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 5 December 2019

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 5 December 2019,

in the following composition:

Geoff Thompson (England), Chairman

Alexandra Gómez Bruinewoud (Uruguay & Netherlands), member

Stijn Boeykens (Belgium), member

Stefano La Porta (Italy), member

Abu Nayeem Shohag (Bangladesh), member

on the claim presented by the player,

Saïd Id Azza, France

represented by Mr. Selçuk Demir

as Claimant / Counter-Respondent

against the club,

Giresunspor, Turkey

Represented by Mr Ercan Sevdimbas

as Respondent / Counter-Claimant

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 28 June 2018, the French player, Saïd Id Azza, (hereinafter: the player or the Claimant /Counter-Respondent) and the Turkish club, Giresunspor (hereinafter: the club or the Respondent/Counter-Claimant) signed an employment contract (hereinafter: the contract) valid as from 28 June 2018 until 31 May 2020

2. According to art 6.1 of the contract, the salary of the player for the 2018/2019 season is EUR 150,000, paid as follows:

 EUR 30,000 on 26 June 2018;

 EUR 10,000 on 30 July 2018;

 EUR 20,000 on 30 September 2018;

 EUR 20,000 on 31 October 2018;

 EUR 20,000 on 31 January 2019;

 EUR 25,000 on 28 February 2019;

 EUR 25,000 on 30 April 2019.

3. According to art 6.1 of the contract, the salary of the player for the 2019/2020 season is EUR 175,000.

4. Art. 6.2 provided for a compensation clause in case of termination with just cause of the player providing that “in case the Club falls into a default for any payment for more than 60 (sixty) days then the Player shall have the Option to terminate the contract. ln Order to exercise this Option, the Player shall first send a written notification via a notary public to the Club and if the Club fails to pay the amount due to the Player within 30 (Thirty) days after the receipt by the Club of the respective notification, the Player shall be free to terminate the Contract. ln this case, the Player shall be entitled to take action before FIFA bodies to settle the dispute. The gaining of the player Player arising from the new club(s) between the termination date and expiration date shall be deducted from the indemnification to be decided by the judicial committees.

5. On 25 December 2018, the player put the club in default for the payment of outstanding salaries in the amount of EUR 45,000. The default letter sent by the player gave the club a deadline of 7 days to pays the EUR 45,000, failure to do so and the player would be “compelled” to terminate the contract.

6. On 28 January 2019 the Turkish Football Federation (hereinafter: the TFF) confirmed the termination of the contract by the player.

7. On 6 March 2019, the Player lodged a claim before FIFA against the Club for breach of contract in the total amount of EUR 590,000, he provided the following breakdown:

 EUR 115,000 for the 2018-2019 season plus 5% interest;

 EUR 175,000 plus 5% interest for the 2019-2020 season;

 EUR 300,000 plus 5% interest as an indemnity for moral damages “owing to the Club’s behavior of not paying salaries”.

8. In his claim, the player argued that the club paid him EUR 30,000 in July 2018 and then “a few weeks later” EUR 5,000. The player claims that he was not paid his salary for the months of September, October, November and December 2018.

9. The player held that because the club was more than 60 days late in payment of salary, on the 25 December 2018 he put the club in default for the salaries of August to December 2018.

10. Finally, the player stated that he is currently employed by with Club Boulogne, a team in the third division of the French league. According to the player, the violation of the contract by the club “forced” him to leave the club near the end of the transfer window and for a club of inferior status. The player claimed that when signing for Giresunspor, he turned down propositions from different clubs from the second French division and Moroccan first division. He argues that the situation with the Club has caused his value to fall.

11. In reply to the claim of the player, the club lodged a counterclaim against the player, requesting the total amount of EUR 94,362.01 plus 5% of interest as from the date of termination until the date of effective payment corresponding to:

 EUR 94,362.01 by “considering the cost of the Player determined by the contract during the period between the signing date of the Contract (28.06.2018) and the date of termination without just cause (26.01.2019)”

 the cost of the player between 28 June 2018 and 26 January 2019 “equals to EUR 94,632.01 (212/337 x EUR 150,000)”

 sporting sanctions to be imposed on the player.

