Labour Disputes
Texto da decisão
REF FPSD-3690
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Hugo Rodallega
BY:
Frans DE WEGER (The Netherlands), Chairperson
Mario FLORES CHEMOR (Mexico)
Stefano SARTORI (Italy), member
CLAIMANT:
Hugo Rodallega, Colombia
RESPONDENT:
Denizlispor Kulübü Derneği, Turkey
REF FPSD-3690
I. Facts
1. On 22 August 2020, the player Hugo Rodallega and Denizlispor Kulübü Derneği concluded an
employment contract valid as from the date of signature until 31 May 2021.
2. Following clause 3.1 of the contract, the player was entitled to the following:
A)SALARY
The remaining balance of the player at the end of the 2019-2020 season is total of 400,000 Euros
(three hundred thousand). In this case, The Club undertakes to pay the PLAYER as follow:
The Club undertakes to pay the PLAYER the total NET Salary amount of NET 720.000 EURO (seven
hundred twenty thousand Euro) and additional 400.000 euro of from the remaining amount of
2019-2020 season payable as follows:
1. 100.000 EURO NET, DUE ON THE SIGNING DATE (From the remaining amount of2019-2020
season)
2. 102.000 EURO NET, DUE ON 3 1.08.2020 (30.000 euro of 102.000 is from the remaining amount
of 2019-2020 season)
3. 102.000 EURO NET, DUE ON 30.09.2020 (30.000 euro of 102.000 is from the remaining amount of
2019-2020 season)
4. 102.000 EURO NET, DUE ON 30.10.2020 (30.000 euro of 102.000 is from the remaining amount
of2019-2020 season)
5. 102.000 EURO NET, DUE ON 30. 11.2020 (30.000 euro of 102.000 is from the remaining amount
of 2019-2020 season)
6. 102.000 EURO NET, DUE ON 31.12.2020 (30.000 euro of 102.000 is from the remaining amount
of2019-2020 season)
7. 102.000 EURO NET, DUE ON 31.01.2021 (30.000 euro of 102.000 is from the remaining amount
of2019-2020 season)
8. 102.000 EURO NET, DUE ON 28.02.2021 (30.000 euro of 102.000 is from the remaining amount
of2019-2020 season)
9. 102.000 EURO NET, DUE ON 31.03.2021 (30.000 euro of 102.000 is from the remaining amount
of2019-2020 season)
10. 102.000 EURO NET, DUE ON 30.04.2021 (30.000 euro of 102.000 is from the remaining amount
of2019-2020 season)
11. 102.000 EURO NET, DUE ON 31.05.2021 (30.000 euro of 102.000 is from the remaining amount
of 2019-2020 season)
(…)
FIXED CURRENCY:
Parties agrees and undertakes that the amounts stipulated in this Contract is fixed to "1 EURO
exchange of 8,60 TL'' as of 18.08.2020. If due date payment of the amounts mentioned in the
Contract are higher than the fixed EUR rate, then the amounts shall be calculated in accordance with
the fixed EURO/TL rate (1 Euro = 8,60TL) and paid in EURO. However, if any due date of the payments
mentioned in the Contract are lower than the 8,60 TL for the EURO/TL exchange rate, then such
payment shall be made with the applicable EURO/TL rate. In other words, 1 EURO is accepted
maximum 8.60 TL. If 1 EURO is lower than 8.60 TL on a payment date, the player is going to be paid
directly as EURO without an calculation
3. The contract further stipulated the following:
REF FPSD-3690
Art. 3.2. A
"If the Player scores 10 goals in the Super League games, club w;// pay to player 100. 000-Euros"
(…)
Art. 3.2. E
"The club will buy a total of 5 (five) business class flight round trip tickets to Colombia country for
Player and his family for the season of2020-2021"
(…)
Art. 6
"Jn case the club fails into a default for any payment for more than sixty (60) days, the player shall
notify the club in writing and provide 15 days to the club for payment. If the club does not pay the
unpaid amount then the player has the option to terminate contract unilaterally. In this case the
player shall be entitled to take legal action before FIFA competent bodies in order to claim his
remuneration/compensation etc. "
4. On 16 April 2021, the player via his lawyer sent a default notice indicating the following:
“(…)
the below-mentioned fees which the Club is obligated to pay, have not been paid to my client
within the scope of the above-mentioned Contract.
