Dispute Resolution Chamber
Texto da decisão
REF 20-01703 / FPSD-394
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Brahim Darri
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
RESPONDENT / COUNTER-CLAIMANT:
Brahim Darri, Netherlands
Represented by Maciej Bałaziński
CLAIMANT / COUNTER-RESPONDENT:
Fatih Karagumruk AS, Turkey
Represented by Sami Dinc
Page 2 of 22
REF 20-01703 / FPSD-394
I.
FACTS OF THE CASE
1.
On 15 July 2019, the Dutch player, Brahim Darri (hereinafter: player or
Respondent/Counter-Claimant), and the Turkish club, Fatih Karagumruk AS (hereinafter:
club or Claimant/Counter-Respondent) signed an employment contract (hereinafter: the
contract) valid as from said date until 31 May 2021.
2.
In accordance with the employment contract, the club undertook to pay to the player inter
alia the amount of EUR 250,000 as retribution for the entire season 2019/2020, broken
down as follows:
EUR 75.000,00 as advance payment to be paid at the moment of the signature
EUR 175.000,00 split in 10 (ten) instalments as monthly salaries between August
2019 and May 2020 (due on the last day of each month).
3.
Similarly to the above, the club undertook to pay the player the same amount of EUR
250,000 as remuneration for the season 2020/2021, following the scheme below:
EUR 75.000,00 as advance payment to be paid by 31 August 2020
EUR 175.000,00 split in 10 (ten) instalments as monthly salaries between August
2020 and May 2021.
4.
Furthermore, art. 6.1 sec. 3 of the contract stipulated that in case the club got promoted
to the TFF Super League for the 2020/2021 football season and in case the player plays
more than 25 official matches in the 1st League during the 2019/2020 football season
participating in the team’s regular line-up, the Player shall be entitled to receive in the
2020/2021 season the total remuneration of EUR 400.000, to be paid in the amount of
EUR 120.000,00 as an advance payment due by 31 August 2020 and EUR 280.000,00 split
in 10 (ten) instalments as monthly salaries between August 2020 and May 2021.
5.
Moreover, a further bonus of EUR 50,000 in favour of the player was agreed by the parties
in case of club's promotion to the Turkish Super League, to be paid within 60 (sixty) days
following the end of the 2019/2020 football season.
6.
In addition to the amounts above, the Counter-Respondent undertook to pay to the
Counter-Claimant the following sums as “living costs”, for the seasons 2019/2020 and
2020/2021:
EUR 7,000 due by 31 August 2019
EUR 7,000 due by 31 January 2020
Page 3 of 22
REF 20-01703 / FPSD-394
EUR 7,000 due by 31 August 2020
EUR 7,000 due by 31 January 2021
7.
On 10 March 2020, the player was sent off after receiving a second caution during the
match played between the club and Buyuksehir Belediye Erzurumspor.
8.
On 17 March 2020 the Disciplinary Committee of the Turkish Football Federation (TFF)
decided the suspension of the player for 2 (two) official matches due to unsporting
behaviour and imposed a fine amounting to TL 13.000 (Turkish Liras).
9.
On 19 March 2020, TFF has decided to postpone the football league to a later date due to
the COVID-19 pandemic.
10.
Upon the decision of TFF regarding the suspension of the league, the club sent notifications
to all the team members and asked the players to find an amicable solution in regards to
the negative financial effects of the COVID-19 pandemic in line with the FIFA Regulations.
11.
Upon the player’s appeal before the TFF Arbitration Committee, the aforementioned
decision was confirmed, becoming final and binding as of 19 March 2020.
12.
On 11 May 2020, the club sent a written proposal to the player, requesting the acceptance
(within 5 days from the notification) of a 30% discount over all the amounts to which the
latter was entitled, with the condition that in case of Club’s promotion to the TFF Super
League at the end of the 2019/2020 season, said discount would have been considered
invalid.
13.
Furthermore, in case of acceptance, the club offered also not to proceed with any further
claim against the player before the relevant judicial bodies.
14.
Conversely, in case of no reply or refusal by the player, the club informed him that a
unilateral reduction of the salary would have been applied by the club in line with the
aforementioned FIFA Guidelines as well as the TFF Recommendations and the national law.
15.
On 15 May 2020, the player rejected the proposal of the club as this was considered without
any legal or contractual basis.
16.
On 21 May 2020, the club sent a notice to the player and requested his written defence in
regard to the above referred violations, also warning him that in case of no reply or in case
such reply would have been considered insufficient by the Club, the latter would have
imposed a further sanction in accordance with the Club’s Disciplinary Regulations as these
were accepted by the Player at the moment of signing the employment contract, namely
under art. 5 lit. q).
