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 8 May 2020
Decision of the
Dispute Resolution Chamber
passed on 8 May 2020,
in the following composition:
Clifford Hendel (USA/France), Deputy Chairman
Alexandra Gómez Bruinewoud (Uruguay/Netherlands), member
Stefano La Porta (Italy), member
on the claim presented by the player,
Silvestre Manuel Gonçalves Varela, Portugal
represented by Mr José Duarte Reis
as Claimant
against the club,
Kayserispor Kulübü Dernegi, Turkey
represented by Batu Mosturoğlu
as Respondent
regarding an employment-related dispute between the parties
I. Facts of the case
1. The Portuguese player, Silvestre Manuel Gonçalves Varela (hereinafter: the Claimant or player) and the Turkish club, Kayserispor Kulübü Dernegi (hereinafter: the Respondent or club) signed an employment contract valid as from 20 January 2017 until 31 May 2019.
2. According to the employment contract, the player was to receive the following monies:
during the season 2016/2017 a monthly salary of EUR 120,000 net in five equal instalments between January and May 2017,
during the season 2017/2018 a monthly salary of EUR 120,000 net in ten equal instalments between August 2017 and May 2018,
during the season 2018/2019, a monthly salary of EUR 120,000 in ten equal instalments between August 2018 and May 2019,
in case the club finishes sixth in Spor Super Toto League, the amount of EUR 50,000,
in case the club plays the final match of the Zirat Turkish Cup, the amount of EUR 50,000,
in case the club wins the Zirat Turkish Cup, the amount of EUR 50,000,
in case the club qualifies to the UEFA Champions League group stage, the amount of EUR 50,000,
a monthly amount (twelve times per year) of EUR 20,000 for the season 2016/2017 and EUR 40,000 for the seasons 2017/2018 and 2018/2019 for expenses with regard to residence, car, flight tickets.
3. On 4 June 2018, the parties signed a document, according to which the club acknowledged a debt to the player in the total amount of EUR 730,000.
4. On 17 January 2019, the parties signed document entitled “Protocol”, which inter alia reads as follows:
“2- The parties agree that according to the Contract starting on 20.01.2017 between the Parties, as of the date of the signing of this Protocol, the total unpaid receivables of the Player as of the signing of this Protocol is 1.172.000 Euro (One million, one hundred seventy-two thousand Euros) in total and this amount shall be paid to the Player on the following dates:
400.000,00 Euro: On the signing of this Protocol
128.000,00 Euro: 15.02.2019
128.000,00 Euro: 15.03.2019
128.000,00 Euro: 15.04.2019
128.000,00 Euro: 15.05.2019
128.000,00 Euro: 15.06.2019
128.000,00 Euro: 15.07.2019
3- With the signing of this Protocol, the Player agrees, declares and undertakes that the notification which has been sent by the Player to the Club, dated2nd January 2019 shall be null and void and in this context, the Player shall not have to unilaterally termination right the aforesaid contract in connection with the aforesaid notification and/or any notification/ transaction under any name whatsoever.
4- The parties agree that in case of non-payment of any amount above in full or in part in 15 (fifteen) days grace period at the latest following its due date, 20% of the non-paid amount(s) shall be paid by the Club to the Player as penalty additionally and the player will be entitled to terminate due to the above salaries in debt with the condition of sending the warning letter,
5- The full payment of the first instalment in the amount 400.00,00- Euro Is accepted as the validity clause to this Protocol and this Protocol shall only be valid once the said payment is made by the Club. When the said payment is made, all the provisions in particular the Article 3 of this Protocol shall come into full force automatically without the need for a formal notice, notification and/or court verdict.”
5. On 25 March 2019, the player sent the club a letter in which he underlined that, as of that date, the club owed him the amounts of:
EUR 732,000 according to the Protocol,
EUR 146,400 corresponding to the penalty as per the Protocol,
EUR 240,000 corresponding to the salaries of January and February 2019.
6. The player thus urged the club to proceed to the payment of the total amount of EUR 1,118,400.
7. On 17 July 2019, the player lodged a claim against the club in front of FIFA regarding outstanding remuneration. The player requested the total amount of EUR 1,258,400 plus 5% interest, as well as sporting sanctions against the club. As to the breakdown of this amount, the player claimed the amount of EUR 898,400 arising from the Protocol as well as the salaries of March, April and May 2019, i.e. EUR 360,000.
