Dispute Resolution Chamber
Texto da decisão
REF FPSD-162
Decision of the
Dispute Resolution Chamber
passed on 17 June 2021
regarding an employment-related dispute concerning the player FEGHOULI SOFIANE
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Philippe Diallo (France), member
Roy Vermeer (Netherlands), member
CLAIMANT:
Sofiane Feghouli, Angola
Represented by Mr Iñigo Landa Aguirre
RESPONDENT:
Galatasaray Sportif A.S, Turkey
Represented by PhD. S. Petek Akyüz Arslan
and Mr Ludovic Deléchat
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REF FPSD-162
I.
FACTS OF THE CASE
1.
On 14 August 2017, the Angolan player, Mr Sofiane Feghouli (hereinafter: the player or the
Claimant) and the Turkish club, Galatasaray AS (hereinafter: the club or the Respondent),
concluded an employment agreement (hereinafter: the contract) valid from the date of its
signature until 31 May 2022.
2.
In accordance with clause 3 of the contract, the club undertook to pay to the player, inter alia,
the following amounts:
For the season 2019/2020:
A net monthly salary of EUR 385,000, payable on the last day of the month (payable as
from August 2019 until May 2020);
An accommodation allowance in the amount of EUR 6,000 net per month.
For the season 2020/2021:
A net monthly salary of EUR 385,000, payable on the last day of the month (payable
as from August 2020 until May 2021);
An accommodation allowance in the amount of EUR 6,000 net per month.
3.
Clause 3.6 (epigraph Special Provisions) of the contract reads as follows: “By the signing of this
contract, player declares, agrees and undertakes to comply with the decisions of Executive
Committee and the internal disciplinary regulations of the Company, and also declares and
agrees that a copy of the club´s internal disciplinary regulations has been given to him”.
4.
Clause 3.10 (epigraph Special Provisions), of the contract reads as follows: “Any claim raised by
the player in relation to a late payment can only be lodged after a payment delay of 60 natural
days. In case of such delay, the player must send a written notice to the club and must allow 30
days for payment. If the cub fails to fulfil its financial obligations within this 30 days period, the
player will have right to terminate the contract”.
5.
Art. 7, lit a) and d) of the Internal Disciplinary Regulations of the club reads as follows: “Fines
in case of Yellow and Red Cards and Ban from game and Deprivation of rights by TFF or UEFA:
a) Except for the first yellow cards encountered within the scope of football rules as a result of
the position, any yellow and/or red cards shown to the player shall lead to a fine of at least 2%
of guaranteed season value of the player, according to the decision by the Board; d) In the event
player is imposed with a ban from game or deprivation of rights by TFF, FIFA or UEFA, this shall
lead to a fine of at least 2% of guaranteed season value of the player, for each game of
ineligibility, according to the decision of the Board. Moreover, per point and premium – if any
– payments for such ineligible games shall not be paid”.
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REF FPSD-162
6.
Art. 11 of the Internal Disciplinary Regulations of the club reads as follows: “Fines shall be
deducted from initial accruals of the player. The club, however, may prefer deduction from
further receivables. If the player has no receivables due from the club, then he shall reimburse
such amount to the club in no later than 7 days as of notification of the resolution. At the end
of 7th day following receipt of notice, interest shall accrue without necessitating any further
notice”.
7.
On 19 March 2020, the Turkish Football Federation (hereinafter: the TFF) suspended the football
activities and, thus, the Süper Lig.
8.
By means of its letter dated 15 April 2020, the club requested the player to accept a salary
reduction of 30% in view of the financial impact created by the Covid-19 pandemic. The said
letter further stated the following: “I would like you to specifically know that our incurred loss
of income in this period is significantly higher than the waiver amount we requested. Therefore,
this waiver and support shall have a far stronger moral meaning than its monetary impact for
our Club. Moreover, I assure you that when we win the Turkish Super League with or without
fans in the stadiums, a portion of your waiver shall be returned to you, crowning your sacrifice”.
9.
On 4 May 2020, the player put the club in default of payment in connection with outstanding
amounts due for the months of October and November 2019, as well as January, February and
March 2020, granting the club a 30 days´ deadline to remedy the default.
10.
By means of its letter dated 11 June 2020, the club contacted FIFA, raising different topics,
amongst which the club referred to the “discussion with the players”, i.e. the negotiations with
the players regarding salary reductions. In this regard, the club stated, inter alia, the following:
“After extensive discussions, we have finally agreed with most of our players on 15% reduction
on their annual fixes salaries and 15% postponement of their annual fixed salaries to a payment
period extending from July 2020 to October 2020. […] Yet we have few cases mostly with
players having their last year of contracts with our club or the ones looking to transfer to another
club at the end of this season still insisting on applying their original contract terms. As we have
already agreed with the majority of our players and we can easily justify this methodology, we
shall apply the aforementioned ratios to all of our players. It results in a total reduction of EUR
6mn and postponement of EUR 6mn, still significantly low compared to our unrecoverable cash
flow deficit of EUR 32mn”.
11.
