Labour Disputes
Texto da decisão
REF FPSD-8448
Decision of the
Dispute Resolution Chamber
passed on 2 March 2023
regarding an employment-related dispute concerning
the player Isaac Donkor
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
LUKASEK Peter (Slovakia), member
VAURASI Laurel (Fiji), member
CLAIMANT:
Isaac Donkor, Italy & Ghana
Represented by Luca Tettamanti
RESPONDENT:
Adanaspor A.S., Türkiye
Represented by Ismet Bumin
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REF FPSD-8448
I. Facts of the case
1.
On 9 September 2020, the Ghanainan and Italian player Isaac Donkor (hereinafter: the Claimant or
the Player) and the Turkish club Adanaspor (hereinafter: the Respondent or the Club) concluded a
“Professional Football Player Contract” valid from its date of signature until 31 May 2022 (hereinafter:
the Contract).
2.
Pursuant to clause 3 of the Contract, the Club undertook to pay the Player for the last season
2021/2022, the total net amount of EUR 110,000 as follows:
i) EUR 11,000 on 31.08.2021;
ii) EUR 11,000 on 01.10.2021;
iii) EUR 11,000 on 31.10.2021;
iv) EUR 11,000 on 30.11.2021;
v) EUR 11,000 on 01.01.2022;
vi) EUR 11,000 on 31.01.2022;
vii) EUR 11,000 on 28.02.2022;
viii) EUR 11,000 on 01.04.2022;
ix) EUR 11,000 on 30.04.2022;
x) EUR 11,000 on 31.05.2022.
3.
Art. 9 of the Contract reads as follows:
“Any and all disputes arising out or in connection with this Contract shall be dealt with exclusively by the
Courts and Enforcement Offices of Adana.”
4.
On 27 October 2022, the Claimant sent a default notice to the Respondent requesting the
outstanding amount of EUR 18,000 to be paid within 10 days, to no avail.
II. Proceedings before FIFA
5.
On 1 December 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
6.
According to the Claimant, the Respondent had failed to remit the amount of EUR 18,000 as part
of the remuneration due to him under the Contract.
7.
In reference to art. 9 of the Contract, the Claimant deems that “the exclusion the jurisdiction of FIFA
would cause an irreparable denial of the right of defence and access to justice for the Player as, contrary
to the FIFA Procedural Rules, the Turkish proceedings are not free of charge and oblige a party to engage
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the services of a lawyer registered in Turkey, obviously limiting the free choice of assistance and raising
the costs of defence”.
8.
The Claimant filed the following requests for relief:
“I. The claim filed by Mr Isaac Donkor before the FIFA DRC against Adanaspor Spor Etkinlikleri ve
İşletmeciliği ve Ticaret A.Ş is upheld.
II. Adanaspor Spor Etkinlikleri ve İşletmeciliği ve Ticaret A.Ş is condemned to pay Mr Isaac Donkor
outstanding remuneration of EUR 18,000 net (eighteen thousand euros) plus 5% interest p.a. from 31
May 2021 until the date of its entire payment
III. Adanaspor Spor Etkinlikleri ve İşletmeciliği ve Ticaret A.Ş is sanctioned according to article 12bis FIFA
RSTP with a sanction at the discretion of the FIFA DRC;
IV. Adanaspor Spor Etkinlikleri ve İşletmeciliği ve Ticaret A.Ş shall bear any and all the possible costs of
this procedure.”
b. Position of the Respondent
9.
In its reply, the Respondent rejected the jurisdiction of FIFA to entertain the claim.
10. The Respondent sustains that in art. 9 of the Contract, the Parties agreed on the exclusive
jurisdiction of the national civil courts of Turkey and the local courts of Adana.
11. In the view of the Respondent, the wording of art. 9 of the Contract, “which has been freely accepted
by the Parties of the contract, is clear and unequivocal”.
12. The Respondent deems that the Claimant’s arguments on the alleged “irreparable denial of the right
of defence and access to justice” is unreasonable and insignificant in the presence of a complete
judicial system of a country.
13. As to the substance, the Respondent states that “the Player became entitled to the total amount of
210.000.-Euro throughout the entire term of the employment contract, the Club delivered the payment
of a total amount of 201.675,02.-Euro, which in return shows that the Player does not have outstanding
remuneration in the amount of 18.000.-Euro.”
14. The Respondent filed the following requests for relief:
“a. to rule that the claim of the of the Claimant, Mr. Isaac Donkor, is inadmissible,
b. or, in subsidiary order, to reject all the claims of the Claimant in full, in light of the above submitted
answers of Adanaspor A.Ş.”
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c. Replica of the Claimant
15. The Claimant states that art. 9 of the Contract “does not specify which courts have jurisdiction in the
matter, i.e., the jurisdiction ratione materiae. It only mentions the location, namely Adana. It is clear that
jurisdiction by virtue of place and jurisdiction by virtue of subject matter are two separate things”.