Page 4 of 22
REF 20-01703 / FPSD-394
17.
On 1 June 2020 the club informed the player that it had no choice but to proceed with a
unilateral reduction of his remunerations related to the season 2019/2020 in the amount
of EUR 30.000,00, by reason of the negative financial effect of the COVID-19 pandemic.
18.
On 2 June 2020 the player sent to the club a default notice with a 15 days’ deadline in
order to comply with its financial obligations and demanded the payment of EUR 94,000
as overdue payables connected with the 2019/2020 season.
19.
On 16 June 2020 the club paid the amount of EUR 94.500,00 to the player.
20.
Following the payment, on the very same day, the club sent a notice to the player, informing
the latter that it would have reserved all and any rights to claim and request to collect the
fines imposed on the Player, as well as to collect the reduction and the exceeding part of
the actual unpaid receivables of the player.
21.
On 30 July 2020 the 2019/2020 season of the TFF 1st League officially ended and the
Counter-Respondent has been promoted to the TFF Super League.
22.
During the 2019/2020 football season the player was selected the club’s team regular lineup in 27 (twenty-seven) official 1st League matches.
23.
On 11 August 2020, the club sent a letter to the relevant Turkish sports authority,
requesting financial support in order to face the lack of funds ascribable to the Covid-19
effect and comply with its financial obligations.
24.
On 20 October 2020, the player put once again the Club in default of the following
payments:
a) EUR 120.000 of the advance payment, to be paid until 31.08.2020
b) EUR 10.500 of outstanding salary due for August 2020, to be paid until 31.08.2020
c) EUR 28.000 of outstanding salary due for September 2020, to be paid until
30.09.2020
d) EUR 28.000 of outstanding salary due for October 2020, to be paid until 31.10.2020
e) EUR 7.000 of the equivalent of the living costs, to be paid until 31.08.2020.
25.
By means of the same letter, the player warned the club that he would have been entitled
to terminate the contract with just cause, namely for outstanding salaries, in case of noncompliance by the latter within the following 15 days from said notification.
Page 5 of 22
REF 20-01703 / FPSD-394
26.
On 30 October 2020, the club filed a claim before FIFA DRC against the Player, requesting
to acknowledge the validity of the fines imposed on the latter by the TFF Disciplinary
Committee as well as of the salary reduction unilaterally adopted in the measure of 30%.
(Ref. 20-01594).
27.
On 2 November 2020, the club replied to the player’s notice letter dated 20 October 2020,
contesting his request.
28.
In this context it shall be noted that the club has acknowledged that the player played in
27 matches of the Club in the 2019/2020 season but contested the status of the 3 “playoff matches” as the "official 1st League matches" as per wording of Art. 6.1 sec. 3 of the
Contract.
29.
Moreover, the club argued that the claimed outstanding sums should have been offset by
the necessary salary reduction operated by the Club as well as by the pecuniary sanctions
imposed on the Player by the TFF Disciplinary Committee.
30.
On 5 November 2020, in response to the club's correspondence, the player sent a letter in
which the latter presented its position regarding the club's argumentation and ultimately
requested the payment of all salaries outstanding as of said date.
31.
On 6 November 2020, the player notified the club of the unilateral termination of the
contract for just cause.
32.
On 23 November 2020, the player lodged a (counter)claim against the club.
II.
PROCEEDINGS BEFORE FIFA
33.
A brief summary of the position of the parties is detailed in continuation.
a.
34.
The claim of the Claimant / Counter-Respondent
On 30 October 2020, the club lodged a claim against the player requesting the following:
To decide that the fines imposed on the Player in the total amount of EUR
27.411,11 (EUR 25.700,00 + 13.000,00-TL) are valid and the Player has to pay the
amount of EUR 27.411,11 plus 5% interest p.a. as of 1 June 2020.
To decide that the unilateral reduction made by the Club is valid and the Player has
to pay back the amount of EUR 30.000,00 plus 5% interest p.a. as of 16 June
2020.
Page 6 of 22
REF 20-01703 / FPSD-394
To decide that the Player has to pay the exceeding part of the payments regarding
the football season of 2019/2020 in the amount of EUR 3.848,45 plus 5% interest
p.a. as of 15 June 2020
To decide that the judicial costs and the attorney-ship fees that the Claimant is
faced with shall paid by the Claimant.
35.
In support of its claim, the club accused the player of having travelled abroad on 8 February
2020 without the club’s permission and without any justified reason.
36.
