Labour Disputes
Texto da decisão
REF FPSD-2962
Decision of the
Dispute Resolution Chamber
passed on 14 October 2021
regarding an employment-related dispute concerning the player Zakarya
Bergdich
BY:
Frans de Weger (The Netherlands), Chairperson
Roy Vermeer (The Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Zakarya Bergdich, Morocco
Represented by Selçuk Demir
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
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REF FPSD-2962
I.
Facts of the case
1.
The Moroccan player, Zakarya Bergdich (hereinafter: the player or the Claimant) and the
Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter: the club or the Respondent)
signed a contract valid as from 31 January 2021 until 31 May 2021 (hereinafter: the contract).
2.
According to the contract, the player was entitled to a monthly remuneration of EUR 150,000.
3.
On 16 May 2021, the parties signed a termination agreement (hereinafter: the termination
agreement), putting an end to the contract. According to the termination agreement, the
club undertook to pay the player the following amounts:
a. EUR 30,000 on 21 May 2021;
b. EUR 45,000 on 15 June 2021; and
c. EUR 45,000 on 15 July 2021.
4.
Pursuant to clause 5 of the termination agreement, quoted verbatim:
“If [the Respondent] has not paid the amounts full amount under article 3.1 of the present
agreement on 21.5.2021, [the Claimant] shall put [the Respondent] in default of the payment
of overdue amount by granting 3 business days by submitting a default letter to email address
[email protected]. In case [the Respondent] does not proceed to pay the overdue
amounts at the end of aforementioned time-frame i.e. 3 business days of grace period, an
additional fine in the amount of NET 7.500.-EUR shall accrue without any further notification
to be issued and [the Respondent] shall remunerate [the Claimant] with a fine in the amount
of 7.500.-EUR.”
5.
In early June 2021, the player confirms that the club paid (late) the 1st instalment under the
termination agreement.
6.
On 23 June 2021, the player put the club in default of payment of EUR 45,000 regarding the
second instalment under the termination agreement.
7.
On 03 July 2021, as amended on 23 July 2021, the player filed the claim at hand, seeking
payment of EUR 90,000 corresponding to the unpaid second and third instalments under the
termination agreement, plus EUR 7,500 as contractual penalty.
8.
The player also seeks payment of EUR 180,000 as additional compensation for breach of
contract, equivalent to six months salaries, on the basis of art. 17, par. 1 of the FIFA
Regulations on the Status and Transfer of Players (RSTP).
9.
The player finally asks to be awarded interest of 5% p.a. as from 30 days after the decision
is passed.
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10. Following a proposal from the FIFA general secretariat, the Respondent rejected the proposal
but filed no reply.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 03 July 2021 and submitted for decision on
14 October 2021. Taking into account the wording of art. 34 of the October 2021 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.
12. 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 (August 2021 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 Moroccan player and
a Turkish club.
13. 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 (August 2021 edition), and
considering that the present claim was lodged on 03 July 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
14. 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
15. 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,
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arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
16. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Respondent, for its part, failed to present its response to
the claim of the Claimant, in spite of having been invited to do so. In this way, the DRC
considered that the Respondent renounced its right to defence and thus accepted the
allegations of the Claimant.
17. Furthermore, as a consequence of the aforementioned consideration, the members of the
Chamber concurred that in accordance with art. 21 par. 1 and 22 of the Procedural Rules,
they shall take a decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
18. Having said this, the DRC acknowledged that, in accordance with the termination agreement
signed by and between the parties, the Respondent was obliged to pay to the Claimant the
following amounts:
a. EUR 30,000 on 21 May 2021;
b. EUR 45,000 on 15 June 2021; and
c. EUR 45,000 on 15 July 2021.
19. The DRC acknowledged additionally the contents of clause 5 of the termination agreement.
However, the Chamber noted that the penalty of EUR 7,500 included therein referred only
to the payment of the first instalment, which is not disputed by the parties. The DRC
highlighted to this end that the clause at stake was clear to establish the applicability of the
penalty regarding the amounts due by 21 May 2021 only, and thus decided that no such
penalty could be awarded to the Claimant.
20. Nevertheless, insofar as the outstanding remuneration sought was concerned, the DRC
confirmed that these amounts have a contractual basis and have not been disputed by the
Respondent.
21. On account of the aforementioned considerations, the DRC established that the Respondent
failed to remit the Claimant’s remuneration in accordance with the contract termination
agreement between the parties. On that basis and following the principle pacta sunt
servanda, the DRC awarded EUR 90,000 to the player.
22. In addition, taking into account the Claimant’s specific request as well as the constant practice
of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the
Claimant interest of 5% p.a. on the amounts outstanding as from 15 November 2021 until
the date of effective payment, i.e. 30 days after the decision was passed.
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23. Lastly, the Chamber turned to the matter of the compensation sought by the Claimant.
Indeed the DRC confirmed that unlike the Claimant’s argumentation, there is no breach of
contract in the matter at hand insofar as the contract was mutually terminated by the
Claimant and the Respondent by means of the execution of the termination agreement. It
follows that it cannot be said that any breach of contract leading to the (early) termination of
the contract ever existed. The DRC concluded based on the foregoing that no compensation
was in order and that this part of the Claimant’s claim was to be rejected due to a lack of
factual, contractual, or regulatory basis.
ii. Compliance with monetary decisions
24. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24bis
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.
25. 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.
26. 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.
27. 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.
28. 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. Costs
29. 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.
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30. 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.
31. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Zakarya Bergdich, is partially accepted.
2. The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant the following
amount:
- EUR 90,000 as outstanding remuneration plus 5% interest p.a. as from 15 November 2021
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. 24bis of the Regulations on the Status and Transfer of Players (February 2021
edition), 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. 24bis par. 7 and 8 and art. 24ter 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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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).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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