Labour Disputes
Texto da decisão
REF. FPSD-7309
Decision of the
Dispute Resolution Chamber
passed on 4 May 2023
regarding an employment-related dispute concerning
the player PANAGIOTIS TACHTSIDIS
BY:
Omar Ongaro (Italy), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Calum Beattie (Scotland), member
CLAIMANT / COUNTER-RESPONDENT:
PANAGIOTIS TACHTSIDIS, Greece
Represented by Panagiota (Penny) KONITSIOTI
RESPONDENT / COUNTER-CLAIMANT:
Al Fayha Club, Saudi Arabia
Represented by R&A Sports Law
INTERVENING PARTY:
KhorFakkan, United Arab Emirates
Represented by Abdulla Ali Aljneibi
pg. 2
REF. FPSD-7309
I. Facts of the case
1.
On 15 July 2021, the Greek player, PANAGIOTIS TACHTSIDIS (hereinafter: player) and the
Saudi club, Al Fayha (hereinafter: club) concluded an employment contract (hereinafter:
contract) valid as from 15 July 2021 until 14 July 2023.
2.
According to the contract, the club undertook to pay the player the following amounts:
- USD 60,000 as monthly salary between 15 July 2021 and 14 July 2022;
- USD 67,500 as monthly salary between 15 July 2022 and 14 July 2023;
- USD 180,000 as “signing-on fee” due on 1 August 2021;
- USD 190,000 as “additional fixed payment(s)” on 1 August 2022;
- USD 30,000 as bonus “in the event that the team safe the category for first season”;
- USD 30,000 as bonus “in case of the winning king cup and the player has participated
in 50% of the competition matches”.
3.
Art. 12 of the contract establishes:
“1. In the case of the club unlawfully failing to pay the player at least two monthly salaries
on their due dates, the player will be deemed to have a just cause to terminate this
contract, provided that he has put the club in default in writing and has granted a deadline
of at least 15 days for the club to fully comply with its financial obligation(s).
2. If either party terminates the contract with just cause, following amount will have to be
paid USD 135,000 as penalty clause equivalent to two months salaries: This clause is
applicable only for the second year only starting from 10/06/2022. And If either party
terminates the contract without just cause, following amount will have to be paid USD
135,000 as penalty clause equivalent to two months salaries: This clause is applicable only
for the second year only starting from 10/06/2022.
[…]”.
4.
On 5 August 2022, the player put the club in default and requested payment of USD
377,500 within 15 days. Said amount corresponds to:
- USD 60,000 as salary of June 2022;
- USD 67,500 as salary of July 2022;
- USD 190,000 as payment due on 1 August 2022;
- USD 30,000 as bonus for “staying in the category”;
- USD 30,000 as bonus for winning the kings cup.
5.
On 1 September 2022, the player terminated the contract with the club due to his
outstanding remuneration.
pg. 3
REF. FPSD-7309
6.
On 1 September 2022, the club replied to the player stating that his termination was “illegal”
as no default notice was received prior.
7.
On 27 September 2022, the player signed an employment contract with the club from the
United Arab Emirates, KhorFakkan valid as from 27 September 2022 until 30 June 2023,
including total remuneration of USD 650,000.
II. Proceedings before FIFA
8.
On 1 September 2022, 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
9.
In his claim, the player requested payment of the following monies:
- USD 385,000 as outstanding remuneration plus 5% interest p.a. as of 5 August 2022;
- USD 810,000 as compensation for breach of contract, corresponding to the residual
value of the contract, plus 5% interest p.a. as of the date of claim;
- USD 135,000 as compensation based on art. 12 par. 2 of the contract, plus 5% interest
p.a. as of the date of claim.
10. In this context, the player argued that he had just cause to terminate the contract on 1
September 2022, after his outstanding remuneration remained unpaid after his default
notice.
11. The outstanding remuneration claimed is composed as follows:
- USD 67,500 as salary of July 2022;
- USD 67,500 as salary of August 2022;
- USD 190,000 as payment due on 1 August 2022;
- USD 30,000 as bonus for “staying in the category”;
- USD 30,000 as bonus for winning the kings cup.
b. Position of the Club / Counterclaim
12. In its reply, the club rejected the claim and lodged a counterclaim against the player,
requesting payment of USD 135,000 as compensation for breach of contract, based on art.