- December Salary fee a total amount of 102.000 Euro to be paid until 31.12.2020
- January Salary fee a total amount of 102.000 Euro to be paid until 31.01.2021
- February Salary fee a total amount of 102.000 Euro to be paid until 28.02.2021
- March Salary fee a total amount of 102.000 Euro to be paid until 31.03.2021
In addition to these, the fees that my client was entitled to within the scope of the Contract for Super
League 2020/2021 season were not paid:
- 100.000 Euro bonus to be paid for scored 10 goals in the Super League pursuant to clause A of
article 2 of the Professional Football Player Contract,
3 (three) flight tickets paid by the client within the scope of the client's right of withdrawal
pursuant to clause D of Article 2 of the Professional Football Player Contract,
Within this framework, as of the date of this notice letter, my client has a total amount of 508,000-€
(five hundred eight thousand euro) + flight tickets overdue receivable from your club.
As a result, as of the notification date of this notice you have obligated to pay a total amount of
508.000€ (five hundred eight thousand euro) plus 3 (three) flight tickets to the client’s bank account in full
within 15 (fifteen) days.”
5. On 17 May 2021, the player sent a termination letter via his lawyer, with the following contents:
“In conclusion, since the above-mentioned overdue payments are not paid on time, we hereby
unilaterally terminated the 22.08.2020 dated Professional Football Player Contract with just cause
without prejudice to all our legal rights regarding the surplus in accordance with FIFA Regulations on
the Status and Transfer of Players and TFF Regulations and we notice you that you will be claimed for
the damages incurred overdue to this termination.”
6. On 24 September 2021, the player transferred out of contract to the Brazillian club, Bahia
7. On 16 September 2021, Hugo Rodallega lodged a claim before FIFA for breach of contract without
just cause and requested the total amount of EUR 1,054,031:
REF FPSD-3690
Outstanding remuneration:
EUR 102.000 as 30.12.2020 salary, plus 5% interest p.a. as from the due date;
EUR 102.000 as 31.01.2021 salary, plus 5% interest p.a. as from the due date;
EUR 102.000 as 28.02.2021 salary, plus 5% interest p.a. as from the due date;
EUR 102.000 (Overdue payable) 31.03.2021 salary, plus 5% interest p.a. as from the due date;
EUR 102.000 (Overdue payable) 31.04.2021 salary, plus 5% interest p.a. as from the due date;
EUR 102.000 (Remaining salary) 31.05.2021 salary, plus 5% interest p.a. as from the due date;
EUR 100.000 (Overdue payable) Super League 10 goals bonus as from 8 April 2021;
USD 36.031 (Overdue payable) 5 round trip flight tickets plus interest as from 31.05.2021;
EUR 306.000 (Additional Compensation) as Compensation for the breach of Contract
8. In addition, the player requested the payment of the legal costs.
9. In its reply to the claim, the club argued that the parties a specific exchange rate.
10. Consequently, the club explained that the player was paid as follows:
Payment
Payment
Fixed
Tables
Calculation
Date
Amount Currency
Turkish
Central
Bank
Currency
rate on
due date
22.08.2020 100.000 8.60
8.52
(Signing
Euros
date)
31.08.2020 102.000 8.60
8.72
102.000 Euros x 8.60/8.72=
Euros
(Annex-2)
30.09.2020 102.000 8.60
9.07
102.000 Euros x 8.6079.07=
Euros
(Annex-2)
30.10.2020 102.000 8.60
9.69
102.000 Euros x 8.60/9.69=
Euros
(Annex-3)
30.11.2020 102.000 8.60
9.32
102.000 Euros x 8.60/9.32=
Euros
(Annex-4)
31.12.2020 102.000 8.60
9.38
102.000 Euros x 8.60/9.38=
Euros
(Annex-5)
31.01.2021 102.000 8.60
8.86
102.000 Euros x 8.60/8.86=
Euros
(Annex-6)
28.02.2021 102.000 8.60
8.93
102.000 Euros x 8.60/8.93= | x
Euros
(Annex-7)
31.03.2021 102.000 8.60
9.76
102.000 Euros x 8.60/9.76= /
Euros
(Annex-8)
30.04.2021 102.000 8.60
9.94
102.000 Euros x 8.60/9.94=
Euros
(Annex-9)
31.05.2021 102.000 8.60
10.39
102.000 Euros x8.60/10.39=
Euros
(Annex-10)
Net
Receivable
in Eur
100.000
Euros
100.596
Euros
96.714
Euros
90.526
Euros
94.120
Euros
93.518
Euros
99.006
Euros
| 98.230
Euros
89.877
Euros
88.249
Euros
84.427
Euros
REF FPSD-3690
TOTAL :
950.836
EUROS
11. The club further explained that it paid the player as follows:
- 100.000 Euros on 2151 August 2020 (Annex-11)
- 90.700 Euros on 30th November 2020 (Annex-12)
- 9.300 Euros on 1st December 2020 (Annex-13)
- 105.300 Euros on 18th January 2021 (Annex-14)
- 52.650 Euros on 19th January 2021 (Annex-15)
- 52.000 Euros on 19th February 2021 (Annex-16)
- 51.340 Euros on 25th February 2021 (Annex-17)
