Labour Disputes
Texto da decisão
REF FPSD-784
Decision of the
Dispute Resolution Chamber
passed on 12 August 2021
regarding an employment-related dispute concerning the player Jeremain Marciano Lens
COMPOSITION:
Geoff Thompson (England), Chairman
Tomislav Kasalo (Croatia), member
Abu Nayeem Shohag (Bangladesh), member
CLAIMANT:
Jeremain Marciano Lens, Netherlands
Represented by Mr Sami Dinc
RESPONDENT:
Besiktas Futbol, Turkey
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I.
FACTS OF THE CASE
1.
On 8 August 2017, the Dutch player, Mr Jeremain Marciano Lens (hereinafter: the player
or the Claimant), and the Turkish club, Besiktas Futbol (hereinafter: the club or the
Respondent), signed an employment contract valid as from the date of signature until 31
May 2018 (hereinafter: the employment contract). The player was transferred on loan from
the English club, Sunderland FC, to the Respondent.
2.
Pursuant to art. 3 of the employment contract, its term could be automatically extended
until 31 May 2022 “in case the club exercises its permanent purchase option of the player’s
economical and federative rights pursuant to the Temporary Transfer Agreement signed
between the player, club and Sunderland F.C”.
3.
Moreover, in accordance with art. 6 of the employment contract, the club undertook to
pay the player, inter alia, the following amounts:
a. Season 2017/2018: total remuneration of EUR 2,200,000 net, payable in 10
instalments of EUR 220,000 each, due by the last day of each month as from August
2017 until May 2018;
b. Season 2018/2019: total remuneration of EUR 2,250,000 net, payable in 10
instalments of EUR 225,000 each, due by the last day of each month as from August
2018 until May 2019;
c. Season 2019/2020: total remuneration of EUR 2,300,000 net, payable in 10
instalments of EUR 230,000 each, due by the last day of each month as from August
2019 until May 2020;
d. Season 2020/2021: total remuneration of EUR 1,950,000 net, payable in 10
instalments of EUR 195,000 each, due by the last day of each month as from August
2020 until May 2021; and
e. Season 2021/2022: total remuneration of EUR 1,800,000 net, payable in 10
instalments of EUR 180,000 each, due by the last day of each month as from August
2017 until May 2018.
4.
On the same date, i.e. 8 August 2017, the parties also signed an Image Rights Agreement
by means of which the player granted the club a non-exclusive license for the use of his
image rights, in consideration of an additional remuneration, as follows:
a. Season 2017/2018: total remuneration of EUR 400,000 net, payable in 2 instalments
of EUR 200,000 each, due on 30 September 2017 and on 15 February 2018;
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b. Season 2018/2019: total remuneration of EUR 350,000 net, payable in 2 instalments
of EUR 175,000 each, due on 30 September 2018 and on 15 February 2019; and
c. Season 2019/2020: total remuneration of EUR 300,000 net, payable in 2 instalments
of EUR 150,000 each, due on 30 September 2019 and on 15 February 2020.
5.
On 11 March 2020, the World Health Organization (WHO) declared COVID a pandemic.
6.
On 19 March 2020, the Turkish Football Federation (TFF) decided to suspend all leagues
and cup competitions until further notice.
7.
On 29 June 2020, the club sent the player the draft of a settlement agreement containing
the following provision:
“The Player explicitly and irrevocably agrees and accepts that, out of his total entitlement
of 780.000 EUR as guaranteed salary and image rights payments for the months March,
April and May 2020, he waives his entitlement to 390.000EUR which corresponds to half
of his remuneration arising from the [employment contract and the image rights
agreement] for the months March, April and May 2020. Furthermore, the Player explicitly
agrees and accepts that the remaining part of 345.000 EUR for the months March, April
and May 2020 will be paid by the Club to the Player on 31 October 2020”.
8.
The settlement agreement was not signed neither by the club nor by the player.
9.
