Labour Disputes
Texto da decisão
REF. FPSD-6365
Decision of the
Dispute Resolution Chamber
passed on 23 February 2023
regarding an employment-related dispute concerning
the player Esat Mala
BY:
Frans de Weger (the Netherlands), Chairperson
Jorge Gutiérrez (Costa Rica), member
Stefano Sartori (Italy), member
CLAIMANT:
Esat Mala, Albania
Represented by Mr Anil Dincer
RESPONDENT:
Club Giresunspor, Turkey
Represented by Mr Atahan Sevimli
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REF. FPSD-6365
I. Facts of the case
1.
On 25 June 2021, the parties concluded an employment contract (hereinafter: the contract),
valid as from the date of its signature until 31 May 2023.
2.
According to clause 6 of the contract, the club undertook to pay to the player, inter alia, the
following remuneration:
For the season 2021/2022: EUR 136,500
-
EUR 10,000 as sign-on fee, payable on 21 June 2021;
EUR 12,000 as monthly salary, payable between August 2021 and May 2022;
EUR 6,500 as lump sum, payable in 2 equal instalments of EUR 3,250 on 21 June
2021 and on 31 October 2021.
For the season 2022/2023: EUR 157,500
-
EUR 10,000 as advanced payment, payable on 21 June 2022;
EUR 14,000 as monthly salary, payable between August 2022 and May 2023;
EUR 7,500 as lump sum, payable in 2 equal instalments of EUR 3,750 on 21 June
2022 and on 31 October 2022.
3.
On 3 September 2021, the player, the club and the Albanian club FK Partizani Tirana
concluded a loan agreement (hereinafter: the loan agreement), whereby the player was
loaned to the said Albanian club for the season 2021/2022 (according to the information
contained in the Transfer Matching System (TMS), the said season in Albania started on 1
July 2021 and ended on 30 June 2022).
4.
Clause 9 of the loan agreement reads as follows: “During the loan period Giresunspor shall
only pay 68.250.-EUR to the Player as salary contribution in total. This total amount shall
be paid to the Player by Giresunspor in 10 (ten) equal monthly instalments between
September 2021 – June 2022 (10*6.825.-EUR) (…)”.
5.
By means of his letter dated 4 January 2022, the Claimant put the Respondent in default of
payment in the amount of EUR 27,300, corresponding to the salaries of September,
October, November and December 2021, due cf. clause 9 of the loan agreement, thereby
granting the club a deadline of 15 days to cure its breach.
6.
Subsequently, on 11 January 2022, the Respondent made a payment of EUR 27,300 in
favour of the Claimant.
7.
On 5 May 2022, the Claimant put the Respondent in default of payment – again –, this time
concerning the salaries of January, February and March 2022 in the amount of EUR 27,300,
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REF. FPSD-6365
thereby granting the club a new deadline of 15 days to remedy the default; however, to no
avail.
8.
By means of his notice dated 25 May 2022, the Claimant unilaterally terminated the
contract.
9.
On 8 November 2022, the player signed a new contract with the Albanian club, Vllaznia FC,
valid as from the date of its signature until the end of the 2022/2023 season (according to
the information displayed in the Transfer Matching System, the said season in Albania
started on 1 July 2022 and will come to an end on 30 June 2023), whereby the player is
entitled to a monthly salary of EUR 5,500 net, i.e. a total of EUR 38,500 during the
overlapping period (November 2022 – May 2023).
II. Proceedings before FIFA
a. Position of the Claimant
10. On 14 June 2022, the Claimant lodged a claim against the Respondent before FIFA,
requesting to be awarded outstanding remuneration and compensation for breach of
contract in the total amount of EUR 240,450 plus 5% interest p.a. as from the respective
due dates, broken down by the Claimant as follows:
Outstanding remuneration: EUR 27,300
-
EUR 6,825 corresponding to the salary of January 2022;
EUR 6,825 corresponding to the salary of February 2022;
EUR 6,825 corresponding to the salary of March 2022;
EUR 6,825 corresponding to the salary of April 2022;
Compensation for breach of contract: EUR 171,150
-
EUR 13,650 corresponding to the salaries of May and June 2022 in the amount of
EUR 6,825,
EUR 157,500 corresponding to the residual value of the contract (the contractual
value for the season 2022/2023).
Additional compensation: EUR 42,000
-
EUR 42,000 as additional compensation, calculated by the Claimant as 3 salaries of
EUR 14,000 each, i.e. the salary due for the season 2022/2023.
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REF. FPSD-6365
11. In his claim, the Claimant argued that despite having concluded a valid contract and loan
agreement with the Respondent, the latter has constantly failed to comply with its financial
obligations towards the Claimant.
12. In this context, the Claimant held that, after having put the Respondent in default twice,
the Respondent failing to pay his salaries for the months of January, February and March
2022, the Claimant had no alternative but to terminate the contract cf. art. 14bis of the
Regulations.
13. Moreover, the Claimant stressed that he is entitled to an additional compensation in the
amount of EUR 42,000 “corresponding to the Claimant’s estimated sporting and financial
damages, in accordance with article 17 para. 1 of the Regulations on the Status and
Transfer of Players and FIFA’s commentary on the Regulations”.
b. Position of the Respondent
14. Along with its reply, the Respondent provided proof of payment of the transaction
performed on 11 January 2022, i.e. the amount of EUR 27,300 paid to the player
corresponding to his salaries of September, October, November and December 2021 cf.
clause 9 of the loan agreement.
