Labour Disputes
Texto da decisão
REF FPSD-2648
Decision of the
Dispute Resolution Chamber
passed on 12 August 2021
regarding an employment-related dispute concerning the player Ricardo Jorge Pires
Gomez
COMPOSITION:
CLAIMANT:
Ricardo Jorge Pires Gomez, Portugal
Represented by Gustavo Koch Pinheiro
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
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I.
FACTS OF THE CASE
1.
On 29 September 2020, the Portuguese player, Ricardo Jorge Pires Gomez (hereinafter:
Claimant), and the Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter: Respondent)
signed an employment contract (hereinafter: contract) valid as from 2 October 2020 until
31 May 2021.
2.
On 30 September 2020, the Emirati club, Al Sharjah and the Respondent concluded a
transfer agreement for the loan of the Claimant to the Respondent as from 30 September
2020 until 30 June 2021.
3.
According to the contract, the Respondent undertook to pay the player a total salary of EUR
100,000, payable in 8 instalments of EUR 12,500 between 30 November 2020 and 30 June
2021.
4.
On 30 November 2020, the parties concluded an amendment to the contract (hereinafter:
amendment), according to which the player’s salary was increased to a total of EUR
740,000.
5.
According to the amendment, the Respondent undertook to pay the player 8 instalments
of EUR 75,000 between 30 November 2020 and 30 June 2021 (each payable at the end of
the respective month).
6.
Furthermore, according to the amendment, the Respondent undertook to pay the player in
addition a “sign-on fee” of EUR 140,000, payable on 15 October 2020.
7.
On 3 May 2021, the player put the club in default and requested payment of EUR 300,000,
corresponding to the instalments due between 30 January 2020 and 30 April 2020 (4x EUR
75,000), within 15 days.
8.
On 21 May 2021, the player terminated the contract with the club referring to art. 14bis
RSTP due to its non-fulfilment of its financial obligations.
9.
The player stated that he remained unemployed until 31 May 2021.
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II.
PROCEEDINGS BEFORE FIFA
10.
On 27 May 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
11.
On 27 May 2021, the player lodged a claim against the Respondent in front of FIFA
requesting payment of the following monies:
- EUR 300,000 as outstanding remuneration (Salaries of January until April 2021);
- EUR 150,000 as compensation for breach of contract, corresponding to the residual
value
The player requested 5% interest p.a. as of the due dates for the outstanding remuneration
and as of 21 May 2021 for the compensation.
12.
In his claim, the player held having had just cause to terminate the contract since the club
failed to remit remuneration of 4 monthly salaries even after he put the club in default.
b.
Position of the Respondent
13.
In its reply, the Respondent argued that “the overdue amounts do not correspond to what
is claimed”.
14.
The club argued that it faces financial difficulties due to COVID-19, the currency crisis and
the relegation to the second league.
15.
Regarding COVID-19, the club held that the pandemic “has been deemed as force majeure”
by the FIFA deciding bodies “repeatedly”.
16.
Moreover, the club alleges that the player has never put it in default and terminated the
contract “without prior warning” and therefore had no just cause to terminate.
17.
On account of the above, the player shall not be entitled to receive compensation.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
18.
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 27 May 2021 and submitted
for decision on 12 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.
19.
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 player and a
club.
20.
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 27 May 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
21.
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.
22.
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.
23.
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
24.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties dispute that the Claimant had just cause to
terminate the contract.
25.
In this context, the Chamber acknowledged that it its task was to determine whether the
Claimant had just cause to terminate the contract on 21 May 2021 and to decide on the
consequences thereof.
26.
In this regard, the DRC noted that the calculation of the outstanding remuneration claimed
by the player was contested by the Respondent. However, the Chamber acknowledged that
the Respondent failed to provide a clarification on such outstanding amounts, if any.
27.
Moreover, the members of the Chamber duly noted the Respondent’s allegations that
COVID-19 caused financial difficulties and that this was a case of “force majeure”.
28.
Having said that, the Chamber wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, 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 clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
29.
For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as
the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any
specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
30.
In this context, the DRC considered that the arguments raised by the Respondent cannot
be considered a valid reason for non-payment of the monies claimed by the Claimant, in
other words, the reasons brought forward by the Respondent in its defence do not exempt
the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
31.
Therefore, in view of the outstanding remuneration of 4 monthly salaries at the time of the
termination, the lack of any evidence provided by the Respondent of any further payments
and the default notice of the Claimant, we can conclude that the player had just cause to
terminate the contract on 21 May 2021.
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ii. Consequences
32.
In accordance with the above-mentioned considerations, the Chamber decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent is liable
to pay to the Claimant outstanding remuneration in the total amount of EUR 300,000,
corresponding to the player’s salaries of January until April 2021, plus 5% interest as of the
respective due dates, i.e. the first day of the following month.
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.
Taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided that the
Claimant is entitled to receive compensation for breach of contract from the Respondent.
35.
In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of 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 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.
36.
In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contains 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.
37.
As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Respondent to the Claimant 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. Therefore, other
objective criteria may be taken into account at the discretion of the deciding body. In this
regard, the Dispute Resolution Chamber emphasised beforehand that each request for
compensation for contractual breach has to be assessed by the Chamber on a case-by-case
basis taking into account all specific circumstances of the respective matter.
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38.
The members of the Chamber then turned their attention to the remuneration and other
benefits due to the Claimant under the existing contract and/or the new contract, which
criterion was considered by the Chamber to be essential. The members of the Chamber
deemed it important to emphasise that the wording of art. 17 par. 1 of the Regulations
allows the Chamber to take into account both the existing contract and the new contract,
if any, in the calculation of the amount of compensation.
39.
Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from the date of
termination with just cause by the Claimant until its natural expiration, i.e. 31 May 2021
Therefore, the Chamber concluded that the amount of EUR 150,000 serves as the basis for
the final determination of the amount of compensation for breach of contract in the case
at hand.
40.
In continuation, the Chamber verified as to whether the Claimant 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, 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.
41.
In this respect, the Chamber noted that the Claimant had not found new employment and
therefore was not able to mitigate his damages.
42.
Consequently, on account of the above-mentioned considerations, the Chamber decided
that the Respondent must pay the amount of EUR 150,000 as compensation for breach of
contract to the Claimant, which is considered by the Chamber to be a fair and reasonable
amount.
43.
In addition, taking into consideration the player’s claim, the Chamber decided to award the
Claimant interest at the rate of 5% p.a. as of 21 May 2021.
44.
As a conclusion the Chamber decided to partially accept the player’s claim.
iii. Compliance with monetary decisions
45.
Finally, taking into account the consideration under number 20. 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.
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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 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, Ricardo Jorge Pires Gomez , is accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, the following
amount:
- EUR 75,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2021 until
the date of effective payment;
- EUR 75,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021 until
the date of effective payment;
- EUR 75,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until the
date of effective payment;
- EUR 75,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until the
date of effective payment;
- EUR 150,000 as compensation for breach of contract plus 5% interest p.a. as from 21 May
2021 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
Pursuant to article 24 bis 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 the ban shall be 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.
5. The consequences shall only be enforced at the request of the Claimant in accordance with
article 24 bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer
of Players.
6. 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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