Taking into consideration such breach by the player, the club alleged to have imposed a
fine in the amount of EUR 12.500,00, in accordance with the article 5/o of the Contract
and the provisions of the Disciplinary Regulations of the Club.
37.
Furthermore, the club observed that the sanction imposed on the Player by the TFF
Disciplinary Committee on 17 March 2020 became final and binding as of 19 March 2020
and that, therefore, the Player shall comply with it.
38.
In this regard, the club declared that all the aforementioned decisions and sanctions have
been consistent with the TFF and Club Disciplinary Regulations, and that as well they were
correctly notified to the Player.
39.
In support of the above, the club recalled that on 30 September 2019, the same player had
informed the Club of a change of address to be deemed valid as of July 2019 until May
2021.
40.
Moreover, the Club provided authenticated copies of the notifications attempt and letters
occurred respectively on 11 May, 21 May, 1June and 16 June 2020.
41.
Concerning the unilateral reduction applied to the Player’ salary, the club stated that it had
no choice considering the player’s refusal in front of the reasonable proposal advanced by
the Club and that he was only one of the few team members who refused it.
42.
According to the club, the global pandemic shall be taken into account in such case, as the
club has always acted in line with the FIFA Regulations and followed all the steps of the
FIFA Regulations regarding the decision of making mutual reductions and it remained
without alternatives.
43.
In regard to the refund of amounts paid in excess by the club, the latter observed that
although the player’s receivables for the season 2019/2020 amounted to EUR 264.000,00,
the club has paid to him a total sum of EUR 267.848,45, reserving however its right to a
reimbursement, which then it shall appear reasonable and justified, as the Player received
more than he was entitled to.
Page 7 of 22
REF 20-01703 / FPSD-394
44.
For what is concerning the outstanding remuneration claimed by the player, according to
the club, he played in 24 official TFF 1st league matches and 3 play-off matches during the
football season of 2019/2020.
45.
For this reason, the final computation of the matches played by the Player shall not entitle
the latter to the salary increase foreseen by Art. 6.1 sec. 3 of the Contract as said clause
could not apply.
46.
In support of the above, the club referred, in the abovementioned letter, to the provisions
contained in TFF 1st League Statutes, according to which the questioned matches would
not constitute part of the TFF 1st League competition.
47.
As a consequence, the Club argued that the remuneration of the Player due for the football
season of 2020/2021 would be the following:
48.
EUR 75.000,00: Advance payment
EUR 175.000,00: Monthly salary, which shall be paid in 10 instalments between
August 2020 and May 2021 (10 x 17.500,00-Euro)
EUR 14.000,00: Living cost
On account of the above, the club concluded that, taking into consideration the payments
realized in June 2020, the fines correctly imposed on the player, the unilateral reduction of
the salary by reason of the negative financial effects of the COVID-19 pandemic as well as
the exceeding part of the actual receivables of the Player, the due and unpaid receivables
of the Player would amount to less than 2 monthly salaries, hence the latter had no just
cause to terminate the employment contract and its request shall therefore be rejected.
b.
49.
Position of the Respondent/ Counter-Claimant
In his claim, the player requested:
“to order the club to pay the outstanding remuneration in the amount of EUR
243.500 plus 5% interest p.a. until the date of effective payment, broken down as
follows:
i. 5% p.a. as of 1.09.2020 on the amount of EUR 137.500
ii. 5% p.a. as of 29.09.2020 on the amount of EUR 50.000
iii. 5% p.a. as of 1.10.2020 on the amount of EUR 28.000
iv. 5% p.a. as of 3.11.2020 on the amount of EUR 28.000.
Page 8 of 22
REF 20-01703 / FPSD-394
to order the club to pay a compensation for the breach of contract - (for overdue
payables) - in the amount of EUR 203.000 plus 5% interest p.a. as of 7.11.2020
until the date of effective payment; and
To impose on the club a fine and a ban for registering any new players, either
nationally or internationally, for 1 (one) consecutive registration period, or any other
sanction under Art. 12bis sec. 4 of FIFA RSTP that FIFA DRC deems appropriate”
50.
With regard to the claim for outstanding remuneration, the player specified that the club is
in default of the following amounts:
EUR 120.000 as part the advance payment, to be paid until 31.08.2020;
EUR 10.500 of outstanding salary due for August 2020, to be paid until 31.08.2020;
EUR 28.000 of outstanding salary due for September 2020, to be paid until
30.09.2020;
EUR 28.000 of outstanding salary due for October 2020, to be paid until
31.10.2020;
EUR 7.000 of the equivalent of the living costs, to be paid until 31.08.2020;
EUR 50.000 of bonus for promotion to the TFF Super League, to be paid within 60
days from the end of the 2019/2020 season, i.e. until 28.09.2020.
