Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 21 February 2020,
in the following composition:
Clifford Hendel (US A), Deputy Chairman
Tom is lav Kas alo (Croatia), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the club,
Trabzons por, Turkey
represented by Mr Juan de Dios Crespo Pérez
as Claimant / Counter-Respondent
against the player,
Es teban Alv arado Brow n, Costa Rica
represented by Mr Alberto Ruiz Diaz-Obregon
as Respondent I / Counter-Claimant
and against the club,
LD Alajuelens e, Costa Rica
as Respondent II
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
The Claimant (hereinafter also referred to as Trabzonspor) and the first Respondent
(hereinafter also referred to as the player) concluded a first employment contract on
6 August 2015 (hereinafter: the 2015 contract), valid until 31 May 2017, according to
which the first Respondent was inter alia entitled to receive from the club the sum of
EUR 550,000 during the 2015/2016 season and EUR 550,000 during the 2016/2017
season.
2.
On 17 June 2017, the player the Trabzonspor signed a second employment contract
(hereinafter: the 2017 contract), valid until 31 May 2019, according to which the first
Respondent was inter alia entitled to receive from the club the sum of EUR 700,000
during the 2017/2018 season and the sum of EUR 700,000 during the 2018/2019
season, payable in 10 instalments of EUR 70,000 as from 31 August until 31 May of
the following year. The first Respondent was also entitled to receive from the club
the amount of EUR 50,000 as “living cost per season”.
3.
As per clause VI a) of the 2017 contract “in case of non-payment of two consecutive
salaries in full, the player should notify the club in writing. In this notification, the
player shall give 30 (..) days to the club for payment. If the club does not pay the
notified amount, then the player has the right to unilaterally terminate the contact.”
Equally, clause VI b) of the contract establishes: “if the player fields in less than 10
official games in a season, he is entitled to terminate this contract by paying net
700.000 € (..) to the club as buy-out. The player might only use this right during the
first month of first registration period and first week of second registration period
and first week of second registration period declared by TFF for 2018-2019 football
season.”
4.
On 30 May 2018, Trabzonspor and the player concluded a settlement agreement in
relation to overdue payables resulting from the 2015 contract, by means of which the
Claimant undertook to pay to the first Respondent outstanding remuneration in the
amount of EUR 420,000 as well as EUR 130,000 as “other payables”, as follows: EUR
210,000 on 30 May 2018; EUR 110,000 on 27 August 2018; EUR 110,000 on 27
September 2018 and EUR 120,000 on 30 October 2018.
5.
By means of a correspondence dated 5 November 2018 (hereinafter: the default
notice), the first Respondent requested from the Claimant the payment of the total
amount of EUR 490,000, corresponding to EUR 230,000 due as per the settlement
agreement as well as EUR 260,000 in accordance with the 2017 contract, within 30
days.
6.
On 18 December 2018, the first Respondent terminated the 2017 contract alleging
just cause. In the relevant document, the first Respondent accused the Claimant of
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
having failed to pay him the sum of EUR 490,000 due although he had duly put the
latter in default on 5 November 2018.
7.
On 21 March 2019, Trabzonspor lodged a claim at FIFA against the player and his new
club Alajuelense, claming that the player terminated the 2017 contract without just
cause in order to avoid having to pay the sum of EUR 700,000 as buy out and so return
to Costa Rica.
8.
According to the Claimant, at the time the termination of contract had occurred, the
amount of EUR 450,000, corresponding to EUR 120,000 under the settlement
agreement and EUR 330,000 due as per the 2017 contract, had been outstanding.
However, the Claimant alleged having been given an additional deadline by the first
Respondent in order to pay the outstanding amounts. As further alleged by the
Claimant, the first Respondent had agreed to receive the sums in question by no later
than 24 December 2018, as evidence of which it presents an exchange of whatsapp
messages dated 15 December 2018. Hence, the Claimant was of the opinion that the
2017 contract had been terminated “seven days in advance of the deadline that was
renegotiated” and that the first Respondent had been prevented it from meeting
“its financial obligations as agreed”.
9.
The Claimant referred to clause VI b) of the 2017 contract and argued that because
the first Respondent had only been fielded in 9 matches during the 2017/18 –
2018/2019 season the latter would have been entitled “to avail himself of the buyout clause”.
10.
