Labour Disputes
Texto da decisão
REF FPSD-3301
Decision of the
Dispute Resolution Chamber
passed on 9 December 2021
regarding an employment-related dispute concerning the player Jose Marcio da Costa
BY:
Omar Ongaro (Italy), Deputy Chairperson
Khadija Timera (Senegal), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Player Jose Marcio da Costa, Brazil
Represented by Débora Trombeta
RESPONDENT:
Club Altay, Turkey
Represented by Ercan Sevdimbaş
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REF FPSD-3301
I.
Facts of the case
1.
On 22 January 2021, the Brazilian player Jose Marcio da Costa (hereinafter the Claimant or the
player) and the Turkish club Altay (hereinafter the Respondent or the club) concluded employment
agreement (hereinafter the Employment Agreement), valid as from 22 January 2021 until 31 May
2022.
2.
In Clause 3 of the Employment Agreement, the Claimant and the Respondent (jointly referred to
as the Parties) agreed upon, inter alia, the following financial terms:
Guarantee payment of EUR 200,000 for the Season 2020/2021
- EUR 150,000 “will be paid in signed”
- EUR 20,000 “25.04.2021 April term will be paid by bank cheque”
- EUR 75,000 “starting on 01.02.2021, the Player will be paid”
- EUR 15,000 per month “in the last week of every month for a total of 5 months,
including, 30.06.2021.”
Guarantee payment of EUR 360,000 for the Season 2021/2022
- EUR 110,000 “will be paid in 15 September 2021”
- EUR 250,000 “starting on 01.08.2021, the Player will be paid”
- EUR 25,000 per month “in the last week of every month for a total of 10 months,
including, 30.06.2021.
Bonuses
“If Altay Sports Club professional football team is promoted to Super League at the end of 20202021 football season, the footballed will be paid a bonus of 50,000 EUROS for promotion to Super
League.”
Flight Tickets
“The Player will be given 4 return flight tickets each season.”
Living Costs
“Altay Sports Club will allocate a house and car to the Player for the duration of the contract, the
rent of which is up to 3000 Turkish Liras [hereinafter TRY].”
3.
For the sporting season 2021/2022, commencing on 1 July 2021 and ending on 30 June 2022, the
Respondent was promoted to the highest Turkish competition, i.e. the Super League.
4.
On 5 July 2021, the Claimant put the Respondent in default, requesting the payment of
EUR 145,000 and TRY 15,000, within 15-days, corresponding to the outstanding payments and to
the “accommodation benefit”, however, to no avail.
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5.
On 12 July 2021, at “the beginning of the preseason trainings in Turkey”, the Claimant sent another
letter to the Respondent, reiterating his previous request, including the “instructions of his
presentation to the preseason”, however, to no avail.
6.
On 22 July 2021, the Claimant terminated the Employment Agreement with the Respondent.
7.
On 28 July 2021, the Respondent confirmed that the Employment Agreement has been
unilaterally terminated by the Claimant.
8.
The Player did not sign a new employment agreement.
II. Proceedings before FIFA
9.
On 12 August 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the Claimant
10. In its claim, the Claimant requested the payment of an amount of EUR 725,404.28 and TRY 15,000
for the remaining overdue payables and for compensation due to the breach of contract.
11. The requested amount can be broken down as follows:
a. “the outstanding salaries due to the Claimant in the total amount of EUR 95.000,00
(Corresponding to 20.000,00 check which has not been compensate + EUR 75.000,00
as from February to June);
b. EUR 50.000,00 related to the Bonus of being promoted to Turkish Super League (first
division);
c. EUR 360.000,00 related to the remaining period (2021-2022 Football Season –
guarantee payment);
d. Additional compensation for the damages caused by the breach of the Agreement in
the amount corresponding to six months of salaries – EUR 216.000 (including financial
and sportive damages and legal costs.);and
e. Reimbursement of the flight tickets in the total net amount of EUR 4.404,28 as per the
special provisions – clause 3 of the Agreement.