16. The Claimant deems that there is no mention of civil courts, labour courts or commercial courts in
determining the court with substantive jurisdiction.
17. The Claimant considers that “the Club itself admits the existence of unpaid remuneration, at § 10 of its
Answer, in an amount at least of EUR 8,324.98”.
18. The Claimant sustains that “on top of the contractual salary/remuneration above, the Player was
entitled and effectively received, like his other teammates, some victory bonuses in Turkish lira as
follows:
- TL 5,000 (100%) in case the Player was in the starting eleven;
- TL 3,750 (75%) in case the Player entered the field from the bench;
- TL 2,500 (50%) in case the Player remained on the bench”.
19. According to the Claimant, “the existence of this bonus mechanism, their amounts and proportion are
(i) clear and corroborated from the discussions among the team members. the fact that the Contract
does not provide for such bonuses or specifies that no bonuses other than those mentioned therein will
be paid is irrelevant insofar as the existence of such bonuses is apparent and exists de facto from the
factual circumstances and the reality”.
20. The Claimant reiterates that the Club owes a salary debt of EUR 18,000. Subsidiarily, in the event
the DRC deems that the amount paid in Turkish Lira (“TRY”) should be deemed as salary the Player
would still be entitled to EUR 12,285.
21. The Claimant maintains in full his Prayers for Relief as set out in his Claim.
d. Duplica of the Respondent
22. The Respondent sustains that “The argument of the Claimant regarding the dismissal of the
jurisdiction clause contained within the employment contract signed between the Parties based on the
grounds that it does not mention the competent court by virtue of subject matter ultimately fail as,
according to the well-established jurisprudence of FIFA, such clauses are deemed sufficient for the
acceptance of the jurisdiction of local courts”.
23. The Respondent refers to the DRC proceedings FPSD-2702, FPSD-3732, FPSD-6364 where “such
clauses are deemed sufficient for the acceptance of the jurisdiction of local courts”.
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24. The Respondent deems that “the jurisdiction of FIFA was expressly excluded and/or whether the Parties
agreed on the jurisdiction of a specific civil court is necessary in the present dispute as; the Parties agreed
that the “Any and all disputes arising out or in connection with this Contract shall be dealt with
exclusively by the Courts and Enforcement Offices of Adana.” and such reference is adequate for the
choice of forum”.
25. As per the arguments of the Claimant regarding the alleged nature of the payments in TRY, the
Respondent argues that it “is unknowledgeable about the contents and meaning of the table shown
under the WhatsApp chat screen screenshot and yet, it must be brought to the attention of the
Honourable Chamber that the sender of the related message, i.e. Serdar Özkan, is another player and
in any case, is not authorized to represent or make commitments on behalf of the Respondent”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. 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 1 December 2022 and submitted for decision on 2
March 2023. Taking into account the wording of art. 34 of the October 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.
27. 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 October 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 Ghanaian-Italian player and a Turkish club.
28. Subsequently, the Chamber analysed which regulations should be applicable as to the substance
of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (October 2022 edition) and considering that the
present claim was lodged on 1 December 2022, the October 2022 edition edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
29. The Chamber acknowledged that the Respondent, on the one hand, contested the competence of
FIFA’s deciding bodies on the basis of clause 9 of the Contract, alleging that the competent body
to deal with any dispute deriving from the relevant employment contract are the courts of Adana.
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On the other hand, the Chamber noted that the Claimant insisted on the competence of FIFA to
adjudicate the claim.
30. Taking into account all the above, the Chamber emphasised that in accordance with art. 22 par. 1
of the Regulations, FIFA is competent to hear employment-related disputes between a player and
a club with an international dimension “without prejudice to the right of any player (…) or club to seek
redress before a civil court for employment related disputes”.
31. In the present matter, the Chamber duly noted that the Claimant and the Respondent had
unambiguously and exclusively decided that any dispute that would arise from the Contract would
be submitted to the “courts and enforcement offices of Adana”.
32. The Chamber recalled that parties may freely agree to give jurisdiction to a civil court, and that
such choice shall always prevail. In fact, the Chamber, recalling its jurisprudence as well as the CAS
jurisprudence in this regard, highlighted that even if the choice of law does not specify which courts
are competent (e.g. a generic reference is made to a region/city), FIFA is not competent when the
parties have exclusively agreed upon the jurisdiction of a civil court. In addition, the Chamber
emphasized that art. 22 par. 1 of the Regulations provides a clear hierarchy in favour of contractual
autonomy.
33. In view of all the above, the Chamber concluded that it does not have jurisdiction to hear the
dispute between the Claimant and the Respondent.
b. Costs
34. 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.
35. 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.
36. 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 Football Tribunal does not have jurisdiction to hear the claim of the Claimant, Isaac Donkor.
2.
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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