Labour Disputes
Texto da decisão
REF. FPSD-10441
Decision of the
Dispute Resolution Chamber
passed on 31 August 2023
regarding an employment-related dispute concerning
the player Jeremy Calvin Dudziak
COMPOSITION:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Stijn BOEYKENS (Belgium), member
Calum BEATTIE (Scotland), member
CLAIMANT:
Jeremy Calvin Dudziak, Germany
Represented by Sami Dinç
RESPONDENT:
Hatayspor Kulübü Derneği, Türkiye
Represented by Ismail Coskun
pg. 2
REF. FPSD-10441
I. Facts of the case
1.
On 26 January 2023, the German player, Jeremy Calvin Dudziak (hereinafter: the player or
the Claimant) and the Turkish club, Hatayspor (hereinafter: the club or the Respondent)
concluded an employment contract (hereinafter: contract) valid as from the date of
signature until 31 May 2023, with an option to further extend the contract.
2.
Clauses 3.1.A and 3.1.B of the contract read as follows:
“Payment and special provisions
Net Monthly Fee (not less MINIMUM WAGE (THE FEES BELOW INCLUDE THE MONTLY
than minimum wage)
MINIMUN WAGE)
1. FOR THE 2022/2023 SEASON:
A. In total, a net warranty fee of 120.000 EUR (One hundred
Twenty Thousand Euros) will be paid to the Player in the
following terms:
31.02.2023
24.000 EUR
28.02.2023
24.000 EUR
31.03.2023
24.000 EUR
30.04.2023
24.000 EUR
31.05.2023
24.000 EUR
B. There will not be an additional per match payment to the
player.
[…]”
3.
Clause 3, section “Fringe benefits” lit. A of the contract reads as follows:
“The Club will pay the Player a total of EUR 4.000 (Four Thousand Euros) net house and
car rent. All utility costs of the house and oar (electricity, telephone, water, traffic fines,
petrol, etc.) will be paid by the Player.”
4.
Clause 3.30, section “special provisions” of the contract reads as follows:
“lf the competitions are suspended or postponed by an authorized body such as the
government of the Republic of Turkey. FIFA, UEFA or TFF), only the minimum wage will be
paid to the player during the postponement / suspension period. ln such a case, the
contract will automatically extend until the end of the competitions within the scope of
TFF instructions. lf the matches are completed after the postponement / suspension
period, the Club will pay the monthly fees to the Player. The Player acknowledges and
undertakes that the failure of the club to make the balance payments for this interrupted
pg. 3
REF. FPSD-10441
period cannot be used by him as a justified termination reason. The club reserves the
right to make a reduction in fees within the scope or damages incurred due to
postponement / suspension due to postponement / suspension. ln such a case. the parties
will agree on the discount amount / rate.
if the parties fail to reach an agreement, the Club, it will decide unilaterally about the
discount provided that it is objective, measured and fair. ln the event of the cancellation
of the league. the fees will be paid on a pro rata basis taking into account the matches
actually played.”
5.
On 6 February 2023 an earthquake occurred in Türkiye. Hatay, the city where the club is
located, was one of the cities affected by it.
6.
According to the statement of the Turkish Football Federation (TFF) on 7 February 2023, all
professional and amateur matches were suspended until 17-20 February 2023.
7.
On 12 February 2023, the TFF announced the following (quoted verbatim):
“[…]
Due to the earthquake disaster that took place on 06.02.2023 in our country, clubs which
have headquarters in 10 state of emergency declared provinces which were affected by the
earthquake namely Kahramanmaraş, Gaziantep, Malatya, Diyarbakir, Kilis, Şanhurfa,
Ad1yaman, Hatay, Smaniye, Adana has requested to be withdrawn from the relevant
proffessional leagues.
It has been decided that;
Such requests have been accepted.
