Labour Disputes
Texto da decisão
REF. FPSD-9163
Decision of the
Dispute Resolution Chamber
passed on 6 July 2023
regarding an employment-related dispute concerning
the player Damjan Dokovic
BY:
Dana Al Noaimi (Qatar)
Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Damjan Dokovic, the Netherlands
RESPONDENT:
Adana Demirspor, Türkiye
Represented by Mr Umur Varat and Ms Aygin Kuruloğlu
pg. 2
REF. FPSD-9163
I. Facts of the case
1. On 8 February 2022, the Dutch player Damjan Dokovic (hereinafter: Claimant or player)
and the Turkish club Adana Demirspor (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: the Contract) valid as from the date of signature until
31 May 2022.
2. According to the contract, the Respondent undertook to pay the Claimant a total
remuneration of EUR 300,000, payable in four monthly salaries of EUR 75,000 between
March 2022 and June 2022.
3. Furthermore, the Contract stipulated that the Respondent shall pay the Claimant an
annual / seasonal sum of EUR 4,000 for accommodation, car and flight tickets, in monthly
instalments of EUR 1,000 each, by no later than the 30th day of each month between
March 2022 and June 2022.
4. Lastly, the Contract stipulated that all amounts payable via the Contract are “net
amounts” with all taxes payable by the Respondent.
5. On 7 July 20022, the Claimant put the Respondent in default and requested payment of
EUR 225,000 net, granting a time-limit of 10 days to remedy the alleged non-payment.
6. On 20 July 2022, the Claimant sent a further default notice to the Respondent, requesting
the same amount and granting a time-limit of 10 days once again.
7. On 27 July 2022, the Respondent paid EUR 100,000 to the Claimant.
8. On 8 September 2022, the Claimant sent a further default notice to the Respondent,
requesting further payment of EUR 128,000, corresponding to the remaining
outstanding amount of EUR 125,000 following the payment of EUR 100,000 made in
July 2022, as well as EUR 3,000 corresponding to the additional allowance for
accommodation between April 2022, May 2022 and June 2022.
9. On 12 September 2022, the Respondent paid the amount of EUR 75,000 to the Claimant.
10. On 14 September 2022, the Respondent paid the amount of EUR 50,000 to the Claimant.
11. On 11 October 2022, the Claimant sent a further default notice for the amount of
EUR 3,000, granting a deadline expiring after 10 days to remedy the alleged nonpayment.
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REF. FPSD-9163
II. Proceedings before FIFA
1.
On 3 February 2023, 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
2.
According to the Claimant, the Respondent failed to comply with the financial terms of the
Contract by not paying three accommodation allowance instalments (April 2022, May 2022
and June 2022), in the total amount of EUR 3,000 net.
3.
Furthermore, the Claimant outlined that the salary instalments of EUR 75,000 net were paid
with significant delay, thus giving rise to the obligation to pay interest thereon.
4.
Therefore, the Claimant requested EUR 3,000 net as an outstanding amount, interest on
said amount as from the respective due dates of the unpaid EUR 1,000 net instalments,
and interest on the amounts of EUR 75,000 net as from the due dates of said instalments
until their respective dates of payment.
b. Position of the Respondent
5.
In its reply, the Respondent outlined that the late payment of the amounts was due to the
alleged force majeure effect of COVID-19, and the resulting fluctuation in exchange rates
from the local currency.
6.
The Respondent also argued that, due to the fluctuation in exchange rates, the interest
rate stipulated by Turkish law of 0.01% p.a. should apply.
7.
In light of the above, the Respondent requested for the claim to be rejected.
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REF. FPSD-9163
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
8.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 3 February
2023 and submitted for decision on 6 July 2023. Taking into account the wording of art. 34
of the March 2023 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.
9.
Subsequently, the Single Judge 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 (May 2023 edition), she is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from the Netherlands and a club from Türkiye.
10. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 3 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
11. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge
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
12. Its competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations she 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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REF. FPSD-9163
i. Main legal discussion and considerations
13. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties, whilst concurring on the amounts claimed
by the player having remained unpaid, disagree on the validity of the Respondent’s
justification for said non-payment.
14. In this context, the Single Judge acknowledged that it its task was to determine, based on
the argumentation and evidence on file, whether the Respondent had a valid justification
for not having complied with its financial obligations under the Contract.
