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,

Ba Adama, Mauritania,

represented by Mr Sami Dinc

as Claimant

against the club,

Giresunspor Kulübü Dernegi, Turkey

represented by Mr Ercan Sevdimbas

as Respondent

regarding an employment-related dispute

between the parties

I. Facts of the case

1. On 10 August 2018, the Mauritanian player, Ba Adama (hereinafter: the Claimant or the player) and the Turkish club, Giresunspor Kulübü Dernegi (hereinafter: the Respondent or the club) signed an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2020.

2. As per the contract the player was entitled to the following remuneration:

Season 2018/2019: total fixed remuneration of EUR 200,000 payable in 5 instalments of EUR 40,000 on 30 September 2018, 31 October 2018, 31 January 2019, 28 February 2019 and 30 April 2019 plus appearance based bonuses and benefits in kind;

Season 2019/2020: total fixed remuneration of EUR 250,000 payable in 5 instalments of EUR 50,000 on 30 September 2019, 31 October 2019, 31 January 2020, 29 February 2020 and 30 April 2020 plus appearance based bonuses and benefits in kind.

3. Furthermore, the contract also stipulated in its clause 6.2: “The payments are to be due and payable to the Player on the dates determined above. 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. In 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. In this case the Player shall be entitled to take action before FIFA bodies to settle the dispute. The gainings of the Player arising from the new club s) between the termination date and expiration date shall be deducted from the ind mnification to be decided b the judicial committees.”

4. On 9 May 2019, the Claimant put the Respondent in default in the amount of EUR 110,000 (corresponding amounts not specified) and gave 15 days for the Respondent to comply.

5. On 29 May 2019, the Claimant unilaterally terminated the contract with the respondent based on the EUR 110,000 that remained unpaid despite his default notice.

6. On the same day, the parties entered into a settlement agreement according to which, inter alia, the Respondent stipulated that it would pay the Claimant EUR 110,000 by no later than 30 May 2019, and that failure to do so would render this agreement null and void. The Respondent did not make any payment in this respect.

7. On 31 May 2019, the Claimant lodged a claim in front of FIFA against the Respondent, requesting to be awarded:

 EUR 110,000 as overdue salaries (EUR 30,000 as the remainder of January 2019, EUR 40,000 as February 2019 and EUR 40,000 as April salary) + 5 % interest p.a. as from the respective due dates;

 EUR 250,000 as compensation corresponding to the residual value of the contract + 5% interest p.a. as from 29 May 2019 (date of termination);

 EUR 150,000 as “additional compensation” with “egregious circumstances” amounting to 6 monthly salaries.

8. In its reply to the claim, the Respondent pointed out that clause 6.2 of the contract (see below) does make a clear reference to the fact that should it be in default of payment towards the Claimant for more than 60 days, a notice via notary should be sent and if after 31 days of reception of such notice the Respondent is still in default then the Claimant “shall be free to terminate the contract [and] shall be entitled to take action before FIFA”. The Respondent explained that the Claimant did not respect these conditions, and also provided proof of payments according to which the debt towards the player was indeed EUR 82,500 and not EUR 110,000.

9. The Respondent thus concluded that the termination was without just cause as the Claimant did not respect the content of clause 6.2 of the contract and requested the claim to be rejected.

10. On 23 August 2019, the player signed a contract with the Moroccan club Renaissance Sportive de Berkane, according to which the player would earn EUR 190,000 (equivalent of MAD 2,040,000 on 23 August 2019) during the relevant period.

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 31 May 2019 and decided on 12 February 2020. 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 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 Mauritanian player and a Turkish club.

3. Furthermore, 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 Players (2020), and considering that the present claim was lodged on 31 May 2019, the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. The members of the Chamber started by acknowledging the facts of the case, as well as the documentation 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. In this respect, the Chamber first acknowledged that the Claimant and the Respondent signed an employment contract valid as from 10 August 2018 to 31 May 2020, as per which the Claimant was entitled to receive the remuneration detailed above. The DRC also noted that, after putting the club in default of payment of the amount of EUR 110,000 on 9 May 2019, the player unilaterally terminated the contract on 29 May 2019. In addition, the Chamber noted that also on 29 May 2019, the parties entered into a settlement agreement as per which the Respondent undertook to pay the Claimant EUR 110,000 by no later than 30 May 2019, and that failure to do so would render this agreement null and void. The Chamber noted that the Claimant states that the Respondent did not make any payment in this respect and therefore he lodged a claim for outstanding remuneration and compensation based on the employment contract. Finally, the Chamber noted that the Respondent claims that the Claimant did not comply with art. 6.2 of the contract and therefore the termination was without just cause.

6. 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 argumentation of both parties, was to determine whether the employment contract had been unilaterally terminated by the Claimant with or without just cause on 29 May 2019, and which party was responsible for the early termination of the contractual relationship in question.

