Labour Disputes
Texto da decisão
REF FPSD-7973
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning the player Ismail
Aissati
BY:
Angela Collins (Australia)
CLAIMANT:
Ismail Aissati, Netherlands
Represented by Ercan Sevdimba
RESPONDENT:
Denizlispor Kulubu, Turkey
REF FPSD-7973
I. Facts of the case
1. On 26 August 2021, the Dutch player, Ismail Assati (hereinafter: Claimant or player) and the
Turkish club, Denizlispor Kulubu (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from 26 August 2021 until 31 May 2023.
2. According to the contract, the Respondent undertook to pay the Claimant for the 2021 /2022
football season a total salary of EUR 135,000 net, payable in 10 instalments as follows:
-
EUR 13,500 net on 31 August 2021
EUR 13,500 net on 30 September 2021
EUR 13,500 net on 31 October 2021
EUR 13,500 net on 30 November 2021
EUR 13,500 net on 31 December 2021
EUR 13,500 net on 31 January 2022
EUR 13,500 net on 28 February 2022
EUR 13,500 net on 31 March 2022
EUR 13,500 net on 30 April 2022
EUR 13,500 net on 31 May 2022
3. According to the contract, the Respondent undertook to pay the Claimant for the 2022 /2023
football season (TFF 1 Leagues) the following:
-
EUR 16,500 net on 31 August 2022
EUR 16,500 net on 30 September 2022
EUR 16,500 net on 31 October 2022
EUR 16,500 net on 30 November 2022
EUR 16,500 net on 31 December 2022
EUR 16,500 net on 31 January 2023
EUR 16,500 net on 28 February 2023
EUR 16,500 net on 31 March 2023
EUR 16,500 net on 30 April 2023
EUR 16,500 net on 31 May 2023
4. On 3 October 2022, the Claimant put the Respondent in default and requested payment of
EUR 33,000 corresponding to his salaries for August 2022 and September 2022 in the
amount of EUR 16,500 each, setting a time limit of 15 days to comply with payment of the
outstanding amount, however to no avail.
5. According to the Claimant, the Respondent failed to make any attempt to amicably settle
the matter neither did it comply with his default notice, as a result, the Claimant - on 19
October 2022 - unilaterally terminated his contract with the Respondent.
REF FPSD-7973
6. The Claimant informed FIFA that he has remained unemployed since termination of the
contract.
II. Proceedings before FIFA
7.
On 24 October 2022, 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
8. According to the Claimant, he “waited for the payment for a long and warned the Respondent
in writing in accordance with the FIFA regulations. After putting the Respondent in default and
waiting for a long time, the Claimant unilaterally terminated his Contract with just cause and
with immediate effect on.19.10.2022. Consequently, the Claimant is entitled to claim
compensation from the Respondent in return for the damages he incurred.”
9. The requests for relief of the Claimant, were that the Respondent pay him:
(a) the overdue and unpaid amount of EUR 33,000 with its 5 % p.a. interest starting from the
due dates stated until the date of effective payment.
(b) compensation of EUR 132,000 with its 5% p.a. interest starting from the termination date
of 19.10.2022 until the date of effective payment, corresponding the remaining part of the
contractual relation.
(c) additional compensation of EUR 99,000, in accordance with its 5% p.a. interest starting from
the termination date of 19.10.2022 until the date of effective payment.
(d) the judicial costs and the attorneyship fees that the Claimant is faced
b. Position of the Respondent
10. Notwithstanding the fact that the Respondent was invited to provide its position to the
Claimant’s claim it failed to do so.
REF FPSD-7973
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 24 October
2022 and submitted for decision on 15 February 2023. Taking into account the wording of
art. 34 of the October 2022 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.
2.
Subsequently, the Single Judge 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 October 2022 edition), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Dutch player and a Turkish club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition) and
considering that the present claim was lodged on 24 October 2022, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
5.
Her competence and the applicable regulations having been established; the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
REF FPSD-7973
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the Claimant argued that he had just cause to
terminate the contract on 19 October 2022, in accordance with art. 14bis of the
Regulations, based on the alleged non-payment of certain financial obligations by the
Respondent as per the contract.
7.
