Labour Disputes
Texto da decisão
REF FPSD-5767
Decision of the
Dispute Resolution Chamber
passed on 15 June 2022
regarding an employment-related dispute concerning the player Joseph
Champness
BY:
Frans de Weger (Netherlands), Chairperson
Johan van Gaalen (South Africa), member
Daan de Jong (Netherlands), member
CLAIMANT:
Joseph Champness, New Zealand
Represented by Griffins Lawyers
RESPONDENT:
Giresunspor Kulubu Dernegi, Turkey
Represented by Atahan Sevimli
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I.
Facts of the case
1.
On 15 August 2021, the New Zealand player Joseph Champness (hereinafter: the player) and
the Turkish club Giresunspor Kulubu Dernegi concluded an employment agreement
(hereinafter: the contract), valid between 15 August 2021 and 31 May 2024, ‘or any later
date on which an official matches played in respective football season’.
2.
What is more, based on article 7 of the contract, the following was agreed between the
parties: ‘The parties accept and undertakes, that in case the player plays in more than 15
official league matches of the club in the first 11 squad during the football season of
2023/2024, this contract shall be automatically prolonged for the football season 2024/2025
until 31st of May 2025, or any later date on which an official match is played in respective
football season. in case the above-mentioned success occurs, each party has a right to register
this automatic prolongment before Turkish Football Federation. In case this contract shall be
automatically prolonged for the football season 2024/2025, the player shall be paid in
accordance with the article 6/1 of this contract herein. The other classes of this contract shall
be remain in force’.
3.
Based on the contract, the player was entitled to the following amounts and entitlements:
Football season 2021/2022:
• EUR 200,000, payable in 10 equal instalments in the period between August 2021
and May 2022, on the last day of the relevant months;
• EUR 50,000 due on 15 September 2021.
Football season 2022/2023:
• EUR 300,000, payable in 12 equal instalments in the period between June 2022 and
May 2023, on the last day of the relevant months;
Football season 2023/2024:
• EUR 350,000, payable in 12 equal instalments in the period between June 2023 and
May 2024, on the last day of the relevant months;
Football season 2024/2025 (in the event the contract would be extended):
• EUR 400,000, payable in 12 equal instalments in the period between June 2024 and
May 2025, on the last day of the relevant months.
What is more, the player is entitled to a furnished an apartment, a car and three round trip
flight tickets from Giresun to Australia per season.
4.
On 2 March 2022, the player put the club in default for the outstanding salaries of November
2021, December 2021, January 2022 and February 2022, providing it to 15 days deadline to
remedy its default, however to no avail.
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5.
On 18 March 2022, the player unilaterally terminated the contract with the club, due to the
outstanding amounts.
6.
After the unilateral termination of the contract, the player remained unemployed.
II. Proceedings before FIFA
7.
On 14 April 2022, 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
8.
In his claim, the player explains that he deems that the termination was made with just cause
and that as a result, he is entitled to outstanding remuneration and compensation for breach
of contract.
9.
The requests for relief of the player, as amended, were the following:
Outstanding remuneration in the total amount of EUR 91,612.90, plus 5% interest p.a. as
from the respective due dates, as follows:
• EUR 20,000 as outstanding salary for November 2021;
• EUR 20,000 as outstanding salary for December 2021;
• EUR 20,000 as outstanding salary for January 2022;
• EUR 20,000 as outstanding salary for February 2022;
• EUR 11,612.90 as outstanding pro rata part of the salary of March 2022;
Compensation for breach of contract in the total amount of EUR 699,032.26, plus 5%
interest p.a. as from 19 March 2022, as follows:
• EUR 9,032.26 as residual value of the pro rata part of the salary of March 2022;
• EUR 40,000 as residual value of the salaries due between April and May 2022;
• EUR 300,000 as residual value of the salaries due between June 2022 and May
2023;
• EUR 350,000 as residual value of the salaries due between June 2023 and May
2024.
b. Position of the club
10. In its reply, the club argues that the player is only entitled to the pro rata of the amount of
EUR 50,000, which was due on 15 September 2021, as this amount was to be considered a
sign-on fee and the player had unilaterally terminated the contract on 18 March 2022. Thus,
the player would only be entitled to EUR 33,870.96 and not EUR 50,000.
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11. Following the above line of reasoning, the club deems that the player was only entitled to
EUR 173,870.96 and submitted payment receipts, totalling the amount of EUR 123,543.97,
as a result of which it deems that its debt towards the player only amounts to EUR 50,326.99.
In this respect, the payment receipts submitted by the club refer to both amounts paid in EUR
and TRY, and some of the receipts indicate that the payments were linked to bonuses.
12. What is more, in relation to the claimed compensation for breach of contract, the club
explains that the value of a potential new contract should be deducted from the amount
claimed by the player, and requests the DRC to wait with its decision until after the summer
transfer window of 2022.
c. Additional reply player to alleged payment
13. In reply to the alleged payments made by the club, the player denies that the amount of EUR
50,000 can be categorised as a “guarantee payment”.
