Labour Disputes
Texto da decisão
REF FPSD-6399
Decision of the
Dispute Resolution Chamber
passed on 1 September 2022
regarding an employment-related dispute concerning the player Namik
Alaskarov
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
ANDRADE José Luis (Portugal), member
GOMEZ BRUINEWOUD Alexandra (Uruguay/The Netherlands), member
CLAIMANT:
Namik Alaskarov, Azerbaijan
Represented by Sami Dinc
RESPONDENT:
Bursaspor Kulubu Dernegi, Turkiye
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I.
Facts of the case
1.
On 16 August 2021, the Azeri player Namik Alaskarov (hereinafter: the Claimant) and the
Turkish club Bursaspor (hereinafter: the Respondent) concluded an employment contract
(hereinafter: the Contract) valid until 31 May 2023.
2.
Clause 3.1 of the Contract reads as follows:
1- FOR THE 2021/ 2022 SEASON TO THE PLAYER;
A. In total, a net warranty fee of 350.000 EUR will be paid.
50.000-EUR will be paid on 20.08.2021
25.000-EUR will be paid on 30.08.2021
25.000-EUR will be paid on 15.09.2021
50.000-EUR will be paid on 30.09.2021
As Balance fee the player will be paid net 200.000 EUR in the following terms:
31.08.2021 20.000 EUR
30.09.2021 20.000 EUR
31.10.2021 20.000 EUR
30.11.2021 20.000EUR
31.12.2022 20.000EUR
31.01.2022 20.000EUR
28.02.2022 20.000 EUR
31.03.2022 20.000 EUR
30.04.2022 20.000 EUR
31.05.2022 20.000 EUR
3.
Clause 3.2 of the Contract reads as follows:
FOR THE 2022/2023 SEASON TO THE PLAYER; (IF BURSASPOR CONTINUES TO PLAY IN THE TFF
1ST LEAGUE)
A. In total, a net warranty fee of 300.000 EUR
60.000-EUR will be paid on 30/08/2022
As Balance fee the player will be paid net 240.000 EUR
31.08.2022 24.000 EUR
30.09.2022 24.000EUR
31.10.2022 24.000EUR
30.11.2022 24.000 EUR
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31.12.2022 24.000EUR
31.01.2023 24.000EUR
28.02.2023 24.000 EUR
31.03.2023 24.000 EUR
30.04.2023 24.000EUR
31.05.2023 24.000 EUR
4.
Clause 3.4 of the Contract reads as follows:
Within the scope of this contract, during 2022/2023 football season if the player participates
total 18 (official league games) which takes part in the first eleven (starts in first eleven), this
contract duration automatically extends 1 more year for 2023/2024 football season.
This provision is inserted in the present contract with the request of the player and the player
is fully aware of its contents. therefore, the player undertakes not to object against the
realization or non-realization of it, as he has accepted it with his free will, in advance.
If all these conditions are realized and this contract is extended for 2023/2024 football season,
the above conditions will continue in the same way according to the league in which the club
plays.
5.
On 25 May 2022, the Claimant pay the Respondent in default for the payment of EUR
202,000 and gave a deadline of 15 days to comply, to no avail.
6.
On 10 June 2022, the Claimant terminated the Contract adducing just cause.
7.
On 16 June 2022, the Claimant concluded an employment contract with the Azeri club
Sabah valid until 31 May 2025. The Claimant has a remuneration of Azerbaijan New Manat
(AZN) 323,030 per season.
II. Proceedings before FIFA
8.
On 17 June 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
9.
According to the Claimant, he had waited considerable time and gave the chance to
maintain the contractual stability to the Respondent before the termination of the
contractual relationship between the Parties.
10. The Claimant requests the amount of EUR 222,000 as outstanding remuneration,
itemised as follows.
