Labour Disputes
Texto da decisão
REF FPSD-5441
Decision of the
Dispute Resolution Chamber
passed on 19 May 2022
regarding an employment-related dispute concerning the player Manuel
Henrique Tavares Fernandes
COMPOSITION:
ONGARO Omar (Italy), Deputy Chairperson
SARTORI Stefano (Italy), member
VAURASI Laurel (Fiji), member
CLAIMANT:
Manuel Henrique Tavares Fernandes, Portugal
Represented by Mr Bruno Silva Alves
RESPONDENT:
Kayserispor Kulubu, Turkey
Represented by Mr Batu Mosturoglu
Page 2
REF FPSD-5441
I.
Facts of the case
1.
On 5 October 2020, the Portuguese player Manuel Henriques Tavares Fernandes (hereinafter:
the player or the Claimant) and the Turkish club, Kayserispor Kulubu (hereinafter: the club or
the Respondent) concluded two agreements regarding their employment relationship.
2.
The player was born on 5 February 1986 and was 34 years old when the cited contracts were
executed.
3.
The first agreement (hereinafter: the employment agreement) provides for the following:
a. Term: for 2 seasons i.e. 2020/2021 and 2021/2022, entering into force on 2
October 2020;
b. Remuneration:
i. Season 2020/2021: total of EUR 707,500 net, of which EUR 275,000
were to be paid on 5 October 2020 as advance payment, and EUR
432,500 in 8 instalments between October 2020 and July 2021 in the
last day of each month;
ii. Season 2021/2022: total of EUR 883,500, of which EUR 400,000 were
to be paid on 5 September 2021 as advance payment, and EUR 483,500
in 10 instalments between August 2021 and September 2022 in the last
day of each month;
iii. Bonuses for performance;
iv. EUR 21,000 per season “for house, car and flight expenses”.
4.
Clause 3 of the employment agreement reads inter alia as follows: ”the player hereby agrees
and warrants unconditionally and irrevocably that he will duly sign the standard contract of
TFF and provide all the necessary documents and undertakings for the registration before TFF
in three days following the signing of this contract.”
5.
Clause 7.A of the employment agreement reads as follows: ”The disputes arising from the
present contract may be referred by either party to FIFA - Federation International Football
Association, headquartered in Zurich, Switzerland, as the competent party for solving any
queries arising from this agreement and Court of Arbitration for Sport (CAS) as the appeal
body.”
6.
The second agreement was signed in the standard form of the Turkish Football Federation
(TFF) (hereinafter: the federative contract). It provides for the following:
Page 3
REF FPSD-5441
a. Term: from 5 October 2020 until 31 May 2022;
b. Remuneration:
i. Season 2020/2021: minimum wage plus a down payment of EUR
125,000 upon execution of the federative contract;
ii. Season 2021/2022: total of EUR 883,500, of which EUR 400,000 were
to be paid on 5 September 2021, and EUR 483,500 in 10 instalments
between August 2021 and September 2022.
7.
Clause 9 of the federative contract reads as follows: ”The parties accepted the jurisdiction of
the Kayseri Courts and Enforcement Offices in the resolution of all kinds of disputes arising
from this contract.”
8.
On 26 January 2021, by a letter dated 26 January 2020, the club wrote to the player and
stated inter alia as follows:
“Even though you are an invaluable member of our team I am very disappointed to inform
you that management's plans for the rest of the season may reduce your playing time
significantly. we acknowledge that all football players desire to be on the pitch rather than
waiting sidelined. in order to continue your career in the highest level possible we understand
that you require more playing time and in order to cooperate with you, Kayserispor Board of
Directors have decided to grant you a permission to leave the city of Kayseri for allowing you
to seek new employment opportunities in accordance with your request dated 09.01.2021.
Your permit to leave the city of Kayseri shall be valid until 09/02/2021. during the term of
your permit, you are free to travel abroad and you are not obliged to continue with training
sessions.”
9.
On 31 January 2021, the player wrote to the club and denounced that he had been relegated
to the second team and prevented from playing with the first team of the Respondent. He
also highlighted the contents of the club’s letter of 26 January 2021, and complained that
while the first team was training once per day, he was being made to train twice daily. The
player asked to be reinstated to the first team in 48h.
10. On 2 February 2021, the club replied to the player’s letter inter alia in the following terms:
“Much to my regret to inform you that your allegations are not reflecting the material
truth at all. I would like to take your allegations on board one by one with the intention
of avoiding further inconveniences.
