Labour Disputes
Texto da decisão
REF FPSD-2746
Decision of the
Dispute Resolution Chamber
passed on 19 August 2021
regarding an employment-related dispute concerning the player Radoslaw Pawel
Murawski
COMPOSITION:
HENDEL Clifford (USA/France), Deputy Chairman
VERMEER Roy (The Netherlands), member
PIVOVAROV Pavel (Russia), member
CLAIMANT:
Radoslaw Pawel Murawski, Poland
Represented by Talat Emre Koçak
RESPONDENT:
Denizlispor Kulübü Derneği, Turkey
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REF FPSD-2746
I.
FACTS OF THE CASE
1.
The Polish player, Radoslaw Pawel Murawski (hereinafter: the player or the Claimant), and
the Turkish club, Denizlispor Kulübü Derneği (hereinafter: the club or the Respondent)
concluded an employment contract valid as from 30 July 2019 until 31 May 2021
(hereinafter: the contract), according to which the player was entitled to the following fixed
remuneration:
“1- FOR THE FOOTBALL SEASON 2019-2020
ADVANCE PAYMENT
The Club shall pay the Player as 30.000 Euros as below
EUR 30.000 NET--30.07.2019
SALARY
The Club undertakes to pay the PLAYER the total NET Salary amount of 520.000 EURO
payable as follows
1. 70.000 EUR NET, DUE ON 31.08.2019
2. 50.000 EURO NET, DUE ON 30.09.2019
3. 50.000 EURO NET, DUE ON 31.10.2019
4. 50.000 EURO NET, DUE ON 30.11.2019
5. 50.000 EURO NET, DUE ON 31.12.2019
6. 50.000 EURO NET, DUE ON 31.01.2020
7. 50.000 EURO NET, DUE ON 29.02.2020
8. 50.000 EURO NET, DUE ON 31.03.2020
9. 50.000 EURO NET, DUE ON 30.04.2020
10. 50.000 EURO NET, DUE ON 31.05.2020
1- FOR THE FOOTBALL SEASON 2020-2021
SALARY
The Club undertakes to pay the PLAYER the total NET Salary amount of 605.000 EURO
payable as follows
1. 110.000 EUR NET, DUE ON 31.08.2020
2. 55.000 EURO NET, DUE ON 30.09.2020
3. 55.000 EURO NET, DUE ON 31.10.2020
4. 55.000 EURO NET, DUE ON 30.11.2020
5. 55.000 EURO NET, DUE ON 31.12.2020
6. 55.000 EURO NET, DUE ON 31.01.2021
7. 55.000 EURO NET, DUE ON 29.02.2021
8. 55.000 EURO NET, DUE ON 31.03.2021
9. 55.000 EURO NET, DUE ON 30.04.2021
10. 55.000 EURO NET, DUE ON 31.05.2021”.
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2.
On 21 April 2020, the Claimant served a notice to the Respondent and asked for the
payment of EUR 140,000 corresponding to part of the salary of January 2020 as well as the
full salaries of February and March 2020.
3.
On 7 January 2021, the Claimant served another notice to the Respondent and granted the
latter a deadline of 15 days to proceed to the payment of EUR 230,000 corresponding to a
balance for the 2019/2020 season, part of August 2020 salary as well as the full salaries of
October, November and December 2020.
4.
The Respondent made two a payment, one of EUR 120,000 on 8 January 2021, and another
of EUR 110,000 EUR on 22 January 2021.
5.
On 12 April 2021, the Claimant served another notice to the Respondent and granted the
latter a deadline of 15 days to proceed to the payment of EUR 165,000 regarding the
salaries of January, February and March 2021.
6.
On 12 May 2021, the Claimant terminated the contract unilaterally.
7.
According to the information available in the Transfer Matching System (TMS), the player
concluded a new employment contract with the Polish club KKS Lech Poznan valid as from
1 July 2021.
II.
PROCEEDINGS BEFORE FIFA
8.
On 8 June 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
9.
According to the Claimant, he is entitled to outstanding remuneration and compensation
for breach of contract.
10.
In this regard, the Claimant referred to the several default notices served on the
Respondent. The Claimant underlined that since he received no further payments after his
default notice of 12 April 2021, he terminated the contract on 12 May 2021.
11.
The Claimant emphasised that, despite the Respondent’s failure to pay his salaries, he had
terminated his contract only at the end of the season and continued playing for the
Respondent.
12.
The requests for relief of the Claimant, were the following:
Outstanding remuneration:
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•
EUR 220,000 representing the salaries from January to April 2021 (4 x EUR 55,000)
plus 5% interest as of the respective due dates.
Compensation for breach of contract:
• EUR 55,000 representing the salary of May 2021;
• EUR 165,000 as additional compensation in accordance with art. 17, par. 1, lit. ii)
of the FIFA Regulations on the Status and Transfer of Players (RSTP).
Legal fees: to be paid by the Respondent.
b.
The position of the Respondent
13.
In reply to the claim, the Respondent explained that it suffered greatly from the COVID-19
pandemic. It provided a copy of a report from an independent accountant showing that it
experienced a 10.89% loss from the expected income.
14.
