Labour Disputes
Texto da decisão
REF FPSD-3155
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Alan Lima
Carius
COMPOSITION:
HENDEL Clifford J. (USA & France), Deputy Chairperson
ATILIO TARABORELLI Alejandro (Argentina), member
MARIS JUNCOS Stella (Argentina), member
CLAIMANT / COUNTER-RESPONDENT 1:
Alan Lima Carius, Brazil
Represented by Pedro Macieirinha
RESPONDENT / COUNTER-CLAIMANT:
Tuzlaspor, Turkey
Represented by Ercan Sevdimbas
COUNTER-RESPONDENT 2:
Al Adalah, Saudi Arabia
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I.
Facts of the case
1.
On an unspecified date, the Brazilian player Alan Lima Carius (hereinafter: the player or the
Claimant) and the Turkish club, Tuzlaspor (hereinafter: the club or the Respondent) concluded
an employment contract valid for the seasons 2020/2021 and 2021/2022 (hereinafter: the
contract).
2.
In accordance with art. 6.1 of the contract, the player was entitled to receive inter alia from
the club following net amounts:
Season 2020/2021: EUR 80,000, broken down as follows:
- EUR 80,000 in 4 equal instalments of EUR 20,000 each, payable at the end of each
month, between 28.02.2021 and 30.04.2021;
- EUR 30,000 as bonus in case of promotion of the club to the Turkish Super League,
paid pro rata on the basis of the matches played by the player.
Season 2021/2022: EUR 180,000, broken down as follows:
- EUR 50,000 as “guarantee fee”;
- EUR 130,000 in 10 equal instalments of EUR 13,000 each, payable at the end of
each month, between 31.08.2021 and 31.05.2022.
3.
According to the information available in the Transfer Matching System (TMS), the season in
Turkey are as follows:
-
4.
Season 2020/2021: from 11 September 2020 to 30 June 2021;
Season 2021/2022: from 30 July 21 to 30 June 2022.
On 18 June 2021, via a letter enclosed to an email addressed to [email protected] ,
the player put the club in default of payment of EUR 55,000 as indicated below, granting a
deadline of 15 days for it to cure its breach:
a. EUR 20,000 as salary of February 2021;
b. EUR 20,000 as salary of March 2021;
c. EUR 15,000 as salary of April 2021.
5.
On 24 June 2021, the player wrote to the club’s translator via electronic application
WhatsApp and inquired if the club had received its notice. The translator replied that it had
not and indicated e-mail [email protected] to the player.
6.
On the same date, the player forwarded his default notice to e-mail [email protected].
7.
On 3 July 2021, via a letter enclosed to an email addressed to [email protected],
[email protected] and [email protected] the player terminated the contract in
writing.
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8.
9.
On 4 July 2021, the player forwarded the termination letter to [email protected].
On 5 July 2021, the player forwarded the termination letter to [email protected];
[email protected] and [email protected].
10. On the same date, the club replied to the player and indicated that it had received his default
notice only on 24 June 2021, which it thus considered as the only valid date of notification.
The club also pointed out that even if it was to consider 18 June 2021 as the correct date,
the player was only entitled to terminate the contract on 4 July 2021. The club deemed that
the player did not have just cause and reserved its rights to seek compensation.
11. On 9 July, the player sent his reply to the club. He pointed out that the e-mail found in his
default notice was found on the website soccerway.com since the club’s contact details were
not listed in TMS, the club’s website, or the Turkish Football Federation (TFF) website. He
furthermore rejected the club’s position and reiterated that he had validly terminated the
contract.
12. Subsequently, the player and the Saudi Club, Al Adalah signed an employment contract valid
as from 15 July 2021 until 14 June 2022 for a total fixed remuneration, as follows:
a. USD 40,000 net at the delivery of the player’s International Transfer Certificate (ITC);
b. 11 monthly instalments of USD 14,546 net.
