Labour Disputes
Texto da decisão
REF FPSD-8186
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning
the player Andrea Bertolacci
BY:
Frans de Weger (the Netherlands), Chairperson
Jorge Gutiérrez (Costa Rica), member
Stefano Sartori (Italy), member
CLAIMANT / COUNTER-RESPONDENT:
Andrea Bertolacci, Italy
Represented by Bergs & More
RESPONDENT / COUNTER-CLAIMANT:
Yukatel Kayserispor, Türkiye
Represented by Mosturoğlu & Çopuroğlu Law Firm
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I. Facts of the case
1. On 31 December 2021, the Italian player Andrea Bertolacci (hereinafter the Claimant) and the
Turkish club Yukatel Kayserispor (hereinafter the Respondent) concluded an employment
contract (hereinafter the Contract) valid as from 12 January 2022 until 31 May 2024.
2. In accordance with art. 6 of the Contract, the Claimant was entitled to receive a total
net remuneration as follows:
-
EUR 550,000 for the remainder of the season 2021/2022 (payable in 5 monthly salaries
of EUR 86,000, by no later than the 30 th day of each respective month);
-
EUR 1,200,000 for the season 2022/2023 (payable in 10 monthly salaries of EUR 108,000
by no later than the 30th day of each respective month, and a seasonal bonus of
EUR 120,000 payable on 15 August 2022);
-
EUR 1,200,000 for the season 2023/2024 (payable in 10 monthly salaries of EUR 108,000
by no later than the 30th day of each respective month, and a seasonal bonus of
EUR 120,000 payable on 15 August 2023).
3. Furthermore, in accordance with the same provision, the Claimant was entitled to receive
an annual accommodation allowance of EUR 20,000, which, for the remainder of the
season 2021/2022 was reduced to EUR 10,000. Said allowance was to be paid on the
date of signature, 30 July 2022 and 30 July 2023 respectively.
4. Lastly, in accordance with the same provision, the Respondent undertook to pay the
Claimant bonuses as follows:
- In case the Claimant achieves at least 5 goal contributions, EUR 50,000 net;
- In case the Claimant achieves at least 10 goal contributions, EUR 100,000 net.
TS AND DEFAULT NOTICES
5. On 9 September 2022, the Claimant put the Respondent in default of payment of
EUR 264,000, corresponding to the following amounts:
-
EUR 36,000, pro rata unpaid salary May 2022;
EUR 20,000, unpaid accommodation allowance for the season 2022/2023;
EUR 120,000 unpaid annual bonus for 2022/2023;
EUR 108,000 unpaid salary August 2022.
The Claimant granted the Respondent a deadline of 10 days to remedy the alleged breach.
6.
On 4 October 2022, the Claimant once again put the Respondent in default of payment, for
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the amount of EUR 372,000, corresponding to the abovementioned amounts, as well as the
unpaid salary of EUR 108,000 for September 2022, which had fallen due in the meantime.
The Claimant granted a deadline of 10 days for the Respondent to remedy the alleged
breach.
7. On 6 October 2022, the Claimant put the Respondent in default of payment of EUR 392,000,
granting a new deadline of 15 days to remedy the alleged breach of contract.
8. On 1 November 2022, the Claimant unilaterally terminated the Contract.
9. On 26 December 2022, the Claimant signed an employment contract hereinafter: the New
Contract) with the Turkish club Fatih Karagümrük (hereinafter: the New Club) valid as from the
date of signature until 31 May 2024.
10. In accordance with the New Contract, the New Club undertook to pay the Claimant a total
net remuneration of EUR 202,500 over the entire contractual term.
II. Proceedings before FIFA
11. On 11 November 2022, the Claimant lodged a claim before FIFA for outstanding
remuneration and compensation due to the termination of the Contract with just cause
under art. 14bis RSTP.
