Labour Disputes
Texto da decisão
REF FPSD-2492
Decision of the
Dispute Resolution Chamber
passed on 8 October 2021
regarding an employment-related dispute concerning the player Mitchell
Glenn Donald
BY:
Clifford J. Hendel (USA/France), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Daan de Jong (The Netherlands), member
CLAIMANT:
Player Mitchell Glenn Donald, the Netherlands
Represented by Robalinho Alves Advogados
RESPONDENT:
Club Buyuksehir Belediye Erzurumspor Kulubu, Turkey
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REF FPSD-2492
I.
Facts of the case
1.
On 24 August 2020, the Dutch player, Mitchell Glenn Donald (hereinafter: “the Claimant”
or “the player”), and the Turkish club, Buyuksehir Belediye Erzurumspor Kulubu (hereinafter:
“the Respondent” or “the club”) signed an employment contract (hereinafter: “the
contract”) valid as from 24 August 2020 until 31 May 2021.
2.
In accordance with the article 3 of the contract, the player was entitled to receive from the
club the following remuneration:
a) EUR 60,000 as net signing bonus payable on the date of signature of the contract and
b) EUR 108,000 as net salaries payable in 9 equal and consecutive instalments of EUR
12,000 net each being the first one due in September 2020 and the last one in May
2021. Note: The monthly salaries were due on the 30th day of each month except for
February, which was due on the 28th.
3.
On 28 August 2020, the parties concluded an amendment to the contract increasing the
player´s salary and maintaining the signing bonus (cf. article 3 of the contract).
4.
Clause 3.1 of the amendment stated that the player´s salary agreed in the contract
amounted to EUR 108,000 increase to the total net amount of EUR 540,000 payable in 10
monthly and consecutive instalments of EUR 60,000 net each from September 2020 until
May 2021. According to cited clause, the monthly salaries were due on the 30th day of each
month except for February, which was due on the 28th
5.
On 9 February 2021, the player sent a default notice to the club requesting his return to
train with the “A” team and the payment of the total amount of EUR 240,000 as
outstanding remuneration (i.e. four monthly salaries) granting 48 hours to the club to
remedy its default.
6.
On 11 February 2021, the club replied to the player claiming, inter alia, not being able to
fulfil its financial obligations due to the COVID-19 pandemic. In addition, the club stated
that it expected to complete the payment of the outstanding amounts in the next 15 days,
i.e. no later than 26 February 2021.
7.
On 2 March 2021, the player sent a second default notice to the club reiterating his previous
requests granting the latter three additional days to remedy its default.
II.
Proceedings before FIFA
8.
On 11 May 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Position of the Claimant
9.
According to the Claimant, he always fulfilled his obligations; however, the club as from
January 2021 started not paying his remuneration timely.
10.
Moreover, the player alleged that in January 2021 the club deregistered him from its squad
before the Turkish Football Federation (TFF) i.e., no longer eligible player of the club for the
remainder of the 2020-2021 Turkish football season.
11.
Furthermore, the player alleged that the club prohibited him to train with his colleagues of
its main squad (“A team”), despite the provision in the contract, which states that he was
hired by the club to play for its first “A” team.
12.
The player added, “THE PLAYER had to train separately, not even at THE CLUB’s facilities –
that is, an absolutely illegal action determined by THE RESPONDENT against him (sporting
issues). Put in other words, it represented an unquestionable breach of THE CONTRACT and
an attempt of THE DEFENDANT to force THE PLAINTIFF to resign, in order to THE CONTRACT
and THE AMENDMENT become ineffective and early terminated, without any further
consequences, particularly the financial ones, for THE CLUB”.
13.
Finally the player added, “under no circumstances THE CLUB shall be benefited from any
possible allegations related to the Covid19 pandemic, i.e., any kind of statements that such
disease led the former to financial losses, which made THE PLAYER remain unpaid, once his
engagement was completed after the spread of the novel coronavirus, when THE
RESPONDENT was already aware of its revenue loss and how to deal with it”.
14.
The requests for relief of the Claimant, was the total net amount of EUR 420,000 as
outstanding remuneration (seven monthly salaries of EUR 60,000 each) plus 5% annual
interest from the respective due dates until the date of effective payment.
15.
