Dispute Resolution Chamber
Texto da decisão
REF 20-01115
Decision of the
Dispute Resolution Chamber
passed on 18 June 2021
regarding an employment-related dispute concerning the player Rémi WALTER
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
José Luis Andrade (Portugal), member
Tomislav Kasalo (Croatia), member
CLAIMANT / COUNTER-RESPONDENT 1 :
Rémi WALTER, France
Represented by Mr Christophe Bertrand
RESPONDENT / COUNTER-CLAIMANT:
Yeni Malatyaspor, Turkey
Represented by Mr Burak Çakir
COUNTER-RESPONDENT 2:
Kansas City Sporting Club, United States of America
Represented by Centrefield LLP
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I.
FACTS OF THE CASE
1.
On 22 January 2020, the French player, Rémi Walter (hereinafter: player or Claimant /
Counter-Respondent 1) and the Turkish club, Yeni Malatyaspor (hereinafter: Yeni
Malatyaspor of Respondent / Counter-Claimant) concluded an employment contract valid
as from the date of signature until 31 May 2021.
2.
The player’s remuneration with Yeni Malatyaspor was the following (all amounts are net):
EUR 71,250 due on 22 January 2020,
5 instalments of EUR 95,000 each, due between 30 January 2020 and 30 May
2020,
EUR 71,250 due on 30 June 2020,
10 instalments of EUR 95,000 each, due between 30 August 2020 and 30 May
2021.
3.
On 21 April 2020, the player sent Yeni Malatyaspor a default notice concerning outstanding
remuneration in the total amount of EUR 237,500 corresponding to his salaries of January
(half), February and March 2020.
4.
On 6 May 2020, Yeni Malatyaspor replied to the player, referring to a situation of force
majeure due to the Covid-19 outbreak and the subsequent suspension of the league as a
reason for the delays in payment. The club ensured the player that it would proceed to an
immediate payment of EUR 20,000 in connection with January 2020, the balance of January
2020 at the end of May 2020 and the salary of February 2020 would be paid in July 2020.
5.
On 30 April 2020, Yeni Malatyaspor paid the player EUR 20,000.
6.
On 25 June 2020, Yeni Malatyaspor paid the player EUR 65,000.
7.
On 2 July 2020, the player replied to Yeni Malatyaspor, denying that the concept of force
majeure is applicable in the present case and insisting on the payment of EUR 342,500 within
the next 15 days.
8.
On 20 July 2020, having received no response from Yeni Malatyaspor to his letter of 2 July
2020, the player terminated their employment contract.
9.
The player registered with the US club, Kansas City Sporting Club (hereinafter: Kansas City
SC or the Counter-Respondent 2), following a decision of the Single Judge of the Players’
Status Committee dated 14 April 2021.
10.
Prior to that, the player had concluded an “MLS standard agreement” with the Major
League Soccer, valid as from 1 January 2021 until 31 December 2023.
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11.
According to the said agreement, the player earns the following remuneration:
USD 54,166.67 per month from 1 January 2021 until 31 December 2021,
USD 66,666.67 per month from 1 January 2022 until 31 December 2022,
USD 80,833.34 per month from 1 January 2023 until 31 December 2023.
12.
The agreement further mentions that the MLS will “automatically withhold from your
compensation any applicable income and/or payroll taxes and shall make any deductions as
directed by you”.
13.
With respect to the withholding of taxes, the player provided two “earning statements” for
the period 1-15 April 2021 and 16-30 April 2021, according to which the player’s net salary
was USD 18,050.92 + USD 17,975.23. The player concludes that his net monthly
remuneration is USD 36,026.15.
II.
PROCEEDINGS BEFORE FIFA
14.
On 4 August 2020, the Claimant / Counter-Respondent 1 filed a claim for outstanding
remuneration and compensation for breach of contract against the Respondent / CounterClaimant before FIFA. The Respondent / Counter-Claimant reacted to the player’s claim by
lodging a counter-claim against the latter. In light of the counter-claim and the possible
consequences arising from it in light of the provisions of art. 17 par. 2 and art. 17 par. 4 of
the Regulations on the Status and Transfer of Players, the FIFA administration extended
such counter-claim to the player’s new club, i.e. Kansas City SC. A summary of the parties’
respective positions as to the present dispute is included below.
a.
