Labour Disputes
Texto da decisão
REF 20-01039
Decision of the
Dispute Resolution Chamber
passed on 10 December 2020,
regarding an employment-related dispute concerning the player Mitchell Glenn Donald
COMPOSITION:
Geoff Thompson (England), Chairman
Angela Collins (Australia), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Mitchell Glenn Donald, Netherlands
Represented by Mr Felipe Augusto Loschi Crisafulli, Ms Pollyana Moraes
Cecconi and Mr Marcelo Robalinho Alves
RESPONDENT:
Yeni Malatyaspor, Turkey
Represented by Mr Burak Çakir
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I. FACTS OF THE CASE
1.
The Dutch player, Mitchell Glenn Donald (hereinafter: Claimant or player) and the Turkish club, Yeni
Malatyaspor (hereinafter: Respondent or club) concluded an employment contract (hereinafter:
contract) valid as of 2 August 2018 until 31 May 2020.
2.
According to art. 3 of the contract, the club undertook to pay the player the following net amounts:
(i) Season 2018/2019: total amount of EUR 775,000
EUR 100,000 “cash paid at the time of signature”;
10 instalments as follows:
1. “67.500 Euros on 30th August 2018;
2. 67.500 Euros on 30th September 2018;
3. 67.500 Euros on 30th October 2018;
4. 67.500 Euros on 30th November 2018;
5. 67.500 Euros on 30th December 2018;
6. 67.500 Euros on 30th January 2019;
7. 67.500 Euros on 28th February 2019;
8. 67.500 Euros on 30th March 2019;
9. 67.500 Euros on 30th April 2019;
10. 67.500 Euros on 30th May 2019”;
Bonuses to be paid at the latest on 30 July 2019, as follows:
“aa. Everytime If Player reach a total of 5 (goal + assist) at official league games, player will be
entitled an amount of total 12.500 EUROS NET everytime this number or a multiple thereof is
reached by Player he will receive this amount, that means: If Player reach a total of 10 (goal +
asist) at Official league games, player he will be entitled to a total of 25.000 EUROS NET. If
Player reach a total of 15 (goal + assist) he will be entitled to a total of 37.500 EUROS NET. If
Player reach a total of 20 (goals + assists) will be entitled to a total amount of 50.000 EUROS
NET and soforth.
b. if the team goes to EUROPA LEAGUE group stage, 100.000 euro net will be paid to player.
bb. if the team goes Champions League group stage, 200.000 euro net will be paid to player.
The Player only will be entitled bonus (bb) or (b)”
(ii) Season 2019/2020: total amount of EUR 775,000
EUR 100,000 “advanced payment on or before 20th August 2019 in cash”;
10 instalments as follows:
1. “67.500 Euros on 30th August 2019;
2. 67.500 Euros on 30th September 2019;
3. 67.500 Euros on 30th October 2019;
4. 67.500 Euros on 30th November 2019;
5. 67.500 Euros on 30th December 2019;
6. 67.500 Euros on 30th January 2020;
7. 67.500 Euros on 28th February 2020;
8. 67.500 Euros on 30th March 2020;
9. 67.500 Euros on 30th April 2020;
10. 67.500 Euros on 30th May 2020”;
Bonuses as follows:
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“aa. Everytime If Player reach a total of 5 (goal + assist) at official league games, player will be
entitled an amount of total 12.500 EUROS NET everytime this number or a multiple thereof is
reached by Player he will receive this amount, that means: If Player reach a total of 10 (goal +
asist) at Official league games, player he will be entitled to a total of 25.000 EUROS NET. If
Player reach a total of 15 (goal + assist) he will be entitled to a total of 37.500 EUROS NET. If
Player reach a total of 20 (goals + assists) will be entitled to a total amount of 50.000 EUROS
NET and soforth.
b. if the team goes to EUROPA LEAGUE group stage, 100.000 euro net will be paid to player.
bb. if the team goes Champions League group stage, 200.000 euro net will be paid to player.