From the Claimant’s, it had been “deprived” of the “ability of either negotiating a
transfer or [of] having the buy-out exercised and receiving € 700,000”.
11.
Hence and in accordance with Swiss Law, the Claimant deemed being entitled to
claim from the first Respondent as well as from the second Respondent in line with
art. 17 par. 2 of the RSTP compensation for the loss incurred in the amount of EUR
250,000, corresponding to the buyout sum of EUR 700,000 minus the amount of EUR
450,000 due to the first Respondent. The Claimant also requested the payment of
CHF 15,000 as contribution towards the costs incurred.
12.
On 23 July 2019, the first Respondent contested the claim of the Claimant and lodged
a counterclaim against the latter requesting the payment of the outstanding amount
of EUR 450,000 plus, 5% interests p.a.
13.
The first Respondent pointed out that the Claimant had repeatedly failed to comply
with the financial provisions included in both the 2015 and 2017 contracts and that
the latter had only paid the first instalment due as per the settlement agreement on
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
time. Equally, the first Respondent accused the Claimant of having failed to pay his
salary of August, September and October 2018.
14.
In continuation, the first Respondent pointed out that by the time the default notice
had been sent to the Claimant, three monthly salaries under the 2017 contract had
been outstanding and the Respondent had failed to partially comply with the
settlement agreement.
15.
As a result and because the Claimant had subsequently only proceeded with the
payment of the sum of EUR 110,000 on 22 November 2018 payable under the
settlement agreement, the first Respondent deemed having had just cause to
terminate the 2017 contract on 18 December 2018 in line with its clause IV) a). The
first Respondent added that, by that point, the Respondent had failed to pay him the
following amounts: EUR 280,000, corresponding to his salary of August, September,
October and November 2018; EUR 50,000, corresponding to the “living cost” due for
the 2018-2019 season and EUR 120,000 out of the settlement agreement.
16.
The first Respondent contested the allegation of the Claimant that he would have
agreed on extending the deadline for the payment of the outstanding amount of
EUR 450,000 until 24 December 2018. The first Respondent pointed out that, if at all,
his agent, on 15 December 2018, after the expiry of the deadline included in the
default notice, i.e. 9 December 2018, had inquired with the Claimant he could expect
a payment.
17.
In view of all the aforementioned, the first Respondent considered being entitled to
claim from the Claimant, in addition to the outstanding amount of EUR 450,000, plus
5% interest p.a., the sum of EUR 420,000 as compensation in line with art. 17 RSTP
for having breached the 2018 contract (i.e. 6 monthly salaries of EUR 70,000 each).
18.
The second Respondent contested the claim of the Claimant arguing that the first
Respondent had terminated the 2017 contract with just cause before it had hired
him. The second Respondent added that, on 8 February 2019, FIFA had authorized
the provisional registration of the player with the Federacción Costarricense de
Futbol.
19.
The second Respondent further pointed out that, on 5 March 2019, its contractual
relationship with the first Respondent had been terminated by mutual agreement
and that, during the validity of the relevant contract, the player had never been
fielded in an official competition.
20.
Finally, the second Respondent contested having been involved in the termination of
the 2017 contract and alleged that it had only contacted the latter in January 2019.
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
21.
In response to the counterclaim of the first Respondent, the Claimant mainly
reiterated the content of its previous submission.
22.
In particular, the Claimant argued once again that the first Respondent had
terminated the 2017 contract without just cause. From the Claimant’s point of view,
the first Respondent “through his lawyer (..) gave the impression that he will accept
late payment as the date of the 24 December was offered to be valid”.
23.
According to the employment contract concluded on 10 January 2019 between the
first and the second Respondent, valid until the end of May 2019, the first
Respondent was entitled to receive the total amount of USD 25,000.v
II.
Cons iderations of the Dis pute Res olution Cham ber
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 submitted to FIFA on 21 March 2019.
Taking into account the wording of art. 21 of the 2019 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 (cf. article 21 par. 2 and 3 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2012), 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 Costa Rican player, a Costa Rican club and a Turkish club.
3.
Furthermore, 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, and considering
that the present claim was lodged on 21 March 2019, the June 2018 edition of said
regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. The members of
the Chamber started by acknowledging the facts of the case, as well as the
documentation contained in the file. However, the Chamber emphasised that in the
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
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.