When the 2019/2020 season ended, it contacted all players to request a 10% discount on
salaries. In this regard, the Respondent provided a letter addressed to the Claimant dated
22 August 2020, which states inter alia:
“As you know, Covid-19 has had an impact all over the world and has been qualified as a
force majeure. As a matter of fact, FIFA has described Covid-19 as "force majeure". As a
sports club, our demand from you is for you to make a discount from your accrued
receivables for the 2019/2020 season at a rate to be determined jointly by the parties and
waive such amount of your receivables. As Denizlispor Club, our wish, first of all, is to
resolve this issue in mutual reconciliation and agreement. Therefore, we would like to
inform you that we are ready to negotiate with you. However, we would like to state that
we reserve the right to file a lawsuit for the adaptation of the contract within the scope of
"article 138 of Turkish Code of Obligations, Adaptation of Contracts in cases of extreme
performance difficulty" if we cannot reach a consensus as the parties”.
15.
The club underlined that it had agreed upon such discount with a few players. In support
of this, the Respondent provided copies of several agreements with other players.
16.
Furthermore, the Respondent underlined that, since the player did not give a response
related to the discount request, it made a unilateral decision on 29 September 2020 and
decided to apply a 10% discount on the Claimant’s receivables.
17.
In this regard, the Respondent held that the DRC should impose a discount on the
Claimant’s receivables for the 2019/2020 season and generally impose a 10% discount to
any amounts due to the Claimant.
18.
Finally, the Respondent referred to art. 17, par. 1, lit) ii of the RSTP and stated that the
player is not entitled to any additional compensation since the compensation cannot exceed
the residual value of the contract.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
19.
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 08 June 2021 and submitted
for decision on 19 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.
20.
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 RSTP (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 Polish player and a Turkish club.
21.
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 RSTP (edition February 2021), and considering that the present claim was
lodged on 8 June 2021, the said edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b.
Burden of proof
22.
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.
23.
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.
24.
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
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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 of the fact that the parties dispute if the player had just cause to terminate
the contract, and the consequences that follow.
26.
In this context, the Chamber did not fail to notice the club’s argumentation regarding the
COVID-19 pandemic. Hence, the Chamber firstly wished to highlight 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.
27.
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.
28.
With the foregoing in mind, the DRC highlighted that the player terminated the contract
on 12 May 2021 after having put the club in default, for the last time, on 12 April 2021. It
remained uncontested that, at the date of termination, the club had not paid the player his
salaries from January until April 2021.
29.
In its defence, the club referred to the COVID-19 pandemic as well as to the fact that it
would have applied a 10% salary discount to the player’s salaries for the 2019/2020 season
since the player refused to accept a salary reduction.
30.
With respect to the request of the club to the DRC to apply a 10% salary reduction, the
members of the Chamber noted, first of all, that the player’s claim relates to salaries due in
the 2020/2021 season whereas the club’s letter dated 22 August 2020 referred to salaries
due in the 2019/2020 season. It appears, therefore, that the club did not contact the player
with respect to a salary reduction for the season 2020/2021. It should also be noted that
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the player remained at the club almost until the end of the contract and played for the club
without receiving any remuneration at all between January and April 2021.
31.
In view of the above, the DRC deemed that the club has not sufficiently demonstrated a
genuine and good faith attempt to find a solution with the player regarding the payment
of his salaries for the season 2020/2021. In any case, the DRC found it questionable whether
the any (valid) unilateral variation could still be applied in the season 2020/2021 considering
there was no suspension of the League. Therefore, and considering that the player had
acted in good faith and stayed at the club until the end of the relevant season, the DRC
was comfortable to establish that a 10% salary reduction was uncalled for.
32.
Bearing in mind the unequivocal contents of art. 14bis of the Regulations as well as the fact
that the player terminated the contract on 12 May 2021 after having put the club in default,
and without having received any remuneration for at least two months, the DRC found that
the player terminated the contract with just cause and in accordance with art. 14bis of the
Regulations. The club is consequently to bear the consequences that follow.
ii. Consequences
33.
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.
34.
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 four salaries
under the contract, i.e. from January to April 2021, amounting to EUR 55,000 each.
35.
As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the club is liable to pay to the player the amounts
which were outstanding under the contract at the moment of the termination, i.e. EUR
220,000 (i.e. four times EUR 55,000).
36.
In addition, 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.
37.
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
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five years, and depending on whether the contractual breach falls within the protected
period.
38.
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.
39.
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.
40.
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
until its natural expiry. Consequently, the Chamber concluded that the amount of EUR
55,000 (i.e. the month of May 2021) serves as the basis for the determination of the amount
of compensation for breach of contract.
41.
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.
42.
Indeed, the player found employment, but however only after the date when the contract
would have naturally expired. As such, the Chamber concluded that the player had not
mitigate his damages.
43.
Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to
overdue payables. In the case at hand, the Chamber confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, but because
there was no mitigation, no additional compensation can be awarded to the player.
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
55,000, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
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iii. Compliance with monetary decisions
45.
Finally, taking into account the applicable Regulations, 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.
46.
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.
47.
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.
48.
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.
49.
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
50.
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.
51.
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.
52.
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, Radoslaw Pawel Murawski, is partially accepted.
2.
The Respondent, Denizlispor Kulübü Derneği, has to pay to the Claimant, the following
amounts:
- EUR 55,000 as outstanding remuneration plus 5% interest p.a.as from 1 February 2021
until the date of effective payment;
- EUR 55,000 as outstanding remuneration plus 5% interest p.a.as from 1 March 2021 until
the date of effective payment;
- EUR 55,000 as outstanding remuneration plus 5% interest p.a.as from 1 April 2021 until
the date of effective payment;
- EUR 55,000 as outstanding remuneration plus 5% interest p.a.as from 1 May 2021 until
the date of effective payment;
- EUR 55,000 as compensation for breach of contract.
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).
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