The claim of the Claimant / Counter-Respondent 1
15.
According to the player, he received the first payment of EUR 71,250 as well as EUR 47,500
at the start of the employment relationship with Yeni Malatyaspor, however after these two
payments the player did not receive any further amounts from the latter club.
16.
Following his default notice dated 21 April 2020, Yeni Malatyaspor refused to proceed to
the payment of his overdue payables invoking a situation of force majeure and explaining
that it would not be in a position to pay these immediately.
17.
In the player’s view, Yeni Malatyaspor was not in a position to arbitrarily decide upon the
suspension of payment of his salaries, since the parties had not agreed on such suspension,
nor had there been any collective bargaining agreement which the said club could invoke.
18.
The player objected to the Respondent / Counter-Claimant’s proposal for a postponement
of the payment of his remuneration by letter dated 2 July 2020 and sent them another
default notice to pay all accrued salaries within 15 days.
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19.
Having received no response, the player terminated the contract unilaterally on 20 July
2021.
20.
Given the afore-described circumstances, the player deems that he had just cause to
terminate the contract in accordance with art. 14bis of the Regulations on the Status and
Transfer of Players.
21.
Furthermore, the player referred to the FIFA Covid-19 Guidelines and stated that Yeni
Malatyaspor could not proceed unilaterally to the variation of his contract in the absence
of an agreement or a collective bargaining agreement to this effect.
22.
The requests for relief of the Claimant / Counter-Respondent 1 were the following:
b.
Outstanding remuneration: EUR 342,500 (corresponding to the due amounts for the
season 2019/2020, i.e. EUR 546,250, minus the amounts received until the
termination, i.e. EUR 203,750)
Compensation for breach of contract: EUR 1,363,750 as residual value of the contract
+ EUR 1,000,000 as additional (moral) damage,
EUR 10,000 as legal fees,
5% interest on all amounts as from 21 April 2020.
Position of the Respondent / Counter-Claimant
23.
In reply to the player’s claim, Yeni Malatyaspor rejected such claim and lodged a counterclaim against the player.
24.
In this regard, Yeni Malatyaspor underlined the difficult financial situation in which it found
itself through March, April and May 2020 due to the Covid-19 outbreak and suspension of
the Turkish league. In particular, according to the “financial studies” it carried out, it was
determined that Yeni Malatyaspor had lost 30% of its seasonal income.
25.
Furthermore, Yeni Malatyaspor referred to the directive named “TFF Recommendations on
Contracts” issued by the Turkish Football Federation, according to which it has been
recommended to sign contracts based on consensus.
26.
Equally, according to the FIFA Covid-19 Guidelines, clubs were unilaterally entitled to
decrease players’ remuneration if no agreement could be reached with them subject to the
criteria of good faith, reasonableness and proportionality.
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27.
In this context, Yeni Malatyaspor highlighted that on 19 April 2020, it sent an email to the
player with the intention to start negotiations. According to the club, the player did not
reply to such email.
28.
The Respondent / Counter-Claimant further stressed that it had sought cooperation with
all its football players. In that sense, on 6 May 2020 it sent the player a letter seeking his
cooperation in light of the situation of force majeure.
29.
Furthermore, Yeni Malatyaspor stated that it had made the following payments:
USD 79,000 on 23 January 2020,
EUR 47,500 on 12 February 2020,
EUR 20,000 on 30 April 2020,
USD 65,000 on 26 June 2020,
USD 79,000 on 30 July 2020.
30.
According to Yeni Malatyaspor, it made the maximum effort to reach a mutual agreement
with the player, however “all offers of the club were left unanswered by the player”.
31.