12. The club claimed that the player failed to take Art 14bis RSTP into consideration, according to the club the player committed a violation of procedure and the termination is “unjust according to the Regulations of FIFA”, consequently the Club deems that the player cannot ask “any termination compensation because of unjust termination”. According to the club, it is “clear” that the player terminated the contract without just cause as he “failed to follow the procedure regulated by FIFA”.

13. The club deemed that it had to “suffer economic difficulties while pushing really hard to eliminate relegation to the subdivision”. Consequently the club requests the imposition of “6 months sporting sanctions on the Player”.

14. The club further specified that, in the eventuality that FIFA deem the termination by the player to be with just cause, the amount requested by the player is “more than it should be”. According to the club, the amount owed to the player is not EUR 115,000 but EUR 112,315, the club deems that the player “failed” to consider all the payments made by the club. The club states that the records show that it paid EUR 37,685 rather than EUR 35,000.

15. Despite being requested by the FIFA’s administration, the player failed to provide any comments with regards to the reply and counterclaim of the club.

16. In reply to FIFA’s request, the player informed FIFA that on 29 January 2019, he and the French club U.S. Boulogne Cote d’Opale signed an employment contract valid as from 29 January 2019 until 30 June 2021. The contract provides a monthly salary of EUR 5,606.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the DRC 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. Consequently, the 2018 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 (cf. art. 21 of the Procedural Rules).

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 (edition October 2019), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a French 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 (editions 2018 & 2019) and considering that the present matter was submitted to FIFA on 6 March 2019, the 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 emphasized 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. 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 28 June 2018, valid as from the date of signature until 31 May 2020.

6. The DRC recalled that in accordance with the contract, the player was entitled inter alia to the total remuneration of EUR 150,000 for the season 2018/2019 composed of payable as follows: EUR 30,000 on 26 June 2018, EUR 10,000 on 30 July 2018, EUR 20,000 on 30 September 2018, EUR 20,000 on 31 October 2018, EUR 20,000 on 31 January 2019, EUR 25,000 on 28 February 2019 and EUR 25,000 on 30 April 2019. The contract further entitled the player EUR 175,000 for the season 2019/2020.

7. In continuation, the Chamber took note that it is undisputed by the parties involved that the employment relationship had been terminated by the player. In this regard, the DRC took note of the absence of a formal termination letter on file, but took note of the existence of a confirmation of the termination by the player from the TFF dated 28 January 2019. However, the DRC, in the absence of a concrete and certain date of termination decided that it would take the date of the letter of acknowledgement of the TFF as date of termination, i.e. 28 January 2019.

8. The Chamber then reviewed the claim of the player, who requested the total amount of EUR 590,000, EUR 290,000 for the seasons 2018/2019 and 2019/2020 without attaching any concept to his request as well as EUR 300,000 as moral damages.

9. The Chamber took note of the argumentation of the Claimant/Counter-Respondent who held that was only paid EUR 35,000 before he terminated the contract unilaterally and despite a default notice of 25 December 2019 requesting the payment of EUR 45,000 to the Respondent/Counter-Claimant.

10. Moreover, the DRC took note that the club lodged a counterclaim against the player, requesting the total amount of EUR 94,362.01 as compensation for breach of contract by the player.

11. In its counterclaim, the Respondent/Counter-Claimant argued that the Claimant/Counter-Respondent had not followed the FIFA Regulations to unilaterally terminate the contract, in particular, the Respondent/Counter-Claimant considered that the default notice of the player which granted it 7 days to remedy its default should have been of a minimum of 15 days.

12. The Chamber took note of the argumentation of the Respondent/Counter-Claimant according to which he provided proof of payments and that contrary to the allegations of the Claimant/Counter-Respondent, the club had paid EUR 37,685 to the player and not just EUR 35,000.

13. The DRC took note despite a request of the FIFA’s administration, the player did not reply to the counterclaim of the club.