The Player only will be entitled bonus (bb) or (b)”
3.
Furthermore, the contract stipulated that, in the event of a transfer of the player to another club, the
player will receive 15% of the transfer fee net. If the transfer occurs before the payment of the
advance payment of EUR 100,000 as per the contract, the player will be entitled to receive “such
advanced payment in the amount of EUR 100.000 NET in cash on top of the amount of 15% of the
transfer fee received by Club”.
4.
In his claim, the player first stated that the club did not fulfil its contractual obligations. As such, the
player held that outstanding net amounts are EUR 276,250 as unpaid wages and EUR 12,500 as
bonuses for 5 goals scored by him during the 2019/2020 season.
5.
In this regard, the player underlined that he “is not in a position to know to which months exactly are
those unpaid wages sums concerned, since the amounts regarding the ten (10) annual instalments
were paid haphazardly and usually delayed, viz., THE RESPONDENT used to pay those sums at random,
without any relation with the contractual due dates and in amounts different from the ones laid down
in THE CONTRACT”.
6.
Moreover, the player considered that the club’s debt is around 40% of his 2019/2020 season total
salaries and more than 4 months of delayed wages and held to have notified the club on 3 occasions
about the outstanding amounts.
7.
The player maintained that even though the contract terminated on 31 May 2020, he has continued
to train and play for the club since the outbreak of covid-19. The player mentioned that “he is feeling
insecure with this situation, since there is no formal/written document stating his rights concluded
between the parties for this period”. Therefore, he requested the DRC to grant a preliminary order
“guarantee his right to not attend any training sessions and/or matches for THE CLUB until the latter
pays the outstanding amounts”. Even if the preliminary order cannot be granted, the player asked not
to be considered the defaulting party if he decides to refuse to train and/or play for the club during
this period.
8.
On 22 July 2020, the Claimant lodged a claim against the Respondent in front of FIFA and requested
payment of outstanding remuneration in the total amount of EUR 288,750 plus 5% interest p.a.
9.
In its reply, the club first maintained that the COVID 19 outbreak has seriously impacted its financial
situation, with a “30% decrease in seasonal revenues.”
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10. Moreover, the club stated that “[w]ithin the scope of the directive named TFF’s Recommendations on
Contracts which was approved by the TFF Board of Directors and announced on the official website
on May 7, 2020 in line with the directive named Covid-19 Regulatory Instructions adopted by FIFA
and put into effect on April 7, 2020; it has been clearly stated that it is not possible for the parties to
completely fulfil their contractual obligations. In the light of this situation, in order to prevent disputes
based on contracts that may arise between the parties and to protect the economic status of the
clubs, it has been recommended to sign contracts based on consensus, which encourage
reconciliation and project mutual negotiations.”
11. The club further held that on 19 April 2020, via an e-mail sent also to the Claimant, it informed the
player about its intention to start a negotiation for “mutual agreement”, however to no avail given
that the player did not reply to its e-mail.
12. On 7 August 2020, the club, via e-mail, requested the player to provide an answer to the “Yeni
Malatyaapor Covid-19 questionnaire” which was previously sent to him. According to the club the
player ignored its request.
13. On 21 August 2020, the club retired its request formulated on 7 August 2020, however to no avail.
14. On 25 August 2020, the club sent a further request to the player, by means of which it requested a
“10% decrease on the contract price of the 2019/2020 season with the official notice sent by the
notary to the notification address specified in the contract, and that if this request is left unanswered
within 2 days, a unilateral decrease of 10% will be made on the contract price in line with FIFA
instructions. The claimant football player did not object to the notice dated 25 August 2020 with roll
number 21273”.
15. Moreover, the club affirmed that the same conditions were offered to all players and that it reached
an agreement with others players of the team. “Accordingly, the football players waived their salary
receivables for May 2020”.
