Labour Disputes
Texto da decisão
REF FPSD-6530
Decision of the
Dispute Resolution Chamber
passed on 29 September 2022
regarding an employment-related dispute concerning the player Oltion
Bilalli
BY:
Omar Ongaro (Italy), Deputy Chairperson
Khalid Awad Al-Thebity (Saudi Arabia), member
Michele Colucci (Italy), member
CLAIMANT:
Oltion Bilalli, Kosovo
Represented by Mr Anil Dinçer
RESPONDENT:
Balikesirspor Kulübü Derneği, Türkiye
Represented by Messrs Turgut Özguç
Korhan Armağan
Özgün
and
Page 2
REF FPSD-6530
I. Facts of the case
1.
On 10 September 2020, the Kosovar player, Oltion Bilalli (hereinafter: the Claimant), and
the Turkish club, Balikesirspor Kulübü Derneği (hereinafter: the Respondent) signed an
employment contract valid as from the date of signature until 31 May 2022 (hereinafter:
the Contract).
2.
In accordance with art. 3 of the Contract, the Respondent undertook to pay to the
Claimant inter alia remuneration as follows:
-
-
For the season 2020-2021: annual net remuneration of EUR 35,000 payable in ten
instalments of EUR 3,000 between September 2020 and June 2021 plus an advance
payment of EUR 5,000;
For the season 2021-2022: annual net remuneration of EUR 55,000 payable in ten
instalments of EUR 5,000 between August 2021 and May 2022 plus an advance
payment of EUR 5,000.
All salary instalments stipulated under art. 3 of the Contract were payable on the 30th day
of the following respective month, and the two advance payments on 10 September 2020
and 10 September 2021 respectively.
3.
Furthermore, in accordance with art. 9 of the Contract, it was agreed 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.
By correspondence dated 29 April 2022, the Claimant put the Respondent in default of
payment of several salaries under the Contract, stating that, of EUR 75,000 to which the
Claimant was entitled until then, EUR 70,000 had remained outstanding. The Claimant
granted the Respondent a time limit of 15 days in order to remedy the alleged default, to
no avail.
5.
On 18 May 2022, the Claimant unilaterally terminated the Contract.
II. Proceedings before FIFA
6.
On 27 June 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
Page 3
REF FPSD-6530
a. Position of the Claimant
7.
The Claimant asserted that several monthly salary instalments remained unpaid, in the
total amount of EUR 70,000, and that said amount significantly exceeded the requisite
two-month threshold to give rise to just cause for termination. Furthermore, the Claimant
argued that he put the Respondent in default of payment of the overdue amounts,
granting a 15-day deadline to remedy the alleged breach, in compliance with art. 14bis of
the Regulations on the Status and Transfer of Players. Thus, according to the Claimant,
there was just cause to terminate the Contract.
8.
The Claimant requested outstanding remuneration in the amount of EUR 70,000 plus
interest of 5% p.a. as from the date of claim (27 June 2022) until the date of effective
payment.
9.
Furthermore, the Claimant requested compensation in the amount of EUR 15,000, based
on the alleged residual value of the Contract as from the date of termination, as well as
additional compensation in the amount of EUR 15,000 corresponding to alleged “sporting
and financial damages” caused as a result of the Respondent’s breach of contract.
10. The Claimant also requested interest on the compensation claimed at the standard rate
of 5% p.a. as from the date of the claim (27 June 2022) until the date of effective payment.
b. Position of the Respondent
11. The Respondent firstly contested the competence of FIFA, arguing that art. 9 of the
Contract excludes the jurisdiction of FIFA in favour of the Turkish National Dispute
Resolution Chamber.
12. Furthermore, the Respondent submitted a number of payment receipts and proofs of
transaction of alleged payments made towards the Claimant, in the total amount of
TRY 44,250 (approx. EUR 2,500).
13. Lastly, the Respondent asserted that, since the Claimant did not submit any evidence as
to having suffered any sporting prejudice, he should not be entitled to any additional
compensation.
c. Comments of the Claimant
14. The Claimant was invited by the FIFA Administration to comment on the alleged payments
made by the Respondent in the latter’s submission.
15. In this respect, the Claimant confirmed all of the payments which were asserted by the
Respondent, maintained, however, that since these amount to approximately EUR 2,500,
Page 4
REF FPSD-6530
the outstanding remuneration was still substantially in excess of the two-month threshold
required to give rise to just cause under art. 14bis of the Regulations.
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 June 2022 and submitted
for decision on 29 September 2022. Taking into account the wording of art. 34 of the June
2022 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
lit. b) of the Regulations on the Status and Transfer of Players (July 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
Kosovar player and a Turkish club.
18. The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the National Dispute Resolution Chamber of Türkiye Futbol
Federasyonu (hereinafter: the NDRC of Türkiye), alleging that the latter is competent to
deal with any dispute deriving from the Contract, in accordance with art. 9 thereunder.
