Labour Disputes
Texto da decisão
REF FPSD-3524
Decision of the
Dispute Resolution Chamber
passed on 10 March 2022
regarding an employment-related dispute concerning the player Dominik
Grzegorz Furman
BY:
Frans de Weger (the Netherlands), Chaiperson
Roy Vermeer (the Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Player Dominik Grzegorz Furman
Represented by Talat Emre KOÇAK
RESPONDENT / COUNTER-CLAIMANT:
Genclerbirligi SK, Turkey
INTERVENING PARTY:
Wisla Plock, Poland
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REF FPSD-3524
I.
Facts of the case
1.
On 21 August 2020, the Polish player, Dominik Grzegorz Furman (hereinafter: player or
Claimant/Counter-Respondent) and the Turkish club, Genclerbirligi SK (hereinafter: club or
Respondent/Counter-Claimant) concluded an employment contract (hereinafter: contract)
valid as from the date of signature until 31 May 2022.
2.
According to the contract, the club, inter alia, undertook to pay the player the following
monies:
- EUR 300,000 as salaries during season 2020/2021, payable in ten instalments of EUR
30,000 between 1 October 2020 and 1 July 2021;
- EUR 300,000 as salaries during season 2021/2022, payable in ten instalments of EUR
30,000 between 1 October 2021 and 1 July 2022;
- EUR 200,000 as “advance payment” due on 31 August 2021.
3.
On 14 June 2021, the player put the club in default and requested payment of EUR 120,000,
corresponding to the salaries between February 2021 and May 2021 (4x EUR 30,000), within
15 days.
4.
On 30 June 2021, the player terminated the contract with the club due to its failure to comply
with its financial obligations.
5.
On 30 June 2021, the club remitted the outstanding remuneration in the amount of EUR
120,000.
6.
On 1 July 2021, the club contacted the player to request him to revoke the termination and
honour the contract as agreed.
7.
On 5 July 2021, the player signed a new employment contract with the Polish club, Wisla
Plock, valid as of 6 July 2021 until 30 June 2022, including a monthly remuneration of PLN
28,000 (approx. EUR 6,200).
II. Proceedings before FIFA
8.
On 2 September 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
In his claim, the player requested payment of the following monies:
- EUR 530,000 as compensation for breach of contract, plus 5% interest p.a. as of 30
June 2021;
- EUR 90,000 as additional compensation (three monthly salaries), plus 5% interest p.a.
as of 30 June 2021.
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10. In his claim, the player held that he had just cause to terminate the contract since the club
failed to remit his remuneration until 30 June 2021, even after he put them in default.
11. The player acknowledged receipt of his outstanding remuneration in the amount of EUR
120,000, “after his termination”.
12. On account of the above, the player deems being entitled to compensation, corresponding
to the residual value of the contract.
b. Position of the Respondent / Counterclaim
13. In its reply, the club rejected the player’s claim and lodged a counterclaim against him,
requesting payment of EUR 530,000 as compensation for breach of contract, plus 5% interest
as of 30 June 2021.
14. In this regard, the club held that “early or mid-June 2021” the club’s board changed and that
it was only “later discovered” that the player requested outstanding remuneration on 14 June
2021.
15. On account of the above, the club maintained that it remitted the outstanding remuneration
on 30 June 2021, whereby the Claimant terminated the contract “on the same day”.
16. The club subsequently requested the player to revoke his termination, which was denied.
17. Moreover, the club held that it later discovered that the player concluded an employment
contract with the Polish club, Wisla Plock and it suggests that there was already contact while
he was still under contract in Turkey.
18. In this context, the club held that the player was not acting in good faith when terminating
the contract and submitted a Polish news article in support of said allegation.
c. Player’s answer to the counterclaim
19. In reply to the club’s claim, the player refuted the Respondent’s allegations and requested to
dismiss the counterclaim.
20. First of all, the player reiterated his position, pointed out that he put the club in default in
accordance with art. 14bis RSTP and that the club failed to remit the outstanding
remuneration within the 15 days.
