Labour Disputes
Texto da decisão
REF. FPSD-14881
Decision of the
Dispute Resolution Chamber
passed on 23 September 2024
regarding an employment-related dispute concerning the player Faouzi
Ghoulam
COMPOSITION:
Martín AULETTA (Argentina), Deputy Chairperson
Stefano SARTORI (Italy), Member
Jorge GUTIÉRREZ (Costa Rica), Member
CLAIMANT:
Faouzi Ghoulam, France
Represented by Ersin Hamarat
RESPONDENT:
Atakas Hatayspor, Türkiye
Represented by Ismail Coskun
pg. 2
REF. FPSD-14881
I. Facts of the case
1.
The French player Faouzi Ghoulam (hereinafter: the Player or the Claimant) and the Turkish
club Atakas Hatayspor (hereinafter: the Club or the Respondent) entered into an
employment contract valid from 30 August 2023 to 30 June 2024 (hereinafter: the Contract).
2.
Pursuant to clause 3 of the Contract, the Club undertook to pay to the Player, inter alia, the
following amounts:
-
EUR 660,000 net as total remuneration for the 2023/2024 season, payable as follows:
EUR 120,000 net on the date of signing the Contract; and
EUR 540,000 net, payable in the following terms:
Due date
30.09.2023
31.10.2023
30.11.2023
31.12.2023
31.01.2024
29.02.2024
31.03.2024
30.04.2024
31.05.2024
30.06.2024
-
Amount (EUR)
70,000
70,000
50,000
50,000
50,000
50,000
50,000
50,000
50,000
50,000
EUR 670,000 net as total remuneration for the 2024/2025 season, payable as follows:
EUR 130,000 net on 31 July 2024; and
EUR 540,000 net, payable in the following terms:
Due date
31.08.2024
30.09.2024
31.10.2024
30.11.2024
31.12.2024
31.01.2025
29.02.2024
31.03.2024
Amount (EUR)
70,000
70,000
50,000
50,000
50,000
50,000
50,000
50,000
pg. 3
REF. FPSD-14881
30.04.2024
31.05.2024
-
50,000
50,000
Fringe benefits for the duration of the contractual period, as follows:
“A. A house will be provided by the Club. All utility expenses (electricity, telephone, water,
etc.) will be paid by the Player.
B. A car during the period of his employment contract. Traffic fines, gasoline and any
other expenses will be paid by the Player.
C. 5 business class flight tickets to the player’s country”.
-
“Amounts determined under [the Contract] are only net amounts and the Club is liable to
pay withholding taxes regarding these amounts”.
3.
On 10 May 2024, the Player put the Club in default and demanded payment of EUR 150,000
net representing three outstanding salaries for the period from February 2024 to April
2024. The Player gave the Club 15 days to remedy the situation.
4.
The Club did not reply to the default notice.
5.
On 28 May 2024, the Player notified the Club of the termination of the Contract due to
overdue payables (cf. art. 14bis of the Regulations on the Status and Transfer of Players,
hereinafter: the Regulations).
6.
The Player informed, and the FIFA general secretariat confirmed via the Transfer Matching
System (TMS) that he remained unemployed following the termination of the Contract.
II. Proceedings before FIFA
7.
On 7 June 2024, the Player submitted the present claim to FIFA. A brief summary of the
parties’ position is detailed below.
a. Player’s claim
8.
In his claim, the Player argued that the Club had failed to comply with its financial duties,
giving cause to the termination of the Contract in accordance with art. 14bis of the
Regulations.
9.
As a result, the Player requested to be awarded the following amounts:
-
EUR 200,000 net as outstanding salaries, plus 5% p.a. interest until full payment,
pg. 4
REF. FPSD-14881
to be calculated as follows:
o
EUR 50,000 net as of 1 March 2024;
o
EUR 50,000 net as of 1 April 2024;
o
EUR 50,000 net as of 1 May 2024;
o
EUR 50,000 net as of 28 May 2024.
-
TRY 3,000,000 net as reimbursement of rental payments, plus 5% interest p.a. from
28 May 2024, corresponding to six months’ rent paid from 24 November 2023.
-
EUR 720,000 net as compensation for breach of contract, corresponding to the
remaining salaries for June 2024 through 31 May 2025, plus EUR 130,000 Advance
Payment, plus 5% interest p.a. from 28 May 2024.
b. Club’s reply
10. On 17 July 2024, the Club submitted its response to the Player’s claim and refuted his
position as follows:
-
The Player received all of his dues and his claim for the salary for May 2024 was
premature;
-
The Player did not have just cause to terminate because no receivables were due;
-
In the alternative, even if compensation is awarded it should be mitigated based on the
value of any new contract signed with another club;
-
Under the Contract and alike for all other players in the squad, the Player would be
entitled to a house provided by the Club, rather than an unlimited reimbursement. The
Player has chosen to live elsewhere of his own free will and for no reason and should
therefore be liable for any payments incurred.
11. In light of the above, the Club filed the following requests for relief, quoted verbatim:
“- Dismiss the case on the grounds that the player’s claims cannot be accepted in
accordance with the contract signed between the parties,
- Provided that it does not mean acceptance, if the case will not be dismissed an equitable
reduction in the calculation of the mitigated compensation,
- Dismiss the claimant’s claim for rent,
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REF. FPSD-14881
- Provided that it does not mean acceptance, if your Chamber is of the opposite opinion,
to reduce this amount,
- Provided that it does not mean acceptance, if you decide to the contrary of the above
situations, we request a decision to make an equitable reduction”.
c. Additional Comments of the Claimant
12. On 30 July 2024, at the invitation of the FIFA general secretariat, the Claimant provided
comments regarding the claimed payments.
