Labour Disputes
Texto da decisão
REF FPSD-2609
Decision of the
Dispute Resolution Chamber
passed on 12 August 2021
regarding an employment-related dispute concerning the player Marvin Dirk Balalorz
COMPOSITION:
Geoff Thompson (England), Chairman
Tomislav Kasalo (Croatia), member
MD Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Marvin Dirk Balalorz, Germany
Represented by Mr Sami Dinc
RESPONDENT:
Denizlispor Kulübü Derneği, Turkey
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REF FPSD-2609
I.
FACTS OF THE CASE
1.
On 17 August 2020, the German player, Mr Marvin Dirk Balalorz (hereinafter: the player or
the Claimant), and the Turkish club, Denizlispor Kulübü Derneği (hereinafter: the club or
the Respondent), signed an employment contract valid as from the date of signature until
31 May 2022 (hereinafter: the employment contract).
2.
In accordance with clause 3 of the employment contract, the club undertook to pay the
player the following remuneration:
a. For the 2020/2021 season: an advance payment of EUR 120,000 on 17 August 2020,
plus the total of EUR 365,000 as guaranteed net season wage, payable as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
EUR 55,000 net on 30 September 2020;
EUR 38,750 net on 31 October 2020;
EUR 38,750 net on 30 November 2020;
EUR 38,750 net on 31 December 2020;
EUR 38,750 net on 31 January 2021;
EUR 38,750 net on 28 February 2021;
EUR 38,750 net on 31 March 2021;
EUR 38,750 net on 30 April 2021; and
EUR 38,750 net on 31 May 2021.
b. For the 2021/2022 season: the total of EUR 425,000 as guaranteed net season wage,
payable as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
EUR 42,500 net on 31 August 2021;
EUR 42,500 net on 30 September 2021;
EUR 42,500 net on 31 October 2021;
EUR 42,500 net on 30 November 2021;
EUR 42,500 net on 31 December 2021;
EUR 42,500 net on 31 January 2022;
EUR 42,500 net on 28 February 2022;
EUR 42,500 net on 31 March 2022;
EUR 42,500 net on 30 April 2022; and
EUR 42,500 net on 31 May 2022.
3.
On 3 May 2021, the player put the club in default and granted it with a 15 days’ deadline
in order to proceed the payment of EUR 155,000 net, corresponding to his salaries from
January to April 2021, to no avail.
4.
On 20 May 2021, the player notified the club the termination of the employment contract
due to outstanding payments. A copy of the termination notice was sent to the Turkish
Football Federation (TFF) for further assessment.
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5.
On 31 May 2021, the player concluded an employment agreement with the German club,
MSV Duisburg GmbH Co. KGaA, valid as from 1 July 2021 until 30 June 2024 (hereinafter:
MSV Duisburg). Accordingly, the player is entitled to receive a monthly remuneration of
EUR 16,000 (i.e. EUR 9,866.47 net).
II.
PROCEEDINGS BEFORE FIFA
6.
On 24 May 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the player
7.
In his claim, the player indicated that, despite of fulfilling his contractual duties, the club
failed to deliver a substantial part of his remuneration. In this respect, the player referred to
the notices sent on 3 and 20 May 2021 and claimed that he terminated the employment
contract with just cause, in line with art. 14bis of the Regulations on the Status and Transfer
of Players (RSTP) as well as with the jurisprudence of the Court of Arbitration for Sport
(CAS).
8.
Subsequently, the player referred to art. 17 of the FIFA RSTP and requested to be awarded
the following amounts:
a. EUR 155,000 net as outstanding remuneration, broken down as follows:
(i)
(ii)
(iii)
(iv)
EUR 38,750 net plus 5% interest p.a. as from 31 January 2021;
EUR 38,750 net plus 5% interest p.a. as from 28 February 2021;
EUR 38,750 net plus 5% interest p.a. as from 31 March 2021; and
EUR 38,750 net plus 5% interest p.a. as from 30 April 2021.
b. EUR 463,750 net as compensation for breach of contract, corresponding to the residual
value of the employment contract (i.e. May 2021 and the whole 2021/2022 season)
plus interest as from the date of the termination; and
c. EUR 255,000 net as additional compensation (i.e. six salaries), plus interest as from the
date of the termination.
b.
