Labour Disputes
Texto da decisão
REF FPSD-5122
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Tim Matavz
COMPOSITION:
HENDEL, Clifford J. (USA & France), Deputy Chairperson
COLLINS, Angela (Australia), Member
MOHAMED AL-NOAIMI, Dana (Qatar), Member
CLAIMANT:
Tim Matavz, Slovenia
Represented by Ruiz-Huerta & Crespo Abogados
RESPONDENT:
Bursaspor Kulubu, Turkey
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I.
Facts of the case
1.
On 14 August 2021, the Slovenian player Tim Matavz (hereinafter: the player or the Claimant),
and the Turkish club Bursaspor Kulubu (hereinafter: the club or the Respondent) concluded
an employment contract valid as from the date of signature until 31 May 2023 (hereinafter:
the employment contract).
2.
In accordance with clause 3 of the employment contract, the club undertook to pay the
player, inter alia, the following amounts for the 2021/2022 season:
(i)
EUR 50,000 net as advance payment at the date of signing of the
employment contract; and
(ii)
EUR 100,000 net, payable in ten instalments of EUR 10,000 each, due by
the last day of each month starting on 31 August 2021 and ending on 31
May 2022.
3.
Article 3, par. 26 and article 8 of the employment contract read as follows: “The Parties are
obliged to notify each other and the TFF in writing and without delay should their addresses
and e-mails change. Otherwise, notices to be made to the addresses which are declared in
this contract or stated / to be stated to the Club shall be deemed valid”.
4.
Article 10 of the employment contract read, inter alia, as follows: “If this contract is
terminated prematurely without just cause by the Club or terminated prematurely with just
cause by the Player, the Player will be entitled to receive as amount of compensation the full
residual value of the contract not subject to mitigation for any circumstance. The said article
may not be used maliciously by the Player in any way”.
5.
On the same date, i.e. 14 August 2021, the parties also signed an additional protocol, the
subject of which read as follows: “the subject of this protocol consists of determining the
additional fees to be paid to [the player] in addition to [the employment contract] concluded
between the player and [the club] to be valid in the 2021/2022 and 2022/2023 football
seasons” (hereinafter: the additional protocol).
6.
In accordance with art. 1 of the additional protocol, the club undertook to pay the player the
following (additional) amounts:
a. For the 2021/2022 season: a warranty fee of EUR 750,000 net, payable as follows:
(i)
EUR 150,000 net as advance payment at the date of signing of the
additional protocol; and
(ii)
EUR 600,000 net, payable in ten instalments of EUR 60,000 each, due by
the last day of each month starting on 31 August 2021 and ending on 31
May 2022.
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b. For the 2022/2023 season: a warranty fee of EUR 750,000 net, payable as follows:
7.
(i)
EUR 150,000 net as advance payment at the date of signing of the
additional protocol; and
(ii)
EUR 600,000 net, payable in ten instalments of EUR 60,000 each, due by
the last day of each month starting on 31 August 2021 and ending on 31
May 2022.
Furthermore, the additional protocol also established that the player would be entitled to the
following “fringe benefits”:
“a. A house will be provided by the Club. All utility expenses (electricity, telephone,
water, etc.) will be paid by the Player.
b. A car during the period of this employment contract. Traffic fined, gasoline and any
other expenses will be paid by the Player.
c. Two round-trip economy class flight tickets to the player’s country for his self and his
family”.
8.
On 12 January 2022, the player put the club in default and requested payment of his
outstanding remuneration amounting to EUR 550,000 net, within the following 15 days (cf.
article 14bis of the FIFA Regulations on the Status and Transfer of Players – RSTP). The
correspondence was sent by the player’s legal representatives on behalf of the player and
other two teammates to the email address: [email protected].
9.
On 28 January 2022, the player notified the club the termination of the employment contract
due to overdue payables.
10. On 30 January 2022, the player signed a new employment agreement with the Cypriot club,
Omonia Nicosia valid as from the date of signature until 31 May 2023.
11. Accordingly, the player is entitled to a monthly salary of: (i) EUR 26,000 net from 28 February
2022 until 31 May 2022; and (ii) EUR 37,170 net from 30 June 2022 until 31 May 2023.
II. Proceedings before FIFA
12. On 10 February 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Claim of the player
13. In his claim, the player referred to his default notices and argued that the club has failed to
pay him “all of his entitlements”, including his salaries of August, September, October,
November, and December 2021 amounting to EUR 70,000 each. Consequently, he claimed
to have terminated the employment contract with just cause under article 14bis of the FIFA
RSTP.