In reply thereto, FIFA´s Director of Football Regulatory replied on 22 June 2020, stating, inter
alia, the following: “When it comes to unilateral variations of contracts, we deem it relevant to
point out that - based on these Guidelines - FIFA expects that each club does as much as possible
to agree on a collective agreement with all its players/coaches. If clubs are not able to agree on
a collective agreement with all its players/coaches, we recommend to duly document the
discussions. Moreover, where unilateral variations of contracts are made, such unilateral
variations will be recognised by the FIFA judicial bodies if they are made in accordance with
national law or a collective agreement mechanism, or, in the absence of collective agreement
and where national law does not address the situation, where the variations are made in ”good
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REF FPSD-162
faith, are reasonable and proportionate”. Said criteria are subjective, and any unilateral variation
to a contract must be determined on a case-by-case basis vis-à-vis those criteria”.
12.
By means of his letter dated 9 July 2020, the player put the club in default of payment
–
again–, on this occasion regarding the outstanding moneys due for the months of March, April
and May 2020 in the total amount of EUR 1,198,000, granting the club a 30 days´ deadline to
remedy the default.
13.
On 14 July 2020, the club informed the player that, upon the red card and 2 matches´ ban
imposed on the latter due to a “violent action” committed by the player during a match
disputed on 5 July 2020, the club had decided to sanction the player.
14.
By means of his email of 16 July 2020, the Claimant replied thereto, rejecting the decision of
the club to impose sanctions on the player and stating that it was an attempt of the club to
offset the player´s financial entitlements.
15.
Thereto, the club replied on the same date, arguing, inter alia, the following: “Mr. Feghouli has
been a key player in our championship titles in the last two seasons. Yet, he made a serious
mistake and kicked an opponent in the chest during a very critical game against Trabzonspor
and has been sent off on the 31st minute. […] I strongly recommend you not to mix matters
with each other or accusing our club with such attempts. We respected (yet did not agree at all
with) Mr. Feghouli’s decision of not accepting our proposal and currently discuss this internally,
taking into consideration our discussions with FIFA. However, this disciplinary proceeding is a
totally distinct and different subject than our Covid-19 related discussions”.
16.
Also on the same date, the player replied to the club, stating –inter alia– the following: “you
have to take in account that if after the player has sent a letter of notice to the club, the answer
coming from you is not to immediately pay the outstanding amounts to the player, but instead
the answer is to impose a disciplinary sanction to the player, it will be very understandable to
interpret that the club is not behaving in good faith. In particular when the game was the 5th
July 2020 and not any disciplinary process was initiated at that time”.
17.
Thereto, the club replied on the same date as well, pointing out, inter alia, the following: “Yet,
your interpretation of linking the initiation of the disciplinary proceeding (to 6 members of the
squad with red card) with your letter of notice for outstanding amounts is not accurate at all.
The process, the timing and the decision on disciplinary proceedings is a matter of our Board of
Directors. Without commenting any further on this, I would like to state one more time that we
apply quite high level of corporate governance standards on such critical matters in our club”.
18.
By means of its communication dated 24 July 2020, the club informed the player that, on 21
July 2020, it had decided to impose a fine of EUR 231,000 on the player, as per arts. 8-7 lit. a)
and d) of the club´s Internal Disciplinary Regulations.
19.
On 6 August 2020, the player replied to the club´s communication and argued, inter alia, the
following: “This is clearly a way to punish the player because he did not accept your proposal
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REF FPSD-162
to reduce his salary and because he was asking for payments of his remunerations on due time
as agreed in his employment contract”.
20.
On the same date, the club replied to the player, insisting on the lack of connection between
the financial issues of the club, arisen upon the Covid-19 pandemic, and the imposition of the
fine on the player. What is more, the club alleged the following: “We also emphasize that some
of our players, who have been going through the very same disciplinary proceedings and have
been imposed with fines as well, had already agreed with our offer for reduction due to
pandemic and signed respective protocols with our Club”.
21.
As to the proportionality of the fine imposed on the player, the club argued the following:
“After duly taking into account the content of Mr. Feghouli’s written defense which was
submitted on 16 July 2020, our Club’s Board of Directors has decided to impose a proportional
fine to Mr. Feghouli upon considering his violent foul, importance of the Trabzonspor game, in
which he was sent-off in the first half on the 30th minute, his absence for two games in the
most crucial period of the entire season due to a two game ban imposed by Turkish Football
Federation’s Arbitral Board. It is also important to note that the Board of Directors of our Club
decided to apply the minimum penalty amount in the disciplinary regulations which is 2% of
Mr. Feghouli’s guaranteed fee per his each breach in accordance with Articles 8/7-a and 8/7-d
of the disciplinary regulation which was notified to Mr. Feghouli through 37th Public Notary of
Beyoğlu”.
22.
It needs to be highlighted that, in the said correspondence, the club made the following
statement in connection with the eventual termination of the contract made by the player: “in
case Mr. Feghouli terminates his employment contract unilaterally, he would be fully responsible
for violating his employment contract as such termination would be deemed to be executed
without a cause. On such an occasion, our Club shall claim a lodge before the competent bodies
of FIFA requesting the residual value of the employment contract and any consequential
damages our Club may face because of such termination”.
