Labour Disputes
Texto da decisão
REF FPSD-6167
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player Cesar
Ignacio Pinares Tamayo
BY:
Omar Ongaro (Italy), Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Michele Colucci (Italy), member
CLAIMANT:
Cesar Ignacio Pinares Tamayo, Chile
Represented by Mr Rodrigo Marrubia
RESPONDENT:
Altay SK, Türkiye
Represented by Mr Ercan Sevdimbaş
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REF FPSD-6167
I. Facts of the case
1.
On 10 August 2021, the Chilean player, Cesar Ignacio Pinares Tamayo (hereinafter: the
Claimant), and the Turkish club, Altay SK (hereinafter: the Respondent) signed an
employment contract valid as from the date of signature until 31 May 2023.
2.
In accordance with Article 3 of the Contract, the Respondent undertook to pay to the
Claimant his remuneration as follows:
“For 2021/2022 Football Season:
-
EUR 70,000 net it will be paid within the signing of this agreement;
EUR 70,000 net will be paid on 30 October 2021;
EUR 70,000 net will be paid on 30 December 2021;
EUR 70,000 net will be paid on 28 February 2022;
EUR 70,000 net will be paid on 30 April 2022;
-
EUR 350,000 net will be paid equally as EUR 35,000 in 10 months on the following
dates:
•
•
•
•
•
•
•
•
•
•
EUR 35,000 net on 31.08.2021;
EUR 35,000 net on 30.09.2021;
EUR 35,000 net on 31.10.2021;
EUR 35,000 net on 30.11.2021;
EUR 35,000 net on 31.12.2021;
EUR 35,000 net on 31.01.2022;
EUR 35,000 net on 28.02.2022;
EUR 35,000 net on 31.03.2022;
EUR 35,000 net on 30.04.2022;
EUR 35,000 net on 31.05.2022.
For 2022/2023 Football Season:
-
EUR 70,000 net it will be paid on 30 August 2022;
EUR 70,000 net will be paid on 30 October 2022;
EUR 70,000 net will be paid on 30 December 2022;
EUR 70,000 net will be paid on 28 February 2023;
EUR 70,000 net will be paid on 30 April 2023;
-
EUR 350,000 net will be paid equally as EUR 35,000 in 10 months on the following
dates:
•
EUR 35,000 net on 31.08.2022;
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REF FPSD-6167
•
•
•
•
•
•
•
•
•
EUR 35,000 net on 30.09.2022;
EUR 35,000 net on 31.10.2022;
EUR 35,000 net on 30.11.2022;
EUR 35,000 net on 31.12.2022;
EUR 35,000 net on 31.01.2023;
EUR 35,000 net on 28.02.2023;
EUR 35,000 net on 31.03.2023;
EUR 35,000 net on 30.04.2023;
EUR 35,000 net on 31.05.2023.”
3.
By correspondence dated 16 April 2022, the Claimant put the Club in default for the
outstanding amount of EUR 140,000, corresponding to the salary payments of
EUR 70,000 due on 28 February 2022, EUR 35,000 due also on 28 February 2022, and
EUR 35,000 due on 31 March 2022, granting a 15-day deadline for the Club to comply with
its financial obligations, to no avail.
4.
By correspondence dated 3 May 2022, the Claimant unilaterally terminated the Contract.
5.
On 1 July 2022, the Claimant and the Chilean club, CD Universidad Catolica (hereinafter:
the New Club) signed an employment contract valid as from the date of signature until
31 December 2024.
6.
In accordance with the New Contract, the New Club agreed to pay the Claimant a monthly
remuneration of CLP 27,062,991 (Chilean Peso) (composed of CLP 26,546,191 base salary
plus CLP 60,800 “mobility allowance” plus CLP 456,000 “food allowance”) for the period of
1 July 2022 until 31 December 2022, and as from 1 January 2023 until the end date of the
New Contract a monthly remuneration of USD 38,750 payable in Chilean pesos based on
the exchange rate on 1 January 2023.
II. Proceedings before FIFA
7.
On 25 May 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 Claimant
8.
According to the Claimant, the Respondent failed to make several salary payments under
the Contract, in excess of the requisite two-month threshold under art. 14bis of the
Regulations on the Status and Transfer of Players, and was granted a deadline of 15 days
after being put in default of payment of the allegedly outstanding amounts. Therefore,
the Claimant argued, the formal requirements of said art. 14bis were met, and he had
just cause to terminate the Contract on 3 May 2022.
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9.
The Claimant requested outstanding remuneration in the amount of EUR 245,000,
corresponding to the outstanding salaries of February 2022, March 2022 and
April 2022, plus 5% interest p.a. as from the respective due dates of the outstanding
instalments until the date of effective payment.
10. Furthermore, the Player requested compensation for breach of contract without just
cause in accordance with art. 17 of the Regulations on the Status and Transfer of Players
in the amount of the residual value of the Contract, EUR 735,000, corresponding to one
monthly salary for May 2022, plus EUR 700,000, corresponding to the annual
remuneration due for the 2022/2023 season.
11. Moreover, the Claimant requested additional compensation in the amount of
EUR 210,000 corresponding to three monthly salaries under the Contract.
12. Lastly, the Claimant requested that sporting sanctions be imposed on the Respondent in
accordance with art. 17 par. 4 of the Regulations on the Status and Transfer of Players.
b. Position of the Respondent
13. The Respondent submitted that its inability to make the payments due to the Claimant is
attributed to the economic situation in Türkiye, causing the depreciation of the Turkish
Lira.