These clubs shall be deemed forfeited (3-0) in the remaining competitions and the
opponent teams shall be deemed as winner (3-0) in the 2022-2023 football season as of
06.02.2023. These clubs shall continue their sports activities in the 2023-2024 football
season in the leagues they are in the 2022-2023 season.
To pay the guarantee receivables arising before TFF for the rest of the season to the
withdrawn teams in all professional leagues.”
8.
In accordance with the information retrieved from the Transfer Matching System (TMS), on
14 February 2023 (TMS ID 651627/651643), the Respondent and the Hungarian club,
Ferencvárosi Torna Club concluded a loan agreement for the temporary transfer of the
player, Mehdi Boudjemaa. The transfer fee of that agreement in favour to the club was EUR
95,000 net.
9.
On 18 February 2023, FIFA announced the following (quoted verbatim):
pg. 4
REF. FPSD-10441
“In light of the exceptional situation caused by the natural disaster affecting Türkiye, the
Bureau of the FIFA Council has decided to further extend the registration period of the
Turkish Football Association (TFF) until 5 March 2023, and to grant further exceptions to
support the players and clubs most affected.
The decision follows an initial extension granted by the Bureau of the FIFA Council, which
was in place until 18 February.
Last week, the TFF informed FIFA that the recommencement of its competitions had been
further postponed to a date between 3 and 5 March. FIFA was also informed that four
affiliated clubs, Gaziantep FK, Hatayspor, Yeni Malatyaspor and Adanaspor, had
withdrawn from the current championship because their facilities were severely damaged
and could no longer be used for sporting activities.
Consequently, the decision adopted by the Bureau of the FIFA Council grants a further
extension of the registration period of the TFF until 5 March 2023. It further allows players
who were registered with one of the above-mentioned clubs at the time of the natural
disaster to register with a maximum of four clubs and to play official matches for three
clubs during the current season. Those players are also allowed to play official matches
for more than two clubs participating in the same national championship or cup during
this season. They can also be registered outside a registration period by any association
internationally, provided that such registration occurs before or on 5 March 2023, and
provided that due consideration is given to sporting integrity in each case.
FIFA will continue to collaborate with the TFF, while monitoring the situation and deciding
on any further regulatory amendments in these tragic circumstances.”
10. In accordance with the information retrieved from the TMS, in July 2023 after the
earthquake occurred in Türkiye, various players were transferred to the club, however,
most of them were from players under a status “out of contract”, return on loan or only
with sell-on fee payments.
II. Proceedings before FIFA
11. On 4 June 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
12. In his claim, the Claimant requested that the Respondent be ordered to pay to him overdue
payables in the amount of EUR 124,000 net corresponding to salaries from January to May
(EUR 120,000) and the housing and car allowance (EUR 4,000).
pg. 5
REF. FPSD-10441
13. The Claimant further asked to be awarded interest of 5% as from the due dates and that
the Respondent be ordered to pay judicial costs and “attorneyship fees”.
b. Position of the Respondent
14. In its reply, the Respondent requested FIFA to dismiss the claim stating that on 6 February
2023 an earthquake occurred in Türkiye, which was a force majeure situation.
15. The Respondent stressed that since the beginning of the contract until the earthquake on
6 February 2023, the club only played 3 matches and the player participated in 2 of the 3
matches and played in the first 11 in the match of 5 February 2023. The Respondent further
stressed that due to the earthquake “10 cities in Turkey including the city where the club is
located, were destroyed, thousands of people pass away their lives, hundreds of thousands of
buildings were destroyed and there were no hospitals, municipal buildings, public buildings or
any buildings that could serve the public in our city […] The main reason for this situation is that
it is impossible for the earthquake-affected cities, especially our city Hatay, to return to normal
in an ordinary life”.
16. Moreover, according to the Respondent, the earthquake had the following negative effects
on the club:
“1. One of our football players Christian Atsu Twasam, some of our youth players and their
families, many club staff and their families pass away their lives.
