Dispute Resolution Chamber
Texto da decisão
REF 21-00116
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Helder Luis Lopes Vieira Tavares
COMPOSITION:
Geoff Thompson (England), Chairman
Pavel Pivovarov (Russia), member
Michelle Colucci (Italy), member
CLAIMANT:
Helder Luis Lopes Vieira Tavares, Portugal
RESPONDENT:
Giresunspor Kulubu Dernegi, Turkey
INTERVENING PARTY:
FC Voluntaria, Romania
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I.
Facts
1.
On 4 September 2020, the parties concluded an employment contract valid for the 2020/2021
and 2021/2022 seasons.
2.
Art. 6.1 of the contract stipulated the following economic terms:
► 2020/2021 Season
• 10.000,00.-Euro (paid on 28th of August 2020)
• 20.000,00.-Euro will be paid in the following two days after the medical test
• 30.000,00.-Euro will be paid in the following 1 month after the medical test (which falls on
29.09.2020)
• 120.000,00.-Euro will be paid equally as 12.000,00.-Euro in 10 months on the following dates;
• 12.000.-Euro on 30.09.2020
• 12.000.-Euro on 31.10.2020
• 12.000.-Euro on 30.11.2020
• 12.000.-Euro on 31.12.2020
• 12.000.-Euro on 31.01.2021
• 12.000.-Euro on 28.02.2021
• 12.000.-Euro on 31.03.2021
• 12.000.-Euro on 30.04.2021
• 12.000.-Euro on 31.05.2021
• 12.000.-Euro on 30.06.2021
► 2021/2022 Season
• 30.000,00.-Euro will be paid on 31.08.2021
• 30.000,00.-Euro will be paid on 30.09.2021
• 120.000,00.-Euro will be paid equally as 12.000,00.-Euro in 10 months on the following dates;
• 12.000.-Euro on 30.09.2021
• 12.000.-Euro on 31.10.2021
• 12.000.-Euro on 30.11.2021
• 12.000.-Euro on 31.12.2021
• 12.000.-Euro on 31.01.2022
• 12.000.-Euro on 28.02.2022
• 12.000.-Euro on 31.03.2022
• 12.000.-Euro on 30.04.2022
• 12.000.-Euro on 31.05.2022
• 12.000.-Euro on 30.06.2022
3.
On 9 December 2020, the legal representative of the player sent a default notice to
[email protected] , requesting the payment of EUR 66,000 within 15 days.
4.
On 28 December 2020, the legal representative of the player sent a termination letter indicating
the following:
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“2. Despite the given deadline, the Club has failed to pay, as of today, the Player's outstanding
salaries under the article 6.1. of the Contract totaling 66.000,00.-(sixty-six thousand) Euros as
follows;
Amount
Due Date
► 30.000,00.-Euros Within one month following the player's medical test;
► 12.000,00.-Euros 30.09.2020
► 12.000,00.-Euros 31.10.2020
► 12.000,00.-Euros 30.11.2020
3. For the abovementioned reason, we hereby inform you that the Contract is unilaterally
terminated in accordance with the article 14bis of FIFA Regulations on the Status and Transfer
of Players with immediate effect for cause reasons and the employment relation between the
Player and the Club has ended.
4. Please also be informed that the Player hereby reserves all his rights to claim the outstanding
receivables as well as the compensation due to his just cause termination before the judicial
bodies of FIFA.”
5.
Subsequently, the player concluded an employment contract with the Romanian club, FC
Voluntari, for a monthly salary of EUR 3,300, valid between 15 January 2021 until 31 May 2022
6.
On 14 January 2021, the player lodged a claim before FIFA for outstanding remuneration and
requested the payment of the following amounts:
- Outstanding remuneration:
EUR 66,000, further detailed as follows:
►30.000 EUR, plus 5% interest p.a. as from 29.09.2020;
► 12.000 EUR, plus 5% interest p.a. as from 30.09.2020;
► 12.000 EUR, plus 5% interest p.a. as from 31.10.2020;
- ► 12.000 EUR, plus 5% interest p.a. as from 30.11.2020;
- Compensation:
EUR 264,000, corresponding to the residual value of the contract, plus 5% interest p.a. as
from 28 December 2020.
EUR 72,000, “in accordance with article 337/c/3 of the Swiss Code of Obligations
In its reply to the claim, the club rejected the claim of the player and simultaneously lodged a
counterclaim.
7.
8.
In this regard, the club considered that the player terminated the contract without just cause,
and requested the payment of EUR 2,000,000 as compensation.
9.
According to the club, the player failed to follow the necessary steps and procedural rules as
stipulated in FIFA RSTP to unilaterally terminate his contract.
10.
Moreover, the club argued that “without meaning any acceptance, even if the unilateral
termination would be considered as happened with just cause by your honorable Chamber, the
Respondent's claims are still remains prohibitory”, and requested to mitigate the due
compensation.
11.
The club submitted a series of unorganized payment receipts, as follows:
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Name and reason
Domestic Transfer “regarding
contract”
Bursasport Match Bonus
“Bonus payment”
Bandirma Match Bonus
Altay Match Bonus
Eskisehir Match Bonus
Kecioren Match Bonus
Adanaa Demir Sport Bonus
Kecioren Match Bonus
Altinordu Match Bonus
Date
the 28.08.2020
Amount
TRL 87,000
30.9.2020
23.10.2020
20.11.2020
4.12.2020
11.12.2020
11.12.2020
18.12.2020
11.12.2020
25.12.2020
TRL 6,750
TRL 2020
TRL 2,650
TRL, 4,500
TRL 6,550
TRL 3,400
TRL 2,300
TRL 1,500
TRL 1,600
12. In his replica and reply to the counterclaim, the player underlined that
[email protected] was listed as “the Information and Transaction Manager and the
Secretary General”, and that this is the registered email in TMS.
13. As to the payment receipts, the Respondent explained that they correspond to bonuses, as
follows:
Date
Explanation
Amount
30.09.2020 Bursaspor Match Bonus
6.750 TL
23.10.2020 Bonus Payment
2.400 TL
20.11.2020 Bandirma Match Bonus
2.650 TL
4.12.2020 Altay Match Bonus
4.500 TL
11.12.2020 Eskisehir Match Bonus
6.650 TL
11.12.2020 Kecioren Match Bonus
1.500 TL
11.12.2020 Remaning Kecioren Match Bonus 3.400 TL
18.12.2020 Adana Demir Match Bonus
2.300TL
14. Despite being invited to do so, the intervening party failed to provide any comments.
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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.
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 aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised 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, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs, as it is the case in the matter
at hand.
3. In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the January 2021 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at
hand.
4. With the above having been established, the Dispute Resolution Chamber entered into
the substance of the matter. In doing so, it started to acknowledge the facts of the case
as well as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
5. In this respect, the Chamber noted that, on 4 September 2020, the parties concluded an
employment contract valid for the 2020/2021 and 2021/2022 seasons with the
remuneration stated in point I. 2 above.
6. Subsequently, the Chamber observed the player lodged a claim before FIFA against the
club for outstanding remuneration and breach of contract without just cause, arguing
that on 28 December 2020 he terminated the contract with just cause and in accordance
with article 14bis of FIFA Regulations on the Status and Transfer of Players
7. On the other hand, the Chamber took note of the club’s position, according to which the
player terminated the contract without just cause, as he failed to follow the necessary
steps and procedural rules as stipulated in FIFA RSTP to unilaterally terminate his contract.
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8. In view of the above, the Chamber understood that the main legal issue at stake is to
determine whether the player had a just cause to terminate the contract on 28 December
2020.
9. In this respect, the Chamber was eager to emphasise that only a breach or misconduct
which is of a certain severity justifies the termination of a contract. In other words, only
when there are objective criteria, which do not reasonably permit to expect a
continuation of the employment relationship between the parties, a contract may be
terminated prematurely. Hence, if there are more lenient measures which can be taken
in order for an employer to ensure the employee’s fulfilment of his contractual duties,
such measures must be taken before terminating an employment contract. A premature
termination of an employment contract can only ever be an ultima ratio measure.
10. In this respect, the Chamber first observed that the player terminated the contract on 28
December 2020 after having put the club in default, specifically directing the default
letter to the club’s TMS email address. As a result, the Chamber understood that the
default letter was properly sent. As a result, the Chamber dismissed the Respondent’s
arguments as to the player’s compliance with the necessary formal elements related to
the default notices.
11. Moreover, the Chamber noted that, in his default letter of 9 December 2020 and his
termination letter of 28 December 2020, the Claimant requested the payment of the
outstanding amount of EUR 66,000, which was due as follows:
Amount
Due Date
► 30.000,00.-Euros Within one month following the player's medical test;
► 12.000,00.-Euros 30.09.2020
► 12.000,00.-Euros 31.10.2020
► 12.000,00.-Euros 30.11.2020
12. In relation to said payments, the Chamber observed that the Respondent submitted a
series of unorganized payment receipts, as follows:
Name and reason
Date
Amount
Domestic Transfer “regarding the 28.08.2020
TRL 87,000
contract”
Bursasport Match Bonus
30.9.2020
TRL 6,750
“Bonus payment”
23.10.2020
TRL 2020
Bandirma Match Bonus
20.11.2020
TRL 2,650
Altay Match Bonus
4.12.2020
TRL, 4,500
Eskisehir Match Bonus
11.12.2020
TRL 6,550
Kecioren Match Bonus
11.12.2020
TRL 3,400
Adanaa Demir Sport Bonus
18.12.2020
TRL 2,300
Kecioren Match Bonus
11.12.2020
TRL 1,500
Altinordu Match Bonus
25.12.2020
TRL 1,600
13. In relation to the aforementioned table, the Chamber understood that none of them
related to the three outstanding salaries claimed by the player, and neither to the
payment of EUR 30,000 that was due following 1 month after the medical test.
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14. As a result, the Chamber considered that it could be established that, at the date of
termination of the contract, the Respondent owed to the Claimant the amount of EUR
66,000, corresponding to his salaries of September, October and November 2020, as
well as the additional payment of EUR 30,000.
