Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
Jos é Luis Andrade (Portugal), member
Johan v an Gaalen (S outh Africa), member
on the claim presented by the player,
Daniel Dim ov , Bulgaria
represented by Mr Georgi Gradev
as Claimant
against the club,
Bolus por Kulübü, Turkey
represented by Mr Oytun Süllü
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 7 August 2018, the Bulgarian player, Daniel Dimov (hereinafter: the Claimant or
the player) and the Turkish club, Boluspor Kulübü (hereinafter: the Respondent or the
club) signed an employment contract valid as from the date of the signature until 31
May 2020.
2.
On the same day, the player and the club signed a protocol (hereinafter: the protocol)
providing that “if there is any divergence between this protocol and any other
agreement entered into by the Parties, this protocol always prevails”.
3.
In accordance with the protocol, the player was entitled to, inter alia:
Turkish Lyra (TRY) 650,000 for the season 2018/2019:
TRY 118,000 (EUR 20,000) cash on the date of signing the protocol;
TRY 30,000 on 31 December 2018;
TRY 502,000 payable in 9 monthly installments of TRY 55,777 from
September 2018 until May 2019;
TRY 29,500 as bonus if the player starts 20 matches in the starting XI in
official 1st division match.
TRY 785,000 for the season 2019/2020:
TRY 130,000 cash on 10 August 2019;
TRY 35,000 on 31 December 2019;
TRY 620,000 payable in 9 monthly installments of TRY 68,888 from
September 2019 until May 2020;
TRY 29,500 as bonus if the player starts 20 matches in the starting XI in
official 1st division match.
4.
The protocol provided that “the player, with signing this contract, claims and confirms
that he accepts the decisions of the Club Board, obeys the Professional Disciplinary
Regulations of the club, he is given one copy of the 2018/2019 football season
disciplinary regulations while he signs the contract, he declares and accepts that he
signed every single page of the regulations, the fines will be deducted from his
earnings, and in the following years of his contract, if the disciplinary regulations are
not changed, he accepts and confirms that the same regulations continues in the
following years.”
5.
On 12 July 2019, the player put the club in default arguing that TRY 278,885
corresponding to the salaries of January to May 2019, were outstanding giving 10 days
for the club to remedy its default.
Player Daniel Dimov, Bulgaria / Club Boluspor Kulübü, Turkey
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6.
On 23 July 2019, the Claimant lodged a claim against the Respondent in front of FIFA
for outstanding remuneration, requesting TRY 278,885 plus 5% interest p.a. as of the
due dates until the date of effective payment.
7.
Following his claim, the player acknowledged some payments made by the club and
consequently, on 15 August 2019, he amended his claim, requesting the total amount
of TRY 33,090 corresponding to the balance of May 2019’s salary.
8.
On 11 August 2019, the player reiterated his default toward the club, requesting TRY
33,090 as balance of May’s salary and TRY 130,000 as down payment for the season
2019/2020 and gave 15 days for the club to remedy its default.
9.
On 12 August 2019, the club informed the player that following a decision of the board
of the club, he was moved out of the professional team and put in the under 19 team
due to “low performance, lack of motivation and the low motivation because of his
family’s absence”.
10.
On 13 August 2019, the player requested to be reintegrated into the professional team
and held that he did not receive the decision of the board sending him to the under
19 team, and that the argumentation used by the club was groundless.
11.
On 14 August 2019, the club reiterated his previous correspondence underlining that
the player was to join the under 19 team.
12.
On 27 August 2019, the player unilaterally terminated the contract arguing that the
“pro-rata value of the global outstanding amount” corresponded to more than two
monthly salaries and also in light of his exclusion from the first team.
13.
On 2 September 2019, the Claimant further amended his claim, requesting outstanding
remuneration and compensation for breach of the contract, requesting the total
amount of TRY 1,121,165 corresponding to :
14.
TRY 130,000 as outstanding down payment, plus 5% interest p.a. as from 11
August 2019;
TRY 991,165 as compensation for breach of the contract plus 5% interest p.a.
as from 27 August 2019, i.e. the residual value of the contract, mitigated by
the new income of the player, plus 6 monthly salaries due to “egregious
circumstances”.
Sporting sanctions to be imposed on the Respondent.
Regarding the claim for TRY 33,090 corresponding to the balance of May 2019’s salary,
the Claimant specifically requested that this claim be dealt separately and as such did
not include it in his claim of 2 September 2019.
Player Daniel Dimov, Bulgaria / Club Boluspor Kulübü, Turkey
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15.
