Dispute Resolution Chamber
Texto da decisão
REF FPSD-1831
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Neven Sobotic
COMPOSITION:
Clifford J. Hendel (USA) (France), Deputy Chairman
Muzammil bin Mohamed (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Neven Sobotic, Germany
Represented by Loizos Hadjidemetriou
RESPONDENT:
Denizlispor Kulübü Dernegi, Turkey
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I.
FACTS OF THE CASE
1.
On 18 September 2020, the German player, Neven Subotic (hereinafter: Claimant) and the
Turkish club, Denizlispor Kulübü Dernegi (hereinafter: Respondent) signed an employment
contract valid as from the date of signature until 31 May 2022.
2.
In accordance with the employment contract (clause 3), the Respondent undertook to pay
to the Claimant inter alia as follows:
Season 2020/2021: EUR 600,000 payable as follows:
EUR 67,000 due on 30.09.2020;
EUR 66,625 due on 30.10.2020;
EUR 66,625 due on 30.11.2020;
EUR 66,625 due on 31.12.2020;
EUR 66,625 due on 31.01.2021;
EUR 66,625 due on 28.02.2021;
EUR 66,625 due on 31.03.2021;
EUR 66,625 due on 30.04.2021;
EUR 66,625 due on 31.05.2021
Season 2021/2022: EUR 600,000 payable as follows:
EUR 60,000 due on 31.08.2021;
EUR 60,000 due on 30.09.2021;
EUR 60,000 due on 30.10.2021;
EUR 60,000 due on 30.11.2021;
EUR 60,000 due on 31.12.2021;
EUR 60,000 due on 31.01.2022;
EUR 60,000 due on 28.02.2022;
EUR 60,000 due on 31.03.2022;
EUR 60,000 due on 30.04.2022;
EUR 60,000 due on 31.05.2022.
3. By correspondence dated 5 January 2021, the Claimant put the Respondent in default of
payment of EUR 166,875, setting a time limit of 15 days expiring on 20 January 2021 in
order to remedy the default.
4. On 22 January 2021, the Claimant unilaterally terminated the contract with the Respondent
due to outstanding remuneration.
II.
PROCEEDINGS BEFORE FIFA
5.
On 19 February 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a.
The claim of the Claimant
6. According to the Claimant, from the start of the contractual relationship, the Respondent
failed to fully comply with its contractual obligations, whereas he was duly providing his
services for the Respondent from day one.
7. The Claimant adds that the September and October 2020 salaries were not paid in full by
the Respondent and the November and December 2020 salary were not paid at all.
8. Consequently, the Claimant submits that on 5 January 2021, he put the Respondent in
default of payment for the total outstanding amount of EUR 166,875, corresponding to the
full salaries of November and December 2020 (EUR 66,625 each), as well as the partial
salaries of September 2020 (EUR 7,000) and October 2020 (EUR 26,625).
9. The Claimant adds that by 20 January 2021 and despite the 15days’ deadline having expired,
the Respondent failed to pay the outstanding salaries. What is more, the Respondent did not
respond to the default notice, therewith showing a complete disregard for the Claimant and
refusing to solve the issue amicably.
10. As a result, the Claimant submits that on 22 January 2021, he unilaterally terminated the
contract with the Respondent.
11. The Claimant also submits that on 25 January 2021, he signed a new contract with the
Austrian club SCR Altach valid from the date of signature until 31 May 2021 for a total
amount of EUR 40,000 gross (EUR 10,000 per month).
12. According to the Claimant, it needs to be underlined that a gross salary of EUR 10,000 in
Austria corresponds to a monthly net salary of EUR 5,575 (note: document on file). Therefore,
according to the Claimant, the total net salary that he will earn as per his new contract with
the Austrian club, in the overlapping period, amounts to EUR 22,300 (4 x EUR 5,575).
13. As a result, the Claimant submits that the ‘mitigated compensation’ in the present matter is
EUR 910,825 (EUR 933,125 – EUR 22,300). However, he adds that since he terminated his
contract due to overdue payables, he would in principle also be entitled to 3 months salaries
as additional compensation in accordance with art. 17 RSTP.