Above all your client, Manuel Fernandes is a part of senior squad, his status a first team member
remains unchanged. Kayserispor Kulübü respects your client’s career and considers him as an
Page 4
REF FPSD-5441
invaluable member of the senior squad. During the course of the season your client has
appeared more than %50 of the games.
Your narration of our club’s correspondence with your client dated 26.01.2021 is obscure,
before anything else team management has right to take any sporting decisions under
their discretion for the interest of the first team. Current Senior Team Management under
coach Dan Petrescu has full liberty regarding taking decisions and club administration does
not intervene in the decision-making process of management on sporting matters such
as training schedules, starting team or tactics in general. This is not an unusual approach
in football or any other professional sport. Managements are not obliged to favor any player
over other squad members hence they are not able to guarantee playing time to any player.
Our club has allowed your client to find a new club in order to allow him to continue his
career at a new club where he can find more playing time which would unquestionably
contribute to remainder of his career. As you can easily deduce from the text of the letter
dated 26.01.2021 our club allowed your client to seek new career opportunities without any
limitations during the permit and just like any other member of the squad your client is
obliged to continue with training as usual. Last but not least the permit to seek new career
opportunities was given to your client upon his direct written request to the club president.
What is more management’s decision to assign extra training sessions for your client is also
complies with laws and nature of the game as your client lacks fitness and stamina to compete
in highest level of football. Your client currently trains with the senior team and to be more
precise the following facts must be stated; training sessions which your client participates
takes place in the same pitch with the senior team and overseen by the senior team
management and participated by other members of senior team.
We would like to remind you that your client is under obligation to participate in training
sessions as clearly shown in the employment contract. In the very same letter, you are placing
a complaint which could be interpreted as “our club wants your client to train and not train
simultaneously” which does not make sense at all.
Your client shall continue to train with the first team as usual however he is expected to
participate in extra training sessions and carefully tailored individual training sessions in order
to maintain his physical capacity. I would like to remind you that this is not just a requirement
by the nature of professional football, it is also a contractual obligation of your client.
At this point we would like to remind you that our club shall not tolerate any player who is
absent from training sessions without taking club’s written permission. We expect your client
to focus on his duties as a member of Kayserispor’s senior squad”
11. On 4 February 2021, the player sent a letter to the club in inter alia the following terms:
“Regarding the content of your communication, some clarifications are needed, which will
certainly be known to your client Kayserispor Kulubu Denergi.
Page 5
REF FPSD-5441
In first place it is important to clarify that in any circumstance the player complained or
disrespected the decisions of the team Management On the contrary, the player always
respected the decisions of the Management team and complied with all the instructions he
received.
Furthermore, the player does not claim any privileged treatment towards his colleagues, nor
does he demands playing time for granted.
However, the player does not accept being prevented to participate in the training sessions
of the club's main team. lndeed, the fact that he is training apart from the working group,
performing only maintenance physical training, does not allow the full exercise of his activity
as a professional footballer. Being away from the main team turns impossible for him to
demonstrate his physical and technical skills to the team Management and to compete with
his colleagues for a place in the team.
It should be clarified that it is false that the player currently has any lack of physical fitness or
stamina to compete at the highest level The player maintains exactly the same physical
condition that allowed him to participate in more than 50% of the games.
It is also important to be aware that there is no technical or medical reason to justify the
removal of the player from the first team.
Moreover, it is not true that the player is training on the same pitch as the first team. He is
training on a secondary pitch. Likewise, it is not true that the player is performing
individualised training, because he does the same training exercises as the other players who,
like him, are away from the first team.
The player reiterates his total commitment to the club and his willingness to fully comply with
the employment contract he has signed with Kayserispor Kulubu Denergi However, he cannot
accept the flagrant violation of his rights arising from that contract, in particular the right to
pursue the activity for which he has been contracted.
In the light of the above, the player requires once again its immediate reintegration into his
position as an effective member of Club's first team”.
12. On 24 March 2021, the player put the club in default of the following salaries, requesting
that they be paid within 10 days:
a. EUR 9,687.50 as part of the December 2020 salary;
b. EUR 54,062.50 as full salary of January 2021;
c. EUR 54,062.50 as full salary of February 2021.
Page 6
REF FPSD-5441
13. On 5 May 2021, the player put the club in default of the salaries of March and April 2021,
requesting that they be paid within 15 days.