14. Furthermore, the Respondent submitted that there is no basis for the Claimant to request
additional compensation, as the latter had not signed a new contract at the time the
former submitted its reply to the claim. In this respect, the Respondent highlighted that,
in accordance with art. 17 par. 1 lit. ii) of the Regulations on the Status and Transfer of
Players, the overall compensation due to the Claimant may not exceed the residual value
of the Contract.
15. The Respondent also submitted that, should the Claimant sign a new contract in the
overlapping period with the term of the Contract which was prematurely terminated, then
mitigation shall apply in the present case with regards to calculating the overall
compensation to the Claimant.
16. Lastly, the Respondent requested legal and procedural costs to be borne by the Claimant
in the present proceedings.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 25 May 2022 and submitted
for decision on 29 September 2022. Taking into account the wording of art. 34 of the June
2022 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.
18. 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 (July 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
Chilean player and a Turkish club.
19. 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 (July 2022 edition),
and considering that the present claim was lodged on 25 May 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
20. 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
21. 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
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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
22. 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 contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the contract, in accordance with art. 14bis
of the Regulations.
23. In this context, the Chamber acknowledged that it its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had, in fact, remained
unpaid and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had
in fact been fulfilled.
24. 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).
25. The Chamber noted that the Claimant asserts not having received his remuneration
corresponding to the months of February 2022, March 2022 and April 2022, in the total
amount of EUR 245,000 Furthermore, the Chamber noted that the Claimant has provided
written evidence of having put the Respondent in default of payment on 16 April 2022,
i.e. at least 15 days before unilaterally terminating the Contract on 3 May 2022.
26. The Chamber also 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. In this respect, the Chamber took note of the Respondent’s
argumentation that the salaries owed to the Claimant remained unpaid due to financial
difficulties caused by the poor economic situation in Türkiye, and, in particular, the
depreciation of the Turkish Lira.
27. In this context, the Chamber wished to point out that the Respondent failed to submit
any evidence corroborating the assertion that the Turkish Lira had indeed depreciated as
claimed, thereby failing to meet the burden of proving that the payments under the
Contract could be challenged.
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28. Consequently, the Chamber concluded that, as no situation of force majeure could be
established in the present matter, the Respondent was held not to have had a valid
justification for the non-compliance of the contractually stipulated obligations.
29. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the Contract, based on art. 14bis of the Regulations.
ii. Consequences
30. 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.
31. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are equivalent to EUR 245,000
under the Contract, according to the following monthly instalments stipulated under the
Contract:
-
EUR 70,000, due on 28 February 2022;
EUR 35,000, due on 28 February 2022;
EUR 35,000, due on 31 March 2022;
EUR 70,000, due on 30 April 2022;
EUR 35,000, due on 30 April 2022.
32. 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 245,000, as outlined above.
33. 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 following dates:
-
On the amount of EUR 70,000, as from 1 March 2022 until the date of effective
payment;
On the amount of EUR 35,000, as from 1 March 2022 until the date of effective
payment;
On the amount of EUR 35,000, as from 1 April 2022 until the date of effective
payment;
On the amount of EUR 70,000, as from 1 May 2022 until the date of effective
payment;
On the amount of EUR 35,000, as from 1 May 2022 until the date of effective
payment.
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34. 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.
35. 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.
36. 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.
37. 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 735,000 (i.e. EUR 35,000 corresponding to the salary
for May 2022, and EUR 700,000, corresponding to the salary for the season 2022/2023)
serves as the basis for the determination of the amount of compensation for breach of
contract.
38. In continuation, the Chamber verified as to whether the Claimant 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.
39. Indeed, the Claimant found employment with the New Club. In accordance with the New
Contract, the Claimant was entitled to approximately CLP 27,062,991 per month, as from
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July 2022 until December 2022, and USD 38,750 per month, as from January 2023 until
May 2023. Therefore, the Chamber concluded that the player mitigated his damages in
the total amount of EUR 356,061, that is, 6 times CLP 27,062,991 = CLP 162,377,946 or
EUR 166,922, plus 5 times USD 38,750 = USD 193,750 or EUR 189,139.
40. 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.
41. In this respect, the DRC decided to award the amount of additional compensation of
EUR 210,000, i.e. three times EUR 70,000 as the monthly remuneration of the player.
42. 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 EUR 588,939 to the player (i.e. EUR 735,000 minus EUR 356,061 plus
EUR 210,000), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
43. 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 25 May 2022 until the date of effective payment.
iii. Compliance with monetary decisions
44. 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.
45. In this regard, the DRC highlighted that, against club, the consequence of the failure to
pay the relevant amounts in due time shall consist, in principle, of a ban from registering
any new players, either nationally or internationally, up until the due amounts are paid.
46. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24
par. 3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of art. 12bis, 17 or 18quater of the Regulations.
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47. In this respect, the Chamber recalled that by means of a decision passed on
6 September 2022 and notified on 9 September 2022, a transfer ban has been imposed
on the Respondent pursuant to art. 17 par. 4 of the Regulations (i.e., namely in the case
FPSD-6082).
48. Accordingly, the Chamber established that, in casu, art. 24 par. 2 of the Regulations shall
not apply, insofar as, in case the Club fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Club would be moot and against the spirit of the Regulations, in
particular the enforcement mechanism established under art. 24 of the Regulations.
49. In view of the above, the DRC decided that, if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Player, to the FIFA Disciplinary Committee for its consideration and
a formal decision.
50. 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.
d. Costs
51. 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.
52. 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.
53. 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, Cesar Ignacio Pinares Tamayo, is partially accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant, the following amount(s):
- EUR 105,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022
until the date of effective payment;
- EUR 35,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of effective payment;
- EUR 105,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of effective payment;
- EUR 588,939 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 25 May 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 within 30 days of notification
of this decision.
5.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
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).
CONTACT INFORMATION
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