14. With the above in mind, the Claimant adds that with the additional compensation, the overall
compensation granted would exceed the rest value of the prematurely terminated contract.
As a result, the Claimant requests that he be awarded the rest value of the contract as
compensation for breach of contract, i.e. EUR 933,125.
15.
The requests for relief of the Claimant were as follows:
EUR 166,875 as outstanding salaries from the relevant payment dates as follows;
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- EUR 7,000 as the remaining part of the September 2020 salary, plus 5% interest p.a. as
from 1 October 2020;
- EUR 26,625 as the remaining part of the October 2020 salary, plus 5% interest p.a. as
from 1 November 2020;
- EUR 66,625 as the salary for November 2020, plus 5% interest p.a. as from 1 December
2020;
- EUR 66,625 as the salary for December 2020, plus 5% interest p.a. as from 1 January
2021.
EUR 933,125 as the amount due as compensation for breach of contract, plus 5%
interest p.a. as from 23 January 2021 until the date of effective payment.
USD 5,000 as legal costs.
b.
Position of the Respondent
16. According to the Respondent, it already paid EUR 100,000 to the Claimant as follows:
- EUR 60,000 on 2 October 2020;
- EUR 40,000 on 1 December 2020.
17. Additionally, the Respondent rejected the Claimant’s request for compensation and added
that the Claimant signed a new contract with SCR Altach and therefore the amount of the
new contract should be deducted from the requested compensation, if any.
18. In conclusion, the Respondent requested that the DRC rejects all claims of the Claimant
and decide that the contract termination was without just cause and therefore no
compensation is due.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
19.
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 19 February 2021 and
submitted for decision on 3 June 2021. Taking into account the wording of art. 21 of the
January 2021 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.
20.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns
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an employment-related dispute with an international dimension between a German player
and a Turkish club.
21.
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 Player (edition February 2021), and
considering that the present claim was lodged on 19 February 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
22.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
23.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
24.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
25. 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 whether or not on 22 January
2021, the Claimant had a just cause to terminate the contract, in view of the alleged
outstanding salaries.
26. In this context, the Chamber acknowledged that it its task was to determine whether or not
on 22 January 2021, the Respondent was in arrears of its financial obligations towards the
Claimant and whether this could lead the Claimant to validly terminate the contract on said
date.
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27. In this respect, the Chamber took note that the Claimant argued that the Respondent owed
him outstanding remuneration in the amount of EUR 166,875, as outstanding partial salaries
for September and October 2020, and the full salaries for the months of November and
December 2020.
28. In continuation, the Chamber noted that the Respondent submitted that it had paid the
Claimant the amount of EUR 100,000 (EUR 60,000 on 2 October 2020 and EUR 40,000 on
1 December 2020). Additionally, the Respondent submitted that as a result of the foregoing
payments, the Claimant terminated his contract without just cause.
29. Analysing the foregoing argumentation, the Chamber took note of the fact that the Claimant
did not contest that the fact that the Respondent had paid EUR 100,000, but explained that
that this amount was not taken into account in his claim. As a result, according to the
Claimant, the payment of the amount of EUR 100,000 would therefore not affect the analysis
on whether or not there existed a just cause to terminate the contract on 22 January 2021.
30.
With the above in mind, the Chamber noted that it remained uncontested between the
parties that on the date of termination, i.e. 22 January 2021, almost 2.5 monthly salaries
remained outstanding. The Chamber also noted that the Claimant put the Respondent in
default of payment and provided it with 15 days to remedy its default, however to no avail.
31.
Based on the foregoing, the Chamber concluded that on the date of termination of the
contract, 22 January 2021, the Respondent was in serious violation of its financial and
contractual obligations towards the Claimant.
32.
In view of the above, the Chamber concluded that the Claimant terminated his contract
with just cause on 22 January 2021 and that the Respondent is to be held liable for the
early termination of the contract with just cause by the Claimant.
ii. Consequences
33. 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.
34. First of all, the Chamber decided - in accordance with the general legal principle of pacta
sunt servanda - the Respondent is liable to pay to the Claimant the amounts which were
outstanding under the contract at the moment of the termination..