51.
In support of his requests, the player stressed that also the matches played during the playoffs for the promotion to the TFF Super League should be considered as “official 1st League
matches”, hence they should be included in the computation of the total number of games
played during the relevant season in order to satisfy the contractual requirement of 25
matches with the clubs’ regular line-up as per art. 6.1 of the employment contract.
52.
In this context, the player adduced the fact that either the TFF Statutes and the TFF official
website define the Play-offs games as TFF 1st League matches.
53.
Consequently, and taking into account the club’s promotion, the player considered to have
fulfilled the conditions set out in Art. 6.1 sec. 3 of the Contract, hence he deems to be
entitled to receive the amount of EUR 400,000 as remuneration for the 2020/2021 season.
Page 9 of 22
REF 20-01703 / FPSD-394
54.
In light of the above, the player is of the opinion that as the total remuneration outstanding
from the date of filing this claim, i.e. EUR 243.500, far exceeds the value of 2 monthly
salaries and the club has been put default of payment and granted with an additional
deadline of 15 (fifteen) days to fully comply with its financial obligations, all the
requirements set by art. 14bis of the FIFA Regulations on the Status and Transfer of Players
(RSTP) have been met, hence the Counter-Claimant assumed to be entitled to receive from
the Counter-Respondent a compensation for the breach of contract without just cause.
55.
In particular, the player calculated said compensation as corresponding to the residual value
of the terminated contract (i.e. EUR 203,000)
56.
Furthermore, as a counterclaim, the player requested the following:
Reject the club's requests regarding the fines imposed on the player in the total
amount of EUR 27.411,11;
Reject the club's requests regarding the unilateral reduction of the player's
remuneration in the amount of EUR 30.000,00;
Reject the club's requests regarding the exceeding part of the payments regarding
the 2019/2020 football season in the amount of EUR 3.848,45;
Reject the club's requests regarding the judicial costs and the attorney-ship fees.
57.
In this context, firstly the player noted that the club's allegations regarding the player's
unauthorized travel abroad on 8 February 2020 are completely unsubstantiated and
unfounded, as the Club failed to provide any evidence regarding the very fact of such
Player's travel, nor has it presented any proof that such alleged travel was unauthorized.
58.
Secondly, in reference to the deductions requested by the club on the players’ salary, the
player declared that he has never been subject to any disciplinary proceedings that could
result in the imposition of any fine, nor has he received any fine from the club, therefore
the latter shall not be entitled to offset any of the player’s receivables.
59.
In fact, for what concern the multiple attempt of notifications by the club, the player
observed that “…as per same admission by the Club, its notifications have not been
delivered personally to the Player. According to the description contained in Annex 4 to the
Club's statement of claim, the delivery officer attempted to deliver the Club's Notification
at the Player's address one time on 27 May 2020. Since he did not meet the addressee at
the indicated address, he pursued an alternative method of delivery pursuant to Art. 21 of
Turkish Notice Law ("TNL")”.
60.
According to the player, “it shall be noted that the Contract does not indicate Turkish Law
as the applicable law. As a consequence, the Player could not have been expected to know
and to abide by TNL, in particular because he has not been informed about the rules and
Page 10 of 22
REF 20-01703 / FPSD-394
procedures resulting therefrom. It also does not escape the Player's notice that the Club has
equally failed to set forth the requirements established in Art. 21 TNL in the present
proceedings”.
61.
In relation to the above, the player recalled the requirements set by the TNL to be met jointly
in order for such alternative delivery to be considered effective, namely:
a) the delivery officer shall deliver the correspondence to the neighbourhood official
(mukhtar) upon his/her signature, and
b) the officer shall stick to the door of the addressee a notification about the attempt
of delivery, indicating the address of the neighbourhood official to which the
correspondence has been delivered, and
c) the officer shall notify a neighbour of the addressee and the site manager about
the delivery attempt.
62.
In the present case, the player is of the opinion that “the club has failed to prove that the
Club's Notification has been effectively delivered to the official of the Player's
neighbourhood (mukhtar) who shall have certified the receipt of such correspondence with
his/her signature. In addition, the Player has never received any notification stuck on his
door regarding such alternative delivery. What is more, despite the fact that the Player lives
continuously at this address and did not leave it for any significant period, neither the site
manager nor any neighbour has ever informed the Player about such attempt of delivery”.
63.
