Labour Disputes
Texto da decisão
REF FPSD-8231
Decision of the
Dispute Resolution Chamber
passed on 26 January 2023
regarding an employment-related dispute concerning the player
Mateusz Lis
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Stijn Boeykens (Belgium), Member
Jorge Gutierrez (Costa Rica), Member
CLAIMANT:
Mateusz Lis, Poland
Represented by Jan Łukomsk
RESPONDENT:
Altay SK, Türkiye
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REF FPSD-8231
I. Facts of the case
1.
On 6 August 2021, the Polish player, Mateusz Lis (hereinafter: the player or the Claimant),
and the Turkish club, Altay SK (hereinafter: the club or the Respondent), concluded an
employment contract valid as from the date of signature until 31 May 2025 (hereinafter:
the employment contract).
2.
Pursuant to clause 3 of the employment contract, the club undertook to pay the player
inter alia the following concepts:
a. For the 2021/2022 season:
•
•
•
•
•
EUR 75,000 net upon signature of the employment contract;
EUR 50,000 net on 30 November 2021;
EUR 50,000 net on 30 January 2022;
EUR 250,000 net in 10 monthly instalments of EUR 25,000 each, due by the last
day of each month from August 2021 until May 2022; and
EUR 25,000 at the end of the football season “provided that the player plays
minimum 45 minutes in each of the 30 official Super League matches in the 20212022 football season”.
b. For the 2022/2023 season:
•
•
•
•
•
EUR 50,000 net on 30 September 2022;
EUR 50,000 net on 30 November 2022;
EUR 50,000 net on 15 January 2023;
EUR 50,000 net on 15 May 2023; and
EUR 250,000 net in 10 monthly instalments of EUR 25,000 each, due by the last
day of each month from August 2022 until May 2023.
c. For the 2023/2024 season:
•
•
•
•
•
EUR 50,000 net on 30 September 2024;
EUR 50,000 net on 30 November 2024;
EUR 50,000 net on 15 January 2025;
EUR 50,000 net on 15 May 2025; and
EUR 250,000 net in 10 monthly instalments of EUR 25,000 each, due by the last
day of each month from August 2024 until May 2025.
d. For the entire duration of the employment contract:
•
•
“a flat for use of the player during the continuation of this contract with monthly
price up to” TRY 3,000;
EUR 30,000 in case the club wins the “Turkish cup”;
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•
•
EUR 25,000 in case the club “finishes the 2021-2022 season in the top 8”; and
EUR 25,000 in case the club “finishes the 2022-2023 / 2023-2024 / 2024-2025
season in the top 6”.
3.
In accordance with the information available in the Transfer Matching System (TMS), the
official 2021/2022 season in Türkiye ran between 1 July 2021 and 30 June 2022.
4.
On 1 April 2022, the player put the club in default and requested payment of EUR 175,000
net and TRY 24,000 as outstanding “remuneration and benefits” under the employment
contract. The player requested the club to cure the breach within the following 15 days
under penalty of termination.
5.
On 3 May 2022, the player notified the club of the termination of the employment contract
due to overdue payables. He mentioned that the club had failed to pay him EUR 125,000
net as salaries.
6.
On 7 June 2022, the Turkish Football Federation (TFF) acknowledged the termination of
the employment contract by the player.
7.
On 1 July 2022, the player entered into a new employment agreement with the English
club, Southampton Football Club (hereinafter: Southampton FC) valid as from the date of
signature until 30 June 2027. Accordingly, the player would be entitled inter alia to the
following amounts:
a. GBP 78,000 as monthly salary; and
b. GBP 1,000,000 as sign-on fee, payable in 5 instalments of GBP 200,000 each, due on
28 September of each month starting in 2022 until 2026.
8.
On 17 August 2022, the player served the club with another default notice. In this
opportunity, the player requested payment of EUR 175,000 as outstanding salaries and
TRY 36,000 as benefits and bonuses. He furthermore claimed to be entitled to “damages
for early termination of the contract with just cause” and granted the club with 7 additional
days to remedy the situation.
9.
On 1 September 2022, the player was loaned from Southampton FC to the French club,
ES Troyes Aube Champagne (hereinafter: ESTA Champagne), for the duration of the
2022/2023 season.