9.
The reply of the club
In its reply, the club firstly argued that the calculation of the compensation due to the player
should consider the new employment found by the player. Furthermore, the club rejected
the claim for additional compensation and referred to CAS jurisprudence on the matter.
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10.
At the end, the club concluded as follows: “given all the foregoing and respect with the
right for surplus, the respondent kindly requests the DRC to reject all the claims of the
player”.
11.
Enclosed to its claim, the club filed several proofs of payments allegedly made to the player,
without further explanations.
c.
The additional comments of the player
12.
After being invited to do so, the player provided his comments regarding the proofs of
payment filed by the club. In this regard, the player pointed out that the documents were
not related to the amount requested in his statement of claim.
13.
In addition, the player reiterated his allegations and remarked that “there is no objection
against the debt and also the reality of the unilateral termination by [the player] with just
cause”.
14.
Finally, the player informed his updated contractual situation and filed a copy of the
employment agreement signed with MSV Duisburg.
15.
To this extent, the player amended his requests for relief as follows:
a. EUR 155,000 as outstanding remuneration;
b. EUR 355,218.83 as mitigated compensation; and
c. EUR 108,531.17 as additional compensation.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
16.
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 24 May 2021 and submitted
for decision on 12 August 2021. Taking into account the wording of art. 21 of the January
2021 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.
17.
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 RSTP (edition February 2021), the Dispute Resolution Chamber is competent to deal
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REF FPSD-2609
with the matter at stake, which concerns an employment-related dispute with an
international dimension between a German player and a Turkish club.
18.
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 RSTP (edition February 2021), and considering that the present claim was
lodged on 24 May 2021, said edition of the regulations is applicable to the matter at hand
as to the substance (hereinafter: the Regulations).
b.
Burden of proof
19.
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.
20.
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.
21.
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
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
22.
The foregoing having been established, the Chamber took note of the fact that the player
lodged a claim against the club seeking payment of outstanding remuneration and
compensation for breach of contract, claiming that he had just cause to terminate the
employment contract
23.
On the other hand, the DRC was also observant that the club filed several proofs of payment
supposedly made to the player in support of its allegations that the claim at stake should
be entirely rejected.
24.
In light of the above, the Chamber started by carefully analysing the documentation
brought forward by the club and concluded that it lacked of further explanations as to its
nature and contractual basis. Likewise, the DRC observed that the amounts described in
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each of the proof of payment did not meet the amount of remuneration that should be
delivered to the player under the employment contract. Therefore, by recalling the contents
of art. 12, par. 3 of the Procedural Rules, the members of the Chamber unanimously
concluded that the club could not establish to a comfortable satisfaction degree of certainty
that it had honoured its financial duties toward the player. Put differently, the DRC was of
the opinion that the club did not meet its burden of proof in order to demonstrate it had
paid the remuneration sought by the player.
25.
As such, the DRC decided that the club’s defence should be rejected.
26.
Subsequently, the Chamber once again turned to the evidence on file and noted that it was
clear that upon the termination of the employment contract, not only the club had been
warned and granted a deadline of 15 days to cure its breach, but also the payments
defaulted amounted to more than two monthly salaries.
27.
The DRC then recalled the solid jurisprudence of the Chamber according to which such
persistent and substantial non-compliance of the contractual obligations by the club can
justify the unilateral termination of the agreement as well as it can hold the club liable for
breach of contract.
28.
Based on the factual and contractual situation, the DRC concurred that the player had just
cause to terminate the employment contract under art. 14bis of the Regulations.
Consequently, the Chamber deemed that the player is entitled to both outstanding
remuneration and compensation for breach of contract, as follows.
ii. Consequences
29.
Having stated the above, the members of the Chamber went on analysing the
consequences of such unjustified breach of contract committed by the club.
30.
In this regard, the DRC sought to establish the remuneration that had remained outstanding
at the time of the termination.
31.
