Dispute Resolution Chamber
Texto da decisão
REF 20-01718 / FPSD-408
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Cameron Zishan RanaJerome
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Cameron Zishan Rana-Jerome, United Kingdom
Represented by Sami Dinc
RESPONDENT:
Goztepe AS, Turkey
Represented by Ludovic Deléchat
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I.
FACTS OF THE CASE
1.
On 31 August 2018, the British player, Cameron Zishan Rana-Jerome (hereinafter:
Claimant), and the Turkish club, Goztepe AS (hereinafter: Respondent) signed an
employment contract valid as from said date until 31 May 2020.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the following sums during respectively the season 2018/2019 and
2019/2020:
2018/2019 football season: Total net amount of EUR 975,000 to be paid in 10 (ten)
equal monthly instalments (EUR 97,500) between August 2018 and May 2019.
2019/2020 football season: Total net amount of EUR 1,000,000 to be paid in 10
(ten) equal monthly instalments (EUR 100,000) between August 2019 and May
2020.
3.
Furthermore, according to the Contract, the Respondent should have provided the Claimant
with 2 economy flight tickets, a car and monthly payment of EUR 1,500 for the
accommodation of the Claimant
4.
Finally, several bonus payments have been agreed by the Parties under the employment
contract, each depending on the final ranking of the team at the end of both seasons
2018/2019 and 2019/2020.
5.
On 28 April 2020, the Respondent sent an email to its players, informing them of the
possible financial losses in result of the COVID-19 outbreak and anticipating the potential
need for a reduction of the salaries in order to face said losses.
6.
By means of letter dated 23 May 2020, the Respondent officially requested all its affiliated
players (including the Claimant) to apply a reduction of the salaries due to the COVID-19
outbreak, namely in the amount of 20% and to be based on the total seasonal value of the
employment contracts. In particular, the Respondent proposed the following: “it is
calculated that we must apply min 20% (twenty percent) reduction on the contract's total
value applicable for the 2019- 2020 football season in case the league games resume from
where we left off and the season is completed. In order to avoid any doubts please know
that such discount is applicable only for the 2019-2020 Season, and it will be calculated
based on the wages any player is entitled to as of the end of 2019-2020 Season. (Please
take this as a further clarification that any contracts expiring by May 31, 2020 will be
automatically extended until the current football season is completed as per instructions of
FIFA and TFF).”
7.
On 28 May 2020, the Claimant sent a response to the Respondent and declined the
proposal submitted by the latter.
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8.
On 3 June 2020, the Respondent sent another letter via email and expressed its plan to
make effective the proposed salary’s reduction.
9.
Following the above email communications between the Claimant and the Respondent, the
Turkish Football Federation ("TFF") announced the new schedule for the remaining part of
the 2019 /2020 football season’s matches. In accordance with that, TFF decided that the
league matches and the national cup matches would have started again as of 12 June 2020.
10.
By correspondence dated 8 September 2020, the Claimant put the Respondent in default
of payment of EUR 253,750 setting a time limit expiring on 18 September 2020 in order to
remedy the default.
11.
On 24 September 2021, the Respondent replied to the Claimant rejecting his request for
overdue payables, as according to the Club, all the outstanding remuneration had already
been paid to the Player net of the 20% deduction derived from the measures adopted
against Covid-19 outbreak and about which the Claimant had already been informed.
12.
On 13 October 2020, the Claimant put the Respondent in default of EUR 308,250 and
granted a further deadline of 10 (ten) days in order to pay the overdue payables previously
claimed in addition to the further amounts of EUR 4.500 as accommodation allowance and
EUR 50.000 as bonus payments in relation with the final ranking of the team at the end of
the sporting season 2018/2019.
13.
On 15 October 2020, the Respondent denied once again the requests submitted by the
Claimant.
II.
PROCEEDINGS BEFORE FIFA
14.
On 24 November 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
15.
According to the Claimant, the Respondent applied an unlawful reduction of the Player’
salary, namely without his consent.
16.
Therefore, the Claimant is of the opinion that he should be entitled to receive the amounts
arbitrarily deducted by the Respondent who would have behaved in bad faith.
17.
