Labour Disputes
Texto da decisão
REF FPSD-4002
Decision of the
Dispute Resolution Chamber
passed on 26 January 2022
regarding an employment-related dispute concerning the player Roman
Bezjak
BY:
RIESTRA Iñigo (Mexico)
CLAIMANT:
Roman Bezjak, Slovenia
Represented by Nihat Guman
RESPONDENT:
Balikesirspor, Turkey
Represented by Turgut Ozguc Ozgun
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I.
Facts of the case
1.
On On 28 January 2021, the Slovenian player Roman Bezjak (hereinafter: the Claimant) and
the Turkish club Balikesirspor (hereinafter: the Respondent) concluded employment contract
valid until 31 May 2021 (hereinafter: the Contract).
2.
Clause 3 of the Contract reads as follows:
The payment table for 2020-2021 season is provided below
A advance payment of EUR 28,300 will be made to the player for the 2020-2021 football
season
3.
Clause 9 of the Contract reads as follows:
“The parties are free to accept the authority of the Dispute Resolution Board within the
framework of the Dispute Resolution Board Instruction in the resolution of any dispute arising
from this contract”.
4.
On 29 September 2021, the Claimant sent a default notice to the Respondent requesting the
amount of EUR 40,300 and granting a deadline of 10 days to comply.
5.
On 15 October 2021, the Respondent paid Turkish Lira (“TRY”) 50,000.
II. Proceedings before FIFA
6.
On 18 October 2021, 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
7.
According to the Claimant, his total remuneration for the Contract was EUR 88,300.
8.
The Claimant submits that the Respondent paid the following amounts and provided checks
to the player until the date of default notice, in the total amount of EUR 48,000 as followss:
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(i) 10.500.EUR paid on 09.02.2021
(ii) 2.500.EUR on Equivalents = 25.000.TRY paid on 13.08.2021
(iii) 35.000.EUR provided postdate check Equivalents = 350.000.TRY
9.
The Claimant underlines that the Respondent paid the amount of TRY 50,000, equivalents to
EUR 5,000.
10. Hence, the Claimant states that the Respondent has outstanding debt towards the Claimant
in the amount of EUR 35,300.
11. The Claimant filed the following request for relief:
“We kindly claim by means of FIFA that the players’ due outstanding credits 35.300.EUR from
the clubs with interest p.a minimum %5 until effective date of payment from respondent
club”.
b. Position of the Respondent
12. According to the Respondent, the claim has no legal basis.
13. In the view of the Respondent, in clause 9 “Dispute Resolution Board expression is the exact
translation of the national Turkish Dispute Resolution Board which is "Uyumazhk cozum
Kurulu" in Turkish language. So, the FIFA Tribunal or Dispute Resolution Chamber has no
jurisdiction on the dispute. Thereby, the application should be rejected in the light of this
clause primarily”
14. Furthermore, the Respondent states that the amount due has been fully paid and it does not
have any debt in favour of the Claimant.
15. The Respondent filed the following requests for relief:
“We kindly request you the reject the case lodged by the Applicant and charge the Applicant
for the procedural costs”.
c. Claimant’s comments on alleged payments
16. Due to the alleged payments made by the Respondent, the Claimant was requested to
comment. The Claimant provided made the following submissions.
17. The Claimant states that the Respondent delivered him two postdate cheque/ check TRY
450,000 and TRY 500,000.
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18. The Claimant emphasizes that the parties have signed a new employment contract on 13
August 2021 until 31 May 2022. Thus, the Claimant is still a current player of the Respondent
and the payments referred to by the Respondent as based on the new employment contract.
19. The Claimant further states that his claim is based on the first contract which was valid until
31 May 2021.
20. Regarding the proofs of payment, the Claimant states that “At the bottom pf original copy
and translation of the document denies club allegation and it proves that 350.000.TL out of
950.000.TL paid with check for the season 2020/2021. On the other hand, 600.000.TL for
the season 2021/2022 season which is payment for the new contract”
21. Thus, the Claimant reiterates his claim for EUR 35,300.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
22. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 15 October 2021 and submitted for
decision on 26 January 2022. 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.
23. 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 (August 2021 edition
in force on the date of decision), he is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between an
Slovenian player and a Turkish club.
24. In this respect, the Single Judge referred to the Respondent’s submissions and clause 9 of the
Contract, according to which: “The parties are free to accept the authority of the Dispute
Resolution Board within the framework of the Dispute Resolution Board Instruction in the
resolution of any dispute arising from this 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 NDRC of Turkey, in
accordance with art. 22 par. 1 lit. b) of the aforementioned Regulations. Particularly, the
Single Judge noted that the wording of the clause invites for the possibility for the parties to
refer to the Turkish NDRC albeit it does not rule out the possibility of the parties to seek justice
in other forums.
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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, he established that the Respondent’s objection
to the competence of FIFA to deal with the present matter has to be rejected and that the
Dispute Resolution Chamber 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, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 15 October 2021, the August 2021 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.
c. Merits of the dispute
29. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
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 the existence of overdue
payables in favour of the Claimant.
31. In this context, the Single Judge acknowledged that his task was to determine if the Claimant
was entitled to the amount requested.
32. The Chamber first 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.
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33. Nonetheless, the Single Judge noted that the evidence provided by the Respondent (namely
payment receipts) does not prove beyond doubt the payment of the amounts claimed as
outstanding by the Claimant. Furthermore, no reasonable justification was presented by the
Respondent for not having complied with the terms of the contract. In particular, the Single
Judge gave weight to the explanation provided by the Claimant and the fact that the Claimant
remains employed by the Respondent, therefore he kept receiving payments (as stated in the
receipts provided) from the Respondent after the ones requested in this proceeding.
34. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Respondent is held liable to pay the Claimant the outstanding amounts deriving from the
contract concluded between the parties, namely EUR 35,300.
35. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest
at the rate of 5% p.a. on the outstanding amounts as from the day after its due date (i.e. 1
June 2021) until the date of effective payment.
ii. Compliance with monetary decisions
36. 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 his 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.
37. 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.
38. 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.
39. 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.
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40. 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
41. 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
42. 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.
43. 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, Roman Bezjak, is accepted.
2.
The Respondent, Balikesirspor, has to pay to the Claimant, the following amount(s):
- EUR 35,300 as outstanding amount plus 5% interest p.a. as from 1 June 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. 24 of the Regulations on the Status and Transfer of Players (August 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.
2.
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.
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.
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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