Labour Disputes
Texto da decisão
REF FPSD-6574
Decision of the
Dispute Resolution Chamber
passed on 15 September 2022
regarding an employment-related dispute concerning the player Massimo
Bruno
BY:
Frans de Weger (Netherlands), Chairperson
Tomislav Kasalo (Croatia), member
Jerome Perlemuter (France), member
CLAIMANT:
Massimo Bruno, Belgium
Represented by Ruiz Huerta & Crespo
RESPONDENT:
Bursaspor Kulübü Derneği, Türkiye
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REF FPSD-6574
I. Facts of the case
1.
On 14 May 2021, the Belgian player, Massimo Bruno (hereinafter: the Claimant or the
Player), and the Turkish club, Bursaspor Kulübü Derneği (hereinafter: the Respondent or
the Club) signed an employment contract divided into two separate documents (jointly
referred to as: the Contract) labelled by as “Professional Player Transfer Contract” and
“Additional Protocol”, with the entire labour relationship to be valid as from 14 May 2021
until 31 May 2023.
2.
In accordance with the Professional Player Transfer Contract, for the season 2021/2022,
the Respondent undertook to pay the Claimant a total remuneration of EUR 100,000,
broken down as follows:
“1
A.
In total, a net warranty fee of 100,000 EUR will be paid.
As Advance Payment 10.000 EUR will be paid at the date of signing the contract.
As Balance fee the player will be paid net 90.000,00 EUR in the following terms:
31.08.2021
30.09.2021
31.10.2021
30.11.2021
31.12.2022
31.01.2022
28.02.2022
31.03.2022
30.04.2022
31.05.2022
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR”
3.
For the season 2022/2023, another EUR 10,000 to be paid at the date of signing was
agreed as “Advance payment fee”, whereas further EUR 90,000 were to be paid according
to the same schedule above indicated.
4.
Moreover, the Claimant and the Respondent (hereinafter also referred to as: the Parties)
stipulated a bonus of EUR 50,000 in favour of the Claimant in case he had contributed to
at least 12 between goals and assists during the season 2021/2022.
5.
Finally, the Professional Player Transfer Contract provided for some “Fringe Benefits” to
the Claimant, in particular, an accommodation and two round-trip economy flight tickets
for the entire Claimant’s family.
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REF FPSD-6574
6.
With respect to the Additional Protocol, the Respondent undertook to pay the Claimant
further 500,000 EUR broken down as below:
“1
A.
In total, a net warranty fee of 500,000 EUR will be paid.
As Advance Payment 90.000 EUR will be paid at the date of signing the contract.
As Balance fee the player will be paid net 410.000,00 EUR in the following terms:
31.08.2021
30.09.2021
31.10.2021
30.11.2021
31.12.2022
31.01.2022
28.02.2022
31.03.2022
30.04.2022
31.05.2022
7.
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000 EUR
9.000EUR
9.000 EUR”
Furthermore, Art. 10 of the Professional Player Transfer Contract states that:
“If this contract is terminated prematurely without just cause by the Club or terminated
prematurely with just cause by the Player, the Player will be entitled to received as amount of
compensation the full residual value of the contract not subject to mitigation for any
circumstance […].”
8.
On 12 January 2022, the Claimant put the Respondent in default of EUR 350,000 as
outstanding remuneration, granting 15 days to remedy the breach.
9.
On 29 April 2022, the Claimant sent a second default letter demanding the sum of 370,000
EUR and granting further 15 days as ultimate deadline to remedy the breach.
10. By means of correspondence dated 17 May 2022, the Claimant notified to the Respondent
the unilateral termination of the Contract for overdue payables.
11. On 1 July 2022, the Claimant signed a new employment contract with the Belgian club KV
Kortrijk, to be valid as from said date until 30 June 2025.
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REF FPSD-6574
II. Proceedings before FIFA
12. On 30 June 2022, 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
13. In his claim, the Claimant argued that the Respondent failed to comply with its financial
obligations, delaying in the payment of more than 6-months salaries before leaving the
Claimant with no alternatives but to terminate the Contract.
14. In particular, the Claimant stated that the Respondent failed to pay all the salaries due
between November 2021 (EUR 41,000 only) and May 2022 (i.e. EUR 50,000 x 6 = EUR
300,000) in addition to the bonus of EUR 50,000 which had become due on 8 May 2022
since at that time the Claimant had contributed to 12 between goals and assist during the
season 2021/2022.
15. Therefore, the Claimant held to be entitled to terminate the Contract on 14 May 2022 due
to the consistency of the overdue payables amounting to EUR 391,000, i.e. largely more
than 2 month salaries.