In conclusion, the Claimant requested FIFA DRC to condemn the Respondent to the
payment of EUR 308,250 as outstanding remuneration plus 5% interest per annum as of
the following dates:
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Outstanding partial salary for March 2020 EUR 53,750.00.
Outstanding salary for April 2020 –
EUR 100,000.00.
Outstanding salary for May 2020 EUR 100,000.00.
Outstanding housing allowance EUR 4,500.00.
Outstanding team bonus payment for final
ranking in the season 2018/2019 EUR 50,000.00.
b.
From 31 March 2020
From 30 April 2020
From 31 May 2020
From 31 May 2020
From 31 May 2020
Position of the Respondent
18.
In his reply to the claim, the Respondent argued that its proposal and decision of reducing
the salary in the measure of 20% has been adopted after fruitful negotiations with all the
Players and staff members and that said cut was in line with the FIFA Guidelines provided
on the Covid-19 matter, as made in ”good faith, reasonable and proportionate”.
19.
In this context, the Respondent recalled a letter dated 22 July 2020) in which FIFA identified
five (5) factors as per the Covid-19 Guidelines to be applied when determining any dispute
arising out of unilateral variation of employment contracts, which is the case in the present
dispute:
•
whether the club has attempted to reach a mutual agreement with its
employee(s);
•
whether the decision is applied to the entire squad or only specific
employees;
•
what the economic situation of the club is;
•
the proportionality of any contract amendment; and
•
the net income of the employee after any contract adjustment.
20.
In this perspective, according to the Respondent, the Club strictly would have complied with
the principles of non-discrimination and equal treatment when negotiating with all its
employees in order to mitigate the adverse impacts of the Covid-19 outbreak.
21.
In support of the above, it produced evidence of the entire correspondence exchanged
among the club and the players as well as a detailed financial report.
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22.
Furthermore, the Respondent alleged to have paid the amounts claimed by the Player and
submitted several payment slips.
c.
Reply to the Respondent’s counterclaim
23.
In his replica to the Respondent’s allegations, the Claimant reiterated his convincement that
the Club acted in bad faith, further attempting to mislead the judgement of the FIFA DRC
by submitting irrelevant documents.
24.
In this respect, the Claimant argued that among the aforementioned payment receipts
submitted by the Respondent, those which were related to the amounts claimed by the
Player would not figure, except for the bonus of EUR 25,000 connected with the final
ranking of the team for the sporting seasons 2018/2019.
25.
Therefore, according to the Claimant, the calculations made and submitted by the
Respondent are wrong because the payments realized in Turkish liras would be obviously
not related to the contractual obligations held by the respondent toward the player.
26.
The request for relief of the Claimant, as amended, were the following:
Partial outstanding from the salary of March 2020 in the amount of EUR 53.250,00
Salary of April 2020 in the amount of EUR 100.000
Salary of May 2020 in the amount of EUR 100.000
Housing allowance for the months of April 2020, May 2020, June 2020 and July 2020
corresponding to the total amount of EUR 6.000,00.
Total outstanding remuneration = EUR 259,750
5% interest p.a. over the above amounts as of the respective due dates
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
27.
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 24 November 2020 and
submitted for decision on 3 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
June 2020 edition of the Procedural Rules is applicable to the matter at hand.
28.
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. a) and
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 British player
and a Turkish club.
29.
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 24 November 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
30.
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
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
31.
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.
32.
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
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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
33.
By doing so, the Chamber firstly wished to highlight that 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 clarifications on the most relevant
questions in connection with the regulatory consequences of the COVID-19 outbreak and
identifies solutions for new regulatory matters.
34.
The DRC also wished to refer to the fact that said guidelines – as per the explicit wording
of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only
applicable to “unilateral variations to existing employment agreements”. Therefore, except
where a termination of a contract occurred following a unilateral variation made as a result
of COVID-19 (in which case the validity of the variation must first be assessed under the
guidelines), said guidelines do not apply to assess unilateral terminations of existing
employment agreements. The Chamber further noted that for the assessment of disputes
that are presented before the FIFA judicial bodies concerning the unilateral termination of
a contract, the FIFA Regulations as well as the established jurisprudence of the Chamber
shall apply.
35.
