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 November 2020

Decision of the

Dispute Resolution Chamber

Passed on 25 November 2020,

regarding an employment-related dispute concerning the player Modou Barrow

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman

Roy Vermeer (Netherlands), member

José Luis Andrade (Portugal), member

CLAIMANT / COUNTER-RESPONDENT:

DENIZLISPOR KULÜBÜ DERNEGI, Turkey

RESPONDENT / COUNTER-CLAIMANT:

MODOU BARROW, Sweden

I.

I. FACTS OF THE CASEFACTS OF THE CASE

1. On 13 August 2019, the Turkish club, Denizlispor Kulübü Dernegi (hereinafter: the club) and the English club, Reading FC, signed a loan agreement regarding the temporary transfer of the Swedish player, Modou Barrow (hereinafter: the player) from Reading FC to the club for the period of 13 August 2019 until 30 June 2020 (hereinafter: the loan agreement).

2. In accordance with the loan agreement, the club committed itself to pay to Reading FC a loan transfer fee in the amount of EUR 125,000, as follows:

a. EUR 62,500 on 31 December 2019;

b. EUR 62,500 on 30 April 2020.

3. On 15 August 2019, the player and the club signed an employment contract valid as from the date of signature until 31 May 2020 (hereinafter: the contract).

4. The player was entitled to the total salary of EUR 880,000 under the contract as follows:

a. EUR 190,000 as advance payment payable on 15 August 2019;

b. EUR 65,000 on 31 August 2019;

c. EUR 105,000 on 30 September 2019;

d. EUR 65,000 on 31 October 2019;

e. EUR 65,000 on 30 November2019;

f. EUR 65,000 on 31 December 2019;

g. EUR 65,000 on 31 January 2020;

h. EUR 65,000 on 28 February 2020;

i. EUR 65,000 on 31 March 2020;

j. EUR 65,000 on 30 April 2020;

k. EUR 65,000 on 31 May.

5. Art. 3e) of the contract stipulated the following: “The [player] confirms that he has been fully informed as to the club’s […] Disciplinary Regulation – a copy of which in English he is given – and undertakes in advance to sign and obey […] Any fines imposed by the club accordingly with the Disciplinary Regulation shall be deducted from the outstanding and/or upcoming receivables of any kind immediately”.

6. Art. 6 of the contract provides for the following: “In case the club fails into a default for any payment for more than 45 days, the player shall notify the club in writng and provide 15 days to the club for payment if the club does not pay the unpaid amount then the player has the option to terminate the contract unilaterally.”

7. On 15 August 2018, the parties signed a copy of the club’s disciplinary regulations. Clause 6 of the club’s disciplinary regulations defines, inter alia, the following “infringements”:

(a) In case the player doesn’t participate training sesions, matches, meetings, travels, camps, treatments, and doesn’t arrive meetings and events scheduled by the club on time and fails to participate or runs late to the trainings and matches or leaves without permission. (Verbal permission allegations will not be heard.) […]

(c) In case the player doesn’t participate training sessions, matches, meetings, travels, camps, treatments, and doesn’t arrive meeting and events scheduled by the club on time and fails to participate or runs late to the trainings and matches or leaves without permission (Verbal permission allegations will not be heard.)”

8. Clauses 8 and 9 of the club’s disciplinary regulations provides respectively for, inter alia, the following applicable fines in case of “infringements”:

“ARTICLE 8. APPLICATION PRINCIPLES OF FINES

“The fines will be calculated according to the cost of the player to the club.

(a) Daily cost of the player:

The daily cost of the player shall be calculated by dividing “the annual cost of the player to 300. If the Player serves the Club for half a season due to his transfer to another Club during the mid-transfer window, daily cost of the player shall be calculated by dividing “the annual cost of the player” to 150.

ARTICLE 9. DETERMINATION OF FINES

(2) Fines in case of not participating to training and matches and failure to obey the program, camps and being late;

(a) At least the 5 days cost of the player at the first time, according to the decision by the board."

[…]

(g) Fines will be imposed to the Player, when the decision of the TFF Professional Football Disciplinary Committee or UEFA Disciplinary Body decision becomes final”.

9. On 15 February 2020, the club sent an email to the player, informing him to “immediately” come to the club for the game against Kayserispor.