In conclusion, the player stated that the club has failed to prove to have effectively delivered
the mentioned notifications to the player, who inter alia never acknowledged the receipt of
them and, in fact, was never aware of any sanction imposed by the club nor by the TFF
Disciplinary Committee. In this perspective, the player declared that “the first time that the
Player had the opportunity to read the content of the Club's Disciplinary Decision was only
upon the receipt of the Club's statement of claim”.
64.
Thirdly, as per what pertains to the unilateral reduction of the salary by hand of the club,
the player stated that the Parties have never reached an agreement regarding the reduction
of the player 's remuneration, and as further expressed in art. 4.2 of the contract, the
provisions of said agreement might have been modified only upon common consent of
such parties, therefore, a unilateral modification of the contractual provisions in such case
was not possible.
Page 11 of 22
REF 20-01703 / FPSD-394
65.
Furthermore, recalling the FIFA Guidelines on Covid-19, the player pointed out the fact that
while unilateral reductions of remuneration are a 'last resort' measure that will be
recognized by FIFA judicial bodies only when reasonable, proportionate and in good faith,
the Counter-Respondent’s proposal did not certainly appear to meet the above criteria,
since the proposal to reduce the player's remuneration due throughout the entire
2019/2020 football season clashed with the fact that the work stoppage lasted only 3
months.
66.
Consequently, according to the player, the club's alleged unilateral reduction of
remuneration is contrary to the applicable laws and regulations, in particular to FIFA RSTP
as well as FIFA COVID-19 Football Regulatory Issues and FIFA COVID-19 FAQs.
67.
In support of the above, the Counter-Claimant recalled that the club expressly and
voluntarily declared to the player that in the event of promotion, such reduction shall be
invalid.
68.
A further confirmation, according to the player, would derive from the fact that the club
has paid to the player the entire remuneration due in the 2019/2020 season. Therefore, the
alleged reduction of the player’s remuneration shall be deemed null and void, as no
applicable regulations empower clubs to reserve the right to unilaterally impose and deduct
such reduction in the future.
69.
Fourthly, in regard to the club’s request for reimbursement of the remuneration previously
paid to the player, the player observed that according to art. 11 of the Club's Disciplinary
Regulations, "Monetary penalty fines are collected by the Club by setting off from their
progress payments, starting from the first one. On the contrary, only when a player does
not and will not have any receivables from the Club, is the Club entitled to initiate legal
proceedings or the collection of the fine from the player”.
70.
In the player’s opinion, all the above mentioned regulations provide for a clear, transparent
and unequivocal procedure of collection of fines. Therefore, should the club have been
willing to impose fines on their basis, it should necessarily have followed the procedure
stipulated therein
71.
On the contrary, and despite having allegedly imposed fines on the player in the amount of
EUR 25.700,00 and TL 13.000,00 on 1 June 2020, as well as having unilaterally reduced
the Player's remuneration on the same day, the Counter-Claimant recalled that on 16 June
2020 the Counter-Respondent paid all the Player’s receivables due for the 2019/2020
football season.
72.
In conclusion, the player is of a view that the Club's claims for reimbursement of
remuneration paid several months earlier, based on the allegedly imposed fines and
unilateral reductions, are illegitimate and without legal grounds as they contradict the
explicit, unambiguous legal provisions applicable to the matter at hand. Therefore, such
claims shall be rejected in their entirety.
Page 12 of 22
REF 20-01703 / FPSD-394
73.
Eventually, with regard to the sporting and pecuniary sanctions imposed for the events
occurred on the match held on 10 March 2020, the player acknowledged to have received
2 (two) yellow cards and consequently a red card during the match with Bliyliksehir Belediye
Erzurumspor for unsporting behaviour. However, the player contests the club’s
argumentation regarding the fines imposed due to these events.
74.
In fact, according to the player, “…contrary to what is claimed by the Club in points 6 and
24 of its statement of claim, the website notification of the fine allegedly imposed on the
Player by the Disciplinary Body of TFF informs about a fine of TL 13.000,00 and a suspension
for 1 (one) official match of the Club, not 2 (two) matches.”
75.
Furthermore, the player is of the opinion that in no part of the abovementioned TFF's
notification it was indicated that the imposed fines shall be collected by the clubs instead
of TFF directly nor it would exist any evidence in the current case that would suggest that
the Club has already paid the fine in lieu of the Player.
76.
In the same way, according to the player, does not exist any legal ground, especially in a
consistent way with the TFF's relevant disciplinary or procedural regulations, on the basis of
which the same Club would be entitled (or obliged) to collect the fine of- TL 13.000,00 in
the name and on behalf of TFF.
77.
