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 13 August 2020

Decision of the

Dispute Resolution Chamber

passed on 13 August 2020,

regarding an employment-related dispute concerning the player AYMEN ABDENNOUR

COMPOSITION:

Clifford J. Hendel (USA/France), Deputy Chairman Alexandra Gómez Bruinewoud (Uruguay/The Netherlands) member Pavel Pivovarov (Russia), member

CLAIMANT:

AYMEN ABDENNOUR, Tunisia

Represented by R&A Sports law

RESPONDENT:

KAYSERISPOR KULÜBÜ DERNEGI, Turkey

Represented by Mr Batu Mosturoğlu

I.

I. FACTS OF THE CASEFACTS OF THE CASE

1. On 12 July 2019, the player Aymen Abdennour (hereinafter: “the player” or “the Claimant”) and the club Kayserispor Kulübü Dernegi (hereinafter: “the club” or “the Respondent”) signed an employment contract (hereinafter: “the contract”) valid as of 12 July 2019 and during the football season 2019/2020, i.e. until 31 May 2020.

2. According to article 6.1 of the contract, the club undertook to pay the player the following remuneration: “For 2019/2020 football season: a total amount of EUR 660,000 payable as follows”:

 EUR 100,000 as an advance payment payable on 19 July 2019;

- EUR 50,000 payable on 31 August 2019 ;

- EUR 110,000 payable on 30 September 2019 ;

- EUR 50,000 payable on 31 October 2019 ;

- EUR 150,000 payable on 30 November 2019 ;

- EUR 30,000 payable on 31 December 2019 ;

- EUR 30,000 payable on 31 January 2020;

- EUR 30,000 payable on 29 February 2020

- EUR 30,000 payable on 31 March 2020

- EUR 30,000 payable on 30 April 2020

- EUR 50,000 payable on 31 May 2020.

3. Article 7 A) of the contract provided: “The disputes arising from the present Contract may be referred by either party to FIFA … as the competent party for solving any queries arising from this Agreement and Court of Arbitration for Sports (CAS) as the appeal body”.

4. Article 7 B) of the contract provided: “The parties accept the addresses as written in the front page of the Contract as notification addresses and also aymen.abdennour@hotmail.fr this email address is considered as notification address. Notifications made to the aforesaid addresses are deemed to be valid unless address changes are not notified to the related party properly”.

5. On 12 November 2019, the Claimant put the Respondent in default and requested payment of EUR 195,000 within 15 days. In this regard, the player held having received the advance payment in the amount of EUR 100,000 as well as another payment of EUR 15,000.

6. On 5 December 2019, the Claimant sent a second default notice to the Respondent, acknowledging receipt of a payment in the amount of EUR 80,000 and requested payment of EUR 265,000 within 15 days, corresponding to the amount due until this date.

7. On 29 March 2020, the Claimant sent another default notice to the Respondent, requesting payment of the EUR 190,000.

8. On 6 April 2020, the Claimant terminated the contract with the Respondent due to outstanding remuneration in the total amount of EUR 290,000.

9. The Claimant sent each of the aforementioned correspondence to the following email address fo the club: fc.kayserispor@gmail.com.

10. In his claim, the player held having had just cause to terminate the contract on 6 April 2020, in accordance with art. 14bis RSTP, due to the club’s repeated failure to comply with its financial obligations.

11. In this regard, the player explained that his third default notice contained a mistake, since actually EUR 290,000 were outstanding and not EUR 190,000. He also argued that such mistake had no influence on the just cause invoked in his termination since EUR 190,000 correspond to more than two monthly salaries.

12. In conclusion, the Claimant maintained having received the total amount of EUR 260,000 from the Respondent and insisted that the total amount of EUR 320,000 remained outstanding corresponding to the following instalments:

1) EUR 50,000 to be paid on 31.10.2019

2) EUR 150,000 to be paid 30.11.2019

3) EUR 30,000 to be paid 31.12.2020

4) EUR 30,000 to be paid 30.01.2020

5) EUR 30,000 to be paid 29.02.2020

6) EUR 30,000 to be paid 31.03.2020

13. Furthermore, the Claimant requested compensation for breach of contract in the amount of EUR 80,000, corresponding to the residual value of the contract.

14. In sum, the Claimant requested to:

 determine that the player had just cause to terminate the contract;

 order the Respondent to pay EUR 320,000 as outstanding remuneration plus 5% annual interest as from the due date until effective payment;

 order the Respondent to pay EUR 80,000 as compensation plus 5% annual interest as from the date of termination (i.e. 6 April 2020) until effective payment and

 impose sporting sanctions on the Respondent.