On 26 August 2020, the player put the club in default and granted it with a 10 days’
deadline in order to proceed the payment of EUR 346,576, regarding his outstanding
remuneration from the season 2019/2020.
10.
On 3 September 2020, the club responded to the player’s notice and referred to the 15%
reduction of the salaries in the context of the pandemic crisis. At this point, the club stressed
that “after application of the above mentioned deduction due to COVID-19, according to
our records, the only remaining remuneration of [the player] from 2019/2020 season is
100.000 individual bonus with the due date of 31 July 2020, which will be paid by our club
in the following days”.
11.
On 5 February 2021, the player sent the club a second default notice and granted it with a
10 days’ deadline in order to proceed the payment of EUR 390,000, corresponding to his
outstanding remuneration from the season 2019/2020.
12.
On 15 February 2021, the club provided its reply to the player’s notice. The club opposed
the player’s request for outstanding remuneration and referred the COVID pandemic –
especially to the 15% deduction made by the club over the player’s entitlements. At the
end, the club concluded that “according to our records, [the player] have been paid all
payables arising from the employment contract and the agreement for the licensing of the
image rights for the related period”.
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II.
PROCEEDINGS BEFORE FIFA
13.
On 18 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
14.
According to the player, the club failed to deliver part of his remuneration and unilaterally
deducted 15% of his entitlements because of the COVID pandemic. The player held that
such deduction was not “based on the just cause” and has to be considered “null, void and
invalid” in accordance with the DRC jurisprudence.
15.
In view of the above, the player requested, inter alia, overdue payables in the total amount
of EUR 390,000 net plus 5% interest p.a. as from the due dates, broken down as follows:
a. EUR 160,000 net as the payment of April 2020; and
b. EUR 230,000 net as the payment of May 2020.
b.
16.
The reply of the club
In its reply, the club maintained that “the pandemic created a force majeure situation in
Turkey, disrupting everyday life as well as football in general”. In this context, the club, inter
alia, made the following remarks:
a. the player did not attend any trainings and matches during the period of suspension,
as well as that the football season was suspended on 19 March 2020 and only resumed
on 12 June 2020. Accordingly, the player “did not submit any form of documentary
evidence to support that he played football for the Respondent and he attend the
training sessions and training camps during the COVID-19 pandemics”;
b. art. 136, 137 and 138 of the Turkish Code of Obligations regulate the impossibility of
performance of contractual obligations in exceptional situations and, hence, shall be
taken into consideration to address the effects of the pandemic. In this respect, the
club referred to precedents of the Turkish Courts related the COVID’s impacts over
contracts and the recognition of force majeure situation. In doing so, the club claimed
that “it would be fair to state that any and all instances of Turkish Courts (from Grand
Chamber of the Supreme Court, to the Regional Courts and the First Instance Courts)
considered the Covid-19 pandemic as force majeure event and allowed a 50%
reduction of the monthly payables”;
c. in addition, the club held that the doctrine of clausula rebus sic stantibus should also
be applicable to the case at hand as an exception to the principle of pacta sunt
servanda, due to the fact that the circumstances at the time of the signature of the
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employment contract allegedly changed “in an unforeseeable manner and to a
material extend which made performance impossible”;
d. in any event, the club considers that it complied with FIFA COVID guidelines, as well as
with the UEFA directives regarding the unilateral variation of contracts. In this respect,
the club argued that its request to mitigate the financial conditions of the pandemic
for the employment contracts during the 2019/2020 was accepted by the majority of
the players, as per the settlement agreements individually concluded with each of
them. Nevertheless, the player allegedly refused to reach a mutual agreement and
failed to mitigate losses and damages; and
e. the club had a 85% decrease in its cash flow so that it had no other option but “to
mitigate the monetary obligations in agreements signed between the club and players,
technical staff and employees, whist taking into consideration the principles of equal
treatment, proportionality and reasonableness”.
17.