5.
In this respect, the Chamber noted that while Trabzonspor deems that the 2017
contract was terminated without just cause by the player, induced by Alajuelense,
the player deems to have had a just cause to terminate the 2017 contract on 18
December 2018 and to claim outstanding amounts and compensation for the breach
of the latter by the club, as well as the payment of the amounts provided for in the
settlement agreement.
6.
The DRC highlighted that the central issue in the matter at stake would be, thus, to
determine whether the Claimant had a just cause to terminate the contract on 18
December 2018.
7.
In this context, the Chamber first noted that it is undisputed that when the
termination of the contract occurred the total amount of EUR 450,000, corresponding
to EUR 120,000 under the settlement agreement and EUR 330,000 due as per the
2017 contract, had been outstanding. This is even confirmed by Trabzonspor. In this
respect, it remained undisputed that on 18 December 2018 at least the Respondent’s
salaries of August, September, October and November 2018 from the 2017 contract
had remained unpaid.
8.
The Chamber also took due note of the argument of Trabzonspor, as per which the
player had allegedly agreed on extending the deadline for the payment of the
outstanding amounts, in accordance with whatsapp messages exchanged between
the agent of the player and Trabzonspor.
9.
In continuation, the DRC recalled that according to the legal principle of the burden
of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right
on the basis of an alleged fact shall carry the burden of proof.
10.
In view of the above, the DRC concluded that Trabzonspor failed to provide
substantial evidence of such a new contractual agreement referring to new deadlines
to pay the due remuneration to the player. The DRC considered that the whatsapp
messages do not constitute a contractual novum with regard to the obligations of
Trabzonspor to pay the player’s remuneration. Thus, this argument of Trabzonspor
could not be upheld.
11.
Furthermore, from the documentation on file the DRC could establish that on 5
November 2018 the player put Trabzonspor in default of payment of the
aforementioned salaries inter alia. As a result of the above, and considering that
more than 2 monthly salaries were outstanding and that de facto more than 15 days
had elapsed between the default notice and the termination of the contract by the
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
player, the latter had a just cause to terminate the 2017 contract on 18 December
2018, in accordance with art. 14bis of the Regulations. Thus, the player would be
entitled to receive from Trabzonspor compensation for the unjust breach.
12.
Before determining the amount of compensation due to the player, the Chamber
decided to determine the amount of outstanding remuneration due to the player, as
per the 2017 contract and the settlement agreement.
13.
In this respect, the DRC established that on 18 December 2018, the total amount of
EUR 450,000 had remained outstanding, corresponding to:
- EUR 120,000 for the last instalment of the settlement agreement;
- EUR 280,000 due as per the 2017 contract, i.e. 4 x EUR 70,000 (salaries from August
2018 until November 2018);
- EUR 50,000 as living costs.
14.
Considering the player’s claim and the jurisprudence of the Chamber, the DRC
decided to award on the aforementioned amounts interest of 5% p.a. as of the
relevant due dates.
15.
Having established the foregoing, the DRC focused its attention on the calculation of
the compensation due to the player by Trabzonspor for the unjust breach of the
contract.
16.
In this respect, the Chamber first 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.
17.
In application of the relevant provision, the DRC held that it first of all had to clarify
as to whether the pertinent employment contract contains 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 DRC
established that no such compensation clause was included in the contract at the
basis of the matter at stake. For the sake of completeness, the DRC clarified that
clause VI b) of the contract (cf. point I.3 above) is not applicable to the present case
as the contract was terminated based on outstanding remuneration and not
insufficient fielding. The conformity of the aforementioned clause will not be further
analysed.
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
18.
As a consequence, the DRC 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.
19.
Bearing in mind the foregoing as well as the counterclaim of the player, the DRC
proceeded with the calculation of the monies payable to the player under the terms
of the 2017 contract until 18 December 2018. In view of the foregoing, the DRC
concluded that the remaining value of the contract is EUR 420,000, corresponding to
6 x EUR 70,000 (i.e. salaries from December 2018 until May 2019).
20.
In continuation, the DRC 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 able to reduce his loss of income. According to art. 17 par. 1 point
ii) of the Regulations, such remuneration under a new employment contract shall be
deducted from the residual value of the contract that was terminated early, in the
calculation of the amount of compensation for breach of contract (“the mitigated
compensation”).