23.
On 20 August 2020, the Respondent sent an email to the Claimant´s representative, with the
following content:
“I hope this e-mail finds you well and healthy.
As you know, we had a productive meeting with Sofiane two days ago with the participation
of our two vice presidents, Mr. Abdurrahim Albayrak and Mr. Yusuf Gunay. We highly
appreciate the approach of Sofiane towards our Club in the meeting.
Following this meeting, I had a call with you to explain the content of the meeting. Having
explained him our current financial difficulties due to Covid-19, we are proposing a discount
and a one-year extension of his contract with the following conditions:
1. His contract remains effective for 2020/21 and 2021/22 seasons for a total fixed salary of
EUR 7,700,000
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REF FPSD-162
2. We are signing a one-year extension of his contract for the 2022/23 season for a total fixed
salary of EUR 100,000
3. We make every year a fixed salary payment of EUR 2,600,000 to Sofiane in 10 monthly
installments and sign respective payment structuring protocols together with the signing of the
one-year extension.
We have had similar meetings with most of the teammates of Sofiane yesterday as well. The
Club is going through a difficult financial situation due to Covid-19 and we proceed in a very
transparent, cooperative and straight-forward manner with all of our team members. We
strongly hope that this proposal is acceptable for Sofiane.
We kindly ask you to discuss this proposal with Sofiane in a timely manner and provide us with
your feedback.
We thank you once more for your support and look forward to hearing back from you with a
confirmation of this proposal at your earliest convenience”.
24.
On 30 September 2020, in view of the lack of reply to the previous email, the Respondent sent
another email to the Claimant´s representative, stating, inter alia, the following: “As shared with
you in writing 41 days ago, we had a productive meeting with Mr. Feghouli on his contract and
his future at our Club on 19 August 2020. Given his importance for our Club, this meeting was
taken place in presence of our two vice chairmen. Following this meeting, Mr. Hanedar shared
with you our Board-approved offer for Mr. Feghouli after having your initial question of whether
we would be interested in extending his contract on 20 August 2020. Despite his letter and his
numerous attempts to contact you, we have not been able to receive any feedback from either
you or your client, Mr. Feghouli”.
II.
PROCEEDINGS BEFORE FIFA
25.
On 14 September 2020, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
26.
Statement of claim of the Claimant
In his initial request for relief, the Claimant requested to be awarded outstanding remuneration
in the total amount of EUR 1,191,000 net, plus 10% interest p.a. on the outstanding amounts,
as from 31 May 2020 until the date of effective payment, broken down by the player as follows:
EUR 385,000 corresponding to the salary of April 2020;
EUR 385,000 corresponding to the salary of May 2020;
EUR 385,000 corresponding to the salary of August 2020;
EUR 36,000 corresponding to 6 instalments of the accommodation allowance in the amount
of EUR 6,000 each;
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REF FPSD-162
The player further requested procedural costs in the amount of CHF 25,000 to be imposed
on the Respondent and the DRC to determine that the player is entitled to terminate the
contract with just cause and claim for compensation for breach of contract.
27.
In his claim, the player maintained that, despite having complied with his contractual
obligations, the club failed to comply with its financial obligations towards him, which put the
player in a situation of vulnerability.
28.
Moreover, as to the fine imposed on him by the club, the player argued the following: 1.) That
the fine has been unlawfully imposed in accordance with the club´s Internal Disciplinary
Regulations, to which the player never agreed and which is not part of the contract; 2.) That
the sanction imposed does not have a correlation with the acts of the player; 3.) Even if lawfully
imposed, quad non, that the fine is disproportional; 4.) That, according to the club, the sanction
was imposed as a consequence of the acts of the player during the match held on 5 July 2020.
In this regard, the player maintains that no disciplinary proceedings were opened until 24 July
2020, i.e. 20 days after the date of the disciplinary infraction, which would demonstrate that
the imposition of the sanction has been elaborated by the club in order to reduce its financial
obligations towards the player; 5.) In line with the above, that the club is acting in bad faith
when imposing a fine of EUR 231,000 on him, thereby attempting to offset the moneys due to
the player in view of the fact that the latter refused to sign the salary reduction proposed by
the club.
b.
Statement of reply of the Respondent
27.
In its reply to the claim, the club maintained that, following the suspension of all football related
activities in Turkey in March 2020, the players, including the Claimant, were not performing
any employment related activities during weeks, i.e. as from 19 March until 6 May 2020.
28.
The Respondent referred to the letter issued by FIFA on 22 June 2020 and argued that the club
“already understood from the FIFA letter at that time that it was having the appropriate
approach towards all its employees, including specifically the Claimant”.
In this context, the Respondent stressed that, thereafter, in June 2020, the club held a meeting
with all the players, to which the player did not attend and that, following that meeting, almost
all players accepted to abide to a 30% salary reduction concerning their entitlements for the
season 2019/2020, with the exception of the Claimant and 2 other players, who refused to
agree thereto.