14. In light of the above and based on the principle of pacta sunt servanda, the player requested
to be awarded the following amounts, plus 5% interest p.a. as from the due dates:
a. EUR 750,000 net as outstanding remuneration, broken down as follows:
(i)
EUR 100,000 as the advance payments stipulated in the employment
contract;
(ii)
EUR 300,000 as the advance payments stipulated in the additional protocol;
(iii)
EUR 350,000 as the monthly salaries of August, September, October,
November and December 2021, as per the employment contract and the
additional protocol (i.e. EUR 70,000 per month).
b. EUR 1,050,000 as compensation for breach of contract, corresponding to the
residual salaries as per the employment contract (EUR 150,000) and the additional
protocol (EUR 900,000), without any mitigation in accordance with clause 10 of the
employment contract;
c. six additional monthly salaries, as additional compensation “under the specificity of
sport as per the most prejudicial circumstances he was forced to undergo”;
d. TRY 107,061 (EUR 7,066.56) as reimbursement for the accommodation costs; and
e. EUR 10,000 as legal fees and costs.
b. Reply of the club
15. In its reply, the club referred to art. 3, par. 26 and art. 8 of the employment contract and
mentioned that “the player did not follow procedural regulations and notification address
which is indicated in the contract”. Moreover, the club argued that the player used an email
address “which is not regularly checked by the club staff”, entailing that it had never been
made aware of the correspondence dated 12 January 2022. As a consequence, the club
concluded that the player terminated the employment contract without just cause.
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16. Alternatively, in the event FIFA assumed that the player terminated the employment contract
with just cause, the club argued that the compensation should be mitigated by considering
the new employment relationship initiated with Omonia Nikosia.
17. Finally, the club requested the player’s claim to be entirely rejected.
c. Additional comments by the club
18. On 14 April 2022, the club submitted proof of payments allegedly made to the player in
connection with the employment contract, as follows:
a.
b.
c.
d.
EUR 28,500 on 13 September 2021;
EUR 20,000 on 5 October 2021;
EUR 10,000 on 17 November 2021; and
EUR 1,000 on 17 January 2022.
d. Additional comments by the player
19. On 20 April 2022 and after being invited to provide additional comments, the player
acknowledged receipt of the abovementioned amounts and amended his prayers for relief in
order to request, specifically: “EUR 1,740,500 plus “5% interest per annum since the contract
termination on the 28th of January 2022”.
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 10 February 2022 and submitted for
decision on 21 April 2022. Taking into account the wording of art. 34 of the October 2021
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
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 (March 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 Slovenian 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
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and 2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and
considering that the present claim was lodged on 10 February 2022, the August 2021 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.
i. Main legal discussion and considerations
25. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that the case at stake pertains to a claim for breach of contract lodged by the
player against the club. Specifically, the DRC identified that player terminated the
employment contract on 28 January 2022 and the parties dispute whether he had just cause
to do so as well as the consequences that follow.
26. In this context, the DRC noted that the player based the termination on overdue payables
owed by the club. As such, the Chamber turned its attention to the documentation on file in
order to analyze which amounts (if any) were outstanding at the time of the termination visà-vis the content of art. 14bis of the Regulations and the jurisprudence of the Football
Tribunal on the matter.
27. In doing so, the DRC observed that both the employment contract and the additional protocol
set out the remuneration that should be paid by the club to the player during the term of
their employment relationship. Nevertheless, the members of the Chamber were also
observant that said documents appear to have been miswritten by the parties insofar as they
only mention (twice) the player’s remuneration for the 2021/2022 season and do not stipulate
any payment for the 2022/2023 season.
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28. As a consequence of the above, guided by the information available in TMS and by seeking
the true intention of the parties, the DRC considered that the player would be in fact entitled
to the following payments (as per the employment contract and the additional protocol
combined):
a. For the 2021/2022 season: a warranty fee of EUR 900,000 net, as follows:
(i)
EUR 200,000 net as advance payment at the date of signing of both
contracts; and
(ii)
EUR 700,000 net, payable in ten instalments of EUR 70,000 net each, due
by the last day of each month starting on 31 August 2021 and ending on
31 May 2022.
b. For the 2022/2023 season: a warranty fee of EUR 900,000 net, as follows:
(i)
EUR 200,000 net as advance payment on 14 August 2022 (i.e. by the
beginning of the 2022/2023 season instead of the date of signature of the
contracts), as included in the TMS; and
(ii)
EUR 700,000 net, payable in ten instalments of EUR 70,000 each, due by
the last day of each month starting on 31 August 2022 and ending on 31
May 2023.