15. The Respondent briefly explained that the contract stipulated “that according to the official contract deposited to Turkish Football Federation clearly states that in case of a legal conflict judicial bodies of TFF are competent for dispute resolution.”

16. The Respondent argued that it did not receive the termination notice of the Claimant. In fact, the Respondent stated that its postal address was clearly stipulated in the header of the contract, and as per article 7 of the contract, the Respondent explained that any communication should have been sent to said address.

17. What is more, the Respondent declared the Claimant’s request for outstanding remuneration groundless.

18. In fact, the Respondent, referring to the Claimant’s “obligation of maintaining a mental and physical fitness level which will allow the player to compete in Professional level football”, stated that “[the Claimant’s] mental and physical fitness level has deteriorated drastically after November 2019.”

19. The Respondent explained that it had offered support to the Claimant in order to regain sufficient fitness, but that he failed several fitness and medical tests and was subsequently relegated to the U19 team.

20. The Respondent declared that then the Claimant retired from professional football, and emphasized that “[the Claimant’s] incapableness to perform at a certain level due to constant lack of fitness and eventual yet unexpected retirement has caused the club considerable damages.”

21. The Respondent requested to dismiss all claims raised by the Claimant and to order the latter to cover all costs and expenses including fees.

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 13 April 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 and par. 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players the Dispute Resolution Chamber would be, in principle, competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Tunisian player and a Turkish club.

3. However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis of the alleged content of an official contract deposited at the Turkish Football Federation which allegedly stated that in case of conflict the judicial bodies of the TFF would be competent to decide the dispute.

4. In this regard, the Chamber noted that the Respondent did not provide any documentary evidence to sustain its allegations.

5. Moreover, the Chamber underlined that article 7 A) of the contract clearly stated that in case of disputes between the parties the FIFA deciding bodies would be competent to solve them and the Court of Arbitration for Sports would be the appeal body.

6. In view of the above, the DRC concluded that it was competent to enter into the substance of this matter based on the terms clearly agreed by the parties in the article 7 A) of the contract.

7. In continuation, the DRC analyzed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition June 2020), and considering that the present claim was lodged on 13 April 2020, the March 2020 edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.

8. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. Subsequently, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the DRC emphasized 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.

9. To start with, the DRC acknowledged that the parties to the dispute had signed an employment contract valid from 12 July 2019 until 31 May 2020.

10. The DRC took note that the Claimant lodged the present claim alleging having terminated the contract with just cause requesting outstanding remuneration and compensation.

11. At this stage, the Chamber observed that the Claimant sent three default notices to the Respondent on 12 November 2019; 5 December 2019 and 29 March 2020 requesting outstanding remuneration prior to the termination letter sent on 6 April 2020.

12. In this respect, the Chamber remarked that the Respondent did not contest having a debt towards the Claimant, however, it contested having received the default notices and the termination letter.

13. The Chamber took note that the Respondent argued that based on article 7 B) of the contract any communication related to the contract should have been sent to its postal address. The Chamber observed that the Respondent further argued, that the player sent the three default notices and the termination letter to the club´s email address indicated in TMS.

14. In this context, the Chamber referred to article 9bis par. 3. of the Procedural Rules which states “Communications from FIFA shall be sent to the parties in the proceedings by using the email address provided by the parties or as provided in the Transfer Matching System (TMS; cf. art. 4 par. 1 of Annexe 3 and art. 5 par. 2 of Annexe 3 of the Regulations on the Status and Transfer of Players). The email address provided in TMS by associations and clubs is considered a valid and binding means of communication. The parties and associations must ensure that their contact details (e.g. address, telephone number and email address) are valid and kept up to date at all times.”

15. Therefore, the Chamber concluded that it cannot be contested that the Claimant sent his default notices and termination letter to the Respondent’s official email address.

16. The DRC pointed out that by sending the relevant communications to the official email account of the Respondent, the Claimant had a legitimate expectation that they were received by the Respondent, and that the latter choose to not react to them.

17. What is more, the Chamber noted that the Respondent did not bring any valid reason as to the delay in paying the remuneration of the player. In fact, the DRC observed that the Respondent only indicated that the player’s physical condition was poor, but there is no evidence on file that the Respondent had warned the player about this situation and tried to find a solution, for instance, indicating a specific training plan to him.

18. The DRC underlined that according to its established jurisprudence poor fitness level does not constitute a valid reason to delay the payment of a player’s remuneration.

19. In view of the aforementioned, the DRC came to the conclusion that the Claimant terminated the contract with just cause on 6 April 2020 on the basis of outstanding remuneration amounting to EUR 320,000 which correspond to more than half of the player’s fixed remuneration (cf. article 6.1 of the contract), and that the Respondent shall bear the consequences of said termination.