Moreover, it would appear excessive, according to the player, to be sanctioned two times
for the same offense, and in any case, said sanction imposed by the Club completely lacks
of legal grounds as it is in no manner determinable from the provisions set in the Club's
Disciplinary Regulations which provides that: "The Football Player who is sent off with a red
card due to the second yellow card, regardless of the reason of yellow cards, will be
deprived from his per-match fee and premiums, if any regarding the relevant match. [ ... ]
In addition, as this action [cause] the team to complete the match with less number of
players, a monetary fine equal to his one day cost will be applied as monetary fine."
78.
Taking into account the player’s monthly retribution of EUR 17,500, a sanction of EUR
13,200 cannot be considered as a one-day cost in his view.
79.
Finally, with regard to the sums allegedly paid in excess by the club, and for which the latter
requested to be refunded, the player is of the opinion that such request lacks as well of
legal basis, as the Club did not execute in favour of the Player any payments in EUR currency
that would exceed the fixed receivables due to the Player in the 2019/2020 football season
(EUR 264.000,00).
80.
In fact, - according to the player – “the payments executed by the Club in TL currency to a
separate bank account of the Player were in fact payments of one-off match bonuses
offered by the Club to its players. The Club used to offer such bonuses to players chosen to
play in a given match in order to motivate the team. Before the match, the Club's
representative would inform verbally the players about the amount of bonus for a win of
Page 13 of 22
REF 20-01703 / FPSD-394
such match that could reach up to approx. TL 12.000,00. The players that entered the pitch
in the first eleven shall get 100% of the offered bonus, the players that joined the team
during the match shall get 75% of the bonus and the players who did not in the end enter
the pitch shall receive 50% of the offered bonus.”
81.
In support of the above, the player submitted a written statement of Mr. Artur Sobiech,
player of the club since 15 January 2020, who witnessed and experienced the situations in
which the same club offered one-off bonuses to its players right before matches, and who
received such bonuses, without any contractual basis.
82.
Therefore, the player concluded that it was an entirely independent and voluntary decision
of the club to offer and to pay the additional match bonuses to its players, including the
Player. They were offered for a certain performance and paid only in case such performance
has been reached. Hence, the club shall not be entitled to request reimbursement of the
additional bonuses it paid legitimately and voluntarily.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
83.
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 30 October 2020 and submitted
for decision on 20 May 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.
84.
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 Dutch player
and a Turkish club.
85.
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 (edition February 2021), and
considering that the present claim was lodged on 30 October 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
Page 14 of 22
REF 20-01703 / FPSD-394
b.
Burden of proof
86.
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.
87.
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.
88.
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
89.
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 quantification of the
outstanding remuneration due to the Player as well as the unilateral termination of the
contract by hand of the Player.
90.
In this context, the Chamber acknowledged that it its task was to address the following
issues:
I.
Whether the player is entitled to further receivables in quality of outstanding
remuneration, and if any, in which amount;
II.
Whether the player had just cause to terminate the employment contract
91.
In this respect, the Chamber firstly wishes to make a premise of paramount importance.
92.
The FIFA DRC holds no competence over the decisions passed by the disciplinary bodies of
FIFA’s affiliated members, such as, in the specific case, the TFF Disciplinary Committee.
93.
Therefore, the members of the DRC shall not syndicate in casu over the potential sporting
sanctions issued against the Player under the terms of the TFF Regulations.
Page 15 of 22
REF 20-01703 / FPSD-394
94.
Having said that, the DRC turned its attention to the question regarding the player’s request
for outstanding remuneration.
95.
In this respect, the DRC recalled that the entitlement of the player to receive the claimed
amount of EUR 243.500 as outstanding remuneration was disputed by the club on the basis
of several objections, namely:
Erroneous interpretation of the contractual clause under art. 6.1 sec.3, concerning
the definition of TFF 1st League Matches and Play-offs;
The need for enforcement of the sanctions issued by the TFF Disciplinary Committee
and by the Club Disciplinary Committee;
The unilateral reduction of the player’ salary;
The payment, by the same club, of a sum exceeding the total remuneration due to
the Player for the season 2019/2020, quantifiable in the amount of EUR 3848,45 plus
5% interest p.a. as of 15June 2020
96.
In this regard, the DRC observed that being the claim lodged by the player focused on the
payment of the retribution agreed for the sole season 2020/2021, it shall be a priority of
this Chamber to establish whether the requirements for the application of the conditional
salary increase stipulated by the parties under art. 6.1 of the employment contract have
been met or not.
97.
In such perspective, the Chamber recalled that the aforementioned clause linked the
potential increase of the Player’ salary to the mere fact that the latter had played “more
than 25 official 1st league matches in 2019/2020 football season in the first 11”.