16. Accordingly, the Claimant’s request for relief was the following:
-
“EUR 391,000 as outstanding remuneration
EUR 500,000 as compensation
EUR 8,000 as reimbursement for accommodation
A compensation for all the bonuses that the Claimant would have perceived if he had not
terminated the Contract
Additional compensation per egregious circumstances, corresponding to three salaries
5% interest on all the awarded sums”.
b. Position of the Respondent
17. In its reply, the Respondent argued that the Claimant terminated the Contract without
just cause, namely because the latter failed to properly notify in writing the club.
18. In particular, the Respondent argued that the email address adopted by the Claimant for
his communication was not indicated on the Contract, hence every notification shall be
deemed as invalid and not received.
19. Furthermore, the Respondent submitted several payment receipts, thus alleging to have
complied - at least in part - with its financial obligations and requested to reject the claim
in its entirety.
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c. Claimant’s additional comments
20. The Claimant was invited, on the grounds of article 23 par. 2 of the Procedural Rules
Governing the Football Tribunal, to file his comments on the proof of payments filed by
the Respondent.
21. In this respect, the Claimant refused to acknowledge the payment receipts produced by
the Respondent, and conversely argued that most of them were referring to older
payments or were illegible or duplicated.
22. Furthermore, the Claimant requested that the compensation to be awarded shall not be
subject to any mitigation, in accordance with Art. 10 of the Professional Player Transfer
Contract.
23. Regarding the lack of just cause for the termination of the Contract due to the Claimant’s
alleged failure to notify the Respondent in writing, the Claimant argued to have used the
email
indicated
on
the
Respondent’s
official
website
(i.e.,
https://www.bursaspor.org.tr/iletisim) which is globally accessible.
24. Moreover, in the Claimant’s view, a further proof of the above would be represented by
the fact that the same FIFA would adopt the mentioned email address to communicate
with the Respondent in formal way.
25. Consequently, the Claimant upheld to have satisfied all the criteria required by FIFA
relevant regulations and by the Contract, hence he reiterated his requests for relief as per
the relevant claim.
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 30 June 2022 and submitted
for decision on 15 December 2022. Taking into account the wording of art. 34 of the June
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.
27. 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 (July 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
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employment-related dispute with an international dimension between a Belgian 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 Players (July 2022 edition) and
considering that the present claim was lodged on 30 June 2022, the June 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
29. 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
30. 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
31. 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 justification of the
early termination of the contract by the Claimant, based on the alleged non-payment of
certain financial obligations by the Respondent as per the Contract, thus in accordance
with art. 14bis of the Regulations.
32. In particular, the DRC observed that, according to the Claimant, at the time of the
termination the following amounts had remained outstanding:
EUR 41,000 as partial salary due for November 2021
EUR 50,000 as salary due for December 2021
EUR 50,000 as salary due for January 2022
EUR 50,000 as salary due for February 2022
EUR 50,000 as salary due for March 2022
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EUR 50,000 as salary due for April 2022
EUR 50,000 as salary due for May 2022
EUR 50,000 as bonus matured on 8 May 2022
33. In this respect, the Chamber recalled that the Claimant sent two default notices to the
Respondent on 12 January 2022 and 29 April 2022 granting in both circumstances 15 days
to the Respondent in order to remedy the default.
34. In this context, the Chamber took note that according to the Respondent, the Claimant
failed to notify in writing the unilateral termination of the Contract in accordance with the
terms stipulated by the Parties, namely due to the adoption of a wrong email address
which was not mentioned in the Contract.
35. Moreover, the Respondent stated that also the previous default letters were incorrectly
dispatched by the Claimant as the latter sent them to the abovementioned electronic
address only, hence said communications shall be deemed as invalid.
36. In this respect, the DRC wished to remark that, in spite of the fact that the Contract did
not indicate any specific email address to be used for the official correspondence with the
Respondent, the address adopted by the Claimant either for the default letters and for
the termination notice corresponds to the one indicated by the Respondent on its official
website as well as the one indicated in the FIFA TMS for all formal communications.
37. In fact, the Chamber wished to highlight that the said email address has been successfully
used for the present procedure as well.
38. Therefore, the Chamber decided to reject the thesis sustained by the Respondent and
considered the notifications made by the Claimant as valid.
39. In continuation, the Chamber observed that the Respondent produced several receipts
of payment allegedly made in favour of the Claimant without, however, providing any
clarification regarding the effective purpose of each document nor indicating whether any
of the alleged payments should be deducted from the amounts claimed by the Claimant
as outstanding.
40. In this respect the Chamber noted that the Claimant refused to acknowledge the content
of the mentioned documents whereas some of them appear to belong to payments made
in Turkish Lira and cannot therefore be considered as salary payments, hence the DRC
decided to disregard the said files.