2. Apart from those who pass away our club, unfortunately our Sporting Director Taner
Savut,
3. There is not a single person in our city Hatay who has not passed away a family
member/friend.
4. Many club employees also left our club due to the earthquake”.
17. As a consequence of the earthquake, the TFF “declared a "white season" for the Clubs
operating in the earthquake zone and the relevant Clubs have been exempted from all their
obligations in the 2022/2023 season. On the other hand, these Clubs will continue to play in the
2023/2024 season in the same league they played in the 2022/2023” and FIFA extended the
transfer periods in Türkiye twice.
18. The Respondent also referred to the FIFA announcement of 18 February 2023, which stated
that the “earthquake was a natural disaster and that it is an exceptional case”, in other words,
force majeure.
19. Additionally, the Respondent stressed that it did everything in its power to support all
players, mutual terminations were made with players who wanted to terminate their
contracts and various meetings were held with its players. During this period, according to
the Respondent:
pg. 6
REF. FPSD-10441
“The Claimant did not make any request to the Hatayspor. If the Player had a request for
a temporary or permanent transfer to another club or to mutually terminate his contract,
the Client club would assist the Claimant as well as other Players. Moreover [the club]
would like to point out that there is no evidence in the player's petition showing that he
intends to transfer to another club or terminate his contract. During this period. the Player
did not fulfil his obligations under the contract.
In the contract between the parties, it is clearly stated in Article 30 under the heading
"Special Provisions" that in case of suspension of the leagues, payment will be made on a
pro rata basis […]”
20. The Respondent provided screenshots of newspaper reports showing pictures of the
damage caused in Hatay and of the FIFA announcement.
21. The Respondent requested the following relief:
“Dismiss the case on the grounds that the player's claims cannot be accepted in
accordance with the contract signed between the parties,
Provided that it does not mean acceptance, if the case will not be dismissed payment of
the 6-day fee for February to the Player,
Provided that it does not mean acceptance, if you decide to the contrary of the above
situations, we request a decision to make an equitable reduction.”
c. Rejoinder of the Claimant
22. In his rejoinder, the Claimant requested FIFA to reject the objections presented by the
Respondent on the following basis:
-
The earthquake did not have a negative financial impact on the Respondent.
-
The TFF announced that professional leagues were suspended for a limited time
period (15-20 days) and that following the suspension the professional leagues were
reinitiated.
-
According to the TFF announcement, the clubs requested to be withdrawn and it was
not a decision of the TFF.
-
Iskenderunspor AS which is also located in Hatay, continued to play in the season
2022/2023 season and other clubs such as Amed Sportif Kulübü, Adana Demirspor
and Şanliurfaspor, clubs that were affected by the earthquake, decided not to
withdraw from the league. Consequently, the withdrawal from the league by the
Respondent was its own decision and not of the TFF. The Respondent provided
evidence on this matter.
pg. 7
REF. FPSD-10441
-
The Claimant contested that the Respondent provided support to all players; the
player stated that he did not receive any payment before the earthquake and was
abandoned by the club after the earthquake.
-
After the club’s decision to withdraw from the competition, “the Claimant did not find
a club to transfer and also the Respondent did nothing about the possible transfer of the
Claimant to another football club. The responsibility is not belonging to the Claimant to
find a new club within this limited period. If the Respondent would have asked the
Claimant to continue to serve his professional services after the happening of the
earthquake, the Claimant was ready to serve. But the Respondent had preferred not to
provide this opportunity to the Claimant by withdrawal from the league its own request.
In this context, the Respondent has to pay the due and outstanding debts towards the
Claimant.”
-
The Respondent did not contact the Claimant until the date of submission.
-
The withdrawal of the Respondent “did not cause any negative financial and sporting
effects for the Respondent. Because, according to the league table of TFF Super League as
of the date of the withdrawal of the Respondent, the Respondent was only one point
ahead of the relegation zone”. Moreover, the TFF declared that clubs that decided to
withdraw shall continue to play in the same league, therefore, the Respondent
guaranteed not to be relegated.