29.
32.
The Respondent further explained that it had a meeting with the player on 18 August 2020 in
order to discuss about the players´ salary reduction for the season 2019/2020. In this respect,
the Respondent maintained the following: “The meeting was very positive and the Claimant
verbally agreed to conclude a new agreement if he could have in exchange an extension of one
more year of his contract. Such request was accepted from its part by the Defendant, showing
again its good intention. Such important fact was obviously forgotten by the Claimant in his
claim”.
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REF FPSD-162
33.
As to the conduct of the player during the match held on 5 July 2020 and the subsequent
disciplinary proceedings conducted, the club explained the following: “On 5 July 2020, during
a very important match against Trabzonspor, the Claimant got sent off by the referee after a
violent gesture against an opponent. The Claimant was suspended for two (2) games by the TFF
and missed important matches of the final of the 2019-2020 football season. Following such
violent behaviour from the Claimant, a disciplinary procedure was opened by the Defendant in
accordance with the disciplinary regulations of the Club (exhibit 8 – disciplinary regulations of
the Club). It is important to highlight that before such match, the Club was in a position to
secure a Champions’ League spot for the 2020-2021 edition of the Champions’ League. The
Claimant was sent off after only 31 minutes and the score was still 0-0. Needless to say that
such violent gesture had important consequences, sportively and financially”.
34.
In connection with the disciplinary decision dated 21 July 2020, communicated to the player on
24 July 2020, the Respondent explained the following regarding the regulatory framework on
which the sanction is based and the application of the relevant internal disciplinary regulations
of the club to the actions committed by the player: “The Claimant was found to have violated
clause 8/7 (a) and (d) of the disciplinary regulations of the Club leading to a fine equivalent to
6% of the Claimant’s annual salary, i.e. EUR 231,000. The Claimant was also informed that such
amount would be deducted from his current or next payments salary in accordance with clause
8/7 (a) of the disciplinary regulations. At this stage, it is important to mention that all players of
the Club are treated the same way in accordance with the disciplinary regulations which form
integral part of the contractual relationship. In this respect, it is important to note that article 6
of the employment contract states that “By signing of this contract, Player declares, agrees and
undertakes to comply with the decisions of Executive Committee and the internal disciplinary
regulations of the Company, and also declares and agrees that a copy of the Club’ internal
disciplinary regulations has been given to them”. Therefore and contrary to the allegations of
the Claimant, one could note that the latter had agreed to the disciplinary regulations of the
Club”.
35.
As to the fine of EUR 231,000 imposed on the player, the Respondent maintained that it “is
reasonable and proportionate as 6% (2% for a direct red card following a violent gesture as
well as 2% per game banned by the TFF) of the annual salary of the player”.
36.
As to the 15% reduction of the Claimant’s annual salary for the season 2019-2020 following
the COVID-19 pandemic, the Respondent stressed that it complied with all the requirements
set within the FIFA guidelines issued in April 2020. In this respect, the Respondent stated the
following
As to whether the club has attempted to reach a mutual agreement with its employee(s):
“The Defendant was in contact with the Claimant as well as with all employees of the Club,
trying to find an appropriate and fair balance between the loss of revenues as explained in
the report and the suggested amendments to employment contracts, including the
Claimant’s employment contract. […] What is more, the Defendant thought having reached
a final agreement with the Claimant after having met with the latter on 18 August 2020,
fact which is confirmed by the email of 20 August 2020”;
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REF FPSD-162
As to whether the decision is applied to the entire squad or only specific employees: “To
date, the Defendant is glad to have reached agreements with almost all his employees so
far reducing the annual salaries for the 2019-2020 treating all of them equally.
Consequently, the Defendant applied such fair and proportionate reduction to all employees
in compliance with the COVID-19 FIFA guidelines”;
What the economic situation of the club is: The Respondent provided a report regarding its
losses during the pandemic. In this sense, the Respondent argued that “a 15% reduction of
the annual salary is decent and totally in adequation with the financial loss of the Club”;
As to the proportionality of any contract amendment: “The applied amendment of 15%
only of the 2019-2020 remuneration is totally fair and proportionate considering the
financial impact on the Defendant’s finances. Such percentage of reduction has been taken
into account following the explicit considerable loss of revenues of the Club (loss of
sponsors; no ticketing, no merchandising, reduction of the TV rights fees etc.). The report
and the UEFA letter enclosed to the present answer are self-explanatory and confirm the
actual financial impact on the Defendant’s budget following the COVID-19 outbreak”.
As to the net income of the employee after any contract adjustment: the Respondent argued
that the salary reduction applied amounts to 15% of the player´s fixed salary for the season
2019/2020, which amounts to EUR 577,500. In this regard, the Respondent held that “the
Claimant had already received since 2017, i.e. date when he joined the Club, the fix salary
remuneration of EUR 12,127,500 (!!). Therefore, by accepting to reduce 15% of his annual
salary for an amount of EUR 577,500 should be considered as acceptable, proportionate
and fair and should not affect his well-being while helping the Defendant to deal with the
unpredictable losses of revenues following the COVID-19 outbreak”.
c.
