Labour Disputes
Texto da decisão
REF FPSD-6669
Decision of the
Dispute Resolution Chamber
passed on 31 August 2021
regarding an employment-related dispute concerning the player PETER AMBROSE
BY:
Dana Mohamed Al-Noaimi (Qatar), Single Judge of the DRC
CLAIMANT:
Peter Ambrose, Nigeria
Represented by Mr Yakub Kizilkaya
RESPONDENT:
Balikesirspor, Turkey
Represented by Turgut Özgüç ÖZGÜN
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REF FPSD-6669
I.
Facts of the case
1.
On 7 January 2022, the Nigerian player, Peter Ambrose (hereinafter: Claimant or player) and the
Turkish club, Balikesirspor (hereinafter: club or Respondent) concluded an employment contract
(hereinafter: contract) valid as from the date of signature until 31 May 2022.
2.
According to the contract, the Respondent undertook to pay the following monies:
- Turkish Lyra (TRY) 60,000 on 6 January 2022;
- TRY 20,000 on 30 January 2022;
- TRY 20,000 on 28 February 2022;
- TRY 20,000 on 30 March 2022;
- TRY 20,000 on 30 April 2022;
- TRY 20,000 on 30 May 2022.
3.
Moreover, under the title “optional year”, a total salary of TRY 700,000 was established for the
player during the season 2022/2023.
4.
In this context, the contract read as follows: “Option will be by the club. Within a written demand
of the club until 31/05/2022 to the Turkish Football Federation contract end will be extended to
31/05/2023”.
5.
Art. 9 of the contract, titled “Disagreements”, establishes: “The parties accept the authority of the
Dispute Resolution Board, within the framework of Dispute Resolution Board instruction, in the
resolution of any dispute arising from the contract”.
6.
On 30 May 2022, the Claimant put the Respondent in default and requested payment of TRY
130,000, corresponding to “more than 5 monthly salaries” within 15 days.
7.
On 16 June 2022, the player terminated the contract due to outstanding remuneration, referring
to art. 14bis RSTP.
8.
According to the information contained in the Transfer Matching System (TMS), the player
remained unemployed up to date.
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II. Proceedings before FIFA
9.
On 9 July 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
10. In his claim, the Claimant requested payment of the following monies:
- TRY 160,000 as outstanding remuneration, corresponding to his salaries of the season
2021/2022 plus interest of 5% p.a. as of the due dates;
- TRY 700,000 as compensation corresponding to the residual value of the contract.
- TRY 150,000 as additional compensation.
11. In his claim, the player held having had just cause to terminate the contract, in accordance with
art. 14bis RSTP.
12. The player maintained that the club failed to remit any remuneration under the contract during
the season 2021/2022.
b. Position of the Respondent
13. In its reply, the club contested FIFA’s competence in light of art. 9 of the contract, according to
which the parties have alleged agreed upon exclusive dispute resolution of the “Turkish Football
Federation boards”.
14. As to the substance, the club rejected the claim and alleged that it “does not have any debt to the
claimant”.
15. In this context, the club held having remitted the following payments in the total amount of TRY
42,500:
- TRY 2,000 on 21 October 2021;
- TRY 4,000 on 28 December 2021;
- TRY 30,000 on 4 February 2022;
- TRY 4,000 on 14 April 2022;
- TRY 2,500 on 29 June 2022.
16. In this regard, the club submitted bank documents and receipts.
17. Regarding the claim for compensation, the club argued that the player has not submitted
“evidence” that he suffered any damages.
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c. Reaction of the player to the alleged payments
18. The Claimant acknowledged receipt of the payments allegedly submitted by the Respondent. He
stated that those were the only payments received from the club.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Single Judge of the DRC (hereinafter also referred to as the Single Judge) analysed
whether she was competent to deal with the case at hand. In this respect, it took note that the
present matter was presented to FIFA on 9 July 2022 and submitted for decision on 31 August
2022. Taking into account the wording of art. 34 of the June 2022 edition of the Rules Governing
the Procedures of the Football Tribunal (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
20. Subsequently, the Single Judge 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), the Single Judge is, in
principle, competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an Nigerian player and a Turkish club.
