Labour Disputes
Texto da decisão
REF. FPSD-9476
Decision of the
Dispute Resolution Chamber
passed on 29 November 2023
regarding an employment-related dispute concerning
the player Luiz Adriano Souza Da Silva
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia) , member
Laurel Vaurasi (Fiji) , member
CLAIMANT:
Luiz Adriano Souza Da Silva , Brazil
Represented by Tannuri Ribeiro Advogados
RESPONDENT:
Antalyaspor Spor, Türkiye
Represented by Ayca Kucuk
pg. 2
REF. FPSD-9476
I.
Facts of the case
1.
On 4 February 2023, the Brazilian player, Luiz Adriano Souza da Silva (hereinafter: Claimant or player)
and the Turkish club, Antalyaspor Spor (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from 4 February 2021 until 31 May 2023.
2.
According to art.3 of the contract, the club undertook to pay the player, the following remuneration:
“2021/2022 Season
The Player shall be paid 500.000,00-Euro net (Five hundred thousand Euro) for the 2021/2022
Season in accordance with the following schedule:
28.02.2022
125.000,00 Euro
31.03.2022
125.000,00 Euro
30.04.2022
125.000,00 Euro
31.05.2022
125.000,00 Euro
2022/2023 Season
The Player shall be paid 1.000.000,00-Euro Net (one million euros) for the 2022/2023
Season in accordance with the following schedule:
3.
31.08.2022
100.000.00 Euro
30.09.2022
100.000,00 Euro
31.10.2022
100.000,00 Euro
30.11.2022
100.000,00 Euro
31.12.2022
100.000,00 Euro
31.01.2023
100.000,00 Euro
28.02.2023
100.000,00 Euro
31.03.2023
100.000,00 Euro
30.04.2023
100.000,00 Euro
31.05.2023
100.000,00 Euro
On 12 December 2022, the player put the club in default and requested payment of his salaries for
the months of September until November 2022 in the total amount of EUR 300,000 net, granting it
a 15-day deadline, however to no avail.
4.
On 4 February 2023, the player sent a second default notice to the club and requested payment of
his salaries for the months of October 2022 until January 2023 in the total amount of EUR 400,000
net, granting it a 15-day deadline, however to no avail.
5.
On 20 February 2023, the player terminated the contract with the club.
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REF. FPSD-9476
6.
On 20 February 2023, the club made a partial payment in the amount of EUR 100,000 to the player.
7.
On 23 February 2023, “the Turkish Football Federation (TFF) declared, in its response to the Letter of
Termination, that the employment relationship between the Player and the Club was no longer valid or
binding. In other words, the status of the Player had converted into a so-called free agent player”.
8.
On 20 February 2023, the player signed an employment contract with the Brazilian club, S.C.
Internacional, valid as 20 February 2023 until 31 December 2023, including a monthly salary of
(Brazilian Real) R$ 180.000,00.
II. Proceedings before FIFA
9.
On 2 March 2023, 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 Player
10. The player argued that on the basis that 4-monthly salaries were outstanding, evidently it is a valid
reason (or just cause) for the Player to terminate the contract unilaterally.
11. The requests for relief of the Claimant, as amended, were the following:
“FIRST – To uphold the entire claim filed by the Player.
SECOND – To issue a finding that the Club breached the Employment Contract and that the Player
terminated the Employment Contract unilaterally but with undisputed just cause.
THIRD – To order the Club to pay the Player EUR 1,523.97 net due as default interest considering the
period between 1 November 2022 and 20 February 2023 under which the monthly salary of October
2022 remained outstanding.
FOURTH – To order the Club to pay the Player EUR 100,000 net due as outstanding remuneration plus
interest at a rate of 5% p.a. as of 1 December 2022 until the date of effective payment.
FIFTH – To order the Club to pay the Player EUR 100,000 net due as outstanding remuneration plus
interest at a rate of 5% p.a. as of 1 January 2023 until the date of effective payment.
