Labour Disputes
Texto da decisão
REF FPSD-2486
Decision of the
Dispute Resolution Chamber
passed on 8 October 2021
regarding an employment-related dispute concerning the player Angelo
Nicolas Sagal Tapia
COMPOSITION:
Clifford J Hendel (USA) (France), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Daan de Jong (the Netherlands), member
CLAIMANT:
Angelo Nicolas Sagal Tapia, Chile
Represented by Ercan Sevdimbaş
RESPONDENT:
Denizlispor Kulubu, Turkey
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I.
Facts of the case
1.
On 1 September 2020, the Chilean player, Angelo Nicolas Sagal Tapia (hereinafter: the
Claimant), and the Turkish club, Denizlispor Kulubu (hereinafter: the Respondent) signed an
employment contract valid as from 1 September 2020 to 31 May 2022.
2.
Pursuant to clause 3 of the contract, for the 2020-2021 season, the Claimant was entitled to
a total net salary of EUR 600,000 net, payable as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
3.
EUR 100,000 net on date of signature;
EUR 50,000 net on 31 August 2020;
EUR 50,000 net on 30 September 2020;
EUR 50,000 net on 31 October 2020;
EUR 50,000 net on 30 November 2020;
EUR 50,000 net on 31 December 2020;
EUR 50,000 net on 31 January 2021;
EUR 50,000 net on 28 February 2021;
EUR 50,000 net on 31 March 2021;
EUR 50,000 net on 30 April 2021;
EUR 50,000 net on 31 May 2021.
In accordance with clause 3 of the contract, the Respondent undertook to pay to the Claimant
for the 2021-2022 season, a total net salary of EUR 600,000 net, payable as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
EUR 60,000 net on 31 August 2021;
EUR 60,000 net on 30 September 2021;
EUR 60,000 net on 31 October 2021;
EUR 60,000 net on 30 November 2021;
EUR 60,000 net on 31 December 2021;
EUR 60,000 net on 31 January 2022;
EUR 60,000 net on 28 February 2022;
EUR 60,000 net on 31 March 2022;
EUR 60,000 net on 30 April 2022;
EUR 60,000 net on 31 May 2022.
4.
By correspondence dated 18 April 2021, the Claimant put the Respondent in default of
payment of the amount of EUR 160,000 net, corresponding to outstanding salaries of
December 2020 (EUR 10,000 net), January 2021 (EUR 50,000 net), February 2021 (EUR
50,000- net) and March 2021 (EUR 50,000 net), granting it a 15 days deadline to comply.
5.
According to the Claimant, he concluded an employment contract with the Turkish club,
Gaziantep Futbol Kulubu A.S., valid from 17 June 2021 to 31 May 2023, entitling the
Claimant to a total net salary of EUR 610,000 net for the 2021-2022.
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II. Proceedings before FIFA
6.
On 10 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. Position of the Claimant
7.
According to the Claimant, the Respondent consistently failed to comply with its financial
contractual obligations.
8.
The Claimant further indicated that, the Respondent failed to make any attempt to amicably
settle the matter, as a result, the Claimant - on 5 May 2021 - unilaterally terminated his
contract with the Respondent with just cause and with immediate effect.
9.
The requests for relief of the Claimant, were the following:
(a) that the Respondent pay to the Claimant his outstanding remuneration in the amount of
EUR 210,000 [outstanding salaries of December 2020 (EUR 10,000), January 2021 (EUR
50,000), February 2021 (EUR 50,000), March 2021 (EUR 50,000) and April 2021 (EUR
50,000)], plus 5% interest p.a. from the respective due dates until the date of effective
payment;
(b) that the FIFA DRC make a decision that the unilateral termination of the contract by the
Claimant was with just cause;
(c) that the Respondent pay to the Claimant compensation of EUR 650,000 (residual value
of the contract) plus 5% interest p.a. from the termination date i.e. 5 May 2021 until the
date of effective payment;
(d) that the Respondent pay additional compensation of EUR 150,500 plus 5% interest p.a.
from the termination date of 5 May 2021 until the date of effective payment; and
(e) that the judicial costs and the attorney fees of the Claimant be paid by the Respondent.
b. Position of the Respondent
10. In its reply to the claim the Respondent, did not contest the allegations of the Claimant but
merely mentioned that the Claimant had a duty to mitigate his damages and stipulated the
following:
“while the compensation is calculated the value of the new contract should be considered.
As you may know the transfer season is open in many countries between the June and the
September. The player has a chance to sign a new employment contract with a club in this
period. In this regard, we kindly request the DRC to delay the meeting date from 2 of August
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2021 to the end of September. In this way, the DRC will be able to review of the new
employment contract of the player and make a fair calculation for a possible compensation”
11. In conclusion, the Respondent requested for the rejection of all the claims of the Claimant.
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 10 May 2021 and submitted for decision
on 8 October 2021. 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.