16. Furthermore, the club contested the player’s claim regarding the payment of bonuses. It stated that
according to the contract “If the player entitled relevant bonuses, Club will pay relevant bonuses to
player no later than date of 30.07.2020” and that since the player submitted his claim to FIFA on 21
July 2020, “[i]t is not legally possible to subject an undue overduepayment to a lawsuit and it must
be rejected.”
17. The club maintained that the outstanding amount due to the player is equals EUR 208,750 “since the
Covid-19 decrease is made over his receivables”. In particular, the club explained that from the
requested amount by the player of EUR 276,260, EUR 67,500 has to be deducted, i.e. “Covid-19
decrease”, and therefore he is entitled to EUR 208,750.
18. Finally, the club request the following:
“The refusal of the amount which is the basis of the case,
The application of the Covid-19 decrease and acceptance of the receivable amount as
208.750,00 EURO,
The refusal of an undue bonus payment of 12.500 EURO.”
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II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
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 22 July 2020 and taking into account the wording of art. 21 of the
June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition October 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 Dutch player and a Turkish club.
3.
In continuation, the Chamber analysed which regulations should be applicable as to the substance of
the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim
was lodged on 22 July 2020, the June 2020 edition of the aforementioned regulations (hereinafter:
the 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 all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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.
Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the
present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par.
3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
6.
First of all, the members of the Chamber acknowledged that the player and the club had concluded
an employment contract valid as from 2 August 2018 until 31 May 2020, according to which the
Claimant was entitled to a monthly salary of EUR 67,500 during the 2019/2020 season.
7.
Further, the Chamber duly noted that the Claimant lodged a claim against the Respondent requesting
payment of EUR 288,750, corresponding to EUR 276,250 as outstanding salaries and EUR 12,500 as
bonus, plus 5% interest p.a.
8.
On account of the above, the DRC turned its attention to the arguments of the Respondent, who
maintained that it tried to reach an agreement with the player, but, given that all its efforts were left
unanswered by the Claimant, it decided that the salaries deduction applied to other players was to
be taken as basis for the one calculated on the Claimant. As a consequence, it maintained that the
salary of May 2020, amounting to EUR 67,500, had to be deducted from the total outstanding
amount and the player should be entitled to receive only EUR 208,750 as outstanding remuneration.
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9.
The DRC, moreover, took note that the Respondent contested the player’s claimed amount of EUR
12,500 as bonus, given that according to the club he submitted its claim before the due date, i.e. 30
July 2020, therefore it requested that this part of his claim shall be rejected.
10. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19
outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing
appropriate guidance and recommendations to member associations and their stakeholders, to both
mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional
document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
11. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA
FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country
or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a
player’s salary.
12. In this context, the DRC considered that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the monies due to the player, in other words, the
reasons brought forward by the Respondent in its defence do not exempt the Respondent from its
obligation to fulfil its contractual obligations towards the Claimant.
13. On account of the aforementioned considerations, the Chamber established that the Respondent
failed to remit to the Claimant the total amount of EUR 276,250 corresponding to the player’s
outstanding salaries until May 2020.
14. Consequently, the members of the Chamber decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of EUR 276,250.
15. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided
to award the Claimant 5% interest p.a. on said amount as of the day of claim, i.e. 22 July 2020,
until the date of effective payment.
16. Moreover, the DRC noted that the player did not submit any proof pertaining to his request for
the payment of the bonus, i.e. that he allegedly scored 5 goals during the 2019/2020 season,
hence, the DRC decided to reject this part of the player’s claim corresponding to USD 12,500.
17. Furthermore, taking into account the consideration under number II./3. above, the Chamber 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.
18. In this regard, the Chamber 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.
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19. 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 entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
20. Finally, the Chamber 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.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Mitchell Glenn Donald, is partially accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the following amount:
- EUR 276,250 as outstanding remuneration plus 5% interest p.a. as from 22 July 2020 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
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:
Fédération Internationale de Football Association
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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