Statement of replica of the Claimant
30.
In his replica, the player rejected the arguments of the club regarding the lawfulness of the fine
imposed by the latter. In this respect, the player referred to his previous arguments and stressed
that, upon the player´s refusal to accept the 15% salary reduction proposed by the club, the
latter used the disciplinary sanctions imposed on the player during the match of 5 July 2020 in
order to justify a monetary sanction of EUR 231,000 and thereby reduce the player´s financial
entitlements, which shows the bad faith of the club. What is more –continued the player–, the
player received a sporting sanction from the Turkish FA, which does not allow the club to impose
a further sanction on him.
31.
Concerning the lawfulness of the fine imposed by the club, the player argued that he never
accepted to be bound by any such disciplinary regulations, insofar he signed his contract on 14
July 2017 and it was not until 27 August 2019 that the club sent the said disciplinary regulations
to the player. In this respect, the player held that the said regulations were never discussed with
him or any other player and that he never signed them.
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REF FPSD-162
32.
Moreover, the player held that to impose a fine of EUR 231,000, which represents
approximately 6% of the player´s annual salary, is disproportionate and illegal.
33.
Regarding the unilateral salary reduction of 15% of his salaries, the player stated that he club
failed to communicate to him the decision whereby the said salary reduction was to be imposed
on his financial entitlements. The player also rejected having orally accepted the said salary
reduction and further contested the validity of the email dated 20 August 2020, which does
not represent the reality of the events that occurred. What is more, the player stressed that the
said e-mail was not even sent to him, which –according to the player– demonstrates that it was
fabricated by the club and cannot justify in any event that the player accepted to the salary
reductions proposed by the club. In this respect, the player highlighted that the said email seems
to have been sent to Mr Abbasi Antar, the person who represented the player when he was
signing the contract with the cub, but who no longer represented him.
34.
In this context, the player argued that the unilateral actions of the clubs cannot be accepted,
insofar those are not made in accordance with the law nor with the will of the parties and only
show the bad faith of the club, which aims at imposing illegal and disproportionate sanctions
on him for not agreeing to reduce his salary.
35.
The above being said, the player explained that the club has continued with its abusive conduct
and has failed to pay his salaries as from November 2020 until 23 March 2021, date on which
the club finally paid those salaries. In this respect, the player requested to be awarded the total
amount of EUR 1,199,500, plus 10% interest on the amount of EUR 808,500 as from 31 May
2020, broken down by the player as follows:
EUR 231,000 corresponding to the amount unilaterally retained by the club as per the
sanction unlawfully imposed on the player in connection with the actions of the player
during the match of 5 July 2020;
EUR 577,500 corresponding to 15% of the player´s salaries for the season 2019/2020,
which were unilaterally and unlawfully reduced by the club from the player´s salaries of
the said season (3,850,000*0.15 = 577,500;
EUR 385,000 corresponding to the salary of March 2021;
EUR 6,000 corresponding to the accommodation allowance of March 2021;
The player further requested procedural costs in the amount of CHF 25,000 to be
imposed on the Respondent and the DRC to determine that the player is entitled to
terminate the contract with just cause and claim for compensation for breach of contract.
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REF FPSD-162
d.
Statement of duplica of the Respondent
36.
In its duplica, the club reiterated its previous arguments.
37.
As to the lawfulness of the fine imposed on the player, the club reiterated its previous
argumentation and added that the player received the disciplinary regulations of the club every
season, on 3 November 2017, 9 August 2018 and 27 August 2019, respectively.
38.
In view of the foregoing, the club held that “the player was indeed aware of the disciplinary
regulations, as he received it also in the 2017/2018 and 2018/2019 football seasons and he
knew the potential outcome of any infringement. Moreover, the player never raised any
complaint to the content of the disciplinary regulations throughout the contractual
relationship”.
39.
In this respect, the club held that the disciplinary provision whereby the club is entitled to impose
the said fines to the player remained unchanged in the different versions of the disciplinary
regulations that were sent to the player (seasons 2017/2018, 2018/2019 and 2019/2020).
Moreover, the club referred –once again– to the proportionality of the fine imposed, since it
only represents 6% of the player´s seasonal income.
40.
As to the salary reductions practiced on the player´s salaries, the club held that the meeting of
18 August 2020 –followed by the email dated 20 August 2020–, shows that the Claimant had
accepted to reduce his annual salary accordingly.
41.
In this regard, the Respondent argued that it thought in good faith to have an agreement and,
therefore, it paid the total 2019/2020 seasonal salary to the player, minus an amount equal to
15% thereof, which was reduced in accordance with the agreement of the parties. 45. In this
context, the club stated that: “having proceeded with the entire Claimant’s remuneration of
the 2019-2020 football season, the Defendant respectfully requests the FIFA DRC to reject the
Claimant’s claim in its entirety”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
42.
Competence and applicable legal framework
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 14 September 2020 and submitted 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.
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REF FPSD-162
43.
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 an Angolan player and a
Turkish club.
44.
