F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 29 September 2020

Decision of the

Dispute Resolution Chamber

passed on 29 September 2020,

regarding an employment-related dispute concerning the player Igor Wanderson da Silva

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Roy Vermeer (the Netherlands), member José Luis Andrade (Portugal), member

CLAIMANT:

Igor Wanderson da Silva, Brazil

Represented by Mr. Rafael Botelho

RESPONDENT:

Bursaspor Kulübü Dernegi, Turkey

I. FACTS OF THE CASE

1. On 2 September 2019, the Brazilian player, Igor Wanderson da Silva (hereinafter: Claimant or player) and the Turkish club, Bursaspor Kulübü (hereinafter: Respondent or club) concluded an employment contract (hereinafter: contract) valid as of 2 September 2019 until 31 May 2021.

2. According to the contract, the club undertook to pay the player the following amounts:

“2019-2020 Football Season

- 33,000.00 USD will be paid as sign payment for two instalments (20,000.00 USD on 02.09.2019 and 13,000.00 USD on 01.12.2019;

- Between September 2019 and May 2020 monthly 10,000.00 USD (total 10,000.00

USD x 9 months = 90,000.00 USD). The wages will be paid on the last day of the concerned month. (…).”

“2020-2021 Football Season

At the end of the season 2019-2020; if Bursaspor professional team gets promoted Super League Bursaspor will pay the player payment mentioned below.

- ADVANCE PAYMENT: Total 35,000.00 USD net will be paid two installments, 15,000.00 USD on 30 October 2020 and 20,000.00 USD on 28.02.2021.

- Between August 2020 and May 2021 monthly 14,000.00 USD (total 14,000.00 USD x 10 months = 140,000.00 USD). The wages will be paid on the last day of the concerned month. (…).”

“At the end of the season 2019-2020; if Bursaspor professional team stay Turkish 1 League Bursaspor will pay the player payment mentioned below.

- ADVANCE PAYMENT: Total 30,000.00 USD net will be paid two installments, 15,000.00 USD on 30 October 2020 and 15,000.00 USD on 28.02.2021.

- Between August 2020 and May 2021 monthly 12,000.00 USD (total 12,000.00 USD x 10 months = 120,000.00 USD). The wages will be paid on the last day of the concerned month. (…).”

3. The parties executed a termination agreement. However, they dispute the date and version of such document, as detailed below.

4. On 20 May 2020, the Claimant lodged a claim against the Respondent in front of FIFA and including the following requests:

- “(i) condemning the Respondent to pay to the Claimant compensation in the amount of US$189,250.00 (one hundred and eighty-nine thousand, two hundred and fifty American dollars);

- (ii) granting the Claimant with 5% (five percent) interest per year over the amount of US$189,250.00 (one hundred and eighty-nine thousand, two hundred and fifty American dollars) counted from 16 April 2020 and until final payment by the Respondent;

- (iii) condemning the Respondent to support all procedural costs before the DRC; and

- (iv) applying the relevant sportive and/or financial sanctions to the Respondent.”

5. In his claim, the player argued that on 31 December 2019, the club told him that he was “not in their plans” anymore.

6. During January 2020 and February 2020, the Claimant sent several default notices to the club requesting payment of outstanding remuneration in the amount of USD 43,000.

7. According to the Claimant, on 18 February the parties agreed to terminate the contract and exchanged two different drafts of a termination agreement, titled “termination agreement protocol”. The first draft (hereinafter: the first protocol), which was provided by the club, was partially accepted by the player. However the player’s attorney suggested changes on such document, namely regarding guarantees in case the club failed to comply with such termination agreement (hereinafter: the second protocol).

8. The player claimed that on 19 February 2020, he signed a document at the club’s premises, only to realize later that such document was in fact not the second protocol as it had been allegedly agreed between the parties, but in fact the first protocol. In this regard, the player submitted he was kept in a closed room, without access to his representatives and deceived into signing “an ‘alternative’ version of the termination”, which amounts to duress.

9. The player explained that after such events took place, he sent an email to the club, rejecting the version signed, and claiming he would not recognize the first protocol.

10. Accordingly, the player claimed that on 20 February 2020, the parties signed the second protocol, according to which the contract was terminated and the club undertook to pay the player the amount of USD 40,000, as follows:

- USD 10,000 on 29 February 2020;

- USD 10,000 on 31 March 2020

- USD 10,000 on 30 April 2020;

- USD 10,000 on 31 May 2020.

11. Furthermore, the second protocol stipulates as follows:

- “4.1 In the event the Club does not timely and/or in full fulfil the payment of any of the instalments assumed under Section 3.1 of this Settlement Agreement, all the subsequent instalments will have their term anticipated, being the club obliged to pay the full amount to the Player, increased by a penalty of 10% (ten percent), within 10 (ten) days from the receipt of a proper notice of default issued by the Player, informing the anticipation of the term of the instalments and claiming the full amount still due to him, as provided above.”