12 par. 2 of the contract.
pg. 4
REF. FPSD-7309
13. The club argued that the player had no just cause to terminate the contract since the
default notice dated 5 August 2022 was not valid, as it was sent by an unknown person
without power of attorney, without signature, in word format and landed in the spam
folder of the club.
14. In this context, the club held that the power of attorney empowering the lawyer in question
to act on behalf of the player sent at a later stage was dated 31 August 2022. Therefore,
the lawyer had no power to act on behalf of the player on 5 August 2022.
15. Furthermore, the club maintained that the default notice in question was based on art.
12bis RSTP and not Art. 14bis RSTP.
16. What is more, the club pointed out that the amount claimed in the default notice was not
correct, as the club had already remitted the following payments:
- USD 60,000 as salary of June 2022, paid on 4 August 2022 (note: payment receipt
provided);
- USD 40,000 as partial bonus payment, paid on 8 June 2022 (note: payment slip
with the players name is on file).
In this context, the clubs stated that the player is only entitled to the residual USD 20,000
resulting from the bonuses.
17. The club also stated that on top of the “irregularities” of the default notice, he acted in bad
faith since he tried to terminate the contract during the pre-season “in any way”. According
to the club the agent of the player informed the club at the end of August 2022 that the
player considers to “pay the liquidated damage clause” in order to terminate the contract.
18. Moreover, the club alleged that the player tried to get a “new agreement” with the club and
when that did not materialize he wanted to leave.
19. On account of the above, the club held that the contract was terminated without just cause
and that the club is entitled to the amount defined in the “liquidated damages clause” from
the contract.
c. Reply of the player to the counterclaim
20. In his reply to the counterclaim, the player rejected the counterclaim.
21. He pointed out that during July 2022, the club expressed to give him a new contract
(without “penalty clause”) with better conditions as he was one of the best players during
the past season.
22. According to the player, the club stopped paying him as of June 2022, and subsequently
the club informed him not to sign a new contract but to continue with the current one.
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REF. FPSD-7309
23. The player rejected the arguments regarding the default notice and referred to the actual
circumstances of outstanding remuneration.
24. On account of the above, the player reiterated his position and held that he had just cause
to terminate the contract.
d. Position of the new club
25. KhorFakkan endorsed the position of the player and rejected the counterclaim.
26. The new club held that the player had just cause to terminate the contract due to the
outstanding remuneration, and after having put the club in default.
27. Furthermore, the new club argued that it should not be part of the present proceedings as
it recruited the player as “free agent”, after he had already terminated his previous contract.
pg. 6
REF. FPSD-7309
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
28. 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 1 September 2022 and
submitted for decision on 4 May 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.
29. 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 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 player and a club.
30. 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 2023 edition), and
considering that the present claim was lodged on 1 September 2022, the July 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
31. 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
32. 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.
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REF. FPSD-7309
i. Main legal discussion and considerations
33. 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 circumstances
surrounding the contract termination of the player.
34. In this context, the Chamber acknowledged that it its task was to establish if the player had
just cause to terminate the contract and to decide on the consequences thereof.
35. The DRC duly noted that according to the player, he terminated the contract with just cause
due to outstanding remuneration, after having put the club in default on 5 August 2022.
36. On the other hand, the members of the Chamber took notice that the club acknowledged
to have received the default notice (in its spam folder), but pointed out “irregularities” with
it and held that the player acted in bad faith when terminating the contract.
37. The Chamber started to analyse the situation before the termination and observed that
the Claimant claims not having received his remuneration in the total amount of USD
385,000 corresponding to the salaries of July and August 2022, a payment due in August
2022 as well as bonuses. Furthermore, the Claimant has provided written evidence of
having put the Respondent in default on 5 August 2022, i.e. at least 15 days before
unilaterally terminating the contract on 1 September 2022.
38. In this regard, the DRC pointed out that the arguments of the club regarding the default
notice have to be rejected as the club acknowledged its receipt in its spam folder.
