Labour Disputes
Texto da decisão
REF FPSD-2027
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Okan Aydin
BY:
Frans de Weger (the Netherlands), Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Stefano Sartori (Italy) member
CLAIMANT / COUNTER-RESPONDENT:
Okan Aydin, Germany
Represented by Mr Nils Baumgarten
RESPONDENT / COUNTER-CLAIMANT:
Jiangxi Liansheng FC, China PR
Represented by Mr Bing Zhang and Ms Kiera Zhuang
INTERVENING PARTY:
FC Wacker Innsbruck, Austria
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REF FPSD-2027
I.
Facts of the case
1.
On 1 September 2020, the German player, Okan Aydin (hereinafter: the player or the
Claimant / Counter-Respondent) and the Chinese club, Jiangxi Liansheng FC (hereinafter: the
club or the Respondent / Counter-Claimant), concluded an employment contract (hereinafter:
the contract), valid as from 1 September 2020 until 31 August 2022.
2.
In accordance with clause 7 of the contract, the club undertook to pay to the player, inter
alia, a fixed monthly salary of EUR 22,500 net, which was payable by the 15th day of the
following month.
3.
Clause 1.2 of the contract reads as follows: “If until 28 September 2020, [the player] cannot
arrive in mainland China, this contract shall be invalid”.
4.
Clause 1.3 of the contract stipulates the following: “If [the player] cannot obtain the work
visa of China, this Contract shall be invalid ([the player and the club] shall cooperate to get
the visa)”.
5.
Clause 10.3 (2) of the contract reads as follows: “If [the club] is behind in payment of salary
and bonuses to [the player] for over two months, in such case [the club] is obliged to pay all
the remaining salary”.
6.
On 12 October 2020, the club provided the player with an electronic invitation letter, allegedly
required for the player to apply for a visa in China.
7.
By means of its letter dated 21 November 2020 -delivered to the club on 27 November 2020
via DHL- the player put the club in default of payment concerning the salaries of September
and October 2020 and requested the club to provide him with the necessary documentation
to travel to China in order for him to start rendering his services for the club, stating that the
player would be ready to do so within the following 48 hours upon receipt of the necessary
travel documentation and urging the club to arrange it so that the player could start training
by no later than 28 November 2020; however, to no avail.
8.
By means of its correspondence dated 16 December 2020, the player referred to the content
of his previous letter and requested the club to proceed with the payment of the salaries of
September, October and November 2020, thereby granting the club a deadline until 1 January
2021 to do so; however, to no avail.
9.
On 4 January 2021, the player unilaterally terminated the contract in writing, ex. art. 14bis of
the RSTP and clause 10.3.2 of the contract.
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10. On 11 January 2021, the player signed a new contract with the Austrian club, FC Wacker
Innsbruck (hereinafter: the new club), valid as from the date of its signature until 30 June
2022, whereby the new club undertook to pay to the player, inter alia, a monthly salary of
EUR 7,000 gross during the season 2020/2021 and of EUR 7,500 gross during the season
2021/2022.
11. In the transfer instruction concerning the transfer of the player to the new club (displayed in
TMS), there is a document signed by the club, whereby the latter stated that the contractual
relationship entered into between the Claimant / Counter-Respondent and the Respondent /
Counter-Claimant “has been terminated on 30th September 2020” (document in TMS).
II. Proceedings before FIFA
a. Position of the Claimant / Counter-Respondent
12. On 13 March 2021, the player lodged a claim against the club before FIFA. In his claim, the
player explained that, on 30 September 2020, the Respondent / Counter-Claimant sent a
proposal to the player titled “Supplemental Agreement”, which stipulated, inter alia, the
following: “Due to the influence of the disease of new corona virus, [the player] cannot arrive
in China on time. [The club] and [the player] agree that: [the contract] shall come into effect
on the day when [the player] actually arrive in Mainland China. Additional to this Agreement,
[the player] will get a 10,000 EUR net compensation payment till he arrive mainland China.
September 2020 – 10,000 EUR (tax paid by club) ; October 2020 – 10,000 EUR (tax paid by
club); November 2020 – 10,000 EUR (tax paid by club); December 2020 – 10,000 EUR (tax
paid by club) […] [The player] will get the difference of his Salary amount when he arrive
mainland China”; however, the player argued that he rejected the said proposal.