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II. Proceedings before FIFA
10. On 15 November 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
11. In his claim, the player argued that the club systematically failed to pay his remuneration,
giving cause to the termination of the employment contract pursuant to art. 14bis of the
FIFA Regulations on the Status and Transfer of Players (RSTP). In particular, he explained
that his pro rata salary amounted to EUR 35,416.66, hence that the debt at the time of the
termination was higher than the two monthly salaries mentioned in the regulations.
12. Based on the above, the player requested to be awarded the following amounts:
a. EUR 125,000 net as outstanding “salaries” plus interest, broken down as follows:
(i)
(ii)
(iii)
(iv)
(v)
EUR 25,000 plus 5% interest p.a. as from 1 January 2022;
EUR 25,000 plus 5% interest p.a. as from 1 February 2022;
EUR 25,000 plus 5% interest p.a. as from 1 March 2022;
EUR 25,000 plus 5% interest p.a. as from 1 April 2022; and
EUR 25,000 plus 5% interest p.a. as from 1 May 2022.
b. EUR 25,000 net as bonus for playing in 35 matches in the 2021/2022 football
season, plus 5% interest p.a. as from 1 June 2022;
c. TRY 30,000 as accommodation allowance plus interest, broken down as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
TRY 3,000 plus 5% interest p.a. as from 1 September 2021;
TRY 3,000 plus 5% interest p.a. as from 1 October 2021;
TRY 3,000 plus 5% interest p.a. as from 1 November 2021;
TRY 3,000 plus 5% interest p.a. as from 1 December 2021;
TRY 3,000 plus 5% interest p.a. as from 1 January 2022;
TRY 3,000 plus 5% interest p.a. as from 1 February 2022;
TRY 3,000 plus 5% interest p.a. as from 1 March 2022;
TRY 3,000 plus 5% interest p.a. as from 1 April 2022;
TRY 3,000 plus 5% interest p.a. as from 1 May 2022; and
TRY 3,000 plus 5% interest p.a. as from 1 June 2022.
d. EUR 25,000 net “as compensation for early termination of the football employment
contract with just cause”.
13. Specifically regarding the calculation of the compensation for breach of contract, the
player explained that his new contract with Southampton FC exceeded the residual value
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of the employment contract between 1 July 2022 and 31 May 2025, entailing that he
should only be entitled to the remuneration due on 31 May 2022. He did not file any
request for additional compensation cf. art. 17, par. 1, ii) of the FIFA RSTP.
14. Lastly, the player requested sanctions to be imposed on the club in line with art. 24 of the
FIFA RSTP, as well as for the club to be liable to pay the procedural costs connected to the
case.
b. Position of the club
15. On 6 December 2022, the club filed its reply and a counterclaim against the player.
16. On 7 December 2022, the FIFA general secretariat acknowledged that the club had lodged
a counterclaim against the player (i.e., the request for a disciplinary fine). As a
consequence, the club was requested to complete its submission in line with art. 18 of
the Procedural Rules Governing the Football Tribunal and to provide (i) a signed copy of
the FIFA BARF; and (ii) confirmation of the amount in dispute together with a breakdown.
Furthermore, such letter read inter alia as follows: “Should we not receive the requested
information and/or documentation within the aforementioned deadline, your counterclaim
shall be deemed to have been withdrawn and we will proceed to the closure of the submission
phase (cf. art. 23 of the Procedural Rules)”.
17. Notwithstanding the above, the club failed to complete its submission within the deadline
granted by the FIFA general secretariat. Therefore, its counterclaim was deemed
withdrawn and the submission-phase closed (cf. art. 23 of the Procedural Rules Governing
the Football Tribunal).
18. The statement of defense of the club is outlined in continuation.
19. The club informed that the parties had reached an agreement to rearrange the
outstanding payments, however after receiving the first part of the debt, the player left
the country. According to the club, no settlement agreement was signed but their
representatives witnessed the negotiations.
20. In particular, the club alleged that the player left the country on 30 April 2022
unauthorized i.e. before the termination of the employment contract and did not attend
the three last matches of the national championship. As such, it argued that the player
was in breach of his obligations and was not entitled to terminate their employment
relationship with just cause.
21. Accordingly, the club pointed out that the player should not be entitled to any bonus
because he did not perform the employment contract until the very end; and maintained
that he should be fined due to the unpermitted leave with a penalty amounting to 10 days
of his remuneration.
