Dispute Resolution Chamber
Texto da decisão
REF FPSD-637
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Armand Erwan
Dsihounou Gnanduillet
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT / COUNTER-RESPONDENT:
Armand Erwan Dsihounou Gnanduillet, France
Represented by Mr Yakub Kizilkaya
CLAIMANT / COUNTER-RESPONDENT:
Altay SK, Turkey
Represented by Mr Talat Emre Kocak
INTERVENING PARTY:
Heart of Midlothian, Scotland
Page 2
REF FPSD-637
I.
FACTS OF THE CASE
1.
On 13 August 2020, the player and the club concluded an employment contract, valid for
the period between 13 August 2020 and 31 May 2022.
2.
Based on the contract, the player was entitled – for the season 2020/2021 - to a yearly
guaranteed salary of EUR 150,000, payable in three instalments of EUR 50,000 as follows:
-
EUR 50,000 ‘upon signing of the contract’;
EUR 50,000 on 30 November 2020;
EUR 50,000 on 28 February 2021.
3.
Furthermore, the contract stipulates that the player – in the season 2020/2021 – was
entitled to a monthly salary of EUR 10,000 for ten months, in the first week of each month,
starting from August 2020, including May 2021.
4.
Furthermore, for the season 2021/2022, the player was entitled to a yearly salary of EUR
“180,000”, payable in four instalments of EUR 30,000 as follows:
-
EUR 30,000 on 10 August 2021;
EUR 30,000 on 15 September 2021;
EUR 30,000 on 30 December 2021;
EUR 30,000 on 28 February 2022.
5.
Also, the contract stipulates that the player – in the season 2021/2022 – was entitled to a
monthly salary of EUR 10,000 for ten months, in the first week of each month, starting
from August 2021, including May 2022.
6.
On 9 December 2020, the player put the club in default for the amount of EUR 44,769
(equal to 4 monthly salaries), as well as the amount of TRY 6,000 (house rents), providing
the club a 15 days’ deadline to remedy its default however to no avail.
7.
On 29 December 2020, the player unilaterally terminated his contract with the club, due to
the outstanding remuneration.
8.
On 25 January 2021, the player signed a new contract with the Scottish club Heart of
Midlothian (hereinafter: Hearts), valid between 25 January 2021 and 31 May 2022, based
on which he was entitled to a monthly salary of GBP 13,000 for the period between 25
January and 30 June 2021, to a monthly salary of GBP 13,000 for the period between 1
July 2021 and 31 May 2022 would Hearts play in the Championship and a monthly salary
of GBP 14,300 for the period between 1 July 2021 and 31 May 2022 would Hearts play in
the Premiership.
9.
For the overlapping period between 21 January 2021 and 31 May 2022, this would amount
to GBP 56,193.55 (season 2020/2021) and GBP 157,300 (season 2021/2022), i.e. the total
Page 3
REF FPSD-637
amount of GBP 216,493.55 (approximately EUR 250,987), assuming that Hearts would be
promoted to the Premiership for the season 2021/2022.
II.
PROCEEDINGS BEFORE FIFA
10.
On 12 January 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant / Counter-Respondent
11.
According to the player, he had terminated the contract with the club with just cause due
to the outstanding remuneration.
12.
The requests for relief of the player, were the following:
Outstanding remuneration in the total amount of EUR 54,769 net and TRY 8,250, as
follows:
- EUR 10,000 as August salary, due on 7 August 2020;
- EUR 10,000 as September salary, due on 7 September 2020;
- EUR 10,000 as October salary, due on 7 October 2020;
- EUR 10,000 as November salary, due on 7 November 2020;
- EUR 10,000 as December salary, due on 7 December 2020;
- EUR 4,769 as unpaid part of the cheque of EUR 50,000, due on 30 November 2020;
- TRY 8,250 as unpaid rental allowance.
Compensation for breach of contract in the amount of EUR 510,000 net:
- EUR 100,000 net as residual value of the contract in the 2020/2021 season;
- EUR 380,000 net as residual value of the contract in the 2020/2021 season if the club
competes in the Super League, or;
- EUR 280,000 net as residual value of the contract in the 2020/2021 season if the club
competes in the first Division.
- EUR 30,000 as additional compensation.
Furthermore, the player requested 5% interest p.a. as from the due dates on the above
amounts.
b.
Position of the Respondent / Counter-Claimant and counterclaim
13.
In its reply, the club asked for the rejection the player’s claims, and lodged a counterclaim
against the player.
14.
The club explains that at the date of termination of the contract by the player, it had no
overdue debt towards the player, as the player was until that moment only entitled to an
amount of EUR 194,796, however the club had already paid an amount of EUR 201,814.19.
Page 4
REF FPSD-637
15.