14. On 18 June 2021, the player put the club in default of the salary of May 2021, requesting
that they be paid within 10 days.
15. On 9 September 2021, the player put the club in default of the following salaries, requesting
that they be paid within 10 days:
a.
b.
c.
d.
EUR 2,000 as part of the May 2021 salary;
EUR 21,000 as allowances;
EUR 400,000 as advance payment that fell due on 5 September 2021;
EUR 48,350 as August 2021 salary.
16. On 13 October 2021, the player put the club in default of EUR 269,700, corresponding to
the unpaid portion of his remuneration for the 2021/2022 season (as indicated below),
requesting that they be paid within 15 days, under penalty of unilateral termination of the
employment relationship:
a. Total amount owed for the season 2021/2022: EUR 517,700, as follows:
i.
ii.
iii.
iv.
EUR 21,000 as allowances;
EUR 400,000 as advance payment that fell due on 5 September 2021;
EUR 48,350 as August 2021 salary;
EUR 48,350 as September 2021 salary.
b. Amounts paid by the club: EUR 250,000, including EUR 2,000 regarding the
unpaid portion of the May 2021 salary.
17. Following the above notice, the player was scheduled to train apart from the first team and
with the reserve squad.
18. On 20 October 2021, the player put the club in default, arguing there was no reason to
demote him from the first team, and requested to be reinstated in 48h.
19. On the same day, the club replied to the player in the following terms:
“I hope this finds you well. I hereby acknowledge receipt your correspondence dated
20.10.2021. After revie-wing the contents of your correspondence, it is noted that your client
is claiming to be dropped out from the First Team and not allowed to train with the First
Team.
After consulting with First Team Management, 1 was informed that your client was allowed
to first team training throughout the course of the ongoing season. Your client is a regular
Page 7
REF FPSD-5441
member of the first team and never denied access to the first team training. As you know
very well, your client is a more experienced member of our first team and occasionally subject
to specialized training programs during the first team training in order to protect fitness level
and health of the player while maintaining overall connection to the first team, these sessions
are held by first team management with participation of other first team players. These players
train as a focus group not individually and secluded from the first team in contrary they
manifest a part of fi t team training. It is perfectly natural for first team managements to issue
specialized training programs to the certain players to conform individual requirements.
For your convenience footage from latest training session is available for your disposal. I
remain at your disposal for further enquiries”.
20. On 29 October 2021, the player wrote to the club and reiterated that he was still not allowed
to train with the first team.
21. On 11 November 2021, during a press conference, the club’s vice-president announced that
the player would be set aside from the first team after an alleged altercation with the head
coach.
22. On 26 November 2021, the player wrote to the club and stated that he had been prevented
from joining the first team since 15 October 2021. He denied disrespecting the head coach
and claimed that he was being sidelined for putting the club in default for late payments.
23. He also put the club in default of EUR 318,050, corresponding to the unpaid portion of his
remuneration for the 2021/2022 season (as indicated below), and referred to art. 12bis of
the FIFA Regulations on the Status and Transfer of Players (RSTP):
a. Total amount owed for the season 2021/2022: EUR 566,050, as follows:
i.
ii.
iii.
iv.
v.
EUR 21,000 as allowances;
EUR 400,000 as advance payment that fell due on 5 September 2021;
EUR 48,350 as August 2021 salary;
EUR 48,350 as September 2021 salary;
EUR 48,350 as October 2021 salary.
b. Amounts paid by the club: EUR 250,000, including EUR 2,000 regarding the
unpaid portion of the May 2021 salary.
24. On 2 December 2021, the player reiterated his previous notice and also requested payment
of his salary of November 2021. The player granted the club with a deadline of 15 days for
the club to cure its breaches, namely (a) payment of salaries in default in the total amount of
EUR 366,400 and (b) reintegration to the first team, under penalty of termination of the
employment relationship.
Page 8
REF FPSD-5441
25. On 13 December 2021, the player wrote to the club and requested his medical report to be
produced.
26. On 17 December 2021, the club forwarded to the player the following medical report:
“COMPLAINT: Mild pain on the inguinal and back side of the left leg and back pain
MRI REPORTS: 09.08.2021(Proximal Adductor magnus Grade 1 strain cranio-caudal lenght
12cm}
18.08.2021 (Proximal Adductor magnus Grade 1 strain cranio-caudal lenght 6 cm)
24.08.2021 (Proximal Adductor magnus Grade 1 strain cranio-caudal lenght 2 cm. There is
not any new injury of left leg)
24.08.2021{Degenerative discopatia and diffuse annular bulging of L4-L4 , L5-S1. Central
focal protrusions and dural sac pressure findings. Bilateral foraminal narrowing and extrinsic
pressure findings on both L5 radix )
He voluntary threated in Portugal (10-17.08.2021and 20-24.08.2021}
Except this injury;
Mild ankle sprain occurred in January 2021. He could not join about 2 training because of
that injury.