41. Accordingly, the Chamber determined that the files produced by the Respondent cannot
be considered as decisive and conclusive documentary evidence, on the basis of which it
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could be established that the Respondent complied with its financial obligations as per
the Contract in line with article 13 par. 5 of the Procedural Rules.
42. In light of all the above considerations, the Chamber acknowledged that, based on the
evidence presented by the parties, at the moment of the termination all the claimed
amounts had in fact remained unpaid by the Respondent, except for the salary related to
May 2022, which relevant due date was 31 May 2022.
43. Nevertheless, in consideration of the significant consistency of the outstanding sums
abovementioned, the DRC ascertained that the formal pre-requisites of art. 14bis of the
Regulations had been fulfilled and the Claimant had just cause to terminate the Contract
on 17 May 2022.
44. Notwithstanding the above, with regard to the Claimant’s request for reimbursement of
the accommodation fees, the Chamber observed that the Claimant did not provide any
evidence regarding the expenses he allegedly incurred between October 2021 and May
2022.
45. In this respect, the DRC observed that the Contract does not specify the amount that the
Respondent should have paid every month for the Claimant’s housing, but rather
indicates that the Respondent would have merely provided a house, hence the Chamber
is not in a position to establish the effective value and authenticity of the claimed
expenses.
46. Equally, the Chamber determined that it cannot welcome the Claimant’s demand for all
the bonuses virtually due to the latter by the Respondent in case the Contract had not
been terminated, namely because the mentioned bonuses, although stipulated by the
Parties, were being subject to the satisfaction of uncertain conditions which cannot be
ascertained a priori.
ii. Consequences
47. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of the unjustified breach of contract committed by the
Respondent.
48. The Chamber observed that the outstanding remuneration at the time of termination
corresponded to the following amounts:
EUR 41,000 as partial salary due for November 2021
EUR 50,000 as salary due for December 2021
EUR 50,000 as salary due for January 2022
EUR 50,000 as salary due for February 2022
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EUR 50,000 as salary due for March 2022
EUR 50,000 as salary due for April 2022
EUR 50,000 as bonus for achieving 12 goals/assists, matured on 8 May 2022
49. 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 341,000.
50. 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 respective due dates until
the date of effective payment.
51. 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.
52. 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.
53. In this regard, the Chamber observed that under Art. 10 of the Professional Player
Transfer Contract, the Parties expressly stipulated that, in case of termination with just
cause by the Claimant, the compensation to be paid by the Respondent shall disregard
any potential mitigation, hence it shall correspond to the entire residual value of the
Contract.
54. In this respect, the DRC remarked that the above clause appears to be consistent with the
scope of art. 17 of RSTP, hence it shall be deemed as valid and applicable in casu.
55. 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
sole Art. 10 of the Professional Player Transfer.
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REF FPSD-6574
56. 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 550,000 to the Claimant (i.e. EUR 50,000 as salary for May 2022 plus EUR
500,000 as total remuneration for the season 2022/2023), which was to be considered a
reasonable and justified amount of compensation for breach of contract in the present
matter.
57. Lastly, 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 on said
compensation at the rate of 5% p.a. as of 30 June 2022 until the date of effective payment.
iii. Compliance with monetary decisions
58. 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.
59. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist, in principle, of a ban from registering
any new players, either nationally or internationally, up until the due amounts are paid.
60. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par.
3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
61. In this respect, the Chamber recalled that by means of decision passed on date 15
September 2022 and notified on 4 October 2022, a transfer ban has been imposed on the
Respondent pursuant to art. 17 par. 4 of the Regulations (i.e., namely in the case FPSD6212, decided on 15 September 2022).
62. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall
apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
63. In view of the above, the DRC decided that if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Claimant, to the FIFA Disciplinary Committee for its consideration
and formal decision.
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64. 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.
d. Costs
65. 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.
66. 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.
67. 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, Massimo Bruno, is partially accepted.
2.
The Respondent, Bursaspor Kulubu Dernegi, has to pay to the Claimant, the following
amount:
EUR 41,000 as outstanding remuneration plus 5% interest p.a. as from 30 November
2021 until the date of effective payment.
EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 31 December
2021 until the date of effective payment.
EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 31 January 2022
until the date of effective payment.
EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 28 February
2022 until the date of effective payment.
EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 31 March 2022
until the date of effective payment.
EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 30 April
2022until the date of effective payment.
EUR 50,000 as outstanding amount plus 5% interest p.a. as from 9 May 2022 until the
date of effective payment.
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EUR 550,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 30 June 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 within 30 days of notification
of this decision.
5.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
6. 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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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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