-
Additionally, the TFF decided to pay the guaranteed receivables arising from the TFF
to the withdrawn clubs in all professional leagues for the remaining part of the
season.
-
As to clause 30 of the special provisions of the contract, it could not be applied and
could not justify any deduction, considering that, inter alia: (i) the suspension was
only for 20 days and then the championship continued; (ii) the club decided to
withdraw from the championship; (iii) the club never contacted the player; and (iv)
the club did not show that it suffered damages.
-
Finally, the Club concluded 13 transfer of players 4 months after the earthquake; the
player provided as evidence a copy of the website “transfermarkt” with a summary
of the Respondent’s transfer.
23. The Claimant requested the following relief:
-
To dismiss the allegations of the Respondent.
-
That the Respondent be ordered to pay EUR 124,000 net plus 5 % interest p.a. as
from the due dates until the date of effective payment.
pg. 8
REF. FPSD-10441
-
That the Respondent be ordered to pay judicial costs and legal fees.
d. Final comments of the Respondent
24. In its final comments the Respondent stated the following:
-
The decision of the club to withdraw from the Turkish league was made by the
authorities set up in the contract following a meeting held by the TFF board of
directors.
-
With regard to other clubs that continued in their respective leagues, the Respondent
argued that the force majeure needs to be analysed in the specific situation of the
Respondent which is not comparable to other clubs. Moreover, the city of Hatay,
according to the Presidency of Strategy and Budget Directorate source, was the most
affected city. As to the club Iskenderunspor, this club was in 3rd division and did not
have any foreign players, which was not the case of the Respondent, with 14 foreign
players who did not wish to stay in the country.
-
With regards to the application of clause 3.30 (section: special provisions) of the
contract, and although said clause referred to postponement/cancellation of the
league, it is the Respondent’s view that it would be fair to apply said clause as the
official league’s competitions could not be played due to a force majeure.
-
The Respondent wished to point out that the earthquake was a force majeure
situation for the following reasons:
-
“One of the most devastating earthquakes in the 100-year history of the Republic
of Turkey did not occur,
-
Thousands of people did not lose their lives, were not injured, did not lose their
relatives, and their homes and workplaces were not destroyed,
-
There has never been a period of months in which the simplest - basic human
needs could not be met,
-
Christian Atsu, one of the foreign players of this club, and Taner Savut, the
Sporting Director, did not pass away,
-
Three young players playing in the sub-structure and the families of club
personnel did not lose their lives,
-
The club's facilities were not rendered unusable and tent cities for homeless
people were not set up on the club premises”.
pg. 9
REF. FPSD-10441
-
Equally, the Respondent further stated that the earthquake was a force majeure
situation, in line with Swiss law and the Court of Arbitration for Sport (CAS)
jurisprudence, as it was a catastrophe completely unforeseeable: “In the earthquake,
10 big provinces in the country were affected, it is not possible for the club to know that
such a disaster would occur. The effects of this earthquake are still continuing. For
example, there are still water, electricity and housing problems in Hatay. Although 6
months have passed, an earthquake big enough to prevent life from returning to normal
should definitely be considered a force majeure.”
-
Moreover, FIFA in its announcement dated 18 February 2023, accepted that this
situation was a natural disaster.
-
With regard to the transfers of players, the club stated that it needed to perform
them, as a large number of players left the club; however, most of the players were
transferred free of payment, and /or with the support of sponsors.
-
Finally, the Respondent stated that the Claimant did not fulfil its obligations under
the contract:
-
The player only fulfilled his obligations for 10 days.
-
The player decided not to play and waited until the end of the contract to
claim all his salaries. The player did not send any warning or default notice to
the club.
-
The fees agreed in the contract were to be paid in return for the player’s
participation.
-
The player did not fulfil his obligations due to the earthquake.
