Labour Disputes
Texto da decisão
REF 20-01323
Decision of the
Dispute Resolution Chamber
passed on 10 December 2020,
regarding an employment-related dispute concerning the player Wallace Reis da Silva
COMPOSITION:
Geoff Thompson (England), Chairman
Angela Collins (Australia), member
Aby Nayeem Shohag (Bangladesh), member
CLAIMANT:
WALLACE REIS DA SILVA, Brazil
Represented by Ms Debora Trombeta de Mattos
RESPONDENT:
GOZTEPE AS, Turkey
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REF 20-01323
I.
FACTS
1. On 21 January 2018, the Brazilian player, Mr Wallace Reis de Silva (hereinafter: the player or the
Claimant) and the Turkish club, Goztepe AS (hereinafter: Goztepe, the club or the Respondent),
concluded an employment contract (hereinafter: the contract), valid as from 29 January 2018 until 31
May 2020.
2. In accordance with clause 3 of the contract, the club undertook to pay to the player, for the season
2019/2020, inter alia, the following remuneration:
-
EUR 65,000 net, as monthly salary, payable as from August 2019 until May 2020 (10 monthly
salaries);
EUR 1,500 net, as monthly accommodation allowance;
EUR 2,000 “for each official Super league match at which the Player is within the initial field of
11”.
3. According to the Claimant, the Turkish Super League was suspended as from 13 March 2020 until 12
June 2020 –due to Covid-19– and the sporting season in Turkey was therefore extended from 31 May
2020, i.e. its initial ending date, until 26 July 2020.
4. The Claimant further stated that his contract with the club was suspended as from 21 until 27 April
2020, i.e. during 6 days.
5. On 23 May 2020, the club sent an e-mail to the players of the team, whereby the club informed them,
inter alia, about the following:
-
“We have been waiting for the aftermath of the developments on the league games first before
we could provide you any further information and implement any actions”;
-
“Concordantly, as we have clarified in detail during our face to face meetings, it is calculated
that we must apply min 20% (twenty percent) reduction on the contract’s total value applicable
for the 2019-2020 football season in case the league games resume from where we left off
and the season is completed”;
-
“In order to avoid any doubts please know that such discount is applicable only for the 20192020 Season, and it will be calculated based on the wages any player is entitled to as of the
end of 2019-2020 Season. Please take this as a further clarification that any contracts expiring
by May 31, 2020 will be automatically extended until the current football season is completed
as per instructions of FIFA and TFF”;
-
“With all the above mentioned information in mind, we hereby would like to invite you to
formally sign the mutually agreed contractual revision clauses within 5 (five) days upon receipt
of the present e-mail communication”.
6. By means of his e-mail of 28 May 2020, the player replied thereto. In particular, the player maintained
the following: “With reference to your previous e-mail which determine a 20% reduction over my
2019/2020 receivables, I hereby formally declare my non-acceptance of your unilateral offer. As we
talked, I understand the critical financial situation facing by the Club as a result of this pandemi[c] but
unfortunately I cannot abdicate of that much. As clearly established at the FIFA guiding principles both
parties should work to find a fair solution to everybody. In this sense, I am still at your disposal to discuss
this matter in an amicable and reasonable way”.
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REF 20-01323
7. On 21 July 2020, the club sent a further e-mail to the players, whereby the former urged the latter to
“finalize these one-on-one negotiations within three days following to the last game we are scheduled
to play”.
8.
On 16 September 2020, the player lodged a claim against the club before FIFA, requesting to be
awarded outstanding remuneration in the amount of EUR 211,000, broken down by the player as
follows:
-
EUR 195,000 corresponding to the salaries of March, April and May 2020 in the amount of
EUR 195,000, plus 5% p.a. as from their respective due dates;
-
EUR 6,000 corresponding to 4 instalments of the accommodation allowance in the amount of
EUR 1,500 each (note: no allocation of the requested allowances has been provided), plus 5%
p.a. as from their respective due dates;
-
EUR 10,000 as reimbursement of “legal fees and costs”.
9. In his claim, the Claimant firstly held that, even though the club unilaterally declared that the contract
was automatically extended until the end of the 2019/2020 season, i.e. for 2 more months than what
was contractually agreed, the club did not offer to pay any salaries for those 2 extra months and the
player did not request any payment for that term, which –according to the Claimant– shows his good
faith.
10. Moreover, the Claimant wished to point out that he is not claiming the payment of his salaries during
“the period in which his contract was suspended (as from 21 April 2019 to 27 April 2020)”.
11. In this context, the Claimant stressed that, despite “all the efforts and losses supported by the Player
aiming to help the Club, as if was not enough not receive any financial support during the Agreement
suspension and any additional income for the two additional months that the Agreement was
extended, the Club insists to not pay the outstanding amounts related to March, April and May salaries
that the Player was entitle to receive”.
12. Despite having been invited to do so, the Respondent did not reply to the claim.
II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1. First
of
all,
the
Dispute
Resolution
Chamber
(hereinafter
also
referred
to
as Chamber or DRC) analyzed whether it was competent to deal with the case at hand. Taking into
account the wording of art. 21 of the June 2020 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.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules
and emphasized that, in accordance with art.
24
par.
1
in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is
in competent to deal with matters which concern employment-related disputes with an international
dimension between players and clubs, such as the present one, which involves a Brazilian player and a
Turkish club.
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REF 20-01323
3.