10. That same day, on 15 February 2020, the club release an “Official Report in the Presence of a witness” which stipulated that the player had been absent that day “without notifying any excuse”.

11. On 18 February 2020, the club requested the player in writing to “make your defense in 5 days related with this situation”.

12. On 10 March 2020, the club took the following decision concerning the player’s alleged absence:

“Modou Barrow gave up his right to defense by not defending. Due to disciplinary violations written above, to be evaluated separately under the subparagraph a) of paragraph 2 of Article 9 of the club discipline regulation, [the player] was fined 15,000 euros for leaving the camp without permission and not following the Schedule and was fined 50,000 euros for not participating in the competition or not following the Schedule, by combining these two penalties, a total fine of 65,000 euros is given and It has been unanimously resolved that the 65,000 euro fine be deducted from the first progress payment to be accrued by the football player Modou Barrow on the 31 March 2020 term fee”.

13. On 17 March 2020, the club took the following decision: “Due to [COVID-19] it was decided to protect [the players] by banning travel abroad. No one knows when the leagues will start so personnel cannot going abroad, they have to stay in Turkey in case of the league starts. And also, it was decided that our club will punish in accordance with the disciplinary regulations if there are players going abroad without permission”.

14. On 25 March 2020, the club informed the player in writing that, following the club’s decision regarding to travel abroad, it gave the team permission “to rest” between 19 March 2020 and 26 March 2020. In continuation, the club held that the player went “abroad without permission”. In this context, the club requested the player to “report your defense within 2 days after receiving this letter”.

15. On 26 March 2020, the player informed the club of the following:

My decision to travel abroad was occasioned by utmost necessity and permission was duly granted; I left the country with the sole intent of getting medical attention which was overdue as I was undergoing severe pain which I could no longer bear. Thereafter, I had a family emergency that required me to be present and I had to proceed to spend some time with my family.

However, in an unfortunate turn of events, the corona virus (Covid 19) pandemic rose to unexpected heights which required countries across the world to close all boarders; this then made it impossible for me to return to Turkey as I had envisaged”.

16. On the same date, the club imposed a disciplinary sanction on the player in the amount of EUR 65,000 for his unauthorized absence during the game on 14 February 2020.

17. On 31 March 2020, the club imposed another disciplinary sanction on the player by fining him as follows:

a. TRY 13,000 “due to the fact that you committed a serious foul against the opponent team player” on 28 December 2019;

b. TRY 13,000 as a “deduction […] from the progress payments of our club by our federation within the decision […] dated 17.03.2020”.

c. EUR 15,000 due to a trip of the player to Gambia “without permission”.

18. On 12 April 2020, the player informed the club in writing that his February 2020 salary had not been paid and same has remained unpaid. The player further added that “these monies were owed before the COVID 19 virus forced suspension of football activities across the world by FIFA”.

19. In said letter, the player further requested the following within 3 days:

a. The termination of the loan agreement between the club and Reading, as well as the termination of the employment contract;

b. GBP 130,000 as outstanding remuneration.

20. On 14 April 2020, the club replied to the player’s correspondence of 12 April 2020, inter alia holding that the player “wanted to leave the club and get a medical treatment from Istanbul which is completely incompatible with the contract.” In continuation, the club reminded the player of the following disciplinary sanctions imposed against him in accordance with the club’s disciplinary regulations:

a. TRY 13,000 (“EUR 2,152”) for his red card of 28 December 2019;

b. EUR 15,000 because the player was absent without permission on 14 February 2020;

c. EUR 50,000 because the player missed the match on 15 February 2020;

d. EUR 15,000 for leaving the country, thereby violating the club’s decision of 17 March 2020.

21. In continuation, the club held that, given that “the leagues are suspended in Turkey on 19th March 2020 […] pro-rata should be accepted in this situation” i.e. EUR 39,838.63. The club thus concluded that the amount of EUR 22,686.83 corresponding to the following: EUR 65,000 (salary of February) + EUR 39,838.63 (salary of March) – 82,152 (discipline imposed on the player) would be paid in a few days.

22. On 15 April 2020, the player informed the club in writing that “it does not look good for your Club if […] we show that you have unjustly fined a player as much as GBP 50,000.00 (Fifty Thousand Euros) which is almost the sum of [the player’s] allowance for an entire month over a single conduct”. The player further argued that the club is not “empowered to unilaterally decide to pay [the player] on pro-rata basis (as you intend to do for the month of March 2020)”. Furthermore, as per the player, “the amount proposed to [the player] as final payment after deductions of fines (GBP 22,686,63) is unacceptable and clearly insulting”.

