Dispute Resolution Chamber
Texto da decisão
REF 21-00146 (FPSD-681)
Decision of the
Dispute Resolution Chamber
passed on 1 July 2021
regarding an employment-related dispute concerning the player Ismail Aissati
COMPOSITION:
Clifford J. Hendel (USA) (France), Deputy Chairman
Tomislav Kasalo (Croatia), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Ismail Aissati, Netherlands
Represented by Ercan Sevdimbaş
RESPONDENT:
Denizlispor Kulubu Dernegi, Turkey
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I.
FACTS OF THE CASE
1.
On 17 July 2019, the Dutch player, Ismail Assati (hereinafter: Claimant), and the Turkish
club, Denizlispor Kulubu Dernegi (hereinafter: Respondent) signed an employment contract
(hereinafter: contract) valid as from 17 July 2019 to 31 May 2021.
2.
Pursuant to clause 4 of the contract, for the 2020 /2021 football season the Claimant was
entitled to a total net salary of EUR 467,500, payable in 10 instalments as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
3.
EUR 46,750 net on 31 August 2020;
EUR 46,750 net on 30 September 2020;
EUR 46,750 net on 31 October 2020;
EUR 46,750 net on 30 November 2020;
EUR 46,750 net on 31 December 2020;
EUR 46,750 net on 31 January 2021;
EUR 46,750 net on 28 February 2021;
EUR 46,750 net on 31 March 2021;
EUR 46,750 net on 30 April 2021;
EUR 46,750 net on 31 May 2021.
Additionally in terms of clause 5 of the contract, the Claimant was entitled to the following
benefits (quoted verbatim):
“Conditional Bonuses:
If the player plays 25 or above 25 legal ligue match in first eleven for the season of 20202021, the club will pay to Player 50.000.-EUR
If the team stays in Super League at the end of season 2020-2021 and is ranked in the top
five clubs, the player shall be paid 50.000.-EUR
Fringe Benefits:
The Club shall provide the player with an extra amount of 50.000- Turkish Liras for the
player's car rental, flight ticket purchase and house rental expenses in the season 20202021 as follow:
-
4.
TRY 25,000, on 01.09.2020
TRY 25,000, on 01.02.2021
By correspondence dated 14 December 2020, the Claimant put the Respondent in default
in payment of EUR 138,500 corresponding to outstanding salaries of September 2020 (EUR
45,000), October 2020 (EUR 46,750) and November 2020 (EUR 46,750), as well as payment
of TRY 15,000 relating to car rental, flight ticket and house rental expenses, setting a time
limit of 15 days for the Respondent to remedy the default.
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5.
According to the Claimant, on 22 December 2020, the Respondent sent a correspondence
to the Claimant informing the Claimant that according to its records, the Claimant’s
remaining receivables were EUR 93,500 and TRY 15,000, further confirming that the said
amounts would be paid to the Claimant.
6.
On 23 December 2020, the Claimant replied to the correspondence of the Respondent and
stated that the requested amounts as detailed in his default notice are correct.
7.
On 24 December 2020, the Respondent sent a further correspondence to the Claimant,
stating the following:
“As you know, the pandemic affected all the clubs in the world. Our club has also faced
heavy difficulties. In this regard, our board of management has decided to make a discount
from the receivables of the player after we had made a negotiation with Mr. Assati. We
would like to indicate that lots of players accepted to make a discount with their own free
will.”
8.
On 25 December 2020, the Claimant replied to the correspondence of the Respondent
dated 24 December 2020, stipulating the following:
“the Club made an offer including a 20% discount in the 2019 /2020 football season
contractual payments via the plea dated 22.08.2020. As response, the Player rejected the
offer of the Club with the response dated 24.08.2020 because of the malicious proposal
which is not for 'interrupted period'. In this response, the Player also stated that "the
proposal of "20% discount on all receivables for the 2019/2020 season" in the notification
of the Club is a malicious proposal prepared for unfair profits. It is also clear that a unilateral
decision to be taken in this regard will also be unlawful and against advisory decisions."
