Labour Disputes
Texto da decisão
REF FPSD-6212
Decision of the
Dispute Resolution Chamber
passed on 15 September 2022
regarding an employment-related dispute concerning the player Luka
Capan
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Tomislav Kasalo (Croatia), member
Jerome Perlemuter (France), member
CLAIMANT:
Luka Capan, Croatia,
Represented by Riza Köklü
RESPONDENT:
Bursaspor Kulubu Dernegi, Turkey
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REF FPSD-6212
I.
Facts of the case
1.
On 14 August 2021, the Croatian player, Luka Capan (hereinafter: the player or Claimant), and the
Turkish club, Bursaspor Kulubu Dernegi (hereinafter: the club or Respondent) concluded an
employment contract (hereinafter: the contract) valid as from 14 August 2021 until 31 May 2023.
2.
According to the contract, the Respondent, inter alia, undertook to pay the Claimant the following
amounts:
For the 2021/2022 Season
• EUR 50,000 net - as advance payment on the signing date of the contract,
•
EUR 300,000 net - as salary to be paid for 10 months as EUR 30,000 net for the period
between 31 August 2021 and 31 May 2022.
For the 2022/2023 Season
• EUR 350,000 net- as salary to be paid for 10 months as EUR 35,000 net for the period
between 31 August 2022 and 31 May 2023.
3.
Moreover, the contract stated that “a house and a car will be provided by the Club” as well “as two
round-trip economy class flight tickets to the player's country Croatia”.
4.
The Claimant indicated that the Respondent failed to comply with its contractual financial
obligations and only paid him the following amounts since commencement of the contract:
-
EUR 16,000 as a salary for August 2021
-
EUR 50,000 as advance payment on 1 February 2022
5.
On 1 February 2022 the Claimant sent a notice of default to the Respondent, requesting payment
of the total amount of EUR 164,000 and TRY 63,000, granting it a deadline of 15 days to comply
with payment thereof.
6.
The Claimant indicted that after the aforesaid deadline the Respondent made partial payments in
the amounts of EUR 96,000 and TRY 73,500 corresponding to the house rental fee.
7.
On 16 May 2022, the Claimant unilaterally terminated the contract with the Respondent due to the
fact that the following amounts remained outstanding:
•
EUR 7,500- remaining from November 2021 salary,
•
EUR 30,000 - as December 2021 salary,
•
EUR 30,000- as January 2022 salary,
•
EUR 30,000 - as February 2022 salary,
•
EUR 30,000 - as March 2022 salary,
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•
EUR 30,000 - as April 2022 salary,
•
TL 21,000- as the monthly rent payment for two months
8.
On 2 September 2022, the Claimant concluded an employment contract with the Hungarian club
Honved FC Kft, valid from 2 September 2022 until 30 June 2023, entitling him to (Hungarian Forint)
HUF 2,903.50 as a monthly salary from September 2022 until January 2023 and HUF 5,763 as a
monthly salary from February until May 2023 plus an additional fee of HUF 12,153.30.
II. Proceedings before FIFA
9.
On 31 May 2022, 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
10. According to the Claimant, the Respondent failed to fulfil its financial obligations even after the
Claimant had placed the Respondent in default, moreover the Respondent had severely breached
its financial duties towards the Claimant for nearly six months.
11. The requests for relief of the Claimant, were that the Respondent pay him:
(a)
EUR 157,500 net and TRY 21,000 as outstanding remuneration plus 5% interest p.a. from the
respective due dates until the date of effective payment as follows:
(b)
•
EUR 7,500 net as from 30 November 2021 (salary)
•
EUR 30,000 net as from 31 December 2021 (salary)
•
EUR 30,000 net as from 31 January 2022 (salary)
•
EUR 30,000 net as from 28 February 2022 (salary)
•
EUR 30,000 net as from 31 March 2022 (salary)
•
EUR 30,000 net as from 30 April 2022 (salary)
•
TRY 10,500 net as from 24 March 2022 (rental)
•
TRY 10,500 net as from 24 April 2022 (rental)
EUR 470,000 corresponding to (EUR 380,000 as residual value of the contract – May 2022 salary
and 2022/2023 season) plus additional compensation in the amount of EUR 90,000 (EUR 30,000
x3) as compensation for breach of contract plus 5% interest rate p.a. from 16 May 2022 until the
date of effective payment.
b. Position of the Respondent
12. In its reply, to the claim the Respondent mentioned the following:
“We hereby present all the payment receipts for the payments which were made to the player. As the
payments have been made to the player, the termination of the player is without just cause. Moreover,
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as the club provided a proper flat and rental car for the player, we hereby reject the claim of the player
related to the rental fees.
Even if we assume that the player terminated his contract with just cause (not an acceptance) as the
transfer season is continued in lots of country, the player may still sign a contract with a third club.
According to the Article 17 of RSTP while the compensation is calculated, the value of the new contract
should be deducted from the residual value of the contract.”
13. In conclusion the Respondent requested that the claim be rejected.
c.
