Dispute Resolution Chamber
Texto da decisão
REF FPSD-2233
Decision of the
Dispute Resolution Chamber
passed on 17 June 2021
regarding an employment-related dispute concerning the player Tiago Jorge Oliveira
Lopes
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Philippe Diallo (France), member
Roy Vermeer (Netherlands), member
CLAIMANT:
Tiago Jorge Oliveira Lopes, Portugal
Represented by Pedro Macieirinha
RESPONDENT:
Denizlispor Kulubu, Turkey
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I.
FACTS OF THE CASE
1.
On 20 June 2019, the Claimant and the Respondent concluded an employment agreement
(hereinafter: the contract), valid between 20 June 2019 and 31 May 2021.
2.
In the contract, the parties had agreed or the season 2020/2021 upon the following
payments:
EUR 70,000 as advance payment, due on 31 July 2020;
10 instalments of EUR 45,000 net, due on the last day of each month in the period
between August 2020 and May 2021.
3.
Art. 3 of the contract holds the following clause: ‘The club will provide the player suitable
accommodation (excluding electricity/gas/water/other expenses) basic furnished. All utility
expenses will be paid by the player. The club will provide the player a car (excluding
fuel/traffic penalty/defective traffic accident by the player / other expenses). All utility
expenses will be paid by the Player’.
4.
Moreover, art. 6 of the contract provides for the following clause: ‘In case the clubs fails
into a default for any payment of more than sixty (60) days, the player shall notify the club
in writing and provide 15 days to the club for payment. If the club does not pay the unpaid
amount then the player has the option to terminate the contract unilaterally. In this case,
the player shall be entitled to take legal actions before FIFA competent bodies in order to
claim his remuneration/compensations etc.’
5.
On 4 March 2021, the Claimant put the Respondent in default for the total amount of EUR
135,000, corresponding to the outstanding instalments due on 31 December 2020, 31
January 2021 and 28 February 2021, providing a 15 days’ deadline to comply with its
financial obligations, however to no avail.
6.
On 20 March 2021, the Claimant reiterated such request, this time providing a final
deadline of 10 days and also unilaterally terminating the contract.
7.
The Claimant informed FIFA that, after the unilateral termination of his contract, he
remained unemployed .
II.
PROCEEDINGS BEFORE FIFA
8.
On 5 April 2021, the Claimant 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 Claimant
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9.
In his claim, the Claimant explained that the Respondent failed to pay him the three monthly
instalments of EUR 45,000, that fell due on 31 December 2020, 31 January 2021 and 28
February 2021.
10.
The Claimant claims that on 20 March 2021, he had effectively terminated the contract
with just cause and that as a result, he is entitled to outstanding remuneration and
compensation for breach of contract.
11.
The requests for relief of the Claimant, were the following:
-
to be awarded the amount of EUR 135,000 net, plus 5% interest p.a. as from the
respective due dates as outstanding remuneration and the amount of EUR 135,000,
plus 5% interest p.a. as from 20 March 2021 as compensation for breach of
contract.
b.
Position of the Respondent
12.
Despite being invited to do so, and despite having requested (and being granted) a deadline
extension to file its reply, the Respondent failed to submit its reply to the Claimant’s claim.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
13. 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 5 April 2021 and submitted for
decision on 17 June 2021. Taking into account the wording of art. 21 of the 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.
14. 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. a) and 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 Portuguese player
and a Turkish club.
15. 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), and
considering that the present claim was lodged on 5 April 2021, the February 2021 edition of
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said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Burden of proof
16. 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.
17. 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.
Merits of the dispute
18. 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
19. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that – in absence of the a reply from the Respondent in the matter
at hand – its task was to determine whether the Claimant had unilaterally terminated the
contract with or without just cause on 20 March 2021, and what the consequences of such
termination would be.
20. In this respect, the members of the Chamber noted that at the date of the termination of
the contract, i.e. 20 March 2021, three monthly instalments of EUR 45,000 each remained
outstanding. Based on this circumstance, the members of the Chamber concluded that the
Respondent had seriously neglected its financial obligations towards the Claimant.
21. On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause to
unilaterally terminate the contract on 20 March 2021 and that the Respondent is to be held
liable for the early termination of the contract with just cause by the player. As a
consequences, the Claimant is entitled to outstanding remuneration and compensation for
breach of contract.
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ii.
Consequences
22. 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
during the protected period.
23. First of all, the members of the Chamber concurred that the Respondent must fulfill its
obligations as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of “pacta sunt servanda”. Consequently, the
Chamber decided that the Respondent is liable to pay to the Claimant the remuneration that
was outstanding at the time of the termination i.e. the amount of EUR 135,000 net,
consisting of three instalments of EUR 45,000 net each as per the contract.
24. What is more, in line with its longstanding jurisprudence in this respect, as well as based on
the request of the Claimant, the Chamber decided to also award 5% interest on the three
instalments of EUR 45,000 net each, as from the respective due dates until the date if
effective payment.
25. In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the Claimant is entitled to receive from the Respondent compensation for
breach of contract in addition to any outstanding salaries on the basis of the relevant
employment contract.
26. In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
27. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a 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.
28. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of the
employment contract on 20 March 2021, the contract would run until 31 May 2021, in
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which three additional instalments of EUR 45,000 net each were still to be paid.
Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to EUR 135,000 net and that
such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
29. In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the Claimant had not found new
employment and therefore was not able to mitigate his damages. Consequently, the
Chamber decided to not deduct any amounts from the residual value of the contract.
30. In view of all of the above, the Chamber decided that the Respondent must pay the amount
of EUR 135,000 net to the Claimant as compensation for breach of contract without just
case, which is considered by the Chamber to be a reasonable and justified amount as
compensation.
31. Finally, in line with its longstanding jurisprudence in this respect, the Chamber decided to
also award 5% interest p.a. on the amount of EUR 135,000 net teach, as from the date of
claim, i.e. 5 April 2021.
32. The Dispute Resolution Chamber concluded its deliberations in the present matter by
establishing that any further claim lodged by the Claimant is rejected.
iii.
Compliance with monetary decisions
33. Finally, taking into account the consideration under numbers 23. and 31. above, the
Chamber referred to par. 1 lit. 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.
34. 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.
35. 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. 24bis par. 2, 4, and 7 of the Regulations.
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36. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
37. 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
38. 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.
39. 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.
40. 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, Tiago Jorge Oliveira Lopes, is partially accepted.
2.
The Respondent, Denizlispor Kulubu, has to pay to the Claimant, the following amount:
- EUR 135,000 as outstanding remuneration, plus 5% interest p.a. until the effective date of
payment as follows.
on the amount of EUR 45,000 as from 1 January 2021;
on the amount of EUR 45,000 as from 1 February 2021;
on the amount of EUR 45,000 as from 1 March 2021.
- EUR 135,000 net as compensation for breach of contract, plus 5% interest p.a. as from 5 April
2011 until the effective date of 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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