TOTAL:461290EUROS
12. In view of the above, the club acknowledged a debt of EUR 489,546 (i.e. EUR 950,836-461,290).
13. As to the flight tickets, the club argued that that the club could buy the flight tickets upon request
of the player. However, according to the club, the player has never requested flight tickets neither
for himself nor for his family.
14. As to the payable compensation, the club underlined that the contract would have ended on 31
May 2021 and the player terminated the contract on 17 May 2021. Therefore, the club stated that
the rest value of the contract is equal to 84.427 Euros (Last salary of the player with the calculation
of fixed currency rate).
15. In his replica, the player highlighted that there is no dispute between the parties in this matter and
it is clear that the Contract is terminated by the Player with just cause.
16. The club further underlined that there is no objection of the Club regarding the 10 goal bonus
100.000 Euro
17. As to the receipts provided by the club, the player argued that the bank receipt of the 100.000
Euro payment made on 21 August 2020 belongs to a previous contract concluded by the parties.
18. In this regard, the player argued that the payments made by the Club to the Player regarding the
salaries arising from the 2020/2021 Contract are as follows:
- 90.700 Euro on 30.11.2020
- 8.550 Euro on 01.12.2020
100.000 Euro on 18.01.2021
- 50.000 Euro on 19.01.2021
- 50.000 Euro on 19.02.2021
- 50.000 Euro on 25.02.2021
TOTAL: 349.250 EURO
19. As a result, the player argued that the remaining balance is EUR 668,750 (i.e. 1,018,000-349,250).
20. Concerning the flight tickets, the player argued that “there was a long time of the Player to reguest
for buying 5 round tickets to Colombia from the Club until the Contract ends.”
REF FPSD-3690
21. In sum, the player requested the following:
- Order the Club to pay the Player the amount corresponding to EUR 668. 750 as the outstanding
salaries from the 2020/2021 season %5 interest plus Super League 10 goals bonus amount of EUR
100.000 with %5 interest;
- Order the Club to pay the Player the remaining last instalment of the Player's salary EUR 102.000 as
compensation for breach of the Contract without just cause by the Club;
- Order the Club to pay the Player the amount corresponding to EUR 306.000 as additional
compensation for breach ofthe Contract withoutjust cause by the Club;
- Order the Club to pay the Player the amount of flight ticket bonus USD 36.031 as
compensation for breach ofthe Contract without just cause by the Club
22. As final comments, the club considered that receivables of the player should be calculated
according to the chart in its first reply. According to the club, the total salary receivable of the
player should be equal to 950.836 Euros.
23. As a result, the club considered that the debt towards the player shall be calculated as follows:
950.836 Euros - 449.250 Euros = 501.586 Euros
24. The club insisted that the final compensation is limited by the residual value of the contract, i.e. EUR
84,427.
REF FPSD-3690
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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. Taking into account the wording
of art. 34 of the October 2021 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.
2.
Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. b) of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 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 Colombian player and a Turkish club.
3.
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 (August 2021 edition), and considering the
date when the present claim was lodged, the August 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
4.
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
5.
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 abovementioned 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.
A.
Main legal discussion and considerations
6.
The DRC first noted that, on 22 August 2020, the player Hugo Rodallega and Denizlispor Kulübü
concluded an employment contract valid as from the date of signature until 31 May 2021.
REF FPSD-3690
7.
Subsequently, the Chamber observed that the player lodged a claim before FIFA for outstanding
remuneration and breach of contract without just cause, noting that he terminated the contract
on 17 May 2021 due to the existence of a significant debt of the club towards him.
8.
In this respect, the Chamber referred to art. 14 of the Regulations, according to which “A contract
may be terminated by either party without consequences of any kind (either payment of
compensation or imposition of sporting sanctions) where there is just cause”
9.
On the other hand, the Chamber took note of the Respondent’s position, according to which it
acknowledged a debt of EUR 501 586 towards the player, while noted that it paid him as indicated
in point I 10 and 11 above.