12. Furthermore, the Claimant requested 5% interest p.a. as of the “due date of the outstanding
amounts above described” until the effective payment of the amounts.
13. The Claimant based its claim on art. 14bis of the Regulations, claiming that since “2.85 monthly
salaries” remained outstanding, he had just cause to terminate the Employment Agreement.
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14. Furthermore, referring to art. 17 of the Regulations, the Claimant requested compensation as the
Employment Agreement was “unilaterally breached without just cause”. In this respect, the
Claimant argued that the “compensation shall be paid to the [Claimant] taking into consideration
the full amount remaining in the employment contract.”
15. Finally, the Claimant requested “additional compensation of six-monthly salaries” since the breach
of by the Respondent caused “not only a huge financial damage to the Claimant, but the sportive
dealt penalty which is intangible.”
b. Position of the Respondent
16. The Respondent requested to reject the claim of the Claimant and to “[c]onsider the amounts paid
and good faith of the Respondent (…) according to the bank receipts which was provided by the
Respondent and setoff the mentioned amount from the Claimant's requests” as well as to reject
the Claimant’s request for compensation.
17. The Respondent alleged that the following payments were made to the Claimant next to the
undisputed payment of EUR 105,000:
-
TRY 179,600 on 1 May 2021;
TRY 20,000 on 24 May 2021;
TRY 99,500 on 30 July 2021
Total of EUR 29,898.71 (converted by the Respondent)
18. In line with the above, the Respondent was of the opinion that it made a total payment of
EUR 134,898.71 (converted by the Respondent) to the Claimant and, therefore “the Claimant’s
demands shall be refused” as the latter “failed to consider all the payments from the Respondent
Club while filing the case before FIFA”.
19. Furthermore, in case the DRC should come to the conclusion that the Claimant had just cause to
terminate the Employment Agreement, the Respondent purported that the DRC should reduce
the “excessive compensation” claimed by the Claimant in accordance with art. 337c of the Swiss
Code of Obligations (hereinafter SCO), since the Claimant avoided “with bad faith to sign a new
contract”.
20. With regard to the additional compensation requested by the Claimant, the Respondent alleged
that “there is no egregious circumstances in the present case for the additional compensation be
given” as well as that “the overall compensation may never exceed the rest value of the
prematurely terminated contract.”
21. Furthermore, the Respondent argued that it has a “difficulty in financial position”, caused by the
economic and political crisis in Turkey as well as the COVID-19 pandemic, which effected the
timely payment of the salaries.
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22. Finally, the Respondent requested “to make a reduction from the receivables of the Claimant
considering he relevant circulars that define a force majeure situation is occurred due to the covid19 pandemic results.”
c. Comments of the Claimant
23. The Claimant contested that the payment of TRY 99,500 was made. In this regard, the Claimant
alleged that the payment “was not compensate once the club cancelled it before the bank”.
24. With regard to the payment of TRY 179,600, the Claimant confirmed to have received the
payment, but alleged that it “was related to the commission owned by the club to the agent
involved at the deal.”
25. The Claimant acknowledged that the payment of TRY 20,000 was made by the Respondent but
alleged that the payments in TRY are “voluntary bonuses after some matches” and that “only the
payments in EURO currency should be considered at the case in hand”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 12 August 2021 and submitted for decision on
9 December 2021. Taking into account the wording of art. 34 of the October 2021 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
27. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (August 2021 edition), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related dispute with
an international dimension between the Brazilian player and a Turkish club.
28. 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 (August 2021 edition) and considering that the
present claim was lodged on 12 August 2021, the February 2021 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
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b. Burden of proof
29. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the
Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. Likewise, the Chamber stressed the wording of art. 13 par. 4
of the Procedural Rules, pursuant to which it may consider evidence not filed by the parties,
including without limitation the evidence generated by or within the Transfer Matching System
(TMS).
c. Merits of the dispute
30. Its competence and the applicable regulations having been established, the Chamber entered into
the merits of the dispute. In this respect, the Chamber started by acknowledging all the abovementioned facts as well as the arguments and the documentation on file. However, the Chamber
emphasised that in the following considerations it will refer only to the facts, arguments and
documentary evidence, which it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
31. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties dispute the justice of the early termination of the contract
by the Claimant, based on the alleged non-payment of certain financial obligations by the
Respondent as per the contract.
