Dispute Resolution Chamber
Texto da decisão
REF 21-00211
Decision of the
Dispute Resolution Chamber
passed on 03 June 2021
regarding an employment-related dispute concerning the player Federico Nicolas Varela
Escudero
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Stefano Sartori (Italy), member
Muzammil bin Mohamed (Singapore), member
CLAIMANT:
Federico Nicolas Varela Escudero, Spain
Represented by Ercan Sevdimbas
RESPONDENT:
Denizlispor Kulubu, Turkey
Represented by Gönül Güden Türk
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I.
FACTS OF THE CASE
1.
On 22 September 2020, the Spanish player, Federico Nicolas Varela Escudero (hereinafter:
Claimant), and the Turkish club, Denizlispor Kulubu (hereinafter: Respondent) signed an
employment contract (hereinafter: the contract) valid as from date of signature until 31 May
2022.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant inter
alia the following amounts for the season of 2020/2021:
“Advance Payment: 37.500.-EUR net will be paid on signature date.
Salary: EUR 337.500 net will be paid in 9 equal instalments as stated below:
-
37.500.-EUR net on 30.09.2020
37.500.-EUR net on 31.10.2020
37.500.-EUR net on 30.11.2020
37.500.-EUR net on 31.12.2020
37.500.-EUR net on 31.01.2021
37.500.-EUR net on 28.02.2021
37.500.-EUR net on 31.03.2021
37.500.-EUR net on 30.04.2021
37.500.-EUR net on 31.05.2021”.
3.
In accordance with the contract, the Respondent undertook to pay to the Claimant inter
alia the total salary of EUR 375,000 for the season of 2021/2022.
4.
On 11 January 2021, the Claimant served a written notice to the Respondent requesting
the payment of EUR 150,000 and gave a deadline of 15 days for the full payment in
accordance with the provisions of 14bis of the FIFA Regulations on the Status and Transfer
of Players (RSTP).
5.
On 25 January 2020, the Respondent sent a “Counter Notification” and stated that
according to ’its records, the ’Claimant’s remaining receivables were EUR 112,500 and
asked that the amount requested from the Claimant be confirmed and corrected.
6.
On the same day, the Claimant send a notice stating that the amounts requested in the
notification from 11 January 2021 is modified as EUR 112,500 and stated that it had to be
paid within 15 days following the receipt of the notice from 11 January 2021.
7.
On 26 January 2021, the Respondent sent a notice stating that as the amount had to be
corrected, the deadline of 15 days had to be restarted.
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8.
On the same day, the Claimant sent a notice stating that the deadline for payment had to
be counted from the date of first notice.
9.
On 27 January 2021, the Claimant sent a notice of termination with just cause to the
Respondent.
10.
On date 1 February 2021, the Claimant and the Bulgarian club, PFC CSKA Sofia signed an
employment contract valid as from date of signature until 30 June 2024.
II.
PROCEEDINGS BEFORE FIFA
11.
On 8 February 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
12.
According to the Claimant, he is entitled to receive the amount of EUR 187,500 for
2020/2021 football season, and this amount became due and payable from the date that
the Claimant’s served notice for unpaid payment clear that the given deadline of 15 days
begins from the date of the receipt of the first notification, which is dated 11 January 2021.
13.
Furthermore, according to the Claimant, the Respondent left him out of squad via e-mail
before the termination notice was sent which “gives also a just cause to terminate the
contract in many circumstances”.
14.
The Claimant submits that as of the date of the termination (i.e. 27 January 2021) the
overdue payables towards the Claimant corresponded to the amount of EUR 150,000
calculated as follows:
a.
b.
c.
d.
15.
37.500.-EUR From 31.10.2020
37.500.-EUR From 30.11.2020
37.500.-EUR From 31.12.2020
37.500.-EUR From 31.01.2021
The Claimant’s request for relief were:
“The Claimant firstly would like to request you to make a decision that the Respondent has
to pay the overdue and unpaid amount of 150.000.-EUR with its %5 p.a. interest starting
from the due dates stated above in 4.3. until the date of effective payment.
The Claimant secondly would like to request you to make a decision that the unilateral
termination made by the Claimant is with just cause and in line with the jurisprudence of
FIFA and the CAS, in particularly with the Article 14bis of FIFA RSTP.
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The Claimant thirdly would like to request a compensation of 241.666.- EUR [If the salary
of January 2021 is not requestable and claimable as overpayment, please consider our
request in the amount of 279.166.-EUR (241.666. -EUR (nrv + 37.500.-EURJ as
compensation for breach of contract) with its 5% p.a. interest ~ starting from the
termination date of 27.01.2021 until the date of effective payment, corresponding the
remaining part of the contractual relation.
The Claimant asks FIFA to condemn the Respondent to pay an additional compensation of
112.500.-EUR. in accordance with its 5% p.a. interest starting from the termination date
of 27.01.2021 until the date of effective payment.
In consideration of the fact that the Respondent caused the Claimant to file the case herein,
we would like to request your honourable chamber to make a decision that the judicial
costs and the attorneyship fees that the Claimant is faced with shall be paid by the
Respondent”.
b.
Position of the Respondent
16.
According to the Respondent, the Claimant had receivables of EUR 112,500 on 11 January
2021. However, the Claimant sent a letter and requested the Respondent to pay EUR
150,000, which is more than what he would be entitled to.
17.
