Labour Disputes
Texto da decisão
REF FPSD-5328
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player Anane
Gyasi
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Michele Colucci (Italy), member
CLAIMANT:
Anane Gyasi, Netherlands
Represented by Anıl Dinçer
RESPONDENT:
Beitar Jerusalem FC, Israel
Represented by Natali Rozenberg – OEM Law Office
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I. Facts of the case
1.
On 11 July 2021, the Dutch player, Anane Gyasi (hereinafter: Claimant or player) and the
Israeli club, Beitar Jerusalem FC (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from the date of signature until 31
May 2022.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
- EUR 10,000 as monthly salary, payable in 10 instalments (August 2021 until May
2022) on the 9th day of the following month;
- EUR 2,500 as monthly “rent expenses”.
3.
On 11 July 2021, the player and the club concluded an “agreement for the purchase of
economic rights” (hereinafter: agreement) valid as from the date of signature until 31 May
2022.
4.
According to the agreement, the Respondent undertook to pay the Claimant the following
monies:
- EUR 100,000 as “net consideration for the transfer of 50% of his economic rights”,
payable in 10 instalments (August 2021 until May 2022) on the 9th day of the
following month.
5.
On 26 January 2022, the Respondent terminated the contract with the player due to
“financial difficulties”.
6.
On 18 February 2022, the Claimant requested payment of EUR 62,500 as outstanding
remuneration and compensation for breach of contract resulting from the contract.
7.
On 19 February 2022, the Claimant requested payment of EUR 50,000 as outstanding
remuneration and compensation for breach of contract resulting from the agreement.
8.
According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed during the relevant period.
II. Proceedings before FIFA
9.
On 3 March 2022, 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
10. In his claim, the Claimant requested payment of the following monies:
-
-
-
EUR 62,500 as outstanding remuneration and compensation resulting from the
contract (Salaries and rent fee as of January 2022 until May 2022; 5x EUR 10,000
and 5x EUR 2,500) plus 5% p.a. as of the due dates;
EUR 50,000 as outstanding fee and compensation resulting from the agreement
(fees from January 2022 until May 2022, 5x EUR 10,000), plus 5% p.a. as of the
due dates;
EUR 30,000 as additional compensation resulting from the contract;
EUR 30,000 as additional compensation resulting from the agreement.
11. In his claim, the player held that the club did not have just cause to terminate the
contractual relationship on 26 January 2022.
12. On account of the above, he deems to be entitled to his outstanding dues as well as
compensation for breach of contract.
b. Position of the Respondent
13. In its reply, the Respondent rejected the claim and argued that it terminated the
contractual relationship with just cause due to its financial crisis.
14. In this context, the club argued that “due to the significant economic crisis it found itself in
during the 2021/22 playing season, and the necessity to save itself from a complete economic
collapse which will lead to its liquidation, it was left with no choice but to take extreme
measures, such as the early termination of the employment of some of its players.”
15. Alternatively, in case the Chamber deems that the termination was without just cause,
the club held that the maximum compensation payable shall be EUR 50,000 resulting
from the contract and EUR 30,000 from the agreement.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 03 March 2022 and submitted
for decision on 29 September 2022. Taking into account the wording of art. 34 of the June
2022 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.
17. 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 (July 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 a Dutch player and
an Israeli club.
18. 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 (July 2022 edition), and
considering that the present claim was lodged on 03 March 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
19. 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).
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c. Merits of the dispute
20. 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
21. 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 Respondent.
22. In this context, the Chamber acknowledged that its task was to determine as to whether
the contract was terminated by the Respondent with or without just cause and to decide
on the consequences thereof.
23. First of all, the Chamber noted that the contractual relationship, consisting of the contract
and the agreement, was terminated by the club, without prior warning, on 26 January
2022, due to financial difficulties.
24. In this scenario, the DRC recalled its long-standing jurisprudence, according to which only
a breach or misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between
the parties, a contract may be terminated prematurely. Hence, if there are more lenient
measures which can be taken in order for an employer to assure the employee’s
fulfilment of his contractual duties, such measures must be taken before terminating an
employment contract. A premature termination of an employment contract can only be
an ultima ratio.
25. In accordance with the Football Tribunal’s longstanding jurisprudence, the Chamber
pointed out that financial difficulties are no valid reason to terminate an employment
relationship and therefore decided that the club had no just cause to terminate the
contract on 26 January 2022.
ii. Consequences
26. 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.
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27. The Chamber observed that no outstanding remuneration was due at the time of
termination. Nevertheless, the DRC wished to emphasize that the player is entitled to
compensation for breach of contract.
28. 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.
29. 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.
30. 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.
31. 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 112,500 (i.e. the EUR 50,000 as salaries due arising
from the contract, 12,500 as rent expenses arising from the contract and EUR 50,000 as
instalments due from the agreement due between January 2022 and May 2022) serves as
the basis for the determination of the amount of compensation for breach of contract.
32. 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
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calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
33. In this respect, the DRC noted that the player had not found new employment and was
therefore not able to mitigate his damages.
34. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 112,500 to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
35. 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 the date of the claim, i.e. 3 March 2022 until the
date of effective payment.
iii. Compliance with monetary decisions
36. 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.
37. 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.
38. 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.
39. 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.
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40. 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
41. 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.
42. 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.
43. 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, Anane Gyasi, is partially accepted.
2.
The Respondent, Beitar Jerusalem FC, has to pay to the Claimant, the following amount(s):
- EUR 112,500 as compensation for breach of contract plus 5% interest p.a. as from 03
March 2022 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. 24 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 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. 24 par. 7 and 8 and art. 25 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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