Dispute Resolution Chamber
Texto da decisão
REF 21-00185
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Levy Clement Madinda
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT/COUNTER-RESPONDENT 1:
Levy Clement Madinda, Gabon
Represented by Alejandro Pascual
RESPONDENT/COUNTER-CLAIMANT:
Giresunspor, Turkey
Represented by Attahan Sevimli
COUNTER-RESPONDENT 2:
Sabah FA, Malaysia
Represented by Alejandro Pascual
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I.
FACTS OF THE CASE
1.
On 17 September 2020, the Gabonese player, Levy Clement Madinda (hereinafter: the
player or the Claimant/Counter-Respondent 1) and the Turkish club, Giresunspor
(hereinafter: the club or the Respondent/Counter-Claimant) signed an employment
contract, valid for the season 2020/2021, that is, until 31 May 2021 (hereinafter: the
contract).
2.
Article 1 of the contract names the parties, indicating the club’s address but no e-mail
address, as well as the identification of the player.
3.
According to clause 6 of the contract, the club undertook to pay EUR 100,000 to the player
as remuneration, divided in monthly instalments of EUR 10,000 each, payable by the last
day of each month between “September 2020 and June 2021”. Said clause also set forth
the following: “The Club is obliged to pay the amounts as written below to the Player in
return of his services subject to this present contract, all payments indicated in this present
contract are agreed that are “net” payments. For the avoidance of doubt, the Club shall be
responsible of the taxes and deductions in accordance with the Turkish Tax Legislation and
the Club shall not be responsible for any other obligations due to the -including but not
limited- additional tax duties, social contributions and/or levies related to the other
countries’ legislation”.
4.
Clause 6.2 of the contract further established the following benefits to the player:
a. A car;
b. A Furnished flat;
c. Two round trip economy flights between Gabon and Turkey.
5.
According to clause 7 (B) of the contract: “The parties accept the addresses as written in
the front page of the contract as notification addresses. Notifications made to the
aforementioned addresses are deemed to be valid unless address changes are not notified
to the related parties properly”.
6.
On 31 December 2020, the player put the club in default of payment of his salaries of
October, November and December, granting 15 days for the club to cure its breach.
7.
On 16 January, the player granted 3 additional days to the club as a last attempt to solve
the matter amicably.
8.
On 23 January 2021, the player terminated the contract.
9.
All the letters sent by the player were done so via e-mail to the following addresses:
[email protected]; [email protected]. According to the information available in
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the Transfer Matching System (TMS), the e-mails of the club found therein are different
from the e-mails used by the player, and have been unchanged since 11 December 2020.
10.
On 2 February 2021, the player and the Malaysian club, Sabah FC, signed an employment
contract valid as from 1 February 2021 until 31 July 2021, according to which the player is
entitled to inter alia a monthly salary of USD 2,000 (i.e. approx. EUR 1,600).
II.
PROCEEDINGS BEFORE FIFA
11.
On 1 February 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 player
12.
The player filed the claim at hand seeking payment of outstanding remuneration and
compensation for breach of contract, as he deems he had just cause to terminate the
contract.
13.
In this respect, the player argued that the club failed to pay him half of his salaries of
September 2020, plus the full salaries of October, November and December 2020.
14.
The player deems that the payments shall be awarded net as per clause 6 of the contract.
15.
The player requested the following relief:
“1.To accept this claim;
2.To determine the Employment Contract having been unilaterally and prematurely
terminated with just cause by the Player as of the 23rd of January 2021;
3.To condemn the Club to pay in favour of the Player:
3.1.the outstanding salary payments of the Player in the amount of EUR 35,000/- (thirtyfive thousand Euros)net of taxes pending at the time of the premature termination of the
Employment Contract with just cause;
3.2. the compensation for the premature termination of the Employment Contract in the
amount of EUR 60,000/- (Sixty thousand Euros) net of taxes, consisting on the remaining
salaries from January to June 2021 (both included).
3.3.Additional Compensation in an amount equal to the potential Mitigated Compensation
(up to EUR 60,000), if any, under Article 17.1 of the FIFA RSTP and the specificity of sport
due to the most abusive and discriminatory attitude displayed by the Club causing an
irreparable harm to the Player; 3.4.the corresponding interest at the rate of five percent
(5%) per annum applicable to any amount granted as from 23 January 2021(the date when
the Player terminated the Employment Contract with just cause) until the date of effective
payment;
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4.To declare that any amounts granted shall be considered as “net of taxes” and,
consequently, order the Club to provide the Player with the relevant tax certificates attesting
the payment of taxes to the competent authorities over any amounts granted.
5.To impose sporting sanction towards the Club, i.e.: ban the Club from registering any
new players, either nationally or internationally, for two consecutive registration periods
under the provisions of Art. 17 of the FIFA RSTP and any other disciplinary sanctions deemed
pertinent by your most esteemed services;
6.To order the Club to assume the entirety of the FIFA DRC administration and procedural
fees, if any”.
b.
Position of the club
16.
The club rejected the player’s claim and argued that he terminated the contract without
just cause. Accordingly, the club filed a counterclaim against the player and Sabah FC.
17.
The club explained that the player did not follow clause 7 (B) of the contract in his
notifications, and these should be hence considered not valid. As such, the club requested
EUR 2,000,000 as compensation for breach of contract.
18.
The club further requested Sabah FC to be deemed jointly liable for payment of
compensation or, at least, the new contract value of the player to be considered in case the
DRC finds that he had just cause.
c.
Joint reply to the counterclaim by the player and Sabah FC
19.
