Dispute Resolution Chamber
Texto da decisão
REF FPSD-649
Decision of the
Dispute Resolution Chamber
passed on 17 June 2021
regarding an employment-related dispute concerning the player William Douglas de
Amorim
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Roy Vermeer (Netherlands), member
Philippe Diallo (France), member
CLAIMANT:
William Douglas de Amorim, Brazil
Represented by Bora İmadoglu
RESPONDENT:
Altay SK, Turkey
Represented by Talat Emre Kocak
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I.
FACTS OF THE CASE
1.
On 19 August 2020, the Brazilian player, (hereinafter: Claimant), and the Turkish club, Altay
SK (hereinafter: Respondent) signed an employment contract valid as from 19 August 2020
to 31 May 2022.
2.
In accordance with art. 3 of the employment contract, the Respondent undertook to pay to
the Claimant the following remuneration:
a) For the 2020/2021 season – the total amount of EUR 260,000, payable as follows:
-
EUR 80,000 – advance payment;
EUR 25,000 – due and payable on 19 November 2020
EUR 25,000 – due and payable on 2 February 2021
In addition to the above, the Claimant was entitled to a monthly salary in the amount of
EUR 13,000, payable for a period of 10 months, from the date 1 September 2020 up to
and including the 1 June 2021
b) For the 2021/2022 season – the total amount of EUR 286,000, payable as follows:
-
EUR 85,000 – advance payment;
EUR 29,000 – due and payable on December 2021
EUR 29,000 – due and payable on February 2022
In addition to the above, the Claimant was entitled to a monthly salary in the amount of
EUR 14,300 payable, for a period of 10 months, from 1 September 2021 up to and
including the 1 June 2022.
3.
By correspondence dated 18 December 2020, the Claimant put the Respondent in default
of payment of the amount of EUR 77,000, corresponding to outstanding salaries for the
period between September and December 2020 in the amount of EUR 13,000 each, as well
as an outstanding payment of EUR 25,000, which was due and payable on 19 November
2020, setting a time limit of 15 days to remedy the default.
4.
On 25 February 2021, the Claimant and the Brazilian club, Clube Esportivo Bento Goncalves
RS signed an employment contract valid as from 2 March 2021 to 31 May 2021, for a
monthly salary of BRL 5,100 (approximately EUR 811.92).
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II.
PROCEEDINGS BEFORE FIFA
5.
On 14 January 2021, the Claimant filed the claim at hand before FIFA. In continuation, a
brief summary of the position of the parties is detailed.
a.
The claim of the Claimant
6.
According to the Claimant, the Respondent failed to comply with its contractual obligations
and furthermore failed to comply with the terms of his default notice sent on 18 December
2020.
7.
Accordingly, on 8 January 2021, the Claimant terminated the contract with the
Respondent.
8.
The Claimant, requested the following relief:
a) the outstanding remuneration in the total amount of EUR 77,000 (corresponding to
outstanding salaries for the period between September to December 2020 in the
amount of EUR 13,000 each and the outstanding payment of EUR 25,000 due 19
November 2020), plus 5% interest p.a. as from the respective due dates until date of
effective payment; and
b) EUR 389,000 as compensation for breach of contract, plus 5% interest p.a. as from
the respective due date until date of effective payment.
9.
Additionally, the Claimant requested that all ‘jurisdiction costs’ if any be imposed on the
Respondent.
b.
Position of the Respondent
10.
According to the Respondent, it had “made all the payments on due dates and had no
overdue and unpaid debt towards the Player until the termination date.” In this regard, the
Respondent submitted payment documents illustrating the payments made to the
Claimant.
11.
Furthermore, the Respondent indicated that it did not receive a default notice from the
Claimant as asserted in his claim and “hereby clearly objects the claim of the Player
concerning the notification of a warning letter in which the Club must be granted a deadline
of 15-days for the payment.”
12.
Moreover, the Respondent indicated that it participates in the Turkish 1. Division, not in the
Turkish Super League, according to Claimant’s claim “it is requesting compensation from
the Respondent on the basis that it participates in the Super League and that the calculation
of the compensation as per the Claimant’s claim is misleading and inaccurate”.
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13.
In conclusion the Respondent requested that the FIFA DRC; dismiss all claims of the
Claimant and to conclude that the termination was made without just cause.
14.
The requests for relief of the Respondent, as amended, were the following:
c.
Additional position Claimant
15.
The Claimant rejected the documents provided by the Respondent, as they do not prove
any payment made to the Claimant. According to the Claimant, the said documents are
merely “unsigned documents from the club’s office and copies of cheques which was not
paid by the club on the due dates”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
16.
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 14 January 2021 and presented
for decision on 17 June 2021. Taking into account the wording of art. 21 of the January
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.
17.
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. a) and
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 a Brazilian player
and a Turkish club.
18.
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 14 January 2021, the January 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
19.
Burden of proof
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.
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20.
In this respect, 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.
c.
21.
Merits of the dispute
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.
i. Main legal discussion and considerations
22.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the on 19 August 2020, the Claimant and the Respondent
had concluded an employment contract valid as from 19 August 2020 until 31 May 2022.
23.