-
The Respondent did everything it could to support all players, such as
proposing mutual terminations or alternative solutions.
-
The TFF declared a “white season” for the clubs operating in the earthquake
zone and these clubs have been exempted from all their obligations in
2022/2023 season.
-
The player did not contact the club to find a solution.
-
There is no evidence that the player intended to transfer to another club.
25. The request for relief of the Respondent remained unchanged.
III. Considerations of the Dispute Resolution Chamber
pg. 10
REF. FPSD-10441
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 4 June 2023 and submitted for
decision on 31 August 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.
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 par. lit. b)
of the Regulations on the Status and Transfer of Players (May 2023 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 German player
and a Turkish club.
28. Moreover, 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 (May 2023 edition) and
considering that the present claim was lodged on 4 June 2023, the May 2023 edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
29. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the TMS.
c. Merits of the dispute
30. Its competence and the applicable regulations having been established; the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
pg. 11
REF. FPSD-10441
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 the lawfulness of the
non-payment of the financial obligations under the contract, i.e., the total value of the
contract.
32. In this context, the Chamber noted that neither party contested the non-payment of the
amounts claimed by the Claimant. Therefore, it acknowledged that its task was to
determine, based on the arguments presented by the parties, whether the Respondent
had a valid justification for not having complied with its financial obligations.
33. In view of the above, the Chamber took note of the Respondent’s argumentation that the
salaries owed to the Claimant remained unpaid due to the fact that at the beginning of the
contract an earthquake stroke Türkiye, in particular the city where the club is located, and
this situation corresponded to a force majeure, justifying its default. The Respondent
further requested the application of clause 3.30 (section: special provisions) of the contract.
On the other hand, the Claimant requested FIFA to reject the argumentation of the
Respondent and order the latter to pay his overdue remuneration.
34. Having carefully analysed the case file, the Chamber observed the following undisputed
facts:
-
The parties signed a contract for 4 months starting on 26 January 2023 and ending
on 31 May 2023; the total salary to be paid for this period amounted to EUR 120,000
net and a housing allowance of EUR 4,000.
-
On 6 February 2023, an earthquake occurred in Türkiye, and Hatay was one of the
most affected cities.
-
FIFA decided to extend the registration period in Türkiye until 5 March 2023.
-
The TFF announced that all professional and amateur matches were suspended until
17-20 February 2023.
-
On 12 February 2023, the TFF announced that the Respondent made use of the
possibility to withdraw from the competitions for the 2022/2023 season. However,
as per the TFF decision, the club would return the next season (2023/2024) to the
same competition league as it was prior to the withdrawal and the TFF would pay the
receivables arising before the TFF for the rest of the season.
-
FIFA in its announcement on 18 February 2023 “was informed that HATAYSPOR, Yeni
Malatyaspor and Adanaspor had withdrawn from the current championship because
their facilities were severaly damage and could no longer be used for sporting activities”.
pg. 12
REF. FPSD-10441
-
There is no evidence that since the earthquake the parties had any type of direct
communication.
35. In this context, the Chamber stated that prior the earthquake of 6 February 2023, the
contract was executed by both parties and therefore the player shall be entitled to his
salary corresponding to this period. As a consequence, and in accordance with the general
legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable
to pay to the Claimant EUR 10,912 as pro rata salary due prior to the earthquake (i.e., EUR
124,000 /125 days times 11).
36. In continuation, the Chamber turned its attention to the remaining contract period, i.e.,
after the earthquake on 6 February 2023, and acknowledged that its task was to analyse
whether clause 3.30 (special provisions) of the contract applied to the present case,
whether the situation faced by the club corresponded to a force majeure, and whether the
player was entitled to the amount claimed.
