Labour Disputes
Texto da decisão
REF. FPSD-7015
Decision of the
Dispute Resolution Chamber
passed on 26 May 2023
regarding an employment-related dispute concerning
the player DENIS ALIBEC
BY:
Frans de Weger (The Netherlands), Chairperson
Roy Vermeer (The Netherlands), member
Mario Flores Chemor (Mexico), member
CLAIMANT / COUNTER-RESPONDENT:
DENIS ALIBEC, Romania
Represented by Dan Idita
RESPONDENT / COUNTER-CLAIMANT:
Kayserispor, Türkiye
Represented by Batu Mosturoglu
INTERVENING PARTY:
FCV Farul Constanta, Romania
pg. 2
REF. FPSD-7015
I. Facts of the case
1.
On 2 October 2020, the Romanian player, Denis Alibec (hereinafter: player) and the Turkish
club, Kayserispor (hereinafter: club) concluded an employment contract (hereinafter:
contract) valid as from 2 October 2020 until the end of the “season 2022/2023”.
2.
According to information contained in the Transfer Matching System (TMS), the sporting
season 2022/2023 in Türkiye ends on 30 June 2023.
3.
According to the contract, the club undertook to pay the player the following amounts:
- EUR 350,000 as “advance payment” on 5 October 2020;
- EUR 35,000 as monthly salary between October 2020 and July 2021 (10x);
- EUR 350,000 as “advance payment” on 5 October 2021;
- EUR 37,500 as monthly salary between August 2021 and May 2022 (10x);
- EUR 350,000 as “advance payment” on 5 October 2022;
- EUR 40,000 as monthly salary between August 2022 and May 2023 (10x).
4.
On 17 July 2021, the parties concluded an agreement “in order to reconstruct the financial
terms” (hereinafter: addendum) for the season 2021/2022.
5.
According to the addendum, the club undertook to pay the player the total amount of EUR
425,000 “for the season 2021-2022 and for the remaining payment of 2020-2021”, as follows:
- EUR 225,000 on 31 October 2021;
- EUR 30,000 on 30 November 2021;
- EUR 30,000 on 30 December 2021;
- EUR 20,000 on 30 January 2022;
- EUR 30,000 on 28 February 2022;
- EUR 30,000 on 30 March 2022;
- EUR 30,000 on 30 April 2022;
- EUR 30,000 on 30 May 2022.
pg. 3
REF. FPSD-7015
6.
The addendum reads as follows:
7.
On 16 July 2021, the player, the club and the Romanian club, CFR Cluj 1907 concluded an
agreement regarding the temporary transfer of the player to CFR Cluj 1907 (hereinafter:
loan agreement 1) for the duration of 16 July 2021 until 30 June 2022. According to the loan
agreement 1, no loan fee, apart from conditional payments, was payable by CFR Cluj 1907
to the club.
8.
According to information contained in the Transfer Matching System (TMS), CFR Cluj 1907
undertook to pay the player a total amount of EUR 370,000 as follows:
- EUR 47,833 as advance payment on 15 August 2021 ;
- EUR 47,833 as advance payment on 15 October 2021;
- EUR 47,833 as advance payment on 15 January 2022;
- EUR 226,500 in total, payable in 12 instalments between July 2021 and June 2022.
9.
On 28 January 2022, the player and CFR Cluj 1907 terminated their contract mutually.
10. On 28 January 2022, the player, the club and the Greek club, Atromitos Athens FC,
concluded an agreement regarding the temporary transfer of the player to Atromitos
Athens FC (hereinafter: loan agreement 2) for the duration of 28 January 2022 until 30 June
2022. According to the loan agreement 2, no loan fee was payable by Atromitos Athens FC
to the club.
11. According to information contained in the Transfer Matching System (TMS), Atromitos
Athens FC undertook to pay the player a total amount of EUR 74,798.04 in monthly
instalments.
pg. 4
REF. FPSD-7015
12. On 10 March 2022, the player put the club in default and requested payment of EUR
345,000, corresponding to the first 5 instalments of the addendum, within 15 days.
13. On 1 July 2022, the player terminated the contract with the club due to outstanding
remuneration of EUR 425,000.
14. On 14 July 2022, the player signed an employment contract with the Romanian club, Farul
Constanta valid as from 14 July 2022 until 30 June 2023, including total remuneration of
EUR 60,000.
II. Proceedings before FIFA
15. On 9 August 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
16. In his claim, the player requested payment of the following monies:
- EUR 425,000 as outstanding remuneration, plus 5% interest p.a. as of 1 July 2022;
- EUR 690,000 as compensation for breach of contract (residual value less
mitigation);
- “Additional compensation” of three monthly salaries, plus 5% interest p.a. as of 1
July 2022.
17. In his claim, the player argued that the addendum was signed taking into account the loan
agreed and that he therefore was entitled to the amounts agreed upon therein.
18. On account of the above, the player held that he had just cause to terminate the contract,
after he put the club in default, due to the outstanding remuneration of EUR 425,000.
b. Position of the club / counterclaim
19. In its reply, the club rejected the player’s a claim and lodged a counterclaim, requesting
payment of EUR 1,550,000 as residual value of the contract.
20. The club argued that it did not benefit from the player’s sporting services during the season
2021/2022 since he was on loan with CFR Cluj 1907 and Atromitos Athens FC.
21. On account of the above, the club maintained that it had no obligation to pay the player’s
salaries during his time on loan as the loan agreements do no establish any obligation of
the club. According to the club it is “general practice” that the club who takes the player on
loan pays the salaries, unless agreed otherwise. In this regard, the club referred to art. 10
RSTP.
pg. 5
REF. FPSD-7015
22. In this framework, the club held that it expected the player to return to the club as of 1 July
2022, however he remained absent without authorization and terminated the contract
without just cause.