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22. The club’s requests for relief were as follows, quoted verbatim:
“1. Passport of the player is requested from the player to detect the exit date from Turkey,
2. Atakan Atalay and Tuna Üzümcü be heard as witnesses via an electronic session,
3. claim is dismissed by the Chamber,
4. the Player shall pay the legal costs and our fees,
5. the Player shall pay the 10 day remuneration fine to the Club,
6. the lawyer shall be fined to solicit the Player to contact Southampton FC when he has a valid
agreement with Altay SK”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 15 November 2022 and
submitted for decision on 26 January 2023. Taking into account the wording of art. 34 of
the October 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.
24. 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 par.
1 lit. b) of the FIFA RSTP (October 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 Polish player and a Turkish club.
25. 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 FIFA RSTP (October 2022 edition), and considering that the present claim
was lodged on 15 November 2022, the July 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
26. 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
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evidence not filed by the parties, including without limitation the evidence generated by
or within the TMS.
c. Merits of the dispute
27. 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
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for breach of contract lodged
by the player against the club in connection with the employment contract previously
concluded between them.
29. In particular, the player terminated the employment contract on 3 May 2022 due to
overdue payables. In doing so, he claimed to be entitled to outstanding remuneration
(salaries, bonuses, and accommodation allowance) as well as compensation for breach of
contract. The club, on the other hand, argued that the player was the one to breach the
employment contract by leaving without authorization on 30 April 2022 and, specifically,
before the date arranged between the parties for the payment of the debt by the club.
30. In this context, the DRC turned its attention to the documentation on file and took due
consideration that the club did not advance any evidence in support of its allegations
regarding neither a potential settlement between the parties nor the player’s alleged
breach of contract for unauthorized absence. Likewise, the Chamber found it essential
that the club has never sent the player any written communication nor requested him to
resume his services, let alone put him in default for the alleged misbehaviour.
31. The DRC moreover considered that the club could not demonstrate that the player had
ever consented to receive his remuneration at a later stage. In this respect and while
addressing the club’s request to produce written statements from its representatives, the
Chamber stressed that such evidence should already have been submitted together with
the reply and, in any event, would have restricted probatory weight in the absence of
bilateral documentary evidence to this extent.
32. In light of the above, the DRC underscored that the club could not meet its burden of
proof to demonstrate that it fulfilled its obligations under the employment contract
and/or that it was legally authorized not to do so (cf. art. 13, par. 5 of the Procedural Rules).
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Consequently, the Chamber determined that its argumentation should be rejected, hence
that the remuneration of the player should have been delivered as established in the
employment contract.
33. Having established the above, the DRC took due note that it remained undisputed
between the parties that at the time the club was put in default by the player for
outstanding remuneration (i.e., 1 April 2022), the club owed him EUR 175,000 net as
unpaid instalments of his monthly remuneration plus TRY 24,000 as accommodation
allowance. In addition, the DRC was also mindful that: (i) such amount corresponds to
more than two monthly dues of the player; and (ii) the player granted the club with a 15
days’ deadline to cure the breach, within which the latter did only pay him EUR 25,000.
34. Taking the above into consideration together with its well-established jurisprudence on
the topic, the DRC was satisfied with the conclusion that the persistent and substantial
non-compliance of the contractual obligations by the club could justify the unilateral
termination of the employment contract as well as it could hold it liable for breach of
contract (cf. art. 14bis of the Regulations).
35. Thus, based on the factual and contractual situation, the Chamber decided that the player
had just cause to terminate the employment contract and the club should be liable to the
consequences that follow.
ii. Consequences
36. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the club.
37. As a departure point, the DRC acknowledged that the player’s claims for the monthly
remuneration (i.e., 5 instalments of EUR 25,000 each), and accommodation allowance (i.e.,
10 instalments of TRY 3,000 each) are contractually based, supported by documentary
evidence, and were not specifically disputed by the club. As such, the DRC decided that
he should be entitled to the amounts sought on the basis of the general legal principle of
pacta sunt servanda, for a total of EUR 125,000 net plus TRY 30,000.
38. In addition, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award him interest at the rate of 5%
p.a. on the outstanding amounts as from the respective due dates (i.e., the first day of
each subsequent month) until the date of effective payment.