21.
In this respect, the DRC noted that indeed the player had concluded a new
employment contract with Alajuelense for a total amount of USD 25,000 during the
relevant period (EUR 22,500 approx.), leading to the amount of EUR 397,500 as a
mitigated compensation.
22.
Furthermore, the Chamber noted that the player would be entitled to receive
additional compensation in light of art. 17 par. 1 ii. of the Regulations. The additional
compensation amounts EUR 210,000 (3 x EUR 70,000).
23.
Since the overall compensation exceeds the residual value of the prematurely
terminated contract, the player would be entitled to receive EUR 420,000 as
compensation for breach of contract, plus 5% interest p.a. as of the date of claim.
24.
In light of the above, the DRC concluded its deliberations in the present matter by
establishing that the claim of Trabzonspor is rejected and the counterclaim of the
player is partially accepted.
25.
Furthermore, the DRC referred to par. 1 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.
26.
In this regard, the DRC pointed out that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
new players, either nationally or internationally, up until the due amounts are paid
and for the maximum duration of three entire and consecutive registration periods.
27.
Therefore, bearing in mind the above, the DRC decided that, in the event that
Trabzonspor does not pay the amount due to the player within 45 days as from the
moment in which the player, following the notification of the present decision,
communicates the relevant bank details to Trabzonspor, 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 Trabzonspor in
accordance with art. 24bis par. 2 and 4 of the Regulations.
28.
Finally, the DRC recalled that the above-mentioned ban will be lifted immediately
and prior to its complete serving upon payment of the due amount, in accordance
with art. 24bis par. 3 of the Regulations.
***
III.
Decision of the Dis pute Res olution Cham ber
1. The claim of the Claimant / Counter-Respondent, Trabzonspor, is rejected.
2. The counter-claim of the Respondent I / Counter-Claimant, Esteban Alvarado Brown,
is partially accepted.
3. The Claimant / Counter-Respondent has to pay to the Respondent I / Counter-Claimant
outstanding remuneration in the amount of EUR 450,000 plus interest as follows:
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
a) 5% interest p.a. on the amount of EUR 120,000 from 31 October 2018 until the
date of effective payment;
b) 5% interest p.a. on the amount of EUR 70,000 from 1 September 2018 until the
date of effective payment;
c) 5% interest p.a. on the amount of EUR 70,000 from 3 October 2018 until the date
of effective payment;
d) 5% interest p.a. on the amount of EUR 70,000 from 1 November 2018 until the date
of effective payment;
e) 5% interest p.a. on the amount of EUR 70,000 from 1 December 2018 until the date
of effective payment;
f) 5% interest p.a. on the amount of EUR 50,000 from 18 December 2018 until the
date of effective payment.
4. The Claimant / Counter-Respondent has to pay the Respondent I / Counter-Claimant,
compensation for breach of contract in the amount of EUR 420,000, plus 5% interests
p.a. from 24 July 2019.
5. Any further claim lodged by the Respondent I / Counter-Claimant is rejected.
6. The Respondent I / Counter-Claimant is directed to inform the Claimant / CounterRespondent, immediately and directly, preferably to the e-mail address as indicated on
the cover letter of the present decision, of the relevant bank account to which the
Claimant / Counter-Respondent must pay the amounts plus interest mentioned under
points 3. and 4. above.
7. The Claimant / Counter-Respondent shall provide evidence of payment of the due
amounts plus interest in accordance with points 3. and 4. above to FIFA to the e-mail
address [email protected], duly translated, if need be, into one of the official FIFA
languages (English, French, German, Spanish).
8. In the event that the amounts due, plus interest in accordance with points 3. and 4.
above, are not paid by the Claimant / Counter-Respondent w ithin 45 day s as from
the notification by the Respondent I / Counter-Claimant of the relevant bank details
to the Claimant / Counter-Respondent, the Claimant / Counter-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 (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
9. The ban mentioned in point 8. above will be lifted immediately and prior to its
complete serving, once the due amounts plus interest are paid.
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica
10. In the event that the aforementioned sums, plus interest, are 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 FIFA’s Disciplinary Committee for consideration
and a formal decision.
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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Club Trabzonspor, Turkey / Player Esteban Alvarado Brown, Costa Rica / Club LD Alajuelense, Costa Rica