Labour Disputes
Texto da decisão
REF FPSD-2825
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Fabiano
Leismann
COMPOSITION:
ONGARO, Omar (Italy), Chairperson
LUKASEK, Peter (Slovakia), Member
ZAPISOTSKIY, Yuriy (Ukraine), Member
CLAIMANT:
Fabiano Leismann, Brazil
Represented by Tannuri Ribeiro Advogados
RESPONDENT:
Denizlispor, Turkey
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REF FPSD-2825
I.
Facts of the case
1.
On 14 September 2020, the Brazilian player, Mr Fabiano Leismann (hereinafter: the player or
the Claimant), and the Turkish club, Denizlispor (hereinafter: the club or the Respondent)
signed an employment contract valid as from the date of signature until 31 May 2022
(hereinafter: the employment contract).
2.
In accordance with art. 3 of the employment contract, the club undertook to pay to the player
inter alia the following amounts:
For the 2020/2021 season:
a. EUR 160,000 net as an advance payment, payable in two instalments being the first
of EUR 135,000, due on the signing date; and the second of EUR 25,000, due on 30
September 2020;
b.
EUR 46,875 net on 30 October 2020;
c.
EUR 46,875 net on 30 November 2020;
d.
EUR 46,875 net on 31 December 2020;
e.
EUR 46,875 net on 31 January 2021;
f.
EUR 46,875 net on 28 February 2021;
g.
EUR 46,875 net on 31 March 2021;
h.
EUR 46,875 net on 30 April 2021; and
i.
EUR 46,875 net on 15 May 2021.
For the 2021/2022 season:
a.
EUR 135,000 net as an advance payment, due on 15 August 2021;
b.
EUR 40,000 net on 31 August 2021;
c.
EUR 40,000 net on 1 September 2021;
d.
EUR 40,000 net on 30 October 2021;
e.
EUR 40,000 net on 30 November 2021;
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f.
EUR 40,000 net on 31 December 2021;
g.
EUR 40,000 net on 31 January 2022;
h.
EUR 40,000 net on 28 February 2022;
i.
EUR 40,000 net on 31 March 2022;
j.
EUR 40,000 net on 30 April 2022; and
k.
EUR 40,000 net on 15 May 2022.
3.
On 4 January 2021, the player put the club in default of payment of EUR 140,625 as
outstanding salaries for the period between October and December 2020, granting it 15 days
to comply with its financial obligations.
4.
On 31 March 2021, the player sent a second default notice to the club, requesting the
payment of EUR 140,625 (i.e. 3 monthly salaries, being EUR 46,875 each) as unpaid salaries
for the period between January and March 2021, granting it 15 days to comply with its
contractual obligations.
5.
On 15 April 2021, the club sent an email to the player stating that it had made payment of
EUR 140,625 on the same date.
6.
On 17 May 2021, the player sent a final default notice to the club of EUR 93,750 as
outstanding salaries for the period between April and May 2021, once again granting it 15
days to cure the breach.
7.
On 2 June 2021, the player notified the club the unilateral termination of the employment
contract based on two outstanding salaries (i.e. for the months of April and May 2021).
8.
On 3 June 2021, the player received a letter from the Turkish Football Federation (TFF)
confirming that his termination of the employment contract had “entered in its records”.
9.
On 15 July 2021, the player signed a new contract with the Greek club, Aris FC (hereinafter:
Aris FC) valid from the date of signature until 30 June 2024. For the overlapping period until
31 May 2022, the player’s new remuneration amounts to EUR 308,712.
II. Proceedings before FIFA
10. On 16 June 2021, the player 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. Claim of the player
11. In his claim, the player stated that during the course of their contractual relationship, the club
breached its contractual obligation on several occasions, by not paying his salaries as agreed.
12. In addition, the player pointed out that despite the several default notices to the club, it
continued to pay his salaries with delay. In particular, the player argued that the club did not
comply with its final default notice, giving him just cause to unilaterally terminate the
employment contract due to overdue payables (i.e. two monthly salaries).
13. In light of the above, the player requested inter alia the following payments:
a.
EUR 93,750 net as outstanding remuneration, broken down as follows:
(i) EUR 46,875 net as the salary of April 2021, plus 5% interest p.a. as from 1 May
2021 until the date of effective payment; and
(ii) EUR 46,875 net as the salary of May 2021, plus 5% interest p.a. as from 16 May
2021 until the date of effective payment.
b. EUR 535,000 net as compensation for breach of contract, corresponding the
residual value of the employment contract, plus 5% interest p.a. as from 3 June 2021
until the date of effective payment.
14. Finally, the club requested sporting sanctions to be imposed on the club (if necessary), in line
with art. 24bis of the FIFA Regulations on the Status and Transfer of Players (RSTP).
b. Reply of the club
15. In its reply, the club argued that the transfer season was opened in many countries, hence
that FIFA should delay the proceedings in order to enable the player to sign a new contract
and mitigate his damages in accordance with art. 17 of the FIFA RSTP. Likewise, the club
added that the player’s claim for compensation should be rejected, as he would in the future
be able to sign a contract with better financial conditions.
16. Notwithstanding the above, the club also attached to his response proof of the payments
made to the player and stated that it had paid all of the player’s salaries except for the last
two salaries.
