Labour Disputes
Texto da decisão
REF. FPSD-13363
Decision of the
Dispute Resolution Chamber
passed on 7 March 2024
regarding an employment-related dispute concerning
the player Jullia Moreira Alves
COMPOSITION:
Lívia Silva Kägi (Brazil), Deputy Chairperson
Mario Flores Chemor (Mexico), member
Roy Vermeer (the Netherlands), member
CLAIMANT:
Jullia Moreira Alves, Brazil
Represented by Brocchi e Souza
RESPONDENT:
Fatih Vatan Spor, Türkiye
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REF. FPSD-13363
I. Facts of the case
1.
On 1 September 2023, the Brazilian player Jullia Moreira Alves (hereinafter: Claimant or
player) and the Turkish club Fatih Vatan Spor (hereinafter: club or Respondent) concluded
an employment contract (hereinafter: Contract) valid as from the date of signature until
1 June 2024.
2.
According to the Contract, the Respondent undertook to pay the Claimant as a net
remuneration a monthly salary of USD 2,500, for a duration of 10 months, as well as a
signature bonus of USD 2,500.
3.
Moreover, in accordance with art. 6.8 of the Contract, the following had been agreed upon:
“In case of early determination of the forced contract by the Fatih Vatan Spor Kulübü club,
the player will be paid compensation of USD 5,000, in addition to all rights under this contract
and which she is entitled to, as well as must pay the remaining outstanding wages until the
end of the contract.”
4.
At an unspecified date, the Claimant suffered an injury.
5.
On 22 November 2023, the Claimant and the Respondent allegedly participated in a virtual
meeting in which the Claimant was allegedly invited to sign a mutual termination of the
Contract, which was rejected.
6.
On 28 November 2023, the Claimant, through her agent, wrote the following
correspondence to the club:
“Firstly we would like to thank you for the nice meeting last Wednesday. As discussed during
the meeting our player have been injured during the second match for the team prior to the
season. Even though the player has complained, the training had continued resulting in an
infection.
The club has not provided the proper assistance which has impacted in the recovery of the
player. This seems that the contract has not been followed properly.
Based on the above described, it is clear that the club had not enough time to evaluate the
performance of the player due to the injury and has not showed interest in having the player
ready to perform.
The club has showed interest in finishing the contract, even though there are no strong
reasons to do so. And in order to finish the contract, only the flight back home has been
offered, what is not in accordance with the contract. The player has contract until mid of next
year (more than 7 months to go). We have requested the club to revert with a fair proposal,
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REF. FPSD-13363
considering that the player might stay some time without playing and this has direct impact
in a future contract due to the window period. We have received no feedback so far.
In order to solve the situation, we have two proposals to the club:
-
To provide the air ticket back home, plus the amount corresponding to 4months of
salary or;
To continue with the contract until mid of next year, but the club shall ensure that the
proper treatment will be provided in accordance with the rules.
Please let us know how you want to proceed as we expect to solve this situation asap.”
7.
On 29 November 2023, the Respondent replied as follows:
“Hello. First of all, i would like to thank you for the meeting. There are some inaccuracies that
i need to correct in response to your e-mail. In the meeting held, an issue such as the current
claim that the player was injured in the second pre-season match was not discussed. He is
saying this now and this is your trying to convey a very different situation. You stated that our
club’s athlete, Julia Moreira Alves, was injured in the second pre-season match. Our first
official league match is played against Beylerbeyi Sport match and this matched played on
27.08.2023, we played our 6th week's match against Ataşehir Belediye Sport on 08.10.2023
and our 7th week official league match is played against Bitexen Adana İdmanyurdu Sport
played on 15.10.2023. Now you are reporting that the athlete was injured in the second preseason match and that we were taking care of the players but did not fulfill her obligations.
If the player did not receive treatment, how were these matches played?
The claim is that if the player was injured in the friendly game of the pre-season and the club
was not interested in the player, why did not the player’s managers mail the official and say
that the player was injured and the club was interested, as is currently the case ?