13. In his request for relief, the player requests to be awarded outstanding remuneration and
compensation for breach of contract in the total amount of EUR 540,000, plus 5% interest
p.a. on the outstanding amounts claimed only, as from their respective due dates until the
date of effective payment, broken down by the player as follows:
Outstanding remuneration: EUR 93,000
- EUR 22,500 corresponding to the salary of September 2020;
- EUR 22,500 corresponding to the salary of October 2020;
- EUR 22,500 corresponding to the salary of November 2020;
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- EUR 22,500 corresponding to the salary of December 2020;
- EUR 3,000 corresponding to the pro-rata-calculated salary of January 2021, i.e. as from 1
until 4 January 2021.
Compensation for breach of contract: EUR 447,000
- EUR 19,500 corresponding to the pro-rata-calculated salary of January 2021, i.e. as from 5
until 31 January 2021;
- EUR 427,500 corresponding to the residual value of the contract, i.e. as from February 2021
until August 2022 (22,500*19 = 427,500).
14. In his claim, the player argued that, despite having concluded a valid employment contract
and the player having sent several default notices to the club, the latter failed to provide him
with the visa and work permit for the player to travel from Germany to China and start
rendering his services.
15. In this context the player explained that he remained awaiting instructions from the club
during the months of September, October and November 2020, months during which the
club failed to pay his salaries without granting any explanation to the player. In addition, the
player argued that, during the said period, the club did not even provide him with training
instructions or any further indication whatsoever, which led the player to design his own
training plan.
16. Thus, invoking the application of clause 10.3 (2) of the contract, the player argued that,
insofar as the club was in default of payment of more than 2 monthly salaries, he is not only
entitled to receive the outstanding moneys due to him, but also the residual value of the
contract as compensation. In this context, the Claimant / Counter-Respondent argued that
the compensation due shall not be subject to any mitigation, considering the wording of the
said clause, which states that, in case of termination of the contract due to more than 2
monthly salaries being overdue, the player shall be entitled to all salaries due as per the
contract. In this regard, the player held that clause 10.3 (2) of the contract shall prevail over
the general provision contained in art 17 RSTP, insofar as the Respondent / Counter-Claimant
itself inserted clause 10.3 (2) in its “standard employment contract” and it would be,
therefore, unfair and to the detriment of the player if the said clause would not apply as
drafted.
17. However, should the Chamber consider that the compensation due is subject to mitigation,
the player explained that, as per the new contract, he is entitled to a monthly salary of EUR
7,000 net, which, according to the player, results in a monthly net income of EUR 4,038.
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b. Reply and counterclaim of the Respondent / Counter-Claimant
18. In Its statement of defence and counterclaim, the club firstly rejected all the argumentation
of the player.
19. In the first place, the club argued that the parties did conclude the so-called Supplemental
Agreement. In this regard, the club provides a copy of the said Supplemental Agreement,
allegedly signed by both parties. In this respect, the club argued that the version of the
Supplemental Agreement provided by the player is forged. In particular, the club assured that
the version provided by the player contains the entitlement of the latter to a compensation
of EUR 10,000 per month of delay of commencement of the contract, but that the said clause
was fabricated and inserted by the player. As proof of the aforesaid, the club argued that the
said clause was only drafted in English, whereas the rest of the clauses -not only of the
Supplemental Agreement but also of the contract- were drafted in both: English and Chinese.
20. Furthermore, the club maintained that, the player “did not apply for the appropriate visa
necessary to enter mainland China as he did not require an invitation letter from the club
within the given time frame”.
21. In this regard, the Respondent / Counter-Claimant stated that, on 12 October 2020, it
provided the player with an electronic invitation letter, which the player required to apply for
a visa to China during the pandemic of COVID-19, process with which the player never
started. In this respect, the Respondent / Counter-Claimant explained that, had the Claimant
/ Counter-Respondent have applied to enter China through the aforementioned process, he
would have been able to legally stay in China during 90 days, period during which the parties
would have had sufficient time to apply for the corresponding work visa and complete the
player’s registration within the Chinese FA.
22. Furthermore, the club argued that, in accordance with clauses 1.2 and 1.3 of the contract,
the player should have arrived in China by 28 September 2020 and cooperate with the club
to obtain the corresponding visa, which the player did not.