Since his transfer, he was taken to physical therapy with the complaint of low back pain
intermittently.”
27. On 20 December 2021, the player terminated the employment relationship in writing,
claiming just cause.
28. On 8 February 2022, the player and the Greek club, Apollon Smirnis, signed a labour contract
valid as from the same date until 30 June 2022, for a monthly remuneration of EUR 836,90,
plus a bonus of EUR 2,000 for each match appearance.
II. Proceedings before FIFA
29. On 11 March 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
30. According to the Claimant, the club repeatedly and persistently breach the contractual
agreement of the parties by (a) separating the player from the first team and (b) failing to
timely pay his remuneration.
Page 9
REF FPSD-5441
31. As such, the Claimant deems he had just cause to terminate the employment relationship.
32. The player seeks the following concepts:
a. EUR 366,400 as outstanding remuneration at the time of termination;
b. EUR 290,100 as compensation for breach of contract, corresponding to the
residual value of his contracts with the club (December 2021 to May 2022 à
EUR 48,350 per month), minus the mitigated amount of EUR 4,184.50, plus
additional compensation, plus interest of 5% p.a. on the said amounts as from
the due dates until the date of effective payment.
b. Position of the Respondent
33. The Respondent firstly objected to the jurisdiction of FIFA. It referred to clause 9 of the
federative contract and argued that FIFA is not competent to hear the dispute.
34. As to the substance, the club denied that the payer was demoted to the second team and
argued that the player was in constant need of medical attention, hence why he had to put
on a separate training schedule – even more so because of the player’s “advanced age”.
35. With regards to the payment of salaries, the club argued that “considering the rapid
deterioration of Turkish Economy between July and December made things remarkably
difficult for Turkish Clubs, not limited to Kayserispor. Turkish Lira, which makes vast majority
of Turkish Clubs‘ income lost it’s value by 60% which means cost of keeping a team up
increased in the same amount. Clubs had no chance, ground or data to foresee the drastic
change in economy. The Claimant knew very well that club would meet up with financial
obligations eventually but he choose another way. The State of Turkish Economy must be
considered among with other facts”. The club added that “awarding an additional
compensation in the amount of 3 monthly salaries while the Claimant is only 5 months away
from completing the term of the contract is unjust and utterly punitive. In the name of sense
and fairness the request for an additional compensation in the amount of 3 monthly salaries
should be dismissed”.
36. Finally, as to the interest rate, the club argued that the annual interest rate in Turkey by stateowned banks is 0.8%. It explained that “indeed there is a gap in the contract regarding the
interest rate to be applied upon the defaulted amounts. As there is not an open statement or
implication of applicable law (due to the fact that we believe FIFA is not competent to oversee
the present dispute, we also do not accept lex loci arbitri principle) Turkish Law fills the gap.
This is a requirement by both Swiss and Turkish International Private Law. Turkish Law
addresses this matter to the Turkish Acton Legal Interest and Default Interest (Act No.3095)
refers to the question of interest. As the designated currency for payments were determined
to be in Euros instead of Turkish Currency Turkish Lira”.
Page 10
REF FPSD-5441
37. The Respondent asked that the claim be dismissed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
38. 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 11 March 2022 and submitted for decision
on 19 May 2022. Taking into account the wording of art. 34 of the October 2021 edition of
the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
39. 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 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (March 2022 edition), the Dispute
Resolution Chamber is in principle competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Portuguese player and a Turkish club.
40. The Chamber noted however that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the Courts of the city of Kayseri, Turkey, alleging that the latter
is competent to deal with any dispute, in accordance with its clause 9 of the federative
contract.
41. Taking into account all the above, the Chamber emphasised that in accordance with art. 22,
par. 1 caput and lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in
principle, competent to hear an employment-related dispute between a club and a player of
an international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by state courts in any relevant jurisdiction.
42. In this context, Chamber pointed out that it should first analyse whether the employment
contracts at the basis of the present dispute contained a clear and exclusive jurisdiction clause
in favour of the Court of the city of Kayseri, Turkey.