SIXTH – To order the Club to pay the Player EUR 100,000 net due as outstanding remuneration plus
interest at a rate of 5% p.a. as of 1 February 2023 until the date of effective payment.
SEVENTH – To order the Club to pay the Player EUR 400,000 plus interest at a rate of 5% p.a. as of 21
February 2023 until the date of effective payment as compensation (cf. Art. 17, par. 1 and par. 2 of the
FIFA RSTP);
EIGHTH – To ban the Club from registering any new players, either national or internationally, for 2
(two) entire and consecutive registration periods (cf. Art. 17, par. 4 of the FIFA RSTP).
NINTH – To open the proceedings regarding the present dispute and notify the Club immediately (cf.
Art. 6, par. 3 and Art. 9, par. 5 of the FIFA Procedural Rules).
TENTH – To impose (if it is necessary or the case) applicable sanctions on the Club (cf. Art. 24bis of the
FIFA RSTP); and
ELEVENTH – To confirm that the ongoing proceedings is free of any costs”.
pg. 4
REF. FPSD-9476
b. Position of the Club
12. In its reply, the club mentioned that it paid an amount of EUR 100,000 on 16 December 2022 to the
player.
13. The club mentioned that on 26 December 2022, the player signed a document, inter alia, mentioning:
“I sent a legal warning to your Club on December 12, 2022, for my accumulated receivables. However, I
hereby declare that as a result of the meetings I had with your Club authorities, I gave up the legal warning.
Moreover, I will not make any actions about December 12,2022 legal warning against Club (Annex 4 – the
Document Signed by the Claimant Dated 26 December 2022).”
14. The club indicated that in light of the aforesaid the player renounced the first default notice sent.
15. Following the second default notice, the club argues that the player, “that the Claimant had
terminated the Contract one day before the end of the deadline given by himself in accordance with Article
14bis of the RSTP and he signed a new contract with the Internacional. Therefore, the Claimant did not
follow the procedure articulated in Article 14bis of the RSTP and did not terminate his contract with just
cause.”
16. In this context the club indicate that the player did not terminate his contract with the club in
accordance with art.14bis as he failed to meet the requirements of the said article, hence terminates
his contract without just cause.
17. The club highlighted its reasons for the non-applicability of art.14bis and mentioned the following:
“The first notification of outstanding salaries was renounce by the Claimant and cannot be considered a
legal basis fore termination of the contract according to Article 14bis of the RSTP.
The Claimant did not respect the 15 days deadline set forth in Article 14bis of the RSTP and terminated
the Contract before the end of the deadline.
The Claimant should have sent the notice of termination via Notary to the official Club address according
to Articles 3 and 5 of the Contract between the parties.”
18. Additionally, the club claims that the player upon submission of his termination did not follow the
procedure set out in the regulations of the Turkish Football Federation (TFF).
19. The club concluded as follows:
“As we have established with this petition:
1) The Claimant's claim on terminating the Contract under Article 14bis is incorrect. The Claimant did
not terminate his contract with just cause under the RSTP. Therefore, all of his claims must be
dismissed.
pg. 5
REF. FPSD-9476
2) The Claimant's claims under Article 17 of the RSTP are invalid and the Claimant is not entitled to any
sort of compensation. On the contrary the Claimant owes the Club compensation under Article 17
because he unlawfully terminated his Contract. And even if the Esteemed Chamber considers the
Claimant is entitled to compensation under Article 17, the Claimant's demands are excessive.
3) The Claimant's request for sporting sanctions under Article 17 of the RSTP to be applied on the Club
is unlawful and should be dismissed.
4) The sanctions the Claimant requested under Article 24 of the RSTP are not applicable against the Club
in the current case.
5) The Club's rights and requests which we submit with our submissions of counterclaim are reserved.”