10. In view of the above, the Chamber underlined that, under any circumstance, it is uncontested that
the club had a significant debt towards the player, which is equivalent in any case to more than
three monthly salaries.
11. Having taken into account the previous considerations, the Chamber decided that it could be
established that the Respondent had seriously neglected its contractual obligations towards the
Claimant in a continuous and constant manner, i.e. the Respondent had failed to remunerate the
Claimant for a substantial period of time. As a result, the Respondent is to be held liable for the
early termination of the contract.
B. Consequences
12. Having stated the above, the members of the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
13. The Chamber considered in this regard that it shall determine the exact debt of the Respondent
towards the Claimant at the date of termination of the contract, i.e. 17 May 2021.
14. In this respect, the Chamber carefully examined the documentation gathered during the course of
the investigation and considered that that the club sufficiently satisfied its burden of proof. As a
result, the player is entitled to the outstanding amount of 501,586 net, as acknowledged by the
club.
15. Moreover, the Chamber also took note of the Claimant’s request for bonus (10 goals at the Super
League), and observed that said remuneration was foreseen by art. 3.2 A of the contract. The
Chamber further noted that the Claimant satisfied his burden of proof in this regard, and therefore
established that, in accordance with the principle of pacta sunt servanda, he is entitled to EUR
100,000 in this respect.
16. In addition, the Chamber also noted that the player requested the amount of USD 36,031 for 5
round trip flight tickets.
REF FPSD-3690
17. Concerning said request, the Chamber observed that the Claimant sufficiently satisfied his burden
of proof, while also confirmed that said tickets were contractually stipulated in art. 3.2. E of the
contract. Hence, the Chamber also agreed to award the aforementioned amount of USD 36,031.
18. In addition, taking into account the player’s request as well as its longstanding jurisprudence in this
regard, the Chamber decided to award 5% interest p.a. over the outstanding amounts as from the
due dates until the date of effective payment.
19. 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. 501,586 net (salaries), EUR
100,000 (bonus) and USD 36,031 (flight tickets).
20. 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.
21. In application of the relevant provision, the Chamber held that it first of all had to clarify 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.
22. 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.
23. Consequently, the Chamber determined that the amount of compensation payable by the Claimant
to the Respondent 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.
24. 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 term.
Consequently, the Chamber concluded that the amount of EUR 102,000 net (i.e. the salary of May
2021, considering that the contract was terminated on 17 May 2021 and it would end on 31 May
REF FPSD-3690
2021) serves as the basis for the determination of the amount of compensation for breach of
contract.
25. In continuation, the Chamber verified 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 Chamber 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. In this respect, the Chamber observed
that the player only joined a new club on 24 September 2021, i.e. after the original date of
expiration of the contract with the Respondent.
26. In addition, the Chamber referred to art. 17 par. 1 ii, according to which “the overall compensation
may never exceed the rest value of the prematurely terminated contract.”
27. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided to partially accept the player’s claim and that the club must pay
the amount of EUR 102,000 as compensation for breach of contract in the case at hand.
28. In addition, taking into account the Claimant’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent must pay to
the Claimant interest of 5% p.a. on the aforementioned amount as of the date of the claim.
C. Compliance with monetary decisions
29. 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.
30. In this regard, the Chamber 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.
31. Therefore, bearing in mind the above, the Chamber decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the decision,
failing which, at the request of the creditor, 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 club in accordance with art. 24 par. 2, 4, and 7 of the
Regulations.
REF FPSD-3690
32. The 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. 24 par. 8 /of the
Regulations.
33. As to the costs, 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.
34. 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.
35. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-3690
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Hugo Rodallega, is partially accepted.
2.
The Respondent, Denizlispor Kulübü Derneği, has to pay to the Claimant, the following
amounts:
- EUR 501 856 net as outstanding remuneration, plus interest as follows
- 5% interest p.a. over the amount of EUR 93,856 as from 1 February 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 102 000 as from 1 March 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 102 000 as from 1 April 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 102 000 as from 1 May 2021 until the date of effective payment;
- 5% interest p.a. over the amount of EUR 102 000 as from 1 June 2021 until the date of effective payment;
- EUR 100 000 net as outstanding remuneration (bonus) plus 5% interest p.a. as from 8 April
2021 until the date of effective payment;
- USD 36,031 as additional outstanding remuneration (flight tickets)
- EUR 102,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 16 September 2021 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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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
REF FPSD-3690
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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