23. In line with the above-mentioned considerations, the Respondent / Counter-Claimant
maintained that the contract was never executed, since the start of the contract was subject
to the player arriving in China -as per the Supplemental Agreement and the contract- which
did not occur.
24. What is more, the club argued that on the very same date on which the player unilaterally
terminated the contract, i.e. 4 January 2021, the player signed a contract with his new club.
The Respondent / Counter-Claimant wished to emphasize that, at that moment in time, the
club was still expecting the arrival of the player in China.
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25. In this context, the Respondent / Counter-Claimant stressed that “there is no doubt that it is
the Claimant’s personal decision to not entering China leading the Employment Contract null
and void, despite the Claimant tried to justify his behaviour by sending emails and making
inconsistent statements in November and December 2020 declaring that the Respondent was
in default for withholding necessary documentation”.
26. In this context, the club underscored that “the Player is unilaterally liable to the invalidity and
termination of the Employment Contract and is misinterpreting the situation before FIFA DRC
in order to getting unjust monetary benefits”.
27. In its request for relief, the club requested to be awarded compensation for breach of contract
in the amount of EUR 343,000, broken down by the club as follows:
-
EUR 93,000 corresponding to the salaries due as from September 2020 until 4 January
2021, calculated by the club on a pro-rata basis (22,500*4) + ((22,500/30)*4 =
93,000), plus 5% interest p.a. as from the respective due dates, i.e. as from the 15th
day of the following month to its accrual;
-
EUR 250,000 corresponding to the transfer compensation paid by the club to the
player’s former club (cf. decision passed by the Single Judge of the Players’ Status
Committee on 23 February 2021, FPSD-707), plus 5% interest p.a. as from 5 January
2021
28. In addition to the above, the club requested to be awarded “final costs of the proceedings of
CHF 15,000 to FIFA” and to order the player “to pay the entire amount of the procedural
costs of these proceedings”.
c. Reply of the Claimant / Counter-Respondent to the counterclaim of the
Respondent / Counter-Claimant
29. In his reply to the counterclaim, the player firstly referred to the document uploaded by the
club into TMS, where the club declares that the contract has ended on 30 September 2020.
In this respect, the player argued that the contract does not refer to any scenario by virtue of
which the contract could be ended on the date of 30 September 2020 and the fact that the
player was not in China by 28 September 2020 could not -in any case- trigger the termination
of the contract.
30. In this respect, the player held that -due to the Covid-19 pandemic and the travel restrictions
that were applicable in September 2020- it was not possible for the player to travel to China
without a valid visa. What is more, the player argued that the club itself admitted that the
first time it approached to the player for the latter to obtain the necessary visa to enter China
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was on 12 October 2020, i.e. the player could not have possibly arrived in China by 28
September 2020 and, consequently, cannot be held liable for the said absence.
31. In this context, the player referred to art. 18 para. 4 of the RSTP and maintained that, in any
case, the validity of a contract cannot be made subject to the grant of the corresponding
work permit.
32. Moreover, the player challenged the argument of the club that the player acted negligently
when trying to obtain the working visa and held that he immediately began to obtain the
documents he was required to provide along with his visa application (including a police
clearance certificate, passport photos, passport, application documents, etc.) upon conclusion
of the employment contract of 1 September 2020. In this respect, the player held that he
even hired a specialized agency for visa matters called 1avisum, based in Berlin, on 2
November 2020 to professionally supervise the application process and that, already in
September 2020, the player submitted the so-called "working papers" in the form of a
curriculum vitae, passport copy and further documents to the club. However, the club failed
to provide the PU invitation, which was only provided by the latter on 12 October 2020,
which prevented the player from completing the application process before.
33. The player further explained that, among the necessary documentation to be provided to
obtain the visa (the player provides the information displayed at the website of the Chinese
embassy in Germany concerning the consular process for the issuance of a work visa) was a
document certifying proof of a medical examination.
34. In this context, the player states that, following the club’s invitation letter sent to the player
on 12 October, the player continued to work intensively to provide all the necessary
documents and, in particular, to undergo the said medical examination. Nevertheless,
continued the player, due to the Covid-19 pandemic, it was not possible to conduct such a
medical examination at “short notice”; which is why this medical examination only took place
on 2 November 2020.