20. On 9 May 2023, FIFA administration requested the Respondent to complete its counterclaim by 15
May 2023, however the counterclaim was completed outside of the relevant deadline on 7 June
2023, therefore the counterclaim lodged by the club, did not comply with the mandatory formalities
established in art.18 par.1 of the Procedural Rules.
c.
Additional Comments of the Player
21. The Claimant confirmed receipt of the payment made by the Respondent on 16 December 2022 in
the amount of EUR 100,000, which related to his salary of September 2022, however he salary for
October and November remain outstanding.
22. As to the allegation of the club relating to the termination letter, the player argued that “it is
unquestionable that due to the substantial and repeated breaches of the financial obligations by the Club,
the Player’s confidence in the further continuation of the employment relationship was legitimately lost.
55. Therefore, it is undisputed that the Player had just cause to terminate the Employment Contract in the
way that he did, respecting and being under the Art. 14 and Art. 14bis of the FIFA RSTP. “
23. In conclusion the player reiterated his request for relief as follows:
“FIRST – To uphold the claim filed by the Player;
SECOND – To reject the Counterclaim;
THIRD – To issue a finding that the Club breached the Employment Contract and that the Player
terminated the Employment Contract unilaterally but with undisputed just cause;
FOURTH – To order the Club to pay the Player EUR 1,523.97 net due as default interest considering the
period between 1 November 2022 and 20 February 2023 under which the monthly salary of October
2022 remained outstanding;
FIFTH – To order the Club to pay the Player EUR 100,000 net due as outstanding remuneration plus
interest at a rate of 5% p.a. as of 1 December 2022 until the date of effective payment;
SIXTH – To order the Club to pay the Player EUR 100,000 net due as outstanding remuneration plus
interest at a rate of 5% p.a. as of 1 January 2023 until the date of effective payment;
SEVENTH – To order the Club to pay the Player EUR 100,000 net due as outstanding remuneration plus
interest at a rate of 5% p.a. as of 1 February 2023 until the date of effective payment;
EIGHTH – To order the Club to pay the Player EUR 400,000 plus interest at a rate of 5% p.a. as of 21
February 2023 until the date of effective payment as compensation (cf. Art. 17, par. 1 and par. 2 of the
FIFA RSTP);
pg. 6
REF. FPSD-9476
NINTH – To ban the Club from registering any new players, either national or internationally, for 2
(two) entire and consecutive registration periods (cf. Art. 17, par. 4 of the FIFA RSTP);
TENTH – To impose (if it is necessary or the case) applicable sanctions on the Club (cf. Art. 24bis of the
FIFA RSTP); and
ELEVENTH – To confirm that the ongoing proceedings is free of any costs.”
pg. 7
REF. FPSD-9476
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
24. 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 2 March 2023 and submitted for decision on 29
November 2023. Taking into account the wording of art. 34 of the March 2023 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.
25. 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 May 2023 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 Brazilian player and a Turkish club.
26. 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 (May 2023 edition), and considering that the
present claim was lodged on 2 March 2023, the March 2023 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
27. 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
28. 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.
i. Main legal discussion and considerations
29. 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 the justice of the early termination of the
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REF. FPSD-9476
contract by the Claimant, based on the alleged non-payment of certain financial obligations by the
Respondent.
30. In this context, the Chamber acknowledged that its 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.
31. The Chamber took note that the club argued that (i) the player terminated the contract without
respecting the time limit of the final notice of default and Art. 14 bis of the Regulations; (ii) that the
player did not terminate the contract with just cause, and therefore claims a compensation from
the player and for sanctions to be imposed and (iii) that the player did not follow the procedure set
out in the TFF Regulations.
32. 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).
33. The Chamber noted that the Claimant claims not having received his remuneration corresponding
to October 2022 until January 2023. Furthermore, the Chamber noted that the Claimant has
provided written evidence of having put the Respondent in default on 4 February 2023, i.e., at least
15 days before unilaterally terminating the contract on 20 February 2023.