15. Consequently, the Chamber concurred that the Respondent had seriously neglected its
financial contractual obligations towards the Claimant.
16. On account of the above and taking into consideration the Chamber’s longstanding
jurisprudence in this respect, the Chamber decided that the Claimant had just cause to
unilaterally terminate the contract on 28 December 2020 and that the Respondent is
to be held liable for the early termination of the contract with just cause by the player.
17. However, and before into the consequences of said termination, the Chamber went
on to examine whether there are any outstanding financial liabilities due by the
Respondent to the Claimant.
18. In this respect, and as noted above, the Chamber noted that the amount of EUR 66,000
remains outstanding, corresponding to his salaries of September, October and
November 2020, as well as the additional payment of EUR 30,000.
19. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, the
total outstanding amount of EUR 66,000, as detailed above.
20. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5%
interest p.a. over said amount as from the due dates.
21. In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided that,
in accordance with art. 17 par. 1 of the Regulations, the club is liable to pay
compensation to the player.
22. In this respect, 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.
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23. 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.
24. 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. Therefore,
other objective criteria may be taken into account at the discretion of the deciding
body.
25. 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 in the calculation of the amount of compensation.
26. 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 its
date of termination with just cause, i.e. December 2020 until 30 June 2020, and
concluded that the Claimant would have received in total EUR 264,000, detailed as
follows:
• 12.000.-Euro on 31.12.2020
• 12.000.-Euro on 31.01.2021
• 12.000.-Euro on 28.02.2021
• 12.000.-Euro on 31.03.2021
• 12.000.-Euro on 30.04.2021
• 12.000.-Euro on 31.05.2021
• 12.000.-Euro on 30.06.2021
► 2021/2022 Season
• 30.000,00.-Euro will be paid on 31.08.2021
• 30.000,00.-Euro will be paid on 30.09.2021
• 120.000,00.-Euro will be paid equally as 12.000,00.-Euro in 10 months on the
following dates;
TOTAL: EUR 264,000
27. Consequently, the Chamber concluded that the amount of EUR 264,000 serves as the basis
for the final determination of the amount of compensation for breach of contract in the
case at hand.
28. 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
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which he would have been enabled to reduce his loss of income. In particular, the
Chamber referred to art. 17 par. 1 I of the Regulations, according to which, for the
calculation of the compensation “in case the player signed a new contract by the time of
the decision, the value of the new contract for the period corresponding to the time
remaining on the prematurely terminated contract shall be deducted from the residual
value of the contract that was terminated early (the “Mitigated Compensation”)”
29. In this respect, the Chamber verified that the player concluded an employment contract
with the Romanian club, FC Voluntari, for a monthly salary of EUR 3,300, valid between
15 January 2021 until 31 May 2022. The Chamber therefore estimated that the value of
said contract is 16.5*3,300=EUR 54,450.
30. Therefore, at this stage, the Chamber understood that the value of the mitigated
compensation corresponds to EUR 209,550 (i.e. EUR 264,000 – 54,450).
31. In addition, the Chamber referred to art. 17 par. 1 ii of the Regulations, which stipulated
that subject to the early termination of the contract being due to overdue payables, in
addition to the Mitigated Compensation, the player shall be entitled to an amount
corresponding to three monthly salaries (the “Additional Compensation”).
32. In application of the aforementioned principle, the Chamber estimated that three
monthly salaries, which can be estimated in EUR 15,000 per month (i.e.
30,000+30,000+120,000/12= 15,000), i.e. 15,000*3= EUR 45,000.
33. As a result, the Chamber understood that at this stage, the payable compensation would
amount to EUR 254,550 (EUR 209,550 + 45,000)
34. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided to partially accept the player’s
claim and that the club must pay the amount of EUR 254,550 as compensation for breach
of contract in the case at hand.
35. In addition, taking into account the Claimant’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Chamber decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the aforementioned amount as of the
date of the claim.
36. Furthermore, taking into account the previous considerations, the Dispute Resolution
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.
37. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
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38. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that the Respondent does not pay the amounts due to the Claimant within 45
days as from the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
39. Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Helder Luis Lopes Vieira Tavares, is partially accepted.
2.
The Respondent, Giresunspor Kulubu Dernegi, has to pay to the Claimant, the following
amount:
- EUR 66,000 as outstanding remuneration, plus interest as follows:
- 5% interest over the amount of EUR 30,000 as from 30 September 2020 until the date
of effective payment;
- 5% interest over the amount of EUR 12,000, as from 1 October 2020 until the date of
effective payment;
- 5% interest over the amount of EUR 12,000, as from 1 November 2020 until the date
of effective payment;
- 5% interest over the amount of EUR 12,000, as from 1 December 2020 until the date
of effective payment.
- EUR 254,550 as compensation for breach of contract without just cause, plus 5%
interest p.a. as from 14 January 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the
relevant bank account to which the Respondent must pay the due amount.
5.
The Respondent 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).
6.
In the event that the amount due, plus interest as established above is not paid by the
Respondent within 45 days, as from the notification by the Claimant of the relevant
bank details to the Respondent, the following consequences shall arise:
1. The Respondent 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
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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:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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