In reply to the claim of the player, the Respondent held that that it paid the Claimant
a total amount of TRY 668,078.75 by means of various bank transfers
and that TRY 25,500 had been imposed on the Clamant as “sportive monetary fine
and other penalties regarding to his behaviours and performance”.
16.
On the fines, the Respondents held that the fines were imposed due to sport
performance, namely matches lost, and deducted from his salary.
17.
The Respondent further argued that it paid additional TRY 18,078.85 “in the belief
that contractual relation will be continued by the player for 2019/2020 season”. The
club added that the request of TRY 130,000 could not be accepted as that amount is
due for season 2019/2020 and the player terminated “at the same time”.
18.
The Claimant informed FIFA that on 27 August 2019, he signed an employment
contract with the Bulgarian club PFC Cherno More, valid as from 28 August 2019 until
10 June 2020, for a monthly salary of Bulgarian Lev (GBN) 2,578 (approx. TRY 8,500).
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
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 23 July 2019.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2008; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. article 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2020), 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 Bulgarian player and a Turkish club.
3.
Furthermore, 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 (edition 2020),
and considering that the present claim was lodged on 23 July 2019, the June 2019
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edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect, the
Chamber started by acknowledging the above-mentioned facts as well as the
documentation contained in the 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.
5.
The members of the Chamber started by acknowledging the facts of the case, as well
as the documentation contained in the file. In this respect, the Chamber recalled that
the parties had signed an employment contract valid as from 7 August 2018 until 31
May 2020 as well as a protocol on 7 August 2018, in accordance with which, the player
was entitled to TRY 685,000 for the season 2018/2019 payable as follows, TRY 118,000
on the date of signature of the protocol, 9 monthly salaries of TRY 55,777 between
September 2018 and May 2019 and a bonus of TRY 29,500 should the player start in
the starting XI 20 leagues matches that season. The protocol further entitled the player
to received, for the season 2019/2020 TRY 785,000 payable as follows: TRY 130,000 on
10 August 2019, 9 monthly salaries of TRY 68,888 between September 2019 and May
2020 and a bonus of TRY 29,500 should the player plays 20 leagues games in which he
was in the starting XI.
6.
In continuation, the members of the Chamber took into account that, on 12 July 2019,
the Claimant put the Respondent in default for outstanding remuneration and
following this, on 23 July 2019 he lodged a claim against the Respondent in front of
FIFA for outstanding remuneration.
7.
The Chamber also took note that following some payments of the Respondent, the
Claimant amended his claim on 15 August 2019, requesting outstanding remuneration
only, in the amount of TRY 33,090 corresponding to the balance of May 2019’s salary.
8.
Following this, the DRC noticed that the Claimant put the club in default once more,
this time requesting on top of his first request, TRY 130,000 corresponding to the 1st
instalment of the season 2019/2020 due on 10 August 2019, and further requested to
be reintegrated with the professional team. The DRC took note that the Claimant gave
15 days for the Respondent to remedy its default. Consequently, the Claimant, on 27
August 2019, unilaterally terminated the contract.
9.
Subsequently, the members of the DRC recalled that the Claimant lodged a second
claim, this time for outstanding remuneration and compensation for breach of
contract requesting TRY 130,000 as outstanding remuneration and TRY 991,165 as
compensation for breach of the contract, and specifically requesting that the claim of
TRY 33,091 be dealt with separately.
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10.
In this regard, the DRC found it important to highlight that despite the request of the
Claimant to have his claim for outstanding only of 15 August 2019 and his claim for
outstanding and compensation for breach of the contract of 2 September 2019, be
dealt with separately, the DRC was of the firm and unanimous opinion, that both
matters were deeply connected, and found it inconvenient to have two decisions on
those matters. Consequently, the DRC decided to consolidate both claims and dealt
with those claims as one.
11.
On the substance, the DRC took note of the diverse argumentations of the parties,
mainly that the Respondent held that it paid TRY 668,078.75 to the Claimant and
imposed fines on him for an amount of TRY 25,500 and that as such the Respondent
considered that he did not have overdue amounts toward the Claimant and that
consequently the Claimant terminated without just cause.
12.
In this respect, the DRC deemed that the central issue in the matter at stake would be,
thus, to determine as to whether the Claimant had just cause to unilaterally and
prematurely terminate the contract on 27 August 2019.
13.
In this respect, the Chamber wished to emphasize that, according to the Claimant, at
the time of the termination of the contract on 27 August 2019 the balance of the salary
of May 2019 and the amount of TRY 130,000 were due.
14.
