Labour Disputes
Texto da decisão
REF. FPSD-11395
Decision of the
Dispute Resolution Chamber
passed on 28 September 2023
regarding an employment-related dispute concerning
the player Rijad Bajic
BY:
Lívia Silva Kägi (Brazil/Switzerland), Deputy Chairperson
Laurel Vaurasi (Fiji), member
Khadija Timera (Senegal), member
CLAIMANT:
Rijad Bajic, Bosnia and Herzegovina
Represented by Tarik Trbić
RESPONDENT:
GZT Giresunspor, Türkiye
pg. 2
REF. FPSD-11395
I. Facts of the case
1.
On 29 July 2022, the Bosnian player Rijad Bajic (hereinafter the Claimant or the Player) and
the Turkish club GZT Giresunspor (hereinafter the Respondent or the Club) concluded
employment agreement (hereinafter the Employment Agreement), valid as from 29 July 2023
until 31 May 2024.
2.
In accordance with Clause 6 of the Employment Agreement, the Claimant and the
Respondent (jointly referred to as the Parties) agreed upon the following financial benefits:
−
Season 2022/2023 EUR 630,000, payable as follows:
−
−
−
EUR 500,000, payable in ten equal instalments of EUR 50,000 (August 2022-May
2023) on the last day of the relevant month;
EUR 130,000, corresponding to a down payment on 25 July 2022.
Season 2023/2024: EUR 630,00, payable as follows:
−
−
EUR 500,000, payable in ten equal instalments of EUR 50,000 (August 2023-May
2024) on the last day of the relevant month;
EUR 130,000, corresponding to a down payment on 25 July 2023.
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Accommodation and an appropriate car.
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Bonuses:
−
−
Attendance bonus of EUR 50,000 in case the Player participated in at least
25 official TFF Super League matches in first 11;
Goal bonus of EUR 25,000 for every 5 goals/assists he scores or assists in official
TFF Super League matches.
3.
During the season 2022/23, the Claimant participated in 34 official matches for the
Respondent, scored 14 goals and assisted 2 goals.
4.
On 11 May 2023 the Claimant sent a default notice to the Respondent, reminding about
outstanding payment in the total amount of EUR 450,000, including unpaid parts of down
payment, salaries, bonus payment and total monthly salaries. In the said notice, the
Claimant granted the Respondent 15-days to comply with its financial obligations.
5.
On 30 May 2023 the Claimant terminated the Employment Agreement with the
Respondent.
6.
On 30 June 2023, the Claimant signed a new employment contract with the Turkish club,
MKE Ankaragucu, valid as from 30 June 2023 until 30 June 2025.
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REF. FPSD-11395
7.
For the relevant (overlapping) season 2023/2024, the Claimant is entitled to the following
remuneration:
−
−
EUR 75,000 as a sign-on fee payable on 15 July 2023;
Salaries in the total amount of EUR 802,500.
II. Proceedings before FIFA
8.
On 17 August 2023, 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.
The requests for relief of the Claimant, as amended, were the following:
“(…) to determine that he terminated the employment relationship with the Club with just
cause on 30 May 2023 and to order the Club to pay the Player the following amounts:
▪ Overdue payables, plus 5% interest p.a. as from the relevant payment dates until the date
of effective payment, specified as follows (cf. IV):
▪ EUR 80 000 as remaining parts of the advance payment since signing of the contract;
▪ EUR 20 000 as remaining parts of the August and September 2022 salaries,
▪ EUR 50 000 as bonus payment for goals and assist during the season so far,
▪ EUR 50 000 as bonus for playing in more than 25 games this season,
▪ EUR 50 000 for the salary of December 2022,
▪ EUR 50 000 for the salary of January 2023,
▪ EUR 50 000 for the salary of February 2023,
▪ EUR 50 000 for the salary of March 2023,
▪ EUR 50 000 for the salary of April 2023,
▪ EUR 50 000 for the salary of May 2023,
▪ EUR 630 000 as the amount due as compensation for breach of contract + 5% interest as
from 30 May 2023 until the date of effective payment.”
10. The Claimant based its claim on art. 14bis of the Regulations.
b. Position of the Respondent
11. Despite being invited to do so, the Respondent failed to reply to the claim.
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REF. FPSD-11395
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 17 August 2023 and submitted
for decision on 28 September 2023. Taking into account the wording of art. 34 of the
March 2023 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.
13. 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 (May 2023 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 a Bosnian player
and a Turkish club.
14. 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 (June 2023 edition), and
considering that the present claim was lodged on 17 August 2023, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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
16. 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
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.
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REF. FPSD-11395
i. Main legal discussion and considerations
17. 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.
18. In this context, the Chamber 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.
19. 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).
20. The Chamber noted that the Claimant claims not having received his remuneration
corresponding to nine monthly salaries. Furthermore, the Chamber noted that the
Claimant has provided written evidence of having put the Respondent in default on
11 May 2023, i.e. at least 15 days before unilaterally terminating the contract on
30 May 2023.
21. 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 Chamber recalled that the claim remained uncontested by
the Respondent.
22. 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
23. 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.
24. 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 nine salaries
under the contract, amounting to USD 500,000.
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REF. FPSD-11395
25. 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.
USD 500,000 (i.e. outstanding part of sign on payment of July 2022, reminder of August and
September 2022 salary, salaries of December 2022 – May 2023 and a bonus).
26. 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 their respective due dates until the date of
effective payment.
27. 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.
28. 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.
29. 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.
30. 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 630,000 (i.e. the total residual amount for the season
2023/2024) serves as the basis for the determination of the amount of compensation for
breach of contract.
31. 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
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REF. FPSD-11395
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 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.
32. Indeed, the player found employment with the Turkish club MKE Ankaragucu. In
accordance with the pertinent employment contract, the player was entitled to
EUR 877,500 for the overlapping period. Therefore, the Chamber concluded that the player
mitigated his damages in the total amount of EUR 877,500, i.e. the Claimant fully mitigated
his damages.
33. 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.
34. In this respect, the DRC decided to award the amount of additional compensation of
EUR 150,000, i.e. three times the monthly remuneration of the player.
35. 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 150,00 to the player, which was to be considered a reasonable and justified amount
of compensation for breach of contract in the present matter.
36. 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 30 May 2023 until the date of effective payment.
iii. Compliance with monetary decisions
37. 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
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
38. 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.
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REF. FPSD-11395
39. 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.
40. 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.
41. 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
42. 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.
43. 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.
44. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-11395
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Rijad Bajic, is partially accepted.
2.
The Respondent, GZT Giresunspor, must pay to the Claimant the following amount(s):
- EUR 80,000 as outstanding remuneration plus 5% interest p.a. as from 26 July 2022 until
the date of effective payment;
- EUR 20,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2022
until the date of effective payment;
- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2023
until the date of effective payment;
- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2023
until the date of effective payment;
- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2023
until the date of effective payment;
- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2023 until
the date of effective payment;
- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023 until
the date of effective payment;
- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 30 May 2023
until the date of effective payment;
- EUR 100,000 as outstanding amount plus 5% interest p.a. as from 30 May 2023 until the
date of effective payment;
- EUR 150,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 30 May 2023 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.
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REF. FPSD-11395
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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-11395
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12