23. According to the club, it provided the player with the details of the pre-season training
camp for 2022/2023, which started on 30 June 2022. In this regard, the club submitted
reports from the coaching team stating that the player missed the four training sessions
on 30 June 2022 and 1 July 2022.
24. As there was no outstanding remuneration, the club held that there was no just cause to
terminate the contract on 1 July 2022.
c. Reply of the player to the counterclaim
25. In his reply to the counterclaim, the player rejected the club’s claim.
26. The player argued that the addendum concluded on 17 July 2021 was agreed upon taking
into account the loan to CFR Cluj 1907, as the loan agreement was already signed on 16
July 2021 and the addendum refers to the loan.
27. On account of the above, the player held being entitled to the amounts established in the
addendum as it also referred to outstanding amounts from the previous season.
28. In this context, the player reiterated his position and held that he had just cause to
terminate the contract due to the outstanding payments, after having put the club in
default.
d. Position of the new club
29. The new club failed to submit its comments to the matter at hand.
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REF. FPSD-7015
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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 9 August 2022 and submitted
for decision on 26 May 2023. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
31. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (March 2023 edition), 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 player and a club.
32. 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 Players (March 2023 edition), and
considering that the present claim was lodged on 9 August 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
33. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
34. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
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REF. FPSD-7015
i. Main legal discussion and considerations
35. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute that the player
terminated the contract with just cause. In this regard, the DRC acknowledged the claim of
the player against the club for breach of contract as well as the counterclaim of the club
against the player.
36. In this framework, the Chamber acknowledged that its task was to decide if the player had
indeed just cause to terminate the contract on 1 July 2022 or not, and to decide on the
consequences thereof.
37. The members of the Chamber duly noted that the player argued having terminated the
contract with just cause due to outstanding remuneration while he was on loan with a
different club
38. The DRC also took notice of the Respondent’s argumentation that no salaries were due to
the player since he was on loan with two different club during the season in question. On
account of the above, the club maintained that the player had no just cause to terminate
the contract.
39. Taking into account the circumstances above and since the player was indeed on loan with
a third club during the relevant season, the Chamber recalled that the regulations establish
in art. 10 the following principle:
“During the agreed duration of the loan, the contractual obligations between the professional
and the former club shall be suspended unless otherwise agreed in writing.”
40. On account of the above, the members of the Chamber started to analzye main question
if the parties agreed upon further salary payments during the loan of the player when
signing the addendum on 17 July 2022.
41. In doing so, the DRC noted that the addendum was signed after the loan agreement, that
it makes reference to outstanding remuneration of the previous year and that it literally
mentions the loan to CFR Cluj. On account of all those circumstances, the DRC concluded
that the aim of the addendum was indeed to establish further salary payments during the
loan.
42. Therefore the general assumption of art. 10 of the regulations was disproven and the
exception mentioned in said article applies in the matter at hand. The DRC concludued that
the player was entitled to the monies established in this addendum during the loans.
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REF. FPSD-7015
43. Therefore, the Chamber turned its attention to the claim of the player, who alleged having
not received his remuneration corresponding to EUR 345,000, corresponding to the first 5
instalments of the addendum. Furthermore, the DRC noted that the player has provided
written evidence of having put the Respondent in default on 10 March 2022, i.e. at least 15
days before unilaterally terminating the contract on 1 July 2022.
44. The members of the Chamber pointed out that in the case at hand the club bore the burden
of proving that it indeed complied with the financial terms of the contract concluded
between the parties, which it failed to do so.
45. Thus, the DRC concluded that the player had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations, on 1 July 2022.
46. On account of the above, the Chamber decided to reject the club’s counterclaim.
ii. Consequences
47. 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
Respondent.
48. 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 the amount of
EUR 425,000, corresponding to the instalments agreed upon in the addendum.
49. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. EUR
425,000.
50. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 1 July 2022 until the date of effective
payment.
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REF. FPSD-7015
51. Having stated the above, the Chamber turned to the calculation 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.
52. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment 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 Chamber
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
53. 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.
54. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 750,000 (i.e. EUR 350,000 as “advance payment” on 5
October 2022 and 10x EUR 40,000 as monthly salary between August 2022 and May 2023)
serves as the basis for the determination of the amount of compensation for breach of
contract.
55. 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.
pg. 10
REF. FPSD-7015
56. Indeed, the player found employment with the Romanian club, Farul Constanta. In
accordance with the pertinent employment contract, the player was entitled to a total
remuneration of EUR 60,000 between 14 July 2022 until 30 June 2023. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of EUR
60,000.
57. 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.
58. In this respect, the DRC decided to award the amount of additional compensation of three
times the monthly remuneration of the player. The Chamber reminded the parties that, as
per the last sentence of art. 17 par. 1 lit. ii) of the Regulations, the overall compensation
may never exceed the rest value of the prematurely terminated contract.
59. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR
750,000 to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
iii. Compliance with monetary decisions
60. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
61. 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.
62. 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. 24 par. 2, 4, and 7 of the Regulations.
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REF. FPSD-7015
63. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
64. 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. 24 par. 8 of
the Regulations.
d. Costs
65. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
66. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
67. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-7015
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, DENIS ALIBEC, is accepted.
2.
The Respondent / Counter-Claimant, Kayserispor, must pay to the Claimant / CounterRespondent the following amount(s):
- EUR 425,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2022 until
the date of effective payment;
- EUR 750,000 as compensation for breach of contract without just cause.
3.
The claim of the Respondent / Counter-Claimant is rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made 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 the ban shall
be of up to three entire and consecutive registration periods shall be banned from
registering any new players, either nationally or internationally, up until the due amount
is paid. The maximum duration of the ban shall be of up to 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 made by the
end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-7015
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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pg. 14