Labour Disputes
Texto da decisão
REF FPSD-3857
Decision of the
Dispute Resolution Chamber
passed on 21 April 2022
regarding an employment-related dispute concerning the player Alexander
Merkel
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairperson
Angela Collins (Australia), member
Dana Mohamed Al-Noaimi (Qatar), member
CLAIMANT / COUNTER-RESPONDENT:
Alexander Merkel, Germany
Represented by Mr Sergey Lysenko
RESPONDENT / COUNTER-CLAIMANT:
Al Faisaly, Saudi Arabia
Represented by Anis Ben Mime
INTERVENING PARTY:
Gazisehir GFK, Turkey
Represented by Gürkan Özocak
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REF FPSD-3857
I.
Facts of the case
1.
On 24 August 2020, the German player, Alexander Merkel (hereinafter: player or
Claimant/Counter-Respondent) and the Saudi club, Al Faisaly (hereinafter: club or
Respondent/Counter-Claimant) concluded an employment contract (hereinafter: contract)
valid as from 15 September 2020 until 14 July 2022.
2.
According to the contract, the club, inter alia, undertook to pay the player the following
monies:
- EUR 400,000 net on 30 September 2020;
- EUR 63,637 net as monthly salary between 15 September 2020 and 14 August 2021;
- EUR 400,000 net on 30 August 2021;
- EUR 72,728 net as monthly salary between 15 August 2021 and 14 July 2022.
3.
According to the player, during the “preseason camp 2021/2022”, the club notified him that
it was no longer interested in his services and that he could start to look for a new club.
4.
On 25 July 2021, the club signed the Brazilian player, Ismael Silva.
5.
On 8 August 2021, the player sent a letter to the club and requested to be reinstated in the
team and to be registered for the upcoming season.
6.
On 11 August 2021, the player was invited to a meeting in order to discuss his contract
termination. Between 12 August 2021 and 15 August, the parties exchanged different drafts
of termination agreements, but could not agree on a mutual termination.
7.
On 16 August 2021, the club terminated the contract due to “abusive behaviour” of the
player during the termination negotiations.
8.
On 16 August 2021, the player protested against such termination and held that the club
had no just cause to terminate the contract.
9.
On 19 August 2021, the player signed a new employment contract with the Turkish club,
Gaziantep, valid as of the date of signature until 31 May 2023, including a total salary of EUR
100,000 during the season 2021/2022.
II. Proceedings before FIFA
10. On 30 September 2021, the Claimant 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
11. In his claim, the player requested payment of the following monies:
- EUR 63,637 net as outstanding remuneration (salary of July 2021), plus 5% p.a. interest
as of 15 August 2021;
- EUR 31,818.50 net as outstanding remuneration (salary for 1 August 2021 until 14
August 2021), plus 5% p.a. interest as of 17 August 2021;
- EUR 1,100,008 net as compensation for breach of contract, plus 5% interest p.a. as of
17 August 2021 (residual value of the contract less mitigation).
12. In this regard, the player held that the club had no just cause to terminate the contract on 16
August 2021.
13. The player maintained that he did not breach the contract and that he showed no “bad faith”,
as alleged by the club, in negotiating the contract termination.
14. Moreover, the player pointed out that the club did not issue any warning before terminating
the contract.
15. In fact, the player argued that the club’s behaviour would have given just cause to the player
to terminate the contract, since he was not registered for the upcoming season.
16. On account of the above, the player held that he is entitled to his outstanding dues and
compensation for breach of contract.
b. Position of the club / Counterclaim
17. In its reply, the club rejected the player’s claim and lodged a counterclaim against him,
requesting payment of USD 1,200,000 as compensation for breach of contract.
18. The club held that the player acted in bad faith, since he was willing to terminate the contract,
but then insisted on the total amount of his contract.
19. Further, the club held that he joined his new club only a few days after the contract
termination shows that he already wanted to leave the club before.
20. On account of the above, the club held that the player shall be liable to pay compensation
for breach of contract
c. Position of the player to the counterclaim
21. In reply to the club’s claim, the player refuted the Respondent’s allegations and requested to
dismiss the counterclaim.
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22. First of all, the player contested that he acted “abusive” in any way and he pointed out the
club failed to proof any of its allegations.