23. On 26 April 2020, the club informed the player via email that the “Covid-19 Football Regulatory (Clause iv)” applies in this case”. As per the club,”the period after the leagues are suspended in Turkey is in question for our club. Furthermore, as our club doesn’t have any revenue in this period. Therefore, we decided to wait until the decisions are made related with the Turkish Leages […] Finally, we kindly recommend to the player to respect the contract between the parties. Our trainings are going to start on 27th April 2020. In this regard, we kindly invite the player to turn back […] immediately and join the team again.”

24. By means of his correspondence dated 27 April 2020, the player held that a fine amounting to more than a month’s salary is not “logic”. With respect to the club’s decision to pay the March 2020 salary pro-rata, the player referred to the COVID guidelines and maintained that “clubs and employees are encouraged to work together (reach an agreement) to address all issues including remuneration. In the event that the club and players are unable to reach an agreement, the club can then take a unilateral decision like your club has done.”

25. On 27 April 2020, the club informed the player that the club “decided to start the regular and periodical trianing of our footballers because of the nomalization and possibility of therting the leagues”.

26. On 28 April 2020, the club again informed the player that it will pay him the amount of EUR 22,686.63, and invited him to resume training.

27. On 2 May 2020, the player unilaterally terminated the employment contract in writing. In his termination letter, the player made reference to Art. 6 of the contract, and stated that his “salary from the month of February 2020 had not been paid and same has remained unpaid despite repeated demands”. The player further held that the total outstanding debt amounted to “GBP 195,000 (One Hundred and Ninety Five Thousand Euros)”.

II.

II. PROCEEDINGS BEFORE FIFAPROCEEDINGS BEFORE FIFA

28. On 15 June 2020, the club filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the club

29. The club lodged a claim against the player for breach of contract, requesting the following:

a. Declaration that the fines imposed on the player are valid;

b. Declaration that the fines (“82.150 Euros”) could be deducted from the player’s outstanding salaries;

c. Declaration that the player terminated his contract without just cause;

d. EUR 275,500 plus TRY 5,480,000 as compensation for breach of contract;

e. the imposition of sporting sanctions on the player.

30. In its claim, the club firstly referred to Art. 3e) of the contract as well as the club’s disciplinary regulations and held that the player had been “dully informed as to the Club’s […] Disciplinary Regulations”.

31. The club stated that on 28 December 2019, the player received a red card “on purpose”.

32. In this context, the club explained that the disciplinary fine of TRY 13,000 for the player’s red card during a match on 28 December 2019, was because the Turkish FA had fined the club on 2 January 2020 with this same amount for the player’s red card.

33. In continuation, the club explained that the player was absent without permission as from 14 February 2020, missing a game on 15 February 2020.

34. Along these lines, the club referred to Clauses 6 and 8 of the disciplinary regulations, and explained that “the total cost of the player was caluclated as EUR 1,025,000 (EUR 880,000 guarantee payment for the player sand EUR 125,000 loan fee […]) The daily cost of the player was determined as EUR 3,416 (1,025,00 / 300 days)”. Therefore, the club concluded that it was entitled to fine the player EUR 15,000 for his absence on 14 February 2020.

35. Having said this, the club further highlighted that the player had not shown up to the match played on 15 February 2020. According to the club, “the player did not participate in the game wihout any reason”. As such, the club claimed that it provided the player 5 days to state his defense regarding his absence, but that the player “ignored the club’s request”. Thus, the club decided to impose a fine on the player in the amount of EUR 65,000 on 26 March 2020.

36. As regards this disciplinary fine, the club referred to its disciplinary regulations, and held that “in case the player refuses to appear/to be fielded in a game, despite the coach’s directive […] the fine will be five times higher than the regular fine”.

37. In continuation, the club emphasized that the Turkish Leagues were suspended due to COVID. After the suspension, the club decided to restrict the players from leaving the city. According to the club, the players were informed by text message on 14 March as well as 19 March 2020. However, as per the club, the player “left the city and even left the country without any permission and without providing any information.”.