The Chamber then turned its attention to the arguments of the Respondent and
acknowledged that according to the latter, TRY 668,078.75 had been paid to the
Claimant. In this context, the DRC noted that the Respondent had submitted
documentary evidence which according to the Respondent demonstrated that
allegation.
15.
Moreover, the Chamber took note that the Respondent argued that it had fined the
Claimant, withdrawing from his due salaries TRY 25,500 because of bad behaviors and
performances.
16.
Moreover, the members of the Chamber acknowledged that the Claimant rejected that
the fines were to be deducted from his receivables, pointing out that he did not receive
the Board decisions imposing those fines and more generally contesting the reasoning
behind those fines as he deemed that fines imposed on him for sportive reasons were
not valid.
17.
In this context, the Chamber concurred that the fines imposed on the Claimant by the
Respondent shall be disregarded, since a fine based on bad sporting performances
cannot be considered valid.
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18.
Furthermore, and irrespective of the foregoing consideration, the Chamber wished to
point out that the imposition of a fine, or any other available financial sanction in
general, shall not be used by clubs as a means to set off outstanding financial
obligations towards players. Consequently, the Chamber decided to reject the
Respondent’s argument in this connection.
19.
In continuation, the DRC recalled that according to the legal principle of the burden
of proof contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right
on the basis of an alleged fact shall carry the burden of proof.
20.
On this note, the members of the DRC recalled that the Respondent held that he paid
to the Claimant TRY 650,000 relating to the season 2018/2019 by means of various bank
transfers and an additional TRY 18,078.85 “in belief that contractual relation will be
continued by the player for 2019/2020 season”.
21.
Furthermore, as a consequence of the aforementioned considerations and taking into
account the documentation presented by the parties to the dispute, the Chamber was
of the opinion that the Respondent failed to provide sufficient evidence corroborating
his allegation. Especially, the Chamber noted that the evidence of payments provided
by the Respondent were either untranslated, or only partially legible. Moreover, on
the allegation of a payment of TRY 18,078.85, the Respondent provided no evidence
at all.
22.
The Chamber also took note of the argument of the Respondent according to which
the instalment of TRY 130,000 could not be granted to the Claimant as it related to an
amount due under season 2019/2020 and the Claimant terminated the contract prior
to season 2019/2020.
23.
On this matter, the members of the Chamber were eager to underline that the
aforementioned instalment became due on 10 August 2019. On the chronology of the
matter at hand, the DRC recalled that the Claimant put the Respondent in default for
the balance of the salary of May 2019 and for the instalment of TRY 130,000 on 11
August 2019, meaning after the due date. Moreover, at the time of termination on 27
August 2019, the amount was still overdue.
24.
Consequently, and since the Respondent failed to provided conclusive evidence that
the balance of the salary of May 2019 as well as the instalment of TRY 130,000 due on
10 August 2019 had been paid to the Claimant, the Chamber concurred that the
Respondent had seriously neglected its financial contractual obligations towards the
Claimant. Especially, the Chamber found it important to underline that the instalment
of TRY 130,000 was an important part of the remuneration of the player as between
June 2019 and September 2019, this would have been the only remuneration received
by the Claimant since he was not entitled to monthly salaries for June to August 2019
included.
Player Daniel Dimov, Bulgaria / Club Boluspor Kulübü, Turkey
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25.
Moreover, the members of the Chamber wanted to highlight the attitude of the
Respondent. In particular, following the initial claim of the Claimant for overdue
payables on 23 July 2019, as well as a second default notice on 11 August 2019, the
DRC took note that on 12 August 2019, the Respondent informed the Claimant that
he would be retrograded into the under 19 team due to low performance.
26.
On account of all of above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber was of the unanimous opinion that in the
absence of the payment of part of the salary of May 2019, and of the instalment of
TRY 130,000 which represented an important part of the remuneration of the Claimant
and taking into consideration the attitude of the Respondent excluding the Claimant
from the main team for poor performances, the Claimant could have legitimately lost
confidence in the capacity and will of the Respondent to comply with its financial
obligations.
27.
Consequently, the DRC decided that the Claimant had just cause to unilaterally
terminate the contract on 27 August 2019 and that the Respondent is to be held liable
for the early termination of the contract with just cause by the player.
28.
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. TRY 163,090 corresponding to TRY 33,090 as the balance of the
salaries due under the season 2018/2019 and TRY 130,000 as the instalment due on 10
August 2019.
29.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber in this regard, the members of the
Chamber decided to award the Claimant interest at the rate of 5% p.a. on the
outstanding amount of TRY 33,090 as of 1 June 2019 until the date of effective
payment and on the amount of TRY 130,000 as of 11 August 2019 until the date of
effective payment,
30.