II. Proceedings before FIFA
13. On 27 July 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
14. The player lodged a claim before FIFA for outstanding remuneration and compensation for
breach of contract. The player argued that he had just cause to terminate the contract and
requesting to be awarded the following amounts:
a. Outstanding remuneration of EUR 50,000 plus “interests at 5% rate since the overdue
dates until effective payment”:
- EUR 20,000 as salary of February 2021;
- EUR 20,000 as salary of March 2021;
- EUR 10,000 as salary of April 2021.
b. Compensation for breach of contract: EUR 180,000 “interests at 5% rate since 19 July
2021 until effective payment”.
15. The player referred to his default notice and termination letter and claimed on the basis of
art. 14bis of the Regulations on the Status and Transfer of Players (RSTP) that he had just
cause to terminate the contract.
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b. Reply and counterclaim of the club
16. In its reply, the club rejected the player’s claim and lodged a counterclaim against him for
breach of contract.
17. The club affirmed that the player’s default notice was received on 24 June 2021 and not 18
June 2021 as indicated in its reply to the player of 5 July 2021. On this account, the club
deems that the player did not comply with the requisites of art. 14bis RSTP and terminated
the contract without just cause in a premature fashion.
18. Additionally, the club stated that even if the date of 18 June was to be considered, the player
should have waited until 4 July 2021 and not 3 July 2021 to terminate the contract. The club
is of the position that it could pay the player, in the worst-case scenario, by 3 July 2021,
23h59 pm.
19. The club rejected the player’s position and argued that it indeed had an email indicated in
TMS, [email protected], but the player insisted to use one found in another website.
The club rejects that the emails used by the player on his default notice belong to the club.
20. Consequently, the club rejected the claim of the player in its entirety and lodged a
counterclaim against the player and requested compensation for breach of contract in the
amount of EUR 130,000, which corresponds, according to the club, to the residual value of
the contract minus EUR 50,000 owed to the player.
21. To this end, the club was of the position that the player failed to mention a payment of EUR
5,000 made in April 2021.
c. Reply to the counterclaim by the player
22. The player in his reply to the counterclaim confirmed that the default notice had a “typo”
and that the actual amount owed was EUR 50,000 and not EUR 55,000. He reiterated his
position to have terminated the contract with just cause and that no compensation is payable
to the club.
23. To this end, the player underlined that his default notice was sent and delivered on 18 June
2021.
24. Alternatively, the player argued that art. 17 (ii) of the FIFA RSTP should apply and that
“mitigated compensation” should apply in the calculation.
d. Reply to the counterclaim by the Al Adalah
25. Al Adalah submitted a short reply as follows:
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“Based on the evidence and documents that the player (Alan Lima Carius, Brazil) presented
to Aladalah Club, Saudi Arabia showing the correctness of his position and the soundness of
the procedures followed and in accordance with the Regulations on the Status of Players and
their Transfers, he was signed.
Note that the validity of the documents submitted by the player is considered under his own
responsibility, and he indicated that he bears any legal consequences for his unilateral
termination.
While confirming that we are aware of the player's presentation of the sequence of events
and procedures in a way that confirms the player's legal right to unilateral termination for a
legitimate reason according to what is stated in Article 14 of the above-mentioned regulation
after his official notification to his previous club ( Tuzlaspor, Turkey) on 06-18-2021 of the
unilateral termination of the contract, due to non-commitment of the club to pay the arrears
within 15 days, which the club failed to achieve, so the contract was terminated on 3-72021”.
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 27 July 2021 and submitted for decision on
12 November 2021. Taking into account the wording of art. 34 of the October 2021 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 (August 2021 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 a Brazilian player and
a Turkish club, with the involvement of a Saudi club.
28. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition), and
considering that the present claim was lodged on 27 July 2021, the February 2021 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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b. Burden of proof
29. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 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 following facts remained undisputed:
a. The player was owed EUR 50,000 by June 2021;
b. The player retrieved the email used in his default notice of 18 June 2021 from an unofficial
source;
c. The club was served a default notice for EUR 55,000 on 24 June 2021 and filed no reply
thereto;
d. The player terminated the contract on 3 July 2021.
32. At the same time, the DRC recalled that the parties dispute if the player terminated the
contract with just cause or not, and the consequences thereof.