32. In this context, the DRC acknowledged that their task was to determine, based on the evidence
presented by the Parties, whether the claimed amounts had in fact remained unpaid by the
Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had in
fact been fulfilled.
33. The Chamber then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance
with which, if a club unlawfully fails to pay a player at least two monthly salaries on their due
dates, the player will be deemed to have a just cause to terminate his contract, provided that he
has put the debtor club in default in writing and has granted a deadline of at least 15 days for the
debtor club to fully comply with its financial obligation(s).
34. The Chamber noted that the Claimant claims not having received his remuneration corresponding
to EUR 145,000 and TRY 15,000. Furthermore, the Chamber noted that the Claimant has provided
written evidence of having put the Respondent in default on 5 July 2021, i.e. at least 15 days
before unilaterally terminating the contract on 22 July 2021.
35. Equally, the Chamber took note that the Respondent submitted several proofs of payments:
-
EUR 105,000
TRY 179,600 on 1 May 2021 (i.e. EUR 17,994.30)
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TRY 20,000 on 24 May 2021 (i.e. EUR 1,946.87)
TRY 99,500 on 30 July 2021 (i.e. EUR 9,852.29)
(TRY converted by the DRC to EUR as to the date of respective payment)
36. At this point, the Chamber recalled the arguments of the Claimant that the payments in TRY were
related to (i) the payment of the agent fee or (ii) to the payment of bonuses.
37. Having the above in mind, the members of the Chamber recalled the content of art. 13 par. 5 of
the Procedural Rules and turned their attention to the documentation on file. Since the Claimant
failed to prove his allegations, but acknowledged to have received the certain amounts, the
Chamber decided to recognize the following payments as salary payments:
-
EUR 105,000
TRY 179,600 = EUR 17,994.30
TRY 20,000 = EUR 1,946.87
In total: EUR 126,888.04
38. As to the alleged payment of TRY 99,500, the Chamber decided not to acknowledge this alleged
payment as the Claimant contested to have received it and the Respondent did not advance any
convincing evidence capable of rebutting the Claimant’s allegations.
39. Furthermore, the Chamber turned their attention to the Claimant’s request for “EUR 50.000,00
related to the Bonus of being promoted to Turkish Super League”. Considering that the contractual
provision in Clause 3 of the Employment Agreement and the fact that the Respondent is
participating in Super League in the season 2021/2022, the Chamber acknowledged that this
payment remained outstanding.
40. The Chamber further recalled that the Respondent was obliged to contribute to Claimant’s living
costs, amounting to a monthly payment of TRY 3,000. In this respect, the Chamber noted that it
remained uncontested by the Respondent that the living allowance amounting to TRY 15,000
remained outstanding.
41. Finally, the Chamber pointed to Respondent’s contractual obligation to provide the Claimant with
four flight tickets each season and that the latter provided evidence that it paid “40000 miles” and
EUR 2,804.38 for four tickets from Turkey to Brazil, claiming that “40000 miles” correspond to
EUR 1,600. Nonetheless, the Chamber noted that the Claimant failed to provide evidence
regarding the conversion from miles to EUR. Considering the above, the Chamber decided to
award the Claimant the amount of EUR 2,804.38.
42. Based on the evidence on file, the Chamber observed that the total amount of EUR 125,916.34
and TRY 15,000 remained outstanding at the moment of the Claimant’s termination, which
exceeds the value of two monthly salaries.
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43. The Chamber also noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the evidence provided by the Respondent does not prove that the payment of the
amounts claimed as outstanding by the Claimant were duly made.
44. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
45. Finally, the Chamber wished to address the club’s argument regarding the COVID-19 pandemic, in
particular, its request “to make a reduction from the receivables of the Claimant considering the
relevant circulars that define a force majeure situation is occurred due to the covid-19 pandemic
results.”