98.
Accordingly, the DRC noted that the player has been proved to play 27 official matches as
starter in the line-up of the team during the season 2019/2020, namely 24 during the
regular Turkish 1st Division and 3 during the Play-offs matches held afterwards.
99.
In this regard, the DRC observed that the parties dispute the interpretation of the term
“league matches”.
100. In particular, the DRC recalled that according to the player, said words shall be interpreted
as inclusive of the potential play-offs matches regularly held at the end of the sporting
season, while in the club’s view, conversely, the latter ones shall be deemed as extramatches, outside of the regular league season (in casu, the Turkish 1st Division), hence they
shall not be computed in the total amount of matches played for the purpose of the
aforementioned art. 6.1 of the employment contract.
Page 16 of 22
REF 20-01703 / FPSD-394
101. In this context, the DRC is of the opinion that the thesis sustained by the player, according
to which the aforementioned Play-offs would constitute part of the TFF 1st League
Competition appears more consistent with the standard international practice to consider
such sequence of games as final part of the regular championship (i.e. aiming at the same
final achievement), hence in casu the condition foreseen by art. 6.1 sec.3 of the contract
shall be deemed as realized.
102. Subsequently, the DRC remarked that it appears irrelevant to establish whether the player
had been liable to pay the club a specific sum as pecuniary fine or not, because in
accordance with the longstanding jurisprudence of the DRC, clubs are not allowed to offset
fines against the remuneration of the player and therefore, the player was still entitled to
the timely payment of his full salary.
103. In the same manner, in the Chamber’s view, it is irrelevant, in casu, whether the club’s
decision to reduce the Player’ salaries had been reasonable, proportionate and in good faith,
since the club expressly and voluntarily declared to the Player that in the event of promotion,
such reduction shall be deemed as invalid.
104. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim
at providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June
2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which
provides clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
105. For this dispute, it is important to note that based on the COVID-19 Guidelines, as well as
the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any
specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
106. In this context, the DRC considered that the arguments raised by the Respondent cannot
be considered a valid reason for non-payment of the monies claimed by the Claimant, in
other words, the reasons brought forward by the Respondent in its defence do not exempt
the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
107. Finally, for what concern the club’s payment of the exceeding sum of EUR 3848,45, the
Chamber observed that the same Club failed to justify the decision of paying other relatively
smaller amounts in a different currency and split into several operations without a clear
payment scheme. On the contrary, it appears evident to the DRC that the Club did not
execute in favour of the Player any payments in EUR currency that would exceed the fixed
receivables due to the Player in the 2019/2020 football season (i.e. EUR 264.000,00) and
that the additional sums paid by the Club to the Player on a different currency (Turkish Lira
Page 17 of 22
REF 20-01703 / FPSD-394
-TL ) and different bank account, were effectively corresponding to different bonuses
awarded outside of the contractual scheme, as furtherly corroborated by the witness
statement of Mr. Arthur Sobiech .
108. Furthermore, it shall be noted that each of the mentioned payments have been realized few
days after a match played by the Club in the TFF 1st League and in which the Player took
part.
109. Consequently, and considering that the club had thus repeatedly and for a significant period
of time been in breach of its contractual obligations towards the player, the Chamber
decided that the player had just cause to unilaterally terminate the employment contract
and that, as a result, the club is to be held liable for the early termination of the employment
contact with just cause.
110. In view of the above, the DRC acknowledged that the Player shall be entitled to the amount
of EUR 243.500 as outstanding remuneration due for the season 2020/2021 until the date
of termination.
111. Furthermore, in line with the DRC jurisprudence, the Player shall be entitled to a 5% p.a.
interest over the amount above, broken down as follows:
i. 5% p.a. as of 1.09.2020 on the amount of EUR 137.500
ii. 5% p.a. as of 29.09.2020 on the amount of EUR 50.000
iii. 5% p.a. as of 1.10.2020 on the amount of EUR 28.000
iv. 5% p.a. as of 3.11.2020 on the amount of EUR 28.000.
ii. Consequences
112. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of the unjustified breach of contract committed by the Club.
113. In this context, the Chamber underlined the absence of any compensation clause included
in the contract. Consequently, the DRC held that no compensation clause being applicable
to the case at hand, the compensation can be assessed on the basis of the residual value of
the contract in line with the jurisprudence of the Dispute Resolution Chamber.
114. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies
payable to the Claimant under the terms of the employment contract as from the date of
termination with just cause until its natural expiration.
