Labour Disputes
Texto da decisão
REF. FPSD-10370
Decision of the
Dispute Resolution Chamber
passed on 20 July 2023
regarding an employment-related dispute concerning the player Adel
Bettaieb
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Mario FLORES CHEMOR (Mexico), Member
Alexandra GOMEZ BRUINEWOUD (Uruguay & The Netherlands), Member
CLAIMANT:
Adel Bettaieb, France
Represented by Ahmed Nouma
RESPONDENT:
Bereket Sigorta Umraniyespor, Türkiye
Represented by Ercan Sevdimbaş
pg. 2
REF. FPSD-10370
I. Facts of the case
1.
On 30 June 2022, the French player, Adel Bettaieb (hereinafter: the player or the Claimant)
and the Turkish club, Bereket Sigorta Umraniyespor (hereinafter: the club or the
Respondent), concluded an employment contract valid as from the date of signature until
31 May 2023, with an optional extension for the 2023/2024 season (hereinafter: the
Contract).
2.
According to clause 3 of the Contract, the club undertook to pay the player the following
amounts, quoted verbatim:
3.
•
EUR 75,000 payable in 10 equal monthly instalments of EUR 7,500 each between
August 2022 and May 2023;
•
EUR 75,000 “divided to the number of the official league match in the season and will
be paid as per match payment considering the conditions prescribed in the special
provisions”; and
•
20% of the transfer fee obtained by the club from a future transfer of the player to
a third club.
Furthermore, clause 3 of the Contract also established inter alia the following, quoted
verbatim:
“- The per match fee to be paid to the player will be paid for the official league matches.
This per match payment will be [made] as 100% if the player is included in the first 11person squad, 75% if the player is included in the first 21-person squad and joins later
to the match, and 50% if he is included in the first 21-person squad and does not join the
match. If the player is not included in the first 21-person squad, no per match fee will be
paid. The per match fees will be paid till the end of the relevant season.
[...]
- The club shall be pay success bonuses to the player, which will be set by the club on its
own discretion. The player is entitled to get bonus that shall not be less than other players
in the team.
- All payments under this contract are net payments and will not be reduced by any tax
or other amounts. For the sake of clarity, the club will be always obliged to pay stoppage
tax and the player shall always receive net the indicated amounts. For the avoidance of
the doubt, the club shall only be responsible of the stoppage tax, social contributions and
other levies accrued in accordance with the Turkish Tax legislation and the club shall not
pg. 3
REF. FPSD-10370
be responsible for any other obligations due to the – including but not limited – additional
tax duties, social contributions and/or levies related to the other countries legislations.
[...]
- If the EUR rate goes out of the range between 15 and 19 Turkish Liras, the EUR rate will
be fixed as a minimum of 15 Turkish Liras and a maximum of 19 Turkish Liras”.
4.
On 11 April 2023, the player put the club in default and requested payment of EUR 52,181
as outstanding remuneration within 15 days.
5.
On 3 May 2023, the player notified the club of the termination of the Contract due to
overdue payables in line with 14bis of the FIFA Regulations on the Status and Transfer of
Players (RSTP). A copy of the termination letter was sent to the Turkish Football Federation
(TFF).
6.
The player informed that he remained unemployed following the termination of the
Contract.
II. Proceedings before FIFA
7.
On 27 May 2023, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
8.
In his claim, the player argued that the club failed to comply with its financial obligations
per the Contract, giving cause to the premature termination in line with art. 14bis of the
FIFA RSTP.
9.
Consequently, the player requested to be awarded the following amounts:
a. EUR 63,011 as outstanding remuneration corresponding to his outstanding salaries
and match bonuses from January until 3 May 2023 plus “5% interest [...] until the date
of final payment, as provided by the established jurisprudence of FIFA”;
b. EUR 6,774 as compensation for breach of contract (i.e., pro rata salary of May 2023);
and
c. EUR 22,500 as additional compensation in line with art. 17 of the FIFA RSTP.