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62,000.-Euro From 30.09.2021
20,000.-Euro From 31.10.2021
20,000.-Euro From 30.11.2021
20,000.-Euro From 31.12.2021
20,000.-Euro From 31.01.2022
20,000.-Euro From 28.02.2022
20,000.-Euro From 31.03.2022
20,000.-Euro From 30.04.2022
20,000.-Euro From 31.05.2022
11. The Claimant submits that the residual value of the Contract equals to EUR 600,000 as
follows:
In regards to the 2022/2023 football season. the residual value of the contract equals to EUR
300,000
In regards to the 2023/2024 football season, the residual value of the contract equals to EUR
300,000-Euro (taking into consideration of that the Respondent will play in the TFF 2nd division
in 2022/2023 football season).
12. The Claimant filed the following requests for relief:
The Claimant firstly would like to request you to make a decision that the Respondent has to
pay the overdue and unpaid amount of EUR 222,000 with its 5% p.a. interest starting from the
due dates stated above in 4.2. until the date of effective payment.
The Claimant secondly would like to request you to make a decision that the unilateral
termination made by the Claimant is with just cause and in line with the jurisprudence of FIFA
and the CAS, in particularly with the Article 14bis of FIFA RSTP.
The Claimant thirdly would like to request a compensation of EUR 600,000 with its 5% p.a.
interest starting from the termination date of 10th of lune 2022 until the date of effective
payment, corresponding the remaining part of the contractual relation.
The Claimant asks FIFA to condemn the Respondent to pay an additional compensation of EUR
180,000, in accordance with the article 17 /l(ii) FIFA RSTP with its 5% p.a. interest starting from
the termination date of 10th of June 2022 until the date of effective payment.
b. Position of the Respondent
13. Despite being invited to submit its position, the Respondent failed to furnish FIFA with its
position in due time. After the expiry of the deadline given by FIFA general secretariat, the
Respondent filed a submission.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber)
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 17 June 2022 and submitted for
decision on 1 September 2022. Taking into account the wording of art. 34 of the June 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.
15. Subsequently, the Chamber referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (July 2022
edition), it is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Azeri player and a Turkish
club.
16. 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 Players (July 2022 edition), and
considering that the present claim was lodged on 17 June 2022, the March 2022 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
17. 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
18. 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 above-mentioned facts as well as the arguments and the
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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.
19. On a preliminary note, the Chamber found that the submission filed by the Respondent
on 18 July 2022 cannot be taken into account by the Chamber. In support of this view, the
Chamber relied on the clear wording of art. 21 par. 1 of the Procedural Rules, according
to which “If the respondent(s) fail(s) to submit a response to the claim within the time limit, a
decision will be made based on the file”. The Chamber recalled to this end that FIFA general
secretariat invited the Respondent to file a response no later than 17 July 2022.
i. Main legal discussion and considerations
20. 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 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, in accordance with art. 14bis
of the Regulations.
21. In this context, the Chamber acknowledged that its 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.
22. 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).
23. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to the months of September 2021 to May 2022. Furthermore, the Chamber
noted that the Claimant has provided written evidence of having put the Respondent in
default on 25 May 2022, i.e. at least 15 days before unilaterally terminating the contract
on 10 June 2022.
24. 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 claim remains undisputed by the Respondent,
based on the aforementioned considerations.
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25. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations.
ii. Consequences
26. 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.
27. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to the
remuneration for 9 months (September 2021 to May 2022) under the contract, amounting
to EUR 222,000.
28. 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,
i.e. EUR 222,000.
29. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Chamber in this regard, the latter decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from the respective due dates until
the date of effective payment.
30. 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, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations,
the amount of compensation shall be calculated, in particular and unless otherwise
provided for in the contract at the basis of the dispute, with due consideration for the law
of the country concerned, the specificity of sport and further objective criteria, including
in particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
31. 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.
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32. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the club to the player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
33. 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.
34. At this point, the Chamber deemed relevant to refer to the Claimant’s arguments
regarding his entitlements to the salaries for the season 2023/2024 based on art. 3.4 of
the Contract.