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 (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 Chilean 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 (August 2021 edition), and
considering that the present claim was lodged on 10 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
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
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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 DRC moved to the substance of the matter, and
took note of the fact that on 1 September 2020, the Claimant and the Respondent concluded
an employment contract valid from 1 September 2020 to 31 May 2022.
18. The DRC observed that the Claimant lodged a claim in front of FIFA against the Respondent,
asserting that the Respondent had not fulfilled its contractual obligations towards him. More
specifically, the Claimant indicated that the Respondent had failed to pay his salaries for the
months of December 2020 and January to April 2021, which were still outstanding at the
date of termination of the contract, i.e. 5 May 2021.
19. In this context, the Chamber acknowledged that it its task was to determine whether the
contract was terminated by the Claimant with or without just cause and to decide on the
consequences thereof.
20. The DRC took note that the Respondent, in its reply to the claim did not contest the
allegations of the Claimant, it only argued that the Claimant has a duty to mitigate his
damages and that the value of a new contract of employment which the Claimant could
possibly conclude has to be taken into account in the calculation of compensation.
21. As a result of the foregoing, the DRC concluded that the Respondent had to fulfil the
contractually agreed financial obligations as per the contract, which it failed to do. As a result,
it seriously neglected its financial obligations towards the Claimant.
22. Following the aforementioned line of reasoning, the members of the Chamber concluded
that the Respondent was in arrears of its financial obligations for a significant period of time.
23. The DRC furthermore noted that the Claimant had put the Respondent in default of payment
of more than two salaries, granting the latter with a deadline of 15 days to remedy its breach,
to no avail, having subsequently terminated the contract following the cited default notice.
24. As a result, the termination of the contract by the Claimant on 5 May 2021 was in the opinion
of the members of the Chamber made with just cause based on art. 14bis of the Regulations,
and therefore, the Respondent is to be held liable for the consequences thereof.
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ii. Consequences
25. 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
and concurred that the Respondent must fulfil its obligations in accordance with the general
legal principle of “pacta sunt servanda”.
26. Consequently, the DRC decided that the Respondent is liable to pay to the Claimant his
outstanding remuneration, in the amount of EUR 210,000 net, corresponding to:
(a)
(b)
(c)
(d)
(e)
EUR 10,000 net – as salary payment due on 31 December 2020;
EUR 50,000 net – as salary payment due on 31 January 2021;
EUR 50,000 net – as salary payment due on 28 February 2021;
EUR 50,000 net – as salary payment due on 31 March 2021; and
EUR 50,000 net – as salary payment due on 30 April 2021.
27. Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the DRC decided to award 5% interest p.a. on the above amounts from
the respective due dates until the date of effective payment.
28. 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.
29. 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.
30. 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.
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31. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded
with the calculation of the monies payable to the Claimant 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 650,000 net (i.e. the residual value of the contract in the
period between 6 May 2021 and 31 May 2022) serves as the basis for the determination of
the amount of compensation for breach of contract.
32. 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.
33. The DRC remarked that following the early termination of the employment contract at the
basis of the present dispute, the Claimant concluded a new employment contract with
Gaziantep Futbol Kulubu A.S valid for the period 17 June 2021 to 31 May 2023, with an
advance payment of EUR 100,000 net and a monthly salary of EUR 51,000 net. For the
overlapping period, this corresponds to EUR 610,000 net (June 2021 to May 2022), which
shall be deducted from the remaining value of the contract.
34. 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.
35. In this respect, the DRC decided to award to the Claimant as additional compensation, the
amount of EUR 180,000 net, i.e. three times the monthly remuneration of EUR 60,000 the
Claimant was entitled to.
36. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the Respondent must pay the amount of EUR
220,000 to the Claimant (i.e. EUR 650,000 net minus EUR 610,000 net plus EUR 180,000
net), which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
37. Lastly, 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 on said
compensation at the rate of 5% p.a. as of 10 May 2021 until the date of effective payment.
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38. Furthermore, the DRC rejected any claim for legal expenses and procedural compensation in
accordance with art. 25 par. 8 of the Procedural Rules and the respective longstanding
jurisprudence in this regard.
39. The DRC concluded its deliberations in the present matter by establishing that any further
claim lodged by the Claimant is rejected.
iii. Compliance with monetary decisions
40. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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. 24bis 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. 24bis 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.
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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, Angelo Nicolas Sagal Tapia, is partially accepted.
2.
The Respondent, Denizlispor Kulubu, has to pay to the Claimant, the following amounts:
(a)
EUR 210,000 net as outstanding remuneration plus 5 % interest p.a. from the
respective due dates until the date of effective payment as follows:
-
(b)
on the amount of EUR 10,000 net as from 1 January 2021;
on the amount of EUR 50,000 net as from 1 February 2021;
on the amount of EUR 50,000 net as from 1 March 2021;
on the amount of EUR 50,000 net as from 1 April 2021; and
on the amount of EUR 50,000 net as from 1 May 2021
EUR 220,000 net as compensation for breach of contract plus 5% interest p.a. from
10 May 2021.
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. 24bis 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 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
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. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
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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 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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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