38. As a consequence, and in accordance with Clause 9 of the club’s disciplinary proceedings, the club decided to fine the player in the amount of EUR 15,000 for his unauthorized absence after the club had restricted the players from travelling.

39. The club acknowledged that it had fined the player in the total amount of EUR 82,150 and that this amount was to be deducted from the player’s salary. In this context, the club argued that it was “the free will of the parties” to have this amount deducted.

40. With regard to the unilateral termination of the contract by the player on 2 May 2020, the club explained that the conditions stipulated in Art. 6 of the contract were not complied with. In particular, according to the club, the last payment date for the February 2020 salary was 28 February 2020. However, as per the club, the player sent the default letter on 12 April 2020, i.e. “44 days after the club fell into the default”.

41. As regards the default letter of 12 April 2020, the club underlined that the player “never indicated that he was providing 15 days to the club to make a payment”.

42. Moreover, with respect to the default letter dated 27 April 2020, the club understood that it was the intention of the player to terminate the contract. “After the player left the country in March 2020, he never wanted to turn back again.”

43. Furthermore, the club argued that after the suspension of the league on 19 March 2020, “it is impossible for the club to make a payment while the club was not getting paid […] In the light of these explanations, the period of 45 days should have been extended”.

44. Given all of the above, the club concluded that the player had terminated the contract without just cause.

45. With regard to its request for compensation for breach of contract, the club stated that the residual value of the player’s contract corresponded to three monthly salaries of EUR 65,000, i.e. EUR 195,000 in total.

46. Moreover, according to the club calculated that for the remaining 8 games of the current season, it “may earn TRY 2,740,000 per every win” (Note: […] However, the change of the club to win the upcoming games already dramatically decreased as [the player] terminated his contract without just cause […] In this regard, the player should pay TRY 5,480,000 as compensation for damages of the club”.

47. Finally, the club requested a further EUR 62,500 as compensation corresponding to the 2nd instalment of the loan fee.

48. In addition, the club maintained that the player is to receive sporting sanctions in accordance with Art. 17 (3) of the RSTP.

b. Position of the player and counterclaim

49. In his reply, the player rejected the clubs arguments.

50. In this regard, the player deemed that he missed the match on 15 February 2020 “due to family emergencies and was unable to report to the coach in due time, however, upon receipt of the query, the player in an email apologized and explained reason for his absence to be a family emergency. The Club was satisfied with the response and no further sanction was issued at the time”.

51. Furthermore, the player claimed that he “travelled to Istanbul for medical treatment before the league was suspended”.

52. In addition, the player stressed that “with the world not having full understanding of the Pandemic and how to best manage it at the time and with the knowledge of the fact that the Turkish League had been suspended, the Defendant proceeded to Gambia to join his family and protect himself from contracting the virus”.

53. Moreover, the player argued that the decision concerning the travel ban was made on 17 March 2020 but “there’s confirmation of permission already granted to the Defendant to travel on Saturday the 14th of March 2020 before the travel ban was imposed on Players by the Claimant”.

54. In this regard, the player highlighted that “no fine was imposed on the player as no communication was made in this regard until a formal letter was written by the Defendant’s Counsel on the 12th of April, 2020, demanding for the Claimant’s outstanding indebtedness to the Defendant. It was only at this point that the Claimant began to pull offences that were non issues out of the hat and conjure up fines from the flimsiest possible excuses, all in a bid to evade payment of the outstanding indebtedness at the time”.

55. In addition, the player stressed that some of the documents provided by the club were translated in to English on 10 June 2020 which “is proof that it was not communicated to the defendant who speaks only English prior to that time and was only fabricated for the purpose of this action” .

56. In regards to the fines, the player “contests all the fines levied unjustly”.

57. Moreover, the player stressed that he “demanded for copies of these fines with proof that they were issued on the Defendant but up till the point of filing this Statement of Defence, the Defendant is yet to receive any fine”.

58. The player stressed that on 2 May 2020, “when it had become clear to the Defendant that the Claimant had not shown any remorse for the manner it had treated the Defendant, was insincere and unwilling to have the matter settled amicable” the player terminated the contract with just cause.

59. The player referred to the FIFA Guideline on COVID 19 Regulatory Issues and highlighted that “a new agreement ought to be reached between Clubs and players and it does not entitle the Club to unilaterally decide to cease all payments upon suspension of the league without even taking the liberty to notify the Players as in the instant case”.