The Respondent submitted that “according to the long jurisprudence of FIFA and Article 2
of Swiss Civil Code, "Every person must act in good faith in the exercise of his or her rights
and in the performance of his or her obligations”. However, in the view of the Respondent
the Claimant behaved in bad faith.
18.
The Respondent further submits that it realized the amount requested was wrong and
requested extra time for the payment. However, the Claimant refused to give extra time for
the payment and terminated the contract without just cause.
19.
According to the Respondent, the Claimant should have given at least 15 days for the
payment of the unpaid salaries. However, the Claimant “sent his warning letter on 25th
January 2021 and terminated his contract on 27th January 2021. It is crystal clear that the
player did not follow the article 14bis of FIFA RSTP”.
20.
The Respondent further submits that “the additional compensation request of the player
cannot be acceptable as the player found a new club and signed a contract with better
condition and for a long period”. In the Respondent’s view, as “there is no harm for the
player, the additional compensation is not essential in this case”.
21.
The Respondent’s requests for relief were:
“Reject all the claims of the claimant,
Decide that the termination of the player is without just cause”.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
22.
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 08 February 2021 and
submitted for decision on 03 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.
23.
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. b) of
the Regulations on the Status and Transfer of Players (February 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Spanish player and
a Turkish club.
24.
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 8 February 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
25.
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.
26.
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.
27.
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
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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
28.
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 whether the termination of the
contract by the Claimant was made with or without just cause.
29.
In this context, the Chamber acknowledged that it its task was to determine if the
termination was made with or without just cause and which consequences shall arise from
such termination.
30.
First of all, the members of the Chamber analysed the documentation on file, and concluded
that it remained undisputed that the Respondent owed to the Claimant at least the amount
of EUR 112,500, amount equal to 3 monthly salaries, and that the last salary payment to
the Claimant took place on the 2 October 2020. The DRC thus confirmed that this amount
corresponds to more than two monthly salaries.
31.
Furthermore, the Chamber noted that whilst the amount initially requested by the Claimant
in the notice of 11 January 2021 did not appear to be the exact amount to which the
Claimant was entitled, the Respondent did not make any attempt to pay the amount due
in whole or in part in spite of having been duly warned to cure its contractual breach. Based
on this circumstance, the members of the Chamber concluded that the Respondent had
seriously neglected its financial obligations towards the Claimant.
32.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, as well as the unequivocal contents of art. 14bis of the
Regulations, the Chamber decided that the Claimant had just cause to unilaterally terminate
the contract on 27 January 2021 and that the Respondent is to be held liable for the early
termination of the contract with just cause by the player.
ii. Consequences
33.
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.
34.
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 150,000 net,
consisting of four instalments of EUR 37,500 net each as per the contract.
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35.
What is more, in line with its longstanding jurisprudence in this respect, as well as based on
the request of the Claimant, the Chamber decided to also award 5% interest on the four
instalments of EUR 37,500 net each, as from the respective due dates until the date if
effective payment.
36.
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.
37.
In this context, the Chamber outlined that, in accordance with 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 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.
38.
In application of the relevant provision, the Chamber held that it first of all 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.
39.
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 contract on 27 January 2021, it would still run until 31 May 2022.
40.
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 until its the
regular expiry amounts to EUR 525,000. The DRC confirmed hence that such amount shall
serve as the basis for the final determination of the amount of compensation for breach of
contract.
41.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant found new
employment and therefore was able to mitigate his damages in line with art. 17 of the
Regulations.
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42.
In particular, the Chamber noted that the Claimant found employment with PFC CSKA
Sofia and was able to mitigate his damages in the amount EUR 283,333. Consequently, the
Chamber decided to deduct such amount from the residual value of the contract in order
to calculate the proper compensation due to the Claimant.
43.
Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which the Claimant is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the Respondent, and
therefore decided that the Claimant shall receive additional compensation.
44.
In this respect, the DRC highlighted that the player shall be entitled to EUR 112,500 as
additional compensation, which corresponds to 3 monthly salaries.
45.
In view of all of the above, the Chamber decided that the Respondent must pay the amount
of EUR 354,167 net to the Claimant as compensation for breach of contract without just
case, which is considered by the Chamber to be a reasonable and justified amount as
compensation.
46.
Finally, in line with its longstanding jurisprudence in this respect, the Chamber decided to
also award 5% interest p.a. on the amount of EUR 354,167 as from the date of claim, i.e.
8 February 2021.
47.
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
48.
Finally, taking into account the Regulations, the Chamber referred to par. 1 lit. a) 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.
49.
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.
50.
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
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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.
51.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
52.
The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8
of the Regulations.
d.
Costs
53.
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
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
54.
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.
55.
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, Federico Nicolas Varela Escudero, is partially accepted.
2. The Respondent, Denizlispor Kulubu, has to pay to the Claimant, the following amounts:
- EUR 150,000 as outstanding remuneration plus 5% interest p.a. as follows:
o
o
o
o
On EUR 37,500 as from 1 November 2020 until the date of effective payment.
On EUR 37,500 as from 1 December 2020 until the date of effective payment.
On EUR 37,500 as from 1 January 2021 until the date of effective payment.
On EUR 37,500 as from 1 February 2021 until the date of effective payment.
- EUR 354,167 as compensation for breach of contract without just cause plus 5% interest as
from 8 February 2021.
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 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 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 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.
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).
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