Also, this offer of the Club was for the 2019 /2020 football season but the amounts
requested by the Player with the notification dated 14.12.2020 was for the receivables of
2020/2021 football season. Therefore, the 42.500,-EURO pandemic discount declared at
the counter notification of the Club dated 24.12.2020 is legally ineffective and totally void.”
9.
On 25 December 2020, the Claimant acknowledged a payment made by the Respondent
in the amount of EUR 2,500 and indicated that the said amount would be deducted from
the requested amount as specified in his default notice, dated 14 December 2020.
10.
According to the Claimant, the Respondent failed to make any attempt to amicably settle
the matter neither did it comply with his default notice, as a result, the Claimant - on 30
December 2020 - unilaterally terminated his contract with the Respondent with just cause
and with immediate effect.
11.
Subsequently, the Claimant and the Turkish club, Adana Demirspor signed an employment
contract valid as from 8 January 2021 to 31 May 2022 entitling him inter alia to a total
remuneration of EUR 225,000 for the season 2020/2021, payable in 5 equal monthly
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instalments of EUR 45,000 each by the 10th day of the month between March and July
2021.
12.
On 8 March 2021, the Claimant and Adana Demirspor mutually terminated the
aforementioned contract. Such mutual termination agreement established that no financial
dues were payable between the Claimant and Adana Demirspor.
II.
PROCEEDINGS BEFORE FIFA
13.
On 26 January 2021, the Claimant filed a claim against the Respondent before the FIFA
Dispute Resolution Chamber. The Respondent was subsequently invited to file its position
by the FIFA general secretariat, and did so.
14.
Before the FIFA general secretariat had forwarded the Respondent’s reply to the Claimant,
on 10 March 2021 the Claimant amended his petition, indicating that during the course of
the investigation, a new event arose, which has a direct impact on the matter in question.
15.
In this context, the Claimant stipulated that on 8 March 2021, the Claimant concluded a
mutual termination agreement with his new club, Adana Demirspor to “bilaterally terminate
all the contractual relationship between them”. Consequently…”the Player will not receive
any payment from the new Third Club after the termination of the contract with just cause
with the Respondent Club.”
16.
Accordingly, the Claimant indicated that the requested amount as compensation for breach
of contract in this matter must be amended as the Claimant do not have a new contract
and therefore did not mitigate his damages and would like to amend it to the total amount
of EUR 233,750 and TRY 25,000 as the said compensation relates to the “loss of the
Claimant in connection with the early termination.”
a.
17.
The claim of the Claimant
The requests for relief of the Claimant, as amended on 10 March 2021, were the following:
(a)
that the Respondent pay the overdue and unpaid amount of EUR 182,750
[(outstanding salaries of September 2020 (EUR 45,000), October 2020 (EUR 46,750)
and November 2020 (EUR 46,750) and TRY 15,000 (relating to car rental, flight
ticket and house rental expenses) less EUR 2,500 (amount paid by the Respondent)
plus 5% interest p.a. from the respective due dates until the date of effective
payment;
(b)
that the FIFA DRC make a decision that the unilateral termination of the contract
made by the Claimant is with just cause;
(c)
that the Respondent has to pay compensation of EUR 233,750 (residual value of
contract) and TRY 25,000 (due and payable on 2 February 2021) with 5% interest
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p.a. starting from the termination date of 30 December 2020 until the date of
effective payment;
(d)
to condemn the Respondent to pay additional compensation of EUR 140,250 plus
5% interest p.a. starting from 30 December 2020 until the date of effective
payment; and
(e)
that the judicial costs and the attorney fees of the Claimant be paid by the
Respondent.
b.
The reply of the Respondent to the original claim
18.
In its reply to the claim, the Respondent indicated that it rejected the Claimant’s request for
payment of his December 2020 salary, stating…”this amount cannot be claimed as salary
since the player terminated his contract on 30th December 2020. As the december salary
was not due on the termination date, we hereby reject to pay the december salary.”
19.
