Labour Disputes
Texto da decisão
REF. FPSD-13059
Decision of the
Dispute Resolution Chamber
passed on 7 March 2024
regarding an employment-related dispute concerning
the player Tyler Dominic Boyd
BY:
Lívia SILVA KÄGI (Brazil/Switzerland), Deputy Chairwoman
Mario FLORES CHEMOR (Mexico), member
Roy VERMEER (The Netherlands), member
CLAIMANT:
Tyler Dominic Boyd, USA
Represented by Sami Dinc
RESPONDENT:
Besiktas AS, Turkey
pg. 2
REF. FPSD-13059
I. Facts of the case
1.
The parties to the dispute are the American footballer, Tyler Dominic Boyd (hereinafter:
Claimant or player) and the Turkish club, Besiktas AS (hereinafter: club or Respondent). The
player and the club are hereinafter jointly referred as the parties.
2.
On 11 July 2019, the parties concluded an employment contract (hereinafter: Contract) valid as
from the same date until 31 May 2023.
3.
According to the Contract, the Respondent undertook to pay inter alia the Claimant EUR
1,500,000 as salaries for the season 2022/2023, payable in 10 equal instalments of EUR 150,000
each by the last day of the month between August 2022 and May 2023.
4.
Under the Contract, the player was also entitled to EUR 3,000 for housing allowance, as well as
flight tickets, a car, and match tickets.
5.
All amounts due to the player under the Contract are net, per its clause 6.1.
6.
On 1 February 2021, in the context of the player’s services loan from the Respondent to the
Turkish club, Sivasspor, the parties entered into a protocol (hereinafter: First Protocol).
7.
Under the First Protocol, the parties agreed that during the player’s loan to Sivasspor the
Respondent would still be obliged to pay the benefits (including the housing allowance) agreed
under the Contract.
8.
On 20 August 2021, in the context of the player’s services loan from the Respondent to the
Turkish club, Rizerspor, the parties entered into a second protocol (hereinafter: Second
Protocol).
9.
Under the Second Protocol, the parties agreed that during the player’s loan to Rizerspor the
Respondent would still be obliged to pay the benefits (including the housing allowance) agreed
under the Contract.
10. On 27 September 2022, the Claimant sent a letter to the Respondent requesting information
on his registration with the club as his name had not appeared in the club’s A list. He accordingly
granted the club 7 days to confirm the foregoing, his eligibility status, and whether such list
could be revised.
11. Having received no reply, the player reiterated his notice to the club on 14 October 2022,
granting it with a final deadline until 19 October 2022 to respond.
12. On 3 November 2022, the player enquired the Turkish Football Federation (TFF) via letter of his
registration status, namely: whether he had been included in the club’s A list, the date upon
said list was presented by the club, and any possible revision of the same.
pg. 3
REF. FPSD-13059
13. On the same day, the TFF replied as follows:
“As a result of the examination, it was determined that player Tyler Dominic BOYD was not
included in the 2022-2023 Football Season A Team List, which was last submitted to TFF by Club
Besiktas AS on 10.09.2022. I would like to inform you that in accordance with clause (d) of the title
"Submission of the A Team List to TFF" in ANNEX-2 of the 2022-2023 Season Super League
Competitions Statute; as of 12.01.2023, which is the beginning of the Second Transfer and
Registration Period that has been previously announced on the official website of TFF, clubs can
revise their A Team Lists up to 24 hours before the club's official competitions, however, the A
Team List, which will be valid until the end of the season, must be submitted to the TFF within two
days following the end of the second transfer and registration period.”
14. On 4 November 2022, the player sent a notice to the club whereby he terminated the Contract,
referring to the abovementioned scenario and his lack of registration.
15. On 17 February 2023, the player signed an employment contract with the Major League Soccer
(MLS) valid as from 14 February 2023 to 31 December 2023, including the following payments:
• Salary of USD 22,916.67 per month from 14 February 2023 to 31 December 2023.
• Signing bonus of USD 45,000.