20. In continuation, prior to entering into the issue of the consequences of the early termination of the contract with just cause by the Claimant, the DRC firstly proceeded to determine the amount of outstanding remuneration, if any, still due to the player by the club to this day.

21. In this regard, the DRC recalled that, as per the player, the following remuneration was outstanding:

1) EUR 50,000 to be paid on 31.10.2019

2) EUR 150,000 to be paid 30.11.2019

3) EUR 30,000 to be paid 31.12.2019

4) EUR 30,000 to be paid 30.01.2020

5) EUR 30,000 to be paid 29.02.2020

6) EUR 30,000 to be paid 31.03.2020

22. In this context, the DRC reiterated that the Respondent did not provide any evidence of payment of the amounts requested by the player. Thus, the DRC concluded that the aforementioned remuneration was still outstanding.

23. On account of the aforementioned considerations, the DRC decided that, in accordance with the general legal principle of pacta sunt servanda, the club is liable to pay to the player outstanding remuneration in the total amount of EUR 320,000 corresponding to six monthly salaries in the amount of EUR 50,000 for October 2019; EUR 150,000 for November 2019 and EUR 30,000 for each of the months from December 2019 to March 2020.

24. In addition, taking into consideration the request of the player and the standard practice, the DRC decided to award the Claimant interest at the rate of 5% p.a. on the aforementioned amounts as from the relevant due dates (i.e. day after the last working day of the relevant month) until the date of effective payment.

25. In continuation, and taking into consideration art. 17 par. 1 of the Regulations, the DRC decided that the player is entitled to receive compensation for breach of contract from the club.

26. In continuation, the DRC focused its attention on the calculation of the amount of compensation for breach of contract payable by the club to the player in the case at stake. In doing so, the members of the DRC first 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.

27. In application of the relevant provision, the DRC held that it first of all had to clarify as to whether the 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 DRC established that no such compensation clause was included in the contract at the basis of the matter at stake.

28. As a consequence, the DRC 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 DRC 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. In this regard, the DRC emphasized beforehand that each request for compensation for contractual breach has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter.

29. In order to estimate the amount of compensation due to the player in the present case, the DRC first turned its attention to the remuneration and other benefits due to him under the existing contract and/or the new contract(s), which criterion was considered to be essential. The DRC deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations allows it to take into account both the existing contract and the new contract, if any, in the calculation of the amount of compensation.

30. Bearing in mind the foregoing, the DRC proceeded with the calculation of the monies payable to the player under the terms of the contract as from its date of termination with just cause by the player, i.e. 6 April 2020, until 31 May 2020, and concluded that the player would have received EUR 80,000 in total as remuneration (i.e. EUR 30,000 for April 2020 and EUR 50,000 for May 2020) had the contract been executed until its expiry date. Consequently, the DRC concluded that the amount of EUR 80,000 serves as the basis for the final determination of the amount of compensation for breach of contract in the case at hand.

31. In continuation, the DRC 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 able 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 termination of contract with just cause in connection with the player’s general obligation to mitigate his damages

32. In respect of the above, the DRC noted, that the player informed not having signed a new employment contract valid on April and May 2020 and therefore had not been able to mitigate his damages. Therefore, no further deductions should be made to the amount of EUR 80,000, in accordance with art. 17 par. 1 lit. i) of the Regulations.

33. Consequently, on account of the above-mentioned considerations, the DRC decided to partially accept the Claimant’s claim and held that the Respondent must pay the amount of EUR 80,000 as compensation to the Claimant, which is considered by the DRC to be a fair and reasonable amount.

34. In addition, taking into account the Claimant´s request and the well-established jurisprudence of the Dispute Resolution Chamber in this respect, the DRC decided that the Respondent shall pay 5% interest p.a. on the amount of EUR 80,000 as from date of claim, i.e. 13 April 2020 until the date of effective payment.

35. Furthermore, taking into account the consideration under point II./7. 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.

36. 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.

37. 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.

38. 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.

39. The DRC concluded its deliberations in the present matter by establishing that any further claims lodged by the Claimant are rejected.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Aymen Abdennour, is partially accepted.

2. The Respondent, Kayserispor Kulübü Dernegi, has to pay to the Claimant, the following amounts:

- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2019 until the date of effective payment;

- EUR 150,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2019 until the date of effective payment;

- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2020 until the date of effective payment;

- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020 until the date of effective payment;

- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2020 until the date of effective payment;

- EUR 30,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until the date of effective payment;

- EUR 80,000 as compensation for breach of contract plus 5% interest p.a. as from 13 April 2020 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 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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777