With due consideration of the above, the DRC noted that the player asserted that at the
time of the premature termination of the employment contract, his salaries from January to
April 2021 were outstanding. Accordingly, the Chamber unanimously agreed that said
amounts have a solid contractual basis and, in accordance with the general principle of
pacta sunt servanda, shall be awarded to the player as requested.
32.
With regard to the claimed interest, the members of the Chamber, applying the constant
practice of the DRC decided to award the player 5% interest p.a. on said amounts as from
their due dates (i.e. the following day upon which they fell due) until the date of effective
payment.
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33.
Bearing the previous considerations in mind, the members of the Chamber advanced to
deal with the consequences of the early termination of the contract with just cause by the
player. In this context, the DRC decided that, taking art. 17 par. 1 of the Regulations into
consideration, the player is entitled to receive compensation for breach of contract from
the club, in addition the aforementioned outstanding remuneration and its respective
interest.
34.
To this extent, the Chamber outlined that in accordance with the aforementioned 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 coach 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.
35.
In application of the relevant provision, the DRC held that it first had to clarify whether the
contract contained any clause by means of which the parties had previously agreed on
compensation payable by the contractual parties in the event of breach. 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.
36.
Subsequently, and in order to evaluate the compensation to be paid by the club, the DRC
took into account the remuneration due to the player in accordance with the employment
contract as well as the time remaining on the same contract, along with the professional
situation of the player after the early termination occurred.
37.
For the sake of clarity, the members of the Chamber emphasized that in line with the
player’s claim and with the evidence on file, the residual value of the employment contract
amounted to EUR 463,750 net (i.e. the salary of May 2021 and to the whole season
2021/2022). Therefore, the DRC considered that such amount should serve as the basis for
the final determination of the amount of compensation due for breach of contract.
38.
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.
39.
Indeed, the player found employment with MSV Duisburg. In accordance with the pertinent
employment agreement, the player was entitled to a total remuneration of EUR 108,531.17
(i.e. 11 monthly salaries, from July 2021 until May 2022) net during the overlapping period
of his new employment relationship and the one previously established with the club.
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40.
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.
41.
In this respect, the DRC highlighted that theoretically the player would be entitled to EUR
138,571.41 as additional compensation, corresponding to three of the player’s salaries at
the time of the termination – considering an average between the monthly remuneration
and the guaranteed payment for the season 2020/2021. However, the Chamber recalled
that as per the clear wording of art. 17 of the Regulations, the amount of compensation
(including any additional compensation) cannot exceed the residual value of the
employment contract.
42.
As a consequence, it was decided to award the amount of additional compensation of EUR
108,531.17 to the player.
43.
Therefore, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber unanimously decided that the club must pay the amount of
EUR 463,750 net to the player (i.e. EUR 463,750 minus EUR 108,531.17 plus EUR
108,531.17) for breach of contract in the present matter.
44.
With regard to the claimed interest, the Chamber, applying the constant practice of the
DRC, decided to award the player 5% interest p.a. on the said amount as from the date of
the claim (i.e. 24 May 2021).
iii. Compliance with monetary decisions
45.
Finally, the Chamber referred to par. 1 lit. a) 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.
46.
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.
47.
Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, a ban from registering any new
players, either nationally or internationally, for the maximum duration of three entire and
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consecutive registration periods shall become immediately effective on the club in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
48.
The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Registration Form, which is attached to the present
decision.
49.
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
50.
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.
51.
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.
52.
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, Marvin Dirk Balalorz, is accepted.
2.
The Respondent, Denizlispor Kulübü Derneği, has to pay to the Claimant, the following
amounts:
-
EUR 38,750 net as outstanding remuneration plus 5% interest p.a. as from 1 February
2021 until the date of effective payment;
-
EUR 38,750 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2021
until the date of effective payment;
-
EUR 38,750 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2021
until the date of effective payment;
-
EUR 38,750 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2021
until the date of effective payment; and
-
EUR 463,750 net as compensation for breach of contract plus 5% interest p.a. as from 24
May 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:
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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).
CONTACT INFORMATION:
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