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 8 April 2021
Decision of the
Dispute Resolution Chamber
passed on 8 April 2021
regarding an employment-related dispute concerning the player Hélder Jorge Leal
Rodrigues Barbosa
COMPOSITION:
Geoff Thompson (England), Chairman
Jérôme Perlemuter (France), member
Tomislav Kasalo (Croatia), member
CLAIMANT:
Hélder Jorge Leal Rodrigues Barbosa, Portugal
Represented by Mr. Pedro Macierinha
RESPONDENT:
Hatayspor, Turkey
I. FACTS OF THE CASE
1. On 5 August 2019, the Portuguese player, Mr. Hélder Jorge Leal Rodrigues Barbosa
(hereinafter: the player or the Claimant), and the Turkish club, Hatayspor (hereinafter: the
club or the Respondent) signed an employment contract valid as from the date of signature
until 31 May 2021 (hereinafter: the contract).
2. In accordance with clause 3 of the contract, the club undertook to pay the player, inter alia,
the following remuneration:
a. Advance and warranty payment of EUR 175,000, on 5 August 2020;
b. Monthly salary of EUR 37,500 for the 2020/2021 season; and
c. Bonus of EUR 50,000 in the event that the club was promoted to the Upper League in
the 2019/2020 season, to be paid “within 90 days following the registration of the
leagues by TFF”.
3. On 22 December 2020, the player put the club in default granting it with a 15 days’ deadline
in order to pay the following amounts:
a. EUR 50,000 as bonus for being champion of the Second League;
b. EUR 144,593 corresponding to part of the advance and warranty payment due on 5
August 2020;
c. EUR 37,500 corresponding to the salary of October 2020; and
d. EUR 37,500 corresponding to the salary of November 2020.
4. On 9 January 2021, the player notified the club the termination of the contract with just
cause, requesting an additional payment of EUR 37,500 corresponding to the monthly
salary of December 2020, plus EUR 187,500 as compensation for the breach of contract. A
copy of said communication was sent to the Turkish Football Federation (TFF), for further
assessment.
5. On 12 January 2021, the Deputy General Secretary of the TFF replied to the player’s notice
stating, inter alia, the following: “the termination has been entered to [their] records and
hence, the contractual relationship between the player Hélder Jorge Leal Rodrigues Barbosa
and Club Atakas Hatayspor has been terminated”.
6. On 14 January 2021, the player and the Greek club, Panetolikos FC, signed an employment
agreement valid as from the date of signature until 30 June 2022, pursuant to which the
player is entitled to a monthly salary of EUR 700 plus an average fixed remuneration of EUR
14,333 per month, totalizing an estimated monthly remuneration of EUR 15,000.
II. PROCEEDINGS BEFORE FIFA
7. On 5 February 2021, the player filed the claim at hand before FIFA requesting the payment
by the club of the following amounts, plus 5% interest p.a. as from the due dates:
a. EUR 50,000 as bonus for being champion of the Second League;
b. EUR 144,593 corresponding to part of the advance and warranty payment due on 5
August 2020;
c. EUR 37,500 corresponding to the salary of October 2020;
d. EUR 37,500 corresponding to the salary of November 2020;
e. EUR 37,500 corresponding to the salary of December 2020; and
f. EUR 187,500 as compensation for the breach and premature termination of the
contract.
8. In his claim, the player stated, inter alia, that the provisions of art. 14bis par. 1 of FIFA
Regulations on the Status and Transfer of Players (RSTP) gives him the right to terminate
the contract with just cause, since the club had failed to pay him more than two monthly
salaries on their due dates.
9. In support of the above, the player pointed out that, by notice dated 22 December 2020,
he put the club in default and granted it a 15 days’ deadline in order to fully comply with
its financial obligations, to no avail.
10. The player then invoked the content of art. 17 of FIFA RSTP, adding that the club’s persistent
non-compliance with its financial obligations towards a player can be considered as an
unjustified breach of the employment contract.
11. Therefore, the player held that the club is liable for the early termination of the contract
and required him to pay compensation, calculated over the contract’s residual term (i.e. 5
salary months, corresponding to EUR 187,500). As the supposed breach occurred during
the protected period, the player also requested the club to be sanctioned as per art. 17 par.
4 of FIFA RSTP.
12. In spite of having been invited to do so, the club failed to submit any reply to the player’s
claim within the granted deadline, i.e. 15 March 2021.
13. On 16 March 2021, the FIFA general secretariat closed the investigation of the matter and
informed that no further submissions from the parties would be admitted to the file (cf. art. 9 par. 4 of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber).
14. On the same date, 16 March 2021, the club filed an unsolicited correspondence.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
15. 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 presented to FIFA on 5 February 2021 and submitted
for decision on 8 April 2021. 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.
16. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed 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 February 2021), 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 Portuguese player
and a Turkish club.
17. Subsequently, 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 Player (edition February 2021), and
considering that the present claim was lodged on 5 February 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
18. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
19. In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c. Merits of the dispute
20. The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
i. Main legal discussion and considerations
21. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the player lodged a claim against the club seeking payment
of outstanding remuneration and compensation for breach of contract, claiming that he
had just cause to terminate the contract.
22. In this context, the DRC observed that the club, for its part, failed to present its response to
the claim of the player, in spite of having been invited to do so. In this way, the DRC
considered that the club renounced its right to defence and thus accepted the allegations
of the player.
23. For the sake of completeness, the DRC was firm to determine that the untimely
correspondence filed by the club is inadmissible in line with art. 9 par. 3 and 4 of the
Procedural Rules, insofar as such submission was filed after the deadline granted and after
the closure of the investigation phase of the dispute.
24. Furthermore, as a consequence of the aforementioned consideration, the DRC concurred
that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon
the basis of the documents already on file, in other words, upon the statements and
documents presented by the player.