21. The Single Judge further noted that the Respondent contested the competence of FIFA’s deciding
bodies in favour of the “Turkish Football Federation boards”, alleging that the latter is competent
to deal with any dispute deriving from the relevant employment contract, in accordance with art.
9 of the contract.
22. Taking into account all the above, the Single Judge emphasised that in accordance with 22 par. 1
lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle, competent to
hear an employment-related dispute between a club and a player of an international dimension.
Nevertheless, the parties may explicitly opt in writing for such dispute to be decided by an
independent arbitration tribunal that has been established at national level within the framework
of the association and/or a collective bargaining agreement. Any such arbitration clause must be
included either directly in the contract or in a collective bargaining agreement applicable on the
parties. The independent national arbitration tribunal must guarantee fair proceedings and
respect the principle of equal representation of players and clubs. Equally, the Single Judge
referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations, which came into force on 1 January 2008.
23. In this context, Single Judge pointed out that she should first analyse whether the employment
contract at the basis of the present dispute contained a clear and exclusive jurisdiction clause in
favour of the “Turkish Football Federation boards”.
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24. In this respect, the Single Judge referred to art. 9 of the employment contract, according to which:
“The parties accept the authority of the Dispute Resolution Board, within the framework of Dispute
Resolution Board instruction, in the resolution of any dispute arising from the contract”.
25. The Single Judge, after analysing the wording of the jurisdiction clause, concluded that such clause
did not clearly and exclusively establish the competence of the “Turkish Football Federation
boards”, in accordance with art. 22 par. 1 lit. b) of the aforementioned Regulations.
26. As a consequence, the Single Judge was of the opinion that the first pre-requisite for establishing
the competence of an NDRC was not met, and therefore, without the need to enter the analysis
of any further requirement, she established that the Respondent’s objection to the competence
of FIFA to deal with the present matter has to be rejected and that the Single Judge is competent,
on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present matter as to the
substance.
27. 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 (July 2022 edition), and considering that
the present claim was lodged on 9 July 2022, the July 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
28. 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 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
29. Her competence and the applicable regulations having been established, the . entered into the
merits of the dispute. In this respect, the Single Judge started by acknowledging all the abovementioned 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 it considered pertinent for the assessment of the matter at
hand.
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i. Main legal discussion and considerations
30. The foregoing having been established, the Single Judge moved to the substance of the matter,
and took note of the fact that the parties strongly dispute that the Claimant is entitled to any
payments.
31. In this context, the Single Judge acknowledged that her task was to determine if the Claimant is
entitled to the claimed amounts.
32. The Single Judge acknowledged that the claim of the player against a club was indeed a claim for
breach of contract.
33. In this regard, the Single Judge concluded that, even though the player terminated the contract
on 16 June 2022, the duration of the contract has to be analysed first.
34. The Single Judge pointed out that from the content of the contract, it appears that the parties
agreed upon a duration until 31 May 2022. Additionally, there was an option to extend the
contract for another season. The Single Judge established that there is no proof that such option
was indeed exercised. Therefore, the Single Judge concluded that the contract expired on 31 May
2022 and factually, it is a claim for outstanding remuneration.
35. In this regard, the Single Judge noted that the player held that he did not receive any payments
under the contract for the season 2021/2022, whereby he was entitled to TRY 160,000. On the
other hand, the club claimed having remitted TRY 42,500, which was acknowledged by the player.
36. Based on the above, the Single Judge concluded that the player remained entitled to receive the
amount of TRY 117,500.
ii. Consequences
37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the amount of TRY
117,500.
38. Furthermore, the Single Judge decided to award interest of 5% p.a. as of the day after the season
has ended, 1 June 2022.
iii. Compliance with monetary decisions
39. 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 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.
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40. 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration periods.
41. Therefore, bearing in mind the above, the Single Judge 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.
42. 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.
43. The Single Judge 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
44. 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 Chamber decided that no procedural costs were to be imposed on the
parties.
45. 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.
46. Lastly, the Single Judge 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, PETER AMBROSE, is admissible.
2.
The Claim of the Claimant is partially accepted.
3.
The Respondent, Balikesirspor, has to pay to the Claimant, the following amount(s):
- Turkish Lira (TRY) 117,500 as outstanding remuneration plus 5% interest p.a. as from 1 June 2022
until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
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).
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