8. Furthermore, in his claim, the Claimant acknowledged receipt of the amounts of EUR 120,000 on 11 April 2019, EUR 60,000 on 26 April 2019 and EUR 40,000 on 7 May 2019.
9. In its reply to the claim, the Respondent held that it had paid the total amount of EUR 2,221,425.98 to the Claimant since the beginning of the contract, leaving an amount of EUR 975,574.02 as outstanding.
10. The Respondent added that out of this amount paid, after the protocol it paid EUR 675,086.38 to the Claimant as follows:
EUR 400,000 on 17 January 2019,
EUR 40,000 on 6 March 2019,
EUR 60,000 on 26 April 2019,
EUR 40,000 on 7 May 2019,
TL 18,650 (equivalent to EUR 3,139.73) on 1 February 2019,
TL 10,250 (equivalent to EUR 1,725.58) on 7 February 2019,
TL 13,500 (equivalent to EUR 2,280.40) on 15 February 2019,
TL 10,075 (equivalent to EUR 1,673.58) on 21 February 2019,
TL 18,425 (equivalent to EUR 3,035.42) on 2 March 2019,
TL 19,475 (equivalent to EUR 2,955.23) on 27 April 2019,
TL 23100 (equivalent to EUR 3,468.46) on 1 May 2019,
TL 38,100 (equivalent to EUR 5,627.27) on 15 May 2019.
11. In addition, the Respondent held that the 20% penalty fee included in the Protocol is disproportionate.
12. With the regard to the payments which the Respondent alleged having made to the Claimant, the latter argued that since the basis for the present claim is the Protocol, only the proof of payments following the signature of the Protocol are relevant, this is, the following payments:
EUR 400,000 on 17 January 2019,
EUR 40,000 on 6 March 2019,
EUR 120,000 on 11 April 2019,
EUR 60,000 on 26 April 2019,
EUR 40,000 on 7 May 2019.
13. The Claimant recognised that since the signature of the Protocol, the Respondent had paid him the amount of EUR 660,000, but he emphasised that those payments had already been acknowledged in his claim.
14. Referring to the payments in Turkish Lira for the total amount of TL 151,575 (EUR 21,187.36) with a “wage receipt”, the Claimant contested these and held that the documentary evidence provided by the Respondent were internal documents which were not signed by him and should thus be disregarded. The Claimant added that the payments in Turkish Lira could only be bonus payments since the employment contract only provided for salary payments in Euro.
15. In conclusion, the Claimant maintained his claim entirely.
II. Considerations of the Dispute Resolution Chamber
1. 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 submitted to FIFA on 17 July 2019. Taking into account the wording of art. 21 of the 2019 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.
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 March 2020), it is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a Portuguese 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 June 2018, June 2019, October 2019 and January 2020) and considering that the present matter was submitted to FIFA on 17 July 2019, the October 2019 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. The Chamber first of all acknowledged that the parties concluded an employment contract valid from as from 20 January 2017 until 31 May 2019. In this respect, the Respondent found itself indebted towards the Claimant on various occasions throughout the employment relationship, leading up to the conclusion of the Protocol on 17 January 2019.
6. The Claimant filed a claim in front of FIFA claiming outstanding monies from the Protocol as well as the salaries of March, April and May 2019, totalling EUR 1,258,400 plus interest.
7. The Respondent, for its part, underlined that it had, allegedly, paid the Claimant the total amount of EUR 2,221,425.98 since the beginning of the contract, leaving a balance of 975,574.02.
8. Upon receipt of the Respondent’s position, the Claimant filed his comments as to the evidence provided by the Respondent with regard to payments allegedly due to him. In this respect, the Claimant underlined that only the payments effected after the signature of the Protocol could be taken into account, and confirmed having received the amount of EUR 660,000 out of the Protocol.
9. In view of the diverging positions of the parties with regard to the outstanding monies due to the Claimant, the Chamber established that it had to proceed to a calculation of such outstanding monies on the basis of the documents on file, including the employment contract, the Protocol as well as the respective proofs of payments issued by the Respondent. In this context, the DRC referred to the principle of burden of proof mentioned under art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact carries the burden of proof.
10. After having thoroughly analysed the aforementioned documentation at its disposal, the Chamber concurred that the only proofs of payments which could be taken into account in the assessment of the present matter were those relating to payments after the signature of the Protocol, considering the amounts claimed by the Claimant, which were all due after the signature of the said document.