- “4.2. In the event that the Club remain in default after the term provided in the abovementioned notice of default, the Player will be entitled to claim from the Club the full salaries it would receive until the end of the Employment Agreement, and the discount provided by the Player in this Settlement Agreement shall be disregarded.”

- 4.2.1. For avoidance of doubt, in the event the Club incurs in the default provided in Clause 4.2., above, this Settlement Agreement shall be deemed dissolved without prior notification and/or default notice being required, and the Player is entitled by law to claim from the Club the full amount he would receive until the end of the Employment Agreement, increased by interest on default until final payment and by any eventual amount still unpaid by the Club regarding the salaries of the Player due until the date of this Settlement Agreement.”

12. On 6 April 2020, the player sent a default notice to the club, requesting payment of USD 10,000 until 13 April 2020. In case of non-compliance by the club, the player stated he would request the value of the entire contract, as foreseen in second protocol.

13. Moreover, the player requests compensation for breach of contract, corresponding to the residual value of the contract, as foreseen in art. 4 of the second protocol allegedly signed.

14. In this regard, the player held that he was entitled to a total of USD 273,000 according to the contract and that the amount of USD 199,250 remained unpaid.

15. Furthermore, the Claimant acknowledged receipt of a payment of USD 10,000 on 16 April 2020, which leads to the claimed amount of USD 189,250.

16. In its reply, the Respondent rejected the claim of the Claimant. The club firstly argued that it is a “long-established football club with dignity and honor”. It further stated that it “has signed contract with thousands of players and always treated them a true member of Bursaspor Kulübü Derneği so much so that even at the bottleneck periods the Club had always acted with good faith for players not to be aggrieve”.

17. Additionally, the club submitted that the player is relying on an unsigned version of the second protocol, and filed a copy of the first protocol allegedly signed on 19 February 2020. Such document has the following conditions (quoted verbatim):

“2. The Parties agree that the Player is entitled to get payable and outstanding totally net 19.250,00-USD (Nineteen Thousand Two Hundred Fifty American Dollars) until the date of the signing of this Protocol. Furthermore, the Parties agree that the early termination compensation which will be paid by BURSASPOR to the Player is 20.750,00-USD (Twenty Thousand Seven Hundred Fifty American Dollars) in total for the early termination of the Contract.

As determined above, BURSASPOR shall pay to the Player 40.000,00-USD (Forty Thousand American Dollars) in total consisting of the aforesaid unpaid receivables of the Player amounting of 19.250,00-USD in total and the aforesaid termination compensation amounting of 20.750,00-USD in total as determined above. The aforesaid total amount of 40.000,00-USD shall be paid to the Player in 4 (four) equal installments as shown below:

10.000,00-USD: 29.02.2020

10.000,00-USD: 31.03.2020

10.000,00-USD : 30.04.2020

10.000,00-USD : 31.05.2020

(…)

In the event that the Club does not in full fulfill the payment of any installments determined above in 10 days following its due dates, all the subsequent instalments determined above shall be due as of the breach date and in such a case BURSASPOR shall pay to the Player 10% of the unpaid amount as penalty for the breach in addition to the abovementioned amounts.

Lastly, following the fulfillment of the said amounts, the Player irrevocably releases BURSASPOR from all the obligations set forth in the Contract.

3. ln consideration of this mutual termination, there is no debts on specialty and / or account receivable borne and / or to be borne right and receivables between BURSASPOR and the Player with regard to the Contract and the Parties agree, declare and undertake to release each other irrevocably for all the obligations set forth in the Contract and for any other claims / compensation related to the contract.

4. Player agrees, declares and undertakes that regardless of the name under which, there is not any reights and receivables and to waive from the compensation and any other claims irrevocably, to absolve BURSASPOR completely, absolute and irrevocably. The Parties completely agrees that this protocol regarding early termination of the Contract at the request of the Player between BURSASPOR and the Player, is signing taking into consideration that the provision including “waive from receivables and compensation irrevocably” of the Player and this provision including “waive form receivables and compensation irrevocably” is indispensable (sine qua non) provision of this protocol”.

18. The Respondent also argued that it timely paid the amount of EUR 10,000 corresponding to the first instalment established in the first protocol on 28 February 2020. In support of this allegation, the club filed a bank transfer receipt in favour of the player.

19. Additionally, the club filed a picture allegedly of the player and a club representative after the first protocol was signed, demonstrating that supposedly both parties were satisfied with the conclusion of the agreement.