12. The Claimant argued that the Respondent failed to pay several monthly salaries and other
amounts due under the Contract, in total EUR 500,000, despite having been put in default
several times and having been granted numerous deadlines to comply with the financial
obligations of the Contract, thereby giving him just cause to terminate the Contract on
1 November 2022.
13. The Claimant requested outstanding remuneration of EUR 500,000 net, corresponding to the
unpaid amounts at the time the Contract was terminated, itemised as follows:
-
EUR 36,000, pro rata unpaid salary May 2022;
EUR 20,000, unpaid accommodation allowance for the season 2022/2023;
EUR 120,000 unpaid annual bonus for 2022/2023;
EUR 108,000 unpaid salary August 2022;
EUR 108,000 unpaid salary September 2022;
EUR 108,000 unpaid salary October 2022.
14. Furthermore, the Claimant requested compensation in the amount of EUR 2,176,000 net,
corresponding to the alleged residual value of the Contract, as well as performance bonuses
under the Contract, as from the date of termination until its term.
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15. The Claimant also requested interest of 5% p.a. on the outstanding remuneration only, as
from the respective due dates of the unpaid instalments.
16. Lastly, the Claimant requested legal fees in the amounts of EUR 33,000.
17. On 8 December 2022, the Respondent submitted a counterclaim, alleging that the Claimant
has “escaped from his employment despite being aware of the fact that the club would
eventually meet the contractual obligations”.
18. The Respondent argued that the termination was premeditated and alleged that the
Claimant had found employment with the New Club immediately after. The Claimant
included some news releases spreading the rumour of this transfer as evidence.
19. The Respondent accused the Claimant of unjust enrichment and requested compensation of
EUR 2,176,000 as a result of this “hostile approach”.
20. The Claimant briefly replied to the counterclaim submitted by the Respondent, outlining that
the termination of the Contract was not premeditated and entirely in line with art. 14bis of
the Regulations.
21. Furthermore, the Claimant admitted that he had found new employment with the New Club,
however, explaining that, after applying both mitigation and additional compensation, the
total amount of compensation due under art. 17 par. 1 lit. ii. of the Regulations remains
unchanged from the residual value of the Contract.
22. Therefore, the Claimant reiterated his request for relief, and added that the counterclaim
should be rejected.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 11 November 2022 and
submitted for decision on 23 February 2023. Taking into account the wording of art. 34 of
the October 2022 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.
2.
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 October 2022 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 an
Italian player and a Turkish club.
3.
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 (October 2022
edition), and considering that the present claim was lodged on 11 November 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
4.
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
5.
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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i. Main legal discussion and considerations
6.
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 the payment of certain
financial obligations under the Contract, as well as the lawfulness of the termination
thereof.
7.
In this context, the Chamber acknowledged that it its task was to determine whether or
not the amounts claimed as outstanding had, truly, not been remitted by the Respondent,
and whether as a consequence, the Contract had been terminated with or without just
cause by the Claimant on 1 November 2022.
8.
The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
9.
The Chamber noted that the Claimant asserted not having received his remuneration
corresponding to a part of the month of May 2022, the accommodation allowance for the
season 2022/2023, the seasonal bonus for 2022/2023, and the integral amount of three
monthly salaries between August 2022 until October 2022 – in total, resulting in an alleged
debt of EUR 500,000. Further, the Chamber observed that the Claimant had provided
written evidence of having put the Respondent in default of payment of said amount on
6 October 2022, granting a deadline of 15 days to remit said amount.
10. The Chamber also remarked that the Respondent bore the burden of proving that it,
indeed, complied with the financial terms of the Contract. Nonetheless, the Respondent
had, in this respect, provided little beyond the allegation that the termination of the
Contract had been “premeditated”, and, in particular, no evidence of having remitted any
of the amounts presently in dispute, nor any valid justification of having defaulted on
these amounts.
11. Thus, the Chamber concluded that the formal requirements of art. 14bis of the
Regulations had been met in the case at hand, and that, consequently, the Claimant had
just cause to terminate the Contract.
ii. Consequences
12. 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.
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13. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, is equivalent to EUR 500,000,
corresponding to the remaining salary of a part of the month of May 2022, the
accommodation allowance for the season 2022/2023, the seasonal bonus for 2022/2023,
and the integral amount of three monthly salaries between August 2022 until October
2022.
14. 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 500,000.