33. From the above together with the evidence on file, the DRC concluded that the only valid
notice is the one of 24 June 2021, since it cannot be accepted that the email address found
in an unofficial website belongs to the club, moreover because the player possessed one email
indicated in TMS. On that note, the DRC confirmed that the email [email protected]
is recorded to the club’s TMS account since 2013.
34. It followed from the foregoing that the time lapse between the default notice and the
termination of the contract is shorter than the 15-day deadline established under art. 14bis
of the Regulations. The DRC confirmed that criteria of said article is thus not met. However,
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the DRC highlighted that this does not mean per se that the player did not have just cause to
terminate the contract.
35. The Chamber deemed it appropriate to remind the parties that only a breach or misconduct
which is of a certain severity justifies the termination of a contract. 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.
Hence, if there are more lenient measures which can be taken in order to ensure the fulfilment
of the contractual duties by the counterparty, such measures must be taken before
terminating an employment contract. A premature termination of an employment contract
can only ever be an ultima ratio measure.
36. In this respect, the DRC noted again that the club does not dispute owing the amounts sought
by the player, and that in spite of being in default, it did not cure its breach, nor respond to
the player’s default notice, in spite of the fact that the player sought, at that moment, more
money than he was entitled to.
37. The DRC was satisfied that the player could not reasonably expect the continuation of the
employment relationship based on the overall developments of the case, even more so since
the amount he was owed amounted 2.5 salaries and he had given advanced warning to the
club. Equally, the DRC found that the club, by not responding to the default notice, generated
the impression that it did not object to the player’s position, entailing that the club’s
behaviour bears a significant weight on the termination of the contract.
38. Hence, the DRC found that player had just cause to terminate the contract under art. 14 of
the Regulations and that the club must bears the consequences that follow.
ii. Consequences
39. 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 club.
40. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the full salaries of
February and March 2021, as well as half of the salary of April 2021 under the contract,
amounting to EUR 50,000 net.
41. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the club is liable to pay to the player the amounts which were
outstanding under the contract at the moment of the termination, as detailed above.
42. In addition, 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 at the rate of 5%
p.a. on the outstanding amounts as from their due dates until the date of effective payment.
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43. 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.
44. 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.
45. 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.
46. 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 180,000 net (i.e. the residual value of the contract comprising of the
season 2021/2022) serves as the basis for the determination of the amount of compensation
for breach of contract.
47. 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.
48. Indeed, the player found employment with Al Adalah. In accordance with the pertinent
employment contract, the player was entitled to USD 192,733 for the overlapping period.
Therefore, the Chamber concluded that the player mitigated his damages in the total amount
of EUR 165,000.
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49. 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 took
place due to said reason i.e. overdue payables by the club, and therefore decided that the
player shall receive additional compensation.
50. In this respect, the DRC decided to award the amount of additional compensation of EUR
45,000, i.e. three times the monthly remuneration of the player, considering that his average
remuneration was EUR 15,000 (i.e. EUR 180,000 per season, divided by 12 months).
51. 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 60,000
to the player (i.e. EUR 180,000 minus EUR 165,000 plus EUR 45,000), which was to be
considered a reasonable and justified amount of compensation for breach of contract in the
present matter.
52. 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 the date of the claim until the date of effective payment.
iii. Compliance with monetary decisions
53. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
54. 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.
55. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the
decision, failing which, at the request of the player, 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 club in accordance with art.
24bis par. 2, 4, and 7 of the Regulations.
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56. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
57. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8 of
the Regulations.
d. Costs
58. 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.
59. 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.
60. 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/Counter-Respondent 1, Alan Lima Carius, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Tuzlaspor, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent 1 the
following amounts:
- EUR 20,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2021
until the date of effective payment;
- EUR 20,000 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2021
until the date of effective payment;
- EUR 10,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2021
until the date of effective payment;
- EUR 60,000 net as compensation for breach of contract without just cause plus 5% interest
p.a. as from 27 July 2021 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent 1 are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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/Counter-Claimant 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.
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7.
The consequences shall only be enforced at the request of the Claimant/CounterRespondent 1 in accordance with art. 24bis par. 7 and 8 and art. 24ter of the Regulations
on the Status and Transfer of Players.
8.
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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