35. The player held that he received the results of the medical examinations on 4 November 2020
and that, on that same date, he sent them to the aforesaid agency, which immediately sent
the results to the Chinese consulate.
36. The player explained that the Chinese consulate replied, via email, to his application on 5
November 2020, stating that, in order to apply for the working visa, he would need to have
a visa first. For this, the Chinese consulate required the following documents: certificate of
employment and declaration of eligibility.
37. On the same day, 5 November 2020, the player forwarded the above-mentioned email to the
club, requesting the latter to provide the said documents in order for the player to proceed
with the visa application.
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38. The player explained that the club did not reply thereto and failed to provide the necessary
documents and, consequently, on 23 November 2020 the player was informed by the Chinese
consulate that his application for the issuance of the visa was rejected, insofar as the necessary
documentation was not provided. The player argued that it was the club that should have
provided the said documents and, since it did not do so, it breached its obligations and is
solely responsible for the fact that the player was not granted a visa and, thus, could not and
was not allowed to enter China.
39. As to the Supplemental Agreement, the player rejects the argumentation of the club that the
version provided by the player is forged and assured that the parties exchanged several drafts
of the Supplemental Agreement and that it was the club that provided the version containing
a compensation in favor of the player, but the player refused to do so, since he had already
concluded a binding contract. In this respect, the player stressed that the Supplemental
Agreement provided by the club is forged and highlighter, once again, that he never signed
any such agreement. In this regard, the player stated that it would be completely absurd and
illogical for the player to sign that document, since it was solely for the benefit of the club.
40. In addition to the above, the player made the following remarks as to the version of the
Supplemental Agreement provided by the club: 1.) that it is not dated; 2.) that the quality of
the said document is of a much higher quality than the other documents (especially the
contract), which does not make sense, insofar as, had the player signed the said document
and sent it to China, quad non, it would not be of such quality, which leads to the conclusion
that it was fabricated by the club; 3.) that the alleged signature of the player (therein
contained) seems to have been stamped there and, to a layman, it is clear that it was not
signed but printed.
41. The player wished to highlight the incoherence of the club’s argumentation, since the latter
firstly argues that no contract was ever entered into since the player was not in China by 28
September 2020 and, thereafter, claims that a supplementary contract was concluded, which
is only necessary if the parties were contractually engaged. Also, should the contract have
become null because the player was not in China by 28 September 2020, why did the club
sent an invitation to the player on 12 October 2020?
42. What is more, the player held that it remained uncontested by the club that the club has not
paid the player any of the salaries agreed in the contract and has not even reacted to the
default notices sent by the player; conduct that allowed the player to unilaterally terminate
the contract with just cause on 4 January 2021.
43. The player further rejected the argument of the club that it entered into a new contract with
his new club on 4 January 2021 and held that the contractual relationship with his new club
only started on 11 January 2021. What is more, the player held that he only started
negotiations with new potential clubs following the termination of the contract on 4 January
2021 and that, fortunately, he found a new club short thereafter.
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44. Equally, the player stressed that his new club and him did not have any contact before the
day of the termination of the contract.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
45. 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 13 March 2021 and submitted for decision
on . Taking into account the wording of art. 34 of the October 2021 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.
46. 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 (August 2021 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 German player and
a Chinese club, with the intervention of an Austrian club.
47. 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 (August 2021 edition) and
considering that the present claim was lodged on 13 March 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
48. 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.
49. 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).
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c. Merits of the dispute
50. 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.
i. Main legal discussion and considerations
51. The foregoing having been established, the Chamber moved to the substance of the matter,
and recalled that, on his part, the player argues that the parties entered into a valid contract
on 1 September 2020 and that the club failed to comply with its obligations towards him. In
particular, the player refers to the condition precedent contained in clause 1.2 of the contract,
which states that “If until 28 September 2020, [the player] cannot arrive in mainland China,
this contract shall be invalid”. In this respect, the player argues that he undertook all the
necessary administrative steps to obtain the necessary visa to travel to China, but the club
failed to provide the necessary documentation.
52. As to clause 1.3 of the contract, which stipulates the following: “If [the player] cannot obtain
the work visa of China, this Contract shall be invalid ([the player and the club] shall cooperate
to get the visa)”; the player held that he did his best to obtain the required visa, but the club
failed to collaborate. In addition, the player referred to art. 18.4 of the RSTP and held that
the validity of a contract cannot be subject to the grant of a work permit, which would render
the said clause null and void.