Furthermore, the Respondent / Counter-Claimant alleged that the player’s legal
representative had verbally assured them he would not take any legal action before the
force majeure situation would be resolved. As a matter of fact, the player kept playing for
Yeni Malatyaspor.
32.
Yeni Malatyaspor emphasised that it was struggling to remain in the League and had some
very important matches to play towards the end of the season. However, one week before
the last match of the league, the player notified the club of the termination of the contract.
33.
The player was considered one of the most important players to save the club from
relegation; he did not play in the last match of the league and consequently Yeni
Malatyaspor lost the match and was relegated.
34.
Thus, according to Yeni Malatyaspor, it “suffered a great loss due to Remi Walter's unilateral
termination without just cause of his contract and not playing in the last game”.
35.
Yeni Malatyaspor believes that the player terminated the contract during a time where the
club could not honour its financial obligations due to force majeure and therefore the
termination was without just cause. “Proof of this is; the player admitted this is an
exceptional situation and continued to play matches”.
36.
Finally, Yeni Malatyaspor wished to emphasise that “In Club history, none of the players
have unilaterally terminated their contract in previous periods”.
Requests for relief:
EUR 1,310,000 plus 5% interest as from 20 July 2020
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c.
Player’s reply to Yeni Malatyaspor’s counter-claim
37.
In reply to Yeni Malatyaspor’s counter-claim, the player insisted that he terminated the
contract with just cause in accordance with art. 14bis of the Regulations on the Status and
Transfer of Players.
38.
In particular, the player once again rejected the club’s arguments as to the existence of a
force majeure, referring to “FIFA’s position”.
39.
The player also underlined that his case was not an isolated one, since one of his team
mates, M. Ghaylen Chaaleli, was also forced to terminate his contract in light of overdue
payables. His claim was accepted by the Dispute Resolution Chamber. Thus, the player
states that Yeni Malatyaspor is in bad faith when claiming that none of its players have ever
unilaterally terminated their contract.
40.
In continuation, the player underlined that Yeni Malatyaspor was already in breach of its
financial obligations already in January 2020, i.e. prior to the Covid-19 outbreak. In this
regard, Yeni Malatyaspor never provided an explanation to the player with respect to the
delay in payment of his salaries between January and March 2020.
41.
Furthermore, the player denied having received the amount of USD 79,000 on 30 July 2020.
Indeed, according to him, the cheque which the club provided as evidence of payment of
this amount was post-dated and was in fact given to the player in January 2020. As proof
of this, the player underlined that the cheque dated 30 July 2020 which the club produced
bears the number 1401649 whereas the cheque dated 23 January 2020 bears the number
1401650. Furthermore, the player held that he was still in possession of the cheque for USD
79,000 dated 30 July 2020, as it was impossible for him to cash it due to insufficient funds
as well as the fact that the date on the cheque was posterior to his unilateral termination
of the contract.
42.
The player stated that Yeni Malatyaspor never contacted him to negotiate the terms of the
employment relationship. Equally, the player denied that he had accepted the situation or
accepted a reduction of his remuneration. The player rather kept playing with the club in
order not to put his teammates in a difficult situation from a sportive point of view and in
the hope that the club would remedy its default.
43.
The player concludes that Yeni Malatyaspor is in bad faith and that the latter used the
concept of force majeure in order to escape from its contractual obligations.
44.
On the contrary, the player always honoured his contractual obligations by being at the
club’s disposal throughout the duration of the employment relationship.
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45.
The player also denied having received Yeni Malatyaspor’s email dated 19 April 2020, and
underlines that there is no attachment to such email. Furthermore, the player produced a
list of all emails exchanged with the club as evidence that he did not receive the email in
question.
46.
Finally, with respect to his contractual situation following the termination of the contract
with Yeni Malatyaspor, the player emphasised that he first remained unemployed during
the second half of 2020. He only concluded a new employment contract with Kansas City
SC starting on 1 January 2021.
47.
In conclusion, the player reiterated his requests for relief as formulated in his claim.
d.
Kansas City SC’s reply to Yeni Malatyaspor’s counter-claim
48.