Additional Comments Claimant
14. The Claimant was granted an opportunity to comment on the payment documents submitted by
the Respondent and in this context firstly indicated that none of the payment receipts are
translated into one of the official languages of FIFA and therefore should not be taken into account.
15. Moreover, the Claimant, inter alia, mentioned the following in the event that the payments are
taken into consideration:
“a.
Payment of 20.000.-TL (Turkish Lira) dated 15 April 2022
This payment is made for the Kocaelispor game in the second half of the 2021/2022 Season bonus
payment as it is stated in the receipt presented by the Respondent. Since alI the payment currencies
stipulated in the Employment Contract are in EUR currency, it is clear that the Turkish Lira payment,
are only made for match bonuses and/ or house rental. Therefore, this amount cannot be deducted
from the salary payments.
b.
Payment of 20.000.-TL (Turkish Lira) dated 29 April 2022
This payment is made for the Denizlispor game in the second half of the 2021/2022 Season bonus
payment as it is stated in the receipt presented by the Respondent. Since all the payment currencies
stipulated in the Employment Contract are in EUR currency, it is clear that the Turkish Lira payments
are only made for match bonuses and/ or house rental. Therefore, this amount cannot be deducted
from the salary payments.
c.
Payment of 30.000.-TL (Turkish Lira) dated 6 May 2022
This payment is made for the Manisa FK game in the second half of the 2021/2022 Season bonus
payment as it is stated in the receipt presented by the Respondent. Since all the payment currencies
stipulated in the Employment Contract are in EUR currency, it is clear that the Turkish Lira payments
are only made for match bonuses and/ or house rental. Therefore, this amount cannot be deducted
from the salary payments.
d.
Payment of 20.000.-TL (Turkish Lira) dated 12 May 2022
This payment is made for the Umraniyespor game in the second half of the 2021/2022 Season bonus
payment as it is stated in the receipt presented by the Respondent. Since all the payment currencies
stipulated in the Employment Contract are in EUR currency, it is clear that the Turkish Lira payments
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are only made for match bonuses and/ or house rental. Therefore, this amount cannot be deducted
from the salary payments.”
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 31 May 2022 and submitted for decision on 15
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 (June 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 Croatian 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
Regulations on the Status and Transfer of Player (June 2022 edition), and considering that the
present claim was lodged on 31 May 2022, the March 2022 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 abovementioned 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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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 the parties strongly dispute the justification 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.
22. In this context, the Chamber acknowledged that 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.
23. 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).
24. The Chamber noted that the Claimant mentioned that the Respondent failed to pay his salaries for
the period November 2021 until April 2022. Furthermore, the Chamber noted that the Claimant
sent a default notice to the Respondent on 1 February 2022 granting the Respondent 15 days to
remedy the default and that at the date of termination i.e., 16 May 2022, more than two monthly
salaries remained outstanding as the Claimant only received partial payments from the
Respondent since the issuing of his default notice. In particular the following remuneration
remained outstanding:
-
EUR 7,500- remaining from November 2021 salary,
EUR 30,000 - as December 2021 salary,
EUR 30,000- as January 2022 salary,
EUR 30,000 - as February 2022 salary,
EUR 30,000 - as March 2022 salary,
EUR 30,000 - as April 2022 salary,
TL 21,000- as the monthly rent payment for two months
25. The members of the Chamber noted that the Respondent in its reply argued that it duly complied
with its payment obligations towards the Claimant as it made several payments to the Claimant
and accordingly submitted payment documents, which according to the Respondent illustrated
the payments it had made to the Claimant.
26. In this regard, the Chamber wished to point out that, in accordance with art. 13 par. 1 of the
Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be
presented into one of the official FIFA languages.
27. In this context, the Chamber wished to specify that the documentary evidence provided by the
Respondent, were provided without a translation in one of the official FIFA languages and could
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therefore not be taken into account in assessment of the matter at hand, accordingly the
Respondent did not meet its burden of proof as established under article 13 par. 5 of the
Procedural Rules.
28. Moreover, the Chamber pointed out that majority of the documentation submitted by the
Respondent, cannot be considered as decisive and conclusive documentary evidence, on the basis
of which it could be established that the Respondent complied with its financial obligations as per
the contract. In this respect, the Chamber remarked that certain documents appear to belong to
payments made in Turkish Lira and can therefore not be considered as salary payments.
29. Taking the above into account, the Chamber concluded, that the Claimant had just cause to
unilaterally terminate the employment relationship, based on art. 14bis of the Regulations.
ii. Consequences
30. 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.
31. Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant his
outstanding remuneration in the amount of EUR 157,500 corresponding to the following:
-
EUR 7,500 due and payable on 30 November 2021
EUR 30,000 due and payable on 31 December 2021
EUR 30,000 due and payable on 30 January 2022
EUR 30,000 due and payable on 28 February 2022
EUR 30,000 due and payable on 31 March 2022
EUR 30,000 due and payable on 30 April 2022
32. Moreover, in relation to the rental fees in the amount of TRY 21,000 as claimed by the Claimant,
the DRC concluded that based on the evidence submitted by the Claimant and the failure of the
Respondent to duly substantiate its rejection to the aforesaid amount, the said amount shall be
awarded to the Claimant, as follows:
-
TRY 10,500 net as from 25 March 2022
TRY 10,500 net as from 25 April 2022
33. What is more, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts from
the respective due dates until the date of effective payment.