15. In addition, the club acknowledged not having paid the player’s salaries as from January
2022 onwards and requested the player’s new income to be considered to mitigate the
player’s damages and, consequently, the amount due by the Respondent as compensation
for breach of contract.
16. As to the additional compensation requested, the Respondent requested the Football
Tribunal to reject the said petitum, insofar as the player has been receiving a remuneration
not only from the Respondent, but also from FK Partizani at the time the player unilaterally
terminated the contract.
17. The above being said, the Respondent requested the claim of the Claimant be rejected.
c. Claimant’s comments on payment
18. Upon invitation from the general secretariat of the Football Tribunal, the Claimant
confirmed to our services that the payment proof submitted by the Claimant corresponded
to the salaries of September, October, November and December 2021.
19. In this context, the Claimant reiterated his request.
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REF. FPSD-6365
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. 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 14 June 2022 and submitted
for decision on 23 February 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.
21. 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 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 an Albanian player
and a Turkish club.
22. 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 (October 2022 edition) and
considering that the present claim was lodged on 14 June 2023, the March 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
23. 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).
c. Merits of the dispute
24. 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.
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REF. FPSD-6365
i. Main legal discussion and considerations
25. The foregoing having been established, the Chamber moved to the substance of the matter
and recalled that the Claimant is requesting to be awarded outstanding remuneration and
compensation for breach of contract in the total amount of EUR 240,450, plus 5% interest
p.a.; the Claimant arguing having terminated the contract with just cause cf. art. 14bis of
the Regulations and, therefore, being entitled to receive a compensation for breach of
contract in addition to his overdue payables.
26. Furthermore, the Chamber noted that, on its part, the club admitted not having paid the
player’s salaries as from January 2022 onwards, requested the player’s new income be
considered to reduce the player’s compensation for breach of contract and requested the
additional compensation requested be rejected.
A.) Did the player terminate the contract with just cause on 25 May 2022?
27. In this respect, the Chamber wished to highlight that on the date on which the contract was
unilaterally terminated by the player, the contract was officially suspended, insofar as the
player had been temporarily transferred to FK Partizani Tirana until 30 June 2022. However,
continued the Chamber, even though the employment contract was officially suspended
during the loan period, the parties had agreed – within the scope of their autonomy of the
will – that the Respondent would participate in the player’s remuneration during the loan
period when the Respondent undertook, under clause 9 of the loan agreement, to pay to
the player a monthly salary of EUR 6,825 between September 2021 and June 2022.
28. In view of the above, the DRC decided that, despite the referred suspension of the contract,
the club had the obligation to remunerate the player with the abovementioned salary
during the period running between September 2021 and June 2022 – remuneration that
shall be considered as salary and holds the same nature as the salary agreed under the
terms of the contract.
29. With the abovementioned considerations in mind, since it has remained uncontested that
the Claimant put the Respondent in default of payment of more than 2 monthly salaries in
compliance with the requisites set by art. 14bis of the Regulations and that the Respondent
failed to remedy its default, the Chamber concluded that the Claimant did terminate the
contract with just cause on 25 May 2022.
ii. Consequences
30. 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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REF. FPSD-6365
31. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player amounts to EUR 34,125 i.e. the
salaries payable between January and May 2022 in the amount of EUR 6,825 each.
32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the contract at the moment of the termination, i.e. EUR
34,125 (i.e. 5 times EUR 6,825).
33. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment.
34. 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.
35. 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.
36. 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.
37. 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 164,325 (salary of June 2022 and residual value of the
season 2022/2023) serves as the basis for the determination of the amount of
compensation for breach of contract.
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REF. FPSD-6365
38. 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.
39. Indeed, the player found employment with the Albanian club, Vllaznia FC. In accordance
with the pertinent employment contract, the player was entitled to a monthly salary of EUR
5,500 net. Therefore, the Chamber concluded that the player mitigated his damages in the
total amount of EUR 38,500 during the overlapping period (November 2022 – May 2023).
40. 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.
41. In this respect, the DRC decided to award the amount of additional compensation of USD
EUR 20,475, i.e. three times the monthly remuneration of the player.
42. 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 146,300 to the player (i.e. EUR 164,325 minus EUR 38,500 plus EUR 20,475), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
43. 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 25 May 2022 (date of termination of the contract)
until the date of effective payment.
iii. Compliance with monetary decisions
44. 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.
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REF. FPSD-6365
45. 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.
46. 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.
47. 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.
48. 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
49. 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.
50. 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.
51. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-6365
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Esat Mala, is partially accepted.
2.
The Respondent, Giresunspor, has to pay to the Claimant, the following amount(s):
- EUR 34,125 as outstanding remuneration plus 5% interest p.a. as follows:
-
On the amount of EUR 6,825, as from 1 February 2022 until the date of effective
payment;
On the amount of EUR 6,825, as from 1 March 2022 until the date of effective
payment;
On the amount of EUR 6,825, as from 1 April 2022 until the date of effective
payment;
On the amount of EUR 6,825, as from 1 May 2022 until the date of effective
payment;
On the amount of EUR 6,825, as from 1 June 2022 until the date of effective
payment.
- EUR 146,300 as compensation for breach of contract plus 5% interest p.a. as from 25
May 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.
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REF. FPSD-6365
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
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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