Dispute Resolution Chamber
Texto da decisão
RE 21-00162
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Edin Cocalic
COMPOSITION:
Clifford J. Hendel (USA) (France), Deputy Chairman
Muzammil bin Mohamed (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Edin Cocalic, Bosnia and Herzegovina
Represented by Mr. Mumin Adiguzel
RESPONDENT:
Altay SK, Turkey
Represented by Mr. Talat Emre Kocak
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I.
FACTS OF THE CASE
1.
On 15 September 2020, the Bosnian player, Edin Cocalic (hereinafter: Claimant) and the
Turkish club, Altay SK (hereinafter: Respondent) signed an employment contract valid as
from the date of signature until 31 May 2022.
2.
In accordance with the employment contract (clause 3), the Respondent undertook to pay
to the Claimant EUR 200,000 for the season 2020-2021, inter alia as follows:
- EUR 20,000 on signing of the contract;
- EUR 20,000 in the first week of each month, for a total of 9 months, beginning as of 1
October 2020 up to and including 1 June 2021 (total amount: EUR 180,000).
3. Clause 3 of the contract further stated that the Claimant would be entitled to a guaranteed
fee of EUR 200,000 for the season 2021-2022, payable as follows:
- EUR 22,000 per month, for a total of 10 months, as from 1 August 2021 up to and including
1 May 2022 (total amount: EUR 220,000).
4. Additionally, clause 3 (special provisions) of the employment contract also stated that the
Respondent would assign a house with a rent up to 3,000 Turkish Liras (hereinafter: TRY)
and a personal car for the Claimant.
5. By correspondence dated 29 December 2020, the Claimant put the Respondent in default
of payment of EUR 60,000 as outstanding remuneration (for the months of October until
December 2020) and TRY 9,000 (approximately EUR 1,000) as outstanding rent for 3 months,
setting a time limit of 15 days in order to remedy the default and also added that in case of
non- compliance, he would terminate the contract.
6. On 14 January 2021, the Claimant unilaterally terminated the contract with the Respondent
due to outstanding remuneration.
II.
PROCEEDINGS BEFORE FIFA
7.
On 27 January 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
8. According to the Claimant, the Respondent did not fulfil its contractual obligations as agreed
despite reminders to do so.
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9. Consequently, the Claimant adds that he unilaterally terminated the contract with the
Respondent on 14 January 2021.
10. The Claimant asserts that as of 14 January 2021, the amount owed to him had increased to
EUR 81,000 to include the January salary of EUR 20,000 and 1 months’ rent, the equivalent
of EUR 1,000.
11. Furthermore, the Claimant submits that he is entitled to compensation for breach of contract,
because if he had continued to play with the Respondent, he would have received a further
salary of EUR 320,000 (EUR 100,000 at the end of season 2020/21 and EUR 220,000 at the
end of season 2021/2022).
12. The Claimant further submits that after the unilateral termination of its contract with the
Respondent, he signed a new contract with the Greek club Panetolokos, worth EUR 124,900.
13. As a result, the Claimant submits that he incurred a net loss of EUR 193,000. Therefore,
according to the Claimant, the Respondent owes him EUR 193,000 as compensation for
breach of contract.
14. The Claimant concluded by stating that the Respondent owes EUR 274,000 (EUR 81,000 for
the season 2020/2021 and EUR 193,000 as compensation for 2021/2022).
15. The requests for relief of the Claimant were as follows:
EUR 80,000 as outstanding salaries for the months of October 2020 to January 2021;
TRY 9,000 (equivalent of EUR 1,000) as outstanding monthly rent expenses;
5% interest p.a. on the salary and remuneration from due dates;
EUR 193,000 as compensation for breach of contract.
b.
Position of the Respondent
16. In its response, the Respondent rejected the Claimant’s claim that it terminated the contract
without just cause.
17. The Respondent also asserted that it acted in accordance to the Employment laws and rules
by making timely payments to the Claimant. Accordingly, according to the Respondent, there
are no overdue or unpaid payments owed to the Claimant until the termination date as
alleged by the Claimant.
18. Furthermore, the Respondent submitted that the Claimant’s claim to unpaid receivables as
well as compensation be dismissed, since it has always made payments on time up and till
the date the Claimant terminated its contract with the Respondent.
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19. The Respondent further submitted that it objects to the Claimant’s assertion that it sent a
default notice letter granting it a deadline of 15 days within which to make payment of the
outstanding amount owed to the Claimant in unpaid receivables.
20. In addition, the Respondent also stated that the Claimant’s calculation of compensation is
ungrounded, misleading and is contrary to the well-established jurisprudence of FIFA and
CAS.
21. The Respondent asserted that it is competing in Turkish 1 Division and not the Turkish Super
League, the basis on which the Claimant calculated the compensation owed to it.