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 September 2020, the August 2020 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b.
Burden of proof
45.
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.
46.
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.
47.
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
48. The foregoing having been established, the Chamber moved to the substance of the matter, and
noted that the Claimant requested, once he amended his claim via his statement of replica, to
be awarded the following amounts: EUR 231,000, which was retained by the club to offset a
disciplinary fine imposed on the player; the reimbursement of the amount of EUR 577,500,
amount equal to 15% of his salaries during the season 2019/2020, which was retained by the
club as a consequence of the unilaterally applied salary reductions following the Covid-19
pandemic; the salary of March 2021 in the amount of EUR 385,000; as well as the
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accommodation allowance of the said month in the amount of EUR 6,000; and legal fees in the
amount of EUR 25,000.
49. The above being noted, the DRC firstly referred to the fine of 231,000 imposed on the player. In
this regard, the Chamber acknowledged that the said fine was imposed by the club on the player
in connection with the violent acts of the player during the match played on 5 July 2020 against
the Turkish club Trabzonspor (the player got a red card and was suspended from participating in
the following 2 games). In this context, the Chamber further noticed that the club issued a
disciplinary decision, whereby the latter imposed the fine of EUR 231,000 on the player; decision
that was issued on 21 July 2020 and was communicated to the player on 24 July 2020.
50. In accordance with the player, observed the DRC, the said fine was unlawfully applied, insofar:
the player was never part of the negotiations for the approval of the 2019/2020 disciplinary
regulations of the club, never signed them and insofar the said fine is disproportionate.
51. On its part, the Chamber took note of the argumentation of the club, which argued that the fine
was lawfully applied, insofar: the player –in clause 3.6 of the contract– accepted the disciplinary
regulations of the club and acknowledged having receipt a copy thereof; art. 7 a) and d) of the
said disciplinary regulations entitle the club to fine the player with an amount equal to 2% of his
fixed seasonal income for every red card received, and additional fines of 2% of his fixed seasonal
income for every game in which the player is suspended.
52. In light of the aforementioned, noted the Chabmer, the club argued that the amount of EUR
231,000, which represents 6% of the player´s seasonal income (3,850,000*0.06 = 231,000) is
reasonable, proportionate and in line with the disciplinary regulations.
53. In this context, the positions of the parties with regards to the lawfulness of the abovementioned
fine having been exposed, the DRC stated that an analysis of all the circumstances surrounding
the imposition of the relevant fine must be undertaken.
54. In the first place, the Chamber acknowledged that clause 3.6 of the contract contemplates the
player´s acceptance of the disciplinary regulations of the club, and that art. 7 a) and d) thereof
have not changed in the versions approved for the following seasons, i.e. seasons 2018/2019
and 2019/2020. Moreover –whished to emphasize the Chamber–, the player himself
acknowledged having received a specimen of the 2019/2020 Disciplinary Regulations of the club
on 27 August 2019, even though he did not sign them. As to the right to be heard of the player
and the lawfulness of the disciplinary proceedings carried out by the club, the Chamber observed
that, on 14 July 2020, the club initiated disciplinary proceedings against the player, framework
within which the player submitted a statement of defence on 16 July 2020, which resulted in the
imposition of a fine of EUR 231,000 on the player. In this respect, the Chamber determined that,
in view of the fact that the player was given a procedural chance to submit a statement of
defence, which he did, the right of the player to be heard is to be considered, in principle,
respected.
55. The above being explained, the DRC deemed it of vital importance to refer to the CAS Award
2018/A/5807 Fenerbahce Futbol AS v. Gregory van der Wiel, of 13 February 2019, where
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the CAS concluded that a club can lawfully offset fines imposed to a player against his contractual
income, with 2 specific limits: the player must have accepted the said set-off in the contract and
the said set-off cannot not “nullify” entirely an employee’s right to a basic salary, or be applied
in an abusive way. In this respect, the DRC further referred to the CAS Award 2007/A/1353 para.
52), which provides that the employer may withhold a part of the salary, if so agreed upon, or if
such is customary or is fixed by a standard or collective employment agreement, and (at Article
323b) sets limits to a set-off.
56. The above being stated, the DRC held that, even though the contract itself did not directly
regulate the right of the club to set-off the player´s income against disciplinary fines imposed on
him by the club, the contract made an explicit reference to the Disciplinary Regulations of the
club, which were accepted by the player when signing the contract, and which allow the club to
proceed with the set-off of fines against the player´s seasonal income (cf. arts. 6 and 11 of the
Internal Disciplinary Regulations). In this context, the DRC deemed that the reference to the
Disciplinary Regulations of the club made in the contract and the player´s acceptance of the said
regulations is enough to determine that the player accepted to be bound by the referred
regulations and by the relevant set-off.