15. 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 the following dates:
-
On the amount of EUR 36,000, as from 31 May 2022 until the date of effective
payment;
-
On the amount of EUR 20,000, as from 31 July 2022 until the date of effective
payment;
-
On the amount of EUR 120,000, as from 16 August 2022 until the date of
effective payment;
-
On the amount of EUR 108,000, as from 31 August 2022 until the date of
effective payment;
-
On the amount of EUR 108,000, as from 1 October 2022 until the date of
effective payment;
-
On the amount of EUR 108,000, as from 31 October 2022 until the date of effective
payment
16. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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 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.
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17. 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.
18. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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.
19. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant 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 1,976,000 (i.e. the residual value of the
Contract) serves as the basis for the determination of the amount of compensation for
breach of contract.
20. In this respect, the Chamber noted the Claimant’s request that the conditional bonuses
are included in the residual value of the Contract, concluded, however, that as the alleged
accomplishment of these conditions, namely the number of requisite goal contributions,
had been triggered by including statistics from the Claimant’s previous employment
Contract before joining the Respondent. More specifically, 8 of the 11 goals contributions
had been obtained with another club, thereby not rendering, in the Chamber’s
estimation, the Claimant entitled to claim any conditional bonus under the Contract on
the basis of goal contributions. Lastly, and only for completeness’ sake, the Chamber
rejected the possible argumentation that the Claimant was “on track” to fulfil said
condition during the course of the Contract, as this was entirely speculative and could not
be taken into the consideration of any guaranteed remuneration that contributes to the
calculation of the residual value of the Contract.
21. In continuation, the Chamber verified as to whether the Claimant 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
Claimant’s general obligation to mitigate his damages.
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22. Indeed, the Claimant found employment with the New Club. In accordance with the New
Contract, the Claimant was entitled to a total amount of EUR 202,500 in the overlapping
period between the two Contracts. Therefore, the Chamber concluded that the Claimant
mitigated his damages in the total amount of EUR 202,500.
23. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according
to which a Claimant 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 Claimant shall receive additional compensation.
24. In this respect, the DRC decided to award the amount of additional compensation of
EUR 324,000, i.e. three times the monthly remuneration of the Claimant.
Notwithstanding, the Chamber specified that said amount, in light of the same provision
of the Regulations, shall be limited to the mitigated amount, so as for the overall
compensation not to exceed the residual value of the Contract.
25. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the Respondent must pay the
amount of EUR 1,976,000 to the Claimant (i.e. EUR 1,976,000 minus EUR 202,500 plus
EUR 324,000, limited to EUR 202,500), which was to be considered a reasonable and
justified amount of compensation for breach of contract in the present matter.
26. Lastly, taking into consideration the fact that the Claimant requested no interest on the
compensation awarded in the present case, in accordance with the principle of ne iudex
eat ultra petita, the Chamber decided not to award any interest on the abovementioned
compensation.
iii. Compliance with monetary decisions
27. 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.
28. 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.
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29. 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.
30. 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.
31. 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
32. 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.
33. 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.
34. 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 / Counter-Respondent, Andrea Bertolacci, is partially accepted.
2.
The Respondent / Counterclaimant, Yukatel Kayserispor, has to pay to the Claimant, the
following amount:
- EUR 500,000 as outstanding remuneration plus interest p.a. as follows:
-
5% interest p.a. over the amount of EUR 36,000 as from 31 May 2022 until the date
of effective payment;
-
5% interest p.a. over the amount of EUR 20,000 as from 31 July 2022 until the date
of effective payment;
-
5% interest p.a. over the amount of EUR 120,000 as from 16 August 2022 until the
date of effective payment;
-
5% interest p.a. over the amount of EUR 108,000 as from 31 August 2022 until the
date of effective payment;
-
5% interest p.a. over the amount of EUR 108,000 as from 1 October 2022 until the
date of effective payment;
-
5% interest p.a. over the amount of EUR 108,000 as from 31 October 2022 until the
date of effective payment
- EUR 1,976,000 as compensation for breach of contract without just cause.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counterclaimant 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.
If full payment (including all applicable interest) is not made within 30 days of notification
of this decision, the present matter shall be submitted, upon request of the Claimant /
Counter-Respondent, to the FIFA Disciplinary Committee.
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7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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
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