25. In light of the abovementioned, the DRC turned to the evidence on file and noted that it
was clear that upon the termination of the contract, not only the club had been warned
and granted a deadline of 15 days to cure its breach, but also the payments defaulted
amounted to more than two monthly salaries.
26. The Chamber then recalled the solid DRC jurisprudence according to which such persistent
and substantial non-compliance of the contractual obligations by the club can justify the
unilateral termination of the agreement as well as it can hold the club liable for breach of
contract.
27. Based on the foregoing and having in mind the contents of art. 14bis of the Regulations,
the DRC unanimously decided that the player had just cause to terminate the contract.
ii. Consequences
28. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the club.
29. In this regard, the DRC sought to establish the remuneration that had remained outstanding
at the time of the termination. In addition, taking into consideration art. 17 par. 1 of the
Regulations, the Chamber decided that the player is entitled to receive compensation from
the club for the termination of the contract with just cause.
30. With due consideration of the above, the DRC noted that the player asserted that at the
time of the premature termination of the contract, his salaries of October, November, and
December 2020 were outstanding, as well as the warranty payment due on 5 August 2020
and his bonus for performance.
31. Accordingly, the Chamber unanimously agreed that the abovementioned amounts have a
solid contractual basis, were sufficiently proved by the player and remained uncontested by
the club. As a consequence, and in accordance with the general principle of pacta sunt
servanda, the DRC concurred that the club must fulfil its obligations towards the player and
is to be held liable for the payment of outstanding remuneration as requested.
32. With regard to the claimed interest, the members of the Chamber, applying the constant
practice of the DRC decided to award the player 5% interest p.a. on said amounts as from
their due dates (i.e. the following day upon which they fell due) until the date of effective
payment.
33. Notwithstanding the above, the DRC also decided that the interest on the bonus (i.e. EUR
50,000) should arise as from the date of the claim until the date of effective payment, since
the documentation brought forward by the player could not lead to a comfortable
satisfaction degree conclusion about when the amounts should have been paid by the club.
34. Bearing the previous considerations in mind, the members of the Chamber went on to deal
with the consequences of the early termination of the contract with just cause by the player.
In this context, the DRC decided that, taking art. 17 par. 1 of the Regulations into
consideration, the player is entitled to receive compensation for breach of contract from
the club, in addition the aforementioned outstanding remuneration and its respective
interest.
35. To this extent, the Chamber outlined that in accordance with the aforementioned provision,
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 coach 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.
36. In application of the relevant provision, the DRC held that it first had to clarify whether the
contract contained any clause by means of which the parties had previously agreed on
compensation payable by the contractual parties in the event of breach. 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.
37. Subsequently, and in order to evaluate the compensation to be paid by the club, the DRC
took into account the remuneration due to the player in accordance with the contract as
well as the time remaining on the same contract, along with the professional situation of
the player after the early termination occurred.
38. For the sake of clarity, the members of the Chamber emphasized that in line with the
player’s claim and the evidence on file, there were still five months remaining to the expiry
of the contract at the time of termination (i.e. from January until May 2021).
39. Consequently, taking into account the financial terms of the contract the members of the
DRC concurred that its remaining value from the early termination until the regular expiry
amounts to EUR 187,500 and that such an amount shall serve as the basis for the final
determination of the amount of compensation due for breach of contract.
40. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, 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.
41. Indeed, the player found employment with Panetolikos FC. In accordance with the pertinent
employment contract, the player was entitled to an average monthly remuneration of EUR
15,000 net during the overlapping period of his new employment relationship and the one
previously established with the club. Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of EUR 67,500.
42. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to
overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
43. In this respect, the DRC highlighted that theoretically the player would be entitled to EUR
112,500 as additional compensation. However, the Chamber recalled that as per the clear
wording of art. 17 of the Regulations, the amount of compensation (including any
additional compensation) cannot exceed the residual value of the contract.
44. As a consequence, it was decided to award the amount of additional compensation of EUR
67,500 to the player.
45. Therefore, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber unanimously decided that the club must pay the amount of
EUR 187,500 to the player (i.e. EUR 187,500 minus EUR 67,500 plus EUR 67,500) for breach
of contract in the present matter.
46. With regard to the claimed interest, the Chamber, applying the constant practice of the
DRC, decided to award the player 5% interest p.a. on the said amount as from the date of
the claim (i.e. 5 February 2021).
iii. Compliance with monetary decisions
47. Finally, taking into account the Regulations, the Chamber referred to par. 1 lit. a) 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.
48. In this regard, the DRC highlighted 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
49. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
50. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
51. 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. 8
of the Regulations.
d. Costs
52. The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
53. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
54. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Hélder Jorge Leal Rodrigues Barbosa, is partially accepted.
2. The Respondent, Hatayspor, has to pay to the Claimant, the following amounts:
- EUR 144,593 as outstanding remuneration plus 5% interest p.a.as from 6 August 2020
until the date of effective payment;
- EUR 37,500 as outstanding remuneration plus 5% interest p.a.as from 1 November 2020
until the date of effective payment;
- EUR 37,500 as outstanding remuneration plus 5% interest p.a.as from 1 December 2020
until the date of effective payment;
- EUR 37,500 as outstanding remuneration plus 5% interest p.a. as from 1 January 2021
until the date of effective payment;
- EUR 50,000 as outstanding amount plus 5% interest p.a.as from 5 February 2021 until the
date of effective payment; and
- EUR 187,500 as compensation for breach of contract plus 5% interest p.a.as from 5
February 2021 until the date of effective payment.
3. Any further claims of the Claimant are rejected.
4. Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
5. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of three entire
and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
paid by the end of the of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7. This decision is rendered without 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).
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