43. In this respect, the Chamber referred to clause 9 of the federative contract, according to
which: ”The parties accepted the jurisdiction of the Kayseri Courts and Enforcement Offices
in the resolution of all kinds of disputes arising from this contract.”. Equally, the DRC noted
the contents of clause 7.A of the employment agreement, which reads: ”The disputes arising
from the present contract may be referred by either party to FIFA - Federation International
Football Association, headquartered in Zurich, Switzerland, as the competent party for solving
any queries arising from this agreement and Court of Arbitration for Sport (CAS) as the appeal
body.”
Page 11
REF FPSD-5441
44. The Chamber, after analysing the wording of the two jurisdiction clauses, concluded that
such clauses did not clearly and exclusively establish the competence of the courts of Kayseri,
for the jurisdiction clauses found in the employment agreement and the federative contract
are contradictory. Therefore, while both contracts govern the relationship of the parties, there
is no clear and exclusive jurisdiction clause in favour of the another (state) body to adjudicate
on the dispute.
45. As a consequence, the Chamber established that the Respondent’s objection to the
competence of FIFA to deal with the present matter has to be rejected and that the Dispute
Resolution Chamber is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to
consider the present matter as to the substance.
46. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and
considering that the present claim was lodged on 11 March 2022, the said edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
47. 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
48. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
49. 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.
Page 12
REF FPSD-5441
50. 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.
51. 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).
52. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to the unpaid portion of his salaries for the season 2021/2022, amounting to
EUR 366,400. Furthermore, the Chamber noted that the Claimant has provided written
evidence of having put the Respondent in default on 2 December 2021, i.e. at least 15 days
before unilaterally terminating the contract on 20 December 2021.
53. 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. Nonetheless, no evidence to his end was produced by the Respondent, who failed
therefore to demonstrate that it had complied with its financial obligations.
54. This alone suffices to confirm, in the Chamber’s view, that the Claimant had a just cause to
unilaterally terminate the employment relationship, based on art. 14bis of the Regulations.
Accordingly, the Chamber does not need to examine the issue of the player’s alleged
demotion to the club’s second team.
ii. Consequences
55. 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.
56. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the unpaid portion
of his remuneration under the employment agreement, amounting to EUR 366,400.
57. 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 366,400.
58. 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
Page 13
REF FPSD-5441
of 5% p.a. on the outstanding amounts as from their respective due dates until the date of
effective payment, as follows:
Concept
Allowances
Advance payment
Salary of Sept/21
Salary of Oct/21
Salary of Nov/21
Amount
EUR 21,000 net
EUR 200,350 net
EUR 48,350 net
EUR 48,350 net
EUR 48,350 net
Due date
01.07.2021
05.09.2021
30.09.2021
31.10.2021
30.11.2021
Interest as from
02.07.2021
06.09.2021
01.10.2021
01.11.2021
01.12.2021
59. The Chamber further noted that the Claimant would be in principle entitled to interest of 5%
p.a. on the late payment made by the Respondent of the advance payment, which should
have been paid on 5 September 2021 but was in fact (partially) performed on 21 September
2021 (i.e. payment of EUR 199,650). However, the Claimant made no such request for relief,
and therefore in line with the principle non ultra petita, the Chamber confirmed that such
amount could not be granted.
60. In this respect, the Chamber wished to recall that when deciding a dispute before the DRC,
FIFA’s regulations prevail over any national law chosen by the parties. In this regard, the
Chamber emphasised that the main objective of the FIFA regulations is to create a standard
set of rules to which all the actors within the football community are subject to and can rely
on. This objective would not be achievable if the DRC would have to apply the national law
of a specific party on every dispute brought to it.
61. In this respect, the DRC wished to point out that it is in the interest of football that the
performance of a contract is based on uniform criteria rather than on provisions of national
law that may vary considerable from country to country. Therefore, the Chamber deemed
that it is not appropriate to apply the principles of a particular national law but rather the
Regulations, general principles of law and, where existing, the Chamber’s well-established
jurisprudence. As such, the Chamber clarified that it could not uphold the argumentation of
the Respondent regarding the interest rate applicable under Turkish law.
62. 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.
Page 14
REF FPSD-5441
63. 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.
64. 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.
65. 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 employment
agreement from the date of its unilateral termination until its end date. Consequently, the
Chamber concluded that the amount of EUR 290,100 (i.e. the residual value of the
employment agreement of 6 months à EUR 18,350 each) serves as the basis for the
determination of the amount of compensation for breach of contract.