21. He insisted that he received the payment only after having terminated the contract.
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22. Furthermore, the Claimant pointed out that the news article submitted by the Respondent
refers to a different Polish club than the one he concluded a contract with, clearly after his
termination.
d. Position of Wisla Plock
23. Wisla Plock submitted its comments to the dispute and endorsed the player’s position.
24. Moreover, it contested having induced the player to breach the contract. In this regard, it
pointed out that the player did not breach any contract.
25. Furthermore, the new club held that it signed the employment contract with the player only
after his termination, on 5 July 2021. The club pointed out that the negotiations started only
on 3 July 2021.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 02 September 2021 and submitted for
decision on 10 March 2022. Taking into account the wording of art. 34 of the October 2021
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
27. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (March 2022 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 an Polish player and a
Turkish club.
28. 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 Players (March 2022), and considering
that the present claim was lodged on 02 September 2021, the August 2021 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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b. Burden of proof
29. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 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 Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
30. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
31. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties dispute the justice of the early termination of the
contract by the Claimant, based on the alleged non-payment of certain financial obligations
by the Respondent as per the contract.
32. In this context, the Chamber acknowledged that its task was to determine as to whether the
contract was terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
33. In this context, the Chamber started to analyse the circumstances of the player’s termination
on 30 June 2021, which occurred after he had put the club in default for more than 4 monthly
salaries on 14 June 2021, requesting payment within 15 days.
34. The Chamber also noted that, on 30 June 2021, the club remitted the outstanding
remuneration. Nevertheless, the Chamber decided that since the 15 days have already
elapsed on 29 June 2021 and the player held that he received the payment after his
termination, which remained uncontested by the club, the player had just cause to terminate
the contract on 30 June 2021 in accordance with art. 14bis RSTP.
35. Consequently, the Chamber rejected the club’s arguments and its counterclaim.
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ii. Consequences
36. 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.
37. The Chamber observed that no remuneration remained outstanding, as the residual amount
was remitted after the player’s termination.
38. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Chamber
firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of
compensation shall be calculated, in particular and unless otherwise provided for in the
contract at the basis of the dispute, with due consideration for the law of the country
concerned, the specificity of sport and further objective criteria, including in particular, the
remuneration and other benefits due to the player 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.
39. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
40. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
41. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the player under the terms of the contract from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of EUR 530,000 serves as the basis for the determination of the amount of
compensation for breach of contract.
42. In continuation, the Chamber verified as to whether the player had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
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43. Indeed, the player found employment with the Polish club, Wisla Plock. In accordance with
the pertinent employment contract, the player was entitled to EUR 6,200 per month.
Therefore, the Chamber concluded that the player mitigated his damages in the total amount
of EUR 68,200, that is, 11 times EUR 6,200.
44. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player 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 club, and therefore decided that the
player shall receive additional compensation.
45. In this respect, the Chamber concluded that the player is, in principle, entitled to the amount
of EUR 90,000, i.e. 3 times EUR 30,000 as the monthly remuneration of the player as
additional compensation
46. However, the Chamber reminded the parties that, as per the last sentence of art. 17 par. 1
lit. ii) of the Regulations, the overall compensation may never exceed the rest value of the
prematurely terminated contract.
47. Consequently, on account of all the above-mentioned considerations and the specificities of
the case at hand, the Chamber decided that the club must pay the amount of EUR 530,000
to the player (i.e. EUR 530,000 minus EUR 68,200 plus EUR 90,000, limited to a maximum of
EUR 530,000), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
48. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation
at the rate of 5% p.a. as of 2 September 2021 until the date of effective payment.
iii. Compliance with monetary decisions
49. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
50. 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.
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51. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become immediately effective on the
Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
52. 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.
53. 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. 24 par. 8 of the
Regulations.
d. Costs
54. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
55. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
56. 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 / Counter-Respondent, Dominik Grzegorz Furman, is partially
accepted.
2.
The Respondent / Counter-Claimant, Genclerbirligi SK, has to pay to the Claimant, the
following amount(s):
- EUR 530,000 as compensation for breach of contract plus 5% interest p.a. as from 02
September 2021 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1. The Respondent / Counter-Claimant shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid. The maximum
duration of the ban shall be of up to 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 made by the
end of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 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 17 of the Procedural Rules).
CONTACT INFORMATION
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