Labour Disputes
Texto da decisão
REF 21-00014
Decision of the
Dispute Resolution Chamber
passed on 15 July 2021
regarding an employment-related dispute concerning the player Tyler Dominic Boyd
COMPOSITION:
Omar Ongaro (Switzerland), Deputy Chairman
Stéphane Burchkalter (France), member
MD Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Tyler Dominic Boyd, United States of America
Represented by Mr Sami Dinc
RESPONDENT:
Besiktas Futbol, Turkey
Represented by Mr Erdem Egemen
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I.
FACTS OF THE CASE
1.
On 11 July 2019, the US player, Tyler Dominic Boyd (hereinafter: the Claimant or Player)
and the Turkish club, Besiktas Futbol (hereinafter: the Respondent or Club) concluded and
employment agreement valid as of the date of signature until 31 May 2023 “or any later
date on which an official match is played in the respective football season” (hereinafter: the
Contract).
2.
Based on art. 6 of the contract, the Claimant was entitled to receive, inter alia, for the
season 2019/2020, the total amount of EUR 1,200,000 net, payable as follows: an
instalment of EUR 200,000 on 11 July 2019, and 10 instalments of EUR 100,000 on the last
day of each month in the period between August 2019 and May 2020.
3.
On 30 June 2020, the Respondent formally proposed to the Claimant to waive his
entitlements in the amount of EUR 180,000, for the months of March, April and May 2020,
due to the effects of the COVID-19 pandemic. In particular, clause 4 of the club’s proposal
to the player read as follows:
“The Player explicitly and irrevocably agrees and accepts that, considering his total
entitlement of 360.000 EUR as guaranteed salary and signing fee for the months March,
April and May 2020, he waives his entitlement to 180.000 EUR which corresponds to half
of his remuneration arising from the employment agreement stipulated in Whereas.1 for
the months March, April and May 2020. Furthermore, the Player explicitly agrees and
accepts that the remaining part of 120.000 EUR as guaranteed salary for the months March,
April and May 2020 will be paid by the Club to the Player on 31 October 2020.”
4.
On 3 July 2020, the Claimant rejected the proposal of the club on the reduction of his
contractual entitlements.
5.
On 28 October 2020, the Claimant sent a notice via e-mail to the Respondent asking to be
re-registered with the team and to be paid the amount of EUR 180,000 within 10 days.
6.
On 7 November 2020, the Respondent replied to the Claimant’s letter dated 28 October
2020, stating inter alia that the Claimant’s deregistration is on a temporary basis and that
when the registration list will be reopened by the TFF on January 2021, the Claimant will
be re-registered. The Respondent also informed the Claimant that during this time, the
Claimant will be attending the squad trainings and he will be entitled and paid all his
remuneration as per the contract.
7.
On 25 November 2020, the Claimant put the Respondent in default, requesting the
payment of EUR 180,000 net “in relation to the football season of 2019/2020” within 10
days.
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8.
On 4 December 2020, the Respondent replied to the player’s default notice of 25 November
2020, rejecting the payment of the player’s claimed amount and stating inter alia that due
to the consequences of the COVID-19 outbreak as well as the suspension of the league it
deducted 15% of the contract value, amounting to EUR 180,000.
II.
PROCEEDINGS BEFORE FIFA
9.
On 28 December 2020, the Claimant 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 Claimant
10.
On 28 December 2020, the Claimant lodged a claim against the Respondent, claiming
outstanding remuneration in the amount of EUR 180,000 net, consisting of an the partial
outstanding salary of EUR 80,000 for the month of April 2020 and the full outstanding
salary for the month of May 2020 in the amount of EUR 100,000, as well as 5% interest
p.a. on said amounts as from the due dates.
11.
In his claim, the Claimant explained that “upon the temporary suspension of the Turkish
Super League of 2019/2020 football season, Turkish Football Federation (TFF) announced
the new schedule of the league calendar of the remaining part of the 2019/2020 football
season. In accordance with that, TFF decided that the league matches and the national cup
matches would start again as of 12 June 2020”
12.
What is more, the Claimant explained that the “remaining official matches of the
2019/2020 football season were played in line with the new schedule, which had been
announced by TFF and the football season 2019/2020 was duly completed. The Claimant
made his best and contributed to the team of the respondent during the extended period
of the league until the end of July 2020. In this context, the unilateral reduction decision of
the Respondent on the remunerations of the Claimant in relation with the football season
of 2019/2020 is not based on the just cause and in this context the said unilateral reduction
decision of the Respondent has to be considered null, void and invalid”
b.
Position of the Respondent
13.
In its reply, the Respondent first stated that on 19 March 2020, the TFF “declared all national
leagues and cup competitions are suspended until further notice as result of the Covid 19
pandemic. Starting from this date, all trainings and official matches were suspended, and
the Claimant did not provide any service to the respondent as professional football player”.
14.
What is more, the Respondent stated that the “Bureau of the FIFA Council (…) made several
decisions regarding regulatory and legal issues as a result of COVIS-19 pandemic. (…),
determining that the COVIS-19 outbreak was a matter not provided for and a force majeure
situation for FIFA and football generally.”
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15.
The Respondent also maintained that the pandemic has created a force majeure situation
in Turkey.
16.
Furthermore, the Respondent explained that it decided to wait for the course of the COVID19 pandemic and the final decision of the TFF about the future of the 2019/2020 football
season in order to negotiate with its players about possible variations to their contracts and
alleged that “during this time, the Respondent followed up on the health and living
conditions of its players, including the Claimant.”
17.
In this regard, the Respondent argued that it “was unable to acquire payments form the
league’s broadcaster and form its sponsor. In addition, since matches were suspended,
match day revenue was also cancelled all together and the apparel sales form the
Respondent’s stores have reached a record low level.”