37. In view of the foregoing, the Chamber started by recalling the wording of clause 3.30
(special provisions) of the contract:
“lf the competitions are suspended or postponed by an authorized body such as the
government of the Republic of Turkey. FIFA, UEFA or TFF), only the minimum wage will be
paid to the player during the postponement / suspension period. ln such a case, the contract
will automatically extend until the end of the competitions within the scope of TFF
instructions. lf the matches are completed after the postponement / suspension period, the
Club will pay the monthly fees to the Player. The Player acknowledges and undertakes that
the failure of the club to make the balance payments for this interrupted period cannot be
used by him as a justified termination reason. The club reserves the right to make a
reduction in fees within the scope or damages incurred due to postponement / suspension
due to postponement / suspension. ln such a case. the parties will agree on the discount
amount / rate.
If the parties fail to reach an agreement, the Club, it will decide unilaterally about the
discount provided that it is objective, measured and fair. ln the event of the cancellation
of the league, the fees will be paid on a pro rata basis taking into account the matches
actually played.” (Emphasis added).
38. The Chamber noted that the Respondent in fact only claims the application of the last
sentence of clause 3.30, i.e., contractual fees due on a pro rata basis only for the matches
effectively played by the player, following a cancellation of the league. After analysing the
documentation on file, the Chamber concluded that the factual circumstances of the
present case do not match the pre-requisites of the contractual provision invoked by the
club, as the league temporarily suspended, not cancelled, and it was the club’s decision to
withdraw from the competition. While the first part of the clause could potentially apply,
pg. 13
REF. FPSD-10441
this was not argued by the parties and the proceedings therein described were not
followed. Consequently, the Chamber concluded that such clause was not applicable to the
present case.
39. Having stated the above, the Chamber proceeded to analyse whether the earthquake was
to be considered a force majeure situation.
40. For the sake of accuracy, the Chamber pointed out that FIFA, in its official announcements,
has referred to the earthquake in Türkiye as an “exceptional situation caused by the natural
disaster affecting Türkiye”; the legal concept of force majeure however was not mentioned in
any of the announcements.
41. Subsequently, the Chamber recalled the CAS jurisprudence with regard to force majeure, in
particular case CAS 2021/A/8277, an excerpt of which is quoted below:
“Force majeure takes place in the presence of extraordinary and unforeseeable events that
occur beyond the sphere of activity of the person concerned and that impose themselves
on him/her in an irresistible manner. It implies an objective (rather than a personal)
impediment, beyond the control of the “obliged party”, that is unforeseeable, that cannot
be resisted and that renders the performance of the obligation impossible. The unforeseen
event must have been unavoidable in the sense that the party seeking to be excused from
performing could not have prevented it. Moreover, force majeure is not intended to excuse
any possible negligence or lack of diligence from a party, and is not applicable in cases
where a party does not take reasonable steps or specific precautions to prevent or limit
the effects of the external interference. As force majeure introduces an exception to the
binding force of an obligation, the conditions for the occurrence of force majeure are to
be narrowly interpreted.
According to Swiss law, the legal consequences of non-performance of a contract depend
on whether the impossibility to discharge the obligation because of force majeure is
temporary or permanent and whether one of the contractual parties is at fault. Should the
impossibility be of a permanent nature, Article 119 of the Swiss Code of Obligations (CO)
applies. Should the impossibility to fulfil the obligations be only temporary, the
counterparty can, at its discretion, a) set an appropriate time limit for subsequent
performance or ask the court to set such time limit (Article 107 CO), b) under certain
circumstances, insist on performance without delay (Article 108 CO), c) waive performance
and claim damages (Article 107(2) CO or d) terminate the agreement and demand the
return of any performance already made. In addition, it may claim damages for the lapse
of the contract, unless the debtor can prove that he was not at fault (Article 109 CO). In
accordance with Article 97 CO, the debtor’s fault is presumed. Pursuant to Article 99(1&2)
CO, the debtor is generally liable for any fault attributable to him. The scope of such
liability is determined by the particular nature of the transaction and in particular is
judged more leniently where the obligor does not stand to gain from the transaction”.
pg. 14
REF. FPSD-10441
42. In this respect, the Chamber was in agreement that the earthquake was without any doubt
an extraordinary and unforeseeable event that occurred beyond the sphere of activity of
club and that imposed itself on it in an irresistible manner. Furthermore, the Chamber
acknowledges the tragic consequences of the earthquake for Türkiye and deeply
empathises with the Turkish people and anyone whose life was directly or indirectly
affected by said natural catastrophe. Notwithstanding the foregoing, the Chamber recalled
that the legal, formal qualification of an event as force majeure requires the fulfilment of
specific pre-requisites, as detailed in the CAS decision above, in order to exempt a party of
the obligation to comply with its contractual duties. Having carefully analysed the evidence
on file, the Chamber noted that while the earthquake can indeed be considered as an
extraordinary, unforeseeable and irresistible natural event, the impossibility imposed on
the club to play and perform its legal obligations was only temporary. Specifically, the
Chamber noted that the club still exists and transferred players (even if most of the
transfers were for free); furthermore, as per public domain information, it effectively
resumed in July 2023 its participation in matches and returned to the championship in the
season 2023/2024 in the same position as it was before the withdrawal. Based on the
foregoing, the Chamber concluded that, in the present case, the earthquake could not be
legally qualified as a force majeure situation.
43. Moreover, the Chamber pointed out that the player was also temporarily hindered from
performing the contract. The imbalance in the contract caused by the earthquake affected
not only the sporting situation of the club, but also the employment situation of the player,
both in good faith.
44. Subsequently, the Chamber passed to analyse the behaviour of the parties. On this point,
the Chamber deemed that none of the parties showed the expected diligence in
demonstrating that, in spite of the circumstances, they were still interested in finding a
solution as to their employment relationship. From the documentation on file, it can be
seen that following the earthquake and the withdrawal of the Respondent from the
competition, none of the parties has contacted the other in order to reach an agreement,
discuss the possible continuation or termination of their contract.
45. In the Chamber’s view, and especially considering the short duration of the contract (4
months), the parties should have actively contacted each other in order to arrange the
resuming of the contract, the circumstances under which this could happen, renegotiate
its terms, claim any damages, or terminate the contract. However, neither the club nor the
player provided any documentation proving that they contacted each other between the
earthquake and the expiry date of their contract.
46. The Chamber considered that a reasonable period of time during which they should have
contacted each other after the earthquake in order to assess the continuation of the
contract would be 1 month after the withdrawal of the club from the competition, which
occurred on 12 February 2023, i.e., until 12 March 2023. In particular, the Chamber
understood that the club, as the employer, had the obligation of keeping its employees at
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REF. FPSD-10441
least informed of the status of their employment situation; nevertheless, evidence of such
was not provided. Thus, the Chamber concluded that as from 12 March 2023, by not
contacting each other, the parties mutually and tacitly accepted that their contract was not
going to be performed. Consequently, the Chamber concluded that the player was entitled
to his remuneration until 12 March 2023.
47. Therefore and in accordance with the general legal principle of pacta sunt servanda, the
Chamber decided that the Respondent is liable to pay to the Claimant EUR 34,720 (i.e., EUR
124,000 /125 days times 35), as remuneration due as from the earthquake until 12 March
2023.
48. Lastly, and with regard to interests requested by the Claimant, the Chamber considered
the specific circumstances of this case and exceptionally decided not award interests on
the outstanding amounts.
ii. Compliance with monetary decisions
49. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 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.
50. 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.
51. 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
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.
52. 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.
53. 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. 24 par. 8 of
the Regulations.
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REF. FPSD-10441
d. Costs
54. 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.
55. 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.
56. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-10441
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jeremy Calvin Dudziak , is partially accepted.
2.
The Respondent, Hatayspor Kulübü Derneği, must pay to the Claimant the following
amount:
-
EUR 45,632 as outstanding remuneration.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-10441
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
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
pg. 19