the club’s diagnosis regarding his injury, the player was sent on leave for more than four weeks. What is more, the DRC remarked that during this period, the parties attempted to find an agreement as to the mutual termination of the contract without success. In parallel, the Chamber duly noted that the player had put the club in default on 10 January 2019.

18. As such, the Chamber wished to highlight that the contractual relationship between the parties was somehow strained.

19. Then, the DRC acknowledged that the player was informed on 4 February 2019 that he would have to follow an individual training program and paid particular attention to the exchanges of correspondence between the parties in this respect. In this regard, the Chamber observed that the club had ordered the player to train in a facility away from the club’s facilities, and that the player opposed to such decision, insisting that he was fit to return to training with the first team of the club. In addition, the DRC paid attention to the evidence submitted by the player, which seemed to show that the facilities where the player was sent to train were not of the highest standard.

20. Additionally, the DRC remarked that despite his injunctions, the player was not reintegrated to the first team training, nor made to train individually at the club’s first team facilities.

21. What is more, the Chamber noticed that on 2 February 2019, the player had not been registered within the club’s official list of players that can play official matches for the second part of season 2018/2019.

22. At this point,, the members of the DRC considered important to point out, as it has been previously sustained by the DRC, that among a player’s fundamental rights under an employment contract, is not only his right to a timely payment of his remuneration, but also his right to access training and to be given the possibility to compete with his fellow team mates in the team’s official matches. In this context, the DRC emphasized that in principle, by not registering a player, a club is effectively barring, in an absolute manner, the potential access of a player to competition and, as such, violating one of his fundamental rights as a football player.

23. What is more, the DRC underlined that regardless of the fact that a player may be given individual training sessions and rehabilitation programmes but under no circumstances, otherwise agreed between the parties, a player shall be required to train alone and away from the club’s facilities.

24. In view of all the above, the Chamber emphasised that irrelevant of the dispute between the parties regarding outstanding remuneration, the conduct of the club in making the player training alone away from the club’s facilities and by not registering him in itself amounted to just cause for the player to terminate the contract.

25. Consequently, the Chamber determined that the player had just cause to terminate the contract on 21 February 2019, and the Chamber decided that the Respondent / Counter-Claimant is to be held liable for the early termination of the contract with just cause by the Claimant / Counter-Respondent.

26. In continuation, prior to establishing the consequences of the termination of the contract with just cause by the player, the Chamber underlined that the club must fulfil its obligations as per the contract in accordance with the general legal principle of “pacta sunt servanda”, and that the club shall pay any outstanding remuneration it may have towards the player.

27. In this respect, the DRC noted that the player acknowledged having received the total amount of EUR 392,500, including a payment of EUR 164,500 on 25 January 2019, and recalled that the player requested EUR 61,000 as outstanding remuneration in his claim.

28. The Chamber however noted that the Respondent / Counter-Claimant contested having any outstanding remuneration towards the player at the date of termination.

29. In view of the above, the DRC noted that according to the contract, the player should have received the total amount of EUR 448,500, and therefore concluded that the club had a debt of EUR 56,000 towards the player and decided to grant EUR 56,000 to the Claimant / Counter-Respondent as outstanding remuneration.

30. In continuation, having established that the Respondent / Counter-Claimant is to be held liable for the early termination of the employment contract with just cause by the Claimant / Counter-Respondent, the Chamber further decided that, taking into consideration art. 17 par. 1 of the Regulations, the player is entitled to receive from the club compensation for breach of contract in addition to the aforementioned outstanding remuneration.

31. In this context, the Chamber outlined that in accordance with said provision 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.

32. In application of the relevant provision, the DRC held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a 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 contract at the basis of the matter at stake.

33. As a consequence, the DRC 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

34. The members of the DRC then turned their attention to the remuneration and other benefits due to the Claimant / Counter-Respondent under the existing contract and/or the new contract, which criterion was considered by the Chamber to be essential. The members of the Chamber deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in the calculation of the amount of compensation.

35. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its termination and concluded that the Claimant would have in principle received EUR 1,001,500 as remuneration had the employment relationship been executed until its regular expiry date. Consequently, the Chamber concluded that the amount of EUR 1,001,500 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

36. In continuation, the Chamber assessed as to whether the Claimant / Counter-Respondent has signed an employment contract with another club during the relevant period of time, by means of which he would have been able to reduce his loss of income. According to the constant practice of the DRC, such remuneration under a new employment contract(s) 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.

37. In this respect, the Chamber acknowledged that the player signed a new contract with the Indian club Hyderabad FC valid as from 1 September 2019 until 30 June 2020, by means of which he would earn a total fixed remuneration of EUR 246,564.

38. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR 754,936 to the Claimant as compensation for breach of contract.

39. Having taken into consideration the claim of the player regarding the payment of three additional monthly salaries as “additional compensation” in the sense of art. 17 par. 1 lit) ii of the Regulations, the DRC emphasized that the additional compensation could only be granted in cases where the termination was due to overdue payables. In this respect, the DRC highlighted that in the present case, it was determined that the player terminated the contract with just cause in view of the club’s conduct by sending him to train alone and away from the club’s facilities and by not registering him for the second part of the season 2018/2019 and not for overdue payables. Consequently, the Chamber rejected this particular request of the Claimant / Counter-Respondent.

40. The DRC concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant / Counter-Respondent are rejected, and that the counterclaim of the Respondent / Counter-Claimant is rejected.

41. Furthermore, taking into account the consideration under number II./12. 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.

42. 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.

43. 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.

44. 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 / Counter-Respondent, Deyvison Rogério da Silva, is partially accepted.

2. The Respondent / Counter-Claimant, Alanyaspor, has to pay to the Claimant / Counter-Respondent, outstanding remuneration in the amount of EUR 56,000.

3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Claimant compensation for breach of contract in the amount of EUR 754,936.

4. Any further claim lodged by the Claimant / Counter-Respondent is rejected.

5. The claim of the Respondent / Counter-Claimant is rejected.

6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent / Counter-Claimant must pay the amounts mentioned under points 2. and 3. above.

7. The Respondent / Counter-Claimant shall provide evidence of payment of the due amounts in accordance with points 2. and 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amount due in accordance with points 2. and 3. above are not paid by the Respondent / Counter-Claimant within 45 days as from the notification by the Claimant / Counter-Respondent of the relevant bank details to the Respondent / Counter-Claimant, the Respondent / Counter-Claimant shall be banned 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

9. The ban mentioned in point 8. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

10. In the event that the amounts due in accordance with points 2. and 3. above are 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

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Note related to the appeal procedure:

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS.

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For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer