Dispute Resolution Chamber
Texto da decisão
REF 20-01192
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021,
regarding an employment-related dispute concerning the player Jorge Djaniny Tavares
Semedo
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Muzzamil Bin Mohamed (Singapore), member
Stéphane Burchkalter (France), member
CLAIMANT 1 / RESPONDENT 2:
Player Jorge Djaniny Tavares Semedo,
Republic of Cabo Verde
Represented by Mr Mário Santos Paiva
RESPONDENT 1 / CLAIMANT 2:
Al Ahli, Saudi Arabia
Represented by Mr Stuart McInnes
INTERVENING PARTY:
Trabzonspor Futbol, Turkey
Page 2 of 11
REF 20-01192
I. FACTS OF THE CASE
1.
On 18 July 2018, the player Jorge Djaniny Tavares Semedo (hereinafter: player or Claimant 1/
Respondent 2) and the club, Al Ahli (hereinafter: club or Respondent 1/Claimant 1) concluded an
employment contract (hereinafter: contract) valid as from the date of signature until 30 June 2022.
2.
According to the contract, the club, inter alia, undertook to pay the player the following monies:
- USD 166,667 as monthly salary payable in 12 instalments between July 2018 and June 2019;
- USD 208,333 as monthly salary payable in 12 instalments between July 2019 and June 2020;
- USD 208,333 as monthly salary payable in 12 instalments between July 2020 and June 2021;
- USD 208,333 as monthly salary payable in 12 instalments between July 2021 and June 2022.
3.
Art. 8 of the contract reads as follows:
“8.1 Termination by the Club without Cause:
In case the Club terminate the contract without just cause before its duration, the Club will pay the
total of the remaining salaries to the end of the contract (i.e. the total salary from the date of
termination until the date of the end of the contract on 30th June 2022)”.
“8.2 Termination by the Player without Cause:
In the event that under the duration of this contract the Player decides to terminate it without just
cause, the player or a third party shall pay the penalty of USD 20,000,000 USD to the club”.
4.
On 14 March 2020, the football competition in Saudi Arabia was suspended in relation with COVID19.
5.
According to the club, on 27 April 2020, the club sent a proposal for a salary reduction (50% on the
amount over Saudi Arabian Rial (SAR) 20,000) to the player’s alleged email address, which the player
denied having received.
6.
According to the club, on 5 May 2020, the club contacted the player again regarding the salary
reduction. The player denied having received such correspondence as well.
7.
On 11 June 2020, authorities in Saudi Arabia announced that the sporting activities will be resumed
as of 21 June 2020 and that the league resumes on 4 August 2020.
8.
According to the club, on 16 June 2020, the club sent a letter to the player informing him about the
restart of the football activities as well as referring to his return to Saudi Arabia (without setting a
date). The player denied having received such correspondence.
9.
On 21 June 2020, the player put the club in default and requested payment of USD 624,999,
corresponding to the salaries of March, April and May 2020, within 15 days.
10.
On 13 July 2020, the player terminated the contract due to the club’s non-fulfilment of its financial
obligations.
11.
On 3 October 2020, the player signed a new employment contract with the Turkish club, Trabzonspor,
valid as of the date of signature until 31 May 2023. During the overlapping period with the contract
(until 30 June 2022), the player is entitled to receive the total amount of EUR 2,600,000 (EUR
1,300,000 for each season).
Page 3 of 11
REF 20-01192
12.
On 20 August 2020, the player lodged a claim against the Respondent in front of FIFA and requested
payment of USD 5,833,332 as compensation for breach of contract, corresponding to the residual
value of the contract. Furthermore, the player claimed interest of 5% p.a. “as of March 2020”.
13.
Moreover, the player requested to be reimbursed with at least EUR 5,000 for his legal costs.
14.
In his claim, he held that the Respondent failed to comply with its financial obligations and that he
had just cause to terminate the contract after having put the club in default.
15.
On 25 August 2020, the club lodged a separate claim against the player requesting payment of USD
20,000,000 or “alternatively such damages pursuant to Art. 17 RSTP”. Further, the club requested to
impose a sporting sanction on the player.
16.
In its claim, the club argued that contacted the player in order to seek agreement of a salary reduction
related to months of March until June 2020 in connection with COVID-19.
17.
Further, the club held having made the following payments, in accordance with its proposal to reduce
the player’s salary (50% reduction on the amount above SAR 20,000):
- USD 157,580 on 22 June 2020 (reduced salary for March 2020);
- USD 106,827 on 29 June 2020 (reduced salary for April 2020);
- USD 106,827 on 29 June 2020 (reduced salary for May 2020).
18.
The club acknowledged that it had not remitted any further payments to the player, “as it was
uncertain if it is the player’s intention to return to the club”.
19.
On account of the above, the club maintained that the player was absent without a reason and that
it tried to find a mutual agreement regarding the salary reductions, which are proportionate.
According to the club, all other player’s accepted such reduction.
20.
Therefore, the club claims that the player did not have just cause to terminate the contract on 13 July
2020.
21.
On account of the above, the club deemed to be entitled to compensation in the amount of USD
20,000, in correspondence with art. 8.2. of the contract. According to the club, such liquidated
damages clause is not excessive and proportionate.
22.
Alternatively, the club requests payment of the “positive interest” as compensation (not specified).
23.
In reply to the player’s claim, the club rejected the player’s requests and referred to its claim.
24.
In reply to the club’s claim, the player refuted the Respondent’s allegations and requested to dismiss
the club’s claim.
25.
The player denied having received the alleged email’s sent to him and been contacted by the club in
order to negotiate a salary reduction. Therefore, the player pointed out that the club did not act in
accordance with FIFA’s COVID-Guidelines and the unilateral variation shall not be applied.
Page 4 of 11
REF 20-01192
26.
Regarding his claimed salaries he stated that the club acknowledged having not remitted the salaries
on time and that it still “owes a substantial part” of the salaries between March and May 2020 as well
as the total salary of June 2020. According to the player such amount is more than the equivalent of
two full monthly salaries, which confirms that he had just cause to terminate the contract.
27.
Trabzonspor, for its part, submitted its comments to the dispute and endorsed the player’s position.
28.
Furthermore, the Turkish club pointed out that the player had just cause to terminate the contract
due to the outstanding remuneration and it questioned if Al Ahli contacted the player at all to
negotiate a reduction.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1.
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 submitted to FIFA on 20 August 2020, respectively 25 August 2020, and submitted for
decision on 29 April 2021. Taking into account the wording of art. 21 of the January 2021 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the June 2020 edition of the Procedural Rules is
applicable to the matter at hand.
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition February 2021), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a player and a club.
3.
In continuation, the Chamber analysed which regulations should be applicable as to the substance of
the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (February 2021 edition), and considering that the
claim was lodged on 20 August 2020, respectively 25 August 2020, the June 2020 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance
4.
The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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.
5.
Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the
present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par.
3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
Page 5 of 11
REF 20-01192
6.
First of all, the members of the Chamber acknowledged that, on 20 July 2018, the player and the
club had concluded an employment contract valid as from the date of its signature until 30 June 2022.
7.
Furthermore, the members of the DRC took note of the player’s claim for breach of contract as he
maintained having had just cause to terminate the contract on 13 July 2020, after having put the club
in default, due to outstanding remuneration. In this regard, the player claimed compensation for
breach of contract.
8.
The Chamber duly noted that the club, on the other hand, lodged its claim for breach of contract
alleging that the player was absent without a reason after the club had validly reduced his salary due
to COVID-19. On account of the above, the club claimed compensation for breach of contract. In line
with the above, the club rejected the player’s claim.
9.
In turn, the DRC acknowledged that the player rejected the club’s claim. He argued that the club did
not act in accordance with FIFA’s guidelines regarding COVID-19 and that he was never contacted in
order to negotiate such reduction of his salaries.
10.
Having considered the diverging position of the parties, the members of the DRC acknowledged that
the central issue in the matter at stake was to determine as to whether the contract was
terminated by the Claimant with or without just cause and to decide on the consequences
thereof.
11.
Subsequently, the Chamber turned its attention to the player’s alleged outstanding remuneration and
noted that it remained uncontested by the club that such amount was remitted. The club referred to
COVID-19 and held that had reduced the player’s salary in line with FIFA’s guidelines.
12.
Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19
outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing
appropriate guidance and recommendations to member associations and their stakeholders, to both
mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional
document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
13.
For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA
FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country
or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a
player’s salary.
14.
On account of the above, taking into account the documents provided by the parties, It remains
unclear if the club even contacted the player in order to negotiate a reduction. The player denied
having been contacted and there is no proof of the opposite on file. Therefore, there was no
agreement concluded between the parties in order to reduce the player’s salary during the COVID-19
crisis. Furthermore, the club did not submit any further documents rectifying such unilateral variation.
15.
Therefore, the Chamber concluded that the player remained entitled to receive his full salaries, since
the the club did not act in accordance with the FIFA-Guidelines in order to reduce the salary during
March and May 2020.
Page 6 of 11
REF 20-01192
16.
In this context, the DRC considered that the arguments raised by the club cannot be considered a
valid reason for non-payment of the monies claimed by the player, in other words, the reasons
brought forward by the club in its defence do not exempt it from its obligation to fulfil its contractual
obligations towards the player.
17.
Furthermore, the DRC noted that the club maintained having remitted a total of USD 371,234
between 22 June 2020 and 29 June 2020. The player, on the other side, did not contest those
payments, but held still having had just cause to terminate the contract on 13 July 2020.
18.
Taking into account the payments of the club (USD 371,234), the DRC found that the player remained
entitled to an amount of USD 462,098 (Salaries of March until June 2020: USD 833,332-USD
371,234) at the time of termination. The Chamber observed that such amount corresponds to more
than two monthly salaries.
19. Consequently, 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 Chamber decided that the
Claimant had just cause to unilaterally terminate the employment contract on 13 July 2020 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 Claimant.
20. Subsequently, prior to establishing the consequences of the termination of the employment
contract with just cause by the Claimant in accordance with art. 17 par. 1 of the Regulations, the
Chamber held that it, in general, had to address the issue of unpaid remuneration at the moment
when the contract was terminated by the Claimant.
21.
Consequently, the members of the Chamber decided that, in accordance with the general legal
principle of pacta sunt servanda, the club is liable to pay to the player outstanding remuneration in
the total amount of USD 462,098.
22. In addition, taking into consideration the player’s claim, the Chamber decided to award the player
interest at the rate of 5% p.a. as requested, as of the respective due dates.
23. Moreover, and taking into consideration art. 17 par. 1 of the Regulations, the Chamber decided
that the player is entitled to receive compensation for breach of contract from the Respondent.
24. In continuation, the Chamber focused its attention on the calculation of the amount of
compensation for breach of contract in the case at stake. In doing so, the members of 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 7 of 11
REF 20-01192
25. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contains 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.
26. As a consequence, the members of the Chamber determined that the amount of compensation
payable by the Respondent to the Claimant 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. Therefore, other objective criteria may be taken
into account at the discretion of the deciding body. In this regard, the Dispute Resolution
Chamber emphasised beforehand that each request for compensation for contractual breach has
to be assessed by the Chamber on a case-by-case basis taking into account all specific
circumstances of the respective matter.
27. The members of the Chamber then turned their attention to the remuneration and other benefits
due to the player under the existing contract and/or the new contract, which criterion was
considered by the Chamber to be essential. The members of the Chamber deemed it important
to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take
into account both the existing contract and the new contract, if any, in the calculation of the
amount of compensation.
28. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the player under the terms of the employment contract as from the date of
termination with just cause by the player until its natural expiration. Furthermore, the Chamber
took into account the amount claimed by the player and consequently, the Chamber concluded
that the amount of USD 4,999,992 serves as the basis for the final determination of the amount
of compensation for breach of contract in the case at hand.
29. 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, 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.
30. In this respect, the Chamber noted that the Claimant had found new employment and mitigated
his damages in the amount of USD 3,100,000, which leads to a mitigated compensation of USD
1,899,992.
31. Furthermore, the Chamber recalled that the termination of the employment contract by hand of
the Claimant has been effectively justified by the existence of outstanding remuneration.
Therefore, in accordance with art. 17 par.1 lit. ii) of the FIFA RSTP, the Claimant shall be entitled
to an additional compensation corresponding to three monthly salaries (i.e. USD 624,999).
Page 8 of 11
REF 20-01192
32. Consequently, on account of the above-mentioned considerations, the Chamber decided that
the Respondent must pay the amount of USD 2,524,991as compensation for breach of contract
to the Claimant, which is considered by the Chamber to be a fair and reasonable amount.
33. In addition, taking into consideration the player’s claim, the Chamber decided to award the player
interest at the rate of 5% p.a. as requested, as of the date of the claim.
34. As a conclusion the Chamber decided to partially accept the player’s claim and to reject the club’s
claim.
35. Furthermore, taking into account the consideration under number II./3. above, the Chamber
referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision,
the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of
the concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
36. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the club. More in particular, the DRC pointed out that,
against clubs, the sanction shall consist in a ban from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum duration of
three entire and consecutive registration periods.
37. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does not
pay the amount due to the player within 45 days as from the moment in which the player,
following the notification of the present decision, communicates the relevant bank details to the
club, a ban from registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective on the club
in accordance with art. 24bis par. 2 and 4 of the Regulations.
38. Finally, the Chamber recalled that the above-mentioned sanction will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 3 of the Regulations.
Page 9 of 11
REF 20-01192
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant 1 / Respondent 2, Jorge Djaniny Tavares Semedo, is partially accepted.
2.
The Respondent 1 / Claimant 2, Al Ahli, has to pay to the Claimant 1 / Respondent 2 the following
amounts:
- USD 462,098 as outstanding remuneration plus 5% interest p.a. as of 20 August 2020 until
the date of effective payment;
- USD 2,524,991 as compensation for breach of contract plus 5% interest p.a. as of 20 August
2020 until the date of effective payment.
3.
Any further claims of the Claimant 1 / Respondent 2 are rejected.
4.
The claim of Respondent 1 / Claimant 2 is rejected.
5.
The Claimant 1 / Respondent 2 is directed to immediately and directly inform Respondent 1 /
Claimant 2 of the relevant bank account to which the Respondent 1 / Claimant 2 must pay the
due amount.
6.
The Respondent 1 / Claimant 2 shall provide evidence of payment of the due amount in
accordance with this decision to [email protected], duly translated, if applicable, into one of the
official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by Respondent 1
/ Claimant 2 within 45 days, as from the notification by the Claimant 1 / Respondent 2 of the
relevant bank details to the Respondent 1 / Claimant 2, the following consequences shall arise:
1. The Respondent 1 / Claimant 2 shall be banned from registering any new players, either
nationally or internationally, up until the due amount is paid and for the maximum duration
of three entire and consecutive registration periods. The aforementioned ban mentioned
will be lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 10 of 11
REF 20-01192
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court
of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 20 of the Procedural Rules).
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 11 of 11