14. In view of the foregoing and of the diverging opinions of the parties, the Dispute Resolution Chamber was of the opinion that the issue at stake, considering the claim and counterclaim lodged respectively by the parties against each other, was to determine whether the employment contract had been unilaterally terminated with or without just cause by the player on 28 January 2019, and which party was responsible for the early termination of the contractual relationship in question. The DRC also underlined that, subsequently, if it were found that the employment contract was breached by one of the parties without just cause, it would be necessary to determine the consequences for the party that caused the unjust breach of the relevant employment contract.

15. Reviewing the argumentations of both parties, the DRC took note that the Claimant/Counter-Respondent considered that he had just cause to terminate the contract as the Respondent/Counter-Claimant failed to pay him EUR 45,000 despite a default notices which remained unanswered.

16. On the other hand, the DRC took note that the Respondent/Counter-Claimant deemed that the termination was not valid as the Claimant/Counter-Respondent did not give 15 days deadline for the club to remedy its default but gave 7 days.

17. With regard to the claim of the player regarding EUR 45,000 as outstanding remuneration, the DRC took note that the Respondent/Counter-Claimant contest the amount of outstanding as it considered that prior to the termination of the Claimant/Counter-Respondent, it had paid EUR 37,685 and provided proof of payments in that regard.

18. Following this, the DRC recalled the content of art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof, in that sense, the DRC considered the proof of payments provided by the Respondent/Counter-Claimant were sufficient enough to attest of payments made to the Claimant/Counter-Respondent in the total amount of EUR 37,685. The DRC wanted to underline that in any case, those proof of payment were uncontested by the Claimant/Counter-Respondent who failed to provide its comments on the counterclaim of the club.

19. In continuation, the members of the DRC took into account the argumentation of the Respondent/Counter-Claimant according to which the Claimant/Counter-Respondent had terminated the contract without just cause since it only gave 7 days to the club to remedy its default.

20. In this respect, the DRC took note that on 25 December 2018, the Claimant/Counter-Respondent had put the club in default for the payment of outstanding amounts, granting 7 days to the club. The DRC also recalled that on 28 January 2019, the Turkish Football Federation had acknowledged the termination of the contract by the player and that in the absence of a formal termination letter on file, and since the termination of the contract had not been disputed by the club, the DRC decided to take that date as date of termination.

21. With all of the above in mind, the Chamber was of the firm opinion that despite the deadline granted in the default notice of 25 December 2018, de facto the Claimant/Counter-Respondent gave more than 15 days for the Respondent/Counter-Claimant to remedy its default since more than 15 days separated the default notice from the termination of the contract by the Claimant/Counter-Respondent.

22. The DRC recalled that EUR 37,685 had been paid by the Respondent/Counter-Claimant, and that between the start of the contract, 28 June 2018 and the date of termination, 28 January 2019, EUR 80,000 should have been paid to the Claimant/Counter-Respondent. Taking this into account, the Chamber was of the opinion that EUR 42,315 were still outstanding. The Chamber was eager to highlight that that amount is superior to 2 monthly salaries.

23. Therefore, the members of the DRC highlighted that, at the moment the player terminated the contract, more than 2 monthly salaries were outstanding and to be more accurate, the Respondent/Counter-Claimant owed the Claimant/Counter-Respondent EUR 42,315.

24. Consequently, and considering the situation of the player at the time of termination, the Chamber was of the opinion that the objective circumstances at the time did provide the player with just cause to terminate the employment contract.

25. In light of all of the aforementioned considerations, the DRC came to the conclusion that the player had terminated the contract on 28 January 2019, with just cause.

26. Having established that the Respondent/Counter-Claimant is to be held liable for the early termination of the employment contract, the Chamber focused its attention on the consequence of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant/Counter-Respondent is entitled to receive from the Respondent/Counter-Respondent an amount of money as compensation for breach of contract in addition to any outstanding payments on the basis of the relevant employment contract.

27. First of all, the Chamber reverted to the Claimant/Counter-Respondent’s claim, which included the outstanding amount of EUR 45,000 relating to salaries due before the date of termination.

