Labour Disputes
Texto da decisão
REF FPSD-5555
Decision of the
Dispute Resolution Chamber
passed on 23 June 2022
regarding an employment-related dispute concerning the player
Joey Pelupessy
BY:
Clifford J. Hendel (USA & France)
Gonzalo de Medinilla (Spain)
Mario Flores Chemor (Mexico)
CLAIMANT:
Joey Pelupessy, Netherlands
Represented by Forza Sports Group B.V.
RESPONDENT:
Giresunspor, Turkey
Represented by Mr Atahan Sevimli
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I. Facts of the case
1.
On 27 July 2021, the Dutch player Joey Pelupessy (hereinafter the Claimant or the Player)
and the Turkish club Giresunspor (hereinafter the Respondent or the Club) concluded
employment agreement (hereinafter the Employment Agreement), valid for the football
seasons 2021/2022 and 2022/2023, i.e. until 31 May 2023.
2.
In Clause 6 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the Parties) agreed upon, inter alia, the following financial terms:
Season 2021/2022
“250.000,00-Euro of the abovementioned total amount is to be paid to the Player by the Club
as the monthly salary in 10 (ten) equal installments (10 x 25.000,00-Euro) between the period
August 2021 – May 2022. The monthly salaries are to be paid the last day of the relevant
months.
50.000,00-Euro of the abovementioned total amount is to be paid to the Player by the Club as
the guarantee payment on 28.07.2021.”
Season 2022/2023
“300.000,00-Euro of the above-mentioned total amount is to be paid to the Player by the Club
as the monthly salary in 10 (ten) equal installments (10 x 30.000,00-Euro) between the period
August 2022 -May 2023. The monthly salaries are to be paid the last day of the relevant
months. For the avoidance of doubt, if the Club plays not in the Turkish Super League in the
season 2022-2023 the Player will still receive the total guaranteed salary of 300.000 euro.”
Further benefits (accommodation / flight tickets / vehicle)
“The Club shall provide a modem, clean and luxurious furnished apartment minimum 3
bedroom (the discretion of choosing the apartment is belong to the Club) for the use of the
Player during the continuation of this Contract (if the Player prefers to choose to stay in an
apartment/ house/ hotel other than club option, the Club shall pay 500,00- Euro per month
only to the Player for his rent). The expenditures of the house (including but not limited lo
electricity, water, heating)' shall be covered by the Player himself. Until the Player finds a
suitable apartment or decide to stay at hotel in permanent basis, the Club shall pay the Player's
entire hotel expenses.
The Club shall provide an appropriate car (the discretion of choosing the cur is belong to the
Club) for the use of the Player during the continuation of this Contract provided that the Player
has a driving license which is valid in Turkey (if the player prefers to choose to using a vehicle
other than club option, the Club shall pay 500,00-Euro per month only to the Player for his
vehicle). The Player will be responsible for all the costs of the car other than rent/leasing fee,
insurance premiums, tax and maintenance. The Player mainly hm; to cover fuel, tolls, fines etc.
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The Club shall provide the Player 3 (three) round-trip business flight tickets (maximum one
layover) to his country, Giresun - Amsterdam per season for the use of the Player himself and/or
his family.”
3.
On 12 November 2021, the Claimant sent a default notice to the Respondent, requesting
the payment of two- monthly salaries of September and October 2021 (i.e. EUR 50,000)
within the next 15-days, however, to no avail.
4.
On 23 February 2022, Claimant sent another default notice to the Respondent, requesting
the payment of three-monthly salaries of November 2021, December 2021 and January
2022 (i.e. EUR 75,000) within the next 15-days, however, to no avail.
5.
On 11 March 2022, the Claimant sent a termination notice to the Respondent as four
monthly salaries remained allegedly outstanding.
6.
On 19 April 2022, the Claimant signed a new employment agreement (hereinafter the New
Employment Agreement) with the Dutch club FC Groningen, coming to force on 1 July 2022
and valid for 3 years, i.e until the end of season 2024/2025.
7.
The financial terms agreed upon are the following:
−
−
−
Season 2022/23: EUR 100,000/year;
Season 2023/24: EUR 276,000/year;
Season 2024/25: EUR 276,000/year.
II. Proceedings before FIFA
8.
On 23 March 2022, 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
9.