The DRC observed that the Claimant lodged a claim in front of FIFA against the Respondent,
seeking payment of the total amount of EUR 466,000, asserting that the Respondent had
not fulfilled its contractual obligations towards him. More specifically, the Claimant
indicated that the Respondent had failed to pay his salaries for the months of September
to December 2020, as well as an additional payment due in November 2020, which were
still outstanding at date of termination of the contract, i.e. 8 January 2021.
24.
In this context, the Chamber acknowledged that it its task was to determine whether the
contract was terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
25.
The members of the Chamber noted that the Respondent in its reply to the claim argued
that it duly complied with its payment obligations towards the Claimant and accordingly
submitted payment documents, which according to the Respondent illustrate the payments
it had made to the Claimant.
26.
In this respect, the Chamber pointed out that the said documentation as submitted by the
Respondent are not conclusive documentary evidence, on the basis of which it could
established that it made the relevant payments to the Claimant. After having analysed the
documentation on file, the Chamber noted that documents are merely copies of cheques
and internal documents of the Respondent and cannot be taken into account as “proof of
payment” or as corroborating evidence substantiating this claim. Moreover, the documents
appear to be unsigned.
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27.
As a result of the foregoing, the members of the Chamber came to the conclusion that
arguments of the Respondent cannot be upheld.
28.
Following the aforementioned line of reasoning, the members of the Chamber concluded
that the Respondent was in arrears of its financial obligations for a significant period of time
and that as a result, the termination of the contract by the Claimant on 8 January 2021 was
made with just cause, and that the Respondent is to be held liable for the consequences
thereof.
29.
In view of all the above, the Chamber decided that the Claimant is entitled to outstanding
remuneration and compensation for breach of contract.
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
Respondent 1 during the protected period.
31.
First of all, the members of the Chamber concurred that the Respondent must fulfill its
obligations as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”. Consequently, the
Chamber decided that the Respondent is liable to pay to the Claimant the remuneration
that was outstanding at the time of the termination, i.e. the amount of EUR 90,000,
consisting of:
a)
b)
c)
d)
e)
f)
EUR 13,000, due and payable on 2 September 2020;
EUR 13,000, due and payable on 2 October 2020;
EUR 13,000, due and payable on 2 November 2020
EUR 25,000 due and payable on 20 November 2020;
EUR 13,000, due and payable on 2 December 2020; and
EUR 13,000, due and payable on 2 January 2021
32.
What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts
from the respective due dates until the date of effective payment.
33.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
34.
In this context, the Chamber outlined that, in accordance with the said provision, 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
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particular, the remuneration and other benefits due to the Claimant 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 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 Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
36.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent,
the members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of
the employment contract on 8 January 2021, the contract would run for another 15
months (i.e. the period between February 2021 and May 2022)
37.
Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to EUR 376,000 and that such
amount shall serve as the basis for the final determination of the amount of compensation
for breach of contract.
38.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant informed FIFA
that on 25 February 2021, he had signed a new contract with the Brazilian club, Clube
Esportivo Bento Goncalves RS valid as from 2 March 2021 to 31 May 2021.According to
the said contract, he was entitled to a monthly salary of BRL 5,100. For the overlapping
period, this corresponds to BRL 15,300 (approximately EUR 2,435.76).
39.
Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player – subject to him finding new employment by means of which
he could mitigate his damages - is entitled to an additional compensation of three
monthly salaries, subject to the early termination of the contract being due to overdue
payables. In case of egregious circumstances, the additional compensation may be
increased up to a maximum of six monthly salaries, whereby the overall compensation may
never exceed the residual value of the prematurely terminated contract.
40.
With the above in mind, the DRC decided not to award additional compensation
corresponding to three monthly salaries to the Claimant, as the overall compensation would
then exceed the residual value of the prematurely terminated.
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41.
In conclusion, the DRC decided that the Respondent is liable to pay the total amount of USD
EUR 376,000 to the Claimant as compensation for breach of contract without just cause,
which is considered by the DRC to be a reasonable and justified amount as compensation.
42.
Moreover and in line with the Chamber’s well-established jurisprudence, the DRC decided
to award 5% interest p.a. on the amount of EUR 376,000 as from 14 January 202, i.e. date
of claim.
43.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
iii. Compliance with monetary decisions
44.
Finally, taking into account the consideration under number 54. above, the Chamber
referred to par. 1 lit. 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.
45.
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.
46.
Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
47.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
48.
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.
49.
Costs
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
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and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
50.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
51.
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, William Douglas de Amorim, is partially accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant, the following amounts:
-
EUR 90,000 as outstanding remuneration plus 5% interest p.a. as from the respective
due dates until the date of effective payment, as follows:
a) EUR 13,000, due and payable 2 September 2020;
b) EUR 13,000, due and payable 2 October 2020;
c) EUR 13,000, due and payable 2 November 2020;
d) EUR 25,000, due and payable on 20 November 2020;
e) EUR 13,000, due and payable 2 December 2020; and
f) EUR 13,000 due and payable 2 January 2021.
-
EUR 376,000 as compensation for breach of contract plus 5% interest p.a. as from 14
January 2021
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the 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 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
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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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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