19. Taking into account the above, the Chamber emphasised that, in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established
at national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
20. In this context, the Chamber pointed out that it should first analyse whether the Contract
contained a clear and exclusive jurisdiction clause in favour of the NDRC of Türkiye.
Page 5
REF FPSD-6530
21. In this respect, the Chamber referred to art. 9 under 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.” The Chamber, after analysing the wording of the jurisdiction clause, concluded
that such clause did not clearly and exclusively establish the competence of the NDRC of
Türkiye, in accordance with art. 22 par. 1 lit. b).
22. As a consequence, the Chamber was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without need to
enter the analysis of any further requirement, it established that the Respondent’s
objection to the competence of FIFA’s decision-making bodies 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.
23. 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 (July 2022 edition), and
considering that the present claim was lodged on 27 June 2022, the June 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
24. 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
25. 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.
Page 6
REF FPSD-6530
i. Main legal discussion and considerations
26. 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 lawfulness of the
termination of the Contract by the Claimant, based on the alleged non-payment of certain
financial obligations by the Respondent as per the Contract.
27. In this context, the Chamber acknowledged that it its 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.
28. 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).
29. The Chamber recalled that the Claimant initially stated only having received EUR 5,000
over the course of the Contract, and subsequently acknowledged further payments in the
amount of EUR 2,500. Thus, for the period between September 2020 and April 2022,
during which the Claimant was entitled to a total remuneration of EUR 85,000, he received
only EUR 7,500, amounting to an allegedly unpaid remuneration of EUR 77,500.
30. Furthermore, the Chamber noted that the Claimant has provided written evidence of
having put the Respondent in default on 29 April 2022, i.e. at least 15 days before
unilaterally terminating the Contract on 18 May 2022.
31. 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. In this respect, the Chamber noted that the Respondent, beyond the
aforementioned payment slips in the amount of EUR 2,500, did not contest, or provide
any evidence to disprove the non-payment of the remaining amounts claimed as
outstanding by the Claimant.
32. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally
terminated the Contract, based on art. 14bis of the Regulations.
Page 7
REF FPSD-6530
ii. Consequences
33. 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.
34. In this respect, the Chamber recalled that the outstanding remuneration at the time the
Contract was terminated amounted to EUR 77,500. As such, and in accordance with the
general legal principle of pacta sunt servanda, the Chamber decided that the Respondent
is liable to pay the Claimant the amounts which were outstanding under the Contract at
the moment of termination.
35. 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 27 June 2022 until the date of
effective payment.
36. Having stated the above, the Chamber turned to the calculation of the 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.
37. In application of the relevant provision, the Chamber held that it first of all had to clarify
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.
38. 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.
39. As a consequence, the Chamber determined that the amount of compensation payable
by the Respondent to the Claimant 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.
Page 8
REF FPSD-6530
40. Bearing in mind the foregoing, as well as the claim of the Claimant, the Chamber
proceeded with the calculation of the monies payable to the former under the terms of
the Contract until its term. Consequently, the Chamber concluded that the amount of
EUR 5,000 (i.e., the salary for the month of May 2022) serves as the basis for the
determination of the amount of compensation for breach of contract.
41. In continuation, the Chamber verified whether the Claimant had signed an employment
contract with another club during the relevant period of time, by means of which he would
have been able to reduce his loss of income. According to the constant practice of the
Chamber, 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.
42. In this respect, the Chamber noted that the Claimant remained unemployed since the
unilateral termination of the Contract until its term.
43. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
a player did not sign any new contract following the termination of his previous contract,
the compensation shall be equal to the residual value of the contract that was
prematurely terminated.
44. In this respect, the Chamber decided to award the Claimant compensation for breach of
contract in the amount of EUR 5,000 i.e. corresponding to the salary of May 2022, as the
residual value of the Contract that was prematurely terminated.
45. Lastly, and in accordance with its constant practice in this regard and the specific request
of the Claimant, the Chamber decided to award the former interest as from 27 June 2022
until the date of effective payment.
iii. Compliance with monetary decisions
46. 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.
47. 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
Page 9
REF FPSD-6530
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
48. 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
49. 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.
50. 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
51. 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.
52. 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.
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 10
REF FPSD-6530
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Oltion Bilalli, is partially accepted.
2.
The Respondent, Balikesirspor Kulübü Derneği, has to pay to the Claimant the following
amount(s):
- EUR 77,500 as outstanding remuneration plus 5% interest p.a. as from 27 June 2022
until the date of effective payment;
- EUR 5,000 as compensation for breach of contract without just cause plus 5% p.a. as
from 27 June 2022 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 the ban
shall be 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 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 article 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
Page 11
REF FPSD-6530
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
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
Page 12