66. 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.
67. Indeed, the player found employment with Apollon Smirnis. In accordance with the pertinent
employment contract, the player was entitled to approximately EUR 836,90 per month.
Therefore, the Chamber concluded that the player mitigated his damages in the total amount
of EUR 4,184.50 for the overlapping period.
68. 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. However, the maximum amount of
compensation cannot exceed the residual value of the (prematurely) terminated contract.
69. In this respect, the DRC decided to award the amount of additional compensation of USD
EUR 4,184.50.
Page 15
REF FPSD-5441
70. 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 290,100
to the player (i.e. EUR 290,100 minus 4,184.50 plus 4,184.50), which was to be considered
a reasonable and justified amount of compensation for breach of contract in the present
matter.
71. 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 the date of claim until the date of effective payment.
72. Lastly, the Chamber confirmed that in accordance with the relevant contracts singed between
the parties, all amounts should be granted net.
iii. Sporting sanctions
73. The Chamber noted that the Respondent had also on several occasions in the recent past
been held liable by the Football Tribunal for the early termination of the employment
contracts without just cause, namely in the following cases:
a. Case ref. FPSD-2783, DRC Decision of 9 November 2021;
b. Case ref. FPSD-3765, DRC Decision of 11 November 2021;
c. Case ref. FPSD-3991, DRC Decision of 24 March 2021.
74. Under article 17 par. 4 of the Regulations, in addition to the obligation to pay compensation,
sporting sanctions shall be imposed on any club found to be in breach of contract or found
to be inducing a breach of contract during the protected period.
75. As to the protected period, this is defined in the Regulations as “a period of three entire
seasons or three years, whichever comes first, following the entry into force of a contract,
where such contract is concluded prior to the 28th birthday of the professional, or two entire
seasons or two years, whichever comes first, following the entry into force of a contract,
where such contract is concluded after the 28th birthday of the professional”.
76. In the present case, the player was 34 years old when he signed the employment agreement,
which took place on 5 October 2020. Accordingly, the protected period would end at the
earliest on 31 May 2022, when the season 2021/2022 would end in Turkey. As such, the
Chamber confirmed that since the termination of the employment agreement occurred on
20 December 2021, it took place within the protected period.
77. At the same time, the DRC recalled that the player terminated the contract with just cause,
as the club had was found to have breached of the employment contract. As such, and by
virtue of art. 17 par. 4 of the Regulations, the Chamber decided that the Respondent shall be
banned from registering any new players, either nationally or internationally, for the two next
entire and consecutive registration periods following the notification of the present decision.
Page 16
REF FPSD-5441
78. For the sake of completeness, the Chamber recalled that in accordance with article 24 par. 3
lit. a) of the Regulations, the consequences for failure to pay relevant amounts in due time
may be excluded where the Football Tribunal has imposed a sporting sanction on the basis of
article 17 in the same case. Consequently, the Chamber confirmed that the consequences for
failure to pay relevant amounts in due time envisaged by art. 24 of the Regulations were
excluded in the present matter, and that should the Respondent fail to timely comply with
this decision, it would be for the FIFA Disciplinary Committee to adopt the necessary measures
in accordance with the FIFA Disciplinary Code.
d. Costs
79. 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.
80. 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.
81. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 17
REF FPSD-5441
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Manuel Henrique Tavares Fernandes, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Kayserispor Kulubu, has to pay to the Claimant, the following amounts:
- EUR 21,000 net as outstanding remuneration plus 5% interest p.a. as from 2 July 2021
until the date of effective payment;
- EUR 200,350 net as outstanding remuneration plus 5% interest p.a. as from 6 September
2021 until the date of effective payment;
- EUR 48,350 net as outstanding remuneration plus 5% interest p.a. as from 1 October 2021
until the date of effective payment;
- EUR 48,350 net as outstanding remuneration plus 5% interest p.a. as from 1 November
2021 until the date of effective payment;
- EUR 48,350 net as outstanding remuneration plus 5% interest p.a. as from 1 December
2021 until the date of effective payment;
- EUR 290,100 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 11 March 2022 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
6.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
7.
If full payment (including all applicable interest) is not made within 45 days of notification
of this decision, the present matter shall be submitted, upon request of the Claimant, to the
FIFA Disciplinary Committee:
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 18
REF FPSD-5441
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 19