57. The first of the limits deemed as complied with, the Chamber turned its attention to the issue of
the proportionality of the set-off and made an analysis of the practice of the club in this respect
in order to determine whether, after the set-off, the right of the player to receive what the CAS
considers a “basic salary” was or not contravened. In this regard, the Chamber recalled that the
Disciplinary Regulations allow the club to impose sanctions in the amounts described by the club,
i.e. amounts of 2% of the player´s seasonal income per yellow/red card and 2% of the player´s
seasonal income for each match of suspension. Moreover, the DRC noted that, based on both,
art. 11 of the disciplinary regulations and the decision of 21 July 2020, the club decided to fully
deduct the amount of EUR 231,000 from the player´s salary of May 2020, meaning that in May
2020 the player only received 40% of his salary.
58. In this respect, the Chamber deemed that, notwithstanding the argument of the club that the
fine imposed on the player was reasonable, considering that it only represents 6% of the seasonal
income of the player, the amount with which the player was effectively fined, i.e. EUR 231,000,
could not, in any case, be entirely deducted from the player´s salary of May 2020, since –for that
month– the player was left with less than half of his salary, which cannot be considered as a
practice that respects the basic salary of the player for the said month. Thus, the DRC reached
the conclusion that the fine imposed on the player by the club was abusive or, at least, imposed
in an abusive way.
59. What is more, after a reading of the Disciplinary Regulations provided by the club, the Chamber
determined that those do not seem to be in accordance with the minimum standards of
proportionality, since they even contemplate fining the player with an amount equal to his total
income (cf. art. 8.8 of the Disciplinary Regulations – edition 2019/2020).
60. In this context, the Chamber deemed it appropriate to refer again to the CAS Award
2018/A/5807 Fenerbahce Futbol AS v. Gregory van der Wiel, of 13 February 2019, where
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the Panel explained that a contractually agreed fine that allows a party to levy on the other in the
event of breach can be considered a contractual penalty under Swiss law (Article
160 of the Swiss Code of Obligations - SCO) and, consequently, such fines are subject to the
provisions governing contractual penalties. In view of the aforementioned, the Chamber referred
to art. 163.1 SCO and recalled that, in principle, under Swiss law, the parties are free to determine
the amount of the contractual penalty; however, the deciding body may reduce penalties that it
considers excessive at its discretion (Article 163 (3) SCO).
61. The above being explained, the Chamber stressed that, the nature of the entitlement to set-off
the player´s income with disciplinary fines being equalled to the nature of a penalty clause, the
penalty (fines) imposed on the player should be reduced, in view of its excessiveness (considering
that a fine of 2% of the player´s seasonal income amounts to 20% of the player´s monthly salary)
and abusive nature (cf. point 58 supra). In this respect, the DRC unanimously concluded that the
fine of EUR 231,000 imposed on the player shall be reduced. In this context, the DRC determined
that the fine should be reduced from EUR 231,000 to EUR 7,700, which represents 2% of the
player´s monthly salary. The said penalty (fine) was considered by the Chamber as a reasonable
and proportionate amount, also considering that the club failed to provide evidence of previous
sanctions imposed on the player, which leads to the presumption iuris tantum that the said fines
were the first fines imposed on the player and that, in the decision issued by the Board of
Directors of the club on 21 July 2020, it is stated that the player, on top of being suspended for
the following 2 matches, was already imposed a fine of TL 8,500 by the Turkish Football
Federation.
62. The above being explained, the Chamber turned its attention to the issue of the unilateral
reduction of the player´s salaries applied by the club. In this respect, the Chamber acknowledged
that, in April 2020, the club requested the players to accept a 30% reduction of their salaries
and that, in May 2020 the club was already in default of 4 monthly salaries to the player (October
and November 2019, plus January and March 2020).
63. In addition, the Chamber deemed it important to consider that the player sent 2 default notices
to the club requesting the club to remedy the default, one in May 2020 and another one in July
2020. In this context, the Chamber noted that it remained undisputed that the club had a
meeting with the team, to which the player did not attend and that, later –on 18 August 2020–
the parties had a meeting.
64. In the e-mail dated 20 August 2020, continued the DRC, the club stated that the parties had
reached an agreement regarding the salary reductions. On the one hand, observed the Chamber,
the player argued that the club acted in bad faith, first trying to offset his financial entitlements
by imposing a fine and later by unilaterally applying a 15% salary reduction on his salaries, despite
the fact that the parties never reached an agreement in that regard. Furthermore, the Chamber
noted that the player contested having received the email of 20 August 2020 and argued that it
was not sent to him but to the agent who represented him when the parties concluded the
contract and who was no longer acting on behalf of the player. On its part, noted the Chamber,
the club argued that the salary reductions were applied in good faith and in compliance with the
FIFA guidelines on Covid-19.
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65. In order to assess whether the salary reductions were lawfully practiced or not, the Chamber
stressed that some considerations must be made. In the first place, the Chamber observed that
the club was in default of payment of 4 salaries when it proposed the player the 30% salary
reduction in April 2020 (outstanding salaries of October and November 2019, as well as the ones
of January and March 2020). Hence, the Chamber considered that –at that moment in time– the
player could not possibly trust in the club´s compliance with its future financial obligations
towards him when it offered him to accept a salary reduction of 30%.