Additionally, 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, FIFA did not declare that the COVID-19 outbreak was a force majeure
situation in any specific country or territory, or that any specific employment or transfer
agreement was impacted by the concept of force majeure.
36.
In other words, in any given dispute, it is for a party invoking force majeure to establish the
existence of said event under the applicable law/rules as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed
has to be considered on a case-by-case basis, taking into account all the relevant
circumstances.
37.
Following these general observations, the members of the Chamber went on to analyse
whether in the matter at hand, any of the parties to the contract had made a unilateral
variation to their existing agreement prior to the unilateral termination of the contract by
the Claimant.
38.
In this respect, the members of the Chamber unanimously agreed that the decision of the
Respondent to unilaterally reduce the amount of the salary payments, has to be considered
as a unilateral variation to the employment relationship between the parties. It is clear to
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the members that the Respondent did not terminate the contract, but only altered certain
aspects of the contract, such as the salary payment. As a result, the members of the
Chamber concluded that the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ are
applicable to the matter at hand when having to assess the legitimacy of the pertinent
unilateral alteration.
39.
In the case at hand, in application of the FIFA COVID 19 Guidelines, the DRC noted that
unilateral decisions to vary agreements will only be recognised where they are made in
accordance with national law or are permissible within collective bargained agreements
(CBA) structures or another collective agreement mechanism.
40.
What is more, the Chamber stressed the contents of art. 12 par. 3 of the Procedural Rules,
pursuant to which any party claiming a right on the basis of an alleged fact shall carry the
burden of proof. As an example, a party should provide independent legal advice from a
qualified legal practitioner in the relevant jurisdiction which confirms that the unilateral
variation was a valid exercise of the national law referred to in the agreement, CBA, or
other collective agreement mechanism.
41.
Turning to the evidence on file as well as the submissions of the parties, the Chamber
confirmed that the club has not adduced any evidence, nor any argument, capable of
demonstrating that the unilateral variation of the player’s salary was made on the basis of
the national law, or any collective agreement. Furthermore, the club has not demonstrated
that the national law does not address the issue of force majeure.
42.
To this end, the Chamber stressed that the pieces of evidence filed by the club demonstrate
the financial impacts of COVID regarding the club’s finances, which is not sufficient to prove
a situation entitling the club to unilaterally vary the terms of the contract.
43.
Based on the foregoing considerations, the Chamber unanimously concluded that the club
failed to demonstrate that the unilateral variation of the contract was licit, entailing that on
the basis of the principle pacta sunt servanda the club should have paid the player’s agreed
remuneration.
44.
For the sake of completeness, the Chamber highlighted that the club has also failed to
demonstrate that it paid the player’s remuneration, since the documentation provided,
comprising of several payment receipts, is solely referring to transactions which are not
related to the amounts claimed by the player, except for – as per same Claimant’s
acknowledgement - the bonus of EUR 25,000 paid on 23 September 2019.
45.
Accordingly, the DRC found that the player is entitled to the remuneration sought,
calculated below:
EUR 53,250 net as partial salary of March 2020;
EUR 100,000 net as salary of April 2020
EUR 100,000 net as salary of May 2020
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EUR 6,000 as housing allowance for the months of April 2020, May 2020, June
2020 and July 2020
46.
Finally, the DRC in line with its constant jurisprudence as well as the requests of relief of the
player, decided to grant interest at the rate of 5% per annum on said amounts.
ii. Compliance with monetary decisions
47.
Finally, taking into account the applicable Regulations, 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.
48.
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.
49.
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.
50.
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.
51.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
52.
Costs
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
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53.
Likewise and for the sake of completeness, 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.
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IV. DECISION OF THE Dispute Resolution Chamber
1.
The claim of the Claimant, Cameron Zishan Rana-Jerome, is accepted.
2.
The Respondent, Goztepe AS, has to pay to the Claimant, the amount of EUR 259,750 as
outstanding remuneration plus 5% interest per annum broken down as follows:
5% p.a. over the amount of EUR 53,750 as of 1 April 2020
5% p.a. over the amount of EUR 100,000 as of 1 May 2020
5% p.a. over the amount of EUR 100,000 as of 1 June 2020
5% p.a. over the amount of EUR 6,000 as of 1 June 2020
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.
7. This decision is rendered without costs.
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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