In addition, the club explains that it made the following payments to the player, in total
adding up to TRY 1,728,700 (corresponding to EUR 201,814.19 according to the player):
- TRY 429,000 as cheque on 30 November 2020;
- TRY 429,000 as cheque on 28 February 2021;
- TRY 435,350 on 12 August 2020;
- TRY 435,350 on 12 August 2020.
16.
Further, the club explains that the amount of TRY 435,350, was paid to another bank
account, upon request of the player. This also follows from the special provisions in the
contract, which stipulates that ‘the EUR 50,000 advance payment paid upon signing of the
contract was paid to the IBAN number TR45 0001 2578 7070 6650 01 upon request of the
player’.
17.
In conclusion, the club lodges a counterclaim and requests that the player be ordered to
pay compensation for breach of contract in the amount of EUR 330,000 for the termination
without just cause by the player, as well as to impose sporting sanctions, both on the player
as on his new club.
c.
Position of the Claimant / Counter- Respondent to the Respondent /
Counter-Claimant’s counterclaim
18.
In reply to the counterclaim of the club, the player explicitly denies that on 12 August 2020,
he received twice an amount of TRY 435,350. The player explains that – since he had no
bank account in Turkey – the amount was paid to the bank account of a colleague of the
player, Mr Tagro Yao Yes. In this respect, the player was requested by the club to sign two,
unspecified, untranslated documents, which he thought that belonged to the one payment
of TRY 435,350. As a result, the player only confirms one payment of TRY 435,350
(approximately EUR 50,000).
19.
Furthermore, the player states that he had a just cause to terminate the contract with the
club, as 4 monthly salaries remained outstanding.
20.
As a result, the player insists on his initial claim.
d.
Position of the Claimant / Counter-Respondent’s new club
21.
In reply to the entire case file, the player’s new club, Hearts, rejected the counterclaim
lodged by the club, as it acted in good faith while negotiating with the player as from 23
January 2021.
22.
In this respect, the club explains that the player’s agent as well as the player’s lawyer
confirmed that the player was a free agent. Moreover, Hearts explains that on 25 January
2021, the player signed a contract with its club, after it received the end of contract letter
(which stated that the player’s contract ended on 29 December 2020) and the declaration
of no third party ownership.
Page 5
REF FPSD-637
23.
Further, Hearts confirms that it was not aware of any dispute between the player and the
club, that it only contacted the player 3.5 weeks after the termination of his contract and
there were also no issues in the ITC process.
24.
Finally, Hearts concludes that the counterclaim of the club is without substance and asks
for the rejection of it.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
25.
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 12 January 2021 and submitted
for decision on . Taking into account the wording of art. 21 of the 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.
26.
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 a French player
and a Turkish club, with the involvement of a Scottish club.
27.
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 12 January 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
28.
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.
29.
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.
Page 6
REF FPSD-637
c.
30.
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
31.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether or not the player had
unilaterally terminated the contract with just cause on 29 December 2020.
32.
In this context, the Chamber acknowledged that it its task was to analyse whether the
circumstances in the matter at hand did give the player a just cause to terminate the
contract on 29 December 2020.
33.
In this respect, the Chamber wished to emphasize that, according to the club, it duly fulfilled
its contractual obligations towards the player. In order to establish this, the club also
submitted several documentation and payment receipts.
34.
The Chamber turned its attention to the documentation provided by the club, and noted
that said documentation is not translated into one of official FIFA languages (in line with
art. 9 par. 1 of the Procedural Rules) and is even sometimes partially illegible. Under such
circumstances, the Chamber was of the opinion that the club did not duly meet its burden
of proof to establish that it paid certain amounts to the player. Therefore, the Chamber
deemed that said documentation shall not be taken into account and cannot proof the
club’s allegations.
35.
Moreover, the members of the Chamber acknowledged that the player explicitly denied
that he received twice an amount of TRY 435,350 on 12 August 2020. The player only
confirmed the receipt of one payment of TRY 435,350 on said date, and further explained
that said payment was not effecting his claim for outstanding remuneration, as said amount
was already taken into account when making his calculation.
36.
As a consequence of the aforementioned considerations and taking into account the
documentation presented by the parties to the dispute, the Chamber established that four
monthly salaries, as well as an unpaid part of a lump-sum which fell due on 30 November
2020, and several housing allowances, i.e. the total amounts of EUR 54,769 net and TRY
8,250, had fallen due and remained outstanding at the time of the termination of the
contract by the player. Consequently, the Chamber concurred that the club had seriously
neglected its financial contractual obligations towards the player.
37.
On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the player had just cause to
unilaterally terminate the contract on 29 December 2020 and that the club’s counterclaim
Page 7
REF FPSD-637
is therefore to be rejected. What is more, the club is to be held liable for the early
termination of the contract with just cause by the player.
ii. Consequences
38.
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 club
during the protected period.