The requests for relief of the Claimant were the following:
− “the Club is obliged to pay to the Player the amount of NET EUR 108,870.97.- (in
words: one hundred and eight thousand eight hundred and seventy Euros and
ninety-seven Eurocents) as outstanding remuneration, immediately plus 5%
interest per annum as from the due dates;
− the Club will pay to the Player compensation in the amount of a total amount of
NET EUR 366,129.03.- (in words: three hundred sixty-six thousand one hundred
twenty-nine Euros and three cents) of compensation for the residual value of the
Employment Contract, immediately plus 5% interest per annum as from the date
of termination, i.e. 11 March 2022;
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− the Club is obliged to pay to the Player costs for the flight tickets of in total
EUR 792.80 (in words: seven hundred ninety-two Euros and eighty Eurocents), plus
5% interest per annum as from the date of payment, i.e. 12 March 2022;
− the Club is obliged to pay to the Player the corresponding value for the flight tickets
of at least EUR 2,100 (in words: twenty-one thousand Euros), plus 5% interest per
annum as from the date of termination, i.e. 11 March 2022;
− the Club is obliged to pay to the Player the contractually agreed payments in
relation to a car and an apartment for a total amount of NET EUR 14,000.- (in
words: fourteen thousand Euros), plus 5% interest per annum as from the date of
termination”. (emphasis added)
10.
The Claimant based its claim on art. 14bis of the Regulations.
11.
As to the calculation of the overdue payables, the Claimant provided for the following
break-down:
12.
As to the calculation of the compensation of EUR 366,129.03, the Claimant argued that it
“consists of a pro rata amount of the month March 2022 (i.e. EUR 25,000 minus EUR 8,870.97},
plus the monthly instalments of April and May 2022 (i.e. 2x EUR 25,000) and the total salary
of the 2022/2023 season (i.e. EUR 300,000)”.
13.
Regarding the request for flight tickets, the Claimant requested a reimbursement of his
ticket home, i.e. EUR 792.80 (Note: Evidence on file). Moreover, the Claimant requested
EUR 2,100, corresponding to the hypothetical value of the flight tickets for the
season 2022/2023.
14.
In addition, the Claimant requested EUR 14,000, corresponding to “EUR 500.- per month
multiplied by fourteen months (April 2022 until May 2023), for the car and for the
apartment each”.
b. Position of the Respondent
15. The Respondent rejected the claim of the Claimant.
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16. First of all, the Respondent argued that “the alleged overdue amount of 108.870,97-Euro is
not reflecting the true amount under any circumstances.”
17. In this respect, the Respondent was of the opinion that “the total payment made to the
Claimant by the Respondent is 159.162,07-Euro”, considering that “the Claimant’s only
entitlement amount in regards to the guarantee payment is 35.806,45-Euro on pro rata basis
calculation” as he did not finish the complete season 2021/2022.
18. Based on the above, the Respondent asserted that “the only overdue amount that the
Respondent is obliged to pay is 51.644,38-Euro”. (Note: Certain proofs of payment on file;
the Respondent mentions that “14.700,45-Euro of the subjected amount was paid in Turkish
Lira because of the Statement of Turkish Republic Ministry of Treasury and Finance about
Protecting the Value Of the Turkish Lira dated 06.10.2018 and numbered 2008-32/34 (Annex2) and some payments must be made over Turkish Lira currency as an administrative
decision”)
19. As to the calculation of the compensation, the Respondent requested that any new
contract shall be taken into account as mitigation.
20. Considering the request for flight tickets, the Respondent argued that it “did not receive
any request from the Claimant in regard to the subjected flight tickets”.
21. As to the living costs payments, the Respondent was of the opinion that “it is crystal clear
that such living cost payments are issued for the purpose of the Claimant’s accommodation
and care expenses as long as the Claimant continues to use the apartment and the car”. In
this respect, the Respondent acknowledged that “as of the termination date of the Contract,
the Claimant only has 7.354,83-Euro (3.677,41-Euro for his apartment and 3.677,41-Euro for
his car rental in accordance with the article 6.3 for 7 months and 11 days) due and unpaid
living cost payment.”
c. Final comments of the Claimant
22. The Claimant was requested to comment on the payments allegedly made by the
Respondent.
23. In this respect, the Claimant asserted that “the payments made in Euros to the Player
correspond to the guaranteed payment of EUR 50,000 and the monthly salary of the months
August, September and October 2021. These payments were also confirmed by the Player in
his Statement of Claim.”
24. However, the Claimant reiterated that “the salaries of the months November and
December 2021, and January and February 2022, which are still outstanding.”
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25. In this regard, “for the avoidance of doubts and for the sake of certainty, the Claimant wishes
to stress that the payment of EUR 15,000 on 28 July 2021, concerns a payment to us, the Dutch
agency, Forza Sports Group B.V. in relation to our services rendered in the conclusion of the
Employment Contract. This clearly follows from the payment slip, which states 'Agent Payment
Forza Sports Group'.”
26. As to the payments made in the Turkish Liras, the Claimant argued that those payments
correspond to match bonuses, which “follows from the fact that the payments were made at
random times and moreover from the wording of the payments slips which clearly state
'Season payment - bonus', 'Rizespor Bonus', 'Gizantep Bonus', 'Sivas Match Bonus', 'Malatya
Match Bonus', 'Karagumruk Match Bonus', 'Altay Match Bonus', 'Galatasaray Match Bonus'.”