39. In continuation, the Chamber also observed that the player requested to be awarded the
performance bonus mentioned in clause 3 of the employment contract; however, the club
disputed his entitlement by arguing that he was not fielded in the last three matches of
the championship because he had already left the country.
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40. Against this background, the DRC moved to the analysis of the specific provision included
in the employment contract, which establishes the following as to the attendance bonus:
“Bonus payment of 25.000 euros will be paid to the player at the end of the football season
provided that the player plays minimum 45 minutes in each of the 30 official Super league
matches in the 2021-2022 football season at the end of the season”.
41. With the above in mind, the Chamber acknowledged that the player participated in the
first 35 out of the total 38 matches of the championship, as well as that the remaining 3
took place after the employment contract had already been terminated. As such, the DRC
was of the opinion that the sporting goal mentioned in the clause (i.e., the participation in
30 official matches) was clearly reached by the player before the termination, hence
triggering the payment of the bonus. The Chamber felt furthermore comforted with this
conclusion by recalling its conclusion that the club was the one giving cause to the
termination, therefore it established that such breach could not be held against the player
who fulfilled his duties throughout almost the entire season.
42. As a consequence, the DRC concluded that the player should also be awarded the EUR
25,000 net as sporting bonus, plus 5% interest p.a. as from 1 July 2022 (i.e., the official end
of the season per TMS) until the date of effective payment.
43. 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.
44. 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.
45. 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.
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46. 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
employment contract from the date of its unilateral termination until its end date.
Consequently, the Chamber concluded that the amount of EUR 900,000 net (i.e., EUR
450,000 for each remaining season) serves as the basis for the determination of the
amount of compensation for breach of contract.
47. 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.
48. Indeed, the player found employment firstly with Southampton FC and then with ESTA
Champagne, and he fully mitigated the damages suffered because of the termination of
the employment contract with the Respondent.
49. 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
employment 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.
50. In this respect, the DRC decided that the player would in principle be entitled to the
amount of additional compensation of EUR 75,000 net as additional compensation, i.e.,
three times the monthly remuneration of the player. Nevertheless, the Chamber noted
that the player limited his request for compensation to EUR 25,000 net.
51. Consequently, on account of all of the above-mentioned considerations in combination
with the principle of ne ultra petita, the Chamber decided that the club must pay the
amount of EUR 25,000 net to the player.
52. 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 15 November 2022 until the date of effective
payment.
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iii. Compliance with monetary decisions
53. 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.
54. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist, in principle, of a ban from registering
any new players, either nationally or internationally, up until the due amounts are paid.
55. 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 article 12bis, 17 or 18quater of the Regulations.
56. In this respect, the Chamber recalled that by means of decision passed on 6 September
2022 and notified on 9 September 2022, a transfer ban has been imposed on the club
pursuant to art. 17 par. 4 of the Regulations (i.e., case Ref. No. FPSD-6082).
57. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall
apply, insofar as in case the club 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 club would be moot and against the spirit of the Regulations, in particular the
enforcement mechanism established under art. 24 of the Regulations.
58. In view of the above, the DRC decided that if the amounts herein awarded plus the
respective interest is not paid within 30 days of notification of this decision, the present
matter shall be submitted, upon request of the player, to the FIFA Disciplinary Committee
for its consideration and formal decision.
59. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
d. Costs
60. 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.
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61. 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.
62. 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, Mateusz Lis, is partially accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant the following amount(s):
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 September
2021 until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 November
2021 until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 December
2021 until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022
until the date of effective payment;
- EUR 25,000 net as outstanding remuneration plus 5% interest p.a. as from 1 January
2022 until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2022
until the date of effective payment;
- EUR 25,000 net as outstanding remuneration plus 5% interest p.a. as from 1 February
2022 until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
- EUR 25,000 net as outstanding remuneration plus 5% interest p.a. as from 1 March
2022 until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2022 until
the date of effective payment;
- EUR 25,000 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of effective payment;
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- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022 until
the date of effective payment;
- EUR 25,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
- TRY 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2022 until
the date of effective payment;
- EUR 25,000 net as outstanding remuneration plus 5% interest p.a. as from 1 July 2022
until the date of effective payment; and
- EUR 25,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 15 November 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.
If the aforementioned sum 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.
6.
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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