13. The Claimant provided receipts of payments made by the Club during the contractual
period, amounting to a total of EUR 410,000 of the EUR 560,000 due at the time of the
default notice and reiterated its claim that the remaining balance remained outstanding.
pg. 6
REF. FPSD-14881
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Dispute Resolution Chamber (hereinafter: the 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 31 May 2024 and submitted for decision on
23 September 2024. Taking into account the wording of art. 34 of the March 2023 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.
15. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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.
16. 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 (June 2024 edition) and
considering that the present claim was lodged on 7 June 2024, the cited edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
17. 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
18. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
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REF. FPSD-14881
i. Main legal discussion and considerations
19. The Chamber then proceeded to the substance of the matter and noted that it concerned
a claim for breach of contract brought by the Player against the Club.
20. In particular, the DRC acknowledged that the Player terminated the Contract on 28 May
2024, claiming that he had just cause due to overdue payments amounting to more than
two of his salaries (i.e., from February 2024 to March 2024). Furthermore, the Player
provided evidence that he had given the Club a reasonable period of time to remedy the
breach (i.e., 15 days), but to no avail.
21. In this context, the DRC determined that the Club bore the burden of proving that it had in fact
complied with the financial terms of the Contract.
22. Notwithstanding the argument that it had paid the Player in full, the Chamber observed that
the Club had not provided any evidence to support such assertion.
23. Consequently, the Chamber determined that the Club had failed to meet its burden of
proof. In other words, it concluded that such a persistent and substantial breach of its
contractual obligations justified the unilateral termination of the Contract in this case and
that, in accordance with the consistent jurisprudence of the DRC, the Club should be held
liable for breach of contract.
24. On the basis of the factual and contractual situation at hand, the DRC decided that the
Player had just cause to terminate the Contract in accordance with art. 14bis of the
Regulations and that the Club should be liable for the consequences thereof.
ii. Consequences
25. The Chamber then turned attention to the question of the consequences of the unjustified
breach of contract committed by the Club.
26. In doing so, the Chamber first determined that, in accordance with the general legal
principle of pacta sunt servanda, the Club is liable to pay to the Player the salaries
outstanding at the time of the termination, plus interest at the rate of 5% p.a. as from the
respective due dates until the date of effective payment, as follows:
- EUR 50,000 net as the balance of the salary for February 2024, plus 5% interest from
1 March 2024;
- EUR 50,000 net as the balance of the salary for March 2024, plus 5% interest from 1
April 2024;
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REF. FPSD-14881
- EUR 50,000 net as the balance of the salary for April 2024, plus 5% interest from 1
May 2024; and
- EUR 50,000 net as the balance of the salary for May 2024, plus 5% interest from 28
May 2024.
27. In addition, the Chamber also noted that the Player claimed to be entitled to
reimbursement of the amounts paid for rent. Nevertheless, the Chamber was not
persuaded by the Player’s position in this respect. In particular, the DRC found it decisive
that (i) the Contract only referred to the Player’s entitlement to a house, as opposed to a
rent allowance; (ii) the Player did not explain why he had entered into a different rental
agreement on his own; and (iii) the Player did not submit any evidence to confirm that he
had reached an agreement with the Club concerning the reimbursement of his expenses.
28. Therefore, the DRC decided that this part of the Player’s claim should be dismissed.
29. Having established 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.
30. 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.
31. As a consequence, 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.
32. Bearing in mind the foregoing as well as the claim of the Player, the Chamber proceeded
with the calculation of the monies payable under the terms of the Contract from the date
of its unilateral termination until its end date. Consequently, the Chamber concluded that
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REF. FPSD-14881
the amount of EUR 720,000 net (i.e., the remaining salary of EUR 50,000 due on 30 June
2024 and the Advance Payment and salaries due for the 2024/2025 season in the amount
of EUR 670,000) serves as the basis for determining the amount of compensation due for
breach of contract.
33. 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.
34. In this case, the Chamber found that the Player remained unemployed after the
termination of the Contract and, therefore, no mitigation applied.
35. 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 and should there be mitigation. Since the latter was not the case,
the DRC decided that the Player is not entitled to receive additional compensation.
36. Consequently, based on all the above considerations and the specificities of the present
case, the Chamber decided that the Club should pay the Player the amount of EUR 720,000
net, which was considered as a reasonable and justified amount of compensation for
breach of contract in the present case.
37. Taking into account the Player’s request as well as the constant practice of the Chamber in
this regard, the latter decided to award him interest on said compensation at the rate of
5% p.a. as from the date of the termination of the Contract (i.e., 28 May 2024) until the date
of effective payment.
iii. Compliance with monetary decisions
38. The Chamber then 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.
39. 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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REF. FPSD-14881
40. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par.
3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of art. 12bis, 17 or 18quater of the Regulations (i.e., namely in the case FPSD15136).
41. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall not
apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and the spirit of the Regulations, in
particular the enforcement mechanism established under art. 24 of the Regulations.
42. In view of the above, the DRC decided that if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Claimant, to the FIFA Disciplinary Committee for its consideration and
formal decision.
43. 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.
d. Costs
44. 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.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 11
REF. FPSD-14881
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Faouzi Ghoulam, is partially accepted.
2.
The Respondent, Atakas Hatayspor, must pay to the Claimant the following amount(s):
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March
2024 until the date of effective payment;
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2024
until the date of effective payment;
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2024
until the date of effective payment;
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 28 May 2024
until the date of effective payment;
- EUR 720,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 28 May 2024 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.
If full payment is not made within 30 days of notification of this decision, the present matter
shall be submitted, upon request of the Claimant, to the FIFA Disciplinary Committee.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14881
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13