Additionally, the Respondent rejected the compensation claim of the Claimant, due to the
fact that the Claimant signed an employment contract with a new club, Adana Demirspor,
and did not suffer any damages, furthermore the terms of the new contract are better than
his previous contract as follows:
-
20.
EUR 225,000 guarantee salary
EUR 75,000 promotion bonus
EUR 5,000 accommodation fee.
The requests for relief of the Respondent, were the following:
1.
2.
3.
“Reject all the claims of the claimant,
Decide that the termination of the player is without just cause,
Reject the compensation claim of the player”
c.
Position of Respondent on the amended claim
21.
In reply to the amended claim of the Claimant, the Respondent indicated that the Claimant
found a new club after the termination of the contract, accordingly the value of that new
contract must be taken into account when calculating the compensation payable to the
Claimant “without considering whether it is terminated or not.”
22.
Furthermore, the Respondent stipulated that there is a general obligation on a player to
mitigate his damages, which the Claimant achieved but chose to terminate his new contract
out of “his own free will”.
23.
The Respondent rejected the compensation claim of the Claimant and requested that the
FIFA DRC reject all the claims of the Claimant.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
24.
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 26 January 2021 and presented
for decision on 1 July 2021. Taking into account the wording of art. 21 of the January
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.
25.
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 Dutch player and
a Turkish club.
26.
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 26 January 2021, the January 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
27.
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.
28.
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.
29.
Merits of the dispute
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
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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
30.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the on 17 July 2019, the Claimant and the Respondent
concluded an employment contract valid as from 17 July 2019 until 31 May 2021.
31.
The DRC observed that the Claimant lodged a claim in front of FIFA against the Respondent,
asserting that the Respondent had not fulfilled its contractual obligations towards him.
More specifically, the Claimant indicated that the Respondent had failed to pay his salaries
for the months of September to November 2020, which were still outstanding at date of
termination of the contract, i.e. 30 December 2020.
32.
In this context, the Chamber acknowledged that its task was to determine whether the
contract was terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
33.
The members of the Chamber noted that the Respondent in its reply to the claim argued
that the December 2020 salary as claimed is not payable due to the termination date
occurring prior to the salary due date and furthermore that it rejected the compensation
claim indicating that the Claimant did not suffer any damages, as the new contract which
the Claimant concluded was of a higher value.
34.
The DRC considered the arguments raised by the Respondent and did not deem it valid
reasons for non-payment of the monies claimed by the Claimant. In other words, the
reasons brought forward by the Respondent in its defence do not exempt the Respondent
from its obligation to fulfil its contractual obligations towards the Claimant.
35.
As a result of the foregoing, the members of the Chamber came to the conclusion that
arguments of the Respondent cannot be upheld.
36.
Following the aforementioned line of reasoning, the members of the Chamber concluded
that the Respondent was in arrears of its financial obligations for a significant period of time
and that as a result, the termination of the contract by the Claimant on 30 December 2020
was made with just cause, and that the Respondent is to be held liable for the consequences
thereof. The DRC was furthermore comforted in its decision in consideration of the clear
contents of art. 14bis of the Regulations, moreover due to the fact that the Claimant had
correctly put the Respondent in default of payment of more than two salaries, granting the
latter with a deadline of 15 days to cure its breach, to no avail, having subsequently
terminated the contract on the 16th day following the cited default notice.
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ii. Consequences
37.
In view of all the above, the Chamber decided that the Claimant is entitled to outstanding
remuneration and compensation for breach of contract.
38.
Having stated the above, the members of the Chamber concurred that the Respondent
must fulfil its obligations in accordance with the general legal principle of “pacta
sunt servanda”.
39.
Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration, in the amount of EUR 182,750 and TRY 15,000,
corresponding to:
(a)
(b)
(c)
(d)
(e)
EUR 45,000 – salary due on 30 September 2020;
EUR 46,750 – salary due on 31 October 2020;
EUR 46,750 – salary due on 30 November 2020;
EUR 46,750 – salary due on 31 December 2020;
TRY 15,000 – (relating to car rental, flight ticket and house rental expenses) due on 1
September 2020.