28. At this stage, the Chamber considered relevant to recall that the club provided conclusive proof of payments for an amount of EUR 37,685 for the same relevant period of time, leaving EUR 42,315 as outstanding.

29. Consequently, taking into account that the contract was terminated on 28 Janaury 2019, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent/Counter-Claimant is liable to pay the Claimant/Counter-Respodent the amount of EUR 42,315, corresponding salaries due before the date of termination, plus 5% interest as of 6 March 2019, as the breakdown of the amount claimed by the Claimant/Counter-Respondent was not specific enough.

30. In continuation, the Chamber focused its attention on the calculation of the amount of compensation for breach of contract 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.

31. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent 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 the contract contained a provision in that sense, art. 6.2 which determined the calculation of the compensation in case of termination with just cause by the player. In this regard, the DRC took note that that article followed the usual practice of the Chamber.

32. As a consequence, the members of the Chamber determined that the amount of compensation payable by Respondent/Counter-Claimant to the Claimant/Counter-Respondent 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.

33. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the contract until 31 May 2020, taking into account that the player’s remuneration up to 28 January 2019 is included in the calculation of the outstanding remuneration (cf. point II. 29 above). Consequently, the Chamber concluded that the amount of EUR 245,000 (i.e. salaries as from 28 January 2019 until 31 May 2020) serve as basis for the determination of the amount of compensation for breach of contract.

34. 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 able to reduce his loss of income. According to the constant practice of the DRC, 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.

35. In this context, the Chamber noted that the player had signed on 29 January 2019 an employment contract with US Boulogne Côte d’Opale, valid as from the date of signature until 30 June 2021, by means of which he was entitled to receive a monthly remuneration of EUR 5,606.

36. 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 155,304 as mitigated compensation to the player.

37. Moreover, taking into account art. 17 par.1 (ii), the DRC recalled that it had found the Claimant/Counter-Respondent had unilaterally terminated the contract due to overdue payables and took note that the player had been able to mitigate his damages. Consequently, the Chamber decided that on top of the mitigated compensation, the Respondent/Counter-Claimant had to pay to the Claimant/Counter-Respondent an additional compensation in the amount of EUR 42,749 corresponding to the equivalent of 3 monthly salaries of the player for the season 2019/2020.

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/Counter-Claimant must pay the amount of EUR 199,053 to the Claimant/Counter-Respondent which was considered reasonable and proportionate as compensation for breach of contract in the case at hand.

39. In addition, taking into account the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the Chamber decided that the club must pay to the player interest of 5% p.a. on the total amount of compensation, i.e. EUR 199,053 as of 6 March 2019 until the date of effective payment.

40. Subsequently, the DRC analyzed the request of the player for the amount EUR 300,000 as compensation for moral damages. In this regard, the Chamber deemed it appropriate to point out that the request for said compensation presented by the Claimant had no contractual basis and was not substantiated. Consequently the DRC deemed that such request could not be awarded.

41. Furthermore, taking into account the consideration under number II./3. above, the DRC judge 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 DRC 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 DRC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

45. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further request filed by the Claimant/Counter-Respondent is rejected. Equally and considering that the club was, overall, found to be in breach of contract, the counterclaim of the Respondent/Counter-Claimant is rejected.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant / Counter-Respondent, Saïd Id Azza, is partially accepted.

2. The counterclaim of the Respondent / Counter-Claimant, Club Giresunspor is rejected.

3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent outstanding remuneration in the amount of EUR 42,315 plus 5% interest p.a. as of 6 March 2019 until the date of effective payment.

4. The Respondent / Counter-Claimant, has to pay to the Claimant / Counter-Respondent compensation for breach of contract in the amount of EUR 199,053 plus 5% interest p.a. as from 6 March 2019 until the date of effective payment.

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

6. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-Claimant, immediately and directly, preferably to the e-mail 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 3. and 4. above.

7. The Respondent / Counter-Claimant shall provide evidence of payment of the due amount plus interest in accordance with points 3. and 4. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

8. In the event that the amount plus interest due in accordance with points 3. and 4. 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 amount is 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 amount is paid.

10. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating 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 (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne, Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org / www.tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer