Labour Disputes
Texto da decisão
REF FPSD-6254
Decision of the
Dispute Resolution Chamber
passed on 6 September 2022
regarding an employment-related dispute concerning the player
Ruben Tiago Rodrigues Ribeiro
BY:
Omar Ongaro (Italy), Deputy Chairperson
Stijn Boeykens (Belgium), member
Daan de Jong (the Netherlands), member
CLAIMANT:
Ruben Tiago Rodrigues Ribeiro, Portugal
Represented by Mr Pedro Macieirinha
RESPONDENT:
Hatayspor, Turkey
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REF FPSD-6254
I. Facts of the case
1.
In August 2020, the Portuguese player Ruben Tiago Rodrigues Ribeiro (hereinafter the
Claimant or the Player) and the Turkish club Hatayspor (hereinafter the Respondent or the
Club) concluded an Employment Agreement (hereinafter the Employment Agreement) valid
as from 18 August 2020 until 31 May 2022.
2.
In Clause 3 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed, inter alia, upon the following remuneration:
−
For the season 2020/2021, a net warranty fee of EUR 742,000.
−
For the season 2020/2021, a net warranty fee of EUR 742,000 payable as follows:
o
EUR 100,000 payable on 31 July 2021;
o
Monthly fees in the total amount of EUR 642,000, payable in the following
terms:
o
o
o
o
o
o
o
o
o
o
EUR 60,000 on 31 August 2021;
EUR 60,000 on 30 September 2021;
EUR 102,000 on 1 November 2021;
EUR 60,000 on 30 November 2021;
EUR 60,000 on 31 December 2021;
EUR 60,000 on 31 January 2022;
EUR 60,000 on 28 February 2022;
EUR 60,000 on 31 March 2022;
EUR 60,000 on 1 May 2022;
EUR 60,000 on 31 May 2022.
3.
Furthermore, in Clause 3 (3) lit. c) of the Employment Agreement, the parties established
that “two round economy class tickets” will be provided to the Player and his wife.
4.
On 1 May 2022, the Claimant put the Respondent in default, requesting three monthly
salaries for the season 2021/2022. The Claimant granted the Respondent a deadline of
15 days to pay the outstanding amounts, however, to no avail.
5.
On 17 May 2022, the Claimant terminated the Employment Agreement with the
Respondent.
6.
The Claimant did not sign any new contract for the relevant period of the month of
May 2022.
7.
On 1 September 2022, the Claimant confirmed to have received an amount of
EUR 120,000 from the Respondent.
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II. Proceedings before FIFA
8.
On 3 June 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:
Outstanding
− “Monthly fee overdue on 28.02.2022 in the amount of 60.000,00 € net;
−
Monthly fee overdue on 31.03.2022 in the amount of 60.000,00 € net;
−
Monthly fee overdue on 01.05.2022 in the amount of 60.000,00 € net.
−
Total amount of 180.000 00 € plus 5% interest since the due dates until effective
payment.”
Compensation:
− “60 000,00 € net for the salary overdue on 31.05.2022. plus interest at 5% rate since
the due dates until effective payment.”
Reimbursement
− “Condemn the Respondent Club to pay to the Claimant Player the amount of
USD 1 177,00 equal to 1 098, 77 € for the flight ticket from Istanbul- Turkey to Porto Portugal, pursuant Clause 3.3.c) of the contract (Exhibits 1 and 4), plus interest at 5%
rate since the due dates until effective payment.”
10. The Claimant based his claim on art. 14bis of the Regulations.
b. Position of the Respondent
11. Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 3 June 2022 and submitted
for decision on 6 September 2022. Taking into account the wording of art. 34 of the June
2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter the
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Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
13. 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 (July 2022 edition), 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.
14. 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 (July 2022 edition), and
considering that the present claim was lodged on 3 June 2022, the March 2022 edition of
said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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
16. 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
17. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the Claimant asserts that he had just cause to
terminate 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.
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18. In this context, the Chamber acknowledged that their 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.
19. 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).
20. The Chamber noted that the Claimant claimed not having received his remuneration
corresponding to three monthly salaries between February and April 2022. Furthermore,
the Chamber noted that for the respective months, the Claimant has provided written
evidence of having put the Respondent in default on 1 May 2022, i.e. at least 15 days
before unilaterally terminating the contract on 17 May 2022.
21. 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 and recalled that the allegations of the Claimant remained
uncontested by the Respondent.
22. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
23. Finally, the Chamber recalled that the Claimant requested the amount of USD 1,177 as a
reimbursement for flight tickets from Istanbul to Porto (May 2022).
24. In this respect, the DRC recalled Clause 3 (3) lit. c) of the Employment Agreement, in which
the parties established that “two round economy class tickets” will be provided to the Player
and his wife.
25. Taking into account that the flight tickets have been contractually stipulated between the
parties, the Claimant provided the necessary evidence of the incurred costs and the fact
that the claim remained uncontested by the Respondent, the Chamber concluded that
the amount of USD 1,177 shall be granted to the Claimant in line with the legal principle
pacta sunt servanda.
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ii. Consequences
26. 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.
27. 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 three salaries
under the contract, amounting to EUR 180,000, and USD 1,177 for the flight tickets.
28. Nonetheless, the Chamber recalled that on 1 September 2022, the Claimant informed
FIFA general secretariat that he received the amount of EUR 120,000, corresponding to
two monthly salaries of February and March 2022. The Chamber therefore decided to
deduct the already paid salaries from the outstanding amounts.
29. 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
EUR 60,000 corresponding to the outstanding salary of April 2022 and USD 1,177
corresponding to the reimbursement for the flight tickets.
30. 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 follows:
−
Over the amount of EUR 60,000 as from 2 May 2022 until the date of effective
payment;
−
Over the amount of USD 1,177 as from 8 May 2022 until the date of the effective
payment.
31. 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.
32. 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
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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.
33. 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.
34. 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 60,000 (i.e. the salary of May 2022) serves as the basis
for the determination of the amount of compensation for breach of contract.
35. 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.
36. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
37. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
38. Consequently, the Chamber decided that the club must pay the amount of EUR 60,000 to
the player, as the residual value of the contract.
39. 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 3 June 2022 until the date of effective payment.
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iii. Compliance with monetary decisions
40. 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.
41. 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.
42. 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.
43. 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.
44. 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
45. 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.
46. 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.
47. 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, Ruben Tiago Rodrigues Ribeiro, is partially accepted.
2.
The Respondent, Hatayspor, has to pay to the Claimant, the following amount(s):
- EUR 60,000 as outstanding remuneration plus 5% interest p.a. as from 2 May 2022 until
the date of effective payment;
- USD 1,177 as outstanding amount plus 5% interest p.a. as from 8 May 2022 until the date
of effective payment;
-lEUR 60,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 3 June 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.
6.
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.
7.
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).
CONTACT INFORMATION
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