20. Lastly, the club reverted to the COVID-19 pandemic, and argued that the remaining payments were late due to an issue of force majeure. The club further argued that “FIFA also published a recommendation about the pandemic process which show that FIFA is standing with the clubs for taking over the economic effects of pandemic”.

21. The Respondent requested that the Claimant’s claim is dismissed and the player bears its own costs and attorney fees.

22. In its replica, the Claimant rejected the club’s arguments and reiterated its position. In particular, the player argued that while the effects of the COVID-19 pandemic are “understandable”, it should be noted that by December 2019 the club was already in default of 3 salaries.

23. In continuation, the player outlined that the e-mail exchange of the parties demonstrates that they indeed concluded the second protocol.

24. Lastly, the player made an alternative request for relief, should the DRC deem that the second protocol is valid, and requested payment of USD 33,000, of which USD 30,000 corresponds to the unpaid portion of the second protocol, plus USD 3,000 as penalty, plus 5% interest p.a. as from 10 April 2020.

25. In its duplica, the Respondent reiterated its position, and particularly stressed that the Claimant is relying on a document that was not signed by the club. The club refers to it as “fake evidence” and highlights that “the only document regarding the early termination of the Contract between the parties is the (…) Mutual Termination Protocol dated 19.02.2020” (i.e. the second protocol).

26. Lastly, the club reverted to the COVID-19 pandemic, and argued that it was “still dealing with the negative effects of the COVID-19 and trying to survive from the impact of pandemic”.

27. The Player informed FIFA that he remained unemployed for 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 20 May 2020 and submitted for decision on 29 September 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

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 June 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 Brazilian player and a Turkish club.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim was lodged on 20 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the 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. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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 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. First of all, the members of the Chamber acknowledged that, on 2 September 2019, the player and the club had concluded an employment contract valid as from the date of its signature until 31 May 2021.

7. Furthermore, the members of the DRC took note of the fact the parties executed a termination agreement. However, the parties disagree as to the date and version of said document.

8. The Chamber duly noted that the Claimant claims both the first and the second protocols were signed, the first of which under coercion, and that the club is of the position that only the first protocol was executed.

9. In this respect, the DRC turned its attention to the documentation on file, and reverted to the signatures’ area of the second protocol, where the Chamber observed that it bears only the stamp of the club, but no signature.

10. Furthermore, the members of the Chamber examined the e-mail exchange between the parties and took note that on 18 February 2020 (i.e. one day before the first protocol was signed), the player’s attorney makes reference to a meeting in which supposedly the player was presented with a version of the protocol that was not the one agreed by the parties. However, the Chamber observed that the Claimant has not filed any drafts of the documents that were supposedly enclosed to the e-mails exchanged, nor any evidence that the player signed the first protocol under duress.

11. As such, the DRC underlined that as per the evidence on file any meeting in which the player was supposedly forced to sign a document took place before the first protocol was executed, and therefore the argumentation of the player cannot be upheld.

12. Based on the above, taking into account the documentation on file and referring to art. 12 par. 2 of the Procedural Rules, the DRC had no other option than to conclude that the first protocol was validly signed between the parties.

13. Furthermore, taking into account the consideration II.9 above, the members of the Chamber came to the conclusion that the second protocol was not duly signed by the parties and therefore not validly concluded.

14. On account of the above, the DRC found that the parties are bound by the terms of the first protocol, which stated that the club would pay the player USD 40,000 in 4 instalments, and that in case of default the acceleration/penalty clause would be triggered (cf. clause 2 of the first protocol).

15. The members of the Chamber further acknowledged that it remained undisputed that the club paid the first instalment of USD 10,000 and that it failed to timely pay the 2nd instalment, therefore triggering clause 2 of the first protocol. However, the DRC noted that the club argued said default occurred due to the COVID-19 pandemic.

16. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

17. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a player’s salary.

18. In this context, the DRC considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies due to the player under the first protocol, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

19. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit to the Claimant the total amount of USD 30,000 corresponding to residual instalments due under the first protocol.

20. Consequently, the members of the Chamber 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 USD 30,000.

21. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant 5% interest p.a. on the amount of USD 30,000 as from 11 April 2020.

22. Additionally, taking into account consideration II./14. above, the Chamber decided to apply the penalty agreed upon the parties in the first protocol and award the Claimant 10% of the outstanding amount, i.e. USD 3,000.

23. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

24. 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.

25. 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.

26. 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.

27. 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.

28. The Chamber closed its deliberations by rejecting any further claim lodged by the Claimant.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, IGOR WANDERSON DA SILVA, is partially accepted.

2. The Respondent, BURSASPOR KULÜBÜ DERNEGI, has to pay to the Claimant the following amounts:

- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 11 April 2020 until the date of effective payment;

- EUR 3,000 as contractual penalty.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

7. The decision is rendered free of costs.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

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