34. The Chamber 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.
Nonetheless, the evidence provided by the Respondent namely partial payment in the amount EUR
100,000 does not prove beyond doubt the payment of the amounts claimed as outstanding by the
Claimant.
35. As to the argument of the Respondent that the requirements of art.14bis was not met, in this context
the Chamber deemed that the Respondent had repeatedly and for a significant period of time been
in breach of its contractual obligations towards the Claimant and at the date of termination, 3
monthly salaries were outstanding.
36. Moreover, the Chamber highlighted that the Respondent did not dispute owing the monies sought
by the Claimant, it only partially cured its default by making a payment of EUR 100,000 equivalent
to one month’s salary on date of termination i.e., 20 February 2023.
37. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14 of the Regulations.
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REF. FPSD-9476
38. For the sake of completion, the Chamber addressed the statement of the Respondent in that the
alleged procedure of the TFF was not followed.
39. By referring to article 13 par. 5 of the Procedural Rules, the Chamber was firm to determine that the
Respondent failed to provide any substantiating documentation to substantiate its statement. As a
consequence, the Chamber decided that the Respondent’s position in this regard could not be
upheld.
40. In conclusion the Chamber highlighted that the counterclaim of the club did not comply did not
comply with the mandatory formalities established in art.18 par.1 of the Procedural Rules, therefore
its considered moot, the submission filed outside of the time limit shall be disregarded.
ii. Consequences
41. 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.
42. 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. EUR 300,000 (i.e. EUR 100,000
times 3).
43. 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 as from the respective due dates until the date of effective payment.
44. 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.
45. 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.
46. 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
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REF. FPSD-9476
in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
47. 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 400,000 (i.e. February until May 2023) serves as the basis for the determination of the amount
of compensation for breach of contract.
48. 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.
49. Indeed, the player found employment with the Brazilian club, S.C. Internacional, valid as 20 February
2023 until 31 December 2023. In accordance with the pertinent employment contract, the player
was entitled to approximately (Brazilian Real) R$ 180,000 per month (approximately EUR 34,229).
Therefore, the Chamber concluded that the player mitigated his damages in the total amount of
EUR 136,916, that is, EUR 34,229 times 4.
50. 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.
51. In this respect, the DRC decided to award the amount of additional compensation of EUR 300,000,
i.e., three times the monthly remuneration of the player.
52. The Chamber reminded the parties that, as per the last sentence of art. 17 par. 1 lit. ii) of the
Regulations, the overall compensation may never exceed the rest value of the prematurely
terminated contract.
53. Consequently, on account of all the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the club must pay the amount of EUR 400,000 to the player
(i.e. EUR 400,000 minus EUR 136,916 plus EUR 300,000, limited to a maximum of EUR 400,000), which
was to be considered a reasonable and justified amount of compensation for breach of contract in
the present matter.
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REF. FPSD-9476
54. 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 20 February 2023 until the date of effective payment.
iii. Compliance with monetary decisions
55. 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.
56. 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.
57. 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.
58. 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.
59. 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
60. 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.
61. 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.
62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
pg. 12
REF. FPSD-9476
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Luiz Adriano Souza Da Silva, is accepted.
2.
The Respondent, Antalyaspor Spor, must pay to the Claimant the following amount(s):
(a) EUR 300,000 net as outstanding remuneration plus 5% interest p.a. as from the respective
due dates until the date of effective payment as follows:
-
on the amount of EUR 100,000 as from 1 December 2023
on the amount of EUR 100,000 as from 1 January 2023
on the amount of EUR 100,000 as from 1 February 2023
(b) 5% interest p.a. on the late payment of the October salary as from 1 November 2022 until
20 February 2023.
(c) EUR 400,000 net as compensation for breach of contract without just cause plus 5% interest
p.a. as from 20 February 2023 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
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 Governing the Football Tribunal).
CONTACT INFORMATION
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