29. Taking the above into consideration, the Chamber noted that it remained undisputed
between the parties that the following amounts were outstanding at the time of the
termination of the employment relationship by the player:
a. EUR 140,500 net as advance payment (i.e. EUR 50,000 under the employment
contract plus EUR 150,000 under the additional protocol minus EUR 59,500
undisputedly received from the club cf. par. 19, supra);
b. EUR 70,000 net as salary of August 2021;
c. EUR 70,000 net as salary of September 2021;
d. EUR 70,000 net as salary of October 2021;
e. EUR 70,000 net as salary of November 2021; and
f. EUR 70,000 net as salary of December 2021.
30. In continuation, the Chamber observed that the player put the club in default and granted it
a reasonable deadline (i.e. 15 days) in order to fulfil its financial obligations, to no avail.
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31. At this point, the DRC was mindful that the club challenged the delivery of the default notice
dated 12 January 2022 by saying that it was sent to a different address than the one included
in the employment contract. However, the Chamber determined that the club’s
argumentation in this respect should not succeed because: (i) neither the employment
contract nor the additional protocol foresee a specific email address for the delivery of default
notices; (ii) the email address used by the player was the same one included by the club in
the TMS, as well as used in these proceedings before the Football Tribunal; and (iii) the club
did not challenge the receipt of the correspondence, but only argued that it was not timely
seen by its representatives – which, in the Chamber’s opinion, could not be attributable to
the player.
32. Thus, as per its long-standing jurisprudence, the DRC decided that such persistent and
substantial non-compliance of the contractual obligations by the club can justify the unilateral
termination of the employment contract as well as it can hold the club liable for the breach.
33. Based on the factual and contractual situation, the Chamber unanimously decided that the
player had just cause to terminate the employment contract. Consequently, the club shall be
liable to the consequences that follows.
ii. Consequences
34. 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.
35. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to part of the advance
payments plus the player’s salaries from August 2021 until January 2022.
36. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent shall be liable to pay to the Claimant the total
amount of EUR 560,500 net as outstanding remuneration, broken down as follows:
a. EUR 140,500 net as advance payment due on the date of signature;
b. EUR 70,000 net as salary of August 2021;
c. EUR 70,000 net as salary of September 2021;
d. EUR 70,000 net as salary of October 2021;
e. EUR 70,000 net as salary of November 2021;
f. EUR 70,000 net as salary of December 2021; and
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g. EUR 70,000 net as salary of January 2022
37. 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 the player interest at the rate of 5%
p.a. on the outstanding amounts as from the date of the termination (i.e. 28 January 2022)
until the date of effective payment – as claimed by the player in strict observance of the
principle non ultra petita.
38. At this stage, the DRC noted that the player initially requested a reimbursement of his
accommodation expenses, however – and for reasons that the members of the Chamber
could not determine – the player did not include said petitum in his updated prayers for relief
as per his correspondence dated 20 April 2022. Consequently, the DRC concurred that this
specific part of the claim should be considered withdrawn.
39. 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.
40. 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.
41. Accordingly, the Chamber established that the parties did agree upon a compensation clause
with the following wording (clause 10 of the employment contract): “If this contract is
terminated prematurely without just cause by the club or terminated prematurely with just
cause by the player, the player will be entitled to receive as amount of compensation the full
residual value of the contract not subject to mitigation for any circumstance. The said article
may not be used maliciously by the player in any way”. Likewise, the DRC considered that
said clause was freely agreed upon between the parties and was both reasonable and
proportionate in accordance with its solid jurisprudence.
42. 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 and the additional protocol from the date of its unilateral termination until its end
date. Consequently, the Chamber concluded that the amount of EUR 1,180,000 net (i.e. the
remaining part of the advance payments and the remaining salaries until the end of the
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2022/2023 seasons) serves as the basis for the determination of the amount of compensation
for breach of contract.
43. In continuation, the Chamber decided that no mitigation nor additional compensation should
be taken into consideration as per the clear and unequivocal wording of clause 10 of the
employment contract.
44. 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
1,180,000 net to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
45. 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 the date of the claim (i.e. 10 February 2022) until the date of
effective payment.
iii. Compliance with monetary decisions
46. 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.
47. 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.
48. 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.
24 par. 2, 4, and 7 of the Regulations.
49. 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.
50. 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.
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d. Costs
51. 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.
52. 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.
53. 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, Tim Matavz, is partially accepted.
2.
The Respondent, Bursaspor Kulubu, has to pay to the Claimant, the following amounts:
-
EUR 560,500 net as outstanding remuneration plus 5% interest p.a. as from 28 January
2022 until the date of effective payment; and
-
EUR 1,180,000 net as compensation for breach of contract plus 5% interest p.a. as from
10 February 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 the ban shall
be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with article 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
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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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