35. In this respect, the Chamber concluded that the Claimant is entitled to outstanding
remuneration in the total amount of EUR 166,875, corresponding to the salaries due in the
period between September 2020 and December 2020.
36. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to
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award the Claimant interest at the rate of 5% p.a. on the outstanding amount of EUR
166,875 as follows
- on the amount of EUR 7,000 as from 1 October 2020;
- on the amount of EUR 26,625 as from 1 November 2020;
- on the amount of EUR 66,625 as from 1 December 2020;
- on the amount of EUR 66,625 as from 1 January 2021.
37. In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided that, in
accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay
compensation to the Claimant.
38. In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
39. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a 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.
40. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of the
employment contract on 22 January 2021, the contract would run for another 17 months,
in which a total amount of EUR 933,125 was still to be paid.
41. Consequently, taking into account the financial terms of the contract and the supplementary
agreement, the Chamber concluded that the remaining value of the contract as from its early
termination by the Respondent until the regular expiry of the contract amounts to EUR
933,125 and that such amount shall serve as the basis for the final determination of the
amount of compensation for breach of contract.
42. However, the Chamber also noted the fact that on 25 January 2021, the Claimant signed a
new contract with the Austrian club SC Rheindorf Altach valid from the date of signature to
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31 May 2021, according to which the Claimant was entitled to a total gross amount of EUR
40,000. The Chamber also noted that according to the documentation submitted by the
Claimant, he would receive a net amount of EUR 22,300 (5,575 per month x4).The Chamber
concluded that the Claimant was therefore able to mitigate his losses by a net amount of
EUR 22,300. Consequently, in accordance with the constant practice of the Dispute
Resolution Chamber and the general obligation of the Claimant to mitigate his damages,
such remuneration under the new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract.
43. With the above in mind, the Chamber determined that the Claimant is entitled to a mitigated
compensation in the amount of EUR 910,825.
44. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an additional compensation of three monthly
salaries, subject to the early termination of the contract being due to overdue payables. In
case of egregious circumstances, the additional compensation may be increased up to a
maximum of six monthly salaries, whereby the overall compensation may never exceed the
rest value of the prematurely terminated contract.
45. As the termination was due to overdue payables, the Chamber also took note of the fact
that the Claimant would in principle be entitled to additional compensation amounting to 3
monthly salaries in the amount of EUR 199,875 (EUR 66,625 x 3). However, the Chamber
noted that this would bring the total compensation awarded to the Claimant to EUR
1,110,700 (which would exceed the residual value of the contract).
46. In view of all of the above, the Chamber decided that the Respondent must pay the amount
of EUR 933,125 to the Claimant as compensation for breach of contract without just case,
which is considered by the Chamber to be a reasonable and justified amount as
compensation.
47. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to
award the Claimant interest at the rate of 5% p.a. on the amount of EUR 933,125 as of 19
February 2021 (the date of the claim).
48. Finally, the Chamber took note of the Claimant’s request for EUR 5,000 as legal costs and
determined that this request should be rejected in view of the Chamber’s jurisprudence and
due to a lack of a regulatory basis.
iii. Compliance with monetary decisions
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49.
Finally, taking into account the consideration under number 33 and 40 above, the Chamber
referred to par. 1 lit. 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.
50.
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.
51.
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.
52.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
53.
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
54.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
55.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
56.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
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1.
The claim of the Claimant, Neven Sobotic, is partially accepted.
2.
The Respondent, Denizlispor Kulübü Dernegi, has to pay to the Claimant, EUR 166,875 as
outstanding remuneration plus 5% interest p.a. until the effective date of payment as follows:
on the amount of EUR 7,000 as from 1 October 2020;
on the amount of EUR 26,625 as from 1 November 2020;
on the amount of EUR 66,625 as from 1 December 2020;
on the amount of EUR 66,625 as from 1 January 2021.
3. The Respondent has to pay the Claimant the amount of EUR 933,125 as compensation for
breach of contract, plus 5% interest p.a. as of 19 February 2021 until the effective date of
payment.
4. Any further claims of the Claimant are rejected.
5. Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
6. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
7. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
8. This decision is rendered without costs.
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 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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