15. In this respect, the Single Judge took note of the Respondent’s argumentation that the nonpayment of the accommodation allowance owed to the Claimant, as well as the delay in
remitting the salary instalments of EUR 75,000, were due to the financial difficulties caused
by the poor economic situation in Türkiye, and, in particular, the depreciation of the local
currency, i.e. the Turkish Lira.
16. In this context, the Single Judge wished to point out that the Respondent failed to submit
adequate evidence corroborating the assertion that, on the basis of the depreciation of the
Turkish Lira, the club was unable to, or even attempted to meet its obligation under the
Contract, thereby failing to meet the burden of proving that the payments could be
challenged.
17. Consequently, the Single Judge concluded that, as no situation of force majeure could be
established in the present matter, the Respondent has to comply with the contractually
agreed payments as stipulated per the Contract.
18. Therefore, the Single Judge firstly decided that the amounts of EUR 3,000 net, as
contractually stipulated, were to be awarded to the Claimant in accordance with the
principle of pacta sunt servanda.
19. Furthermore, in line with the Claimant’s request and the standard practice of the Single
Judge in this respect, the latter decided to award interest on the above amounts as from
the following dates:
-
On the amount of EUR 1,000 net, 5% p.a. as from 30 April 2022 until the date of effective
payment;
On the amount of EUR 1,000 net, 5% p.a. as from 30 May 2022 until the date of effective
payment;
On the amount of EUR 1,000 net, 5% p.a. as from 30 June 2022 until the date of effective
payment.
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REF. FPSD-9163
20. The Single Judge herewith wished to emphasise that, in accordance with the standard
practice of the Football Tribunal, as well the general rule in Swiss law, the rate of 5% p.a.
shall be applicable in determining the interest payable to the Claimant based on the late
remittance of the concerned amounts.
21. Subsequently, the Single Judge turned to the request for interest on the late payments
made in respect of the salary instalments owed to the Claimant, in the amount of
EUR 75,000 net each.
22. In this respect, the Single Judge noted that the following amounts had been due to the
Claimant, at certain dates as stipulated in the Contract:
-
EUR 75,000 net, payable by no later than 30 April 2022;
EUR 75,000 net, payable by no later than 30 May 2022;
EUR 75,000 net, payable by no later than 30 June 2022.
23. Furthermore, the Single Judge noted that the above amounts had been paid as follows by
the Respondent:
-
EUR 100,000 net, on 27 July 2022;
EUR 75,000 net, on 12 September 2022;
EUR 50,000 net; on 14 September 2022.
24. Taking this into account, the Single Judge calculated the delay on each individual instalment
of EUR 75,000 net to be 89 days (April 2022 instalment), 106 days (May 2022 instalment)
and 77 days (June 2022 instalment) respectively.
25. Consequently, the Single Judge calculated said total interest to be EUR 904.10 net
(EUR 75,000 net x (89/365) x 0.05) plus EUR 1078.75 (EUR 75,000 net x (106/365) x 0.05) plus
EUR 780,80 (EUR 75,000 net x (77/365) x 0.05) = EUR 2,763.65 net.
26. Therefore, the Single Judge decided that, in addition to the amount of EUR 3,000 net and
corresponding interest, the Respondent shall be held liable to pay the amount of
EUR 2,763 net to the Claimant.
27. Lastly, and in accordance with the general legal principle of ne bis in idem, the Single Judge
awarded no additional interest on said amount.
ii. Compliance with monetary decisions
28. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with her decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
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REF. FPSD-9163
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
29. In this regard, the Single Judge highlighted that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid. The
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
30. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum duration
of three entire and consecutive registration periods shall become immediately effective on
the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
31. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
32. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with
art. 24 par. 8 of the Regulations.
d. Costs
33. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football agent,
or match agent”. Accordingly, the Single Judge decided that no procedural costs were to be
imposed on the parties.
34. Likewise, and for the sake of completeness, the Single Judge recalled the contents of
art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall
be awarded in these proceedings.
35. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 8
REF. FPSD-9163
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Damjan Dokovic, is accepted.
2.
The Respondent, Adana Demirspor, must pay to the Claimant the following amount(s):
- EUR 2,763 net as outstanding amount;
- EUR 3,000 net as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 1,000 net as from 30 April 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 1,000 net as from 30 May 2022 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 1,000 net as from 30 June 2022 until the date of
effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this decision,
the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-9163
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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