There is an average of 2 months between matches for a player who is “supposedly” not
interested in the club. Why did not the player inform through her managers that she was not
interested in the club because she was injured and therefore could not play in the above mentioned matches? Our contracts have been carefully designed by club lawyers and protect
all the rights of both our club and our athletes. Although we never accept your unfair
accusations, the club allocates an extra budget and repeated all the tests of the player in
order to be sure about the risk of infection. Our club covers all financial responsibilities from
the time of the player’s injury until today. Club paid the player’s salaries regularly and there
was no delay for the player’s salaries. Club provided the Player's accommodation and food
right which belong to the contract in every time. Even the player’s return ticket was purchased
by our club. Although it is not known where the infection was taken from in accordance with
the contract signed on behalf of the aforementioned athlete, the fault of the player not paying
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REF. FPSD-13363
attention to his daily personal care does not belong to the club. It does not belong to the rules.
The responses to your e-mail regarding the claim have been explained and responded to. The
last aspect is that the player fulfills the full scope of our club, including the round-trip ticket.
You don't need to send me a new, unreasonable email.”
8.
On 2 December 2023, the Claimant returned to Brazil via a flight ticket purchased by the
Respondent – as indicated in the letter sent on 29 November 2023.
9.
On 15 December 2023, the Claimant provided a written notice to the Respondent, stating
that, despite the former having objected thereto, the Respondent allegedly terminated the
Contract on 22 November 2023. As a result, the Claimant requested payment of USD 20,000
net, corresponding to the residual value of the contract plus the outstanding sign-on fee,
within 11 days.
II. Proceedings before FIFA
10. On 16 January 2024, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
11. According to the Claimant, following her injury at the beginning of the season, the
Respondent had driven her out by refusing to support her recovery and forcing her to
continue training / playing, causing an aggravation of the injury.
12. The Claimant also asserted that the Respondent failed to provide her with the signature
bonus of USD 2,500, and in a virtual meeting in which the contractual future of the Claimant
was discussed, only offered to pay her the return flight tickets to Brazil, with no
compensation for prematurely terminating the Contract.
13. The Claimant also stressed that, in good faith, attempted to provide a counter proposal as
to the potential mutual termination agreement, or to continue the contractual term until
its end, which was met by a negative reaction of the club.
14. As such, the Claimant argued that the Respondent had terminated the Contract without
just cause on 22 November 2023, failing to remedy such breach thereafter.
15. The requests for relief of the Claimant were the following:
-
Sign-on fee of USD 2,500 net;
Outstanding salary of USD 2,500 net for December 2023
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REF. FPSD-13363
-
Compensation of USD 15,000 net residual value between January 2024 and
June 2024;
Contractual penalty cf. art. 6.8 of the Contract of USD 5,000;
Interest as from the respective due dates.
b. Position of the Respondent
16. Despite having been invited to do so, the Respondent failed to provide a position to the
claim.
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REF. FPSD-13363
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 16 January 2024 and submitted
for decision on 7 March 2024. Taking into account the wording of art. 34 of the March 2023
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.
18. 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 (February 2024 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 Brazilian player
and a Turkish club.
19. 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 (February 2024 edition), and
considering that the present claim was lodged on 16 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
20. 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
21. 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-13363
i. Main legal discussion and considerations
22. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the present dispute concerned the
lawfulness of the contractual termination by the Respondent.
23. In this context, the Chamber acknowledged that it its task was to determine when exactly
the Contract had been terminated, whether such termination had occurred with or without
just cause, and lastly what the consequences of such termination may be.
24. Prior to entering the analysis of the matter as to its merits, the Chamber wished to recall
the principle of art. 13 par. 5 of the Procedural Rules, specifically since the Respondent had
failed to provide a position to the claim.
25. With this established, the Chamber firstly recalled that there was no formal termination
notice on file, thus making it necessary to refer to context in order to establish when the
Contract had been terminated.
26. In this respect, the Chamber took note of the following key facts:
-
The Claimant’s injury;
The alleged meeting of 22 November 2023;
The Claimant’s letter of 28 November 2023;
The Respondent’s letter of 29 November 2023;
The Claimant’s departure on 2 December 2023.
27. The Chamber noted that the Claimant asserted that the Contract was terminated on
22 November 2023 during an alleged virtual meeting, where the Respondent purportedly
expressed its intention of terminating the Contract and offering a mutual termination
agreement – which the Claimant refused to sign.