23. In this regard, the player reiterated his position submitted in his claim.
d. Position of new club
24. Gazisehir GFK submitted its comments to the dispute and endorsed the player’s position.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. 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 30 September 2021 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.
26. 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 German player and
a Saudi and a Turkish club.
27. 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 (March 2022 edition), and
considering that the present claim was lodged on 30 September 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b. Burden of proof
28. 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
29. 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
30. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties dispute the justice of the early termination of the
contract by the club.
31. In this context, the Chamber acknowledged that its task was to determine as to whether the
contract was terminated by the club with or without just cause and to decide on the
consequences thereof.
32. In this regard, the Chamber started to analyse the circumstances of the club’s termination on
16 August 2021, which occurred without previous, warning and shortly after negations about
a mutual termination took place, based on alleged “abusive behaviour” of the player.
33. Before entering the analysis of this specific case, the Chamber deemed it appropriate to
remind the parties that only a breach or misconduct which is of a certain severity justifies the
termination of a contract. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient measures
which can be taken in order to ensure the fulfilment of the contractual duties by the
counterparty, such measures must be taken before terminating an employment contract. A
premature termination of an employment contract can only ever be an ultima ratio measure.
34. In line with the above, the Chamber also referred to the specific wording of art. 14 par. 2 of
the Regulations, according to which “any abusive conduct of a party aiming at forcing the
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counterparty to terminate or change the terms of the contract shall entitle the counterparty
(a player or a club) to terminate the contract with just cause”.
35. The DRC pointed out that the club failed to submit any corroborating evidence of the player’s
alleged abusive behaviour. The Chamber wished to strongly emphasize that insisting on the
contract and certain payments arising thereof cannot be considered as “abusive behaviour”.
36. Furthermore, the Chamber pointed out that the termination occurred without previous
warning and therefore could not be considered as ultima ratio.
37. On account of the above, and taking into account the information on file, the Chamber
concluded that the by the club had no just cause to terminate the contract on 16 August
2021.
38. Consequently, the Chamber rejected the club’s arguments and its counterclaim.
ii. Consequences
39. 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.
40. 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 one and a half
salaries under the contract, amounting to EUR 63,637 net and EUR 31,18.50 net (July 2021
and August 2021 pro rata).
41. 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 63,637 net
and EUR 31,18.50 net.
42. 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.
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
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contract, the time remaining on the existing contract up to a maximum of five years, and
depending on whether the contractual breach falls within the protected period.
44. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which the
parties had beforehand agreed upon an amount of compensation payable by the contractual
parties in the event of breach of contract. In this regard, the Chamber established that no
such compensation clause was included in the employment contract at the basis of the matter
at stake.
45. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the other
parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said
provision provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
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 from
the date of its unilateral termination until its end date. Consequently, the Chamber concluded
that the amount of EUR 1,200,008 (i.e. 16 August 2021 until 14 July 2022; 11x EUR 72,728,
plus EUR 400,000) 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 the Turkish club, Gazisehir GFK. In accordance
with the pertinent employment contract, the player was entitled to a total salary of EUR
100,000 for the season 2021/2022. Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of EUR 100,000.
49. 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
1,100,008 to the player (i.e. EUR 1,200,008 minus EUR 100,000), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
50. 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
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at the rate of 5% p.a. as of the date of claim, 30 September 2021, until the date of effective
payment.
iii. Compliance with monetary decisions
51. 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.
52. 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.
53. 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.
54. 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.
55. 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
56. 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.
57. 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.
58. 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, Alexander Merkel, is partially accepted.
2.
The Respondent / Counter-Claimant, Al Faisaly, has to pay to the Claimant, the following
amount(s):
- EUR 63,637 net as outstanding remuneration plus 5% interest p.a. as from 15 August 2021
until the date of effective payment;
- EUR 31,818.50 net as outstanding remuneration plus 5% interest p.a. as from 17 August
2021 until the date of effective payment;
- EUR 1,100,008 net as compensation for breach of contract plus 5% interest p.a. as from 30
September 2021 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counter-Claimant is 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 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 / Counter-Claimant 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.
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.
7.
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.
8.
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).
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