14. What is more, the player confirms that he has received an additional payment of TRY 13,500
(or EUR 793) in the period between 2 March and 18 March 2022, and that as a result, the
outstanding amount should be EUR 90,819.90.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 14 April 2022 and submitted for decision
on 15 June 2022. 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.
16. 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 (March 2022 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 New Zealand player
and a Turkish club.
17. 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 (March 2022 edition), and
considering that the present claim was lodged on 14 April 2022, the March 2022 edition of
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said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
18. 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
19. 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
20. 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 justice of the early termination
of the contract by the player, based on the alleged non-payment of certain financial
obligations by the club as per the contract, in accordance with art. 14bis of the Regulations.
21. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the club and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had
in fact been fulfilled.
22. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate his contract,
provided that he has put the debtor club in default in writing and has granted a deadline of
at least 15 days for the debtor club to fully comply with its financial obligation(s).
23. The Chamber noted that the player claims not having received his remuneration
corresponding to the period between November 2021 and March 2022. Furthermore, the
Chamber noted that the player has provided written evidence of having put the club in default
on 2 March 2022, i.e. at least 15 days before unilaterally terminating the contract on 18
March 2022.
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24. The Chamber also noted that in the case at hand the club bore the burden of proving that it
indeed complied with the financial terms of the contract concluded between the parties.
25. Nonetheless, the Chamber noted that the evidence provided by the club, namely a group of
payments confirmations of payments made to the player, as well as a document from the
Turkish Ministry of Treasury and Finance does not prove beyond doubt the payment of the
amounts claimed as outstanding by the player. Furthermore, no reasonable justification was
presented by the club for not having complied with the terms of the contract.
26. In particular, as to the argumentation submitted by the club regarding the payment receipts
referring to amounts paid in EUR, the Chamber noted that these amounts were not claimed
by the player, and thus do not affect the height of the club’s debt towards the player.
27. Moreover, as to the payments made in TRY, the Chamber was of the opinion that the
payment receipts submitted in connection with these payments clearly indicate that these
payments are linked to bonuses. What is more, the document from the Ministry, does not
prove that these payments were indeed solely linked to salary payments.
28. Finally, the Chamber also concluded the club’s argumentation that only the pro rata part of
the amount of EUR 50,000 should be awarded to the player, shall not be upheld, as in its
opinion it was clearly established in the contract that this payment would be considered an
advance payment, due on 21 September 2021.
29. Thus, the Chamber concluded that the player had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
ii. Consequences
30. 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.
31. The Chamber observed that the outstanding remuneration at the time of termination, taking
into account that the salary for the month of March 2022 shall be awarded as outstanding
remuneration, coupled with the specific requests for relief of the player, are equivalent to:
-
-
the player’s entitlement to 8 salaries under the contract of EUR 20,000 each for the period
between August 2021 and March 2022, i.e. EUR 160,000, plus EUR 50,000 due on 21
September 2021, therefore, the total amount of EUR 210,000;
minus the amount of EUR 110,793, which was paid by the club and acknowledged by
the player;
therefore, the total outstanding remuneration on 18 March 2022 amounts to EUR
99,207, i.e. 5 monthly salaries of EUR 20,000 each for the period between November
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2021 and March 2022, minus the amount of EUR 793 which was allegedly paid by the
club.
32. 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, i.e. EUR 99,207.
33. 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 the respective due dates until the date of effective
payment.
34. 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.
35. 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.
36. 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.
37. Bearing in mind the foregoing, as well as the claim of the player, which limited his claim for
compensation for breach of contract to the amounts he was entitled to in the period until
May 2024, 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 690,000 (i.e. the salaries due
in the period between April 2022 and May 2024) serves as the basis for the determination of
the amount of compensation for breach of contract.
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38. 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.
39. In this respect, the Chamber noted that the player remained unemployed since the unilateral
termination of the contract.
40. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous contract,
as a general rule, the compensation shall be equal to the residual value of the contract that
was prematurely terminated.
41. 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 690,000
to the player, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
42. 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 14 April 2022 until the date of effective payment.
iii. Compliance with monetary decisions
43. 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.
44. 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.
45. 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.
24 par. 2, 4, and 7 of the Regulations.
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46. 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.
47. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
48. 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.
49. 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.
50. 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, Joseph Champness, is partially accepted.
2.
The Respondent, Giresunspor Kulubu Dernegi, has to pay to the Claimant, the following
amount:
- EUR 99,207 as outstanding remuneration, plus 5% interest p.a. until the date of effective
payment as follows:
o on the amount of EUR 19,207 as from 1 December 2021;
o on the amount of EUR 20,000 as from 1 January 2022;
o on the amount of EUR 20,000 as from 1 February 2022;
o on the amount of EUR 20,000 as from 1 March 2022;
o on the amount of EUR 20,000 as from 1 April 2022;
- EUR 690,000 as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 14 April 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
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