46. In this context, the Chamber highlighted 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, it was
also outlined that 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.
47. Analysing the concept of a situation of force majeure, the Chamber also stressed that, based on
the contents of the FIFA COVID-19 Guidelines and the FIFA COVID19 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. 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.
48. In light of the above, the Chamber concluded that the Respondent failed to demonstrate, through
substantial evidence, that the situation faced was to be legally considered a situation of force
majeure. Based on the foregoing, the Chamber rejected Respondent’s argument concerning the
requested reduction of Claimant’s receivables.
ii. Consequences
49. Having stated the above, the members of the Chamber turned their attention to the question of
the consequences of such unjustified breach of contract committed by the Respondent.
50. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were
outstanding under the contract at the moment of the termination:
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EUR 73,111.96 for outstanding salaries;
EUR 50,000 as a bonus for promotion to the Super League;
TRY 15,000.00 for outstanding living allowance;
EUR 2,804.38 for reimbursement of flight tickets.
51. In addition, taking into consideration that the Claimant in its request could not precise as to which
months the requested amounts refer to, the DRC decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as of the date of the claim, i.e. 12 August 2021, until
the date of effective payment.
52. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the player by the club in the case at stake. In doing so, it 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.
53. In application of the relevant provision, the Chamber held that it first of all had to clarify as to
whether the pertinent employment contract contained a provision by means of which the parties
had beforehand agreed upon an amount of compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at stake.
54. As a consequence, 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.
55. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with the
calculation of the monies payable to the player under the terms of the contract from the date of
its unilateral termination until its end date. Consequently, the Chamber concluded that the
amount of EUR 360,000 (i.e. the residual value of the contract) serves as the basis for the
determination of the amount of compensation for breach of contract.
56. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which
a player is entitled to an amount corresponding to three monthly salaries as additional
compensation should the termination of the employment contract at stake be due to overdue
payables. In the case at hand, the Chamber nonetheless noted that the player failed to mitigate
his damages, and therefore decided that the player shall not receive additional compensation.
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57. Consequently, on account of all of the above-mentioned considerations and the specificities of
the case at hand, the Chamber concluded that the club must pay the amount of EUR 360,000 to
the player, which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
58. Lastly, taking into consideration the player’s request as well as the constant practice of the DRC
in this regard, the Chamber decided to award the player interest on said compensation at the rate
of 5% p.a. as of 12 August 2021 until the date of effective payment.
iii. Compliance with monetary decisions
59. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis par. 1
and 2 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.
60. 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. The overall maximum duration of
the registration ban shall be of up to three entire and consecutive registration periods.
61. Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the full
amount due (including all applicable interest) to the Claimant within 45 days of notification of the
decision, failing which, at the request of the Claimant, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become immediately effective on the Respondent in accordance with
art. 24bis par. 2, 4, and 7 of the Regulations.
62. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the present
decision.
63. The DRC 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. 8 the
Regulations.
d. Costs
64. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures
are free of charge where at least one of the parties is a player, coach, football agent, or match
agent”. Accordingly, the Chamber decided that no procedural costs were to be imposed on the
parties.
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65. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par. 8 of
the Procedural Rules, and decided that no procedural compensation shall be awarded in these
proceedings.
66. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jose Marcio da Costa, is partially accepted.
2.
The Respondent, Altay, has to pay to the Claimant, the following amount:
- EUR 125,916.34 as outstanding remuneration plus 5% interest p.a. as from 12 August 2021
until the date of effective payment;
- TRY 15,000 outstanding remuneration plus 5% interest p.a. as from 12 August 2021 until the
date of effective payment;
- EUR 360,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as from 12 August 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
Pursuant to art. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), if full payment (including all applicable interest) is not made within 45 days of notification
of this decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall be
of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in
the event that full payment (including all applicable interest) is still not made by the end of
the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance with
art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a redacted
version (cf. article 17 of the Procedural Rules).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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