18.
Moreover, the Respondent claimed that “this unexpected situation, which the Respondent
had no fault or negligence, has negatively affected the economic conditions surrounding
the Respondent, making it impossible for the latter to fulfil its obligations agreed under the
Contract”.
19.
In addition, the Respondent argued that: “the circumstances under which the Contract
were executed substantially changed after the signing. Under the principle of clausula rebus
sic stantibus, due to social, political and economic circumstances in Turkey and the Covid19 pandemics, which are beyond the Respondent’s control, the Respondent has been facing
significant financial difficulties, which form another relevant change in circumstances
affecting the Respondent’s obligations under the Contract. As such, the legal principle of
clausula rebus sic stantibus should provide an exception to the principle of pacta sunt
servanda, as the circumstances at the time of the signing of the Employment Contract
changed in an unforeseeable manner and to a material extent which made performance
impossible.”
20.
On account of the above, the Respondent held that “a proposal was made to all players
and technical staff to 15% of the total remuneration for each member during the
2019/2020 season, equally sharing the total damages and loss of income suffered by the
Respondent due to Covid-19 pandemic.”
21.
The Respondent alleged that its request to mitigate “the financial conditions of the
employment contracts for the 2019/2020 season was accepted by the majority of the
players of the Football A Team and all members of the Technical staff and settlement
agreements were signed with these players and technical staff, excluding the Claimant”.
22.
The Respondent sustained that it complied with the FIFA COVID-19 guidelines and that it
“has always been acting in good faith and trying to find amicable solutions during these
challenging times”, and added that “This mitigation was a mandatory step for the
Respondent to continue its activities as a result of the Covid-19 pandemic and was made
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after several attempts to amicable solution with the Claimant to ease the financial turmoil
suffered by the Respondent due to Covid-19 pandemic.”
23.
The Respondent requests for relief were the following:
“(i) To reject the claim of the Claimant;
(ii) To reject any additional claims by the Claimant.”
24.
On 30 March 2021, the Respondent, after the expire of the time limit set to submit its
position to the claim, provided additional documentation. In particular, the Respondent
deemed “necessary to present certain decisions rendered by Turkish courts related to
Covid-19 pandemics and the legal basis thereof, in order to explain the effects of the
pandemics on tire contractual obligations in Turkey.”
25.
In this regard and taking into consideration that the aforementioned documentation was
submitted after the expire of the time limit set to submit its position to the claim, the DRC
referred to art. 9 par. 3 of the FIFA Procedural Rules, according to which, inter alia,
submissions received outside the time limit shall not be taken into account.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
26.
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 28 December 2020 and
submitted for decision on 15 July 2021. Taking into account the wording of art. 21 of the
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.
27.
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. a) and
b) of the Regulations on the Status and Transfer of Players (edition 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 US player and a
Turkish club.
28.
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 28 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b.
Burden of proof
29.
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.
30.
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.
31.
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
32.
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 whether the Respondent could view of the financial consequences of the COVID-19 pandemic – validly reduce his yearly
income for the 2019/2020 with 15%, i.e. with the total amount of EUR 180,000.
33.
In this context, the Chamber acknowledged that its task was to determine whether the
salary reduction of EUR 180,000 could be validly applied.
34.
In this respect, the Chamber analysed the reduction of 15% the yearly salary for the
2019/2020 season, i.e. the total amount of EUR 180,000. Said reduction was announced
to the Claimant by the Respondent on 30 June 2020 and would have retroactive effect, as
the salaries for the months of April and May 2020 would be effected by it.
35.
Having said that, the DRC wished to refer to the fact that, in light of the worldwide COVID19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June
2020, FIFA issued an additional document, referred to as FIFA COVID-19 FAQ, which
provides clarification about the most relevant questions in connection with the regulatory
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consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
36.
For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as
the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any
specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
37.
In this context, the DRC considered that the arguments raised by the Respondent cannot
be considered a valid reason 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.
38.
What is more, the DRC held that a salary´s variation could not be applied retroactively.
Therefore, the Chamber held that part of the salary of April 2020 and the salary of May
2020 (i.e. until the Respondent´s proposal) cannot be subject to a possible reduction and
hence the Respondent should pay them in full to the Claimant.
ii. Consequences
39.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of the circumstances described above.
40.
In this regard, taking into account that the members of the Chamber deemed that the
salary reduction in the amount of EUR 180,000 cannot be taken into account, the Chamber
came to the conclusion that said amount is due to the Claimant and should be paid by the
Respondent.
41.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Respondent must fulfil its obligations as per the contract concluded with the
Claimant and, consequently, is to be held liable to pay the outstanding amount of EUR
180,000 net to the Claimant.
42.
What is more, in accordance with its well-established jurisprudence and the request of the
Claimant, the DRC decided to that the Respondent had to pay default interest at a rate of
5% p.a. until the effective date of payment as follows:
on the amount of EUR 80,000 as from 1 May 2021;
on the amount of EUR 100,000 as from 1 June 2021.
iii. Compliance with monetary decisions
43.
Finally, taking into account the consideration under numbers 28. above, the Chamber
referred to par. 1 lit. and 2 of art. 24bis of the Regulations, which stipulate that, with its
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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.
44.
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.
45.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the 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 effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
46.
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. 3
of the Regulations.
d.
Costs
47.
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.
48.
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.
49.
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, Tyler Dominic Boyd, is partially accepted.
2.
The Respondent, Besiktas Futbol, has to pay to the Claimant the amount of EUR 180,000 net as
outstanding remuneration plus 5% interest p.a. calculated as follows:
- Over the amount of EUR 80,000 as from 1 May 2020 until the date of effective payment;
- Over the amount of EUR 100,000 as from 1 June 2020 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
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:
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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