Furthermore, the player claimed that the club should bear all costs and expenses including
a 10% of the amount claimed as legal fees.
b. Position of the Respondent
16.
According to the Respondent, it was not able to pay the outstanding remuneration due to
financial distress because of the devaluation of the Turkish Lira and decrease of revenues
due to the COVID pandemic. The club added that these facts were considered force majeure
by the FIFA deciding bodies in repeated occasions.
17.
Moreover, the club claimed having informed the player verbally and that he accepted such
situation.
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18.
Furthermore, the club stated that due to its relegation to second division at the end of the
football season 2020/2021, the club is facing a very complicated situation to comply with
its liabilities towards the player and it is justified to have some delays in payment of salaries.
19.
The club further argued that the player did not “duly submitted default letter to the club”
and as a result, the claim is not valid and the player is not entitled to request interest.
20.
In its request of relief, the Respondent requested to reject the Claimant´s claim since the
obligations of the club became impossible due to force majeure.
21.
Alternatively, the club requested to reject the Claimant´s claim for the salary of May since at
the moment, of lodging the claim was not due.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the Chamber”
or “the 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 11 May 2021 and
submitted for decision on 8 October 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.
23.
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 Dutch player and a
Turkish club.
24.
Consequently, 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 (August 2021 edition), and
considering that the present claim was lodged on 11 May 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
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25.
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
26.
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
27.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that on 24 August 2020 the parties concluded the contract valid until 31 May
2021 and that four days later the parties concluded an amendment to the contract by means
of which the player´s salary was increased.
28.
The Chamber acknowledged that the Claimant lodged the present claim before FIFA
requesting mainly, outstanding remuneration.
29.
In this context, the Chamber took note that the Respondent did not contest the existence
of the outstanding salaries; however, it claimed that the payment of its financial obligations
towards the player became impossible due to the force majeure triggered by the COVID-19
pandemic.
30.
The Chamber pointed out that the Respondent did not present any evidence in connection
to the alleged force majeure.
31.
With this in mind, the Chamber recalled 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.
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32.
The Chamber underlined that analysing the concept of a situation of force majeure, 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.
33.
In other words, the DRC clarified that 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.
34.
Having recalled the contents of the FIFA COVID-19 guidelines, the Chamber reiterated that
the Respondent did not file together with its reply any documentation pertaining to the
COVID-19 pandemic and/or to the concept of force majeure in its country.
35.
In addition, the DRC pointed out that at the moment of the conclusion of the contract and
the amendment, the COVID 19 pandemic was ongoing for several months, hence the
Respondent was well aware about the situation.
36.
Consequently, the Chamber concluded that the club’s argumentation related to the nonpayment of the amounts due to the player shall be set aside and the player shall be awarded
the outstanding remuneration sought.
ii. Consequences
37.
Having stated the above, the members of the Chamber turned their attention to the
remuneration requested by the Claimant.
38.
The Chamber observed that the outstanding remuneration requested by the player, were
equivalent to seven monthly salaries (cf. clause 3.1. of the amendment), amounting to EUR
420,000.
39.
The Chamber determined that in accordance with the general legal principle of pacta sunt
servanda, the Respondent has to pay the amount of EUR 420,000 as outstanding amount
to the Claimant.
40.
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 respective due dates (i.e. 30th day of
each month except for the month of February which was due on the 28th day) until the date
of effective payment.
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iii. Compliance with monetary decisions
41.
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.
42.
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.
43.
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.
44.
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.
45.
The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 8
of the Regulations.
d. Costs
46.
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.
47.
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 legal fees shall be awarded in these
proceedings.
48.
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, Mitchell Glenn Donald, is partially accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, the total
amount of EUR 420,000 as outstanding remuneration plus 5% interest p.a. as follows:
- on the amount of EUR 60,000 from 1 October 2020 until the date of effective payment;
- on the amount of EUR 60,000 from 31 October 2020 until the date of effective payment;
- on the amount of EUR 60,000 from 1 December 2020 until the date of effective payment;
- on the amount of EUR 60,000 from 31 December 2020 until the date of effective
payment;
- on the amount of EUR 60,000 from 31 January 2021 until the date of effective payment;
- on the amount of EUR 60,000 from 1 March 2021 until the date of effective payment;
- on the amount of EUR 60,000 from 31 March 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 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 the ban
shall be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
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).
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