17. Finally, the club claimed that no sporting sanctions should be imposed in the case at hand.
Moreover, it requested the player’s claim to be entirely rejected.
c. Additional comments of the player
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18. After being invited to do so, the player provided his additional comments in connection to
the club’s reply.
19. To this extent, the player informed that he found new employed with Aris FC and provided a
copy of the relevant employment agreement. In this regard, the player clarified that he was
able to mitigate EUR 308,712 during the overlapping period.
20. Therefore, the player submitted that he is intitled to compensation for breach of contract of
EUR 366,913 (i.e. EUR 535,000 minus EUR 308,712 plus EUR 140,625 as additional
compensation worth of 3 salaries).
21. Finally, the player reiterated his argumentation as to the outstanding remuneration, as well
as to the imposition of sporting sanctions on the club.
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 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 16 June 2021 and submitted for decision
on 3 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.
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 Brazilian player and
a Turkish club.
24. 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 16 June 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
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
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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 took note of the fact that the player
lodged a claim against the club seeking payment of outstanding remuneration and
compensation for breach of contract, claiming that he had just cause to terminate the
employment contract.
28.
On the other hand, the DRC was also observant that the club filed several proofs of payment
made to the player during the term of their employment relationship, but confirmed that
the instalments due in April and May 2021 remained outstanding.
29.
Against this background, the Chamber turned to the evidence on file and noted that it was
clear that upon the termination of the employment contract, not only the club had been
repetitively warned and granted a deadline of 15 days to cure its breach, but also the
payments defaulted amounted to two monthly salaries.
30.
The DRC then recalled the solid jurisprudence of the Chamber according to which such
persistent and substantial non-compliance of the contractual obligations by the club can
justify the unilateral termination of the agreement as well as it can hold the club liable for
breach of contract.
31.
Based on the factual and contractual situation at hand, the DRC concurred that the player
had just cause to terminate the employment contract under art. 14bis of the Regulations.
Consequently, the Chamber deemed that the player is entitled to both outstanding
remuneration and compensation for breach of contract, as follows.
ii. Consequences
32.
Having stated the above, the members of the Chamber went on analysing the
consequences of such unjustified breach of contract committed by the club.
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33.
In this regard, the DRC sought to establish the remuneration that had remained outstanding
at the time of the termination.
34.
With due consideration of the above, the DRC noted that the player asserted (and the club
confirmed) that at the time of the premature termination of the employment contract, the
instalments due on 30 April and 15 May 2021 were outstanding. Accordingly, the Chamber
unanimously agreed that said amounts have a solid contractual basis and, in accordance
with the general principle of pacta sunt servanda, shall be awarded to the player as claimed.
35.
With regard to the claimed interest, the members of the Chamber, applying the constant
practice of the DRC decided to award the player 5% interest p.a. on said amounts as from
their due dates (i.e. the following day upon which they fell due) until the date of effective
payment.
36.
Bearing the previous considerations in mind, the members of the Chamber moved to deal
with the consequences of the early termination of the contract with just cause by the player.
In this context, the DRC decided that, taking art. 17 par. 1 of the Regulations into
consideration, the player is entitled to receive compensation for breach of contract from
the club, in addition the aforementioned outstanding remuneration and its respective
interest.
37.
To this extent, the Chamber outlined that in accordance with the aforementioned 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 coach 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.
38.
In application of the relevant provision, the DRC held that it first had to clarify whether the
contract contained any clause by means of which the parties had previously agreed on
compensation payable by the contractual parties in the event of breach. 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.
39.
Subsequently, and in order to evaluate the compensation to be paid by the club, the DRC
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.
40.
For the sake of clarity, the members of the Chamber emphasized that in line with the
player’s claim and with the evidence on file, the residual value of the employment contract
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amounted to EUR 535,000 net (i.e. the whole season 2021/2022). Therefore, the DRC
considered that such amount should serve as the basis for the final determination of the
amount of compensation due for breach of contract.
41.
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.
42.
Indeed, the player found employment with Aris FC. In accordance with the pertinent
employment agreement, the player was entitled to a total remuneration of EUR 308,712
during the overlapping period of his new employment relationship and the one previously
established with the club (i.e. 12 monthly salaries of EUR 726, plus the fixed remuneration
of EUR 300,000).
43.
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. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
44.
In this respect, the DRC decided to award the amount of additional compensation of EUR
140,625 to the player, corresponding to 3 of his monthly salaries at the time of the
termination of the employment contract.
45.
Therefore, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber unanimously decided that the club must pay the amount of
EUR 366,913 net to the player (i.e. EUR 535,000 minus EUR 308,712 plus EUR 140,625) for
breach of contract in the present matter.
46.
With regard to the claimed interest, the Chamber, applying the constant practice of the
DRC, decided to award the player 5% interest p.a. on the said amount as from the date of
the claim (i.e. 16 June 2021).
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
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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. 8 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, Fabiano Leismann, is partially accepted.
2.
The Respondent, Denizlispor, has to pay to the Claimant, the following amounts:
EUR 93,750 net as outstanding remuneration plus 5% interest p.a. as from the due dates
until the date of effective payment, as follows:
- on the amount of EUR 46,875 net as from 1 May 2021;
- on the amount of EUR 46,875 net as from 16 May 2021.
EUR 366,913 net as compensation for breach of contract plus 5%interest p.a. as from 16
June 2021 until the effective date of 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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