11. Therefore and taking into account the amounts which the Claimant confirmed having received, the Chamber established that the Claimant had received the amount of EUR 660,000 out of the Proposal. Given that the entire amounts due under the Protocol, i.e. EUR 1,172,000, the payment of EUR 512,000 remains unaccounted for.
12. In view of the foregoing and in accordance with the principle of pacta sunt servanda, the Chamber held that the Respondent must pay the Claimant amount of EUR 512,000 in accordance with the Protocol.
13. With regard to the Claimant’s claim in relation to the 20% penalty as per the Protocol, the Chamber, referring to its longstanding jurisprudence in this regard, underlined that a penalty may be awarded if it is deemed proportionate and reasonable, taking into account the specificities of the dispute, in particular, the parties’ stance and the amount of the debt.
14. Looking at the particularities of the matter at hand, at the amount of the outstanding debt as well as the parties’ respective stance, the Chamber decided that a 20% penalty to be applied to late payments appears proportionate and reasonable.
15. In view of the above, the DRC first established that the first instalment of EUR 400,000 under the Protocol had indeed been paid in a timely manner, but the further instalments had either been paid with delay or not paid at all. Therefore, the DRC held that the 20% penalty for late payment must be applied on the amount of EUR 772,000, which is the balance between the total amount of EUR 1,172,000 and the amount of EUR 400,000.
16. To conclude, the Chamber decided that the Respondent must pay, on top of the outstanding dues under the Protocol, a penalty fee of 20% of EUR 772,000, i.e. the amount of EUR 154,400.
17. In continuation, the DRC turned its attention to the Claimant’s part of the claim in relation with outstanding salaries for March, April and May 2019. In this regard, the Respondent did not provide any evidence of payments of these amounts. Therefore, the Chamber can only conclude that these amounts remain outstanding.
18. As a consequence, the Chamber decided that the Respondent must also pay the amount of EUR 360,000 corresponding to the three aforementioned salaries.
19. Finally and with regard to the Claimant’s claim for interest, the Chamber decided that a 5% interest p.a. applies on the total amount of EUR 872,000 (EUR 512,000 + EUR 360,000) as follows, considering the respective due dates of the outstanding remuneration:
a. 5% p.a. as of 1 April 2019 on the amount of EUR 120,000;
b. 5% p.a. as of 16 April 2019 on the amount of EUR 124,000;
c. 5% p.a. as of 1 May 2019 on the amount of EUR 120,000;
d. 5% p.a. as of 16 May 2019 on the amount of EUR 128,000;
e. 5% p.a. as of 1 June 2019 on the amount of EUR 120,000;
f. 5% p.a. as of 16 June 2019 on the amount of EUR 130,000;
g. 5% p.a. as of 16 July 2019 on the amount of EUR 130,000.
20. The Chamber concluded its deliberations by establishing that all further claims of the Claimant are rejected.
21. Furthermore, taking into account the consideration under number II./3. 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.
22. In this regard, the Chamber established that, in virtue of the aforementioned rovision, it has competence to impose a sanction on the club. More in particular, the DRC pointed out that, against clubs, the sanction shall consist in a ban 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.
23. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.
24. The Chamber recalled that the above-mentioned sanction 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, Silvestre Manuel Gonçalves Varela, is partially accepted.
2. The Respondent, Kayserispor Külübu Dernegi, has to pay to the Claimant the amount of EUR 872,000 plus 5% interest p.a. as until the date of effective payment as follows:
a. 5% p.a. as of 1 April 2019 on the amount of EUR 120,000;
b. 5% p.a. as of 16 April 2019 on the amount of EUR 124,000;
c. 5% p.a. as of 1 May 2019 on the amount of EUR 120,000;
d. 5% p.a. as of 16 May 2019 on the amount of EUR 128,000;
e. 5% p.a. as of 1 June 2019 on the amount of EUR 120,000;
f. 5% p.a. as of 16 June 2019 on the amount of EUR 130,000;
g. 5% p.a. as of 16 July 2019 on the amount of EUR 130,000.
3. The Respondent has to pay to the Claimant the amount of EUR 154,400 as penalty.
4. Any further claim of the Claimant is rejected.
5. The Claimant is directed to inform the Respondent, 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 must pay the amount mentioned under points 2 and 3 above.
6. The Respondent shall provide evidence of payment of the due amounts plus interest in accordance with points 2 and 3 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).
7. In the event that the amounts due plus interest in accordance with points 2 and 3 above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amounts are not 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).
8. The ban mentioned in point 7 above will be lifted immediately and prior to its complete serving, once the due amount is paid.
9. 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.
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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