28. In respect of such allegation, the Chamber observed that there was no direct evidence of
such meeting having taken place, or what was discussed therein (such as a recording or
transcript).
29. Notwithstanding, the Chamber deemed that the email exchange following such meeting
helped to shed some light on the veracity of the Claimant’s allegations. In particular, the
Chamber was able to establish that both parties expressly acknowledged that the meeting
took place and that the player’s contractual future following her injury was discussed
therein.
30. Moreover, the Chamber noted that the Respondent failed to contest in such
correspondence that its wish was to terminate the Contract and to send the Player home
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REF. FPSD-13363
with nothing more than the flight tickets it had purchased prior thereto – an assertion the
Claimant had made in its letter of 28 November 2023.
31. Whilst it was unclear whether or not the Contract had effectively been terminated at that
point, what the Chamber considered as clear was the fact that the Respondent had
conveyed the unequivocal impression that the Claimant was no longer wanted at the club,
and that she should depart Türkiye as per the flight tickets it had specifically purchased for
that purpose – which she ended up doing.
32. The Chamber was, therefore, firstly able to conclude that the Contract had been de facto
terminated by the Claimant when she had left Türkiye – i.e. on 2 December 2023.
33. With this in mind, the Chamber moved on to consider whether or not the Contract was
terminated with or without just cause.
34. The Chamber recalled its longstanding jurisprudence, pursuant to which a premature
contractual termination may only be the result of a significant or frequent enough breach
of contract. Where the parties can turn to more lenient measures to mend their contractual
relationship, this should be done before unilaterally terminating the contract. A premature
unilateral termination of the contract may only be an ultima ratio measure.
35. In the case at hand, the Chamber considered that the Respondent’s attitude and clear
conveyance of no longer wanting the Claimant – in particular, by providing flight tickets for
her to leave Türkiye, for no apparent reason other than her injury – had given rise to an
ultima ratio situation in which the Claimant had no choice but to terminate the Contract.
36. Consequently, the Chamber concluded that the Claimant had a just cause to terminate the
Contract on 2 December 2023.
ii. Consequences
37. 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.
38. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, was constituted by the sign-on
fee in the amount of USD 2,500 net.
39. 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.
USD 2,500.
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REF. FPSD-13363
40. 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 2 September 2023 until the date of effective
payment.
41. 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.
42. 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.
43. In this regard, the Chamber established that the Contract established that the Contract
contained such a clause under art. 6.8, stipulating that in case the Respondent terminated
the Contract prematurely without just cause, that the Claimant would be entitled to
compensation in the amount of the residual value of the Contract, plus USD 5,000 as an
additional compensation.
44. In respect of such clause, the Chamber recalled its own longstanding jurisprudence,
according to which a compensation clause (also known as liquidated damage clause) must
meet the requirements of reciprocity and proportionality.
45. Based on these collective criteria, the Chamber considered that art. 6.8 of the Contract
failed to meet the criterium of reciprocity, as it only applied in one specific scenario –
namely if the Respondent were to terminate the Contract without just cause.
46. Consequently, and without deliberating the proportionality of the clause, the Chamber
opined that the compensation in the case at hand had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations.
47. 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.
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48. 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 USD 17,500 net (i.e. the residual value of the Contract, or
seven monthly salaries of USD 2,500 between December 2023 and June 2024) serves as the
basis for the determination of the amount of compensation for breach of contract.
49. 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.
50. In the case at hand, the Claimant confirmed not having found new employment after the
termination of the Contract, thus excluding the scope for mitigation and additional
compensation.
51. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of USD 17,500 net to the player, which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
52. 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 3 December 2023 until the date of effective
payment.
iii. Compliance with monetary decisions
53. 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.
54. 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.
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REF. FPSD-13363
55. 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.
56. 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.
57. 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
58. 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.
59. 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.
60. 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-13363
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jullia Moreira Alves, is partially accepted.
2.
The Respondent, Fatih Vatan Spor, must pay to the Claimant the following amount(s):
- USD 2,500 net as outstanding remuneration plus 5% interest p.a. as from
2 September 2023 until the date of effective payment;
- USD 17,500 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 3 December 2023 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.
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
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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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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