In reply to Yeni Malatyaspor’s counter-claim, the Counter-Respondent 2 first submitted that
the Dispute Resolution Chamber does not have jurisdiction to hear a claim against it in this
matter and should not be a party to these proceedings.
49.
In this regard, Kansas City SC held that Yeni Malatyaspor did not identify them as a
Respondent when filing the counterclaim, nor has it requested FIFA to add Kansas City SC
as a party to the proceedings.
50.
Kansas City SC underlined that there are no provisions within the Procedural Rules which
would allow FIFA to unilaterally add parties to proceedings.
51.
Furthermore, and with respect to the applicability of art. 17 par. 2 of the Regulations on
the Status and Transfer of Players, Kansas City SC stated that the player’s registration is not
held by Kansas City SC but by the MLS. “As such, it is the MLS which is the “new club” for
the purposes of art. 17 par. 2 of the RSTP, not [Kansas City] so FIFA has sought to join the
wrong party in the proceedings”.
52.
Kansas City SC underlined that “there is not a timely or perceivable connection between
the termination of the Contract and the Player entering into the MLS Contract”, since the
player found new employment after the unilateral termination of the contract with
Malatyaspor only five months after said termination. In that sense, according to Kansas City
SC, it (and/or the MLS) cannot be held jointly and severally liable to pay any compensation
due to its mere capacity as the Player’s new club. The Counter-Respondent 2 added that
the automatic imposition of joint and several liability (particularly in the absence of any
inducement) constitutes a threat to players’ rights to free movement and constitutes an
unlawful restraint of trade.
53.
Equally, Kansas City SC rejected the application of art. 17 par. 4 (inducement), reiterating
that the player signed a contract with them only 5 months after the termination. Moreover,
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the player’s International Transfer Certificate was issued by the Turkish Football Federation
without any issues raised.
54.
With respect to the unilateral termination of the contract by the player, quod non, Kansas
City SC held that the player had terminated the contract with just cause in accordance with
art. 14bis of the RSTP. The Counter-Respondent 2 entirely supported the player’s position,
in particular with respect to the concept of force majeure.
55.
Finally, with respect to Yeni Malatyaspor’s claim for compensation, Kansas City SC
underlined that “it is wholly unparticularised, arbitrary and unsupported by any evidence
whatsoever”.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
56.
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 04 August 2020 and submitted
for decision on 18 June 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 aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
57.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed 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 French player, a
Turkish club and a US club.
58.
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 Player (edition February 2021), and
considering that the present claim was lodged on 04 August 2020, the June 2020 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
59.
Burden of proof
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
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wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
60.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
61.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
62.
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 whether the player terminated
his employment contract with Yeni Malatyaspor with or without just cause.
63.
The player relies on the provisions of art. 14bis of the Regulations and states that,
considering the amounts outstanding at the time he terminated the contract on 20 July
2020, he terminated the relevant contract with just cause.
64.
The Respondent / Counter-Claimant, for its part, explains that it faced an unprecedented
financial crisis due to the Covid-19 outbreak and relies on the concept of force majeure,
which implied that it was entitled to suspend the player’s salaries. Yeni Malatyaspor also
alleges having tried to find an agreement with the player with respect to a variation to the
financial terms of their contract, to no avail. Yeni Malatyaspor also provided some
documentation pertaining to the payments made to the player, payments which the player
has in part contested.
65.
In order to assess the issue of the player having unilaterally terminated the contract with or
without just cause, the Chamber held that it must determine whether the Respondent /
Counter-Claimant had any overdue payables towards the player at the time of termination
of the contract and if so, to which extent.
66.
In this regard, the DRC duly noted that the Respondent / Counter-Claimant had presented
some documents which referred to several payments allegedly made to the player as
follows:
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USD 79,000 on 23 January 2020,
EUR 47,500 on 12 February 2020,
EUR 20,000 on 30 April 2020,
USD 65,000 on 26 June 2020,
USD 79,000 on 30 July 2020.
67.
