Labour Disputes
Texto da decisão
REF FPSD-3111
Decision of the
Dispute Resolution Chamber
passed on 12 November 2021
regarding an employment-related dispute concerning the player Lamine
Gassama
COMPOSITION:
Clifford J. Hendel (USA & France)
Stella Maris Juncos (Argentina)
Alejandro Atilio Taraborrelli (Argentina)
CLAIMANT:
Lamine Gassama, France
Represented by Mr Selçuk Demir
RESPONDENT:
Goztepe AS, Turkey
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REF FPSD-3111
I.
Facts of the case
1.
On 18 July 2018, the French player, Lamine Gassama (hereinafter: the Claimant or player),
and the Turkish club, Goztepe AS (hereinafter: the Respondent or club) signed an
employment contract (hereinafter: contract) valid as from as from the date of signature until
31 May 2021.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
- EUR 75,000 net as monthly salary payable between August 2018 and May 2019 (10x);
- EUR 75,000 net as monthly salary payable between August 2019 and May 2020 (10x);
- EUR 75,000 net as monthly salary payable between August 2020 and May 2021 (10x).
3.
The contract establishes the following bonus payments:
4.
Furthermore, according to the contract, the player is entitled to EUR 1,500 per month for
accommodation costs.
5.
On 19 March 2020, the Turkish League was suspended due to the COVID-19 pandemic until
12 June 2020.
6.
Between 21 April 2020 and 23 May 2020, the club contacted its player’s and maintained that
due to the economic impact of the pandemic, the player’s contract have to be amended.
Eventually, the club proposed the player’s a reduction of 20% of their salaries for the
2019/2020 season.
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7.
On 2 August 2020, the player replied to the club’s letter and rejected the proposed reduction
since it was unreasonable and not proportional.
8.
On 30 October 2020, the Claimant put the Respondent in default and requested payment of
EUR 227,672 related to the season 2019/2020, by 15 November 2020. In this letter, the
player rejected the club’s decision to reduce the salary by 20% due to COVID-19.
9.
On 1 July 2021, the Claimant put the Respondent in default and requested payment of a
total amount of EUR 284,672 (EUR 167,672 related to the season 2019/2020). In this letter,
the player rejected again the club’s decision to reduce the salary by 20% due to COVID-19.
II. Proceedings before FIFA
10. On 22 July 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
11. The Claimant requested payment of the following monies:
EUR 42,000 as outstanding salaries;
EUR 167,672 as “monies illegally withheld”;
EUR 450,000 as additional damages.
The Respondent requested 5% interest p.a. as of the due dates.
12. According to the Claimant, he was entitled to receive the total amount of EUR 910,000 during
the season 2019/2020, composed as follows:
EUR 60,000 as bonus due from the promotion to the Turkish Super League in
2018/2019;
EUR 750,000 as salary payments;
EUR 100,000 as bonus.
13. Furthermore, the player acknowledged receipt of the total amount of EUR 682,328, received
during the season 2019/2020.
14. On account of the above, the player claimed outstanding remuneration of EUR 209,672.
15. In this context, the Claimant argued that the Respondent was not entitled to unilaterally vary
the contract and reduce his salaries by 20%, since he never agreed to it.
16. Moreover, he held being entitled to “additional damages” of EUR 450,000.
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b. Position of the Respondent
17. In its reply, the Respondent rejected the player’s claim.
18. The Respondent argued that the player failed to substantiate his claim as it remained unclear
which monies allegedly remained outstanding.
19. In this regard, the Respondent held that it remitted salary payments in the total amount of
EUR 2,181,368 during the contractual relationship and it acknowledged that the player was
entitled to EUR 2,250,000. Therefore, a maximum of EUR 97,815 could be considered as
outstanding salary, which would correspond to a reduction of 11.5 %.
20. The Respondent held that such deduction in connection with the COVID-19 pandemic is
reasonable and proportional.
21. Moreover, the Respondent held that it paid EUR 6,374.94 on top of the player’s entitlement
to accommodation and car costs, which shall be taken into account.