53. The player further argues that the club not only failed to provide the necessary documentation
for the player to obtain a first visa to travel to China, where he would have needed to apply
for a second visa (the working visa), but also: 1.) failed to reply to the default notices sent by
the player; 2.) did not pay any single salary to the player; 3.) incoherently argues that no
contract existed (because the player was not in China by 28 September 2020) but sent an
invitation for the player to apply for the visa in October 2020, then uploaded a document
into TMS stating that the contract was terminated on 30 September 2020 and later argues
that the player signed a new contract with a new club in January 2021, even though the club
still expected the player to join the club; 4.) forged the document entitled “Supplemental
Agreement” which content only goes in detriment of the player’s rights.
54. On its part, the club argues that the player did not apply for the appropriate visa necessary to
enter mainland China as he did not require an invitation letter from the club within the given
time frame. Thus, after claiming that no contract was ever entered into between the parties,
the club held that -thereafter- the player decided, due to personal reasons, that to sign a new
contract with another club (his new club) would be more convenient.
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55. In this respect, the club argues that the player is solely liable for the the “invalidity and
termination” of the contract.
56. Having recalled the above, the DRC wished to make the following questions:
A.) Are clauses 1.2 and 1.3 of the contract valid? And, if so, did they apply?
57. Clause 1.2 of the contract is in principle valid, insofar as it displays a condition precedent for
the contract to be valid, which is an admitted practice: the player shall be in China by 28
September 2020 for the contract to be valid. In this respect, even though the said condition
was not complied with (the player actually never travelled to China), it must be noted that
the club -as acknowledged by itself- only sent the necessary invitation to the player for him
to apply for the corresponding visa, on 12 October 2020. Thereafter, during the month of
November 2020, the player undertook some administrative actions in order to obtain the visa.
58. In view of the above, the Chamber determined that, since both parties decided to disregard
the content of clause 1.2 of the contract and proceeded as if the said condition precedent
was non-existent, both parties undertaking actions for the player to obtain the necessary visa
after 28 September 2020, the DRC determined that, by virtue of the stoppel doctrine, neither
party could invoke clause 1.2 of the contract in order for the contractual relationship to be
considered as never entered into.
59. Hence, albeit valid, the DRC concluded that the parties tacitly decided clause 1.2 of the
contract not to apply to their contractual relationship.
60. In connection with the obtention of the visa, it seems -from the documentation on file- that
the club failed to provide the player with the necessary documents, despite the player having
urged the club to do son on 5 November 2020; reason why, on 23 November 2020, the
player was informed by the Chinese consulate that his application for the issuance of the visa
was rejected.
61. In view of the above, the DRC determined that the player was indeed interested in the
obtention of the corresponding visa and its non-grant was a consequence of the club’s
inaction, for which the player cannot be deemed liable.
62. As to clause 1.3 of the contract, since it directly contravenes art. 18.4 of the RSTP, which
states that no contract can be made subject to the grant of a work permit, the Chamber
decided that the said clause shall be considered null and void.
63. Thus, in the absence of an applicable condition precedent, the DRC concluded that the
contractual relationship entered into between the parties shall be deemed as having started
on 1 September 2020, ex. clause 1 of the contract.
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B.) Did the parties conclude the Supplemental Agreement? If so, which version thereof: the
one provided by the player (unsigned) or the one provided by the club?
64. The conclusion of the so-called Supplemental Agreement being disputed by the player, the
FIFA general secretariat requested the club to provide the original of the Supplemental
Agreement. The document provided by the club was not an original document, but a mere
copy. Thus, the club carrying the burden of the proof concerning the validity of the conclusion
of the said agreement, ex. art. 15.3 of the Procedural Rules, and failing to do so, the DRC
determined that the argumentation of the club in this respect needs to be rejected. Hence,
the Chamber determined that the parties never entered into any such agreement.
C.) Did the player terminate the contract with just cause on 4 January 2021?