In continuation, having established that the Respondent is to be held liable for the
early termination of the employment contract with just cause by the Claimant, the
DRC judge focussed its attention on the consequences of such termination. Taking
into consideration art. 17 par. 1 of the Regulations, the DRC decided that the
Claimant is entitled to receive an amount of money from the Respondent as
compensation for the termination of the contract with just cause in addition to
any outstanding payments on the basis of the relevant employment contract .
31.
Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent in the case at stake. In doing
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so, the members of 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 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.
32.
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.
33.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant had to be assessed in
application of the other parameters set out in art. 17 par. 1 of the Regulations.
34.
The DRC then turned their attention to the remuneration and other benefits due to
the Claimant under the existing contract and/or the new contract, which criterion was
considered by the DRC judge to be essential. The DRC deemed it important to
emphasise that the wording of art. 17 par. 1 of the Regulations allows the DRC to take
into account both the existing contract and the new contract, if any, in the calculation
of the amount of compensation.
35.
Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the Claimant under the terms
of the employment contract from its date of termination with just cause by the
Claimant, i.e. 27 August 2019 until 31 May 2020 and concluded that the Claimant
would have received in total TRY 655,000 as remuneration had the contract been
executed until its expiry date. Consequently, the Chamber concluded that the amount
of EUR 550,000 serves as the basis for the determination of the amount of
compensation for breach of contract.
36.
In continuation, the Chamber 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. According to the
constant practice of the DRC, 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.
Player Daniel Dimov, Bulgaria / Club Boluspor Kulübü, Turkey
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37.
The Chamber noted that for the relevant period, the Claimant had signed an
employment contract with PFC Cherno More, as from 28 August 2019 until 10 June
2020 with a monthly remuneration of approx. TRY 8,500 and as such was able to
mitigate his loss in the amount of TRY 76,500. In this regard, the Chamber deemed
that the mitigated compensation of the Claimant would amount to TRY 578,500.
38.
Moreover, the Chamber took note that in accordance with art. 17 par.1 (ii), subject to
the early termination of the contract being due to overdue payables, in addition to
the mitigated compensation, the player shall be entitled to an amount corresponding
to three monthly salaries. The Chamber recalled that the overall compensation may
never exceed the rest value of the prematurely terminated contract.
39.
With this in mind, the DRC determined that should three monthly salaries be added to
the mitigated compensation of the Claimant, said overall compensation would exceed
the residual value of the contract and that consequently the residual value of the
contract should be awarded as compensation for breach of the contract.
40.
Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the DRC concluded that the Respondent must pay the
amount of TRY 655,000 as compensation for breach of contract in the case at hand,
which it considered as a reasonable and justified amount of compensation.
41.
In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of
compensation as of the date of the termination, i.e. 27 August 2019 until the date of
effective payment.
42.
Furthermore, taking into account the consideration under number II./3. above, the DRC
judge 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.
43.
In this regard, the DRC pointed out 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.
44.
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, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any
new players, either nationally or internationally, for the maximum duration of three
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entire and consecutive registration periods shall become effective on the Respondent
in accordance with art. 24bis par. 2 and 4 of the Regulations.
45.
Finally, 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. 3 of the Regulations.
46.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Daniel Dimov, is partially accepted.
2.
The Respondent, Boluspor Kulübü, has to pay to the Claimant outstanding
remuneration in the amount of TRY [Turkish Lira] 163,090, plus 5% interest p.a. as
follows:
a. 5% interest p.a. over the amount of TRY 33,090 as from 1 June 2019 until
the date of effective payment;
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b. 5% interest p.a. over the amount of TRY 130,000 as from 11 August 2019
2019 until the date of effective payment.
3.
The Respondent has to pay to the Claimant compensation for breach of contract
in the amount of TRY 655,000, plus 5% interest p.a. as from 27 August 2019 until
the date of effective payment.
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under points 2 and 3 above.
6.
The Respondent shall provide evidence of payment of the due amounts in
accordance with points 2 and 3 above to FIFA to the e-mail address
[email protected], duly translated, if need be, into one of the official FIFA languages
(English, French, German, Spanish).
7.
In the event that the amounts due in accordance with points 2 and 3 above are not
paid by the Respondent w ithin 45 day s as from the notification by the Claimant
of the relevant bank details to the Respondent, the Respondent shall be banned
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 (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
8.
The ban mentioned in point 7 above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
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9.
In the event that the aforementioned sums are 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 FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
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the Players’ Status Committee and the Dispute Resolution Chamber).
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). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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