10. The player filed no claim for interest over the compensation for breach of contract.
pg. 4
REF. FPSD-10370
b. Position of the club
11. On 23 June 2023, the club filed its reply to the claim of the player.
12. In its reply, the club challenged the quantum requested by the player as outstanding
remuneration, as follows:
a. For the match bonuses: the player is only entitled to EUR 35,834.49, explained as
follows:
“Being in the first 11 in 7 competitions (7 x 2,083.33-EUR), taking part in the first 21-man
squad in 14 competitions and entering the game later (4 x 1,562.50-EUR) and not being
in the game despite being in the squad in 4 competitions (4 x 1,041,67-EUR); net
40,624.99-EUR is the total amount.
However, the exchange rate protection clause must be considered. Because it has written
as ‘the pre-match fees will be paid till the end of the relevant season’. The date of the end
of the season should have been due date but because of early termination the termination
date will be considered as due date for the per match fee, which is 03.05.2023. Because
Euro currency in the said is 21.54 the exchange rate protection clause must be considered:
40,624.99 x 19 = 771,874.81 TRY
771,874.81 : 21.54 = 35,384.49 EUR
Therefore, the amount which the player is entitled to get for 2022/2023 season for the per
match fee from the club is 35,834.49 EUR”.
b. For the salaries: the player is entitled to EUR 65,179.76, corresponding to the salaries
between August and May, with the corresponding conversion from Euro to Turkish
Liras and then to Euro again.
13. Given the above, the club concluded that the player should have received EUR 101,041.25
(i.e., EUR 35,834.49 plus 65,179.76) until the date of termination out of which it argued
having paid EUR 45,682.59.
14. Consequently, the club explained that the total due to the player amounts to EUR 55,331.66
as outstanding remuneration, plus EUR 5,975.49 as the residual value of the Contract. In
addition, the club argued that the additional compensation should not be awarded as it
exceeds the residual value of the Contract.
15. The club’s requests for relief were as follows, quoted verbatim:
“7.1. To refuse the 7.679,4-EUR regarding the Player’s claim of his payments.
pg. 5
REF. FPSD-10370
7.2. The refuse the 798.51-EUR regarding the Player’s claim of compensation for the
breach of Contract.
7.3. To fully refuse the Claim of the Player regarding the additional compensation”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 27 May 2023 and submitted
for decision on 20 July 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.
17. 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 par. 1 lit. b)
of the FIFA RSTP (May 2022 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 French player and a Turkish club.
18. 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 FIFA RSTP (May 2023 edition), and considering that the present claim was
lodged on 27 May 2023, the cited May 2023 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
19. 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
20. 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
pg. 6
REF. FPSD-10370
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.
i. Main legal discussion and considerations
21. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim for outstanding remuneration
and compensation for breach of contract lodged by the player against the club.
22. In particular, the DRC noted that the player terminated the Contract on 3 May 2023 due to
overdue payables. Furthermore, it remained undisputed between the parties that such
termination took place with just cause for the player’s side, which the Chamber could also
confirm in line with the specific wording of art. 14bis of the Regulations.
23. Having established the above, the DRC acknowledged that its task was limited to
establishing the amounts payable by the club to the player as consequence of the unlawful
termination caused by the club, namely: (i) outstanding salaries; (ii) outstanding match
bonuses; and (iii) compensation for breach of contract.
24. On this note, the Chamber turned its attention to the question of the consequences of such
unjustified breach of contract committed by the club.
A. Salaries
25. Initially, the Chamber observed that the player requested to be awarded the salaries from
January, February, and March 2023, amounting to EUR 7,500 each.
26. On the other hand, the club acknowledged having paid EUR 14,654 plus USD 23,300 as
salaries to the player. No explanation was provided by the club as to the reason for the
payments to be partially performed in United States Dollars (instead of Euros). However, in
any event, the DRC considered that the total paid by the club amounts to approximately
EUR 37,500 i.e., the salaries from August until December 2022.