From these alleged payments, the player contested having received the amount of USD
79,000 and states that he was given a cheque in this amount, which was post-dated to 30
July 2020 but that he could not cash this cheque (cf. par. 41 above).
68.
Having duly analysed the said cheque and explanations given by the player, the Chamber
found that it does appear that this cheque was post-dated and was in fact issued before
the other cheque in the amount of USD 79,000 dated 23 January 2020. In any event, Yeni
Malatyaspor did not provide proof that the player effectively received the amount in
question.
69.
As a consequence, the Chamber held that the club did not prove having made a payment
of USD 79,000 to the player on 30 July 2020.
70.
With this in mind and having thoroughly analysed the entire documentation provided by
the parties, the Chamber established that, in the season 2019/2020, the player only received
a total amount of EUR 203,750 whereas, according to the relevant employment contract,
he should have received a total of EUR 546,250.
71.
It follows that the amount of EUR 342,500 was overdue at the time the player terminated
the contract with Yeni Malatyaspor unilaterally, i.e. on 20 July 2020.
72.
At this point, the Chamber recalled the provisions of art. 14bis of the Regulations, according
to which a player is deemed to have just cause to terminate an employment contract if
his/her club finds itself in default of payment of at least two month of salary and the player
has put the club in default and granted the club at least 15 days to remedy the default.
73.
Bearing the aforementioned principles in mind, the DRC found that the Claimant player
had followed the criteria set in art. 14bis of the Regulations prior to terminating the
contract. Thus, in principle, the Claimant terminated the respective contract with just cause.
74.
The Chamber then moved on to the reasons provided by Yeni Malatyaspor as to why it had
failed to proceed to the player’s timely payment of his remuneration, this is, the financial
difficulties it was experiencing due to the Covid-19 pandemic.
75.
In this regard, the Chamber referred 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
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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.
76.
Analysing the concept of a situation of force majeure, the members of the Chamber noted
that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ,
the COVID-19 outbreak was not to considered a force majeure situation in any specific
country or territory. Also, in line with the aforementioned guidelines, no specific
employment or transfer agreement was impacted by the concept of force majeure.
77.
Turning to the content of the file, the Chamber were eager to emphasize that, in this
particular matter, the Respondent / Counter-Claimant did not submit any documentary
evidence that the situation it faced was to be considered a situation of force majeure, nor
that the Covid-19 pandemic was declared a situation of force majeure in Turkey.
78.
Furthermore, and as to an alleged proposal sent to the player regarding the reduction of
his salaries, the Chamber noted that, according to the Respondent / Counter-Claimant, it
had sent an email to the player on 19 April 2020 with the intent to start negotiations. In
this regard, the Chamber noted that the email in question, as produced by Yeni Malatyaspor
in support of its statement of defence, did not contain any attachment. Furthermore, the
player had denied having received an email from the said club. As a consequence, the
Chamber held that it could not assess the existence of such email or Yeni Malatyaspor’s
alleged will to find a solution with the player regarding the payment of his remuneration.
79.
In conclusion, the DRC found that Yeni Malatyaspor could not prove having, in good faith,
contacted the player in order to discuss the possibility of a reduction of his salaries.
80.
Furthermore, the Chamber also wished to the explicit wording of FAQ no. 16, as well as
pages 6 and 7 of the FIFA COVID-19 Guidelines, according to which said guidelines are only
applicable to “unilateral variations to existing employment agreements”. Therefore, the
guidelines do not apply to unilateral terminations of existing employment agreements, as
was the case in the matter at hand. The members of the Chamber further noted that for
the assessment of disputes that arise before the FIFA judicial bodies concerning unilateral
termination of a contract, the FIFA Regulations as well as the established jurisprudence of
the Chamber, shall apply.
81.
In view of the above, and reverting to the facts of the present matter, the DRC established
that at the time of termination, a substantial part of the outstanding remuneration due to
the Claimant had fallen due prior to the Covid-19 pandemic. In fact, Yeni Malatyaspor’s
default in payment started before the Covid-19 outbreak since the player’s first default
notice dated 21 April 2020 pertained to the salaries of January, February and March 2020.