65. Having established that the contract started on 1 September 2020, it must be noted that in
remained undisputed that the club did not pay any salary of the player, despite the latter
having put the club in default of payment on several occasion (21 November and 16
December 2020), the Chamber decided that the player terminated the contract with just
cause ex. art. 14bis RSTP on 4 January 2021, since -at that moment in time- more than 2
monthly salaries were outstanding and the player, via his second default notice, had granted
the club more than 15 days to remedy the default.
66. As a final remark, the Chamber wished to underscore that, despite the lack of clarity as to
the actions undertaken by the parties during the month of September 2020 in connection
with the obtention of the visa, the player undertook several actions to obtain it following the
club’s invitation of 12 October 2020, whereas it seems that the club lost its interest in the
player (did not reply to the default notices of the player), then argued that the contract was
never executed and then that the termination of the contract was the fault of the player,
since he acted negligently when obtaining the visa, and also uploading a document into TMS
stating that the contract terminated on 30 September 2020.
67. In view of the foregoing and the above-mentioned reasoning, the Chamber determined that
the contract was concluded and terminated with just cause by the player on 4 January 2021.
ii. Consequences
68. 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 /
Counter-Claimant.
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69. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, is equivalent to EUR 93,000,
corresponding to the salaries due as from September 2020 until 4 January 2021.
70. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent / Counter-Claimant is liable to pay to the Claimant
/ Counter-Respondent the amounts which were outstanding under the contract at the
moment of the termination, i.e. EUR 93,000.
71. In addition, taking into consideration the Claimant / Counter-Respondent’s request as well as
the constant practice of the Chamber in this regard, the latter decided to award the Claimant
/ Counter-Respondent interest at the rate of 5% p.a. on the outstanding amounts as from
the respective due dates (15th day of the following month) until the date of effective payment.
72. 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.
73. 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.
74. 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.
75. 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 447,000 (i.e. the residual value of the contract: as from 5 January
2021 until 31 August 2022) serves as the basis for the determination of the amount of
compensation for breach of contract.
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76. 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.
77. 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.
78. Indeed, the player found employment with FC Wacker Innsbruck. In accordance with the
pertinent employment contract, the player was entitled to approximately EUR 7,000 gross per
month. Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of EUR 126,000, that is a salary of EUR 7,000 payable as from January 2021 until
June 2022 (18 salaries of EUR 7,000 each).
79. 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.
80. In this respect, the DRC decided to award the amount of additional compensation of USD
67,500, i.e. three times the monthly remuneration of the player.
81. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR 388,500
to the player (i.e. EUR 447,000 minus 126,000 plus 67,500), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
82. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 13 March 2021, i.e. the date on which the claim of the Claimant
/ Counter-Respondent was lodged, until the date of effective payment.
iii. Compliance with monetary decisions
83. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
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REF FPSD-2027
84. 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.
85. The overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
86. Therefore, bearing in mind the above, the DRC decided that the Respondent / CounterClaimant must pay the full amount due (including all applicable interest) to the Claimant /
Counter-Respondent within 45 days of notification of the decision, failing which, at the
request of the Claimant / Counter-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 immediately effective on the Respondent / CounterClaimant in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
87. The Respondent / Counter-Claimant shall make full payment (including all applicable interest)
to the bank account provided by the Claimant / Counter-Respondent in the Bank Account
Registration Form, which is attached to the present decision.
88. 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
89. 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.
90. 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.
91. 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-2027
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, Okan Aydin, is partially accepted.
2.
The Respondent / Counter-Claimant, Jiangxi Liansheng FC, has to pay to the Claimant /
Counter-Respondent, the following amounts:
-
EUR 93,000 as outstanding remuneration, plus 5% interest p.a., calculated as
follows:
o On the amount of EUR 22,500, as from 16 October 2020 until the date of
effective payment;
o On the amount of EUR 22,500, as from 16 November 2020 until the date of
effective payment;
o On the amount of EUR 22,500, as from 16 December 2020 until the date of
effective payment;
o On the amount of EUR 22,500, as from 16 January 2021 until the date of effective
payment;
o On the amount of EUR 3,000, as from 16 February 2021 until the date of effective
payment.
-
EUR 388,500 as compensation for breach of contract, plus 5% interest p.a. as from
13 March 2021 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24bis 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 / Counter-Claimant shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid. The maximum
duration the ban shall be of three entire and consecutive registration periods.
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REF FPSD-2027
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.
7. The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on
the Status and Transfer of Players.
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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