7. 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 consequence for the party that caused the unjust breach of the relevant employment contract.

8. At this point, the DRC deemed it necessary to recall 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.

9. Bearing in mind the foregoing, the Chamber noted that the Respondent bore the burden of proving that it indeed paid the amounts due to the player in accordance with the employment contract. In this respect, the DRC noted that while the Respondent claims to owe the player only the amount of EUR 82,500 it only provided untranslated receipts, which cannot be taken into account. Furthermore, the Chamber noted that the last payment made by the club to the player was on 12 April 2019, i.e. 1 month and ½ before entering into a settlement with the player in which it clearly recognised a debt of EUR 110,000 towards the player.

10. Thus, the Chamber conclude that on the date of termination by the player the amount of EUR 110,000 remained outstanding, corresponding to more than 2 monthly salaries.

11. In addition, the Chamber noted that the player had put the club in default of payment on 9 May 2019, granting it 15 days to remedy the default, and finally unilaterally terminating the on 29 May 2019, due to the non-compliance of the club. In this respect, the DRC noted that the player acted in accordance with art. 14bis of the Regulations and therefore, the player had a just cause to terminate the contract. At this point, the DRC also pointed out that the Respondent’s argument regarding the player’s non-compliance with the procedure of clause 6.2 of the contract cannot be sustained, as it is not sufficiently substantiated and the just cause is given by art. 14bis of the Regulations.

12. As a result, the Respondent is to be held liable for the early termination of the employment contact with just cause by the Claimant.

13. In continuation, the Chamber focused its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the Claimant is entitled to receive from the 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.

14. In this regard, the DRC first addressed the issue of unpaid remuneration at the moment when the contract was terminated by the Claimant and decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 110,000.

15. In addition, taking into consideration the Claimant’s claim, the DRC decided to award the Claimant interest the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the respective amounts due as of the day following the day on which said payments fell due until the date of effective payment.

16. In continuation, having established that the Respondent is to be held liable for the early termination of the employment contract with just cause by the Claimant, the DRC focussed its attention on the consequences of such termination. Taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the Claimant is entitled to receive an amount of money from the Respondent as compensation for the termination of the contract with just cause in addition to any outstanding payments on the basis of the relevant employment contract.

17. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the Claimant by the Respondent 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 Claimant 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.

18. 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.

19. As a consequence, the members of the Chamber determined that the amount of compensation payable by the Respondent to the Claimant 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.

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

21. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded with the calculation of the monies payable to the Claimant under the terms of the employment contract from its date of termination with just cause by the Claimant, i.e. 29 May 2019 until 31 May 2020 and concluded that the Claimant would have received in total EUR 250,000 as remuneration had the contract been executed until its expiry date. Consequently, the Chamber concluded that the amount of EUR 250,000 serves as the basis for the determination of the amount of compensation for breach of contract.

22. In continuation, the Chamber verified as to whether the Claimant 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, 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.

23. The Chamber noted that the Claimant signed a new employment contract with the Moroccan club Renaissance Sportive de Berkane on 23 August 2019, according to which the player would earn EUR 190,000 (equivalent of MAD 2,040,000 on 23 August 2019) during the relevant period. Therefore, the mitigated compensation amounts to EUR 60,000.

24. Subsequently, the Chamber referred to art. 17 par. 1 point ii. and established that, since the termination was due to overdue payables, the player should also be entitled to additional compensation in the amount of 3 monhtly salaries, amounting in total to EUR 60,000. In this respect the Chamber pointed out that the calculations were made based on the monthly allocation of the player’s remuneration, which was as per the contract payable in 5 instalments per season only.

25. Thus, the total amount of compensation payable to the Claimant amounts to EUR 120,000.

26. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of compensation as of the date of the claim, i.e. 4 October 2019 until the date of effective payment.

27. Furthermore, taking into account the consideration under number II./3. above, the DRC 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.

28. 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.

29. 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.

30. 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.

31. The Dispute Resolution Chamber concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

*****

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Ba Adama, is partially accepted.

2. The Respondent, Giresunspor Kulübü Dernegi, has to pay to the Claimant the amount of EUR 110,000 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as from 1 February 2019 on the amount of EUR 30,000;

b. 5% p.a. as from 1 March 2019 on the amount of EUR 40,000;

c. 5% p.a. as from 1 May 2019 on the amount of EUR 40,000.

3. The Respondent has to pay to the Claimant compensation for breach of contract in the amount of EUR 120,000 plus 5 interest p.a. as from 31 May 2019 until the date of effective payment.

4. Any further claim lodged by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent, 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 must pay the amounts plus interest 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 into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount 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 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 amounts plus interest are paid.

9. In the event that the amounts due plus interest 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 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