• Bonuses for performance.
II. Proceedings before FIFA
16. On 15 December 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
17. In his claim, the Claimant contends that the termination of the Contract was justified and seeks
compensation, overdue and unpaid amounts, additional compensation, disciplinary sanctions,
and coverage of judicial costs and attorneyship fees from the Respondent.
18. The player’s arguments of the existence of just cause are as follows:
a. The player asserts that the refusal to register him in the Club A Team List effectively
barred his access to competition, training, and official matches, thereby violating his
fundamental rights as a football player. The player cites the jurisprudence of FIFA and
the Court of Arbitration for Sport (CAS) to support his claim, emphasizing that preventing
a player from training with the first team constitutes a breach of contract.
b. Furthermore, the player highlights the communication with the TFF, which confirmed
that he was not included in the A Team List of the Respondent and that the earliest date
pg. 4
REF. FPSD-13059
for the revision of the said list was 12 January 2023. This confirmation solidified in the
player’s opinion his argument that he was effectively prevented from competing and
exercising his profession due to the lack of registration.
c. In response to the lack of registration and the subsequent silence of the Respondent, the
player served a written notice and unilaterally terminated the Contract, citing the
Respondent's failure to respect its obligation and de-registering him from the A Team
List against his will. The player contends that, considering these circumstances, it could
no longer be reasonably expected from him to continue the employment relationship
with the club.
19. As to the outstanding remuneration, the player is seeking EUR 9,000 in relation to the housing
allowance as per the Second Protocol, with 5% p.a. interest starting from the ending date of the
2020/2021 football season, i.e., 31 May 2021, until the date of effective payment.
20. As to the compensation, the player argued that the FIFA Regulations on the Status and Transfer
of Players (RSTP) stipulates that in cases of terminating a contract without just cause, the party
in breach shall pay compensation. Equally, the Claimant cites Swiss legal doctrine and the
jurisprudence of both FIFA and CAS asserting that the injured party is entitled to integral
reparation of its damages, including the positive interest, which encompasses the salaries and
other material income that the player would have received if the contract had been performed
until natural expiration. In addition, the Claimant highlights the calculation of the residual value
of the Contract as per Article 17 par. 1 of the RSTP, emphasizing the compensation to be
decided in his favour as equal to the residual value of the Contract. The Claimant also addresses
the mitigation of compensation since the player signed a new contract, as well as the potential
entitlement to additional compensation based on the circumstances of the termination.
21. Along these lines, the player requested EUR 975,193.05 net as compensation, calculated as
follows, with 5% p.a. interest starting from the termination date of 4 November 2022 until the
date of effective payment:
Residual value of the Contract: EUR 1,030,000 net.
Mitigation: USD 80,208.34 gross from 14 February 2023 until May 2023.
Taxes:
“Tax type Marginal tax rate Effective tax rate Taxes
Federal
22.00%
12.98%
$10,414
FICA
7.65%
7.65%
$6,136
State
9.30%
4.68%
$3,754
Local
0.00%
0.00%
$0
Total income taxes
25.31%
$20,304
Income after taxes
$59,904
Retirement contributions
$0
Take home pay
$59,904”
pg. 5
REF. FPSD-13059
22. The player also seeks additional compensation on the basis of art. 17 par. 2 RSTP of EUR
450,000, with 5% p.a. interest starting from the termination date of 4 of November 2022 until
the date of effective payment.
23. Lastly, the player requested the imposition of the disciplinary sanctions on the Respondent in
accordance with the FIFA rules, considering that the Respondent caused the Claimant to
terminate the Employment Contract, as well as that the judicial costs and “attorneyship fees”
that the Claimant is faced with shall be paid by the Respondent, considering that the
Respondent caused the Claimant to file the case.
b. Position of the Respondent
24. In its reply, the Respondent asserts that the player terminated the Contract without just cause,
and recall the events leading up to the termination to support their argument, namely:
•
The club informed the player that he was not considered within the squad planning for the
2022/2023 football season based on a report from the Head Coach, Valerian Ismael.