In this context, the Single Judge acknowledged that her 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.
8.
The Single Judge 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).
9.
The Single Judge noted that the Claimant mentioned that the Respondent failed to pay his
salaries for the months of August and September 2022. Furthermore, the Single Judge
noted that the Claimant sent a default notice to the Respondent on 3 October 2022
granting the Respondent 15 days to remedy the default and that at the date of termination
i.e., 19 October 2022, more than two monthly salaries remained outstanding. In particular
the following remuneration remained outstanding:
-
EUR 16,500 as August 2022 salary
EUR 16,500 as September 2022 salary
10. Subsequently, the Single Judge noted that – after having been provided with the claim of
the Claimant – the Respondent failed to present its response. By not presenting its position
to the claim, the Single Judge was of the opinion that the Respondent renounced its right
of defence and, thus, accepted the allegations of the Claimant.
11. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
expressed that she shall take a decision upon the basis of the documentation already on
file; in other words, upon the statements and documents presented by the Claimant.
12. Taking all of the above into account, the Single Judge concluded that the Respondent was
in indeed in arrears of its financial obligations and that as a result, the termination of the
contract by the Claimant on 19 October 2022 was made with just cause in accordance with
art. 14bis of the Regulations, and that the Respondent is to be held liable for the
consequences thereof.
REF FPSD-7973
ii. Consequences
13. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
14. Consequently, the Single Judge decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration in the amount of EUR 33,000 corresponding to the following:
-
EUR 16,500 as August 2022 salary
EUR 16,500 as September 2022 salary
15. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Single Judge decided to award 5% interest p.a. on the above
amounts from the respective due dates until the date of effective payment.
16. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single
Judge 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.
17. In application of the relevant provision, the Single Judge 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 Single Judge
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
18. As a consequence, the members of the Single Judge 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 Single Judge recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
19. Bearing in mind the foregoing as well as the claim of the player, the Single Judge 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 Single Judge
concluded that the amount of EUR 132,000 [i.e., the residual value of the contract October
REF FPSD-7973
2022 until May 2023 (EUR 16,500 per month x 8)] serves as the basis for the determination
of the amount of compensation for breach of contract.
20. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
21. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
22. Subsequently, the Single Judge 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 Single Judge confirmed that the contract
termination did not took place due to the said reason, i.e., overdue payables by the club,
and therefore decided that the player shall not receive additional compensation.
23. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of EUR 132,000, i.e., EUR 16,500 times 8, as the residual value of the
contract.
24. Lastly, taking into consideration the player’s request as well as the constant practice of the
Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 19 October 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
25. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with her 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.
26. In this regard, the Single Judge 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.
27. Notwithstanding the above, the Single Judge wished to remark that in accordance with art.
24 par. 3 of the Regulations, the aforementioned consequences may be excluded where
the pertinent FIFA deciding body has already imposed on the same party a sporting
sanction on the basis of article 12bis, 17 or 18quater of the Regulations.
REF FPSD-7973
28. In this respect, the Single Judge recalled that a transfer ban has been imposed on the
Respondent pursuant to art. 17 par. 4 of the Regulations.
29. Accordingly, the Single Judge established that in casu art. 24 par. 2 of the Regulations shall
not apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
30. In view of the above, the Single Judge decided that if the outstanding amount plus interest
is not paid within 30 days of notification of this decision, the present matter shall be
submitted, upon request of the Claimant, to the FIFA Disciplinary Committee for its
consideration and formal decision.
31. 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.
d. Costs
32. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
33. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
34. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-7973
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ismail Aissati, is partially accepted.
2.
The Respondent, Denizlispor Kulubu, has to pay to the Claimant, the following amount(s):
(a) EUR 33,000 as outstanding remuneration plus 5% interest p.a. as from the respective
due dates until the date of effective payment as follows:
-
on the amount of EUR 16,500 as from 1 September 2022
on the amount of EUR 16,500 as from 1 October 2022
(b) EUR 132,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 19 October 2022 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.
If full payment of the amount is not made within 30 days of notification of this decision, the
present matter shall be submitted, upon request of the Claimant, to the FIFA Disciplinary
Committee.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-7973
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).
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