34. 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
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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 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 nonexhaustive 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 380,000 [i.e., the residual value of the contract May 2022 salary and 2022/2023 season (EUR
350,000 net- EUR 35,000 net per month for the period between 31 August 2022 and 31 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 found employment with the Hungarian club, Honved FC Kft. In accordance with
the pertinent employment contract, the player was entitled to approximately a monthly salary of
HUF 2,903,50 between the period 2 September 2022 until 31 January 2023 and HUF 5,763 between
the period 1 February until 30 June 2023 plus an additional amount of HUF 12,153. Therefore, the
Chamber concluded that the player mitigated his damages in the total amount of approximately
EUR 255,105.
40. 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.
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41. In this respect, the Chamber decided to award the amount of additional compensation of EUR
90,000 i.e., EUR 30,000 times three as the monthly remuneration of the player.
42. 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 345,105 to the
player (i.e., EUR 255,105 plus EUR 90,000), which was to be considered a reasonable and justified
amount of compensation for breach of contract in the present matter.
43. 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 31 May 2022 until the date of effective payment.
iii. Sporting Sanctions
44. The Chamber noted that the Respondent had also on several occasions in the recent past been
held liable by the Football Tribunal for the early termination of the employment contracts without
just cause, namely in the following cases:
a. Case ref. FPSD-4744, DRC Decision of 8 March 2022
b. Case ref. FPSD-4652, DRC Decision of 10 March 2022
c. Case ref. FPSD-5635, DRC Decision of 9 June 2022
45. Under article 17 par. 4 of the Regulations, in addition to the obligation to pay compensation,
sporting sanctions shall be imposed on any club found to be in breach of contract or found to be
inducing a breach of contract during the protected period.
46. As to the protected period, this is defined in the Regulations as “a period of three entire seasons or
three years, whichever comes first, following the entry into force of a contract, where such contract is
concluded prior to the 28th birthday of the professional, or two entire seasons or two years, whichever
comes first, following the entry into force of a contract, where such contract is concluded after the 28th
birthday of the professional”.
47. In the present case, the player was 26 years old when he signed the employment agreement, which
took place on 14 August 2021. Accordingly, the protected period would end at the earliest on 31
May 2023, when the season 2022/2023 would end in Turkey. As such, the Chamber confirmed that
since the termination of the employment agreement occurred on 16 May 2022, it took place within
the protected period.
48. At the same time, the DRC recalled that the player terminated the contract with just cause, as the
club was found to be in breach of the employment contract. As such, and by virtue of art. 17 par.
4 of the Regulations, the Chamber decided that the Respondent shall be banned from registering
any new players, either nationally or internationally, for the two next entire and consecutive
registration periods following the notification of the present decision.
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49. For the sake of completeness, the Chamber recalled that in accordance with article 24 par. 3 lit. a)
of the Regulations, the consequences for failure to pay relevant amounts in due time may be
excluded where the Football Tribunal has imposed a sporting sanction on the basis of article 17 in
the same case. Consequently, the Chamber confirmed that the consequences for failure to pay
relevant amounts in due time envisaged by art. 24 of the Regulations were excluded in the present
matter, and that should the Respondent fail to timely comply with this decision, it would be for the
FIFA Disciplinary Committee to adopt the necessary measures in accordance with the FIFA
Disciplinary Code.
d. Costs
50. 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.
51. 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.
52. Lastly, the DRC 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, Luka Capan, is partially accepted.
2.
The Respondent, Bursaspor Kulubu Dernegi, has to pay to the Claimant, the following amounts:
(a) EUR 157,500 as outstanding remuneration plus 5% interest p.a. as from the respective due
dates until the date of effective payment, as follows:
-
on the amount of EUR 7,500 net as from 1 December 2021
on the amount of EUR 30,000 net as from 1 January 2022
on the amount of EUR 30,000 net as from 1 February 2022
on the amount of EUR 30,000 net as from 1 March 2022
on the amount of EUR 30,000 net as from 1 April 2022
on the amount of EUR 30,000 net as from 1 May 2022
(b) TRY 21,000 as rental fees plus 5% interest p.a. as from the respective due dates until the date
of effective payment, as follows:
-
TRY 10,500 net as from 25 March 2022
TRY 10,500 net as from 25 April 2022
(c) EUR 345,105 as compensation for breach of contract plus 5% interest p.a. as from 31 May 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.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the next two entire and consecutive registration periods following the
notification of the present decision.
6.
If full payment (including all applicable interest) is not made within 30 days of notification of this
decision, the present matter shall be submitted, upon request of the Claimant, to the FIFA
Disciplinary Committee.
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).
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