Based on the foregoing, the club concluded that FIFA’s recent jurisprudence accepts its
position concerning the unilateral variation of the remuneration. Therefore, the club stated
that it validly deducted EUR 390,000 over the player’s remuneration (i.e. 15% of his total
salary and his additional image rights’ fee for the season of 2019/2020) and, hence, that
the player’s claim should be rejected.
c.
The rejoinder of the player
18.
In his rejoinder, the player opposed the club’s allegations and reiterated his own.
19.
In particular, the player maintained the following:
a. “just as the Respondent shall not be obliged to make any additional payments to the
Claimant or any other player of the Respondent when the incomes of the Respondent
are increased, the Claimant shall not be obliged to bear the Respondent’s financial loss
no matter what”;
b. the club accepted that the amount of EUR 390,000 is still unpaid and overdue;
c. the Super League was suspended by the TFF for a short period and, at the end, the
season was completed. Thus, the player provided his services to the club in accordance
with the employment contract and did attend all the matches, trainings and other
relevant activities;
d. “all the Turkish decisions submitted by the Respondent to your honourable chamber
are not related to employment relationships and not related with the subjected
matter”. Thus, they shall not be taken into consideration. On the contrary, the player
filed another labour decision addressing the same substance, in which the Turkish
Labour Courts decided that “COVID-19 pandemic is not a justified reason for the
football clubs to make unilateral reductions from the players’ salaries”;
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e. alternatively, the player remarked that FIFA DRC’s previous decisions (i.e. FPSD-1850)
“has only accepted the reduction on only three months (March, April and May 2020)
salary and only at the ration of 15%”. What is more, the player made reference to
other precedents where FIFA the unilateral variation of the contracts was entirely
rejected by the deciding-bodies;
f. as to the settlement agreements submitted by the club, the player pointed out that
most of them was signed with the U-19 squad players. In addition, the player claimed
that he has no obligation to accepted every settlement offer of the club, especially
when they are “unjust”;
g. UEFA declaration in favour of the football clubs is not a valid reason for them to make
unilateral reduction on the salaries of the players, neither did the club follow FIFA
guidelines; and
h. “the Respondent is facing with a financial crises over many years like the other Turkish
football clubs and the Respondent is obviously trying to cover their negative financial
situation with Covid-19”.
20.
In light of the above, the player reiterated his requests for relief.
d.
The final comments of the club
21.
In its final comments, the club once again referred to the jurisprudence of the DRC,
highlighting that the Chamber had already accepted the COVID pandemic “as force
majeure situation and permitted the unilateral variation of a contract if applicable national
law permits it”, as well as that “there is no doubt that Turkish national law permits such
unilateral variation”.
22.
Subsequently, the club claimed that it could not be expected to bear all the negative results
of the pandemic by itself. As to the precedent of the Turkish Labour Court filed by the
player, the club maintained that it is “neither final/definitive not binding” because the
decision was issued by the first instance court and would be appealed before the Turkish
Court of Appeal. Furthermore, the club also sustained that the Turkish labour law is not
applicable to athletes, as well as that the procedure involving national players is different
than the one regarding foreigners.
23.
At the end, the club transcribed its claim for the player’s demand to be rejected.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
24.
Competence and applicable legal framework
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
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took note that the present matter was presented to FIFA on 18 February 2021 and
submitted for decision on 12 August 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.
25.
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. 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 Dutch player and
a Turkish club.
26.
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), said
edition (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b.
Burden of proof
27.
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
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
28.
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.
29.
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
30.
The Chamber then moved to the substance of the matter, and took note of the fact that
the player lodged this claim against the club seeking payment of his remuneration from
April and May 2020.
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31.
On the other hand, the DRC was also observant that the club referred to the COVID
pandemic and claimed that (i) there was, at the time, an existing situation of force majeure
in Turkey; and (ii) the player’s entitlements for the whole 2019/2020 season were validly
reduced by 15% in accordance with the pertinent regulations.