•
The player was given permission to negotiate with other clubs and was played in a match to
assist in transfer negotiations.
•
The club was transparent with the player about not being considered in the team squad and
allowed him to find a new club.
•
The player did not reach an agreement with any other club within the transfer and
registration period.
•
The club had to remove the player from the Club A Team list due to regulations of the TFF
regarding the number of foreign players allowed in the squad.
25. In continuation, the club argued that the amount of compensation claimed by the player is
exorbitant and unjustified, even if the termination of the Contract was understood to have
taken place with just cause. Contextually, the club requests an equitable reduction in the
amount of compensation in accordance with Article 337c of the Swiss Code of Obligations,
considering the possibility that the player may have intentionally understated the financial
conditions in the contract with the new MLS club or avoided intentionally finding a high-paying
contract. The club also highlighted the discrepancy between the financial terms of the contract
with the new MLS club and the player's previous earnings, suggesting that the player may be
trying to mislead the Football Tribunal by submitting incomplete documents regarding the
financial terms between him and his new club in order to obtain a higher amount of
compensation.
pg. 6
REF. FPSD-13059
26. Lastly, the club emphasizes that the overall compensation may never exceed the rest value of
the prematurely terminated contract, and argued that the amounts that the player has
intentionally avoided earning should also be deducted from the compensation amount.
27. The club's request for relief is as follows:
(i) The club respectfully requests FIFA Football Tribunal to reject all claims filed by the Player.
In the event that the Tribunal disagrees:
(ii) To write a letter to the Player's new club and MLS and request that all contracts, protocols, and
other documents containing the financial terms between the Player and his new club be provided.
(iii) To make an equitable reduction in the amount of compensation in accordance with Article
337c of the Swiss Code of Obligations, taking into account that the Player may have intentionally
understated the financial conditions in the contract with the new MLS club.
(iv) To reject the additional compensation request according to Article 17/1(ii) of FIFA RSTP.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 15 December 2023 and submitted for
decision on 7 March 2024. Taking into account the wording of art. 34 of the March 2023 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.
29. 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 RSTP
(February 2024 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 American player and a Turkish club.
30. At this point, the Chamber referred to art. 23 par. 3 of the Regulations, which stipulates that
the decision-making bodies of FIFA shall not hear any dispute if more than two years have
elapsed since the facts leading to the dispute arose. The application of this time limit shall be
examined ex officio in each individual case.
31. In this context, the Chamber recalled that the present claim was lodged in front of FIFA on 15
December 2023. Therefore, in line with art. 23 par. 3 of the Regulations, any amounts fallen due
before 15 December 2021 are affected by the statute of limitations.
pg. 7
REF. FPSD-13059
32. The Chamber noted that, in the present case, the Claimant inter alia requested the payment of
housing allowances in connection with the season 2020/2021 in Türkiye. The Chamber thus
concluded that the Claimant’s request is partially time-barred, since the said season ended in
the summer of 2021, while the claim was filed by the Claimant on 15 December 2023.
Consequently, the specific part of the Claimant’s claim related to the payment of the housing
allowances for the season in question is considered inadmissible.
33. 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 (February 2024 edition), and considering that the present claim was lodged on 15
December 2023, the May 2023 edition of the RSTP (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
b. Burden of proof
34. 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
35. 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
36. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that this is a claim of a player against a club for breach of contract.
37. According to the Claimant, he terminated the contract with just cause due to his de-registration.
The Respondent argued otherwise yet confirmed that the player was not registered with the
so-called A-list presented to the TFF.
38. In this context, in line with the contents of art. 18 par. 4 of the Regulations, as well as the
jurisprudence of the Chamber, the same recalled that the validity of an employment contract
pg. 8
REF. FPSD-13059
cannot be made conditional upon the execution of (administrative) formalities, such as, but not
limited to, the registration procedure in connection with the international transfer of a player,
which are of the sole responsibility of a club and upon which a player has no influence.