66. Subsequently, continued the DRC, the player put the club in default of payment –again– on 9
July 2020 and, only 5 days later, on 14 July 2020, the club informed him that it had decided to
sanction the player. The aforementioned is of relevance, highlighted the Chamber, insofar the
disciplinary decision was adopted by the club on 21 July 2020, but apparently the club had
already taken the decision of imposing a fine on him since 14 July 2020.
67. Regarding the email sent by the club on 20 August 2020, the Chamber stated that it seems that
it was sent to the person that used to act as agent of the player when the parties concluded the
contract, Mr Abbassi Antar (e-mail address: [email protected]), whereas all the previous
communications exchanged between the parties were sent to the email of the player´s lawyer,
Mr Iñigo Landa (e-mail address: [email protected]) or to the player himself address
(e-mail address: [email protected]).
68. Moreover, stressed the Chamber, the club failed to provide any proof of having concluded a
settlement agreement with the player, apart from the said email, which legitimacy cannot be
ascertained. In addition, having determined that the fine imposed by the club was unlawful, the
Chamber wished to stress that it could be argued that the club was indeed attempting to offset
the player´s financial entitlements.
69. Furthermore, the Chamber deemed it of vital importance to highlight that the club, which failed
to properly communicate to the player that it would proceed with the unilateral reduction of his
salaries and did not reach any kind of agreement with the player in that regard, also failed to
provide any evidence of having proceeded in accordance with neither national law nor a
Collective Bargaining Agreement (CBA) regarding the reductions imposed on the player, nor did
it provide sufficient evidence regarding his financial losses during the season 2019/2020, insofar
it only provided a vague document indicating its revenue during the said season in comparison
to the revenue estimations for the season 2020/2021.
70. Thus, the Chamber, referring to the FIFA Covid-19 guidelines, concluded that, in view of the lack
of agreement reached between the parties and the fact that the club failed to invoke national
law or a validly concluded CBA in order to justify the lawfulness of the unilateral reductions
practiced on the player´s salaries, the Chamber had no alternative but to decide on its
proportionality and lawfulness taking into account the good or bad faith shown by the club when
unilaterally reducing the player´s financial entitlements. In this respect, in view of the above (the
lack of direct communication to the player of the unilateral decision of reducing his monthly
salaries and the fact that the club proceeded to offset the player´s income with the amount of a
fine imposed on him that has already been considered by the Chamber as excessive), the
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Chamber unanimously concluded that the salary reductions were unilaterally imposed, without
good faith and not in compliance with the FIFA Covid-19 guidelines.
ii. Consequences
71.
Having stated the above, the members of the Chamber turned their attention to the calculation
of the moneys to which the player is entitled.
72. In this respect, the Chamber determined that the player is entitled to receive from the Respondent
outstanding remuneration in the total amount of EUR 1,191,800, corresponding to: 1.) the
reimbursement of the part of the fine that was unlawfully imposed, i.e. EUR 223,300 (231,000
– 7,700 = 223,300); 2.) the reimbursement of the amount of EUR 577,500 retained by the club
as 15% of the player´s salaries during the season 2019/2020; 3.) the salary of March 2021 in the
amount of EUR 385,000; 4.) the accommodation allowance of March 2021 in the amount of
EUR 6,000.
73. In addition, taking into account the Claimant’s claim for default interest, as well as the DRC’s
longstanding jurisprudence in this respect, the DRC decided to award the Claimant interest of
5% interest p.a. on the outstanding amount, and not a 10% interest p.a. as requested by the
Claimant, in view of the lack of contractual provision contemplating a default interest of 10%
p.a.
74. In this respect, the Chamber decided to grant the player a default interest of 5% p.a. on the
amount of EUR 1,191,800, as follows:
On the amount of EUR 223,300, as from 1 June 2020 (the date following the date on
which the 2019/2020 season ended) until the date of effective payment;
On the amount of EUR 577,500, as from 1 June 2020 (the date following the date on
which the 2019/2020 season ended) until the date of effective payment;
On the amount of EUR 385,000, as from 1 April 2021 until the date of effective
payment;
On the amount of EUR 6,000, as from 1 April 2021 until the date of effective payment.
iii. Compliance with monetary decisions
75.
Finally, taking into account the consideration under number 44. 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.
76.
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
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nationally or internationally, up until the due amounts are paid and for the maximum duration
of three entire and consecutive registration periods.
77.
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, communicates the relevant bank details to the Respondent, provided that the
decision is final and binding, 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.
78.
The DRC recalled that the above-mentioned bans 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.
79.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
d.
Costs
80.
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.
81.
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.
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Sofiane Feghouli, is partially accepted.
2.
The Respondent, Galatasaray Sportif A.S, has to pay to the Claimant EUR 1,191,800 net, plus 5%
interest p.a., as follows:
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On the amount of EUR 223,300 net, as from 1 June 2020, until the date of effective
payment;
On the amount of EUR 577,500 net, as from 1 June 2020, until the date of effective
payment;
On the amount of EUR 385,000 net, as from 1 April 2021 until the date of effective
payment;
On the amount of EUR 6,000 net, as from 1 April 2021 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).
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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.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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