In continuation, the Dispute Resolution Chamber analyzed which edition of the Regulations of the
Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute
Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players, and considering that the claim was lodged on 16 September 2020, the
August 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to
the matter at hand.
4.
With the above having been established, the Dispute Resolution Chamber entered into the substance
of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents
contained in the file. However, the Dispute Resolution Chamber emphasized that in the following
considerations it will refer only to facts, arguments and documentary evidence which it considered
pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber noted that, on 21 January 2018, the parties concluded an employment
contract (the contract) valid as from 29 January 2018 until 31 May 2020, in accordance with which
the club undertook to pay to the player, inter alia, the remuneration established in point I.2 supra.
6.
After a careful analysis of the documentation on file, the Chamber firstly observed that, despite having
been invited to do so, the Respondent failed to reply to the claim. Consequently, the DRC stressed
that the arguments raised by the Claimant, if sufficiently supported with the necessary documentary
evidence, would be deemed uncontested facts.
7.
First of all, the DRC emphasized that, even though the facts of the present case are surrounded by
events that were caused by Covid-19, such as: 1.) the alleged suspension of the player’s contract, 2.)
the unilateral extension of the contract by the club and 3.) the offered made by the club to the player
regarding a reduction of 20% of his salaries; the issue at stake is caused by the fact that the
Respondent failed to make the payment of the monthly salaries of March, April and May 2020,
payments that were contractually agreed and correspond to the initial term of the contract, i.e. do not
fall within the term for which the contract was extended.
8.
Furthermore –continued the DRC–, from the allegations of the Claimant, it seems that no reduction
of his entitlements was practiced by the Respondent, who simply failed to make any payment at all as
from March 2020 onwards.
9.
Moreover, the Chamber noted that the Claimant is not requesting any payment concerning the
months of June and July 2020, during which it is to be presumed that the player played for the
Respondent.
10. In this context, the Chamber unanimously concluded that, in the absence of a reply from the club, the
allegations brought forward by the Claimant regarding the Respondent´s non-payment of his monthly
salaries of March, April and May 2020, as well as the monthly accommodation allowances have
remained uncontested.
11. Consequently, explained the Chamber, in view of the fact that the amounts requested by the Claimant
have a contractual basis and that the Respondent has not challenged the allegations of the Claimant,
the Respondent is to be considered liable and must pay outstanding remuneration to the Claimant by
virtue of application of the legal principle pacta sunt servanda.
12. Hence, the Chamber determined that the Respondent shall pay to the Claimant outstanding
remuneration in the amount of EUR 201,000 corresponding to: the monthly salaries of March, April
and May 2020 in the amount of EUR 65,000 each, 4 instalments of the accommodation allowance in
the amount of EUR 1,500 each.
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REF 20-01323
13. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding
jurisprudence in this respect, the DRC decided to award the Claimant interest of 5% p.a. on the
outstanding moneys, to be calculated as follows:
-
Regarding the monthly salaries of March, April and May 2020, as from their respective due
dates, i.e. the first day of the following month;
-
Regarding the 4 instalments of the accommodation allowance, as from the date on which the
contract should have expired, i.e. as from 31 May 2020 until the date of effective payment.
14. In this respect, the Chamber explained that the reason for the interest of the accommodation
allowance to run as from the date on which the contract should have expired lies on the fact that the
Claimant failed to allocate the requested accommodation allowances and, hence, default interest
cannot be allocated to any specific month. Thus, the Chamber determined that interest should run as
from the contract’s ending date concerning the accommodation allowances.
15. In respect to the legal costs requested by the Claimant, the Chamber referred to its constant
jurisprudence and stressed that, in view of the international dimension of the disputes submitted to
the DRC whose legal costs in which the parties thereto eventually incur can broadly differ; and in view
of the absence of uniformed criteria regarding the estimated legal costs incurred by a party to a
proceeding held before FIFA´s deciding-bodies, legal costs requested by the parties shall be rejected.
13. Furthermore, taking into account the previous considerations, the Dispute Resolution Chamber
referred to par. 1 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.
16. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum
duration of three entire and consecutive registration periods.
17. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the relevant
bank details to the Respondent, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration periods shall
become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
18. Finally, the Dispute Resolution Chamber 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. 3 of the Regulations.
19. The DRC concluded its deliberations on the present matter by establishing that the claim of the
Claimant is partially accepted.
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REF 20-01323
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Wallace Reis da Silva, is partially accepted.
2.
The Respondent, Goztepe AS, has to pay to the Claimant outstanding remuneration in the amount of
EUR 201,000, plus interests, calculated as follows:
-
5% interest p.a. over the amount of EUR 65,000 as from 1 April 2020 until the date of effective
payment;
-
5% interest p.a. over the amount of EUR 65,000 as from 1 May 2020 until the date of effective
payment;
-
5% interest p.a. over the amount of EUR 65,000 as from 1 June 2020 until the date of effective
payment;
-
5% interest p.a. over the amount of EUR 6,000 as from 31 May 2020 until the date of effective
payment.
3.
Any further claim lodged by the Claimant is rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this decision
to [email protected], duly translated, if applicable, into one of the official FIFA languages (English,
French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three entire
and consecutive registration periods. The aforementioned ban mentioned will be lifted
immediately and prior to its complete serving, once the due amount is paid (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
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2.
In the event that the payable amount as per in this decision is still not paid by the end of the
ban of three entire and consecutive registration periods, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee.
7. The decision is rendered free of costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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:
Fédération Internationale de Football Association
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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