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 25 March 2021

Decision of the

Dispute Resolution Chamber

passed on 25 March 2021

regarding an employment-related dispute concerning the player Fabien Ceddy Farnolle

COMPOSITION:

Omar Ongaro (England), Deputy Chairman

Daan de Jong (Netherlands), member

Alexandra Gómez Bruinewoud (Netherlands & Uruguay), member

CLAIMANT:

Fabien Ceddy Farnolle, France

RESPONDENT:

Yeni Malatyaspor, Turkey

I. FACTS

1. The parties concluded an employment contract valid as from 30 August 2019 until 31 May 2020.

2. The contract stipulated the following conditions:

“For 2019/2020 Football Season : 460.000-EUROS NET

A.Club will be paid 60.000 EURO ON 25TH August 2019 for down payment to player.

B.The rest of the aforementioned amount is to be paid to the PLAYER by the CLUB in 10 (ten) equal installments on the below mentioned dates: 40.000 Euros (*10) start on 30.August 2019 - finish on 30 May 2020

For 2020-2021 Football Season (OPTIONAL SEAON ) : 450.000-EUROS NET

For avoidance doubt: This contractual season will valid in the case of Player (line-up) starts 25 official Super League game on 2019/2020 season. Therefore player contract extend automatically one more year on conditions set out below

A. Club will be paid 50.000 EURO ON 25TH August 2020 for down payment to player.

B. The rest of the aforementioned amount is to be paid to the PLAYER by the CLUB in 10 (ten) equal instalments on the below mentioned dates: 40.000 Euros (*10) start on 30 August 2020-finish on 30 May 2021.

Personal Performance Bonuses Player will be entitled performance bonuses set out below for each year;

a. If club entitled to participate UEL group stage :30.000 EURO

b. lf club entitled to participate UCL group stage :100.000 EURO

c . if club win Turkish Cup :25.000 EURO”

3. On 9 June 2020, the legal representative of the player sent a default notice indicating the following:

“Despite the several reminders made to the Club directly by Mr Fabien Ceddy FARNOLLE, some installments have not been paid in full to the player, without any explanation:

✓40.000 €concerning the payment to be made on 30th March2020;

✓40.000 €concerning the payment to be made on 30th April2020;

✓40.000 € concerning the payment to be made on 30th May 2020.

To date, the amount owed by the Club to Mr. Fabien Ceddy FARNOLLE is € 120.000.

By this letter, I formally request the payment to Mr Fabien Ceddy FARNOLLE of the amount of € 120.000concerning wages.

I remind you that Mr Fabien Ceddy FARNOLLE has the right to terminate his employment contract with just cause as a result of this non-payment within the 15-day period provided for in Article 14 bis of the FIFA Regulations on the Status and Transfer of Players.”

4. On 10 August 2020, the legal representative of the player sent a notice to the club, indicating the following:

“As you know, the player went to France for his holidays.

But the player has health problems (problem on foot) noted by his doctor in France that make it impossible for him to travel at least before August 16, 2020.

Mister FARNOLLE must undergo an ultrasound in the next few days.

We thank you for your kind a attention to the above.”

5. On 31 August 2020, the legal representative of the player sent a default notice indicating the following:

“alors même que vous nous avez contacté pour nous proposer un rendez-vous physique afin d’évoquer la situation du joueur, vous avez annulé cet entretien, sans motif ni excuse.

Cette situation, extrêmement inconfortable pour un footballeur professionnel, doit absolument cesser.

En effet, le harcèlement et le «mobbing» dont est victime mon client, exercés de manière totalement humiliante, a causé au joueur un préjudice certain.

(…)

De plus, par correspondance de ce jour, nous avons également attiré votre attention sur des absences de paiement de salaire à hauteur de 130000 euros mon client n’ayant pas même reçuson salaire de mai 2020alors même que la saison s’est terminéele 25 juillet 2020.

(…)

Par conséquent, il vous est mis en demeure, dans un délaide 24heures à compter de la réception de la présente, de nous apporter des éclaircissements sur les points soulevés, à défaut de quoi nous serions contraints de résilier unilatéralement et à vos torts ladite convention.”

Free translation into English:

"even though you contacted us to suggest a physical appointment to discuss the player's situation, you cancelled that interview without any reason or excuse.

This situation, which is extremely uncomfortable for a professional footballer, must absolutely stop.

Indeed, the harassment and mobbing of which my client is a victim, exercised in a totally humiliating manner, has caused the player a clear prejudice.

(…)

Moreover, by correspondence of today, we also draw your attention to non-payment of salary to the amount of 130,000 euros my client did not even receive his salary of May 2020, even though the season ended on July 25, 2020.