27. Therefore, the Chamber determined that the player should still be entitled to the remaining
salaries from January until April 2023 totalling EUR 30,000 net. Considering the date of
termination, the DRC also pointed out that the entire salary of May 2023 should be factored
as compensation for breach of contract.
28. In addition, taking into consideration the player’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award him interest at the rate of 5%
p.a. on the outstanding amounts as from the respective due dates until the date of effective
payment.
pg. 7
REF. FPSD-10370
29. For the sake of completeness, the Chamber outlined that the challenge of the club to the
amounts claimed by the player was linked to the use of different conversion rates in line
with the special provisions included in the Contract. Apparently, the club calculated the
debt for each concept in EUR (salaries, match bonuses and compensation), converted to
Turkish Liras, and then converted back again to Euro.
30. Nevertheless, as the player’s remuneration in the Contract was already stipulated in Euro,
the DRC was firm to determine that the outstanding amounts should be calculated per the
original arrangement in Euro only. The conversion rate would only be relevant in case the
payment had been made in Turkish Lira, which was not the case. Consequently, the
Chamber decided that the rationale used by the club was flawed and should be rejected.
B. Bonuses
31. Subsequently, the Chamber moved to the analysis of the bonuses claimed by the player.
In doing so, it noted that the parties concurred that the player should receive a bonus for
25 matches being (i) EUR 2,083.33 (100%) for 7 of them; (ii) EUR 1,562.50 (75%) for 14 of
them; and (iii) EUR 1,042.67 (50%) for 4 of them; therefore, totalling EUR 40,624.99.
32. Out of this amount, the Chamber acknowledged that the club paid only EUR 8,332, as
confirmed by the player. Consequently, the DRC decided that the player should be entitled
to the balance of EUR 32,292.99 net.
33. As the Contract stipulated that match bonuses should be paid until the end of the season,
the Chamber ruled that the player should be entitled to 5% interest p.a. over the
abovementioned quantum as from the date of the termination of the Contract (i.e., 3 May
2023) until the date of effective payment.
C. Compensation
34. Finally, 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.
35. 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
pg. 8
REF. FPSD-10370
established that no such compensation clause was included in the employment contract at
the basis of the matter at stake.
36. 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.
37. 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 7,500 net (i.e., the salary of May 2023) serves as the
basis for the determination of the amount of compensation for breach of 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 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 did not find new employment, therefore no mitigation of the damages
incurred shall apply. In addition, the Chamber also highlighted that no additional
compensation should be awarded in line with art. 17 par. 1 lit. ii) of the Regulations.
40. Consequently, on account of all the above-mentioned considerations and the specificities
of the case at hand, the Chamber decided that the club must pay the amount of EUR 7,500
net to the player, which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
41. Lastly, the Chamber highlighted that the player would also be entitled to default interest
over the abovementioned compensation. Nevertheless, as he filed no request for interests,
the DRC was prevented from making any ruling in this respect (ne ultra petita).
ii. Compliance with monetary decisions
42. 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.
pg. 9
REF. FPSD-10370
43. 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.
44. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
45. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
46. 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
47. 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.
48. 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.
49. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 10
REF. FPSD-10370
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Adel Bettaieb, is partially accepted.
2.
The Respondent, Bereket Sigorta Umraniyespor, must pay to the Claimant the following
amount(s):
- EUR 7,500 net as outstanding remuneration plus 5% interest p.a. as from 1 February
2023 until the date of effective payment;
- EUR 7,500 net as outstanding remuneration plus 5% interest p.a. as from 1 March 2023
until the date of effective payment;
- EUR 7,500 net as outstanding remuneration plus 5% interest p.a. as from 1 April 2023
until the date of effective payment;
- EUR 7,500 net as outstanding remuneration plus 5% interest p.a. as from 1 May 2023
until the date of effective payment;
- EUR 32,292.99 net as outstanding remuneration plus 5% interest p.a. as from 3 May
2023 until the date of effective payment; and
- EUR 7,500 net as compensation for breach of contract without just cause.
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.
pg. 11
REF. FPSD-10370
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-10370
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
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13