Dispute Resolution Chamber
Texto da decisão
REF 20-01172
Decision of the
Dispute Resolution Chamber
passed on 28 April 2021
regarding an employment-related dispute concerning the player Héctor Miguel
CANTEROS
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
Pavel Pivovarov, (Russia), member
CLAIMANT:
Héctor Miguel Canteros, Argentina
Represented by Mr Ariel Reck
RESPONDENT:
MKE Ankaragucu Spor Kulubu, Turkey
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I.
FACTS OF THE CASE
1.
On 31 January 2019, the Argentinean player, Héctor Miguel Canteros (hereinafter: “the
Claimant” or “the player”), and the Turkish club, MKE Ankaragucu Spor Kulubu (hereinafter:
“the Respondent” or “the club”) signed an employment contract (hereinafter: “the
contract”) valid until 31 May 2020.
2.
Point II of the contract provided the remuneration that the club shall pay the player for the
season 2019/2020, i.e.:
2.1. A “Guaranteed Wage” amounting to EUR 100,000 payable in two equal instalments
of EUR 50,000 each on 31 July 2019 and 31 August 2019 respectively;
2.2. An “Additional Payment” amounting to EUR 500,000 payable in 10 equal, monthly
and subsequent instalments of EUR 50,000 each, from 31 August 2019 until 31 May 2020.
3.
On 26 February 2020, the player sent a default notice to the club requesting the amount of
EUR 100,000 granting a 15- days deadline to remedy its default, to no avail.
4.
On 20 March 2020, the player sent a communication to the club by means of which, he
terminated the contract due to the lack of response of the default notice and lack payment
of the instalments contractually agreed.
5.
On 27 March 2020, the Turkish Football Federation registered the termination of the
contract.
6.
The Claimant stated that, at the moment, of expiry of the instalment due on 31 December
2019 (EUR 50,000), the club, without any reason, refused to continue paying the additional
remuneration agreed in point 2.2 of the contract.
7.
Moreover, the Claimant stated that the club de-registered the player for the second half of
the season 2019/2020.
8.
According to the player, the conditions stipulated in art. 14bis of the RSTP were fulfilled,
based on the club´s failure to fulfil its financial obligations, despite the default notice sent
on 26 February 2020.
9.
The player further argued that the club did not reply to any of his communications and it
did not show any interest in the player´s services. Therefore, the player deemed that the club
should pay compensation for the unjustified breach of the contract in accordance with art.
17 of the RSTP.
10.
As a result, the Claimant requests the total amount of EUR 250,000 as follows:
• EUR 100,000 as outstanding remuneration by March 2020;
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• EUR 150,000 as compensation corresponding to the residual value of the contract
equivalent to three monthly additional remuneration related to February 2020; March 2020
and May 2020.
• an annual interest at a rate of 5% applicable from the date of termination, i.e. 20 March
2020;
• imposition of a ban on the club to register players for two registration periods in
accordance with art. 17.4 of the RSTP.
11.
The player informed FIFA not having signed an employment contract with a new club within
the period from the termination of the contract and its expiry date.
12.
The Respondent did not reply to the claim.
II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the Chamber”
or “the 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 17 August 2020 and
submitted for decision on 28 April 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.
2.
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. b) of the
Regulations on the Status and Transfer of Players (edition February 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 an Argentinean
player and a Turkish club.
3.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 17 August 2020, the edition June 2020
edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand
as to the substance.
4.
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.
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5.
In this respect, the DRC observed that the Respondent did not submit its position to the
claim lodged against it by the Claimant, despite having been asked to do so by FIFA.
Therefore, the Chamber concluded that, in this way, the Respondent had renounced to its
right of defence and, thus, it had not formally contested the allegations of the Claimant.
6.
Bearing in mind the aforementioned, the DRC referred to art. 9 par. 3 of the Procedural
Rules and pointed out that in the present matter a decision shall be taken upon the
allegations and documents submitted by the Claimant.
7.
Moreover, 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.
8.
In addition, 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.
9.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that the parties concluded the contract, which was valid until 31 May 2020.
10.
The DRC further noted that according to the Claimant as from the month of December
2019, the Respondent failed to pay his salaries on time, and despite having sent the default
notice to the Respondent, the latter did not honour its contractual obligations in due course.
11.
What is more, the DRC acknowledged that on 17 August 2020, the Claimant lodged the
present claim against the Respondent, claiming that on 20 March 2020, he terminated the
contract with just cause (cf. art. 14bis of the Regulations) and consequently the Respondent
should be held liable to pay compensation for breach of contract.
12.
The Chamber underlined that it remained uncontested that at the moment of the
termination of the contract (i.e. 20 March 2020), the Respondent owed the Claimant three
monthly salaries corresponding to December 2019, January 2020 and February 2020.