40.
Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts
from the respective due dates until the date of effective payment.
41.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
42.
In this context, the Chamber outlined that, in accordance with the said 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 Claimant 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.
43.
In application of the relevant provision, the Chamber held that it first had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties
had beforehand agreed upon a 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.
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44.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of
the employment contract on 30 December 2020, the contract would run for another 5
months (i.e. the period between January and May 2021).
45.
Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by the
Claimant with just cause until the regular expiry of the contract amounts to EUR 233,750
plus TRY 25,000 and that such amount shall serve as the basis for the final determination
of the amount of compensation for breach of contract.
46.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant informed FIFA
that he had signed a new contract with the Turkish club, Adana Demirspor valid as from 8
January 2021 to 31 May 2022. According to the said contract, he was entitled to inter alia
to a total remuneration of EUR 225,000 for the season 2020/2021, payable in 5 equal
monthly instalments of EUR 45,000 each by the 10th day of the month between March and
July 2021.
47.
On account of the above, the DRC decided that only the February 2021 monthly salary
(which was payable by 10 March 2021) in respect of the aforesaid contract would be taken
into account in mitigation, therefore the salary earned by the Claimant until 8 March 2021
amounts to EUR 45,000. The Chamber recalled, while making no assessment on the
particularities of the termination agreement at hand, that the player duly performed his
work for the corresponding period with Adana Demirspor and cannot waive any
remuneration in this respect.
48.
Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player – subject to him finding new employment by means of which
he could mitigate his damages - is entitled to an additional compensation of three
monthly salaries, subject to the early termination of the contract being due to overdue
payables. In case of egregious circumstances, the additional compensation may be
increased up to a maximum of six monthly salaries, whereby the overall compensation may
never exceed the residual value of the prematurely terminated contract.
49.
With the above in mind, the DRC confirmed, that the termination of the contract took place
on account of overdue payables and thus that the Claimant is entitled to additional
compensation of three salaries. However, the Chamber confirmed that the entire amount
of compensation (including any additional compensation) cannot exceed the residual value
of the original (terminated) contract as per the unequivocal wording of art. 17 par. 1 lit. ii)
of the Regulations. Accordingly, the DRC confirmed that the additional compensation to be
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awarded to the player is capped at EUR 45,000, the amount of which was hence granted
to the Claimant.
50.
In conclusion, the DRC decided that the Respondent is liable to pay the total amount of EUR
233,750 (EUR 233,750 minus EUR 45,000 as mitigation plus EUR 45,000 as additional
compensation) plus TRY 25,000 to the Claimant as compensation for breach of contract
without just cause, which is considered by the DRC, by way of a majority decision, to be a
reasonable and justified amount as compensation.
51.
Moreover and in line with the Chamber’s well-established jurisprudence, the DRC decided
to award 5% interest p.a. on the above amounts as from 26 January 2021, i.e. date of
claim.
52.
Furthermore, the Chamber rejected any claim for legal expenses and procedural
compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence in this regard.
53.
The Chamber concluded its deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
iii. Compliance with monetary decisions
54.
Finally, the Chamber referred to par. 1 lit. 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.
55.
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.
56.
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.
57.
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.
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58.
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
59.
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.
60.
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.
61.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Ismail Aissati, is partially accepted.
2.
The Respondent, Denizlispor Kulubu Dernegi, has to pay to the Claimant, the following
amounts:
-
EUR 182,750 and TRY 15,000 as outstanding remuneration plus 5% interest p.a. as
from the respective due dates until the date of effective payment, as follows:
TRY 15,000 plus 5% interest p.a. as from 2 September 2020;
EUR 42,500 plus 5% interest p.a. as from 1 October 2020;
EUR 46,750 plus 5% interest p.a. as from 1 November 2020;
EUR 46,750 plus 5% interest p.a. as from 1 December 2020;
EUR 46,750 plus 5% interest p.a. as from 1 January 2021.
EUR 233,750 and TRY 25,000 as compensation for breach of contract, plus 5% interest
p.a. as from 26 January 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
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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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