32.
With this in mind, the Chamber firstly wished to recall that FIFA issued a set of guidelines,
the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on
the most relevant questions in connection with the regulatory consequences of the COVID19 outbreak and identifies solutions for new regulatory matters.
33.
The DRC also wished to refer to the fact that said guidelines – as per the explicit wording
of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only
applicable to “unilateral variations to existing employment agreements”. Therefore, except
where a termination of a contract occurred following a unilateral variation made as a result
of COVID-19 (in which case the validity of the variation must first be assessed under the
guidelines), said guidelines do not apply to assess unilateral terminations of existing
employment agreements. The Chamber further noted that for the assessment of disputes
that are presented before the FIFA judicial bodies concerning the unilateral termination of
a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber
shall apply.
34.
In other words, in any given dispute, it is for a party invoking force majeure to establish the
existence of said event under the applicable law/rules as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed
has to be considered on a case-by-case basis, taking into account all the relevant
circumstances. What is more, in application of said FIFA COVID 19 Guidelines, unilateral
decisions to vary agreements will only be recognised where they are made in accordance
with national law or are permissible within collective bargained agreements (CBA) structures
or another collective agreement mechanism.
35.
Based on the abovementioned considerations, the DRC turned its attention to the evidence
on the file in respect of the club’s allegation of force majeure. In this respect, the Chamber
noted that the club referred to the Turkish Code of Obligations and to the jurisprudence of
the Turkish ordinary courts related to effects of the pandemic over contracts. Conversely,
the DRC also took due note of the player’s argumentation according to which the pieces of
evidence brought forward by the club were to be considered of a general nature (i.e. not
employment-related), as well that the labour courts had an opposite understanding
regarding the possibility of unilaterally reducing a player’s remuneration.
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36.
In view of this dissent between the parties and after carefully analysing their submissions,
the DRC unanimously decided that the documentation on file was not sufficient to prove a
legal situation of force majeure entitling the club to unilaterally vary the terms of the
employment contract under the national law. Equally, the members of the Chamber
deemed that the club could not establish to a comfortable satisfaction degree that the
reduction of a player’s (or any employee’s) remuneration was authorized (or even
addressed) by the national law. While analysing this issue, the DRC considered pivotal to its
conclusion the decision issued by a Turkish Labour Court stating the exact opposite of what
was sustained by the club.
37.
In continuation and for the sake of completeness, the DRC went on analysing whether the
unilateral variation made by the club was to be considered reasonable and proportionate in
accordance with the FIFA COVID 19 Guidelines. By doing so, it noted that the Turkish league
was suspended for two months only while the club reduced the player’s salary for the entire
2019/2020 season and in a retroactive manner, which could not be deemed neither
reasonable nor proportionate.
38.
As a consequence and in light with the DRC’s jurisprudence, the DRC decided that the club
failed to demonstrate that the unilateral variation of the contract was licit, entailing that on
the basis of the principle pacta sunt servanda it should have paid the player’s agreed
remuneration.
39.
Finally, taking into consideration the player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided to award the player
interest at the rate of 5% p.a. on the outstanding amounts as from one day after their due
dates until the date of effective payment.
ii. Compliance with monetary decisions
40.
In continuation, the Chamber referred to par. 1 lit. a) 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.
41.
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.
42.
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
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consecutive registration periods shall become immediately effective on the club in
accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
43.
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.
44.
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
45.
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.
46.
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.
47.
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, Jeremain Marciano Lens, is partially accepted.
2.
The Respondent, Besiktas Futbol, has to pay to the Claimant, the following amounts:
-
EUR 160,000 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2020
until the date of effective payment; and
-
EUR 230,000 net as outstanding remuneration plus 5% interest p.a. as from 1 June 2020
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 set out in
the enclosed Bank Account Registration Form.
5.
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 shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration 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
paid by the end of the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
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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