27. In view of the above, the Claimant reiterated that the amount of EUR 108,870.97 remained
outstanding.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 23 March 2022 and submitted
for decision on 23 June 2022. Taking into account the wording of art. 34 of the June 2022
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.
29. 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), 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 Dutch player and
a Turkish club.
30. 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), and
considering that the present claim was lodged on 23 March 2022, the March 2022 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
31. 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
32. 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
33. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Parties strongly dispute the justice of the
early termination of the contract by the Claimant, based on the alleged non-payment
of certain financial obligations by the Respondent as per the contract, in accordance
with art. 14bis of the Regulations.
34. In this context, the Chamber acknowledged that its task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact
remained unpaid by the Respondent and, if so, whether the formal pre-requisites of
art. 14bis of the Regulations had in fact been fulfilled.
35. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has
granted a deadline of at least 15 days for the debtor club to fully comply with its
financial obligation(s).
36. The Chamber noted that the Claimant claimed not having received his remuneration
corresponding to the salaries between November 2021 until March 2022.
Furthermore, the Chamber noted that for the months of November 2021 until
February 2022, the Claimant has provided written evidence of having put the
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Respondent in default on 23 February 2022, i.e. at least 15 days before unilaterally
terminating the contract on 11 March 2022.
37. The Chamber also noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the Parties.
38. In this respect, the DRC acknowledged that the Respondent submitted several proofs
of payment, and the Parties agreed that the following payments were made:
−
Guarantee payment and salaries of August until October 2021, i.e. EUR 125,000
(already acknowledged by the Claimant in its claim);
−
Agent Fee of EUR 15,000;
−
Payments in TRY.
39. With regard to the proofs of payment provided by the Respondent, the DRC
underlined that specifically mentioned that the payments were related to (i) the
payment of the agent fee or (ii) to the payment of bonuses, and, consequently, the
DRC concluded not to recognize those payments as salary payments.
40. In view of the above, the evidence provided by the Respondent (does not prove
beyond doubt the payment of the amounts claimed as outstanding by the Claimant.
41. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally
terminate the contract, based on art. 14bis of the Regulations.
42. Finally, the DRC underlined that the Parties contractually stipulated that the Player
was entitled to three return tickets each season for him/his family. In this regard, the
DRC noted that the Claimant returned home and provided with the evidence that he
made a payment of TRY 12,981.8 for the respective flight tickets.
ii. Consequences
43. 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.
44. 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 salaries
between November 2021 and 23 March 2022 under the contract, amounting to
EUR 108,871 and TRY 12,981.81.
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45. 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 108,871.
46. 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 follows:
−
−
−
−
−
over the amount of EUR 25,000 as from 1 December 2021 until the date of
effective payment;
over the amount of EUR 25,000 as from over the amount of 1 January 2022 until
the date of effective payment;
over the amount of EUR 25,000 as from 1 February 2022 until the date of
effective payment;
over the amount of EUR 25,000 as from 1 March 2022 until the date of effective
payment;
over the amount of EUR 8,871 as from 23 March 2022 until the date of effective
payment.
47. 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.
48. 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.
49. 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.
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50. 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 380.129 (i.e. the salaries as well as accommodation
and vehicle costs) serves as the basis for the determination of the amount of
compensation for breach of contract.
51. 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.
52. Indeed, the player found employment with FC Groningen. In accordance with the
pertinent employment contract, the Player was entitled to EUR 100,000 per the respective
season 2022/2023. Therefore, the Chamber concluded that the Player mitigated his
damages in the total amount of EUR 100,000.
53. 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, and
therefore decided that the Player shall receive additional compensation.
54. In this respect, the DRC decided to award the amount of additional compensation of
EUR 75,000, i.e. three times the monthly remuneration of the Player.
55. 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 355,129 to the Player (i.e. EUR 380.129 minus EUR 100,000 plus EUR 75,000), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
56. 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 23 March 2022 until the date of effective
payment.
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iii. Compliance with monetary decisions
57. 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.
58. 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.
59. 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.
60. 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.
61. 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
62. 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.
63. 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.
64. 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, Joey Pelupessy, is partially accepted.
2.
The Respondent, Giresunspor, has to pay to the Claimant, the following amount(s):
- EUR 25,000 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021
until the date of effective payment;
- EUR 25,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022
until the date of effective payment;
- EUR 25,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2022
until the date of effective payment;
- EUR 25,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
- EUR 8,871 as outstanding remuneration plus 5% interest p.a. as from 23 March 2022
until the date of effective payment;
- TRY 12,981.81 as outstanding amount;
- EUR 355,129 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 23 March 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 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.
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.
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6.
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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