Labour Disputes
Texto da decisão
REF FPSD-5691
Decision of the
Dispute Resolution Chamber
passed on 19 May 2022
regarding an employment-related dispute concerning the player Paulina
Sarkanaite
BY:
Omar Ongaro (Italy), Chairperson
Stefano Sartori (Italy), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Paulina Sarkanaite, Lithuania
Represented by Vadim Lyubinskiy
RESPONDENT:
Fomget Genclik ve Spor, Turkey
Represented by Arda Zenginpedük
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I.
Facts of the case
1.
On 19 February 2022, the Lithuanian player Paulina Sarkanaite (hereinafter: the player) and
the Turkish club Fomget Genclik ve Spor (hereinafter: the club) concluded an employment
contract (hereinafter: the contract), valid between 15 February and 15 June 2022, based on
which she was entitled to receive a monthly salary of USD 900.
2.
On 3 March 2022, according to the player, the club verbally informed the player that the club
no longer needed her services and thus unilaterally terminated the contract of the player.
3.
On 26 March 2022, the player put the club in default for the outstanding salary of USD 900
for March 2022, providing it with a 10 days’ deadline to remedy its default, however to no
avail as until 25 March 2022 said salary remained unpaid.
4.
After the alleged unilateral termination of the contract, the player, on 27 March 2022, signed
a new contract with the Lithuanian club FC Hegelmann, however, according to the player,
she did not sign a professional contract with said club and is not entitled to any salary
payments during her stay at said club.
II. Proceedings before FIFA
5.
On 6 April 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
6.
In her claim, the player explains that the club promised to pay her a salary of USD 900 directly
after the termination of the contract on 3 March 2022, however this payment was never
effectively made.
7.
The requests for relief of the Claimant, as amended, were the following:
•
compensation for breach of contract in the total amount of USD 3,600, i.e. the 4
monthly salaries for the period between 15 February and 15 June 2022, plus 5%
interest p.a. as from 25 March 2022.
b. Position of the club
8.
In its reply, the club argued that the player joined the club’s training session on 22 February
2022, however that on 3 March 2022, its coach informed the player that they were not happy
with the player’s performance. In this respect, the club provided a screenshot of a WhatsApp
conversation.
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9.
What is more, the club explains that via WhatsApp in the period between 3 and 5 March
2022, the club, the player and her agent agreed that the club would pay one salary plus the
costs a flight ticket to the player, and that the parties would stop working together.
10. The club explains that it bought a flight ticket for the player on 6 March 2022 from Ankara
to Budapest and, that the amount of USD 900 would be paid on 10 April 2022.
11. In addition, the club explained that based on the foregoing, the contract is terminated by
mutual consent, mainly because the player herself wanted to leave. What is more, the club
deems that since the player had breached the mutual agreement and signed a new contract
with Hegelmann after only staying one week at the club, she is not entitled to any
compensation.
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 6 April 2022 and submitted for decision on
19 May 2022. 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 (March 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 Lithuanian 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 (March 2022 edition), and
considering that the present claim was lodged on 6 April 2022, 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
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
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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 parties strongly dispute there or not there was a unilateral
termination of the contract, or whether the parties had agreed on a mutual termination of
the contract.
18. In this context, the Chamber acknowledged that it its task was to determine whether the
contract concluded between the parties was unilaterally by terminated by one of the parties,
and if so, what the consequences of said termination would be, or whether the parties had
agreed on a mutual termination of the contract.
19. From the information provided by the parties, the members of the Chamber noted that on 3
March 2022, the club informed the player’s agent that it was not happy with the player’s
performance and that it wished to no longer make use of her services. Additionally, taking
into account the messages allegedly shared between the parties via WhatsApp, the members
of the Chamber noted that the club and the player’s agent allegedly negotiated on the
conditions for a possible leave of the player. The Chamber was of the firm opinion that the
arrangements allegedly made by the parties were not unequivocally clear.
20. Moreover, the members of the Chamber noted that the club eventually did not make any
payment at all to the player, despite it aimed at agreeing with the player’s agent that an
amount of USD 900 would be paid to the player.
21. Taking into account the above circumstances, the members of the Chamber deemed that it
could not be established that the parties had agreed on a mutual termination of the contract.
22. As a consequence, the members of the Chamber deemed that the club, by informing the
player on 3 March 2022 that her performance was not satisfying and that it did not longer
needed her services, had terminated the contract without just cause on 3 March 2022. As a
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result, the player is in principle entitled to outstanding remuneration and compensation for
breach of contract.
ii. Consequences
23. 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 club
24. The Chamber observed that at the time of termination, there were no salaries outstanding,
as a result of which, no outstanding remuneration shall be awarded to the player.
25. 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.
26. 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.
27. 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.
28. 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 USD 3,600 (i.e. 4 monthly salaries of USD 900 for the period between 15
February and 15 June 2022) serves as the basis for the determination of the amount of
compensation for breach of contract.
29. 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
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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.
30. Indeed, the player found employment with the Lithuanian club FC Hegelmann, however, the
members of the Chamber noted that the player explained that she did not sign a professional
contract with said club and is therefore not entitled to any salary payments during her stay at
the club. As a result, the Chamber decided that no mitigation shall be applied in the matter
at hand.
31. 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.
32. In the case at hand, the Chamber however confirmed that it was in fact the club which had
terminated the contract, as well as that the overall amount of compensation can never exceed
the residual value of the contract. Therefore, the DRC decided to not award any additional
compensation to the player.
33. Consequently, on account of all of the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of USD 3,600
to the player, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
34. 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 6 April 2022 until the date of effective payment.
iii. Compliance with monetary decisions
35. 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.
36. 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.
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37. Therefore, bearing in mind the above, the DRC 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 player, 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.
38. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
39. 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
40. 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.
41. 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.
42. 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, Paulina Sarkanaite, is partially accepted.
2.
The Respondent, Fomget Genclik ve Spor, has to pay to the Claimant, the following
amount(s):
- USD 3,600 as compensation for breach of contract without just cause, plus 5% interest p.a.
as from 6 April 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.
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
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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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