(…)

Consequently, you are given 24 hours from receipt of this letter to clarify the points raised, failing which we will be forced to unilaterally terminate the agreement at your expense.

6. On 2 September 2020, the player sent a termination letter.

7. On 4 September 2020, the player concluded an employment contract with the Turkish club, Erzumspor, valid until 31 May 2021.

8. According to said contract, the player was entitled to a total remuneration of EUR 225,000 for the season 2020/2021.

9. On 23 October 2020, the player lodged a claim before FIFA for outstanding remuneration and breach of contract without just cause, and requested the payment of the following amounts:

- EUR 490,000, as “outstanding remuneration” for the season 2019-2020 and 2020-2021, further detailed as follows:

- EUR 40,000, as salary for Mai during the season 2019/2020;

- EUR 50,000 due on 25 August 2020;

- EUR 400,000, corresponding to the residual value of the contract, since 30 August 2020

- EUR 225,000, as “moral and sporting damages”, corresponding to six monthly salaries.

10. In addition, the player requested 5% interest p.a. as from 30 days following the decision.

11. The player explained that he was treated in a discriminatory manner and, in particular, was not registered before the Turkish Football Federation for the season 2020-2021.

12. In its reply to the claim, the Respondent considered that the player’s request is unjustified.

13. In this respect, the Respondent argued that the season 2020/2021 was optional and that, as a result, the player was only registered for the season 2019/2020.

14. In particular, the Respondent argued that “it is also important to note that none of the parties has request to register the contract to TFF for the optional season of 2020/2021. Thus, the contractual relations with the player has been ended on 31 May 2020. Nevertheless, due to the COVID-19 pandemic, the for 2019/2020 season has been completed on 24th July 2020.”

15. As to the payment due on 25 August 2020, the Respondent argued that “the player never come to city of Malatya mutual agreement for the season 2020/2021”

16. The Respondent concluded as follows:

“a) 40.000.EUR for the salary of May 2020 has been deducted due to COVID -19 for the season 2019/2020 on the basis of equal treatment with all other players, therefore, the claim for the amount of 40.000.EUR should be inadmissible.

b) There was no any contract for the season 2020/2021 between the parties the claim of 450.000.EUR has no any legal ground and has to be rejected.

c) Regarding to allegedly sportive compensation claim has also no any legal basis and it is unjustified and therefore it has to be rejected.”

17. In his replica, the player insisted that the salary of May remains outstanding.

18. Concerning the duration of the contract, the player explained that the contract established an automatic prolongation for the season 2020-2021 if he player 25 official matches during the Turkish Super League.

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. Taking into account the wording of art. 21 of the January 2021 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 Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised 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, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering the date when the claim was lodged, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution 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 Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Chamber noted that the parties concluded an employment contract valid as from 30 August 2019 until 31 May 2020.

6. Subsequently, the Chamber observed that the player he player lodged a claim before FIFA for outstanding remuneration and breach of contract without just cause due to the existence of outstanding remuneration.

7. Conversely, the Chamber noted that the Respondent considered that the player’s request is unjustified, insofar the player was registered for the season 2019/2020 only, and that the contract was not extended for the following seasons, 2020/2021.

8. In view of the dissent between the parties, the Chamber considered that the first element it shall address is the period of validity of the contract.

9. In this respect, the Chamber noted that the contract was in principle valid as from 30 August 2019 until 31 May 2020.

10. However, the Chamber observed that the contract included a clause stipulating an extension for the season 2020-2021 (i.e. until 31 May 2021) “in the case of Player (line-up) starts 25 official Super League game on 2019/2020 season”.

11. In analysing the contents of the aforementioned clause, the Chamber noted that said clause granted to the club a unilateral capacity to decide over the extension of the contract, since it was up to the latter to decide whether the player could play or not during 25 official matches during the season. Conversely, insofar the player could not have the same capacity to decide over his own participation in official matches, the Chamber considered that the applicable clause is unbalanced as it grants more rights to the club than to the player.

12. Within this context, the Chamber underlined that, in accordance with its longstanding jurisprudence, a clause which gives one party the right to unilaterally cancel or extend the contract, without providing the other party to the contract with analogous rights is a clause with disputable validity.

13. In the specific matter at stake, the Chamber understood that the applicable clause was drafted in a manner that would allow the player to believe in good faith that the contract would be valid until 31 May 2021.

14. Hence, the Chamber unanimously agreed that the contract was valid until 31 May 2021.

15. The foregoing being established, the Chamber went on to examine the circumstances involving the early termination of the contract.

16. In this regard, the Chamber noted that, on 2 September 2020, the player sent a termination letter after having sent a default notice on 10 August 2020, in which he expressed the existence of outstanding salaries for the amount of EUR 130,000, as well as the occurrence of “harassment and mobbing”.