Page 18 of 22
REF 20-01703 / FPSD-394
115. Assuming that the condition for the application of art. 6.1 sec. 3 of the Contract has
occurred since the moment in which the Club got promoted to the TFF Super League, the
Player’s monthly salary shall be quantified in the amount of EUR 28,000 x 10 months,
namely as of 31 August 2020 until 31 May 2021.
116. Moreover, the Chamber recalled that the club undertook to pay the player a further amount
of EUR 14,000 as living costs, which was divided into two instalments, one of them
becoming due after the date of termination (i.e. EUR 7,000).
117. In this perspective, the Chamber deemed that the Claimant would have received in total
EUR 203,000 as remuneration for the period as from November 2020 until May 2021.
118. However, the Chamber noted that as of 8 January 2021, the Player signed an employment
contract with the Turkish club Buyuksehir Belediye Erzurumspor, to be valid until 31 May
2021, and that according to said contract, the Player would be entitled to a fixed monthly
salary EUR 8,000, for a total remuneration of EUR 48,000, or, in case of extension, to further
EUR 80,000 as of 30 September 2021 until 30 June 2022.
119. Nevertheless, the Chamber took note that on 28 April 2021, the player and the above
mentioned club mutually agreed on the early termination of the employment contract,
fixing in EUR 40,000 the amount that said club shall pay to the Player.
120. In this respect, the Chamber observed that the Claimant was able to mitigate the loss
ascribable to the termination occurred on 6 November 2020 for a total amount of EUR
40,000.
121. In light of the above, said amount shall be deducted from the residual value of the
employment contract as previously quantified.
122. Furthermore, the Chamber recalled that the termination of the employment contract by
hand of the player has been effectively justified by the existence of overdue payables as per
the terms and conditions set by art. 14 bis of the FIFA RSTP.
123. Therefore, in accordance with art. 17 par.1 lit. ii) of the FIFA RSTP, the Player shall be entitled
to an additional compensation corresponding to three monthly salaries (i.e. EUR 84,000).
124. Notwithstanding the above, the Chamber recalled that pursuant to art. 17.1 of FIFA RSTP,
the overall compensation may never exceed the rest value of the prematurely terminated
contract.
125. All the above considered, the members of the DRC established that the Counter-Claimant
shall be entitled to a total compensation of EUR 203,000.
Page 19 of 22
REF 20-01703 / FPSD-394
iii. Compliance with monetary decisions
126. Finally, the Chamber referred to par. 1 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.
127. 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 and for the maximum
duration of three entire and consecutive registration periods.
128. Therefore, bearing in mind the above, the DRC decided that, in the event that the club does
not pay the amounts due to the player within 45 days as from the moment in which the
player, communicates the relevant bank details to the club, provided that the decision is
final and binding, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration
periods shall become effective on the Counter-Respondent in accordance with art. 24bis
par. 2 and 4 of the Regulations.
129. The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
130. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
d.
Costs
131. 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.
132. 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.
Page 20 of 22
REF 20-01703 / FPSD-394
IV. DECISION OF THE Dispute Resolution Chamber
1.
The claim of the Respondent / Counter-Claimant, Brahim Darri, is accepted.
2.
The Claimant / Counter-Respondent, Fatih Karagumruk AS, has to pay to the Respondent /
Counter-Claimant, the following amounts:
EUR 137,500 as outstanding remuneration plus 5% interest p.a. as from 1 September 2020
until the date of effective payment.
EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 29 September 2020
until the date of effective payment.
EUR 28,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until
the date of effective payment.
EUR 28,000 as outstanding remuneration plus 5% interest p.a. as from 3 November 2020 until
the date of effective payment.
EUR 203,000 as compensation for the breach of contract plus 5% interest p.a. as from 7
November 2020.
3.
Any further claims of the Respondent / Counter-Claimant are rejected.
4.
The Respondent / Counter-Claimant is directed to immediately and directly inform the Claimant /
Counter-Respondent of the relevant bank account to which the Claimant / Counter-Respondent
must pay the due amount.
5.
The Claimant / Counter-Respondent shall provide evidence of payment of the due amount in
accordance with this decision to [email protected], duly translated, if applicable, into one of the
official FIFA languages (English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Claimant /
Counter-Respondent within 45 days, as from the notification by the Respondent / CounterClaimant of the relevant bank details to the Claimant / Counter-Respondent, the following
consequences shall arise:
1. The Claimant / Counter-Respondent shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid and for the maximum
duration of three entire and consecutive registration periods. The aforementioned ban
mentioned will be lifted immediately and prior to its complete serving, once the due amount
is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 21 of 22
REF 20-01703 / FPSD-394
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:
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 22 of 22