39. Moreover, the Chamber held that it has to be 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. The club submitted proof of payment for the
salary of June 2022 (which was not claimed by the player), and of an alleged payment in the
amount of USD 40,000, corresponding to parts of the due bonuses.
40. Consequently, on account of the above, considering that the club had thus repeatedly and
for a significant period of time been in breach of its contractual obligations towards the
player, the DRC decided that the player had just cause to unilaterally terminate the
employment contract on 1 September 2022 and that, as a result, the club is to be held liable
for the early termination of the employment contact with just cause by the player.
41. Therefore, the counterclaim of the club is rejected.
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REF. FPSD-7309
ii. Consequences
42. 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.
43. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are the following:
- USD 67,500 as salary of July 2022;
- USD 67,500 as salary of August 2022;
- USD 190,000 as payment due on 1 August 2022;
- USD 30,000 as bonus for “staying in the category”;
- USD 30,000 as bonus for winning the kings cup.
44. Since the player did not acknowledge receipt of the alleged payment as bonus of USD
40,000 and due to the fact that the provided receipt referred to a different bonus, the DRC
decided that said amount would not be deducted. Furthermore, the claim for bonuses was
substantiated by the player.
45. 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. USD
385,000 (cf. point above).
46. 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.
47. 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.
48. 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.
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REF. FPSD-7309
49. In this regard, the Chamber took note of the wording of 12 par. 2 of the contract, which
established that
“If either party terminates the contract with just cause, following amount will have to be paid
USD 135,000 as penalty clause equivalent to two months salaries: This clause is applicable only
for the second year only starting from 10/06/2022. And if either party terminates the contract
without just cause, following amount will have to be paid USD 135,000 as penalty clause
equivalent to two months salaries: This clause is applicable only for the second year only starting
from 10/06/2022.“
50. After analysing the content of the aforementioned clause, the Chamber concluded that it
did not fulfil the criteria of reciprocity and proportionality, in line with the Chamber’s
longstanding jurisprudence, and therefore could not be taken into account for establishing
the amount of compensation payable to the player. In particular, the Chamber noted that
even though the clause in question refers to second season only, the amount payable
according to the contract corresponds to two monthly salaries, whereby the residual value
of the contract (including a fixed payment defined in the contract) amounts to approx. 15
monthly salaries. Therefore, the members of the Chamber concluded that the clause is
disproportionate.
51. 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.
52. 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 708,750 (September 2022 until 14 July 2023; 10.5
months x USD 67,500) serves as the basis for the determination of the amount of
compensation for breach of contract.
53. 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.
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REF. FPSD-7309
54. Indeed, the player found employment with the Emirati club, KhorFakkan valid as from 27
September 2022 until 30 June 2023. In accordance with the pertinent employment contract,
the player was entitled to a total amount of USD 650,000. Therefore, the members of the
Chamber concluded that the player mitigated his damages in the total amount of USD
650,000.
55. 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.
56. In this respect, the DRC decided to award the amount of additional compensation of USD
USD 202,500, i.e. three times the monthly remuneration of the player.
57. 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 261,250 to the player (i.e. USD 708,750 minus USD 650,000 plus USD 202,500), which
was to be considered a reasonable and justified amount of compensation for breach of
contract in the present matter.
58. 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 1 September 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
59. 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.
60. 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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REF. FPSD-7309
61. 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 Respondent in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
62. 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.
63. 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
64. 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.
65. 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.
66. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-7309
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant / Counter-Respondent, PANAGIOTIS TACHTSIDIS, is partially
accepted.
2.
The Respondent / Counter-Claimant, Al Fayha Club, must pay to the Claimant / CounterRespondent the following amount(s):
- USD 317,500 as outstanding remuneration plus 5% interest p.a. as from 5 August 2022
until the date of effective payment;
- USD 67,500 as outstanding remuneration plus 5% interest p.a. as from 1 September
2022 until the date of effective payment;
- USD 261,250 as compensation for breach of contract plus 5% interest p.a. as from 1
September 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The counterclaim of the Respondent / Counter-Claimant is rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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 / Counter-Claimant 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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-7309
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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