17. In relation to said arguments, the Chamber observed that the club was only registered for the season 2019/2020, insofar the contract expired on that season.

18. However, as mentioned above, the Chamber considered that the contract was valid until 31 May 2021, and that, as a result, the club had an obligation to register him.

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

20. In view of this sole fact, the Chamber considered that the club breached the contract without just cause.

21. Moreover, the Chamber also considered the player’s requests as to the existence of outstanding salaries.

22. In this respect, the Chamber noted that, according to the club, EUR 40,000 EUR for the salary of May 2020 were deducted due to COVID -19 for the season 2019/2020 on the basis of equal treatment with all other players.

23. 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.

24. Analysing the concept of a situation of force majeure, the members of the Chamber noted that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure.

25. In other words, in any given dispute, it is for a party invoking force majeure to establish the existence of said event under the applicable law/rules as well as the consequences that derive in connection thereto. The analysis of whether a situation of force majeure existed has to be considered on a case by-case basis, taking into account all the relevant circumstances.

26. In relation to the matter at stake, the Chamber observed that there is no evidence from the club supporting any type of negotiation or decision performed in good faith. As a result, the Chamber considered that the club had no valid reason to withhold the player’s remuneration.

27. In view of the above, the Chamber went on to examine which amounts remained outstanding as of 2 September 2020, when the player terminated the contract. In particular, after duly examining the evidence on file, the Chamber observed that the amount of EUR 130,000 was outstanding, corresponding to the player’s remuneration for May 2020 and August 2020 (i.e. EUR 40,000*2), as well as the payment due on 25 August 2020 (i.e. 50,000).

28. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 130,000, as detailed in the previous paragraph.

29. All in all, considering that the club failed to register the player and that, in addition, EUR 130,000 remained outstanding at the date of termination of the contract, the Chamber unanimously concluded that the club seriously neglected its obligations towards the player and that, as a result, he had a just cause to terminate the contract.

30. Moreover, taking into account the request of the Claimant, the Dispute Resolution Chamber decided to award 5% interest p.a. over said amount as from 30 days following the notification of the decision.

31. In continuation, having established the amount of outstanding remuneration and that that the Respondent is to be held liable for the termination of the contract with just cause by the Claimant, the Chamber decided that, in accordance with art. 17 par. 1 of the Regulations, the club is liable to pay compensation to the player.

32. In this respect, 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.

33. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains 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.

34. As a consequence, the members of the Chamber determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body.

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

36. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its date of termination without just cause, i.e. September 2020 until 31 May 2022, and concluded that the Claimant would have received in total EUR 360,000 [i.e. October 2020 until 31 May 2021, i.e. 9*40,000, cf. point I. 2 for financial terms as stipulated in the contract].

37. Consequently, the Chamber concluded that the amount of EUR 360,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

38. 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.

39. In this respect, the Chamber verified that, on 4 September 2020, the player concluded an employment contract with the Turkish club, Erzumspor, valid until 31 May 2021. The Chamber noted that, according to said contract, the player was entitled to a total remuneration of EUR 225,000 for the season 2020/2021.

40. At this stage, the Chamber noted that the mitigated compensation corresponds to EUR 135,000 (i.e. 360,000-225,000).

41. Subsequently, the Chamber referred to art. 17 par. 1 ii, according to which, subject to the early termination of the contract being due to overdue payables, in addition to the Mitigated Compensation, the player shall be entitled to an amount corresponding to three monthly salaries (the “Additional Compensation”).

42. Thus, considering the previously mentioned article as well as the specificities of the matter at stake, the Chamber decided that the player is entitled to said additional compensation, in the amount of EUR 122,700 (i.e. 450,000/11*3=40,900*3).

43. Thus, after adding the additional compensation to the mitigated compensation, the Chamber determined that the final payable compensation shall amount to EUR 257,700.

44. Consequently, on account of all of the above-mentioned considerations and the specificities of the case at hand, the Chamber decided to partially accept the player’s claim and that the club must pay the amount of EUR 257,700 as compensation for breach of contract in the case at hand.

45. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the aforementioned amount as of 30 days following the notification of the decision.

46. Furthermore, taking into account the previous considerations, the Dispute Resolution 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.

47. In this regard, the Dispute Resolution 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.

48. Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.

49. Finally, the Dispute Resolution Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Fabien Ceddy Farnolle, is partially accepted.

2. The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the following amounts:

- EUR 130,000 as outstanding remuneration, plus 5% interest p.a. as from 30 days following the notification of this decision until the date of effective payment;

- EUR 257,770 as compensation for breach of contract without just cause, plus 5% interest p.a. as from 30 days following the notification of this decision until the date of effective payment;

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.

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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