The player and Sabah FC filed a joint reply to the counterclaim.
20.
The player underlined that the club filed no evidence that it had paid his salaries, and argued
that the club “seriously and persistently” failed to comply with its financial obligations.
21.
As to the e-mail addresses used in his letters, the player explained that these were found in
the official website of the club, and provided evidence of such in support of his allegations.
Additionally, the player explained that he liaised with the club’s translator, whom received
the letters personally, and also was frequently informed of the outstanding salaries. He
provided excerpts of text messages as evidence of his arguments.
22.
The player furthermore argued that because he always communicated with the club’s
translator, it shall be considered for the scope of clause 7 (b) of the contract that the club
changed its address for notification purposes.
23.
The player went on to state that the club did not indicate any reason why his salaries were
not paid on time.
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24.
The player also argued that the club was evidently aware of the termination since
discussions were held between the player’s lawyer and a club’s representative. He provided
excerpts of text messages in this regard in support of his arguments.
25.
As to Sabah FC, it argued that it expressly requested the player’s agent to confirm that no
dispute could be brought against the club. Sabah FC is therefore of the opinion that “it
took all appropriate steps to confirm the signature of the Player as a free agent, where it
requested the Player´s agent the proof that he left his former club (Respondent) with a just
cause”.
26.
Sabah FC argued hence that it did not induce the player to breach his contract with the
club.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
27.
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 02 February 2021 and
submitted for decision on 20 May 2021. Taking into account the wording of art. 21 of the
January 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.
28.
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 Gabonese
player, a Turkish club and a Malaysian club.
29.
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 2 February 2021, the January 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
30.
Burden of proof
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
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wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
31.
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.
c.
32.
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
33.
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 the player had just cause
to terminate the contract.
34.
In this context, the Chamber acknowledged that in order to ascertain if just cause existed,
its first task was to determine, due to the specificities of the case at hand, if the player had
validly put the club in default.
35.
From the evidence provided on file, it was clear to the Chamber that the player warned the
club multiple times regarding the outstanding remuneration. In particular, the warning
letters plus the termination notice undoubtedly reached the club, irrespective of the means
used by the player. The Chamber confirmed this assessment by having analysed the club’s
website excerpts provided by the player as well as the communications exchanged by the
player or his attorney with club officials.
36.
In addition, the DRC confirmed that the Turkish Football Federation also issued a
confirmation letter, according to which it registered the termination of the contract, a copy
of which was also found on file.
37.
Consequently, the DRC confirmed that the player correctly put the club in default.
38.
Accordingly, the DRC turned to the issue of termination and while having in mind art. 14bis
of the Regulations, it also confirmed that it stood undisputed between the parties that more
than two salaries were outstanding at the time of the default notices, as well as in the
moment of termination.
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39.
All of the above lead the DRC to the conclusion that the player had just cause to terminate
the contract, and thus the club should bear the consequences that follow.
ii. Consequences
40.
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.
As such, the DRC deemed that the player is entitled to both his outstanding remuneration
and compensation for breach of contract.
41.
As to the former, the DRC noted that the club failed to pay the player his salaries between
September (half) and December 2020, in the total amount of EUR 350,000 net. Hence and
on the basis of the principle pacta sunt servanda, the DRC awarded such amounts to the
player.
42.
In addition, taking into consideration the player’s request, the members of the Chamber
decided to award the player 5% interest p.a. on the amount requested as from one day
after the date when they should have been paid, 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 observed
that no such clause exists in the contract 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.
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 contract
until its expiry date. Consequently, the Chamber concluded that the amount of EUR 60,000
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net (i.e. the remuneration from January to June 2021) 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 with Sabah FC. In accordance with the pertinent
employment contract, the player was entitled to EUR 6,400 between February and May
2021. Therefore, the Chamber concluded that the player mitigated his damages in the total
amount of EUR 6,400.
49.
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. The
Chamber confirmed that such would be the case at hand, entitling the player to EUR 30,000
net as additional compensation.
50.
The Chamber stressed however that per art. 17 of the Regulations the total amount of
compensation awarded (including any mitigation and additional compensation) cannot
exceed the original residual value of the contract. Accordingly, the Chamber decided to
award EUR 6,400 to the player as additional compensation.
51.
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 60,000
net to the player (i.e. EUR 60,000 minus EUR 6,400 as mitigation plus EUR 6,400 as
additional compensation), which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
iii. Compliance with monetary decisions
52.
Finally, taking into account the applicable Regulations, 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.
53.
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
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duration of the registration ban shall be of up to three entire and consecutive registration
periods.
54.
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.
55.
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.
56.
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
57.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
58.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
59.
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/Counter-Respondent 1, Levy Clement Madinda, is partially
accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Giresunspor, is rejected.
3.
The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent 1 the
following amounts:
- EUR 5,000 net as outstanding remuneration plus 5% interest p.a. as from 1 October 2020
until the date of effective payment;
- EUR 10,000 net as outstanding remuneration plus 5% interest p.a. as from 1 November
2020 until the date of effective payment;
- EUR 10,000 net as outstanding remuneration plus 5% interest p.a. as from 1 December
2020 until the date of effective payment;
- EUR 10,000 net as outstanding remuneration plus 5% interest p.a. as from 1 January 2021
until the date of effective payment;
- EUR 60,000 net as compensation for breach of contract without just cause plus 5% interest
p.a. as from 1 February 2021 until the date of effective payment.
4.
Any further claims of the Claimant/Counter-Respondent 1 are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated 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 the ban shall be of three entire and consecutive registration periods.
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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 1 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
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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:
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