60. As a consequence, the player lodged a counterclaim and deemed that he terminated the contract with just cause, requesting the following:

- EUR 195,000, as outstanding remuneration, corresponding to the monthly salaries for February until April 2020;

- EUR 85,000, as compensation for breach of contract.

c. Reply to the counterclaim

61. In its reply to the counterclaim, the club reiterated its previous position.

62. In particular, the club rejected that “the club had not imposed any fine on the player before the player sent a warning notification to the club”.

63. In this regard, the club stressed that “all the fines were notified to the player right after the decision of the board of the management of the club”.

64. In regards to the missed game on 15 February 2020, the club argued that the “club has never received an e-mail form the player” and “the reason for a family emergency, the explanations of the respondent cannot be accepted as valid arguments”.

65. The club further stressed that the “did not give any permission to any player to leave the country” and that the player “did not present any document signed by our club”.

66. Moreover, the club repeated its arguments that the “player left the country with violating all the rules of the club and he was not ready to offer his services from the middle of the March. The player did not have any intention to rejoin the team again.”

67. In addition, the club highlighted that the player never provided any document about his alleged treatment in Istanbul.

68. Consequently, the club argued that “the player had been fined because of his unprofessional behaviours” and that he terminated his contract without just cause.

III.

III. CONSIDERATIONS OF THE CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBERDISPUTE RESOLUTION CHAMBER

a. Competence and applicable legal framework

69. 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 15 June 2020 and submitted for decision on 25 November 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.

70. 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 (October 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 Swedish player and a Turkish club.

71. 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 October 2020), and considering that the present claim was lodged on 15 June 2020, the June 2929 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

72. The DRC 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.

73. In this respect, the DRC 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

74. Its competence and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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

75. The Chamber moved to the substance of the matter, and took note of the fact that the parties strongly dispute whether the player had just cause or not to terminate the contract, as well as the legality of the disciplinary sanctions imposed on the player by the club.

76. The DRC proceeded then to examine the absences of the player and the disciplinary sanctions related to them.

77. Based on the information on file, the Chamber observed that the player was both absent from training on 14 February 2020 and missed a match on 15 February 2020 due to, as per his explanations, “family emergencies”.

78. Moreover, the DRC emphasized that while the exact dates remained unconfirmed, it stood undisputed that the player left Turkey in March, apparently to never return to that country. The DRC furthermore took due note of the fact that in each of these absences, the club sent the player e-mails with requests for him to provide his position.

79. The DRC subsequently examined the player’s reasoning and observed while he argued that that the club later accepted his absence in February, he provided no evidence in support of this argument. Equally, the Chamber noted that the player failed to provide adequate evidence that he was permitted to leave the country in March: in particular, the DRC concurred that the text messages conversation screenshots filed by the player are not satisfactory to this end, as they are neither dated nor conclusive.

80. Consequently, the DRC decided that it could not uphold the line of reasoning of the player on the grounds of the latter having failed to meet his burden of proof.

81. In regards to the fines imposed by the club, the DRC found that the club provided enough evidence that it had informed the player about the fines, established a chance for the player to defend himself, and that the parties had previously agreed to the disciplinary rules of the club. However, the DRC was firm to conclude that a fine of EUR 65,000 for missing a day of training and a match, considering that the player had an average monthly salary of EUR 92,631 (i.e. EUR 880,000 divided by 9.5 months) was disproportional and unreasonable. The DRC further recalled that the fine on the player for his absence is March was also disproportionate vis-a-vis his fault.

82. Notwithstanding the above, the DRC observed that the club failed to provide any evidence that the player had received a red card on purpose. Consequently, the Chamber dismissed the club’s arguments in this regard and established that the fine imposed due to the said red card cannot be upheld.

83. On account of the foregoing, the Chamber decided that the fines imposed on the player should be reduced. Considering the severity of the infringements committed by the player, which remained proven to a limited extent pertaining solely to the player’s absence in February and March as detailed above, the DRC decided to reduce the amount of the fines imposed on the player to EUR 45,000.

84. Having said that, and moving to the issue of the contractual termination, the DRC deemed of utmost importance to recall that in accordance with the longstanding jurisprudence of the Chamber, clubs are not allowed to offset fines against the remuneration of the player. In other words, the Chamber firmly concluded that the player was still entitled to the timely payment of his full salary, an obligation that the club undisputedly failed to honour.