39.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the club is liable to pay to the player the amounts
which were outstanding under the contract at the moment of the termination, i.e. EUR
54,769 net and TRY 8,250. Said amounts correspond to the unpaid monthly remuneration
the period between August and December 2020, the unpaid part of the cheque of EUR
50,000 which fell due on 30 November 2020, as well as TRY 8,250 as unpaid contractually
rental allowance.
40.
In addition, taking into consideration the player’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to
award the player interest at the rate of 5% p.a. on the outstanding amounts of EUR 54,769
net and TRY 8,250 as of the respective due dates.
41.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the player is entitled to receive from the club compensation for breach of
contract in addition to any outstanding salaries on the basis of the relevant employment
contract.
42.
In this context, the Chamber outlined that, in accordance with said provision, 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.
43.
In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a 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.
44.
Subsequently, and in order to evaluate the compensation to be paid by the club, the
members of the Chamber took into account the remuneration due to the player in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the player after the early termination
occurred.
Page 8
REF FPSD-637
45.
In this respect, the Chamber pointed out that at the time of the termination of the
employment contract on 29 December 2020, the contract and the supplementary
agreement would run until 31 May 2022, i.e. 17 months, in which a total amount of EUR
380,000 was still to be paid. Consequently, taking into account the financial terms of the
contract, the Chamber concluded that the remaining value of the contract as from its early
termination by the player until the regular expiry of the contract amounts to EUR 380,000
and that such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
46.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute the player had found new
employment with two clubs. Firstly, the player signed an employment contract with the
Scottish club, Heart of Midlothian, valid as from valid between 25 January 2021 and 31
May 2022, based on which he was entitled to a monthly salary of GBP 13,000 for the period
between 25 January and 30 June 2021, to a monthly salary of GBP 13,000 for the period
between 1 July 2021 and 31 May 2022 would Hearts play in the Championship and a
monthly salary of GBP 14,300 for the period between 1 July 2021 and 31 May 2022 would
Hearts play in the Premiership.
47.
For the overlapping period between 21 January 2021 and 31 May 2022, this would amount
to GBP 56,193.55 (season 2020/2021) and GBP 157,300 (season 2021/2022), i.e. the total
amount of GBP 216,493.55 (approximately EUR 250,987), assuming that Hearts would be
promoted to the Premiership for the season 2021/2022.
48.
Consequently, in accordance with the constant practice of the Dispute Resolution Chamber
and the general obligation of the player to mitigate his damages, such remuneration under
the new employment contract shall be taken into account in the calculation of the amount
of compensation for breach of contract.
49.
In view of all of the above, the Chamber decided that the mitigated compensation the
player is entitled to amounts to EUR 129,013.
50.
Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an additional compensation of three monthly
salaries, subject to the early termination of the contract being due to overdue payables. In
case of egregious circumstances, the additional compensation may be increased up to a
maximum of six monthly salaries, whereby the overall compensation may never exceed the
rest value of the prematurely terminated contract.
51.
With the above in mind, the Chamber decided to award the player additional compensation
corresponding to three monthly salaries, i.e. EUR 30,000, in accordance with the abovementioned provision.
52.
In conclusion, the Chamber decided that the club must pay the amount of EUR 159,013 to
the player as compensation for breach of contract without just case, which is considered by
the Chamber to be a reasonable and justified amount as compensation.
Page 9
REF FPSD-637
53.
In addition, taking into consideration the player’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to
award the player interest at the rate of 5% p.a. on the amount of EUR 159,013 as of 12
January 2021, the date of claim.
54.
The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the player is rejected, as well as that the club’s
counterclaim is rejected.
iii. Compliance with monetary decisions
55.
Finally, taking into account the consideration under numbers 40. and 52. above, the
Chamber referred to par. 1 lit. 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.
56.
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.
57.
Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 club in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
58.
The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Registration Form, which is attached to the present
decision.
59.
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.
Page 10
REF FPSD-637
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant/Counter-Respondent, Armand Erwan Dsihounou Gnanduillet, is
partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Altay SK, is rejected.
3.
The Respondent, Altay SK, has to pay to the Claimant/Counter-Respondent, the following
amount:
- EUR 54,769 net as outstanding remuneration, plus 5% interest p.a. until the effective date of
payment as follows:
on the amount of EUR 10,000 as from 8 August 2020;
on the amount of EUR 10,000 as from 8 September 2020;
on the amount of EUR 10,000 as from 8 October 2020
on the amount of EUR 10,000 as from 8 November 2020
on the amount of EUR 10,000 as from 8 December 2020;
on the amount of EUR 4,769 as from 1 December 2020.
- TRY 8,250 as outstanding remuneration, plus 5% interest p.a. as from 29 December 2020
until the effective date of payment.
- EUR 159,013 as compensation for breach of contract, plus 5% interest p.a. as from 12 January
2021 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
6.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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
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 paid by the end of
the 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 article 24bis paragraphs 7 and 8 and article 24ter of the
Regulations on the Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 11
REF FPSD-637
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
Page 12