Accordingly, the calculation method used by the Claimant to calculate compensation owed
to it is misleading and inaccurate.
22. The Respondent further submitted that in case the claim for compensation is taken into
account by FIFA, then the Claimant’s new employment contract with Greek Club Panetolokos
FC should be taken into account when calculating compensation.
23. The Respondent therefore requested that FIFA requires the Claimant to submit his new
employment contract with the Greek Club.
24. In conclusion, the Respondent requested that the DRC dismisses the Claimant’s claim and
to find that the contract termination was without just cause.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
25.
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 January 2021 and submitted
for decision on 3 June 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
26.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 Bosnian player
and a Turkish club.
27.
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
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and 2 of the Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 25 January 2021, the January 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 Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
29.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
30.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
31. 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 whether or not on 14 January
2021, the Claimant had a just cause to terminate the contract, in view of the alleged
outstanding salaries.
32. In this context, the Chamber acknowledged that it its task was to determine whether or not
on 14 January 2021, the Respondent was in arrears of its financial obligations towards the
Claimant and whether this could lead the Claimant to validly terminate the contract on said
date.
33. In this respect, the Chamber took note that the Claimant argued that the Respondent owed
him outstanding remuneration in the amount of EUR 80,000 as outstanding salaries for
October 2020 to January 2021 and TRY 9,000 as outstanding monthly rent expenses.
34. In continuation, the Chamber noted that the Respondent submitted that the Claimant’s claim
for unpaid receivables as well as compensation be dismissed since it has always made
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payments on time up and till the date the Claimant terminated its contract. As a result, the
Respondent submitted that the Claimant terminated his contract without just cause and that
therefore no compensation is due.
35. The Chamber further took note of the fact that in support of its submission above, the
Respondent submitted a proof of payment in the Turkish language for the unspecified
amount of “177,212” apparently made to the Claimant on 17 September 2020. The
Chamber also noted that it remained unclear for what period this payment corresponds to
and that the document submitted by the Respondent did not specify the currency in which
the alleged payment was made.
36. The Chamber also noted that the Respondent did not respond to FIFA’s request to clarify on
the above point.
37. As a result, the Chamber recalled that the basic principle of burden of proof, as stipulated in
art. 12 par. 3 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 applies.
38. With the above in mind, the Chamber noted that the Respondent carries the burden of proof
to prove that this alleged payment was made to the Claimant and that the Respondent had
failed to do so by submitting an untranslated document in Turkish (which could based on
the contents of art. 9 par. 1 of the Procedural Rules not be take into account) and failing to
respond to FIFA’s request for clarification. As a result, the Chamber decided to disregard this
document.
39. With the above in mind, the Chamber noted that based on the submissions, at the date of
termination, i.e. 14 January 2021, almost 4 monthly salaries remained outstanding. The
Chamber also noted that the Claimant put the Respondent in default of payment and
provided it with 15 days to remedy its default, however to no avail.
40. Based on the foregoing, the Chamber concluded that on the date of termination of the
contract, 14 January 2021, the Respondent was in serious violation of its financial and
contractual obligations towards the Claimant.
41. In view of the above, the Chamber concluded that the Claimant terminated his contract with
just cause on 14 January 2021 and that the Respondent is to be held liable for the early
termination of the contract with just cause by the Claimant.
ii. Consequences
42. 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.
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43. First of all, the Chamber decided - in accordance with the general legal principle of pacta
sunt servanda - the Respondent is liable to pay to the Claimant the amounts which were
outstanding under the contract at the moment of the termination..
44. In this respect, the Chamber concluded that the Claimant is entitled to outstanding
remuneration in the total amount of EUR 80,000, corresponding to the salaries due in the
period between October 2020 and January 2021.
45. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to
award the Claimant interest at the rate of 5% p.a. on the outstanding amount of EUR 80,000
as follows:
- on the amount of EUR 20,000 as from 1 November 2020;
- on the amount of EUR 20,000 as from 1 December 2020;
- on the amount of EUR 20,000 as from 1 January 2021;
- on the amount of EUR 20,000 as from 1 February 2021.
46. The Chamber also decided to award the Claimant TRY 9,000 as outstanding rent expenses
plus 5% interest p.a. as follows:
-on the amount of TRY 3,000 as of 1 November 2020;
-on the amount of TRY 3,000 as of 1 December 2020;
-on the amount of TRY 3,000 as of 1 January 2021.
47. In continuation, having established that the Respondent is to be held liable for the
termination of the contract with just cause by the Claimant, the Chamber decided that, in
accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay
compensation to the Claimant.