13.
Taking into account the consideration under point II.3 above, the DRC referred to art. 14bis
par. 1 of the Regulations, which, inter alia, stipulates that, in case a club unlawfully fails to
pay a player at least two monthly salaries on their due dates, the player will be deemed to
have had a just cause to terminate his contract, provided that he has put the debtor club in
default in writing and has granted it a deadline of at least 15 days to fully comply with its
financial obligations.
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14.
Consequently, on account of the above and considering that, when the player terminated
the contract, at least two monthly salaries were due despite the fact that the player provided
the club with 15 days to remedy the default via the notice sent on 26 February 2020, the
DRC concluded that, on 20 March 2020, the player had a just cause to unilaterally terminate
the employment contract as per art. 14bis of the Regulations.
15.
As a result, the DRC decided that the club is to be held liable for the early termination of the
employment contract with just cause by the player.
16.
Having established that the club is to be held liable for the early termination of the contract,
the DRC focused its attention on the consequences of such termination. Taking into
consideration art. 17 par. 1 of the Regulations, the DRC established that the player is entitled
to receive from the club compensation for breach of contract, in addition to any outstanding
payments on the basis of the contract.
17.
Along those lines, the DRC referred to the player’s request regarding outstanding
remuneration at the time of the termination of the contract. In this respect, the DRC
concurred that the club must fulfil its obligations as per the contract in accordance with the
general legal principle of “pacta sunt servanda”.
18.
At this stage, the DRC reiterated that the Respondent did not contest owing the requested
monthly salaries to the Claimant.
19.
Consequently, and bearing in mind that the player terminated the contract on 20 March
2020, the DRC decided that the club is liable to pay to the player outstanding remuneration
in the amount of EUR 150,000, consisting of three monthly salaries from December 2019
until February 2020 (EUR 50,000 each).
20.
In addition, taking into consideration the specific request of the player, the DRC decided to
award the latter interest at the rate of 5% p.a. on the aforementioned amount as from 20
March 2020 until the date of effective payment.
21.
Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the DRC decided
that the player is entitled to receive compensation for breach of contract from the club.
22.
In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract due to the player by the club in the case at stake. In
doing so, the DRC 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.
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23.
In application of the relevant provision, the DRC held that it first of all had to clarify whether
the pertinent employment contract contained any clause, by means of which the parties had
beforehand agreed upon a compensation payable by the contractual parties in the event of
breach of contract. In this regard, the DRC observed that the contract does not contain any
such clause.
24.
As a consequence, the members of the DRC determined that the amount of compensation
payable by the club to the player had to be assessed in application of the parameters set out
in art. 17 par. 1 of the Regulations.
25.
Bearing in mind the foregoing, the DRC proceeded with the calculation of the monies
payable to the player under the terms of the contract as from its termination and concluded
that the player would have been entitled to receive EUR 150,000 as remuneration had the
employment contract been executed until its regular expiry date, i.e. 31 May 2020.
26.
In continuation, the DRC verified as to whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income.
27.
In respect of the above, the DRC noted, that the player informed not having signed a new
employment contract after 20 March 2020 and therefore had not been able to mitigate his
damages. Therefore, no further deductions should be made to the amount of EUR 150,000,
in accordance with art. 17 par. 1 lit. i) of the Regulations.
28.
However, the Chamber observed that the Claimant requested a total amount of EUR
250,000 as outstanding remuneration and compensation and that the DRC already granted
the amount of EUR 150,000 as outstanding remuneration.
29.
Consequently, the DRC concluded that, in accordance with the general legal principles of
“pacta sunt servanda” and “non ultra petita”, and in light of the Claimant’s request, the
Respondent is liable to pay EUR 100,000 as compensation for breach of contract to the
Claimant.
30.
In addition, taking into account the Claimant´s request and the well-established
jurisprudence of the Dispute Resolution Chamber in this respect, the DRC decided that the
Respondent shall pay 5% interest p.a. on the amount of EUR 100,000 as from date of claim,
i.e. 17 August 2020 until the date of effective payment.
31.
Finally, taking into account the consideration under point II./3. above, 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.
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32.
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 and for the maximum
duration of three entire and consecutive registration periods.
33.
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, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
34.
The DRC recalled that the above-mentioned bans 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.
35.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by the Claimant.
36.
Finally, 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.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Héctor Miguel Canteros, is partially accepted.
2.
The Respondent, Club Ankaragucu Spor Kulübu, has to pay to the Claimant, the following
amounts:
- EUR 150,000 as outstanding remuneration plus 5% interest p.a. from 20 March 2020 until
the date of effective payment and
- EUR 100,000 as compensation plus 5% interest p.a. from 17 August 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.
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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:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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