39. As the club is supposedly interested in acquiring the rights of the player and in benefiting from
his services, it is also expected to act accordingly and execute the administrative formalities in
view of obtaining, for instance, the player’s International Transfer Certificate (ITC) and his
subsequent registration with the engaging association. Consequently, the registration or not of
the player with the relevant association does not exempt the club of complying with the
financial terms of the contract.
40. Finally, the DRC underlined that it is the obligation of the club to ensure that all administrative
formalities are met for the player to be able to play, as per the employment contract executed
with the same.
41. Having made the foregoing considerations, the Chamber recalled that only a breach or
misconduct which is of a certain severity justifies the termination of a contract without prior
warning. In other words, only when there are objective criteria which do not reasonably permit
to expect the continuation of the employment relationship between the parties, a contract may
be terminated prematurely. A premature termination of an employment contract can only be
an ultima ratio measure.
42. To this effect, the Commentary to the RSTP (ed. 2023) sheds light on the matter (p. 136-7):
As previously mentioned, a club – as an employer – has the duty to protect the
personality rights of the player – as an employee. The career development of a
footballer may be prejudiced as a result of inactivity and thus, the club has a duty to
allow its players to engage in the activity for which, in principle, they have been
employed and are qualified to perform. The DRC has already confirmed that “among
a player’s fundamental rights under an employment contract, is not only his right to a
timely payment of his remuneration, but also his right to access training and to be
given the possibility to compete with his fellow team mates in the team’s official
matches” and that “by “de-registering” a player, even for a limited time period, a club
is effectively barring, in an absolute manner, the potential access of a player to
competition and, as such, is violating one of his fundamental rights as a football
player” and that therefore “the de-registration of a player could in principle constitute
a breach of contract since it de facto prevents a player from being eligible to play for
his club”.
43. Based on the foregoing, the Chamber decided that the player could not objectively assume that
the club was interested in his services given his de-registration, and therefore that he had just
cause to terminate the Contract on 4 November 2022. The club therefore shall endure the
consequences that follow.
pg. 9
REF. FPSD-13059
ii. Consequences
44. 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.
45. The Chamber observed that there is no outstanding remuneration at the time of termination
that can be awarded, since the concepts requested are barred by the statute of limitations as
stated before.
46. 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.
47. 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.
48. 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.
49. 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 1,071,000 (i.e., the salaries and housing allowances due to the player from
November 2022 until May 2023 for EUR 153,000 montlhy) serves as the basis for the
determination of the amount of compensation for breach of contract.
50. 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.
pg. 10
REF. FPSD-13059
51. Indeed, the player found employment. In accordance with the pertinent employment contract,
the player was entitled to approximately USD 125,208 gross, which is equivalent EUR 115,000.
In this respect, the DRC noted that the player has not provided any evidence as to the tax
implications of his new salary, and therefore failed to meet his burden of proof to this effect.
As such, the DRC found that it should consider only the amounts as indicated in his new
contract with the MLS. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of EUR 115,000.
52. 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 did not
take place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall not receive additional compensation.
53. 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 956,000 to
the player (i.e. EUR 1,071,000 minus EUR 115,000), which was to be considered a reasonable
and justified amount of compensation for breach of contract in the present matter.
54. 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 4 November 2022 until the date of effective payment.
iii. Compliance with monetary decisions
55. 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.
56. 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.
57. 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.
pg. 11
REF. FPSD-13059
58. 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.
59. 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
60. 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.
61. 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.
62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
pg. 12
REF. FPSD-13059
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Tyler Dominic Boyd, is partially accepted insofar it is admissible.
2.
The Respondent, Besiktas AS, must pay to the Claimant EUR 956,000 as compensation for
breach of contract without just cause plus 5% interest p.a. as from 4 November 2022 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 indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 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 shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be
of up to 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 made by the end of
the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance with
art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 13
REF. FPSD-13059
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 Governing the Football
Tribunal).
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
pg. 14