35. In this regard, the Chamber observed that the relevant clause reads as follows:
Within the scope of this contract, during 2022/2023 football season if the player participates
total 18 (official league games) which takes part in the first eleven (starts in first eleven), this
contract duration automatically extends 1 more year for 2023/2024 football season.
This provision is inserted in the present contract with the request of the player and the player
is fully aware of its contents. therefore, the player undertakes not to object against the
realization or non-realization of it, as he has accepted it with his free will, in advance.
If all these conditions are realized and this contract is extended for 2023/2024 football
season, the above conditions will continue in the same way according to the league in which
the club plays.
36. The Chamber found that from the wording of the clause, it could be observed that in
order for the option to be triggered, the Claimant ought to participate in 18 league games
during the season 2022/2023. The Chamber underscored that since the Claimant decided
to terminate the Contract, he was no longer in a position to play games for the
Respondent during the said season. Thus, the Chamber determined that the option year
(season 2023/2024) could not be taken into account for the calculation of the residual
value.
37. Consequently, the Chamber concluded that the amount of EUR 300,000 (i.e. the
remuneration for season 2022/2023) under the Contract.
38. In continuation, the Chamber verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the
constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such
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remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
39. Indeed, the player found employment with the Azeri club Sabah. In accordance with the
pertinent employment contract, the player was entitled to Azerbaijan New Manat (AZN)
323,030 per season. Therefore, the Chamber concluded that the player mitigated his
damages in the total amount of AZN 323,030, which may be converted to EUR 186,448.
40. 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 confirmed that the contract
termination took place due to said reason i.e. overdue payables by the club, and therefore
decided that the player shall receive additional compensation.
41. The Chamber observed that the remuneration of the Claimant under the Contract is not
scheduled monthly and therefore it deemed that for the purposes of additional
compensation, the amount to be taken into account shall be the monthly average
remuneration for the entire duration of the Contract. The Chamber noted that the
Claimant’s average monthly remuneration during the Contract was EUR 29,545.45 (i.e.
EUR 650,000 / 22 months).
42. In this respect, the DRC decided to award the amount of additional compensation of EUR
88,636.35, i.e. three times the average monthly remuneration of the player.
43. Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Chamber decided that the club must pay the amount
of EUR 202,188 to the player (i.e. EUR 300,000 minus EUR 186,448 plus EUR 88,636.35),
which was to be considered a reasonable and justified amount of compensation for
breach of contract in the present matter.
44. Lastly, taking into consideration the player’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of the claim until the date of effective
payment.
iii. Compliance with monetary decisions
45. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24
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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
46. 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.
47. 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. 24 par. 2, 4, and 7 of the Regulations.
48. 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.
49. 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. 24 par. 8 of
the Regulations.
d. Costs
50. 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.
51. 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.
52. 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, Namik Alaskarov, is partially accepted.
2.
The Respondent, Bursaspor Kulubu Dernegi, has to pay to the Claimant, the following
amount(s):
- EUR 222,000 as outstanding remuneration plus 5% interest p.a. as follows:
On EUR 62,000 from 1 October 2021 until the date of effective payment;
On EUR 20,000 from 1 November 2021 until the date of effective payment;
On EUR 20,000 from 1 December 2021 until the date of effective payment;
On EUR 20,000 from 1 January 2022 until the date of effective payment;
On EUR 20,000 from 1 February 2022 until the date of effective payment;
On EUR 20,000 from 1 March 2022 until the date of effective payment;
On EUR 20,000 from 1 April 2022 until the date of effective payment;
On EUR 20,000 from 1 May 2022 until the date of effective payment;
On EUR 20,000 from 1 June 2022 until the date of effective payment.
- EUR 202,188 as compensation for breach of contract without just cause plus 5% interest
p.a. as from 17 June 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.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, 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. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
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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).
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