85. At this point, the DRC found it necessary to remark that it was well aware of the impacts of the COVID-19 pandemic.

86. In this context, the Chamber firstly wished to highlight that 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 clarifications on the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

87. The DRC also wished to refer to the fact that said guidelines – as per the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only applicable to “unilateral variations to existing employment agreements”. Therefore, except where a termination of a contract occurred following a unilateral variation made as a result of COVID-19 (in which case the validity of the variation must first be assessed under the guidelines), said guidelines do not apply to assess unilateral terminations of existing employment agreements. The Chamber further noted that for the assessment of disputes that are presented before the FIFA judicial bodies concerning the unilateral termination of a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber shall apply.

88. Having the above in mind, the DRC confirmed that while in principle unilateral variations to employment contracts may be permitted under certain circumstances, there is no legal or regulatory basis which allow clubs to simply stop paying players’ salaries. In this regard, the DRC emphasized that the club did not provide any evidence in support of its argumentation that it was entitled to unilaterally change its obligations for the remuneration of the player due to the COVID-19 pandemic.

89. Consequently, the Chamber decided that it did not need to enter into the merits of whether the COVID-19 Guidelines and the FIFA COVID-19 FAQ applied to the case at hand, and was comfortable to apply to the termination of the contract both the Regulations and the jurisprudence of the DRC.

90. Subsequently, the Chamber was observant of the fact that on the date of termination, i.e. 2 May 2020, the club had failed paid the player three monthly salaries, corresponding to February, March, and April 2020.

91. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract. In other words, only when there are objective criteria, which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. A premature termination of an employment contract can only ever be an ultima ratio measure.

92. Given the circumstances above and bearing in mind the cited principle, the DRC concluded on the grounds of art. 14 of the Regulations that the player terminated the contract with just cause. The club shall therefore be responsible for the consequences arising from such termination.

ii. Consequences

93. Having stated the above, the Chamber turned its attention to the question of the consequences of such unjustified breach of contract committed by the club.

94. The Chamber observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to three salaries under the contract and the side letter, i.e. February to April 2020, amounting to EUR 195,000.

95. Considering the applicable regulations and the absences of the player, as well as the fines imposed, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the club is liable to pay to the player the amount of EUR 150,000 as outstanding remuneration.

96. Having stated the above, the Chamber turned to the issue of the amount of compensation payable to the player by the club in the case at stake. In doing so, 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.

97. Notwithstanding, the Chamber recalled that after his departure in March 2020, the player never returned to Turkey, nor engaged in any particular action which denoted his intention to continue to fulfil his obligations under the contract.

98. Accordingly, the DRC found that the player was not genuinely interested in continuing to render services to the club. Consequently, the DRC decided that the player is not entitled to any compensation for breach of contract.

iii. Compliance with monetary decisions

99. Finally, taking into account the applicable Regulations, 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.

100. 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 and for the maximum duration of three entire and consecutive registration periods.

101. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not pay the amounts due to the player within 45 days as from the moment in which the player communicates the relevant bank details to the club, provided that the decision is final and binding, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

102. The DRC recalled that the above-mentioned bans 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.

103. Lastly, the DRC concluded its deliberations by partially accepted both the club’s claim and the player’s counterclaim, and by rejecting any other requests for relief made by any of the parties.

d. Costs

104. 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.

105. 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.

IV.

IV. DECISIONDECISION OF THE OF THE DISPUTE RESOLUTION CHAMBERDISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant/Counter-Respondent, DENIZLISPOR KULÜBÜ DERNEGI, is partially accepted.

2. The counterclaim of the Respondent/Counter-Claimant, MODOU BARROW, is partially accepted.

3. The Claimant/Counter-Respondent has to pay to the Respondent/Counter-Claimant EUR 150,000 as outstanding remuneration.

4. Any further claims of any of the parties are rejected.

5. The Respondent/Counter-Claimant is directed to immediately and directly inform the Claimant/Counter-Respondent of the relevant bank account to which the latter must pay the due amount.

6. The Claimant/Counter-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).

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

 1.

The Claimant/Counter-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.

8. 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:

Fédération Internationale de Football Association

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

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