48. In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
49. In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a 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.
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50. Subsequently, and in order to evaluate the compensation to be paid by the Respondent, the
members of the Chamber took into account the remuneration due to the Claimant in
accordance with the employment contract as well as the time remaining on the same
contract, along with the professional situation of the Claimant after the early termination
occurred. In this respect, the Chamber pointed out that at the time of the termination of the
employment contract on 14 January 2021, the contract would run for another 16 months,
in which a total amount of EUR 320,000 was still to be paid.
51. Consequently, taking into account the financial terms of the contract, the Chamber
concluded that the remaining value of the contract as from its early termination by the
Respondent until the regular expiry of the contract amounts to EUR 320,000 and that such
amount shall serve as the basis for the final determination of the amount of compensation
for breach of contract.
52. However, the Chamber also noted the fact that on 18 January 2021, the Claimant signed a
new contract with the Greek club Panetolikos FC valid from the date of signature to 30 June
2022, according to which the Claimant was entitled to a total amount of EUR 124,900.
Consequently, in accordance with the constant practice of the Dispute Resolution Chamber
and the general obligation of the Claimant to mitigate his damages, such remuneration
under the new employment contract shall be taken into account in the calculation of the
amount of compensation for breach of contract.
53. With the above in mind, the Chamber first of all noted that there was an overlapping period
of 1 month between the 2 contracts and therefore only took into account the period
between February 2021 to May 2022 in determining the mitigated amount due to the
Claimant. As a result, the Chamber determined that the Claimant was able to mitigate his
losses by EUR 124,200 (EUR 124,900 - EUR 700).
54. Furthermore, the Chamber also noted that the Claimant would in principle be entitled to a
mitigated compensation in the amount of EUR 195,800 (EUR 320,000 - EUR 124,200) but
that he had limited his claim for compensation to EUR 193,000.
55. Subsequently, the Chamber turned its attention to art. 17 par. 1 lit. ii) of the Regulations,
according to which a player is entitled to an additional compensation of three monthly
salaries, subject to the early termination of the contract being due to overdue payables. In
case of egregious circumstances, the additional compensation may be increased up to a
maximum of six monthly salaries, whereby the overall compensation may never exceed the
rest value of the prematurely terminated contract.
56. As the termination was due to overdue payables, the Chamber also took note of the fact
that the Claimant would in principle be entitled to additional compensation amounting to 3
monthly salaries in the amount of EUR 60,000 (EUR 20,000 x 3). However, since the Claimant
only limited his request for compensation for breach of contract to the amount of EUR
193,000, the Chamber awarded the amount of EUR 193,000 as requested by the Claimant.
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57. In view of all of the above, the Chamber decided that the Respondent must pay the amount
of EUR 193,000 to the Claimant as compensation for breach of contract without just case,
which is considered by the Chamber to be a reasonable and justified amount as
compensation.
58. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the members of the Chamber decided to
award the Claimant interest at the rate of 5% p.a. on the amount of EUR 193,000 as of 27
January 2021 (the date of the claim).
59. In continuation, taking into account the consideration under number II./5. above, the
Chamber referred to art.12bis par. 2 of the Regulations which stipulates that any club found
to have delayed a due payment for more than 30 days without a prima facie contractual
basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.
60. The Chamber established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Bearing in mind that the Respondent
duly replied to the claim of the Claimant and in the absence of the circumstance of repeated
offence, the Chamber decided to impose a warning on the Respondent in accordance with
art. 12bis par. 4 lit. a) of the Regulations.
61. In this connection, the Chamber wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to more severe penalty in accordance
with art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
62.
Finally, taking into account the consideration under number 33 and 40 above, the Chamber
referred to par. 1 lit. and 2 of art. 24bis 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.
63.
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.
64.
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
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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.
65.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
66.
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
67.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
68.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
69.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Edin Cocalic, is accepted.
2.
The Respondent, Altay SK, has to pay to the Claimant, EUR 80,000 as outstanding remuneration
plus 5% interest p.a. until the effective date of payment as follows:
-on the amount of EUR 20,000 as from 1 November 2020;
-on the amount of EUR 20,000 as from 1 December 2020;
-on the amount of EUR 20,000 as from 1 January 2021;
-on the amount of EUR 20,000 as from 1 February 2021.
3. The Respondent has to pay the Claimant TRY 9,000 as outstanding rent expenses plus 5%
interest p.a. as follows:
-on the amount of TRY 3,000 as of 1 November 2020;
-on the amount of TRY 3,000 as of 1 December 2020;
-on the amount of TRY 3,000 as of 1 January 2021.
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4. The Respondent has to pay the Claimant the amount of EUR 193,000 as compensation for
breach of contract, plus 5% interest p.a. as of 27 January 2021 until the effective date of
payment.
5. A warning is imposed on the Respondent.
6. Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
7. Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 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 paid by the end of
the of the three entire and consecutive registration periods.
8. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
9. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
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