Dispute Resolution Chamber
Texto da decisão
REF FPSD-2261
Decision of the
Dispute Resolution Chamber (DRC) Judge
passed on 16 June 2021
regarding an employment-related dispute concerning the player Giorgi Arabidze
BY:
Alexandra Gómez Bruinewoud (Uruguay) / (Netherlands), DRC Judge
CLAIMANT:
Giorgi Arabidze, Georgia
Represented by Besarion Abashidze
RESPONDENT:
Adanaspor, Turkey
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REF FPSD-2261
I.
FACTS OF THE CASE
1.
On an unspecified date, the Claimant and the Respondent signed an employment contract
(hereinafter: the contract), valid between 21 August 2019 and 31 May 2020, according to
which the Claimant was entitled to receive the total amount of EUR 65,000 net, payable in
10 monthly instalments of EUR 6,500 between 31 August 2019 and 31 May 2020.
2.
For the sake of completeness, the player played in the abovementioned period on loan basis
with the Claimant, being under contract with his Portuguese club of origin CD National.
3.
Art. 5 of the special provisions of the contract holds the following clause: ‘The player hereby
agrees and accepts that he is obliged to participate in all official and friendly matches in
every category in accordance with the club’s decision, including the play-off, play-out,
promotion and relegation matches even if they take place after the ending date of this
contract. The contract will be automatically extended until the end of such matches’.
4.
In the period between 27 December 2019 and 3 June 2020, the Claimant put the
Respondent in default for the outstanding remuneration on several occasion, however to
no avail.
5.
On 8 January 2020, the Claimant put the Respondent in default for the outstanding amount
of EUR 19,500 (corresponding to the salaries of October, November and December 2019),
proving the club a deadline until the next day, 9 January 2020, to remedy its default,
otherwise he would unilaterally terminate his contract.
6.
On 10 January 2020, after having received two monthly salaries for the months of October
and November 2019, the Claimant flew back to Adana, Turkey and attended the
Respondent’s facility.
7.
After not having been taken care of by the Respondent for 4 days, the Claimant requested
the Respondent for permission to ‘provide the rehabilitation process at his own expense
under the supervision of the doctor who performed the surgery (and not a club’s doctor)’,
to which the Respondent agreed.
8.
On 14 February 2020, the Respondent warned the Claimant ‘once again and for the last
time’ that he should return the Respondent’s facilities.
9.
In the period between March and June 2020, the Respondent continued to not comply with
its financial obligations.
10.
In the period between 3 June and 28 June 2020, the Claimant and the Respondent sent
several communications back and forth, arguing about the amount of outstanding
remuneration and the alleged suspension of the competition in Turkey.
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II.
PROCEEDINGS BEFORE FIFA
11.
On 8 April 2021, 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
12.
In his claim, the Claimant explains that as from October 2019, the Respondent started to
not comply with its contractual obligations.
13.
What is more, the Claimant explains that he got injured in November 2019 and had to
undergo surgery on 21 November 2019 in the city of Adana, Turkey. On 27 November
2019, the Claimant – allegedly with the approval of the Respondent – returned to Georgia
for the entire period of rehabilitation, keeping daily contact with his doctor, Mr Yusuf Unal.
14.
According to the Claimant, on 30 and 31 December 2019 and 7 January 2020, the
Respondent requested him to return immediately to the training facilities. In reply to these
letters, the Claimant put the club in default on 8 January 2020, in reply to which the
Respondent paid him the monthly salaries for October and November 2019.
15.
Furthermore, the Claimant explained that due to his injury, he could only attend the
theoretical training sessions, however missed one of such sessions on 12 February 2020,
because he had to visit his doctor in Antalya, Turkey for a medical appointment.
16.
Also, the Claimant points out that the salaries for the period between March and May 2020
remained outstanding without a valid reason.
17.
The requests for relief of the Claimant, as amended, were the following:
-
b.
18.
Being awarded the outstanding salaries for the period between March and May 2020
(EUR 6,500 each), i.e. the total amount of EUR 19,500, plus 5% interest p.a. as from
the respective due dates.
Position of the Respondent
In its reply, the Respondent argued that confirmed the facts around the injury of the
Claimant, but also pointed out that on 23 December 2019, the Claimant had missed a
medical examination and that he had travelled, without permission of the club, to his home
country early December 2019.
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19.
The Respondent furthermore confirms that the Claimant, on 10 January 2020, returned to
the Respondent’s premises, but later on again disappeared without permission of the
Respondent. The Respondent reminded the Claimant again to resume his duties at its club.
20.
Furthermore, the Respondent explains that due to the COVID-19 pandemic, the league in
Turkey was suspended in the period between 19 March and 12 June 2020. After the
competitions was resumed, the Respondent requested the Claimant to fulfil his contractual
duties in the following league matches, also indicating that he would not be entitled to any
further amount, if he fails to return. However, the Claimant never returned to the
Respondent’s club.
21.
In this respect, the Respondent referred the Claimant to art. 5 of the special provisions of
the employment contract, based on which the player allegedly agreed to participate in all
official and friendly matches in every category. Based on this clause, the Respondent is of
the opinion that the contract had not ended on the initially agreed date of 31 May 2020,
but only on 29 July 2020.
22.
In relation to the Claimant’s request to be provided with his alleged outstanding
remuneration, the Respondent argues that – in view of the Claimant’s incorrect
communication around his injury and his unjustified absence from the Respondent’s
premises on several occasions, in total lasting for more than 9 months – he is not entitled
to such remuneration.
23.
The requests for relief of the Respondent, as amended, were the following:
-
III.
That the claim of the Claimant be rejected.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
24.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as DRC
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 8 April 2021 and submitted
for decision on 16 June 2021. Taking into account the wording of art. 21 of the 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
25.
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 and 2 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 an
Georgian player and a Turkish club.
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26.
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 8 April 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
27.
The DRC judge 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 judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which she may consider
evidence not filed by the parties.
28.
In this respect, the DRC judge 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.
29.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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.
i. Main legal discussion and considerations
30.
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 whether or not the Claimant is
entitled to the monthly salaries claimed for the period between March and May 2020.
31.
In this context, the Chamber acknowledged that it its task was to determine whether or
not the Claimant was entitled to receive the monthly salaries related to the period between
March and May 2020.
32.
First of all, the DRC judge noted that the Respondent brought forward that the Claimant is
not entitled to the salaries for the period between March and May 2020, as (a) he was
frequently absent throughout the season 2019/2020 and (b) since he refused to continue
to play for the club after the competition in Turkey was resumed, despite having a valid
clause in his contract, obliging him to do so.
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33.
Analysing the first argument of the Respondent, the DRC judge was not convinced of the
validity of said argument. It appeared to the DRC judge that during the course of the
contract, the parties exchanged a significant number of letters regarding the Claimant’s
alleged unauthorized absence, however ultimately not leading the Respondent to
unilaterally terminate the contract with the Claimant due to this alleged unauthorized
absence. Therefore, the DRC judge considered that the Respondent considered that the
alleged unauthorized absence of the Claimant was not severe enough to justify a unilateral
termination of the contract from its side.
34.
What is more, the DRC judge considered that in the period between March and May 2020,
the Respondent did not contest the absence of the Claimant during the peak of the COVIDpandemic.
35.
Based on the foregoing, the DRC judge was of the opinion that the Respondent cannot
retroactively bring up the argument of the alleged frequent absence of the Claimant to
justify the unilateral termination.
36.
Moreover, as to the second argument, the DRC judge analysed the contents of the contract
and concluded that the parties had indeed agreed upon a valid clause in the contract, which
would oblige the Claimant to continue rendering his services for the Respondent after the
initially agreed date of 31 May 2020, in case further matches would be played after said
date.
37.
However, the Single Judge concluded that such clause has no relevance for the matter at
hand, which consists only a dispute as to outstanding salaries claimed by the Claimant for
the period between March and May 2020. Therefore, since the Respondent did not brought
forward any valid arguments as to why it did not comply with its financial obligations in the
period between March and May 2020, the DRC judge concluded that the Claimant is
entitled to said contractually agreed salaries.
ii. Consequences
38.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of the non-fulfilment of its contractual obligations by the
Respondent.
39.
In view of all the above and, in particular, taking into account that the Respondent did not
contest that the relevant salaries had remained unpaid, the DRC judge decided that, in
accordance with the general legal principle of pacta sunt servanda, the Respondent must
fulfil its contractual obligations towards the Claimant and is to be held liable to pay the
Claimant the amount of EUR 19,500, corresponding to the three monthly salaries for the
period between March and May 2020 in the amount of EUR 6,500 each.
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40.
In continuation and with regard to the Claimant's request for interest, the DRC judge
decided that the Claimant is entitled to receive interest at the rate of 5% p.a. on the amount
of EUR 22,500 until the date of effective payment as follows:
on the amount of EUR 6,500 as from 1 April 2021;
on the amount of EUR 6,500 as from 1 May 2021;
on the amount of EUR 6,500 as from 1 June 2021.
iii. Compliance with monetary decisions
41.
Finally, taking into account the consideration under numbers 39. and 40. above, the
Chamber referred to par. 1 lit. 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.
42.
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.
43.
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.
44.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
45.
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
of the Regulations.
d.
46.
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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47.
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.
48.
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 DRC JUDGE
1.
The claim of the Claimant, Giorgi Arabidze, is accepted.
2.
The Respondent, Adanaspor, has to pay to the Claimant, the following amount:
- EUR 19,500 as outstanding remuneration, plus 5% interest p.a. until the effective date of
payment as follows:
on the amount of EUR 6,500 as from 1 April 2021;
on the amount of EUR 6,500 as from 1 May 2021;
on the amount of EUR 6,500 as from 1 June 2021.
3.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
4.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
6.
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:
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