In this regard, the Chamber wished to underline that the Covid-19 outbreak may not be
used as an opportunity to escape from debts that arose before its outbreak.
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82.
Equally, the Chamber noted that the player gave the Respondent / Counter-Claimant a
substantial amount of time in order to remedy the default, having terminated the contract
on 20 July 2020. During that time, the player kept on playing for Yeni Malatyaspor despite
the fact that he had not received his remuneration. Indeed, the DRC noted that this matter
is very similar as to the facts to the case 20-01138 involving Mr Ghaylen Chaaleli, in which
the DRC has previously found that, in similar circumstances, Mr Chaaleli had terminated the
employment contract with Yeni Malatyaspor with just cause.
83.
In summary, the Chamber established that, when the Claimant terminated the contract on
20 July 2020, the total amount of EUR 342,500, representing a part of the salary of February
2020, as well as the full salaries of March, April and May 2020 were outstanding.
Furthermore, on 30 June 2020, the amount of EUR 71,250 became due and remained
outstanding when the player terminated the contract. Finally, the player had provided Yeni
Malatyaspor with 15 days to remedy the default, to no avail.
84.
In conclusion, the Chamber decided that the Claimant / Counter-Respondent 1 had just
cause to unilaterally terminate the employment contract with the Respondent / CounterClaimant on 20 July 2020.
85.
In view of the foregoing considerations, the Respondent / Counter-Claimant is to be held
liable for the early termination of the employment contact. As a first consequence, Yeni
Malatyaspor’s counter-claim against the player is rejected since it is established that the
latter was no longer bound by their contract as of 20 July 2020 and had had just cause to
terminate the contract unilaterally.
86.
Bearing in mind the previous considerations, the Chamber went on to deal with the
consequences of the early termination of the employment contract with just cause by the
player.
87.
First, the Chamber concurred that the Respondent / Counter-Claimant must fulfil its
obligations as per employment contract up until the date of termination of the contract in
accordance with the general legal principle of pacta sunt servanda.
88.
On account of the above considerations and the documentation on file, the Chamber
decided that the Respondent / Counter-Claimant is liable to pay to the player the
remuneration that was outstanding at the time of the termination i.e. the amount of EUR
413,750, consisting of part of February 2020, as well as the full salaries of March, April and
May 2020 as well as the lump sum payment due on 30 June 2020.
89.
In addition, taking into account the Claimant / Counter-Repsondent’s claim as well as the
Chamber’s longstanding
jurisprudence in this respect, the Chamber decided to award the Claimant interest of 5%
p.a. on the said amount as follows:
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o
o
o
o
o
5% interest p.a. on the amount of EUR 57,500 as from 21 April 2020 until the date of
effective payment,
5% interest p.a. on the amount of EUR 95,000 as from 21 April 2020 until the date of
effective payment,
5% interest p.a. on the amount of EUR 95,000 as from 1 May 2020 until the date of
effective payment,
5% interest p.a. on the amount of EUR 95,000 as from 31 May 2020 until the date of
effective payment,
5% interest p.a. on the amount of EUR 71,250 as from 30 June 2020 until the date of
effective payment.
90.
Furthermore, the DRC held that the player shall send back the cheque which he could not
cash, ie. Cheque no. 1401649 dated 30 July 2020 for the amount of USD 79,000 to the
Respondent / Counter-Claimant.
91.
In continuation, the Chamber decided that, taking into consideration art. 17 par. 1 of the
Regulations, the player is entitled to receive from Yeni Malatyaspor compensation for
breach of contract in addition to any outstanding remuneration on the basis of the relevant
employment contract.
92.
In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
93.
Furthermore, the Chamber established that, considering the player terminated the contract
due to overdue payables, art. 17 par. i and ii. apply to the present matter.
94.
In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a 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.
95.
Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
Chamber took into account the remuneration due to the Claimant in accordance with the
employment contract as well as the time remaining on the same contract, along with the
professional situation of the Claimant after the early termination occurred. In this respect,
the Chamber pointed out that at the time of the termination of the employment contract on
20 July 2020, the contract would run until 30 May 2021, this is, for another season.
Consequently, taking into account the financial terms of the contract, the Chamber
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concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to EUR 950,000 and that such
amount shall serve as the basis for the final determination of the amount of compensation
for breach of contract.
96.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the player was able to mitigate his
damage by concluding a new employment contract with the US club, Kansas City SC.
According to the terms of this contract, the player would earn, during the period overlapping
with the contract with Yeni Malatyaspor, this is, five months in total, an amount of USD
180,130.75 (USD 36,026.15 net monthly). The conversion of such amount into Euros, which
is the currency of the contract with Yeni Malatyaspor, gives a total amount of EUR 146,850
(conversion rate of 1 January 2021, date on which the contract with Kansas City FC was
signed).
97.
As a result, the DRC concluded that the mitigated compensation amounts to EUR 874,400.
98.
Furthermore, the DRC emphasised that, pursuant to art. 17 par. 1 lit ii. of the Regulations, a
player, in case of the early termination of the contract being due to overdue payables, in
addition to the mitigated compensation, shall also be entitled to an amount corresponding
to three monthly salaries (i.e. the additional compensation). What is more, in case of
egregious circumstances, the additional compensation may be increased to a maximum of
six monthly salaries. Finally, the overall compensation may never exceed the rest value of the
prematurely terminated contract.
99.
Applying the aforementioned provision to the matter at stake, the Chamber held that adding
the additional compensation would exceed the rest value of the contract that was breach
and that, consequently, the player is entitled to an amount of compensation corresponding
to the rest value of the contract, i.e. EUR 950,000.
100. Furthermore, 5% interest p.a. shall apply on the amount of compensation, as from 4 August
2020, i.e. the date on which the claim was filed, until the date of effective payment.
ii. Compliance with monetary decisions
101. Finally, 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.
102. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to
pay the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid and for the maximum
duration of three entire and consecutive registration periods.
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103. Therefore, bearing in mind the above, the DRC 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, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
104. The DRC recalled that the above-mentioned bans 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.
105. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
106. The Chamber recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided
that no procedural compensation shall be awarded in these proceedings.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant / Counter-Respondent 1, Remi WALTER, is partially accepted.
2.
The Respondent / Counter-Claimant, Yeni Malatyaspor, has to pay to the Claimant the
following amounts:
- EUR 413,750 as outstanding remuneration plus 5% interest p.a. as follows:
o 5% interest p.a. on the amount of EUR 57,500 as from 21 April 2020 until
the date of effective payment,
o 5% interest p.a. on the amount of EUR 95,000 as from 21 April 2020 until
the date of effective payment,
o 5% interest p.a. on the amount of EUR 95,000 as from 1 May 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of EUR 95,000 as from 31 May 2020 until the
date of effective payment,
o 5% interest p.a. on the amount of EUR 71,250 as from 30 June 2020 until the
date of effective payment,
- EUR 950,000 as compensation for breach of contract plus 5% interest as from 4 August
2020 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 1 are rejected.
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4.
The counter-claim of the Respondent / Counter-Claimant is rejected.
5.
The Claimant / Counter-Respondent 1 must return the cheque no. 1401649 dated 30 July
2020 for the amount of USD 79,000 to the Respondent / Counter-Claimant.
6.
The Claimant / Counter-Respondent 1 is directed to immediately and directly inform the
Respondent of the relevant bank account to which the Respondent must pay the due amount.
7.
The Respondent / Counter-Claimant 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).
8.
In the event that the amount due, plus interest as established above is not paid by the
Respondent / Counter-Claimant within 45 days, as from the notification by the Claimant /
Counter-Respondent 1 of the relevant bank details to the Respondent / Counter-Claimant,
the following consequences shall arise:
1. The Respondent / Counter-Claimant 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:
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
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