22. In addition, the Respondent held that no compensation or damages shall be awarded as the
contract was not terminated, but expired.
c. Reaction to alleged payments
23. In his additional comments, the player denied having received the alleged payments of the
club and pointed out that internal lists do not proof actual payments to him.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. 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 22 July 2021 and submitted for decision on
12 November 2021. 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.
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25. 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 (August 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 French player and a
Turkish club.
26. 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 (August 2021 edition), and
considering that the present claim was lodged on 22 July 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
27. 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
28. 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
29. 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 payment of certain financial obligations
by the Respondent as per the contract.
30. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
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31. The Chamber first noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties.
32. The Chamber equally took due note of the Respondent’s argumentation regarding the effects
of the COVID-19 pandemic.
33. In this context, the Chamber, first of all, wished to highlight that FIFA issued a set of
guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the
most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters.
34. As to the concept of a situation of force majeure, the Chamber also noted that, based on the
contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare
that the COVID-19 outbreak was a force majeure situation in any specific country or territory,
or that any specific employment or transfer agreement was impacted by the concept of force
majeure. In other words, in any given dispute, it is for a party invoking force majeure to
establish the existence of said event under the applicable law/rules as well as the
consequences that derive in connection thereto. The analysis of whether a situation of force
majeure existed has to be considered on a case-by-case basis, taking into account all the
relevant circumstances.
35. Following these general observations, the Chamber noted that, the contract in the matter at
stake indeed expired on 31 May 2021. The members of the Chamber established that the
contract was not terminated during its duration and the present claim was lodged after
expiration of the contract.
36. The Chamber further noted that the player claimed monies based on an alleged reduction of
his salaries in connection with COVID-19. The members of the DRC established that the player
acknowledged receipt of EUR 682,328, received during the season 2019/2020, whereby he
alleged being entitled to EUR 910,000.
37. In this regard, the Chamber turned its attention to the the arguments raised by the
Respondent and noted that it rejected the claim, submitted an internal payments list of
payments and alleged having remitted more than the player claimed and that the rest was a
proportionate reduction in connection with COVID-19.
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38. As a starting point, the DRC analysed the player’s entitlement in detail and established that
the player failed to substantiate his claim regarding the bonuses of EUR 100,000. The DRC
further noted that there is no bonus for promotion in his contract. Therefore, the DRC
concluded that the player was entitled to receive the total amount of EUR 750,000 as salaries
during the season 2019/2020.
39. The Chamber then analysed the documents submitted by the Respondent and pointed out
that those docuements do not proof actual payments to the player.
40. Since the player denied having received such amounts, the Chamber concluded that the
Claimant remained entitled to EUR 67,672 (EUR 750,000-EUR 682,328) taking into account
the amount he acknowledged.
41. As to the reduction in connection with COVID-19, the Respondent failed to submit any
documents that such reduction was based on a national law.
42. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the
FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any
specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
43. In this context, the DRC considered that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the monies claimed by the Claimant, in other
words, the reasons brought forward by the Respondent in its defence do not exempt the
Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
ii. Consequences
44. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
remained outstanding, i.e. EUR 67,672 (EUR 750,000-EUR 682,328).
45. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the date of claim until the date of effective
payment.
46. Subsequently, the DRC analysed the request of the Claimant corresponding to additional
compensation. In this regard, the Chamber deemed it appropriate to point out that the
request for said compensation presented by the Claimant had no legal or regulatory basis and
pointed out that no corroborating evidence had been submitted that demonstrated or
quantified the damage suffered.
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iii. Compliance with monetary decisions
47. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis 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.
48. 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.
49. 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. 24bis par. 2, 4, and 7 of the Regulations.
50. 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.
51. 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. of
the Regulations.
d. Costs
52. 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.
53. 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.
54. 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, Lamine Gassama, is partially accepted.
2.
The Respondent, Goztepe AS, has to pay to the Claimant, the following amount:
- EUR 67,672 as outstanding remuneration plus 5% interest p.a. as from 22 July 2021
until the date of effective payment.
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 art. 24bis of the Regulations on the Status and Transfer of Players (February 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 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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